THE PEOPLE, Plaintiff and Respondent, v. ROY FRANK AUSTIN, Defendant and Appellant; In re ROY FRANK AUSTIN on Habeas Corpus, 30 Cal. 3d 155

Opinion RICHARDSON, J. 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was also found to have been in violation of probation previously granted in the stolen property case and his probation was revoked.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. I.

The Maximum Term 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: “The court has read and considered the probation officer’s report .. ., which recommends a denial of probation and commitment to the Youth Authority, but, of course, when we sentence or commit him to Youth Authority, we have to impose—we have to state what the maximum term is, and there was no plea bargain for less than the regular commitment time.

I am prepared to follow that recommendation.” In amplification, thereafter, the court commented, “I am denying probation because of the numerous crimes of this type that the defendant has committed. The defendant is committed to the Youth Authority. The maximum period he could be sentenced for under the law is three years. That doesn’t mean he will be in that facility for that long. It just means that we have to state what the maximum could be.” 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, “the order of commitment shall specify the term of imprisonment to which the defendant would have been sentenced. The term shall be determined as provided by sections 1170 and 1170.1 and these rules, as though a sentence of imprisonment were to 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.” (Rule 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 it intended to follow the probation report recommendation (two-year commitment) but 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. II. Conduct Credits and YA Commitment 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 specify the particular term to which the individual would have been sentenced had he been sentenced to state prison. Sections 2930 through 2932 describe the methods and standards by which the term of confinement of a person sentenced to the Department of Corrections may have his term reduced by up to one-third.

The possible reduction is based upon a combination of the prisoner’s forebearance from certain specified acts and “upon participation in work, educational, vocational, therapeutic or other prison activities.” (§ 2931, subds. (b), (c).) The maximum credit which may be lost for each incident involving prohibited behavior or failure to participate is described. An individual may not be penalized if he has made a reasonable effort to partake of the enumerated activities or is unable to do so for reasons beyond his control. (§ 2931, subds. (b)(3), (c); Cal. Admin.

Code, tit. 15, § 3043.) A prisoner has the right to notice and hearing whenever the Department of Corrections seeks to deny conduct credits. (§ 2932.) Defendant relies on People v. Olivas, supra, in which we held that a misdemeanant between the ages of 16 and 21, sentenced to YA under Welfare and Institutions Code

section 1731.5, could not be held in YA confinement for a term longer than that to which a person, similarly convicted as an adult, could be sentenced if not committed to YA. Invoking equal protection principles, defendant argues that in like fashion an adult youthful offender committed to YA must be entitled to those same conduct credits available to a similar offender sentenced to prison. We disagree.

The thesis of our Olivas holding was that “personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.” (17 Cal.3d at p. 251.) Accordingly, “once it is determined that the classification scheme affects a fundamental interest or right the burden shifts.

Thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.” |(Ibid., italics in original.) After agreeing that the state had an interest in rehabilitating youthful offenders we stated “we have not been shown how this sentencing scheme is necessary to further that interest.

Assuming arguendo that rehabilitation is a compelling state interest, we cannot determine what minimum period of confinement is sufficient to achieve the state’s goal of meaningful rehabilitation” (id., at p. 255), and concluded that youthful offenders could not be held for a maximum term in excess of that for which other adult offenders could be confined. The case before us is distinguishable from Olivas. We are not confronted here with the maximum term for which a youthful offender may be held, but rather the method by which he may obtain release prior to expiration of the full term imposed.

When Olivas was decided in 1976 youthful offenders were sentenced either to YA or to prison under the Indeterminate Sentence Law (ISL). At that time, “the purposes of imprisonment were deterrence, isolation and rehabilitation.. . . Not the least of these was rehabilitation.” (In re Eric supra, 25 Cal.3d 522, 531.) Under the ISL no person, whether in Y A or Department of Corrections custody, was entitled to a statutorily prescribed amount of conduct credit.

Then the Legislature enacted the Determinate Sentencing Act specifically reciting that it “finds and declares that the purpose of imprisonment for crime is punishment.” (§ 1170, subd. (a)(1).) No change, however, was made in the declaration of legislative intent regarding the establishment of YA: “The purpose of this

chapter is to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses. To this end it is the intent of the Legislature that the

chapter be liberally interpreted in conformity with its declared purpose.” (Welf. & Inst. Code, § 1700.) The state’s interest in the treatment and rehabilitation of various categories of criminal offenders is well established. Thus, in People v.

