In Re Jeanice D.

RICHARDSON, J.

I respectfully dissent.

The Youth Authority Act (Welf. & Inst. Code, § 1731.5, subd. (b)) for some time has provided that those persons who are sentenced to *222 death or “imprisonment for life” are ineligible for commitment to the Department of the Youth Authority (YA). Accordingly, felons who were sentenced to life imprisonment for first degree piurder under former section 190 of the Penal Code (all further statutory references are to that code unless otherwise cited) could not be committed to the YA. (See People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724-725 [ 135 Cal.Rptr. 392 , 557 P.2d 976 ].) Former section 190 was repealed by the adoption of an initiative measure (Prop. 7 on Nov. 7, 1978, ballot) and revised section 190 was enacted. As an alternative punishment for first degree murder the new section provides for a term of “25 years to life.”

The issue in the case is thereby framed: Are those felons who are presently sentenced to “25 years to life” following a first degree murder conviction ineligible for YA commitment because they are to be deemed imprisoned “for life” within the meaning of section 1731.5, subdivision (a), of the Welfare and Institutions Code? In my view they are, based upon both the context of the statutory scheme existing at the time new section 190 was approved and also on the probable intent of the authors of Proposition 7 and of the people who so recently adopted it.

I. Statutory Framework

A brief review of the several applicable statutory provisions which governed sentencing procedures before the adoption of the 1978 initiative measure may aid in understanding both the intent and effect of new section 190.

a.) The Indeterminate Sentence Law. Prior to July 1, 1977, sentencing courts were guided by the provisions of the Indeterminate Sentence Law (ISL) which specified that “the court in imposing the sentence shall not fix the term or duration of imprisonment.” (Former § 1168.) Any felony sentence with a specified minimum term, and either a life maximum or no specified maximum, was deemed an “indeterminate term” with a maximum of life. (§ 671; In re Quinn (1945) 25 Cal.2d 799, 800-804 [ 154 P.2d 875 ].) A sentence to an indeterminate term was, in effect, deemed a sentence for the maximum statutory term, subject to parole by the Adult Authority (former § 3020), which agency was constitutionally compelled to fix a term within the statutory range that was proportionate to the offense. (In re Rodriguez (1975) 14 Cal.3d 639 [ 122 Cal.Rptr. 552 , 537 P.2d 384 ].)

*223 In commenting on the ISL, we explained that its purpose was to moderate the punishment imposed upon an offender, with emphasis upon reformation by making the punishment fit the criminal rather than the crime. (In re Minnis (1972) 7 Cal.3d 639, 644 [ 102 Cal.Rptr. 749 , 498 P.2d 997 ].) Terms were not fixed according to a formula of punishment, but in accordance with the perceived adjustment and social rehabilitation of the individual offender. (Ibid.)

One exception to the indeterminate term concept was the express life term when imposed for first degree murder under former section 190. Such a term was not deemed an indeterminate term. (In re McManus (1954) 123 Cal.App.2d 395 [ 266 P.2d 929 ].) The distinction between this life term and the indeterminate term with a maximum of life is illustrated by the language of former section 190 (as amended in 1957): “Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life,.. . and every person guilty of murder in the second degree is punishable by imprisonment in the state prison from five years to life.” (Italics added.) Additionally, former section 3046 provided that a person sentenced to life imprisonment under former section 190 could not be paroled “until he has served at least seven calendar years.”

b.) The Determinate Sentencing Law. The determinate sentence law (DSL) effective July 1, 1977, amended section 1168 and repealed the provisions governing the fixing of terms by the Adult Authority (former § 3020), substituting “determinate terms” for substantially all offenses which formerly had carried indeterminate terms and which had not been reduced to misdemeanors.

A “determinate term” is one with a range of three different terms of years, designated the “upper,” “middle” and “lower” term to which the court may sentence a defendant convicted of a felony. (See § 1170.) The DSL made no change in the life term for first degree murder, but created a determinate term for second degree murder of five, six or seven years: (Former § 190, as amended in 1977.) At the time the DSL became operative, the Community Release Board (now the Board of Prison Terms) succeeded to the powers of the Adult Authority and thus could grant parole to a person serving a life term for murder once the requisite minimum term had been served. (The seven-year minimum of section 3046 was not altered by the DSL although the section was amended in respects not pertinent here.)

*224 The intent of the Legislature in enacting the DSL differs substantially from the rationale underlying the ISL as expressed in Minnis. Section 1170, subdivision (a) (1), now recites that: “The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.” Section 1170 thus reflects a marked change in the purpose of California’s sentencing laws.

c.) The Youth Authority Act. The Youth Authority Act (Welf. & Inst. Code, § 1700 et seq., enacted in 1941) controls the confinement and treatment of youthful offenders. Section 1700 recites that the purpose of the act 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.” Not all youthful offenders, however, are eligible for YA commitment. As previously noted, Welfare and Institutions Code section 1731.5, reflecting the clear legislative recognition of the gravity of the offenses, precludes such commitment for otherwise eligible persons when the offender has been sentenced to death or “imprisonment for life.” Such a youthful offender is legislatively determined to be not amenable to the intensive rehabilitative treatment afforded by the YA. For all other youthful offenders, a commitment to the YA is within the broad discretion of the trial court. (See id., §§ 1700, 1731.5; see also In re Clarence B. (1974) 37 Cal.App.3d 676, 682 [ 112 Cal.Rptr. 474 ].)

