Rios v. Chavez

• Citation: 620 F.2d 702
• Decision Date: 13 February 1980
• Docket Number: No. 78-3054,78-3054
• Parties: Victor Eugene RIOS, Petitioner-Appellant, v. Abelico CHAVEZ, Supt. et al., Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 702

620 F.2d 702

Victor Eugene RIOS, Petitioner-Appellant, v. Abelico CHAVEZ, Supt. et al., Respondent-Appellee.

No. 78-3054.

United States Court of Appeals, Ninth Circuit.

Feb. 13, 1980.

Rehearing Denied June 18, 1980.

Jeb Scully, Sacramento, Cal., argued for petitioner-appellant; Jo Ellen L. Mitchell, Sacramento, Cal., on the brief.

Shirley Nelson, Sacramento, Cal., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before GOODWIN and ANDERSON, Circuit Judges, and CLAIBORNE, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Petitioner Victor Eugene Rios appeals a judgment below denying his petition for a writ of habeas corpus. Finding that Rios was twice placed in jeopardy for the same offense, we reverse the judgment with instructions that the writ be issued.

I. BACKGROUND

On September 25, 1969, a group of juveniles robbed a drive-in restaurant located in Sacramento, California. In the course of that robbery, the owner of the drive-in was killed by a gunshot, and his wife was pistol-whipped on her left arm and leg. Shortly thereafter, Victor Eugene Rios, a juvenile at the time, and three other juveniles were arrested in connection with the homicide, robbery, and assault at the drive-in.

On October 20, 1969, a hearing was conducted by the Superior Court of the State of California in and for the County of Sacramento, sitting as the Juvenile Court. At the hearing, evidence was heard by the judge regarding the alleged crime and the amenability of Rios and three of his alleged accomplices in the murder-robbery to care and treatment under the California juvenile justice system. Rios and his companions were each separately represented by counsel at this hearing, and a deputy district attorney appeared and presented the evidence against the four juveniles.

At the termination of the hearing, the presiding judge directed that all four of the juveniles be prosecuted as adults for their alleged participation in the crime. With regard to Rios, the judge entered the following findings, which were typical of those entered against all of the four:

"The Court has given this case much consideration; accordingly, (sic) finds that Victor Eugene Rios is a person described in Section 602 of the Welfare and Institutions Code, he was 16 years of age or older at the time of the alleged commission of such offense, and further, said minor is not a fit and proper subject to be dealt with under the Juvenile Court Law in that said minor would not be amenable to the care, treatment and training program available through the facilities of the Juvenile Court."

Hearing Transcript, p. 193 (hereafter "H.T."). ¹

The judge then directed that the District Attorney of Sacramento County prosecute Rios in state court as an adult. A similar directive was given for the prosecution of Rios' companions.

In finding that Rios was "a person described in Section 602 of the Welfare and Institutions Code," the judge was making a finding pursuant to California Welfare and Institutions Code § 602 (1966), which was then in force in California and provided that:

"Any person under the age of 21 years who violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime or who, after having been found by the juvenile court to be a person described by Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court." (Emphasis added)

Cal.Welf. & Inst'ns Code § 602 (1966).

Section 602 operated in conjunction with a larger statutory scheme defining the jurisdiction of California's juvenile court system and granting judges certain dispositional options for juveniles charged with criminal offenses. The hearing at which the district attorney was directed to prosecute Rios as an adult was held pursuant to Sections 701 ² and 702 ³ of the Welfare and Institutions Code. Section 707 of the Code granted the juvenile judge the authority to determine at such a hearing whether a juvenile charged with a criminal offense should be dealt with under the juvenile justice system or should be prosecuted as an adult, providing in pertinent part:

"At any time during a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602, when substantial evidence has been adduced to support a finding that the minor was 16 years of age or older at the time of the alleged commission of such offense and that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, . . ., the court may make a finding noted in the minutes of the court that the minor is not a fit and proper subject to be dealt with under this chapter, and the court shall direct the district attorney or other appropriate prosecuting officer to prosecute the person under the applicable criminal statute or ordinance and thereafter dismiss the petition . . . ."

