[646]*646Opinion
STEPHENS, J.
Defendant was charged with having violated the dangerous weapons control law, Penal Code section 12020. After a not guilty plea was entered, the right to a juiy trial was waived. Defendant was found guilty as charged. Probation was denied and commitment to the California Youth Authority was ordered.
On the night of December 15, 1974, defendant, along with others, was seen on the crest of a mound on a residential lot. At one time the lot had apparently been built upon, but at the time here involved there remained only foundations. The officers involved had been notified of a disturbance at the location, and on arrival, heard the sound of a gunshot. They went up to the top of the mound, announced their presence, and there observed defendant with his hands in the air, over his head, as though he was throwing something behind him. The sound of something striking the ground was heard. No article was specifically observed to have been thrown. Upon investigation, the sawed-off 410 shotgun was found some 25 to 30 feet from defendant and in the direction of the throw. The weapon was diy and loaded; it was subsequently determined to be operable. The area in which the gun was located was covered with mashed-down, long grass, and was wet with dew. Also found in the same area was a paint-roller cover which had dried paint covering it, but was wet to the touch.
The defense consisted of testimony of a witness to the arrest who testified that he never saw defendant throw anything and never saw the shotgun before, that no shot was fired, but there was a noise which could have been an automobile backfire, no one had any weapons, defendant had his hands in his pockets at all times, and none of the people present threw anything.
The evidence was adequate to sustain the conviction. The case of People v. Hilliard, 221 Cal.App.2d 719 [34 Cal.Rptr. 809], is quite similar to the instant case, and there, it was found that the circumstantial evidence adequately supported the charge of possession of contraband. (Id., at p. 724.) The same rationale is applicable in the instant case.
There is no merit to the contention that the probation and sentence hearing was unfair and prejudicial. Reference to arrests which had not resulted in convictions was contained in the probation report. We agree with defendant that such reference standing alone may be prejudicial, but in the instant case there was no question but that the arrests were not followed by convictions, hence the judge was not misled. In addition, the established record of juvenile court contacts with [647]*647defendant, his having been found to have committed the many offenses shown, and his gang association, clearly obviated any suggestion of prejudice which might have arisen by the reference to arrests which had not resulted in convictions. The instant case is readily distinguishable from People v. Calloway, 37 Cal.App.3d 905 [112 Cal.Rptr. 745], relied upon by defendant. There, the bare police-contact listings without showing dispositions or other major informative facts constituted error. The information in the instant report is not so limited. (See People v. Peterson, 9 Cal.3d 717, 725-726 [108 Cal.Rptr. 835, 511 P.2d 1187].)
Since the filing of briefs in this case, the Supreme Court has handed down its decision in People v. Olivas, 17 Cal.3d 236 [131 Cal.Rptr. 55, 551 P.2d 375], holding that a person between the ages of 16 and 21 who was tried as an adult for a misdemeanor assault (Pen. Code, § 240) and thereafter committed to the California Youth Authority cannot be held (incarcerated) for a period in excess of the maximum jail term, i.e., six months, in that case. Here, the defendant at the time of the offense and trial was 18 years of age (the judge made a finding in accordance with Welf. & Inst. Code, § 1731, to that effect) and was tried as an adult. The charge, however, was for possession of a sawed-off shotgun, a potential felony.1 Defendant argues that a one year maximum incarceration follows from the commitment to the California Youth Authority because such commitment consigns the offense to the misdemeanor category of alternatives available under the section.2 (See People v. Navarro, 7 Cal.3d 248, 271 [102 Cal.Rptr. 137, 497 P.2d 481], and People v. Hannon, 5 Cal.3d 330 [96 Cal.Rptr. 35, 486 P.2d 1235].)3 We very much doubt that the trial judge had in mind limiting defendant’s incarceration to one year when he issued the order of commitment, but this comment is equally applicable to the trial judge who pronounced sentence in Olivas. Since sentencing requires the exercise of judicial discretion, it seems incongruous that after a trial judge exercises sentencing discretion under a given set of rules, the rules may be changed, nullifying the sentence analysis, though this is what defendant argues. In analyzing the issue posed, we necessarily start with the statutes [648]*648involved. Section 16 of the Penal Code classifies crimes and public offenses into three catagories: (1) Felonies (2) Misdemeanors and (3) Infractions. Penal Code, section 17, subdivision (a), defines a felony as “a crime which is punishable with death or by imprisonment in the state prison.”
By direction of that same section, “Every other crime or public offense is a misdemeanor except those offenses which are classified as infractions.”
Subdivision (b) of section 17 defines types of misdemeanors: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison; (2) When the court commits the defendant to the Youth Authority.”