To insure that the benefits of YA commitment are made available to the qualified 16- or 17-year-old offender, Welfare and Institutions Code section 707.2 mandates that a person convicted as an adult for an offense committed while he was under 18 years of age shall not be sentenced to “state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report. . .and the court finds after having read and considered the report.. .that the minor is not a suitable subject for commitment to the Youth Authority.”

*225 d.) The 1978 Initiative. In the foregoing statutory context, the voters on November 7, 1978, approved a measure which repealed former section 190 and enacted new section 190 which now provides in pertinent part: “Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life. . . .

“The [good behavior credit] provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce any minimum term of 25. . .years. . . imposed pursuant to this section, but such person shall not otherwise be released on parole prior to such time.” (Italics added.)

Section 190 thus no longer provides that the person imprisoned for first degree murder will be confined “in the state prison for life,” subject to separate limitations on parole release provided in section 3046, but rather creates penalties which, under the ISL, would have been deemed to be indeterminate terms.

Petitioner argues that the trial court erred in not obtaining the YA report contemplated by section 707.2 of the Welfare and Institutions Code prior to sentencing her to prison and relies on People v. Ralph (1944) 24 Cal.2d 575 [ 150 P.2d 401 ], to support her contention. In Ralph, three defendants were convicted of first degree robbery. The court denied their motions for certification to YA and sentenced them under the ISL to state prison for an indeterminate term of five years to life. After observing that the purpose of both the ISL and the Youth Authority Act was “reformation of the offender,” we stated that the two laws “shall be construed and applied to work together as complementary parts of a more enlightened penal system.” We therefore concluded that a term of five years to life was not “imprisonment for life” under Welfare and Institutions Code section 1731.5, subdivision (b), so as to bar a person so sentenced from YA consideration.

Although the expression “25 years to life” appearing in the recently adopted section 190 is similar to that which previously was used exclusively to designate indeterminate terms, and is roughly comparable to the “five years to life” sentence considered in Ralph, I suggest that the *226 persuasive force of Ralph is substantially diluted by several important factors. The reformatory purpose of the ISL noted by us in Ralph has now been wholly replaced by the penal purpose expressed in the DSL. With the adoption of the DSL, fixed terms were substituted for indeterminate terms. The extensive provisions (§§ 3020-3025) governing the setting and resetting of indeterminate terms were also repealed. Both the purpose and the mechanics of the ISL have been substantially altered by the new DSL provisions.

Because the interaction of new section 190 with section 1731.5, subdivision (b), of the Welfare and Institutions Code creates, at a minimum, an ambiguity it is appropriate that, seeking to reconcile those provisions, we scrutinize the probable intent of those who framed and adopted the new law.

II. Legislative Intent

When resolving an ambiguous or unclear provision “we must rely on a cardinal principle of statutory construction: that absent ‘a single meaning of the statute apparent on its face, we are required to give it an interpretation based upon the legislative intent with which it was passed.’ [Citation.]” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 256 [ 104 Cal.Rptr. 761 , 502 P.2d 1049 ].)

There are well established principles employed in interpreting initiative measures. In construing such laws which amend the state Constitution, we recently observed that “constitutional and other enactments must receive a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people. [Citations.].. .The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. [Citations.]” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].) Moreover, we have long recognized that the ballot summary and arguments and analysis presented to the electorate are of singular benefit in discerning the intent of the voters, and determining the meaning of uncertain language. (See id., at pp. 245-246; Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 580-581 [ 203 P.2d 758 ]; People v. Ottey (1936) 5 Cal.2d 714, 723 [ 56 P.2d 193 ]; In re Quinn (1973) 35 Cal.App.3d 473, 483 [ 110 Cal.Rptr. 881 ].)

*227 In the present case, voters before adopting new section 190 were informed by the legislative analyst’s discussion of the measure that the proposal was designed both to expand the categories of first degree murder for which penalties of death or life imprisonment without parole may be imposed, and also to increase the minimum period which a person convicted of murder must serve in prison before being eligible for parole. The analysis, contained in the voters pamphlet for the November 7, 1978, general election, reviews the existing penalties for first degree murder and then concludes that “[t]his proposition would: (1) increase the penalties for first. . .degree murder,...[11] [IIndividuals 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.” (Italics added, Voters Pamp., Gen. Elec. (Nov. 7, 1978) p. 32.) In addition, the analysis told the electors that the measure would also “expand the list of special circumstances requiring a sentence of either death or life imprisonment without the possibility of parole” and “revise existing law relating to mitigating or aggravating circumstances.” (Both id.)

