In Re Dewing

Opinion

MOSK, J.

In these consolidated proceedings for writs of habeas corpus ¡ve are called upon to determine whether recent legislation extending the maximum discharge date from Youth Authority custody can constitutionally be applied to persons committed to such custody prior to its enactment. (Stats. 1976, ch. 1070, § 7.)

On June 20, 1974, petitioner Dewing was committed to the Youth Authority after conviction of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a); on January 20, 1975, petitioner Tellez was likewise committed to the Youth Authority after conviction of the same offense. A violation of section 245, subdivision (a), is punishable in the discretion of the court as a felony or a misdemeanor. At the time of petitioners’ respective convictions and commitments, Penal Code section 17, subdivision (b)(2), provided that when a crime is punishable as a felony or a misdemeanor, it is a misdemeanor for all purposes “When the court commits the defendant to the Youth Authority.” (Stats. 1969, ch. 1144, § I, p. 2214.) The Youth Authority Act provides that every person “convicted of a misdemeanor” and committed to the authority shall be discharged after two years or when he reaches his 23d birthday, whichever occurs later. (Welf. & Inst. Code, § 1770.)

1

It follows that as of the date of their convictions and commitments, petitioners were entitled to be discharged from Youth Authority custody no later than their 23d birthdays—i.e., on December 31, 1976, in the case of petitioner Dewing, and on March 28, 1977, in the case of petitioner Tellez.

[57]

However, on September 20, 1976, emergency legislation took effect which amended Penal Code section 17. (Stats. 1976, ch. 1070, § 1.) Subdivision (b)(2) of the new statute provides that when a crime is punishable as a felony or a misdemeanor, it is a misdemeanor for all purposes “When the court, upon committing the defendant to the Youth Authority,

designates the offense to be a misdemeanor.”

(Italics added.) The corollary, of course, is that if the court does not make that designation at the time of commitment, the offense will be deemed a felony during the period in which the defendant is in custody of the Youth Authority.