Anthony H., In re

• Citation: 187 Cal.Rptr. 820,138 Cal.App.3d 159
• Court: California Court of Appeals
• Decision Date: 15 December 1982
• Parties: In re ANTHONY H., a Person Coming Under the Juvenile Court Law. Anthony H., Minor and Appellant. Civ. 26801.

Page 820

187 Cal.Rptr. 820

138 Cal.App.3d 159

In re ANTHONY H., a Person Coming Under the Juvenile Court Law.

Anthony H., Minor and Appellant.

Civ. 26801.

Court of Appeal, Fourth District, Division 1, California.

Dec. 15, 1982.

Hearing Denied March 2, 1983.

Quin A. Denvir, State Public Defender, Jeffrey J. Stuetz, Deputy State Public Defender, and Marilee Marshall, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven V. Adler and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

COLOGNE, Acting Presiding Justice.

An amended petition in juvenile court charged Anthony H. with robbery (Pen.Code, § 211), ¹ with obstructing a peace officer (§ 148), and grand theft person (§ 487.2).

The parties stipulated to the appointment of the juvenile court referee as a temporary judge, and the jurisdictional hearing began February 22, 1982. After the People presented its case, Anthony moved to dismiss the robbery. The court announced the motion was granted, apparently because it believed no threat of force or fear was used. A few minutes later, however, the court realized its ruling may have been both improper and unlawful since it had not heard from the district attorney. The court then stated it would like counsel to research the issue and it was reserving its ruling on this motion until that was done. On stipulation of counsel, the trial was continued until February 25, 1982.

After reviewing the law, on February 25, the court denied the motion for dismissal of the robbery charge. Anthony objected claiming the robbery charge had been dismissed and he could not be tried again because he had already been placed in jeopardy. His objection was overruled and Anthony then presented his defense. The court found the allegations of robbery and obstructing a peace officer to be true. On March 5, the February 22 order of dismissal and the February 25 order reinstating the robbery charge were entered by the clerk. Anthony appeals.

On January 25, 1982, at about 8:30 at night, Anthony was driving a car in a residential area of San Diego. John M. and Brian M. were passengers. John suggested they steal a purse so they could buy some food. They saw an elderly woman, Mrs. Helen M. Seymour, riding a bicycle home from grocery shopping, and John and Anthony agreed John should "rip her off."

Anthony drove the car next to Mrs. Seymour, and John asked her what time it was. As John began to open the door, she rode her bicycle to the other side of the dark street. Anthony drove the car ahead, pulled over to the curb and turned off the headlights. Mrs. Seymour waited a few moments and then started ahead. Anthony pulled the car to the wrong side of the street and cut her off. She then "darted" over to the corner of the street near a street light. John left the car and said to her, "I don't want to harm you, but I want your purse." She denied having one, but John reached into her grocery bag which was in the rear bicycle rack and took out her purse. As he ran toward the waiting car, Mrs. Seymour flagged down a passing vehicle driven by Mr. Anthony White and asked for his help in her pursuit of the robbers. During the ensuing car chase, White attracted the attention of San Diego Police Officer Sergojan who also joined the pursuit. Anthony pulled the car over to the curb and he and Brian ran away. John slid into the driver's seat and drove off but was soon stopped by the officer. Mrs. Seymour's purse was found inside the car. John identified Anthony and Brian as the other youths involved in the purse snatch, and they were arrested later that night.

When Anthony was arrested for robbery, he said, "All we did was rip off an old lady's purse. I don't think that's robbery." At the police station, Anthony said, "I know what this is for. It's for ripping off the purse from the old lady. So what? I did it with my friends. I guess we'll be in it together all the way."

Anthony first contends the court's reinstatement of the robbery allegation after dismissal for insufficient evidence was barred by the provisions in the United States and California Constitutions prohibiting double jeopardy.

