Cabell v. Lawrence B. , 132 Cal. Rptr. 599 ( 1976 )

Opinion

KINGSLEY, Acting P. J.

Appellant was duly charged, by a petition in the juvenile court, with being a person described in section 602 of the Welfare and Institutions Code, by reason of having committed two acts of rape, in violatidn of subdivision 2 of section 261 of the Penal Code, and with having committed an act of kidnaping in violation of section 207 of the Penal Code. After a hearing under section 725 of the Welfare and Institutions Code, the allegations of the petition were found to be true.¹ At the disposition hearing, held under section 726 of that code, the court committed appellant to the Youth Authority. The pertinent part of the order of commitment reads as follows:

“The Court finds that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatoiy educational discipline or other treatment provided by the Youth Authority. The Court finds that the minor comes under the provisions of Sec. 726, a & c W/C Code.”

We hold that an order, couched only in such conclusionary terms, does not support a commitment to the Youth Authority.

While a juvenile court judge has discretion concerning the disposition to be ordered in a section 602 case, that discretion is not unlimited. The guidelines are spelled out in section 726 of the Welfare and Institutions Code, as follows:

“In all cases wherein a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over such ward or dependent child by any parent or guardian and shall by its order clearly and specifically set forth all such limitations, but no ward or dependent child shall be taken from the physical custody of a parent or guardian unless upon the hearing the court finds one of the following facts:

“(a) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor.

“(b) That the minor has been tried on probation in such custody and has failed to reform.

“(c) That the welfare of the minor requires that his custody be taken from his parent or guardian.”

(1) At the time herein involved, the mere fact that a minor has committed a serious felony was not, in and of itself, a ground for a Youth Authority commitment.²

(2) It is the mandate of section 726 that a commitment to the Youth Authority be made only as a last resort when the lesser remedies of probation or juvenile camp placement have failed or clearly are inappropriate. As the Supreme Court said in In re Aline D. (1975) 14 Cal.3d 557, at page 564 [121 Cal.Rptr. 816, at page 820, 536 P.2d 65, at page 69]: “As is evident from the applicable statutes, ‘Commitments to the California Youth Authority are made only in the most serious cases and only after all else has failed.’ (Thompson, Cal. Juvenile Court Deskbook, § 9.15, p. 123.) This concept is well established and has been expressed by the CYA itself. In light of the general purposes of juvenile commitments expressed in Welfare and Institutions Code section 502, discussed above, ‘ . . . commitment to the Youth Authority is generally viewed as the final treatment resource available to the juvenile court and which least meets the description in the above provision [§ 502]. Within the Youth Authority system, there is gathered from throughout the State the most severely delinquent youths which have exhausted local programs.’ (Italics added; California Youth Authority, Criteria and Procedure for Referral of Juvenile Court Cases to the Youth Authority (1971) p. 1.)”

On a record containing no express findings indicating why or how the trial court concluded that the conditions of subdivisions (a) and (c) of section 726 had been met, it was error to order a Youth Authority commitment.³

The order appealed from is reversed.

Dunn, J., concurred.

1 The third (kidnaping) count was dismissed at the time of the dispositional hearing.

2 “Likewise it is error to commit the minor ttierely because of the gravity of the crime. Such order would in effect be punitive. Juvenile court authorities are not designed to punish. (In re Gault, 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428]; In re William M., 3 Cal.3d 16, 30 [89 Cal.Rptr. 33, 473 P.2d 737]; In re Steven C., 9 Cal.App.3d 255, 264-265 [88 Cal.Rptr. 97].)” (See In re J. L. P. (1972) 25 Cal.App.3d 86, 89 [100 Cal.Rptr. 601, 603].)

3 “Furthermore, the court did not indicate the basis for its determination that appellant be removed from the custody of his parents; no showing was made of abuse or neglect by the parents. While Welfare and Institutions Code section 726 provides no criteria for determining when the welfare of the minor requires that he be removed from the custody of his parents, it is clear that there must be some facts and evidence to support this finding. (In re Adele L., 267 Cal.App.2d 397, 406 [73 Cal.Rptr. 76].)” (See In re J. L. P., 25 Cal.App.3d 86, 90 [100 Cal.Rptr. 601, 603].)