IN RE: AARON N. (1977)

Defendant, a minor, appeals from an order of the juvenile court committing him to the Youth Authority for violation of section 602, subdivision (j), and sections 664 and 488 of the Penal Code of California.

By a petition filed on November 14, 1975, appellant, then 16 years old, was charged with burglary in violation of Penal Code, section 459. Prior to his arrest, appellant had already acquired a lengthy record showing repeated violations of law and court orders, and erratic and disruptive behavior, and had been adjudged a ward of the court pursuant to Welfare and Institutions Code,1 section 601.

Listed in chronological order, the record shows that on May 11, 1973, appellant was referred to the probation department and placed on informal supervision for committing burglary and malicious mischief. On December 21, 1973, at age 14, he was declared a ward of the court for being beyond parental control, running away from home and acting in an incorrigible manner. On March 21, 1974, he was placed at the Ahwahnee School for driving without a license and reckless driving. On April 11, 1974, he was committed to Camp Glenwood, from which he ran away shortly thereafter. Subsequently, after apprehension, he was released to reside with his sister in a neighboring community. On May 8, 1974, the minor was found to have violated section 148 of the Penal Code, by resisting a public officer, and on November 1, 1974, he was found to have committed arson and burglary in violation of Penal Code, sections 447a and 459, and was placed with his uncle in Riverside, California. He returned home to his mother the last week of February 1975, but shortly thereafter, on February 27, 1975, he was again arrested for abusing a school teacher, in violation of Education Code, section 13560, and was placed in the Nairobi School Program on March 24, 1975, pending acceptance into the Day Care Program. On June 11, 1975, another petition charging appellant with criminal trespass (Pen.Code, § 602, subd. (j)) was sustained, whereupon he was placed under continued supervision of the probation department in his home. Having been found again beyond parental control on September 26, 1975, he was enrolled in the Day Care Program on October 1, 1975. On October 16, 1975, appellant was found to be beyond the control of the Day Care Center's custodians, and was accused of activating a fire alarm at a shopping center. As a consequence, he was returned to the Day Care Center on October 29, 1975. The record additionally reveals that appellant's academic achievement in the community schools was less than satisfactory; that the school teachers found it difficult to remedy appellant's academic deficiencies because of his behavioral pattern in the classroom; that appellant's activities in the community led to contacts with delinquent individuals who were more sophisticated than appellant; and that appellant's mother expressed fear that because of his contacts with more mature criminals appellant might get hurt.

Faced with the foregoing record, the probation officer recommended that appellant be committed to the California Youth Authority (‘Youth Authority’). After evaluating the probation report, the Resources Review Board of the Probation Department also took the position that appellant would best benefit from the Youth Authority program. At the December 5, 1975, juvenile court hearing, a plea bargain resulted in the original burglary charge being dropped, and appellant was allowed to plead guilty to the lesser charges of trespass (Pen.Code, § 602, subd. (j)) and attempted petty theft (Pen.Code, §§ 488, 664). He was thereupon committed to the Youth Authority.

On appeal, appellant contends that the commitment is constitutionally infirm on several grounds. Succinctly stated, appellant claims that while the misdemeanors to which he pleaded guilty carry a maximum jail sentence of six or three months (Pen.Code, §§ 19, 490, 664, subd. (1)), the commitment to custody and control of the Youth Authority may result in a confinement of two to five years or longer (cf. §§ 1769, 1802). This disparity of incarceration, continues appellant, is violative of the equal protection and due process clauses of the Constitution as well as the constitutional provisions proscribing cruel and unusual punishment and double jeopardy. Appellant's constitutional objections will be discussed seriatim.

Equal Protection: As judicially defined, the constitutional guaranty of equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, or property or in their pursuit of happiness (Truax v. Corrigan (1921)257 U.S. 312, 336–338, 42 S.Ct. 124, 66 L.Ed. 254; Kentucky Co. v. Paramount Exch. (1923) 262 U.S. 544, 550, 43 S.Ct. 636, 67 L.Ed. 1112). As observed in Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 85, 456 P.2d 645, 653. ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment’ (emphasis added). However, as underlined by the case law, the concept of equal protection does not require absolute equality (Douglas v. California (1963) 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811; In re Antazo (1970) 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999), or that a statute necessarily apply equally to all persons (Rinaldi v. Yeager (1966) 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577; In re Antazo, supra); rather it permits the state to provide for differences with regard to different classes so long as the result does not amount to an invidious discrimination (Gray v. Whitmore (1971) 17 Cal.App.3d 1, 21–22, 94 Cal.Rptr. 904; Douglas v. California, supra, 372 U.S. at p. 356, 83 S.Ct. 814).

