913 F.2d 1433 (9th Cir. 1990), 89-15232, Barker v. Estelle

Docket Nº:89-15232.
Citation:913 F.2d 1433
Party Name:David C. BARKER, Petitioner-Appellant, v. Wayne ESTELLE, Warden, Respondent-Appellee.
Case Date:September 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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913 F.2d 1433 (9th Cir. 1990)

David C. BARKER, Petitioner-Appellant,


Wayne ESTELLE, Warden, Respondent-Appellee.

No. 89-15232.

United States Court of Appeals, Ninth Circuit

September 11, 1990

Submitted Nov. 14, 1989[*]

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David C. Barker, Tracy, Cal., petitioner-appellant, pro se.

Blair W. Hoffman, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

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

Before FARRIS, PREGERSON and RYMER, Circuit Judges.

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PREGERSON, Circuit Judge:

Petitioner-Appellant David Christian Barker appeals pro se a district court's order denying his petition for writ of habeas corpus. Barker contends that his prosecution in California state court for three murders violated the Double Jeopardy Clause because jeopardy had attached at his Juvenile Court detention and fitness hearings. Barker also contends that he was deprived of due process at his juvenile detention and fitness hearings when the deputy district attorney introduced into evidence statements of an adult accomplice over the objection of Barker's attorney that the introduction of these statements violated Barker's right to confront and cross-examine the accomplice/declarant. We affirm.


David Christian Barker was arrested on August 24, 1976, along with his neighbor and friend Barry Braeske, for the murders of Braeske's parents and grandfather. Braeske had confessed to the police that he and David committed the murders.

Because Barker was sixteen years old at the time, his case was handled according to standard California Juvenile Court procedure. First, he was given a detention hearing 1 in juvenile court on September 22, 1976, where it was determined that the district attorney had made out a "prima facie case in the totality of the testimony" and that Barker should be detained pending the jurisdictional hearing "in view of the immediate and urgent necessity for the protection of the persons or properties of others." Barker was represented by counsel at this detention hearing.

At the detention hearing, Police Detective Cervi testified about the crime scene and about exculpatory statements made by Barker regarding his activities with Braeske on the night of the murders. Cervi also testified about his interview with Braeske, and a transcript of a taped statement from that interview was introduced into evidence. Barker's attorney cross-examined Cervi but objected to the introduction of Braeske's statements as a denial of Barker's right of confrontation under the Sixth and Fourteenth Amendments. His objection was overruled.

On October 15, 1976, a fitness hearing 2 was held in which it was determined that

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Barker should be tried as an adult. The court found that

[Barker was] not a fit and proper person to be tried in the Juvenile Court and ... would not be amenable to the care, treatment and training programs available through the facilities of the Juvenile Court, based upon the circumstances and gravity of the offense alleged to have been committed by the minor and the degree of criminal sophistication allegedly exhibited by the minor in the offenses charged.

Again, Barker was represented by counsel. At this hearing, a behavioral report prepared by a probation officer was admitted into evidence that recommended Barker be tried as an adult.

It appears that the behavioral report contained a statement by Braeske, given to the deputy district attorney, involving Barker in the planning, execution, and concealment of the murders. Barker's counsel again objected unsuccessfully to the introduction of Braeske's statements as hearsay and as a violation of Barker's right, under the Sixth and Fourteenth Amendments, to confront and cross-examine the witnesses against him. The behavioral report also contained information about Barker's additional misconduct, employment, education, and friends. After the written behavioral report was introduced into evidence and was orally summarized by the court officer, Barker's attorney called witnesses. Barker's attorney was offered the opportunity for a continuance in order to cross-examine the probation officer who had prepared the behavioral report, but declined the judge's offer.

Barker was subsequently transferred to and tried in an adult court where he was convicted of one count of first degree, and two counts of second degree murder. He was sentenced to life in prison. Barker's conviction was upheld by the California Court of Appeals, see People v. Barker, 94 Cal.App.3d 321, 156 Cal.Rptr. 407 (1979), and the California Supreme Court denied rehearing.

