Lawrence B., In re

• Decision Date: 02 September 1976
• Docket Number: Cr. 27673
• Citation: 132 Cal.Rptr. 599,61 Cal.App.3d 671
• Court: California Court of Appeals Court of Appeals
• Parties: In re LAWRENCE M.B., a person coming under the juvenile court law. Clarence E. CABELL, as acting chief probation officer, etc., Petitioner andRespondent, v. LAWRENCE M.B., Defendant and Appellant.

Page 599

132 Cal.Rptr. 599

61 Cal.App.3d 671

In re LAWRENCE M.B., a person coming under the juvenile court law.

Clarence E. CABELL, as acting chief probation officer, etc., Petitioner andRespondent, v. LAWRENCE M.B., Defendant and Appellant.

Cr. 27673.

Court of Appeal, Second District, Division 4, California.

Sept. 2, 1976.

Hearing Denied Nov. 24, 1976.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Owen Lee Kwong, Deputy Attys. Gen., for respondent.

KINGSLEY, Acting Presiding Justice.

Appellant was duly charged, by a petition in the Juvenile Court, with being a person described in section 602 of the Welfare and Institutions Code, by reason of having committed two acts of rape, in violation of subdivision (2) of section 261 of the Penal Code, and with having committed an act of kidnapping in violation of section 207 of the Penal Code. After a hearing under section 725 of the Welfare and Institutions Code, the allegations of the petition were found to be true. ¹ At the disposition hearing, held under section 726 of that code, the court committed appellant to the Youth Authority. The pertinent part of the order of commitment reads as follows:

The Court finds that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by the Youth Authority. The Court finds that the minor comes under the provisions of Sec. 726, a & c W/C Code.'

We hold that an order, couched only in such conclusionary terms, does not support a commitment to the Youth Authority.

While a juvenile court judge has discretion concerning the disposition to be ordered in a section 602 case, that discretion is not unlimited. The guidelines are spelled out in section 726 of the Welfare and Institutions Code, as follows:

'In all cases wherein a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over such ward or dependent child by any parent or guardian and shall by its order clearly and specifically set forth all such limitations, but no ward or dependent child shall be taken from the physical custody of a parent or guardian unless upon the hearing the court finds one of the following facts:

'(a) That the parent of guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor.

'(b) That the minor has been tried on probation in such custody and has failed to reform.

'(c) That the welfare of the minor requires that his custody be taken from his parent or guardian.'

(1) At the time herein involved, the mere fact that a minor has committed a serious felony was not, in and of itself, a ground for a Youth Authority Commitment. ²

(2) It is the mandate of section 726 that a commitment to the Youth Authority be made only as a last resort when the lesser remedies of probation or juvenile camp placement have failed or clearly are inappropriate. As the Supreme Court said in In re Aline D. (1975) 14 Cal.3d 557, at page 564, 121 Cal.Rptr. 816, at page 820, 536 P.2d 65, at page 69:

'As is evident from the applicable statutes, 'Commitments to the California Youth Authority are made only in the most serious cases and only after all else has failed.' (Thompson, California Juvenile Court Deskbook, § 9.15, p. 123.) This concept is well established and has been expressed by the CYA itself. In light of the general purposes of juvenile commitments expressed in Welfare and Institutions Code section 502, discussed above, '. . . commitment to the Youth Authority is generally viewed as the Final treatment resource available to the juvenile court and which least meets the description in the above provision (§ 502). Within the Youth Authority system, there is gathered from throughout the State the most severely delinquent youths which have exhausted local programs.' (Italics added; California Youth Authority, Criteria and Procedure for Referral of Juvenile Court Cases to the Youth Authority (1971) p. 1.).'

On a record containing no express findings indicating why or how the trial court concluded that the conditions of subdivisions (a) and (b) of section 726 had been met, it was error to order a Youth Authority commitment. ³

The order appealed from is reversed.

DUNN, J., concurs.

JEFFERSON, Associate Justice (dissenting).