We discern from these statutes that there is more than one type of misdemeanor; i.e., jail time (other than in a state prison) and Youth Authority commitment. Seeking to spring solely from that portion of the punishment portion of section 12020 of the Penal Code limiting a county jail sentence to one year, defendant would have us declare that all misdemeanors have a maximum incarceration time of one year, including time in the Youth Authority; the law provides otherwise. Defendant has seized on the phrase “misdemeants” as used in Olivas, to bootstrap himself into the concept that commitment to the Youth Authority shall be “unconditionally a misdemeanor, for all purposes thereafter.” (People v. Navarro, 7 Cal.3d 248, 271 [102 Cal.Rptr. 137, 497 P.2d 481].) He also mistakenly relies upon Olivas, supra, as dictating the result he desires. In that case the maximum incarceration provided for the crime there involved (Pen. Code, § 240) was six months. The sole place of incarceration was designated as the county jail. (Pen. Code, § 241.)4
In the case before us, however, the maximum incarceration, had defendant been sentenced as a felon, would have been three years in the state prison.
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[646]*646Opinion
STEPHENS, J.
Defendant was charged with having violated the dangerous weapons control law, Penal Code section 12020. After a not guilty plea was entered, the right to a juiy trial was waived. Defendant was found guilty as charged. Probation was denied and commitment to the California Youth Authority was ordered.
On the night of December 15, 1974, defendant, along with others, was seen on the crest of a mound on a residential lot. At one time the lot had apparently been built upon, but at the time here involved there remained only foundations. The officers involved had been notified of a disturbance at the location, and on arrival, heard the sound of a gunshot. They went up to the top of the mound, announced their presence, and there observed defendant with his hands in the air, over his head, as though he was throwing something behind him. The sound of something striking the ground was heard. No article was specifically observed to have been thrown. Upon investigation, the sawed-off 410 shotgun was found some 25 to 30 feet from defendant and in the direction of the throw. The weapon was diy and loaded; it was subsequently determined to be operable. The area in which the gun was located was covered with mashed-down, long grass, and was wet with dew. Also found in the same area was a paint-roller cover which had dried paint covering it, but was wet to the touch.
The defense consisted of testimony of a witness to the arrest who testified that he never saw defendant throw anything and never saw the shotgun before, that no shot was fired, but there was a noise which could have been an automobile backfire, no one had any weapons, defendant had his hands in his pockets at all times, and none of the people present threw anything.
The evidence was adequate to sustain the conviction. The case of People v. Hilliard, 221 Cal.App.2d 719 [34 Cal.Rptr. 809], is quite similar to the instant case, and there, it was found that the circumstantial evidence adequately supported the charge of possession of contraband. (Id., at p. 724.) The same rationale is applicable in the instant case.
There is no merit to the contention that the probation and sentence hearing was unfair and prejudicial. Reference to arrests which had not resulted in convictions was contained in the probation report. We agree with defendant that such reference standing alone may be prejudicial, but in the instant case there was no question but that the arrests were not followed by convictions, hence the judge was not misled. In addition, the established record of juvenile court contacts with [647]*647defendant, his having been found to have committed the many offenses shown, and his gang association, clearly obviated any suggestion of prejudice which might have arisen by the reference to arrests which had not resulted in convictions. The instant case is readily distinguishable from People v. Calloway, 37 Cal.App.3d 905 [112 Cal.Rptr. 745], relied upon by defendant. There, the bare police-contact listings without showing dispositions or other major informative facts constituted error. The information in the instant report is not so limited. (See People v. Peterson, 9 Cal.3d 717, 725-726 [108 Cal.Rptr. 835, 511 P.2d 1187].)
Since the filing of briefs in this case, the Supreme Court has handed down its decision in People v. Olivas, 17 Cal.3d 236 [131 Cal.Rptr. 55, 551 P.2d 375], holding that a person between the ages of 16 and 21 who was tried as an adult for a misdemeanor assault (Pen. Code, § 240) and thereafter committed to the California Youth Authority cannot be held (incarcerated) for a period in excess of the maximum jail term, i.e., six months, in that case. Here, the defendant at the time of the offense and trial was 18 years of age (the judge made a finding in accordance with Welf. & Inst. Code, § 1731, to that effect) and was tried as an adult. The charge, however, was for possession of a sawed-off shotgun, a potential felony.1 Defendant argues that a one year maximum incarceration follows from the commitment to the California Youth Authority because such commitment consigns the offense to the misdemeanor category of alternatives available under the section.2 (See People v. Navarro, 7 Cal.3d 248, 271 [102 Cal.Rptr. 137, 497 P.2d 481], and People v. Hannon, 5 Cal.3d 330 [96 Cal.Rptr. 35, 486 P.2d 1235].)3 We very much doubt that the trial judge had in mind limiting defendant’s incarceration to one year when he issued the order of commitment, but this comment is equally applicable to the trial judge who pronounced sentence in Olivas. Since sentencing requires the exercise of judicial discretion, it seems incongruous that after a trial judge exercises sentencing discretion under a given set of rules, the rules may be changed, nullifying the sentence analysis, though this is what defendant argues. In analyzing the issue posed, we necessarily start with the statutes [648]*648involved. Section 16 of the Penal Code classifies crimes and public offenses into three catagories: (1) Felonies (2) Misdemeanors and (3) Infractions. Penal Code, section 17, subdivision (a), defines a felony as “a crime which is punishable with death or by imprisonment in the state prison.”