Saffell (1979) 25 Cal.3d 223 [157 Cal.Rptr. 897, 599 P.2d 92], we noted that “While judicial attention to the [mentally disordered sex offender (MDSO)] is invoked by his commission of a criminal act, the entire statutory scheme providing for the diversion of MDSOs from the mainstream of the criminal justice system clearly indicates that ‘in MDSO cases, subsequent confinement of the ... person is for purposes of treatment, not punishment.’ (In re Moye [1978] 22 Cal.3d 457 at p. 466 [149 Cal.Rptr. 491, 584 P.2d 1097], italics in original. ...)” (25 Cal.3d, at p. 229.) Similarly, in In re Eric J., we considered the scheme for commitment of minors to YA, and, in conformity with the legislative declaration, reaffirmed that such commitments were for “the purposes of treatment and rehabilitation (In re Aline D. (1975) 14 Cal.3d 557, 567 ...).” (25 Cal.3d at p. 531.) Rehabilitation of youthful offenders benefits the state by assisting those who because of their youth and background may be more amenable to rehabilitation and thereby become productive and law-abiding citizens.

In considering the matter of credits, we observed in People v. Sage, supra, “language in sections 2930, 2931 and 2932 clearly indicatefs] that the Legislature contemplated the credits governed by these sections would be earned in prison.” (26 Cal.3d, at p. 506, italics added.) The primary purposes of conduct credits for prison inmates are to encourage conformity to prison regulations, to provide incentives to refrain from criminal, particularly assaultive, conduct, and to encourage participation in “rehabilitative” activities. (People v. Saffell, supra, 25 Cal. 3d, at p. 233; People v.

Reynolds (1981) 116 Cal.App.3d 141, 147 [171 Cal.Rptr. 461].) In contrast to the rigid rules governing application of conduct credits for those committed to state prison, youthful offenders who are sentenced to YA are entitled to consideration of their in-custody behavior under a different set of guidelines which are consistent with both the indeterminate aspects of YA commitments and the declared legislative intent. In-custody behavior of YA committees is considered as being relevant to the YA rehabilitative and corrective goals, rather than as a mere aid to maintaining order in the facility. (See, e.g., Cal.

Admin. Code, tit. 15, §§ 4945, subd. (i) [behavioral factors relevant to deviating from “prescribed parole consideration date”], subd. (j) [behavioral factors relevant to modifying established parole consideration date], 4995 [honorable discharges from YA supervision].) In passing, we note our concurrence with the Chief Justice’s reference to “the advantages of being a youthful offender” (dis. opn., post, p. 167) because of the less rigid consideration of juvenile conduct while in YA. The case before us fully supports her conclusion.

At oral argument defense counsel acknowledged the release of defendant from YA confinement in April 1981, months before he could have obtained discharge from his incarceration had he been sentenced as an adult to prison and had he been afforded every possible applicable conduct credit authorized by the Penal Code. We stressed in In re Eric J. that, “under the Determinate Sentencing Act rehabilitation is no longer the standard for term fixing” (25 Cal.3d, at p. 532) in adult sentencing.

Rehabilitation, however, remains the standard in YA commitments, and YA committees may be released" earlier—or later—than their imprisoned counterparts under the behavioral guidelines enumerated in the Administrative Code and the Youth Authority Act. It follows that imposition of the Penal Code provisions for conduct credits upon YA commitments would “provide the youthful felon with what he already has: the opportunity to reduce his time in confinement because of his conduct.” (People v.

Reynolds, supra, 116 Cal.App.3d at p. 147.) As the Reynolds court aptly put it, “The fact that a youthful felon in the Youth Authority is not given Penal Code behavior credit does not mean that he is denied recognition and reward for good behavior. Participation in rehabilitative programs and behavioral conformity is encouraged and rewarded in Youth Authority commitments because of the indeterminate nature of the commitment itself, with release at the discretion of the Youthful Offender Parole Board.” (Ibid.) So viewed, conduct credits have meaning only within the context of a fixed term. (See People v.

