A-7828860
Decided by Central Office October 2, 1950
Sentenced to imprisonment — Section 19, Immigration Act of February 5, 1917 — Commitment to Youth Authority and subsequent incarceration in Vocational Institution (California).
An alien was convicted in the Superior Court at Los Angeles, Calif., on December 30, 1949, for the commission of the crime of burglary, second degree, on or about October 16, 1949. This court found him to have been over 19 but under 21 years of age when apprehended, and ordered him to be committed to the Youth Authority of the State of California for the time prescribed by law. He was incarcerated in the California Vocational Institution at Lancaster, Calif., for a term of a year or more. Such alien was sentenced to imprisonment within the meaning of the immigration laws.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Crime within 5 years — Burglary in the second degree.
BEFORE THE CENTRAL OFFICE
Discussion: The respondent, a native and citizen of Mexico, last entered the United States at Del Rio, Tex., about January 23, 1947. He secured entry by presenting a fraudulent certificate indicating that he had been born in the United States. At the time of entry it was his intention to seek employment. He was not then in possession of an immigration visa and had never been lawfully admitted to the United States for permanent residence. The warrant charge is, therefore, sustained.
With respect to the lodged charge, exhibit 4 shows that the respondent was convicted of the crime of burglary, second degree, a felony, on December 30, 1949, in the superior court at Los Angeles, Calif., the crime having been committed on or about October 16, 1949, within 5 years of his entry. The information charged that the respondent entered a building with the intention of committing theft. It is clear, therefore, that the crime involved moral turpitude. Matter of V---- T----, 2 IN Dec. 213.
The remaining question is whether the respondent has been sentenced to imprisonment for a term of 1 year or more. Under section 461 of the Penal Code of California, burglary in the second degree is punishable by imprisonment in the county jail for not exceeding 1 year or in the State prison for not less than 1 year or more than 15 years. The commitment in the case sets forth that on March 1, 1950, the court found that the respondent was under 21 years of age and over 19 years of age at the time of his apprehension, and the court ordered that he "be committed to the Youth Authority of the State of California for the time prescribed by law." It is stated in exhibit 3, which is a letter from the California Vocational Institution, Lancaster, Calif., that the respondent was received at that institution on April 7, 1950, under a commitment dated March 1, 1950, from the superior court of Los Angeles County. The respondent is still incarcerated in that institution.
The hearing examiner made a finding in this case that the respondent was sentenced to imprisonment for a term of 1 year or more. An official of the California Vocational Institution, who appeared at the hearing as a Government witness, testified that the respondent's confinement in that institution was an imprisonment, and he answered in the affirmative when asked whether the respondent's imprisonment was for a term of 1 year or more. Since this testimony represents merely the opinion of the witness in the nature of a legal conclusion, it is not of assistance in reaching a determination. It does not appear that this Service has previously considered the question of whether a commitment to the Youth Authority of California and subsequent confinement in an institution constitute a sentence of imprisonment within the meaning of the immigration laws.
In Matter of C----, 55829/975 (1936 C.O.), the following rule was adopted on March 13, 1936, with respect to sentences to reformatories:
Confinement in a reformatory is a sentence to imprisonment within the meaning of the Immigration Act, unless the local statutes under which such confinement was ordered indicate that the primary purpose of such confinement was corrective rather than penal. Such confinement may be taken to be corrective when it appears that the person was committed as a minor and
(a) Under local statutory provisions is a juvenile delinquent required to be confined principally for corrective and educational treatment in a penal institution, or
(b) If not brought before a court exercising juvenile jurisdiction, that his minority was the determining factor in the designation of the place of confinement or the length of the term.
It should be noted, first, that the respondent does not come within subdivision (a) of the rule in the C---- case. Under section 700 of the Welfare and Institutions Code of California, the jurisdiction of juvenile courts extends to persons under 21 years of age who come within certain specified classifications, one of which relates to persons who have violated any law of the State and, under section 740 of that code, a person adjudged to be a ward of the juvenile court may be committed to certain associations or institutions, one of which is the Youth Authority. With respect to persons over 18 and under 21 years of age, however, section 833.5 of that code provides that any criminal court may certify the case to the juvenile court, but the criminal court is not required to do so. Since the record of commitment shows that the respondent was convicted in the Superior Court and that the proceedings were not in a juvenile court, it is clear that he was not treated as a juvenile; that he was not committed to the Youth Authority as a ward of the juvenile court; and that he was tried under the general provisions of the penal code.
