Breed v. Superior Court

• Decision Date: 16 November 1976
• Citation: 63 Cal.App.3d 773,134 Cal.Rptr. 228
• Court: California Court of Appeals Court of Appeals
• Parties: Allen F. BREED, Director of the Department of Youth Authority, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, Respondent; JOHN H. G., Real Party in Interest. Civ. 38577.

Page 228

134 Cal.Rptr. 228

63 Cal.App.3d 773

Allen F. BREED, Director of the Department of Youth Authority, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, Respondent JOHN H. G., Real Party in Interest.

Civ. 38577.

Court of Appeal, First District, Division 1, California.

Nov. 16, 1976.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, William D. Stein, Deputy Attys. Gen., San Francisco, for petitioner.

D. Lowell Jensen, Dist. Atty., T. W. Condit, Robert Chambers, Deputy Dist. Attys., Oakland, for respondent.

SIMS, Associate Justice.

The Director of the Department of the Youth Authority has sought a writ of prohibition to restrain the respondent superior court, hereinafter referred to as the juvenile court, from enforcing an order which continued real party in interest, then 18 now 19, under an earlier commitment to the Youth Authority and released him from custody pending a further hearing. The director also seeks a writ of mandate compelling the juvenile court to set aside that order.

The subject of the order, who was born August 20, 1957, was last committed to the Youth Authority on July 29, 1975, when he was 17 years of age. ¹ His commitment followed a finding that he violated Penal Code section 417, two counts, and section 148, as a result of an incident on July 6, 1975, when he was arrested and charged with brandishing a knife at two women, resisting arrest, assault and disturbing the peace.

The director by letter dated October 20, 1975 ², ordered the youth returned to court pursuant to the provisions of section 1737.1 of the Welfare and Institutions Code. ³ On October 23, 1975, he was received by probation authorities in the committing jurisdiction and transferred to the county hospital for a psychiatric evaluation to determine whether he was subject to commitment as a result of a mental disorder. (See Welf. & Inst.Code, §§ 5150 and 6551. Note In re Michael E. (1975) 15 Cal.3d 183, 189--191, 123 Cal.Rptr. 103, 538 P.2d 231. The examining physician assessed the youth as follows: '. . . This man may have psychotic episodes but there is no evidence of same at present.' He was returned to court on October 24, 1975, for a detention hearing on a petition which alleged he had been returned to the committing court pursuant to the provisions of section 1737.1. The court dropped the new petition from the calendar and ordered the ward returned to the care and custody of the Youth Authority under the commitment made on July 29, 1975. Because of his age and record the ward was detained in jail. On October 27, the probation officer wrote the Youth Authority concerning the court action. On November 5 the Youth Authority advised that it would not accept the ward if he were returned because he had been diagnosed as falling within the provisions of section 1737.1 (see fn. 3 above).

Under date of November 17, 1975, the Youth Authority furnished the probation officer with the data on which it predicated its evaluation of the ward's need for psychiatric treatment which it could not furnish. ⁴ Thereafter, further proceedings were taken to secure a psychiatric evaluation of the ward. ⁵ The matter came before the court on December 16, 1975, for a report on the attempts to refer the ward to the Department of Mental Hygiene under section 5150 of the Welfare and Institutions Code. The report set forth what had been done, and pointed out the impasse which had arisen between the Youth Authority and the juvenile court. It recommended, and the court ordered, that the matter be continued for two weeks for clarification of that issue. On December 31, 1975, the court made the following order: '. . . Said minor having been returned from the Youth Authority pursuant to Section 1737.1 of the Welfare and Institutions Code, Court orders said minor continued under the present commitment to the Youth Authority, said minor is released from custody and the matter is continued to March 31, 1976 at 9:00 A.M. for report. Said minor need not be present on March 31, 1976.' ⁶

On March 1, 1976, the director filed the petition which is the subject of these proceedings. An alternative writ of mandate issued June 10, 1976, and the court made return on July 8, and the matter was thereafter argued and submitted. The public defender, who represented real party in interest, has indicated by letter that he is closely allied with the director's position, and that he is content to await the court's decision on the dispute between the court and the director without a further appearance.