Since appellant's claim that he was denied equal protection of the laws in the instant case is based in its entirety on People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, before discussing appellant's contention on the merits, we first closely analyze and delineate the scope of the holding expressed in Olivas.

To begin with, it bears emphasis that at the time of his arrest Olivas was 19 years of age, was tried and convicted as an adult in an adult court pursuant to the sentencing scheme laid down in section 1731.5,² and was committed to the Youth Authority under section 1770.³ While holding that the sentencing scheme set out in sections 1731.5 and 1770 may result, and in Olivas had resulted, in a denial of equal protection, the court emphatically pointed out that the result reached by it was based on the grounds that the persons prosecuted under those sections were tried and convicted as adults in adult courts, and that section 1731.5 divided the class of persons falling within its scope into two categories and treated them unequally (People v. Olivas, supra at pp. 239–240, 242–243, 131 Cal.Rptr. 55, 551 P.2d 375).⁴ It is thus clear that the court in Olivas was confronted with a classic case of forbidden discrimination, i. e., there were two classes of individuals who could be tried and convicted under identical circumstances, yet only one of the classes, the youthful offenders, solely by reason of their age, were subject to a potentially longer term of incarceration than the members of the other class.

By glaring contrast, in the case at bench none of the indicia of prohibited discrimination have been shown. Appellant, a juvenile delinquent, was not tried and convicted in an adult court pursuant to sections 1731.5 and 1770, but rather was tried and committed under section 1769.⁵ As appears below, section 1769 does not set up different classes of persons. It applies solely to one group of individuals, namely juveniles who have been committed by a juvenile court to the Youth Authority. Contrary to the sentencing scheme prescribed by section 1731.5, which in the discretion of the adult court allows alternative routes of incarceration, under section 1769 the juvenile court has but one choice, that is to commit the youthful offender to the Youth Authority for the term prescribed by the section. To put it briefly, section 1769 designates only one class, the members of which as a matter of law must be, and are, treated equally. Under the circumstances the constitutional attack against section 1769 on equal protection grounds must fail.

Appellant nevertheless insists that by parity of reasoning the holding of Olivas ought to be extended to youthful offenders who have been committed to the Youth Authority under section 1769, on the theory that juveniles committed under this latter section ought to be accorded the same favorable treatment as is granted to adults or juveniles convicted in the adult courts. Appellant's proposition is unfounded and must be rejected.

As mentioned before, section 1769 applies equally to all juveniles as a single class. It is, of course, well settled that while arbitrary or unreasonable classifications may not be set up, the distinctions and differences which bear a due and proper relation to the classification must be upheld, and equal protection of the laws is afforded if the law in question operates in the same general way on all who belong in the same class (Cunningham v. United States (5 Cir. 1958) 256 F.2d 467, 473).

We entertain no doubt that, due to the numerous distinctions and differences in objectives and means, the placing of minors in a class different from adults is entirely justified and bears a proper and reasonable relation to the classification. As frequently emphasized, the purpose of the Youth Authority Act is to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses (§ 1700; People v. Mack (1969) 2 Cal.App.3d 724, 729–730, 82 Cal.Rptr. 771; see also In re J. L. P. (1972) 25 Cal.App.3d 86, 89, 100 Cal.Rptr. 601; In re Carey (1922) 57 Cal.App. 297, 302, 207 P. 271). In order to achieve this goal, the Youth Authority is granted wide latitude and vested with broad discretionary power in the treatment of persons committed to it. Thus, the Act provides that ‘When a person has been committed to the authority it may

‘(1) Permit him his liberty under supervision and upon such conditions as it believes conducive to law-abiding conduct;

‘(2) Order his confinement under such conditions as it believes best designed for the protection of the public;

‘(3) Order reconfinement or renewed release under supervision as often as conditions indicate to be desirable;

‘(4) Revoke or modify any order except an order of discharge as often as conditions indicate to be desirable;

‘(5) Modify an order of discharge if conditions indicate that such modification is desirable and when such modification is to the benefit of the person committed to the authority;

‘(6) Discharge him from its control when it is satisfied that such discharge is consistent with the protection of the public.’ (§ 1766.)

