People v. John W.

Opinion

PUGLIA, P. J. —

The minor appeals from a judgment (commitment to the California Youth Authority) entered by the juvenile court after the sustaining of a petition alleging that the minor committed an assault with intent to commit sodomy. (Pen. Code, § 220.)

The minor contends that the court erred in omitting to specify a three-year maximum period of confinement in the commitment order.

The offense was committed June 14, 1977. The Youth Authority commitment order of September 14, 1977, did not specify the maximum period for which the minor could be confined, a period not to exceed “the maximum term of imprisonment which could be imposed upon an adult convicted of the [same] offense.” (Welf. & Inst. Code, § 726.) At the time, Welfare and Institutions Code section 726 did not define the phrase “maximum term of imprisonment.”

An adult convicted of a felony committed before July 1, 1977, is subject to the maximum term prescribed for the particular offense by the indeterminate sentence law, subject further, however, to possible adjustment of the term to achieve comparability with commitments for like offenses under the determinate sentence law (Pen. Code, § 1170.2). The term of imprisonment for assault with intent to commit sodomy is one to twenty years under the indeterminate sentence law and two, three or four years under the determinate sentence law. (Pen. Code, § 220; Stats. 1975, ch. 71, § 4; Stats. 1976, ch. 1139, § 144.) The minor argues that absent evidence of aggravating or mitigating circumstances (see Pen. Code, § 1170, subd. (b)), the middle term of three years constitutes the “maximum term of imprisonment” imposed by Welfare and Institutions Code

[997]

section 726 as a limitation on the period for which he can be confined in the Youth Authority.

We disagree. An adult felon whose term is adjusted pursuant to Penal Code section 1170.2 is one upon whom the highest of the terms specified by the determinate sentence law for a particular offense “could be imposed” within the meaning of the limitation on juvenile confinement expressed in Welfare and Institutions Code section 726.

We recognize that at the time of the minor’s commitment, California Rules of Court, rule 1373(b) provided that “In the case of a felony offense, the maximum term of physical confinement shall be determined by procedures applicable to the sentencing of an adult to imprisonment.” To the extent that the rule imports into juvenile proceedings the procedures contained in Penal Code section 1170, subd. (b), it is in conflict with Welfare and Institutions Code section 726 as we have heretofore interpreted it.