The next matter to be considered is whether the respondent comes within subdivision (b) of the rule in the C---- case ( supra), insofar as it refers to minority as the determining factor in the designation of the place of confinement. It appears that the commitment to the Youth Authority was because the respondent was under 21 years of age since section 1731.5 of the Welfare and Institutions Code (as last amended in 1949) specifies the conditions under which a criminal court may refer to the Youth Authority a person convicted of a public offense, one of these conditions being that the individual must have been less than 21 years of age at the time of apprehension. As stated in the C---- case, the fact that minority was a determining factor in the designation of the place of confinement may be taken to indicate that the confinement was corrective, but the important consideration is whether the primary purpose of the confinement was corrective or penal.
Chapter 1 of Division 2.5 of the Welfare and Institutions Code, which relates to the Youth Authority Act of 1941 as amended in 1943 provides, in section 1700, that 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. Section 1710, as amended in 1943, provided as follows:
There is hereby created a Youth Authority for this State, hereinafter called "the Authority," whose function is to provide and administer preventive and corrective training and treatment for persons committed to it as hereinafter provided.
Section 1710 was amended in 1945 to read as follows:
There is hereby created a Youth Authority for this State, hereinafter called "the Authority."
The amendment which was made in 1945 is perhaps significant as indicating that the function of the Youth Authority is no longer considered as being restricted merely to providing and administering preventive and corrective training and treatment, and that its present functions may include also functions similar to those of other agencies dealing with persons sentenced to prisons and other institutions.
It appears that the Youth Authority, which was created by the act of 1941 as amended in 1943, was originally not an integral part of the prison system of California. However, section 5000 of the Penal Code of California (1949) shows that the Department of Corrections was established by the act of 1944, and section 5001 contains the statement that the Department of Corrections is composed of various agencies among which are the Youth Authority and the Adult Authority.
Section 2036 of the penal code of California, which section relates to the California Vocational Institution in which the subject is confined, is as follows:
The California Vocational Institution shall be an intermediate security type institution. Its primary purpose shall be to provide custody, care, industrial, vocational and other training, guidance and reformatory help for young men, too mature to be benefited by the programs of correctional schools for juveniles and too immature in crime for confinement in prisons. [Italics supplied.]
It will be seen from the underscored portion of section 2036 that the California Vocational Institution is specifically stated to be other than a correctional school for juveniles. The Welfare and Institutional Code, which relates, in part, to delinquents and wards of the juvenile court and to youths, lists in section 1000 the institutions which are established and maintained in the State of California as correctional schools for the reception of wards of the juvenile court and other persons committed to the Youth Authority. Only two institutions for males are listed; namely, the Preston School of Industry and the Fred C. Nelles School for Boys. The California Vocational Institution, in which the respondent is confined, is not listed in Section 1000, and since it is specifically treated in section 2036 of the Penal Code, that factor, in itself, indicates that this institution is a penal institution.
The conclusion that the California Vocational Institution is a penal institution is borne out by the fact that section 5003 of the penal code states that the Department of Corrections has jurisdiction over the California State Prison at San Quentin and Folsom and various other specified prisons and institutions including the California Vocational Institution. Section 6082 of the penal code provides that references in title 7 to "prisons" refers to all facilities, camps, hospitals and institutions for the confinement, treatment, employment, training and discipline of persons in the legal custody of the Department of Corrections. This, therefore, includes in the term "prison" the California Vocational Institution which is specifically referred to in section 5003 of title 7.
Part 3 of the penal code relates to imprisonment generally; title 1 of part 3 relates to imprisonment of male prisoners in State prisons; and chapter 1 of title 1 relates to establishment of State prisons. Under chapter 1, each of the California prisons and institutions is treated in a separate article, article 4 of that chapter relating to the California Vocational Institution.
