*1 Dist., Div. Five. Oct. No. 27497. Second 1976.] [Crim. PEOPLE, Plaintiff and
THE Respondent, HERRON, EDWARD Defendant and
JOHN Appellant.
Counsel Stocker, the Court of Defendant
John Appeal, appointment and Appellant. Winkler, General, R. Jack Chief Assistant
Evelle J. Attorney Younger, Moore, General, General, Kent L. S. Clark Assistant Attorney Attorney General, Weisbrot, for Plaintiff Richland and Abram Attorneys Deputy and Respondent.
Opinion violated the
STEPHENS, J. was with Defendant having charged law, Code 12020. After a not control Penal section weapons dangerous entered, trial was waived. Defendant to a was juiy right guilty plea denied and commitment Probation was as was found guilty charged. was ordered. California Youth defendant, others, 15, 1974, On of December night along on a residential lot. At one time the lot had seen on the crest of a mound at the time here involved there been built but apparently upon, of a officers involved had been notified remained foundations. The only location, arrival, the sound of a at the and on heard disturbance gunshot. mound, their announced went presence, They up top head, air, over his as with his hands there observed defendant *4 The of behind him. sound he was something something though throwing observed was heard. No article was specifically striking ground 410 the sawed-off been thrown. have shotgun Upon investigation, in the direction of the 25 30 from defendant and found some feet loaded; determined and it was throw. The was diy subsequently weapon covered with was located was The area in which the to be gun operable. mashed-down, in the same with dew. Also found and was wet long grass, it, but was had dried area was a cover which covering paint paint-roller wet to the touch. arrest who a witness to the
The defense consisted testimony never saw the throw and that he never saw defendant testified anything fired, which could before, was a noise that no shot was but there shotgun backfire, defendant no had automobile have been an any weapons, times, and none of the at all had his hands his people present pockets threw anything. The case of
The evidence was to sustain the conviction. adequate Hilliard, v. 221 similar 809], 719 People quite Cal.App.2d Cal.Rptr. [34 case, there, the circumstantial to the instant and it was found that evidence of contraband. adequately supported charge possession case. 724.) at The same rationale is in the instant (Id., p. applicable that There is no merit to the contention probation which to arrests sentence was unfair and Reference hearing prejudicial. had not resulted in convictions was contained in the report. probation that alone with defendant such reference may standing agree but that the but in the instant case there was no prejudicial, question convictions, was not arrests were not followed hence the misled. by judge addition, contacts with the established record of court juvenile
647
defendant, his
been found to have
committed
offenses
having
many
shown,
association,
and his
obviated
gang
clearly
any suggestion
have
which
arisen
the reference to arrests which had
prejudice
might
not resulted in convictions. The instant case is readily distinguishable
from
v.
relied
745],
People
Calloway,
Cal.App.3d
Cal.Rptr.
[112
There,
defendant.
the bare
without
upon
police-contact
listings
or other
informative facts constituted error.
showing dispositions
major
The information in the instant
so limited.
v.
(See
report
People
Peterson,
717,
835,
725-726
Since the
of briefs in this
Court has handed
filing
Supreme
Olivas,
down its decision in
55,
involved. public (2) three Felonies Misdemeanors and (1) (3) offenses into catagories: 17, subdivision defines a as “a (a), Infractions. Penal section death or in the state crime which is by imprisonment punishable prison.” section, offense same other crime or direction of that public “Every
By as infrac- offenses which are classified is a misdemeanor those except tions.” 17 defines of misdemeanors: “When a
Subdivision of section (b) types court, in crime is in the discretion of the by imprisonment punishable, or it is a the state or fine county jail, prison imprisonment (1) circumstances: misdemeanor for all following purposes other than After a a imprisonment judgment imposing punishment the Youth the defendant When the court commits (2) the state prison; Authority.” from statutes that there is more than one discern these type i.e.,
misdemeanor; in a and Youth (other time than state prison) jail from that commitment. spring solely portion Seeking of section of the Penal Code county punishment portion limiting sentence to one defendant have us declare that all would year, time misdemeanors have a maximum incarceration of one includ- year, time the Youth the law otherwise. Defendant ing Authority; provides Olivas, has seized on the “misdemeants” as used in phrase bootstrap himself into the to the Youth shall concept misdemeanor, for all thereafter.” “unconditionally purposes (People Navarro, 248, 497 P.2d He 481].) also *6 Olivas, relies as the result he desires. In mistakenly upon supra, dictating that case the maximum incarceration for the crime there provided involved months. sole (Pen. 240) six The § place Code, 241.)4 incarceration was as the (Pen. § designated county jail. us, however, incarceration,