Barker petitioned the California state courts for writ of habeas corpus. The Superior Court, which is the state trial court, denied the writ on alternative grounds--it held the claims procedurally barred because they could have been but were not raised on direct appeal, and dismissed the double jeopardy claim on the merits. The California Court of Appeals and the California Supreme Court both denied the petitions without stating reasons. 3

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Barker then filed a habeas petition in Federal District Court for the Northern District of California, alleging he was twice put in jeopardy, that he was deprived of due process at his fitness and detention hearings, and that California state courts violated his rights by not recognizing the validity of his claims. The district court denied the petition, finding Barker's claims "utterly without merit." The court held that the taking of evidence by the juvenile court at the fitness hearing did not constitute attachment of jeopardy under Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). The court also found that, since fitness hearings need not meet the standards of a criminal trial, or even of the usual administrative hearing, Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966), Barker was not deprived of due process.

Barker appeals the district court's denial of his habeas petition, contending that his prosecution in California Superior Court violated the Double Jeopardy Clause because jeopardy had attached at his juvenile court detention and fitness hearings. Barker also contends that he was deprived of due process at his juvenile detention and fitness hearings by the introduction of Braeske's statements without the opportunity to confront and cross-examine Braeske.


The decision to deny a petition for habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989).


I. Double Jeopardy

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court held that a juvenile is put in jeopardy at a juvenile court adjudicatory hearing 4--at a proceeding "whose object is to determine whether he has committed criminal acts and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years." Id. at 529, 95 S.Ct. at 1785. The Court concluded, therefore, that after the trier of fact at an adjudicatory hearing begins to hear evidence against a juvenile, a subsequent transfer and prosecution of that juvenile in adult court violates the Double Jeopardy Clause of the Fifth Amendment as applied to the States through the Fourteenth Amendment. Id. at 531, 541, 95 S.Ct. at 1786, 1791.

Under review in Breed was a former California statutory scheme that permitted a juvenile court to determine at any time during the adjudicatory hearing that the juvenile should be transferred to an adult court. The statutory scheme involved the interrelationship of four sections of the Cal. Welf. & Inst.Code (W & I) as they appeared at the time of Jones' hearing: Sec. 602, 5 Sec. 701, 6 Sec. 702, 7 and Sec. 707. 8

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The habeas petitioner in Breed had been subjected as a juvenile to a full adjudicatory hearing pursuant to Sec. 701, where the juvenile court found he had committed the alleged criminal acts. It was after this adjudication that the juvenile court determined, pursuant to Sec. 707, that he should be transferred to an adult court because he was "not amenable to the care, treatment, and training program through the facilities of the juvenile court." Breed, 421 U.S. at 521-23, 95 S.Ct. at 1781-82. The Court held that his subsequent prosecution in adult court violated the Double Jeopardy Clause.

The Court in Breed noted, however, the importance of the availability of a procedure for transferring a juvenile to an adult court. Id. at 535, 95 S.Ct. at 1789. It stressed that its holding does not preclude the juvenile court from conducting such a transfer hearing, even if substantial evidence that the juvenile committed the offense charged is a prerequisite to the transfer, as long as the hearing does not involve the risk of an adjudication of guilt. Id. at 536-539 & n. 18, 95 S.Ct. at 1789-90 & n. 18.

We require only that, whatever the relevant criteria, and whatever the evidence demanded [at a fitness hearing], a State determine whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings [in juvenile and then in adult court].

Id. at 537-38, 95 S.Ct. at 1789-90 (emphasis added).

Our circuit has applied and interpreted Breed's holding only twice in the context of California Law. In United States v. Martinez, 536 F.2d 886 (9th Cir.), cert. denied, 429 U.S. 907, 97 S.Ct. 273, 50 L.Ed.2d 189 (1976), we held that jeopardy did not...

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