In the correction of the socially harmful tendencies of a person committed to it, the Authority may ‘(a) Require paricipation by him in vocational, physical, educational and corrective training and activities;

‘(b) Require such conduct and modes of life as seem best adapted to fit him for return to full liberty without danger to the public welfare;

‘(c) Make use of other methods of treatment conducive to the correction of the person and to the prevention of future public offenses by him;

‘(d) Provide useful work projects or work assignments for which such persons may qualify and be paid wages for such work from any moneys made available to the director for this purpose.’ (§ 1768.)

The Act affords insurance against the continuance of control through neglect by requiring the Youth Authority to make periodic reexaminations of all persons within its control for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force (§ 1762). If the Youth Authority is remiss in this regard, the offender may ‘petition the superior court of the county from which he was committed for an order of discharge, and the court shall discharge him unless the Authority satisfies the court of the need for further control’ (§ 1764).

Finally the Youth Authority is entrusted with the determination of the fitness of the offender for discharge. Section 1765 provides that ‘(a) Except as otherwise provided in this chapter, the Authority shall keep under continued study a person in its control and shall retain him, subject to the limitations of this chapter, under supervision and control so long as in its judgment such control is necessary for the protection of the public.

‘(b) The Authority shall discharge such person as soon as in its opinion there is reasonable probability that he can be given full liberty without danger to the public.’

Significantly enough, section 1769, which with certain exceptions makes mandatory the dismissal of a person from the control of the Youth Authority after two years or when the person reaches his 21st birthday, is not an isolated provision but rather an integral part of the all-pervasive statutory scheme aiming at the corrective treatment, rehabilitation, education and social redemption of young persons.

In light of the foregoing analysis, it becomes quite understandable that our Supreme Court emphasized the distinction between the adult court sentencing scheme under sections 1731.5 and 1770 on the one hand, and a juvenile court commitment on the other, and reserved judgment on the constitutionality of the latter procedure.⁶ At the same time it gains added importance that in analyzing the minimum period of commitment under sections 1769, 1770 and 1771, Chief Justice Wright, who authored the opinion in Olivas, had earlier observed that ‘It seems clear that their purpose [i. e., the purpose of the above sections] is to assure some minimum period of control which will enhance the opportunity for rehabilitation. Differences do exist between persons sent to the Youth Authority by the juvenile, municipal, and superior courts. The distinctions between felons and misdemeanants is obvious. It is also reasonable to treat minors committed to the Youth Authority by a juvenile court differently from persons who have undergone criminal convictions.’ (People v. Smith (1971) 5 Cal.3d 313, 317, 96 Cal.Rptr. 13, 16, 486 P.2d 1213, 1216; emphasis added.)

Although the foregoing discussion is determinative of the equal protection issue raised by appellant, we observe in passing that the facts of the instant case by themselves rebut appellant's claim that he was discriminated against an unequally treated vis-a-vis an adult convicted by an adult court for the same offenses. As pointed out earlier, the record is replete that appellant committed a series of offenses, including numerous misdemeanors and felonies. A cursory review of the relevant penalty provisions reveal that for the offenses committed by appellant, the following maximum punishments are provided for in the Penal Code and other codes: six months for driving without a license (Veh.Code, §§ 12500, subd. (a), 40000.11, 42002); three months for reckless driving (Veh.Code, § 23103); one year for resisting a public officer (Pen.Code, § 148); 20 years for arson (Pen.Code, § 447a); 15 years for burglary (Pen.Code, §§ 459, 461, subd. (2); six months for trespassing (Pen.Code, §§ 19, 602, subd. (j)); and three months for attempted petty theft (Pen.Code, §§ 488, 490, 664). Since appellant's commitment was in response to all his misconduct, his claim that he was harshly treated and that an adult in his stead would have gotten no more than a maximum of nine months jail sentence is simply frivolous and must be rejected.