In had the case before the maximum felon, defendant been sentenced as a would been three in the have (an state Had defendant been sentenced to the county jail prison. 18a, states: 4Penal Code section in cases where a different minimum “Except is ... for offense declared to be a .. . the minimum every punishment prescribed shall be in of the state for not less than six imprisonment any prisons imprisonment months.” alternative for in the maximum would have been one 12020), § provided But to a defendant was not sentenced term in the year.5 the maximum incarceration as a committee to the Youth is not limited the in restriction sections 12020 and 19a of the Code.6 Penal by are, therefore, confronted the denial of the only by equal issue, Olivas, of the law as in when defendant protection is recognized threatened with an extension of incarceration the maximum to beyond which he could Code, i.e., be under section 12020 of the Penal subjected three As stated in Olivas on years.7 240-241: “In to order under- pages stand how section 1731.5 & Inst. results in a denial [Welf. Code] equal defendant, to misdemeanants such as isit protection youthful necessary the maximum of incarceration which compare period may imposed under Code the Penal with the period permitted upon the Youth Authority.”8 the issue before it is us in have mind the considering necessary and direction of however, the Youth is
purpose this set Authority; fully Herrera, forth in In re P.2d The desire to 345]. the seasoned from the segregate prisoner impressionable transgressor likewise clear. The reasons stated are there (and patently many others) the distinction between the three incarceration sentences justify 5Section 19a of the Penal Code that maximum confinement in provides county jail county jail one Section 12020of the Penal that year. Code also in the year provides the maximum which in confinement be ordered may facility. 6We do not set forth the maximum terms of commitment in the Youth for conclude, however, are they Olivas at 241. As we will fully analyzed page (as maximum incarceration instant case in of Olivas from Welf. light distinguished & Inst. Code is three provisions) years. case, in'context; we 7The on in that as have in Olivas must be read language page noted, term if county the court was with a crime which for a dealing provided solely jail time was ordered: “If the clause can be overridden jail necessity equal protection than the of some ‘minimum of confinement for rehabilitation’ which is longer period what other misdemeanor term as is then appropriate urged People, constitutional would bar a statute confinement provision permitting lifelong the beneficent misdemeanant marginally incorrigible shoplifters, example, (Fn. omitted.) guise rehabilitative treatment?” 8“The that if of this situation is further when one considers highlighted inequity another adult 21 had taken in the same assault which resulted years-of-age part conviction, convicted, had been and had then been sentenced to defendant’s maximum similarly case, that have been of incarceration in his would permitted period *7 Moreover, of freed months the instant case is not some isolated many example ago. a treatment has resulted defendant’s case. Even when youthful which in unequal only a a term of jail offender is convicted of misdemeanor with maximum permissible results, least, a of commitment to the Youth at the in one-year, very doubling Authority the 1770.” of incarceration due to the of section possible two-year provision period to to the the Penal Code: sentence state sentence in prison,
prescribed to the Youth In each instance and commitment Authority. county jail, the and one from other the term of incarceration may merely vary and Youth both because the term “misdemeanor” designates county jail incarceration, the not limited the other. It is is by Authority the statute violated maximum term of incarceration authorized penal as it relates to and Youth which limits control both county jail penal at 239.) the instant case that maximum (Olivas Authority. p. three incarceration years. period its
We conclude that neither Olivas nor of dealing predecessors any a Youth with this have held that because Authority topic simply misdemeanor, to be thereafter as a treated all respects to maximum the maximum term the misdemeanor term supersedes a which have been sentenced had sentence been might defendant a to which have We note also that conclusion that we contrary imposed. of local reached would the of use state and facilities negate right many director, now available to of the state the including portions prison system.9 of there a full at time sentence note also here discussion or term or sentence vis-a-vis
regarding probation prison Youth commitment.10 caveat, it must understood that we do not here decide the effect
