People v. Grisso

• Decision Date: 09 April 1980
• Docket Number: Cr. 10302
• Citation: 104 Cal.App.3d 380,163 Cal.Rptr. 547
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Eldon GRISSO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 547

163 Cal.Rptr. 547

104 Cal.App.3d 380

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Eldon GRISSO, Defendant and Appellant.

Cr. 10302.

Court of Appeal, Third District, California.

April 9, 1980.

Rehearing Denied May 5, 1980.

JoEllen L. Mitchell and Jed Scully, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Nancy L. Sweet, Deputy Attys. Gen., for plaintiff and respondent.

EVANS, Associate Justice.

Following guilty pleas to first degree murder and robbery, defendant, James Eldon Grisso, a minor, was sentenced to state prison. On appeal he contends the court's disposition was based upon an erroneous belief that Welfare and Institutions Code section 1731.5 ¹ precluded a commitment to the California Youth Authority (CYA). He argues the language of Welfare and Institutions Code section 707.2 impliedly repeals that portion of section 1731.5 which excludes reference to the Youth Authority of youthful offenders sentenced to imprisonment for life. Defendant further contends his commitment to state prison was a denial of his due process and equal protection rights and constituted cruel and unusual punishment. He also argues that inasmuch as he originally entered a not guilty by reason of insanity plea, the matter should be remanded to the trial court for findings on his sanity under the test set forth in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318.

Defendant, a 17-year-old, confessed to first degree murder and robbery; he had several prior experiences with the juvenile authorities for running away from home, and one of malicious mischief (reduced from a charge of throwing a firebomb) for which he received informal probation. Defendant was on that probation at the time the instant offenses were committed.

After defendant was found not to be a fit subject to be dealt with under Juvenile Court Law (Welf. & Inst.Code, § 707), he was charged in the adult court with first degree murder (Pen.Code, § 187), with "special circumstances," robbery with a firearm use allegation (Pen.Code, §§ 211 and 12022), and vehicle theft (Veh.Code, § 10851).

Defendant entered pleas of not guilty and not guilty by reason of insanity. Subsequently, pursuant to plea negotiations, he withdrew those pleas and entered pleas of guilty to the first degree murder without special circumstances and to the robbery. The vehicle theft charge, the special circumstances, and the firearm enhancement were dropped. Prior to accepting defendant's guilty pleas, the trial court informed him of the constitutional rights he was waiving and the possible sentences he faced. The court accepted the pleas and referred defendant to the CYA for a diagnostic evaluation pursuant to section 707.2. The diagnostic report, received from the CYA, advised that defendant be placed in the CYA and counseled against sending him to prison; however, the report did acknowledge that defendant, guilty of first degree murder, was not eligible for a CYA commitment under section 1731.5. ²

Following receipt of the diagnostic study and prior to imposition of sentence, defendant filed a petition for writ of mandate in this court and in the California Supreme Court challenging the propriety of his certification to the superior court as an adult. Both petitions were denied.

I

Defendant's initial contention is that the trial court's reliance on section 1731.5 in its sentencing decision was misplaced. Although defendant does not deny that standing alone, the effect of section 1731.5 is to preclude a CYA commitment for juveniles sentenced to life imprisonment (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724, 135 Cal.Rptr. 392, 557 P.2d 976), he argues however that section 707.2, as amended in 1976, which prohibits committing a minor to state prison unless he is found not to be a suitable subject for a CYA commitment, impliedly repealed the state prison mandate of section 1731.5. His contention is wrong. As amended in 1976, section 707.2 reads as follows: "Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority. No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority."

Prior to the 1976 amendment the section provided in pertinent part, "Except as provided in Sections 1731.5 and 1737.1, no minor who was under the age of 18 years when he committed any criminal offense, and who has been found not a fit and proper subject to be dealt with under the juvenile court law pursuant to Section 707, shall be sentenced to the state prison, except upon petition filed pursuant to Article 5 (commencing with Section 1780) of Division 2.5. . . ."

The 1976 amendment merely divested the CYA of its previous control over state prison commitment of minors and vested that authority in the trial court. (People v. Carl B. (1979) 24 Cal.3d 212, 218, 155 Cal.Rptr. 189, 594 P.2d 14; People v. Taylor (1978) 81 Cal.App.3d 973, 976-977, 146 Cal.Rptr. 821.) Had the Legislature intended to repeal any part of section 1731.5, it would have done so by utilizing language to that effect. This was not done.

Repeals by implication are not favored. (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 717, 566 P.2d 610, 619.) "They are recognized only when there is no rational basis for harmonizing the two potentially conflicting statutes (citation), and the statutes are 'irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.' (Citations.)" (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980; see also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596, 135 Cal.Rptr. 41, 557 P.2d 473; People v. Zankich (1971) 20 Cal.App.3d 971, 980, 98 Cal.Rptr. 387.) Although in this instance the report submitted by the Youth Authority required under section 707.2 concerning the amenability of the youthful offender to training and treatment offered by the CYA was useless inasmuch as he could not be referred to the CYA by virtue of the exclusionary language of section 1731.5, the court nevertheless ordered such a diagnostic study as an aid to the court's processes.

When examined together, the two sections (1731.5 and 707.2) do not conflict, but rather are seen to be harmonious and easily reconciled. The mere fact that the minor is not eligible for a Youth Authority commitment does not preclude the court from referring the youth for evaluation and a report. Moreover, section 1731.5 as a specific statute controls and requires application, despite the language of section 707.2 which is general legislation dealing with the same subject. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724, 123 P.2d 505; People v. Tanner (1979) 24 Cal.3d 514, 521, 156 Cal.Rptr. 450, 596 P.2d 328.) The fact that the general statute was enacted after the specific statutes does not affect this general statutory rule. (In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593; People v. Gilbert (1969) 1 Cal.3d 475, 479, 82 Cal.Rptr. 724, 462 P.2d 580.)

Defendant's further argument that section 707.2 "expressly" repealed any contrary provisions in section 1731.5 is patently without merit. The present language of section 707.2 does not mention section 1731.5, much less repeal it.

Defendant also asserts in support of his contention that the passage of a ballot initiative, which changed the penalties for the first and second degree murder (Pen.Code, § 190) removes defendant from the "life imprisonment" coverage of section 1731.5. Had the offense taken place after passage of the initiative on November 7, 1978, defendant's sentence would be "25 years to life" rather than "imprisonment for life." However, in this instance, the murder was committed in December 1977, prior to passage of the initiative. By its verbiage, the initiative does not authorize retroactive application, and the proposition that retroactive application of penal statutes is permitted when the Legislature amends a statute to lessen the prescribed punishment does not support defendant's position. (See In re Estrada (1965) 63 Cal.2d 740, 743, 48 Cal.Rptr. 172, 408 P.2d 948.) The analysis of Proposition 7, contained in the voter's handbook, provides to the contrary:

"Background: Under existing law, a person convicted of first degree murder can be punished in one of three ways: (1) by death, (2) by a sentence of life in prison without the possibility of parole, or (3) by a life sentence with the possibility of parole, in which case the individual would become eligible for parole after serving seven years. . . . (Emphasis in original.)

". . .

"Proposal: This proposition would: (1) increase the penalties for first . . . degree murder . . . .

"The measure provides that individuals convicted of first degree murder and sentenced to life imprisonment shall serve a minimum of 25 years, less whatever credit for good behavior they have earned, before they can be eligible for parole. Accordingly, anyone sentenced to life imprisonment would have to serve at least 16 years and eight months. . . ."

Proposition 7 clearly was not...