Section 2041 of the penal code specifically provides that the provisions of part 3 of this code (relating to imprisonment generally) apply to the California Vocational Institution and to the persons confined therein so far as such provisions may be applicable. Section 2042 provides that every person confined in the California Vocational Institution who escapes or attempts to escape therefrom is guilty of a crime and shall be imprisoned in a State prison for not exceeding 5 years or in the county jail for not exceeding 1 year.
Section 1771 of the Welfare and Institutions Code of California provides that every person convicted of a felony and committed to the Youth Authority shall be discharged when such person reaches his 25th birthday, unless a petition is filed under article 5. Sections 1780 and 1782 of article 5 of that code provide that if the date of discharge occurs before the expiration of a period of control equal to the maximum term prescribed by law for the offense of which he was convicted, and if the Youth Authority believes that unrestrained freedom for said person would be dangerous to the public, the Youth Authority shall petition the court by which the commitment was made; that the court may thereupon discharge the person, admit him to probation or may commit him to the State prison; and that, in the case of a person committed to a State prison under this section, the maximum term of imprisonment shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority. As stated above, the maximum punishment for the crime of which the respondent was convicted is a term of not more than 15 years, and under section 1771 the respondent may be discharged by the Youth Authority when he reaches the age of 25, which would be a period of over 5 years from the date of his conviction. Particularly pertinent is the statutory provision above mentioned to the effect that, from the maximum term, there shall be deducted the time a person was under the control of the Youth Authority, in cases where the individual was later committed to a State prison. This shows that the period under the custody of the Youth Authority is considered an imprisonment under California law and supports a conclusion that the confinement in the California Vocational Institution is an imprisonment within the meaning of the immigration laws.
From the foregoing it will be seen that the maximum punishment for the crime of which the respondent was convicted is 15 years and that his commitment to the Youth Authority extends until he becomes 25 years of age, or a period of 5 years from the date of the respondent's conviction. The respondent was not tried as a juvenile but under the general provisions of the penal code. He was not committed to an institution for the purpose of receiving merely corrective and reformatory care during his minority, but is subject to the custody of the Youth Authority until he becomes 25 years of age. In addition, the respondent was not committed to one of the established correctional schools for juvenile delinquents, but is confined in the California Vocational Institution which is treated in the penal code with other prisons and institutions of California and which is clearly a part of the prison system of that State. The definition of "prison" in section 6082 of the penal code, which classes as "prisons" all institutions for the confinement of persons in the legal custody of the Department of Corrections (of which the Youth Authority is a part), also establishes that the confinement of the respondent in the California Vocational Institution is an imprisonment within the meaning of the immigration laws. Adding weight to such a conclusion, is the statutory provision, specifically relating to the California Vocational Institution, which makes it a crime, punishable by imprisonment in a State prison for not exceeding 5 years, for any person confined in that institution to escape or attempt to escape, and the provisions of section 1782 which permits the period an individual is under the control of the Youth Authority to be deducted from the maximum term of imprisonment if he is not discharged by that Authority and is committed to a State prison. In view of these factors, it is concluded that the respondent's commitment to the Youth Authority and subsequent confinement in the California Vocational Institution constitutes a sentence to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry. The criminal charge is, therefore, sustained.
Upon consideration of the entire record, the findings of fact and conclusions of law of the hearing examiner are hereby adopted, except that finding of fact (6) is amended and findings of fact (7) and (8) are added as follows:
(6) That on March 1, 1950, in connection with his conviction for the foregoing offense, the court ordered that the respondent be committed to the Youth Authority of California for the time prescribed by law.
(7) That the respondent was received at the California Vocational Institution on April 7, 1950, under the commitment dated March 1, 1950, of the Superior Court of Los Angeles County, Calif.
(8) That the maximum punishment for the crime of which the respondent was convicted is imprisonment for a term of not more than 15 years.Order: It is ordered that the alien be deported to Mexico at Government expense on the charge stated in the warrant of arrest and on the following additional charge:
The act of February 5, 1917, in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Burglary in the second degree.