When Anthony's counsel made a motion to dismiss the robbery count, the court suggested the thrust of the motion was the absence of force or fear. Anthony's counsel then stated, "There is no force," to which the court replied, "Right, I agree. That is dismissed." The court then considered a similar motion on the grand theft person count for both Anthony and codefendant Brian. After briefly hearing argument for the juveniles, the court asked the prosecutor to respond. The prosecutor argued the facts indicate a robbery more clearly than a grand theft person. After discussing the concepts of force or fear and person or presence, the court stated:

"Well, I sustain[ed] the motion of Counsel [dismissing the robbery] because it is my impression of the law, but I can undo any effort I made certainly and, if I am in error of that, I will undo that. We have some interesting legal arguments, and maybe what we are going to need is to hear some law at this point. So, as to both of those questions--"

After more discussion on the issue of force or fear, the court said:

".... Well, maybe we have some legal arguments that should be looked into before we proceed further with the taking of evidence. I am not trying to put everybody off, but these are reasonable issues that I had in my own mind. I am not sure that I can agree with the District Attorney, but I will give him the chance to prove me wrong because I did not give him the chance when I quickly ruled against him, and I will also give you the chance, if you wish to do it, to research the law a little further with respect to this element of whether or not this is a grand theft or a petty theft or, for that matter, even a 211 [robbery]. But, we are not going to get all that done this afternoon and, particularly, with the meager library we have here. So, I will leave it to you how you want to proceed. If you want to have me continue the case, which I don't particularly want to do, but if you want me to I will do that, give you a chance to prepare arguments...."

The parties agreed to continue the matter until February 25, 1982. The prosecutor specifically asked, "Would the Court then reserve its ruling on the motion for the 211?" The court replied, "Yes, I am setting aside my response to [Anthony's counsel]." (Italics added.) The February 22, 1982, minute order inaccurately and incompletely reflected the court's rulings. This order stated:

"NOW, THEREFORE, IT IS ORDERED THAT further hearing on this matter be and the same is hereby continued to February 25, 1982 at 3:00 p.m. in Department V for trial; further, that Count I is hereby dismissed in the furtherance of justice, and for insufficient evidence, at the request of the attorney;

"IT IS FURTHER ORDERED that all prior orders not in conflict herewith shall remain in full force and effect."

At the continued hearing on February 25, the court stated:

"All right, thank you. Well, this case is continued from the other day when we had the testimony of witnesses and put it over to today because we got into a discussion as to whether or not there was sufficient grounds upon which to proceed as a matter of law as it relates to the offense of robbery and as it relates to the offense of grand theft. I ruled, and inappropriately so, by sustaining the motion of Mr. Reilly [Anthony's counsel] and dismissing the robbery, and I realize I made an error, backed up, set that aside, and we are here today to hear further with respect to the questions of law. Mr. Reilly has filed a brief which I received and read, and if I recall, you [the prosecutor] had rested?" (Italics added.)

After further discussions and the dismissal of the grand theft person count, the following discussion occurred:

"MR. REILLY: And then I would like to, at least, preserve on the record without commenting on the merits of such an argument--my client has asked me to preserve it for the record--when the Court initially made a statement which I interpreted as dismissing the robbery count.

"THE COURT: Yes, I did that. However, maybe I should point it out. You happened to catch me at the time when I was thinking about precisely the thing you mentioned, and I did so without even giving the District Attorney an opportunity to so much murmur, and that is not only inappropriate, it is unlawful, and that is what caused me to set it aside. But, at any rate, go ahead."

"MR. REILLY: That may well be so, but assuming that someone else besides myself will be looking at this record, I would at least like to preserve on the record any claim of former jeopardy or double jeopardy with regards to that dismissal.

"...

"THE COURT: That is esoteric thinking. If the Appellate Court finds that, we all are out to lunch. At any rate, you have it on the record, and I understand the reason for putting it there."

After hearing the defense evidence, the court found the robbery allegation to be true. The February 25, 1982, minute order states the court set aside the previous dismissal of the robbery, reinstated this count and found the allegations to be true. This order of February 25 and the prior order of February 22 were simultaneously filed and thus entered by the clerk on March 5, 1982.

When a juvenile court renders and enters an effective order granting a motion to dismiss pursuant to Welfare and Institutions Code section 701.1, the prosecution may not institute a later proceeding which charges the same offense. (Cf., §§ 1118 and 1118.2; also see Veitch v....