Saffell, supra, 25 Cal.3d, at pp. 233-234.) In 1947, this principle was specifically recognized by the Legislature in former

section 2926. In connection with the question of similar conduct credits available to prisoners received in state prison after January 1, 1948, the 1947 amendment to the

section provided the following: “It is the intention of the Legislature, recognizing the inconsistency of applying a statutory system of credits to a prison term fixed under the indeterminate sentence law, to abolish by this act the statutory system of credits now in use in the prisons of this State.” (Stats. 1947, ch. 1381, § 1, p. 2944.) The Legislature’s continued refusal to apply the fixed system of conduct credits to YA committees is fully consistent with this intent which was legislatively expressed as to the former ISL.

Moreover, we note that conduct credits because of the very nature of certain YA commitments would have a limited effect. Thus, while generally persons committed to YA may be released earlier than their state prison counterparts, in some instances, those convicted of felonies and sentenced to YA must be released long before their state prison terms would terminate even if full conduct credits were awarded. Welfare and Institutions Code

section 1771 provides that “Every person convicted of a felony and committed to the authority shall be discharged when such person reaches his 25th birthday, unless an order for further detention has been made by the committing court pursuant to

Article 6 ... or unless a petition is filed under

Article 5 of this chapter.” (Italics added.) Thus, a 20-year-old, sentenced to a 15-year term, would, if sent to state prison be released at the earliest after serving 10 years, or at age 30. Under the Youth Authority Act, however, he or she must be freed at age 25 unless the Youthful Offender Parole Board petitions the court for further incarceration pursuant to Welfare and Institutions Code sections 1780 and 1783.

Application of any conduct credits during YA commitment to the maximum term of incarceration, namely, 15 years, accordingly would be an idle act because it would have no effect on the term for which the felon might be held in such confinement. It is significant that the Youthful Offender Parole Board in setting parole dates for committees considers factors which are relevant to the award of conduct credits to state prison inmates. (See Cal. Admin.

Code, tit. 15, §§ 4945, subds. (i), (j), 4995.) Because of the indeterminate nature of YA commitments and the discretionary power vested in the parole board to consider behavioral factors combined with the continuing rehabilitative nature of YA confinement, we hold that the refusal to apply sections 2930 through 2932 to YA confinement does not offend equal protection.

The compelling state interest in rehabilitation of youth offenders and the flexible and individual consideration given to the conduct of YA committees in determining the length of their YA confinement are necessary to advance the stated purposes of the Youth Authority Act. Our foregoing conclusion relative to behavioral credit applies equally to presentencing conduct credit claimed by those in YA confinement. Although credit is given for actual time spent in presentence custody (Cal. Admin. Code, tit. 15, § 4945, subd. (e); § 2900.5) no automatic conduct credit is authorized for such incarceration.

Consideration will be given to the effect that the “ward’s experiences and behavior while in local custody have on the ward’s training and treatment needs” in setting the ward’s parole consideration date. (Cal. Admin. Code, tit. 15, § 4945, subd. (d).) Our recent holding in People v. Sage, supra, 26 Cal.3d 498, does not require a contrary result. There the concern was whether conduct credits should be given for presentence custody to a person ultimately committed to prison. We determined that such credits were not statutorily mandated.

Nonetheless, because of the automatic nature of the application of conduct credits to the length of prison terms, we held that it was a denial of equal protection to deny such credits to persons who were in jail custody before sentencing who would otherwise be required to spend a longer time in actual incarceration than those who only spent time in prison.

Sage differs from the present case because, unlike persons sentenced to prison, adults who are committed to YA will not have their custody period in YA modified by any automatic application of conduct credits, so that application of such credits to any presentence period of custody is not required by equal protection. The judgments are reversed and the causes remanded for resentencing in accordance with the requirements of sections 1170 and 1170.1 and the sentencing rules of the Judicial Council.

We affirm the trial court’s denial of conduct credits for the period defendant was in custody prior to sentencing, and further deny the petition for writ of habeas corpus seeking similar credits for the period of confinement in YA. Tobriner, J., Mosk, J., Hanson (Thaxton), J., and Morris, J.,* concurred. Assigned by the Chairperson of the Judicial Council.