In re Ward

Petitioner was found guilty of violation of Health and Safety Code, section 11531, sale of marijuana, on June 26, 1963. On July 17, 1963, his application for probation was denied and he was sentenced to imprisonment in the state prison for the term prescribed by law.

The judgment and sentence prescribed that petitioner be sentenced pursuant to section 1202b, Penal Code, which provides: “In any criminal proceeding in which defendant is convicted of a felony or felonies and is committed to the custody of the Director of Corrections, if defendant was, at the time of commission of the offense or offenses, or of the apprehension from which the criminal proceeding resulted, under the age of 23 years, the court may, notwithstanding

Petitioner is 21 years of age. He has suffered no prior felony and no narcotic convictions. On August 3, 1963, he was delivered to the Guidance Center at Vacaville, and on November 1, 1963, was transferred to California Men’s Colony, Bast Facility, Los Padres, where he is presently incarcerated.

He alleges that after his arrival at Vacaville he was placed on the Adult Authority calendar in January 1966, which means he will have served about two and one-half years before the authority first takes up for consideration the length of time he should serve. It is claimed that the Department of Corrections did not consider his sentence pursuant to section 1202b.

The Department of Corrections and the Adult Authority “have taken the position uniformly and inflexibly that all persons sentenced to state prison for violation of section 11531 ... shall in no case be eligible for release upon completion of sentence or on parole or on any other basis until he has served not less than three years.” The department and authority have resolved that the mandatory provisions of sections 11530.5, 11531 and 11532, Health and Safety Code, regarding sentences, override the provisions of section 1202b. Two letters from the department to petitioner’s counsel evidence this position.

Petitioner realizes that his sentence pursuant to section 1202b does not require that he be released after serving six months, but contends that the statute gives the department and authority the power to release him then, if they see fit to do so, and that they must give effect to this section in setting his initial appearance on their calendar.

In the above mentioned letters from the Department of Corrections to petitioner’s counsel, it is stated: “When the penalty provisions of several of the narcotic laws, including section 11531 were amended effective Sept. 15, 1961, it was our interpretation, because of their specific language, that these penalty provisions were mandatory and therefore previous penal code provisions, including those in sections 18b, 1202b, 3024.5 and 3049 providing a lesser minimum in certain cases, were not applicable to these particular narcotic offenses.

In In re Weintraub, 61 Cal.App.2d 666 , 671 [ 143 P.2d 936 ], when the statute contained the six months’ provision, petitioner contended that the prison hoard was required to fix his term upon the expiration of the six-month period. The court stated, “we do not concede” to that contention, holding that the failure to do so does not invalidate the judgment of commitment nor entitle petitioner to his discharge from custody—which was all petitioner sought. It is stated, pages 670-671: “Regardless of whether the board is authorized to defer the fixing of a term of imprisonment for two years after the commencement thereof, on account of the prisoner’s having suffered a prior conviction of a felony, or otherwise, which question is unnecessary for us to determine, that failure is not ground for the release of the petitioner in this case because it appears that he has not completed the service of his sentence. He is nevertheless lawfully restrained of his liberty. He is still held under a valid unexpired judgment of imprisonment. The indeterminate sentence, in legal effect, is a commitment for the maximum term prescribed by law, which in the present case is six years.” The case also holds that “The writ of habeas corpus is not the proper remedy to compel a ministerial board to perform a duty required by law”; however, the writ has been used in other cases for similar purposes—where unusual circumstances exist or are so important as to justify an extraordinary remedy. (In re Seeley, 29 Cal.2d 294 , 296 [ 176 P.2d 24 ]; In re McVickers, 29 Cal.2d 264 [ 176 P.2d 40 ]; In re Harris, 80 Cal.App.2d 173 , 181 [ 181 P.2d 433 ]; In re Galloway, 78 Cal.App.2d 880 [ 178 P.2d 469 ]; 2 Witkin, Cal. Crimes, §§ 1024,1025, pp. 969, 970.)

Petitioner herein does not contend that he is entitled to immediate release; he does not want the fixing of the term of his sentence to be deferred by what he asserts is a mistaken belief that section 1202b does not apply to sentences under the narcotic laws specifying a longer minimum. It would seem that petitioner is entitled to a “timely” determination of his sentence (cf., In re Mills, 55 Cal.2d 646 , 653 [ 12 Cal.Rptr, 483 , 361 P.2d 15 ]), but the Adult Authority has concluded that it is timely if determined six months prior to release eligibility. Referring to the Mills case, it is stated in Azeria v. California Adult Authority, 193 Cal.App.2d 1 ,

In the instant case, the placing of petitioner upon the January 1966 calendar was "action” by the authority. It would appear that, in its discretion, the authority may postpone determination of sentence to the expiration of the time when petitioner would be eligible for parole. In In re Harris, 80 Cal.App.2d 173 , 178-181 [ 181 P.2d 433 ], it was held, under the circumstances there presented, this was a reasonable procedure.

In the Harris ease, although petitioner’s minimum sentence under his judgment was one year, the statute relating to parole, in effect, fixed a minimum sentence of two years. In the instant case, the judgment, applying Penal Code section 1202b, fixed a minimum sentence of six months, but section 11531 of the Health and Safety Code provides for no release under any circumstances for three years—which the authority has construed to mean a minimum sentence of three years.

Accordingly, the determination of the instant case depends upon which of the pertinent statutes, Penal Code section 1202b or section 11531 of the Health and Safety Code, is controlling. It is our conclusion that tbe Penal Code section must prevail, permitting the trial court to specify a six months’ minimum imprisonment for defendants under the age of 23 years.

Such conclusion is reached, first, because section 1202b should be deemed a special act and not a general law when interpreted with reference to section 11531 of the Health and Safety Code, and therefore considered as an exception thereto notwithstanding the latter section was enacted in 1961, the former in 1959. The rule is well established that where a general statute, standing alone, in-

Secondly, the primary purpose of the creation of the Youth Authority bespeaks the interpretation the Legislature intended should be accorded the two sections. Section 1700 of the Welfare and Institutions Code provides, “The purpose of this chapter 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. To this end it is the intent of the Legislature that the chapter be liberally interpreted in conformity with its declared purpose. ”

• Also, it has been considered by the Supreme Court that the purpose of the Legislature in enacting the Youth Authority Act was that as to youthful offenders within the limits prescribed, the Indeterminate Sentence Law and the Youth Authority Act should he construed and applied to work together as complementary parts of a more enlightened penal system. (People v. Ralph, 24 Cal.2d 575 , 580 [ 150 P.2d 401 ].)

We therefore hold that the discretionary power of the trial court to determine a minimum imprisonment of six

The writ is granted and the Adult Authority is directed to vacate petitioner’s placement upon the Adult Calendar in January 1966 and reset same in accordance herewith.

Jefferson, J., and Kingsley, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied July 15, 1964.