The overall intent of the 1978 amendment to section 190 is unmistakably clear; it would increase the penalties for murder. There is nothing whatever in the text of the measure itself nor in its accompanying analysis which suggests that the ISL would be partially revived, or that new indeterminate life terms were thereby established for murder, or that existing sentences therefor would be moderated. To the contrary, the voters were told otherwise. It follows that the new sentence of “25 years to life” is analogous to other “life” sentences under the current DSL, except that section 190 now provides a specific and later minimum eligible parole date which prevails over the minimum 7-year period established under section 3046 for other “life” sentences. It is quite clear that nothing in the text of the amendment or the voters analysis discloses any intent either to alter or liberalize the YA ineligibility provisions of Welfare and Institutions Code section 1731.5.

With due deference to the majority, I suggest that support for its thesis rests largely on a mechanical application of People v. Ralph, supra, 24 Cal.2d 575 . As previously noted, however, its rationale lacks any statutory underpinnings, because the ISL, under which the defendant in Ralph was sentenced, no longer exists; both the DSL and the measure *228 before us disclose a manifest intent to increase rather than decrease the penalties for the commission of murder.

Moreover, Ralph is factually distinguishable. There, the defendants were convicted of first degree robbery, here, petitioner’s offense is first degree murder, a far more serious offense.

In short, the underlying assumptions of Ralph are inapplicable, and uncontrolling. In the absence of any indication of a contrary intent, we should conclude that no change in YA commitment standards was intended by the amendment to section 190, and that a person sentenced to “25 years to life” under the new statute is sentenced to “imprisonment for life” within the meaning of Welfare and Institutions Code section 1731.5, subdivision (b).

III. Necessity for Evaluation Report

As previously noted, Welfare and Institutions Code section 707.2 (hereafter, further statutory references are to this code) provides that a ) minor who committed a crime while under the age of 18 years may not be sentenced to state prison unless he has first been remanded to the YA for evaluation and report, and after consideration of the report, the trial court finds the minor unsuitable for YA commitment. Read literally, there is a seeming conflict between section 707.2 and the ineligibility provisions of section 1731.5, because section 707.2 contains no specific exemptions for persons who are ineligible for YA commitment.

Section 1731.5, originally enacted in 1941, has not been amended since 1969. (Stats. 1969, ch. 785, § 2.) Section 707.2, enacted in 1975, was amended into its present form in 1976. (Stats. 1976, ch. 1069, § 1, p. 4808.) Petitioner contends that section 1731.5 must be construed as impliedly repealed to the extent that it conflicts with the more recently amended section 707.2. (Cf. In re Thierry S. (1977) 19 Cal.3d 727 [ 139 Cal.Rptr. 708 , 566 P.2d 610 ]; see also 2A Sutherland, Statutory Construction (4th ed. 1973) § 51.03.) The doctrine of implied repeal is not favored, however, and there exists a presumption against its operation. A subsequent statute must irreconcilably conflict with the provision under consideration in order to replace it by implied repeal. {Ibid.)

Can we fairly assume that the Legislature intended to reduce the punishment of juvenile offenders who are sentenced either to death or *229 imprisonment for life by permitting them to be committed to the YA? A careful examination of the history of section 707.2 indicates quite the contrary intent. As originally enacted in 1975, section 707.2 (applicable only to persons under the age of 18 at the time of their offense) provided that, generally, no such person could be sentenced to state prison. There were three specific exceptions to this rule mandating YA commitment, covering those defendants who were (1) deemed ineligible under section 1731.5; (2) found by the YA to be unamenable to YA treatment and returned to the court under section 1737.1; or (3) subject to continued incarceration pursuant to sections 1780-1783.

The 1976 amendment to section 707.2 restored a measure of discretion to the sentencing judge. Under that section, any defendant who was under the age of 18 at the time of his offense may now be sentenced to state prison if he has been remanded to the YA for evaluation and, after reading the diagnostic report, the judge finds the defendant unsuitable for YA commitment. It is clear that the 1976 amendment to section 707.2 effectively increased the potential punishment of youthful offenders by increasing the number of situations in which prison sentences were authorized. The legislative history of the 1976 amendment discloses no intention to alter the long standing determination (expressed in § 1731.5, subd. (b)) that youthful offenders who are sentenced to death or imprisonment for life are inappropriate candidates for YA commitment. Thus, section 1731.5 was not impliedly repealed by section 707.2.

Because of the foregoing conclusion, I would hold that youthful offenders who are excluded from YA commitment pursuant to section 1731.5 should not be remanded to the YA for report and evaluation pri- or to sentencing to state prison, because the recommendation could benefit neither the defendant nor the sentencing judge. We cannot assume that the Legislature would command the performance of a useless act (Netwig v. Huntington Beach Union High Sch. Dist. (1975) 52 Cal.App.3d 529, 532 [ 125 Cal.Rptr. 170 ]). Thus, the trial court in the present case did not err in failing to obtain a YA report prior to sentencing petitioner.

The bizarre result of the majority’s interpretation is that a people’s initiative obviously designed to tighten procedures and increase punishment will now permit, for the first time in the state’s history to my knowledge, a person convicted as an adult of first degree murder to re *230 ceive YA rather than prison treatment. Either the majority is wrong or the people in adopting Proposition 7 were sorely misadvised.

I would deny the writ of habeas corpus.

Clark, J., and Manuel, J., concurred.