Due Process: Appellant's complaint with respect to due process is predicated on dual grounds. First, he asserts that the commitment for a period far in excess of that authorized by the Penal Code constitutes not only a denial of equal protection of laws, but also a violation of his substantive due process rights. Second, appellant insists that the potential indefiniteness of confinement (cf. §§ 1769, 1802) is by itself violative of the substantive due process secured by the Constitution. As will appear below, none of appellants arguments has any merit.

Under the concept of due process of law, procedural as well as substantive rights are protected. While procedural due process requires that before a person is deprived of his life, liberty or property he must be given notice of the proceedings against him and an opportunity to be heard (Anderson Nat. Bank v. Luckett (1944) 321 U.S. 233, 246, 64 S.Ct. 599, 88 L.Ed. 692; Pierce v. Superior Court (1934) 1 Cal.2d 759, 762, 37 P.2d 453), substantive due process deals with protection from arbitrary legislation. In substantive law deprivation of life, liberty or property is supportable only if the conduct from which the deprivation flows is proscribed by reasonable legislation reasonably applied, i. e., the law must not be unreasonable, arbitrary or capricious, but must have a real and substantial relation to the object sought to be attained (Gray v. Whitmore, supra; Russell v. Carleson (1973) 36 Cal.App.3d 334, 343, 111 Cal.Rptr. 497). Insofar as the interrelationship between substantive due process and equal protection is concerned, the general rule is that whatever classification complies with the requirements of equal protection of laws will be upheld as satisfying the due process rights as well. In fact, the two notions are overlapping, and the courts refer to both clauses at once in discussing the constitutionality of statutes (Barbier v. Connolly (1885) 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; 16 Am.Jur.2d, § 551, p. 951). In addition, there is language in the cases to the effect that equal protection of the laws is a more explicit safeguard of the prohibited unfairness than due process of law, and the equality demanded by equal protection clause is not merely a generality or minimum, but is specific and more extensive than that demanded by due process (Truax v. Corrigan, supra; 16 Am.Jur.2d § 490, p. 854).

When tested by the foregoing standards, neither of appellant's due process claims is able to withstand judicial scrutiny. Thus, our conclusion that appellant was not denied equal protection of the laws by reason of the commitment under section 1769 is also dispositive of his complaint relating to substantive due process. Appellant's alternative contention that the indefiniteness of commitment constitutes a violation of his substantive due process rights, in turn, can be briefly answered by pointing out that the purpose of the Youth Authority Act is to provide for correction and rehabilitation of youthful offenders rather than to provide for their punishment (In re Benny G. (1972) 24 Cal.App.3d 371, 375, fn. 3, 101 Cal.Rptr. 28; In re Keller (1965) 232 Cal.App.2d 520, 525–526, 42 Cal.Rptr. 921); and that it constitutes a reasonable legislation which has the required substantial relation to the object described above. As the court put it in People v. Getty (1975) 50 Cal.App.3d 101, 113, 123 Cal.Rptr. 704, 712, ‘The Act [§§ 1700–1906] clearly authorizes the more-or-less indefinite commitment of a person to the Authority in cases which otherwise could have been dealt with (like the instant case) by the imposition of a misdemeanor jail term. This is perfectly consistent with the stated purpose of the Act and holding of the courts.’ (Emphasis added.)

Cruel and Unusual Punishment—Double Jeopardy: Appellant's remaining contentions may be summarily disposed of. In Olivas, our Supreme Court reaffirmed the longstanding proposition that the cruel and unusual punishment provisions of the Califoria and United States Constitutions do not apply to Youth Authority commitments because they are solely for the purpose of rehabilitation and not punishment (People v. Olivas, supra, 17 Cal.3d at p. 255, 131 Cal.Rptr. 55, 551 P.2d 375; accord: In re Gary W. (1971) 5 Cal.3d 296, 301–302, 96 Cal.Rptr. 1, 486 P.2d 1201; People v. Barstow (1974) 42 Cal.App.3d 90, 95, 116 Cal.Rptr. 524). It is, of course, an elementary proposition that double jeopardy prohibits a second prosecution of the same individual for the same offense (Howard v. United States (9 Cir. 1967) 372 F.2d 294, 297). And, while it is also clear that, in proceedings before juvenile courts, juveniles are entitled to constitutional protection against twice being placed in jeopardy for the same offense (Bryan v. Superior Court (1972) 7 Cal.3d 575, 102 Cal.Rptr. 831, 498 P.2d 1079; Richard M. v. Superior Court (1971) 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664), the record at bench is entirely devoid of any indication that appellant was tried twice for the same offense. Under these circumstances appellant's double jeopardy claim is totally meritless.

