State ex rel. Benton County Juvenile Dept. v. Cardiel

• Decision Date: 28 June 1974
• Citation: 523 P.2d 1057,18 Or.App. 49,99 Adv.Sh. 635
• Parties: In the Matter of Ralph Cardiel, a child. STATE of Oregon ex rel. BENTON COUNTY JUVENILE DEPARTMENT, Respondent, v. Ralph CARDIEL, Appellant.
• Court: Oregon Court of Appeals

Page 1057

523 P.2d 1057

18 Or.App. 49

In the Matter of Ralph Cardiel, a child.

STATE of Oregon ex rel. BENTON COUNTY JUVENILE DEPARTMENT, Respondent, v. Ralph CARDIEL, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 21, 1974.

Decided June 28, 1974.

Todd G. Brown, Corvallis, argued the cause and filed the brief for appellant.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Scott McAlister, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

This is an appeal from an order of the Benton County Circuit Court remanding Ralph Cardiel, 16 years of age, (hereafter Ralph) to adult court. The petition in the juvenile department of the circuit court alleged that Ralph had committed the crime of attempted murder. The state moved for remand of the child to adult court.

Ralph is a Mexican-American born October 6, 1957 in Los Angeles, California. He is the second youngest child in a family of 11 children, and lived with his parents until summer 1973 in Pomona. He completed the ninth grade but could not read or write, and dropped out in 1972. He dropped out, he said, because '(t)hey didn't teach nothing in that school.' His mother indicated in her testimony that the reason for dropping out related to the fact that he commenced at about the same time to live with a girl as his wife.

The parents are unemployed, and his father is disabled. During the summer of 1973, Ralph and his brother Henry, age 23, left Pomona. Henry's wife, Consuelo, and Ralph's girlfriend, Delores, whom he referred to as his 'wife,' accompanied them.

They ended up in Portland where they lived two months, working on a day-to-day basis. They then went to the Chicano Indian Study Center of Oregon (CISCO) at Camp Adair in Benton County. Ralph had been enrolled in a carpentry course there for two or three weeks when the alleged incident occurred.

According to testimony at the hearing, Ralph had been living with his girlfriend in an apartment at Camp Adair. They occupied one bedroom, and shared the apartment with two other Mexican-Americans and the alleged victim, a Caucasian, and his 18-month-old son. Henry and his wife lived in another apartment in the same building.

On November 5, 1973, Henry and the victim, Steven Berrigan, got into a fight. A detective quoted Berrigan as saying that he did not want to fight, but that Henry forced him. He had gotten Henry on the ground and was attempting to restrain him when Ralph ran up behind him and stabbed him twice in the back with a hunting knife. He said that Ralph then placed the knife to his throat and said, "Stevie, I'm going to kill you," and stabbed him heavily in the back a third time. He said that he was then placed, in a weakened condition, in one of the buildings, and then finally was driven to Corvallis to a hospital.

According to Berrigan, he had to promise to go along with a story designed to keep Ralph out of trouble before he was taken to the hospital. Later, when Berrigan's child was retrieved and safe, Berrigan told the detective a different and allegedly true story, which resulted in Ralph's apprehension in and return from Arizona, where he and his party had fled.

The hearing in the juvenile department was held solely to determine whether, as required by ORS 419.533, it was in the best interests of the child and the public to have Ralph remanded to adult court. For the purpose of the hearing, the hearsay was admitted and deemed true. Ralph was asked no questions concerning the crime itself.

ORS 419.533 states:

'(1) A child may be remanded to a circuit * * * court of competent jurisdiction for disposition as an adult if:

'(a) The child is at the time of the remand 16 years of age or older; and

'(b) The child committed or is alleged to have committed a criminal offense * * * and

'(c) The juvenile court determines that retaining jurisdiction will not serve the best interests of the child and the public.

'* * *.'

The only issue in this appeal is whether, under ORS 419.533, the juvenile court was correct in remanding Ralph to adult court. Under ORS 419.561(4), this court has de novo review of the record. See extended discussion of the scope of this review, and the weight to be accorded the trial court's findings, in State ex rel. Juv. Dept. v. Slack, Or.App., 98 Adv.Sh. 1647, 1650--1652, 520 P.2d 905, Sup.Ct. review denied (1974).

Juvenile counselor Krug in support of the state's motion testified:

'A * * * The criteria we are using is the seriousness of the offense. The facts, at least according to what information we have, the act was committed aggressively and in a willful manner. It was an act against a person, not against property. Also, the fact, from what source of information we have, would consider him an emancipated juvenile. Emancipated in the sense he is not in school, he is not living with his parents, he has been living with a woman that he states is his wife for over a year. He left the residence of his parents in California six months ago. Those are the kinds of things we consider in supporting your motion.

'Q Do you believe that the juvenile process has anything to offer Ralph?

'A Yes, I do. I think that because Ralph has turned 16 that the juvenile process could offer a number of things. We have a 16 year-old-boy that finished the 9th...