IN THE MATTER OF T

In DEPORTATION Proceedings

A-3684536

Decided by Board December 29, 1955

Conviction-Sentence by a juvenile court of California after a plea of guilty in superior court of that state is not conviction of crime under the law of California.

An individual who entered a plea of guilty on January 27, 1916, in the Superior Court of California to a charge of arson committed when he was under the age of 21 years, with no judgment or sentence having been pronounced by that court, and who was thereafter turned over to the juvenile court which, on April 15, 1916, ordered his commitment to a state school, must be deemed to have been treated as a juvenile delinquent and, hence, cannot be considered as having been convicted of a "crime" under California law.

CHARGE:

Warrant: Act of 1952—Section 241 (a) (4)—Convicted after entry of two separate crimes not arising from a single scheme of misconduct.

BEFORE THE BOARD

Discussion: This respondent, a 58-year-old single male, a native and citizen of Italy, appeals from a decision of a special inquiry officer on May 26, 1955. In that decision the special inquiry officer found the respondent deportable on the warrant charge and ordered deportation pursuant to law. The appeal is submitted on the record.

Apparently the only entry of this respondent into the United States occurred at the port of New York during the year 1908, or the year 1909, as a passenger on an unknown vessel, at which time he was 12 years of age. August 30, 1922, on a plea of not guilty, the respondent was tried in Superior Court of San Joaquin County, State of California, and found guilty of the crime of murder, first degree. He was sentenced to imprisonment in the state prison of California for the term of his natural life. He was paroled in 1934, returned to the institution in 1940, and released on parole in 1941.

On January 27, 1916, the respondent entered a plea of guilty in the superior court, San Joaquin County, California, to a charge of arson (dwelling) committed November 15, 1915. He has testified that he was born on March 18, 1897. At the time the crime was committed he was age 18 years, 7 months, and 27 days. On April 15, 1916, after the respondent had requested that he be treated as a delinquent under juvenile court law, and after the court had observed that the respondent was under 21 years of age and should be dealt with as a subject which came under the provision of the juvenile court law of the State of California, it was ordered that he be committed to Preston School of Industry at Waterman, California, for a period of one year, or until the further order of the court. There is no evidence that the respondent was subsequently returned to Superior Court for judgment or sentence on his plea of guilty.

Unquestionably the two aforementioned crimes, for which the respondent has been the subject of court proceedings, involve the element of moral turpitude. The only problem presented in the adjudication of the issue of deportability is whether the respondent's plea of guilty to a charge of arson on January 27, 1916, in superior court in California, and his sentence on April 15, 1916, by the juvenile court, under the provisions of the juvenile court law of that state, is to be deemed a conviction of crime. If the answer is in the negative, the ground for deportation is not sustained.

We have the juvenile court law of California enacted June 5, 1915 (California Statutes and Amendments-1915, chapter 631, effective August 8, 1915) before us. That statute relates to, and concerns, persons under 21 years of age (section 1). It repealed all prior California juvenile court laws. We have carefully read the pertinent provisions of that statute and have studied its terms wherein such appear to be applicable to the plea of the respondent in superior court on January 27, 1916, and to the orders entered by the juvenile court on April 15, 1916. We have stated that respondent entered a plea of guilty in superior court but no judgment or sentence was pronounced, and that jurisdiction of the respondent was assumed on April 15, 1916, by the juvenile court.

As we read and interpret the aforementioned juvenile court law of California, in effect and applicable to the issue before us, we find that the juvenile court had jurisdiction of any person under the age of 21 years and could make such person a ward or subject of that court if the person came within any of the subdivisions, (1) to (13), inclusive, of section 1 of the pertinent statute

(section 2, Act of June 5, 1915).1 Subdivision (13) of section 1 is applicable here:

(13) Who violates any law of this State or any ordinance of any town, city, county, or city and county of this State defining crime.

Section 4d of such statute provided that no person under the age of 18 years at the time of the commission of an offense should be prosecuted for crime until the matter had been submitted to, and considered by, the juvenile court. Section 7 of such statute (applicable to this alien) provides that whenever a person over the age of 18 years and under the age of 21 years, is accused of a felony or misdemeanor in the superior court, that court may, either before or after conviction, receive evidence on the question whether or not such person should be dealt with as a ward of the juvenile court under the provisions of the Juvenile Court Act, and enter an order committing the person to a state school or an order of probation. If such person is not amenable to the discipline of the state school he may be returned to superior court where he is tried for judgment and sentence (section 7, par. 2, Act of June 5, 1915).

The juvenile court upon assuming jurisdiction of this alien on April 15, 1916, following his plea of guilty in the superior court, entered the following orders:

It is hereby ordered that said defendant be, and he is hereby committed to the Preston School of Industry at Waterman, State of California, for the period of one (1) year, or until the further order of this Court;

And it is further ordered that said defendant be retained by the officers of said School, subject at all times to the orders of this Court, to be delivered to the Sheriff of this County upon the order of this Court, to be returned to this Court for any purpose which may be deemed just and proper by this Court, or a judge thereof, in making the order for the return of said defendant to this Court, to be dealt with as this Court may then and there deem proper;

It is further ordered that the Sheriff of this County forthwith deliver said defendant to the officers of said Preston School of Industry, together with a certified copy of this order. He will be remanded to the custody of the Sheriff.

In this connection we note that section 5 of the aforementioned statute provides:

In no case shall an order adjudging a person to be a ward of the Juvenile Courts be deemed to be a conviction of crime.

It is our opinion that the substance of the juvenile court's opinion on April 15, 1916, and the orders entered on that date by the judge of that court, committing the respondent to the Preston School of Industry in the State of California, in which orders the

In Matter of V—T- A-5963331, 2, I. & N. Dec. 213, all of the 13 subdivisions of section 1 of the Act of June 5, 1915 (Calif. Stat.) are quoted.

court retained complete control and jurisdiction of the person, clearly establish that the respondent was adjudged a ward of the juvenile court of the State of California. Should this conclusion be correct, his plea of guilty cannot be deemed a conviction of crime (section 5, Juvenile Court Law of California, effective August 8, 1915).

However, there is another factor that is decisive in resolving the issue, aside from the limitations in section 5 of the aforementioned statute. It is that we find there was no judgment or sentence on the alien's plea of guilty in superior court, and therefore, there was no conviction for the crime of arson. This is true because section 7 of the pertinent statute provided for the return of any person over whom the juvenile court assumed jurisdiction for sentence to state imprisonment, if such person proved to be incorrigible, or not amenable to the discipline in a corrective institution. This respondent was never returned to the superior court for judgment or sentence on his plea of guilty. It is well established that sentence in a criminal case is a final judgment of conviction. The sentence is the judgment (Berman v. United States, 302 U.S. 211 (1937)). Where there is no sentence there is no judicial determination of the matter and no judgement. Accordingly, we hold that this record fails to establish that respondent was convicted in 1916 of the crime of arson. Consequently, the warrant charge is unsupported. The proceedings will be terminated.

Order: It is ordered that the appeal be sustained and that the proceedings under warrant of arrest dated March 3, 1955, be terminated.

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