The order is affirmed.

FOOTNOTES

FN1. Unless otherwise indicated, all references will be made to the Welfare and Institutions Code of California..  FN1. Unless otherwise indicated, all references will be made to the Welfare and Institutions Code of California.

2.  Section 1731.5 permits the adult court to commit to the Youth Authority ‘any person convicted of a public offense who comes within subdivisions (a), (b), and (c), or subdivisions (a), (b), and (d), below:‘(a) Is found to be less than 21 years of age at the time of apprehension.‘(b) Is not sentenced to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine, or after having been directed to pay a fine, defaults in the payment thereof, and is subject to imprisonment for more than 90 days under the judgment.‘(c) Is not granted probation.‘(d) Was granted probation and probation is revoked and terminated.‘The Youth Authority shall accept a person committed to it pursuant to this article if it believes that the person can be materially benefited by its reformatory and educational discipline, and if it has adequate facilities to provide such care.’ (Emphasis added.)

3.  Section 1770 provides that ‘Every person convicted of a misdemeanor and committed to the authority shall be discharged upon the expiration of a two-year period of control or when the person reaches his 23d birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).’ (Emphasis added.)

4.  The illustrative portions of the opinion read as follows: ‘Section 1731.5 operates to divide one class of individuals, persons convicted of a public offense, into two groups. Of the entire class of persons who suffer such a conviction, only those who were under 21 years of age at the time of their apprehension and are otherwise eligible may be committed to the Youth Authority. The remainder of the class, persons 21 years of age and older, may be subjected to only the normal range of dispositional alternatives.’ (Pp. 239–240, 131 Cal.Rptr. p. 56, 551 P.2d p. 376; emphasis added.)‘To reiterate, our analysis has shown that section 1731.5 by its own terms affects a specifically designated class of individuals, persons convicted of a public offense. It divides that class into two groups and creates a sentencing scheme whereby those misdemeanants between the ages of 16 and 21 years of age are singled out for potentially longer terms of incarceration than all other misdemeanants.’ (P. 242, 131 Cal.Rptr. p. 59, 551 P.2d p. 379; emphasis added.)It is further stated that section 1731.5 applies to youthful misdemeanants because ‘such persons have been prosecuted as adults, adjudged by the same standards which apply to any competent adult, and convicted as adults in adult courts. [Fn. omitted.] Yet, despite the fact that they are treated in the same manner as any competent adult during the process which results in their convictions, such persons may be subjected to significantly greater terms of incarceration as a result of those convictions solely by reason of their age.’ (Pp. 242–243, 131 Cal.Rptr. p. 59, 551 P.2d p. 379.)

5.  Section 1769 provides that ‘Every person committed to the authority by a juvenile court shall be discharged upon the expiration of a two-year period of control or when the person reaches his 21st birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).’ (Emphasis added.)

6.  In footnote 11 the court stated: ‘We are not confronted by a situation in which a juvenile adjudged under the Juvenile Court Law as a juvenile contends that his term of involuntary confinement may exceed that which might have been imposed on an adult or juvenile who committed the identical unlawful act and was thereafter convicted in the criminal courts. Since that situation is not before us, we reserve consideration of the issue should it arise in some future case and we express no opinion on the merits of such a contention.’ (People v. Olivas, supra, 17 Cal.3d at p. 243, 131 Cal.Rptr. at p. 59, 551 P.2d at p. 379.)

KANE, Associate Justice.

TAYLOR, P.J., and ROUSE, JJ., concur.