Calif.Welf. & Inst'ns Code § 707 (Supp.1967).

Following the judge's finding that Rios was not amenable to the care, treatment and training program available through the facilities of the juvenile court, Rios was prosecuted in Superior Court and was convicted by a jury of robbery and murder on January 15, 1970. Rios prosecuted an unsuccessful appeal after his conviction, and also failed in an attempt to obtain state habeas corpus relief on grounds irrelevant to the present appeal.

Subsequent to Rios' conviction, the U.S. Supreme Court held in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), that California's juvenile justice statutes were unconstitutional insofar as they violated the Fifth Amendment's guarantee against double jeopardy. The Court, in a unanimous opinion authored by Chief Justice Burger, found that the initial dispositional hearing and determination that a juvenile was a person described by Section 602 of the Code involved an adjudication of the underlying offense and that jeopardy attached at the hearing. A subsequent criminal prosecution therefore, would violate the guarantee against double jeopardy under Breed.

Following Breed, Rios instituted another attack on his confinement by way of habeas corpus, alleging that the prosecution in Superior Court violated the double jeopardy clause. After properly exhausting his state remedies, Rios filed the instant petition in district court, and now appeals the denial. Rios' application for Certificate of Probable Cause and Notice of Appeal were timely filed.

II. JURISDICTION

The district court had jurisdiction to entertain Rios' petition pursuant to 28 U.S.C. § 2254. Our jurisdiction on appeal is based upon 28 U.S.C. § 2253.

III. STANDARD OF REVIEW

Normally, on appeal from the denial of a petition for writ of habeas corpus, we are guided by the "clearly erroneous" standard. See, e. g., Greenfield v. Gunn, 556 F.2d 935, 938 (9th Cir. 1977), cert. denied, 434 U.S. 928, 98 S.Ct. 413, 54 L.Ed.2d 288 (1977). Where the record, however, is wholly documentary, the court on appeal is bound neither by the trial court's conclusions of law, nor by its interpretation of the evidence. Johnson v. Salisbury, 448 F.2d 374, 377 (6th Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 979, 30 L.Ed.2d 801 (1972). In the present case, the record consists wholly of the transcript of Rios' October 1969, hearing before the juvenile court. We need not fix with precision the standard employed here, however, because we find the trial court's denial of Rios' petition erroneous under even the stricter standard.

IV. ISSUES ON APPEAL

Rios' appeal raises two issues:

1. Whether the Supreme Court's ruling in Breed v. Jones, supra, may be applied retroactively to a juvenile hearing conducted in October 1969; and

2. Whether jeopardy attached at Rios' hearing under the standards set forth in Breed.

V. DISCUSSION

In finding that jeopardy did not attach at Rios' 1969 hearing, the district court held that the "sole purpose" of the hearing was to determine whether Rios was a fit and proper subject to be dealt with under California's juvenile justice statutes. The court did not consider the question of the retroactive application of Breed v. Jones.

A. Retroactive Effect of Breed v. Jones

The state conceded at oral argument that Breed v. Jones is applicable retroactively in this case. We so find, and add only a few comments to clarify our holding.

There is a split of authority among other circuits on the issue of whether Breed should be applied retroactively. In Jackson v. Justices of Superior Court of Massachusetts, 549 F.2d 215 (1st Cir. 1977), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 370 (1977), the court refused to apply Breed retroactively to a Massachusetts juvenile court scheme similar to the California system. In Holt v. Black, 550 F.2d 1061 (6th Cir. 1977), cert. denied, 432 U.S. 910, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977), on the other hand, the Sixth Circuit applied Breed retroactively in voiding a 1973 manslaughter conviction which had followed an adjudicatory juvenile hearing.

We are inclined to follow the rationale of the Sixth Circuit. Retroactive application of double jeopardy standards is governed by the Supreme Court's decision in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), and not by the general retroactivity standards announced in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In Robinson, the Court drew a distinction between procedures which assure fairness at trial, and the ban on double jeopardy which prevents a trial from occurring in the first place. 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29. The clear implication of Robinson is that lower courts are to be somewhat more liberal in applying double jeopardy decisions retroactively than...