People v. Austin
| Decision Date | 09 November 1981 |
| Docket Number | Cr. 21843 |
| Citation | 178 Cal.Rptr. 312,30 Cal.3d 155,636 P.2d 1 |
| Court | California Supreme Court |
| Parties | , 636 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. Roy Frank AUSTIN, Defendant and Appellant. In re Roy Frank AUSTIN, on Habeas Corpus. |
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Richard B. Lennon, Deputy State Public Defender, for defendant and appellant and petitioner.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn, William R. Weisman and Carla M. Singer, Deputy Attys. Gen., for plaintiff and respondent.
Defendant Roy Frank Austin, an adult, appeals from two orders of commitment to the California Youth Authority (YA), the first arising out of his conviction on a charge of burglary (§ 459 of the Pen.Code, the source of all further statutory references unless otherwise noted), and the second from the revocation of probation upon which he was placed following his earlier plea of guilty to a charge of receiving stolen property. (§ 496.) Defendant challenges the imposition by the sentencing court of the upper term of three years as his maximum period of confinement under both orders of commitment. He also challenges the court's refusal to give him presentence good time and participation credits (hereinafter conduct credits) pursuant to sections 2930 through 2932.
In a related petition for writ of habeas corpus, defendant also contends that under the principles of equal protection he is entitled to additional conduct credits for time served at YA. We will conclude that defendant is entitled to reversal and remand for resentencing because the trial court in imposing sentence failed to follow the procedures required by section 1170 and California Rules of Court, rule 453(a). We will further conclude, however, that the trial court did not err in refusing to calculate conduct credits for the period of presentence incarceration and that defendant is not entitled to such credits for time served during his commitment to YA.
On July 2, 1979, following his conviction on a plea of guilty to receiving stolen property (§ 496), defendant was placed on 3 years probation under various terms and conditions including the requirement that he spend 30 days in county jail. Following his release, on October 12, 1979, defendant was charged with burglary. (§ 459.) After pleading guilty to the latter charge, defendant was committed to YA for the maximum term of 3 years and was given presentence custody credit for 102 days actually served in local custody. (§ 2900.5.)
Defendant was also found to have been in violation of probation previously granted in the stolen property case and his probation was revoked. The court then committed defendant to YA for a period not to exceed 3 years, granting presentence custody credit for 132 days. (Ibid.) The sentence so imposed was to run concurrently with that imposed for the new conviction.
Defendant, having been granted presentence custody credit, now requests that he be granted conduct credits (§§ 2930-2932) for the time spent in presentence custody. In addition, he asserts in his petition for habeas corpus that he is entitled to conduct credits for the time served at YA under the order of commitment.
After defendant entered his plea to the burglary charge a probation report was prepared. After reviewing both crimes and defendant's history, and finding substantial circumstances in aggravation and no circumstances in mitigation, the probation officer recommended that probation be denied in the burglary conviction and revoked in the stolen property case. Despite the above findings, the probation officer recommended imposition of the middle term of two years in both cases.
At the sentencing hearing the court announced its intention to send defendant to YA, stating: In amplification, thereafter, the court commented,
Defendant contends that the trial court in imposing sentence failed to comply with the requirements of California Rules of Court, rules 439 and 453(a), and section 1170. We agree. Rule 453(a), requires that when a court orders YA commitment for a defendant convicted of a crime for which a sentence under section 1170 could be imposed,
Where, as here, the applicable statute specifies three possible terms, section 1170 requires the sentencing court to select the appropriate term and to apply the sentencing rules of the Judicial Council. Subdivision (c) of section 1170 requires that "The court shall state the reasons for its sentence choice on the record at the time of sentencing." Rule 439(b) mandates that the upper term is justified only if facts in aggravation outweigh those in mitigation and the lower term is justified if the reverse is true. In either case, "The facts and reasons for selecting the upper or lower term shall be stated orally on the record, and shall include a concise statement of the ultimate facts which the court deemed to constitute circumstances in aggravation or mitigation justifying the term selected." (439(c).) Even if the mid-term is selected, the court must state its reasons for selecting imprisonment. (§ 1170, subd. (c); rule 439(d).)
The People point to the trial court's references to defendant's commission of the second crime while on probation for the first, and his commission of "numerous crimes of this type" as sufficient indication that the court fully considered circumstances in mitigation and aggravation as required. They argue that the court should be deemed to have considered all relevant criteria under rule 409, and that the record clearly indicates the judge's intention to impose the maximum term of imprisonment.
Closely scrutinized, however, the comments of the trial court during sentencing appear ambiguous. For example, the court indicated that while it intended to follow the probation report recommendation (two-year commitment) in fact it imposed a three-year commitment. The court also appears to have been under the impression that it was required to state the maximum possible term for which an adult might have been sentenced on the underlying offense, rather than to select among the possible terms to which an adult might be sentenced under sections 1170 and 1170.1. This confusion may have resulted from the differing requirements of Welfare and Institutions Code section 726 under which juveniles who have been committed to YA by juvenile court are committed for a period equivalent to the maximum possible confinement period for adults. (See In re Eric J. (1979) 25 Cal.3d 522, 159 Cal.Rptr. 317, 601 P.2d 549.)
"In order to assess whether judges are imposing like sentences in like situations (Pen.Code, § 1170.4), it is necessary for them to state on the record why a certain sentence has been selected (Pen.Code, §§ 1170, subd. (c), 1170.3; California Rules of Court, rules 443, 425, 433)." (People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66.) It is unclear from the record before us why the court imposed the sentence that it did, and it is also possible to conclude that the court erroneously believed that it was required to impose the maximum possible term of commitment. Under such circumstances, we cannot be reasonably assured that the trial court in fact exercised its discretion. It may have been under a misapprehension as to its power to sentence defendant to anything other than the maximum term. We do not suggest, however, that it could not, on the record before it, have imposed such maximum term in the fair exercise of its discretion.
However, in view of the applicable sentencing statutes and rules and the ambiguity concerning whether the court understood that it could sentence defendant to less than the maximum aggravated term, the judgments must be reversed and the causes remanded for resentencing.
Defendant argues that he is entitled to conduct credits, calculated pursuant to sections 2930 through 2932, for the periods of both presentence (People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874) and YA custody. We will conclude that, although an adult sentenced to YA may not be held in YA confinement for a period exceeding the maximum term for which he would have received state prison confinement (People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375), he is not entitled to have his term reduced by conduct credits computed under sections 2930 through 2932.
Defendant was sentenced to YA under the provisions of section 1731.5 of the Welfare and Institutions Code and California Rules of Court, rule 453(a). Section 1731.5 permits YA commitment of any person convicted in an adult court of a crime who is under 21 years at the time of apprehension and who is neither sentenced as provided in subdivision (b) of section 1731.5 nor granted probation. Rule 453(a) requires the sentencing court to...
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