By if of Olivas in the case of defendant the of 16 and 18 between any ages the of and Institutions Code states: “For 9Section 1753 of the purpose Welfare duties, authorized to make use of law and the director are out its the carrying detention, educational, correctional, medical, enforcement, segrega probation, parole, facilities, the within whether or public private, institutions and tive and other agencies, officials into with the agreements appropriate public The director enter may State. the of subject treatment in institutions existing persons care and separate special of the Authority.” control any “Notwithstanding and states: the Welfare Institutions Code Section 1755.5 of cause Youth transfer and the may of Section or Section provisions Soledad, the at Correctional Facility, Training Facility in the Medical the to be confined Center, Corona, the at the California Rehabilitation for Women California Institution Institution, Men the Institution for or the California Correctional Medical diagnosis, of Corrections for general study, of the Department jurisdiction treatment, them, the of 18 who years subject of over any person age or any control, and the Director Corrections Youth Authority; custody, discipline thereto the said institutions so transferred receive and any person may keep any if had therein or the same as been placed the Youth transferred thereto Authority, powers Penal Code.” provisions pursuant at time of 10The made a that defendant was finding age judge specific “THE cause sentence should Any The record reads: COURT: legal why the offense. *8 where the in such case A faced with a court sentencing problem years.11 “wobbler” but if it is not a even (or the “wobbler” “crime” is of type12 no has or life less than rather a imprisonment) straight felony capital he cannot sentence Youth for but to commit to the alternative Authority course, is a sentence of (unless, to the state such person prison 707.2, & Inst. (Welf. § and deemed permissible). appropriate ante, 608].) In re Stanley, p. Cal.Rptr. [131 supra; of the contentions we have condensed
While well on as the issues defendant, each facet of we have considered appeal However, it cited, find there was no error.13 the cases and as each of modified to be we do direct that the remains judgment necessary, the California Youth to that defendant’s provide from time of three at a time not in excess be terminated years sentence.
now be pronounced? to to has read and misdemeanor criminal treated as a on Goodson [prosecutor]: prison, except upon of Division exception court that he cannot interests of justice comitted Mr. Nierenberg:.... state that are classified purposes 1731.5and the state 11Welfareand Institutions Code section “(a) “(b) 12PenalCode section sentence the court may make a motion for a new trial for present probation report, prison. A When a crime is punishable, offense, prison to the California Youth under the following not to juvenile to the and personally 1737.1, 2.5. Of those misdemeanor. If the Court authority Every considered the past as an rather than a have or exceed 90 and who has been found not as infractions. Court, or no I would ask that other crime or adult or in the alternative County court law petition a weapon. Mr. Nierenberg present I’m crime which fine minor who was under unless he I 17, think persons asking there would be motion or evaluated.” subdivisions remand such persons felony days report filed wards of the imprisonment circumstances. pursuant if he has been remanded . . . THE COURT: Probation Authority.” for eligible pursuant public under goes the matter be treated as my [defense punishable in the discretion that. Mr. Nierenberg: is (a) and to Section client not be purpose the Penal Code. THE COURT: probation to YA offense going for commitment to authority, 707.2 states: in the county jail, attorney]: Article 5 (commencing (b)(2) a fit and it will be treated as age to the custody is a misdemeanor except impose 707, shall be sentenced to the state officer. to the Youth of 18 for a new evaluation and report. sent to the no time to impress upon states: death or “Except None. proper subject any Mr. Nierenberg: the Youth Authority, prior court, No. In lieu is denied. it is a misdemeanor a misdemeanor. sentence, THE COURT: trial to reduce when of the California Youth CYA, shall be returned by imprisonment as provided a misdemeanor. by imprisonment with Section he committed that the matter either place to be The defenant You don’t thereof those him the idea [11] I would in Sections The Court dealt with diagnosis . . . Mrs. this to With the offenses in the for all 1780) have him like any . . . a “(2) the Youth Authority.” the defendant to When the court commits This briefing. raised by way probation supplemental is an issue in this comment 13Included without or denial of explanation that the contention argues additional Podesto, 1297].) 544 P.2d (See In re of reason. statement *9 modified, As so is affirmed. judgment J., concurred. Ashby, and Dissenting.
KAUS, J., Olivas, P. Concurring People 551 P.2d three raises One: specific questions. 375] whether, contends, as defendant of a the duration Youth Authority commitment after conviction of an alternative is felony-misdemeanor, limited the maximum time which could on necessarily imposed adult, an if the court adult determined to treat such as a sentencing “no,” misdemeanant. if the Two: answer to this how we question case, should of this in mind that when the dispose trial particular having court sentenced defendant it was ignorant equal protection Olivas. Three: how Olivas affects problem posed by defendants youthful convicted of and sentenced trial courts felony-misdemeanors aware of Olivas. seen, will be
As I with the that the to the first answer agree majority however, I “no.” to its of question disagree, respect disposition this case. since this case does involve a particular Finally, obviously Olivas, court aware of I it find to answer the third unnecessary question.