By direction of that same section, “Every other crime or public offense is a misdemeanor except those offenses which are classified as infractions.”
Subdivision (b) of section 17 defines types of misdemeanors: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison; (2) When the court commits the defendant to the Youth Authority.”
We discern from these statutes that there is more than one type of misdemeanor; i.e., jail time (other than in a state prison) and Youth Authority commitment. Seeking to spring solely from that portion of the punishment portion of section 12020 of the Penal Code limiting a county jail sentence to one year, defendant would have us declare that all misdemeanors have a maximum incarceration time of one year, including time in the Youth Authority; the law provides otherwise. Defendant has seized on the phrase “misdemeants” as used in Olivas, to bootstrap himself into the concept that commitment to the Youth Authority shall be “unconditionally a misdemeanor, for all purposes thereafter.” (People v. Navarro, 7 Cal.3d 248, 271 [102 Cal.Rptr. 137, 497 P.2d 481].) He also mistakenly relies upon Olivas, supra, as dictating the result he desires. In that case the maximum incarceration provided for the crime there involved (Pen. Code, § 240) was six months. The sole place of incarceration was designated as the county jail. (Pen. Code, § 241.)4
In the case before us, however, the maximum incarceration, had defendant been sentenced as a felon, would have been three years in the state prison. Had defendant been sentenced to the county jail (an [649]*649alternative provided for in § 12020), the maximum would have been one year.5 But defendant was not sentenced to a term in the county jail and the maximum incarceration as a committee to the Youth Authority is not limited by the restriction in sections 12020 and 19a of the Penal Code.6
We are, therefore, only confronted by the denial of the equal protection of the law issue, as recognized in Olivas, when defendant is threatened with an extension of incarceration beyond the maximum to which he could be subjected under section 12020 of the Penal Code, i.e., three years.7 As stated in Olivas on pages 240-241: “In order to understand how section 1731.5 [Welf. & Inst. Code] results in a denial of equal protection to youthful misdemeanants such as defendant, it is necessary to compare the maximum period of incarceration which may be imposed under the Penal Code with the period permitted upon commitment to the Youth Authority.”8
In considering the issue before us it is necessary to have in mind the purpose and direction of the Youth Authority; however, this is fully set forth in In re Herrera, 23 Cal.2d 206, 213 [143 P.2d 345]. The desire to segregate the seasoned prisoner from the impressionable transgressor is likewise patently clear. The reasons stated (and there are many others) justify the distinction between the three incarceration sentences [650]*650prescribed in the Penal Code: sentence to state prison, sentence to the county jail, and commitment to the Youth Authority. In each instance the term of incarceration may vary one from the other and merely because the term “misdemeanor” designates both county jail and Youth Authority incarceration, one is not limited by the other. It is the maximum term of incarceration authorized by the penal statute violated which limits penal control as it relates to both county jail and Youth Authority. (Olivas at p. 239.) In the instant case that maximum incarceration period is three years.
We conclude that neither Olivas nor any of its predecessors dealing with this topic have held that simply because a Youth Authority commitment is to be treated in all respects thereafter as a misdemeanor, the misdemeanor jail term maximum supersedes the maximum term to which defendant might have been sentenced had a felony sentence been imposed. We note also that a conclusion contrary to that which we have reached would negate the right of use of many state and local facilities now available to the director, including portions of the state prison system.9
We note also that here there was a full discussion at time of sentence regarding prison sentence vis-a-vis a county jail term or probation or Youth Authority commitment.10
By caveat, it must be understood that we do not here decide the effect if any of Olivas in the case of a defendant between the ages of 16 and 18 [651]*651years.11 A court faced with a sentencing problem in such case where the “crime” is of the “wobbler” type12 (or even if it is not a “wobbler” but rather a straight felony less than capital or life imprisonment) has no alternative but to commit to the Youth Authority for he cannot sentence such person to the state prison (unless, of course, a county jail sentence is deemed appropriate and permissible). (Welf. & Inst. Code, § 707.2, supra; In re Stanley, ante, p. 71 [131 Cal.Rptr. 608].)
While we have condensed the contentions of defendant, we have considered each facet of the issues on appeal as well as each of the cases cited, and find there was no error.13 However, it remains necessary, and we do direct that the judgment be modified to provide that defendant’s commitment to the California Youth Authority be terminated at a time not in excess of three years from time of sentence.
[652]*652As so modified, the judgment is affirmed.
Ashby, J., concurred.