I dissent.

The majority holds that the juvenile court's order committing the minor to the Youth Authority was invalid for a Lack of express findings to support the order of commitment. The court's findings were as follows: 'THE COURT FINDS: ( ) Welfare of minor requires that custody be taken from parents or guardians. ( ) The Court finds that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by the Youth Authority. The Court finds that the minor comes under the provisions of Sec. 726 a & c WIC Code.'

The majority concludes that the above findings are couched only in conclusionary terms and do not support an order of commitment to the Youth Authority.

There is no disagreement over the provisions of Welfare and Institutions Code section 726, the governing statute that sets forth the conditions under which a ward of the juvenile court may be removed from the physical custody of his parents. Section 726 provides, in relevant part, that 'no ward or dependent child shall be taken from the physical custody of a parent or guardian unless upon the hearing the court finds one of the following facts: ( ) (a) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. ( ) (b) That the minor has been tried on probation in such custody and has failed to reform. ( ) (c) That the welfare of the minor requires that his custody be taken from his parent or guardian.'

The majority holds that, in order for a Youth Authority commitment to be valid, the record of proceedings in the juvenile court must contain Express findings indicating why or how the trial court concluded that the conditions of subdivisions (a), (b) or (c) of section 726 have been met.

I know of no judicial authority for the majority's assertion that a finding of the juvenile court judge, made in the language of Welfare and Institutions Code section 726, subdivisions (a), (b) or (c), is insufficient as a finding to support an order taking a minor from the custody of his parent or guardian and committing the minor to the Youth Authority. By its express terms, Welfare and Institutions Code section 726 requires a finding Only in the language of the statute.

The majority exalts form over substance in holding that the juvenile court judge's finding in the language of subdivisions (a), (b) or (c) of section 726 of the Welfare and Institutions Code is a mere conclusionary statement.

Since the language of section 726 is clear and unambiguous, there is no basis for a judicial interpretation of the statute that requires the juvenile court judge to make a finding Other than a finding in the exact language of the statute itself. Additional, express findings are neither mandated by any provision of the State of California Constitution, nor the United States Constitution, nor by any section of the Welfare and Institutions Code, nor by the decisional law of this state. An appellate court ought not, by Judicial fiat, interpret the plain and unambiguous language of Welfare and Institutions Code section 726 as requiring anything additional to what the statute itself explicitly requires.

The majority opinion seems to rely upon the cases of In re Aline D. (1975) 14 Cal.3d 557, 121 Cal.Rptr. 816, 536 P.2d 65; In re J.L.P. (1972) 25 Cal.App.3d 86, 100 Cal.Rptr. 601 and In re Adele L. (1968) 267 Cal.App.2d 397, 73 Cal.Rptr. 76, for its view that the juvenile court judge must make Express findings that are more detailed than the exact words of the various subdivisions of Welfare and Institutions Code section 726. But none of these cases so holds.

The majority relies upon In re Aline D. as standing for the proposition that it is the mandate of Welfare and Institutions Code section 726 that a commitment of a minor to the Youth Authority is to be made only as a last resort when the lesser remedies of probation or juvenile camp placement have failed or clearly are inappropriate. But the question before the court in In re Aline D. was whether the requirement of Welfare and Institutions Code section 734 had been satisfied. Section 734 provides: 'No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.' The Youth Authority commitment in In re Aline D. was reversed because the minor there involved was committed with the record reflecting an expressed doubt of the court that the minor would benefit from such a commitment. The court stated: 'Nevertheless, under the present statutory scheme, supported by sound policy considerations, a commitment to CYA must be supported by a determination, based upon substantial evidence in the record, of probable benefit to the minor. The unavailability of suitable alternatives, standing alone, does not justify the commitment of a nondelinquent or marginally delinquent child to an institution primarily designed for the incarceration and discipline of serious offenders.' (In re Aline D., supra, 14 Cal.3d 557, at p. 567, 121 Cal.Rptr. 816 at p....