I I do not with defendant that Olivas a misde- agree inevitably puts meanor “lid” on the maximum Youth confinement of a defendant found of committed guilty having felony-misdemeanor. holds,
Olivas on in a merely equal protection grounds, straight misdemeanor case where the maximum incarceration that could be an suffered adult is six months in Youth incarceration jail, case, Under the circumstances this of defendant his “gang” record prior It involvement was at time sentence. probation argument exposed report (in to us to reiterate those facts addition to his appears acknowledgement unnecessary judge read and as a considered having report) prologue of denial that in a close an statement do not case probation. expression say we would not review but see no harm reasoning since give greater meaning appellate statement, here resulted abbreviated there is no returning from the sense having act. case for an unnecessary resentencing maximum. This cannot exceed the adult argument equal protection 12020 of the Penal Code in this case since section provides inapplicable *10 not one in the exceeding “by imprisonment punishment than nor more than three in a state for not less or year year prison for three an adult could have been sent years. prison years.” Obviously Therefore, commitment cannot exceed if defendant’s Youth Authority statute, rather than in in a California be found the reason must one year, Amendment. of the Fourteenth clause protection equal 17, that “When a (b) (2), section subdivisions Penal Code provides in the state ... or ... crime is prison by imprisonment punishable . . for all . it is a misdemeanor purposes county jail, imprisonment Youth the defendant to the the court commits Authority.” [w]hen 35, 330, contexts, Hannon, 5 Cal.3d v. different Cal.Rptr. People [96 Navarro, 248, 265-271 P.2d 1235], People 17, section subdivi- 497 P.2d held that Penal Code 481], however, is, what it The means (b) (2), sions says.1 question precisely clause, a a limitation derived from whether absent equal protection irreconcilable with in excess of one Youth year Authority label. the “misdemeanor for all purposes” a maximum
I that no statute which it is not. There is agree prescribes The Youth confinement of one for misdemeanants. only Authority year Code, and Institutions statute is section 1770 of the Welfare applicable which convicted of misdemeanors and committed provides persons a “two Youth must be after discharged year period control or when the his 23d whichever occurs reaches birthday, does, course, . limit later . . .” Section 19a of the Penal Code but absent confinement for misdemeanants to one year, equal protection when the defendant has that statute does not leverage, obviously apply been sentenced to jail. II to six of section 1770 shortened In Olivas the maximum statutory an adult convicted it incontrovertible fact that months because was an offender, felony- of an alternative convicted held that when a youthful 1Hannon Welfare section 1737.1 of the court under to the community returned misdemeanor. Code, held that a misdemeanant. Navarro sentenced as a he can only and Institutions a Youth which resulted in alternative felony-misdemeanor conviction on an previous commitment, for the conviction purpose is not a previous rehabilitation the narcotics program. determining eligibility the same crime could not have been confined for a The longer period. is, course, that, correct in Olivas to a majority quite holding applying violation of section 12020 of the Penal the maximum possible Youth confinement is three the maximum years—that being adult, confinement that could be suffered an if such an adult is prison This, however, sentenced as a felon. limit of only upper confinement which demands that an equal protection presupposes adult in the defendant’s shoes would have been sentenced as a felon. as far as this defendant is concerned we have no such
Manifestly *11 assurance. Not aware of the trial being any equal protection problem, court committed defendant to the Youth after defense counsel had asked that the court “reduce to a misdemeanor” and [the offense] had announced that a Youth prosecutrix would be “treated as a misdemeanor”—an obvious reference to section 17, subdivision (b)(2) the Penal Code. In this fashion the trial court was caused to which Olivas makes relevant leapfrog question by way of the clause: what would have been defendant’s equal protection maximum confinement had he been an adult?
Ill outset, IAs said at the I do not think a that this case calls for holding or declaration with to the maximum Youth confine- respect ment of committed to the Youth a trial court juveniles Authority by fully of the clause. I cognizant impact equal protection Personally such, should have that in a entitled to a case thought juvenile finding defendant, how the court would have handled an but that is neither adult concerned, here nor there. As far as this defendant he is clearly entitled ato reconsideration of the sentence in the of Olivas. light
I therefore dissent from the of the case. disposition 1, 1976, A for a was denied November petition rehearing modified, J., Kaus, to read as above. P. was of the opinion printed that the should be opinion petition granted. Appellant’s petition Court was denied December 1976. hearing Supreme