Garcia

In this appeal, the defendant contends on equal protection grounds that the sentencing court improperly failed to award him 198 days of presentence conduct credit against a state prison sentence which he received after his initial commitment to the Youth Authority was recalled under Welfare and Institutions Code section 1737. He does not seek any conduct credit for time actually spent in the Youth Authority, conceding that People v. Austin (1981) 30 Cal.3d 155 [ 178 Cal.Rptr. 312 , 636 P.2d 1 ] forecloses that attack. He also argues that the court erred in failing to grant conduct credit for time spent in state prison and pending resentencing under section 1737. He acknowledges that he received the correct amount of credit for actual time served. Since each of his three arguments raises different issues, we will discuss them separately. We agree with defendant on the first point and will modify his sentence to include the additional 198 days of conduct credit.

Procedural Background

The defendant pled guilty in August 1981 to one count of forcible rape. (Pen. Code, § 261, subd. (2).) As he was 19 at the time of the offense, the court ordered a diagnostic evaluation (Pen.…