We are asked to resolve the impasse occasioned by the decision in Breed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, wherein it was determined that the prosecution of a minor in the superior court after an adjudicating proceeding in the juvenile court violated the double jeopardy clause of the Fifth Amendment as it applies to the states through the Fourteenth Amendment (421 U.S. at p. 541, 95 S.Ct. 1779). It thereby nullified the provisions of section 707, which at the time of the ward's return to court in October 1975 purported to permit the court to direct that proceedings be commenced in the criminal court when a ward was returned by the Youth Authority pursuant to section 1737.1. ⁷ Our Supreme Court has recog nized, 'Commitment to the Youth Authority is the placement of last resort for juvenile offenders. (In re Aline D. (1975) 14 Cal.3d 557, 564, 121 Cal.Rptr. 817, 536 P.2d 65.)' (In re Bryan (1976) 16 Cal.3d 782, 788, 129 Cal.Rptr. 293, 297, 548 P.2d 693, 697.) Yet on the other hand section 1737.1 announces a legislative policy that the juvenile court may not recommit to the Youth Authority a person returned to the court pursuant to the provisions of that section. The juvenile court, having tried without success other lesser dispositions available to it, properly asks, what disposition can it make?

There is also involved the dilemma posed by the disagreement between the psychiatrists of the Youth Authority who insist that the ward needs psychiatric treatment, and the psychiatrists who have examined the ward and have concluded that his mental condition is not such as to warrant involuntary commitment.

It is concluded that the juvenile court did not err in continuing the ward under the existing commitment of July 29, 1975, and that although it may have been a technical error to release the ward from the custody, the director cannot complain because it was occasioned by his failure to exercise his continuing jurisdiction.

I

The director contends that the superior court was without jurisdiction to recommit the ward to the Youth Authority. He points out that the Legislature has vested in the Youth Authority the discretion to determine whether any person committed to it falls within any of the criteria authorizing the authority to return him to court. (See § 1737.1, supra, fn. 3; People v. Ferrel (1972) 25 Cal.App.3d 970, 977, 102 Cal.Rptr. 372, and People v. Woolbert (1965) 232 Cal.App.2d 544, 546, 42 Cal.Rptr. 919. Note also, with respect to original acceptance or rejection by the authority, Bryan v. Superior Court (1972) 7 Cal.3d 575, 584--586, 102 Cal.Rptr. 831, 498 P.2d 1079 (cf. In re Bryan (1976) 16 Cal.3d 782, 129 Cal.Rptr. 293, 548 P.2d 693, applying Breed v. Jones, supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346); People v. Ralph (1944) 24 Cal.2d 575, 583, 150 P.2d 401; In re Herrera (1943) 23 Cal.2d 206, 212, 143 P.2d 345 (disapproved on another issue People v. Olivas (1976) 17 Cal.3d 236, 257, 131 Cal.Rptr. 55, 551 P.2d 375), and People v. Bell (1971) 17 Cal.App.3d 949, 957, 95 Cal.Rptr. 270.) He then insists on strict application of the last clause of section 1737.1 reading 'said (juvenile) court may not recommit such person to the Youth Authority.' He acknowledges that section 780, after recognizing the Youth Authority's discretion to return a ward to the committing court, continues, 'However, the return of any person to the committing court does not relieve the Youth Authority of any of its duties or responsibilities under the original commitment, and such commitment continues in full force and effect until it is vacated, modified, or set aside by order of the court.' ⁸ He dismisses section 780 as having been enacted in 1961 to prevent 'a hiatus in jurisdiction between the time the Youth Authority returns a ward under section 1737.1 . . . and the time when the juvenile court resumes its jurisdiction and enters a new disposition.' He insists that the court was required to make a further order which would not result in returning the ward to the custody of the Youth Authority.

On behalf of the juvenile court it is not urged, as we review below, that the inconsistency between the provisions of section 780 and of section 1737.1 must be resolved to favor the application of the former. It is contended that 1737.1, when properly construed in the light of the total statutory scheme and purpose of the Youth Authority Act, does not give the authority the power to reject a person following an adjudicatory hearing in the juvenile court. The court also asserts that the application of the express provisions of section 1737.1 to a commitment of last resort, is an unlawful delegation of power to an administrative agency. As a third attack on the director's position, it is asserted that to preclude the court from preserving the existing commitment or from recommitting the ward to the Youth Authority divests the people of their inalienable right to governmental protection from crime and violence.

We do not find those contentions decisive. Nevertheless we conclude that the provisions of section 780 must givern those found in section 1737.1, and the court acted properly in refusing to vacate, modify or set aside its commitment of July 29, 1975.

A

On analysis it appears that the first contention rests, not upon...