People v. Franklin

Opinion

FILES, P. J.

Defendant appeals from the judgment committing him to the Youth Authority following his conviction of burglary, second degree (Pen. Code, § 459). His sole contention is presented under the heading “The trial court improperly sentenced appellant to the upper term.”

The record shows that the trial court first announced that it would select the middle term of two years. Then the court said: “It will be the judgment of this Court and sentence of this Court that he be committed to the California Youth Authority and the California Youth Authority will have jurisdiction over the defendant for a period of three years. My determination as to the three years is calculated as follows: Number one, I am selecting what would have been a prison mid term for the offense which would have been two years, mid term of the base sentence, mid term of two years, calculated the authorized confinement time adding additional year, to include one year parole supervision had he been committed to the State penitentiary.”

The clerk recorded this judgment in the following language: “It is therefore ordered, adjudged and decreed that said defendant be committed to the Youth Authority of the State of California for the term not to exceed 3 years.” The judgment as recorded provided for credit of 42 days for presentence custody, as the court had ordered.

[253]

The commitment of the 18-year-old defendant to the Youth Authority (now called Department of Youth Authority) was authorized by Welfare and Institutions Code section 1731.5. Such a commitment is for an indefinite period. Section 1766 of that code (as amended, eff. Jan. 1, 1980) authorizes the Youthful Offender Parole Board to permit him his liberty under supervision or order his confinement. Subdivision (b) of that section provides that a person committed under section 1731.5 “may not be held in physical confinement for a total period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which... resulted in the commitment.”

Rule 453, California Rules of Court, provides: “When a defendant is convicted of a crime for which sentence could be imposed under section 1170 and the court orders that he be committed: (a) To the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, 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 [Penal Code] sections 1170 and 1170.1 and these rules, as though a sentence of imprisonment were to be imposed.... ”