Brekke v. People

• Decision Date: 24 March 1965
• Citation: 233 Cal.App.2d 196,43 Cal.Rptr. 553
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of John Henry Brekke, a person under the age of twenty-one years. John Henry BREKKE, Appellant, v. The PEOPLE of the State of California, Respondent. * Civ. 11071.

Page 553

43 Cal.Rptr. 553

233 Cal.App.2d 196

In the Matter of John Henry Brekke, a person under the age of twenty-one years John Henry BREKKE, Appellant, v. The PEOPLE of the State of California, Respondent. ^*

Civ. 11071.

District Court of Appeal, Third District, California.

March 24, 1965.

Hearing Denied May 19, 1965.

Kenneth M. Wells, Public Defender, Sacramento, for appellant.

Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., by Edward A. Hinz, Jr., Deputy Atty. Gen., for respondent.

PER CURIAM.

The Attorney General has moved to dismiss this appeal from an order of the Superior Court of the State of California in and for the County of Sacramento sitting as a juvenile court. The order appealed from, dated September 11, 1964, was one made pursuant to Welfare and Institutions Code section 707, ¹ declaring that the above named minor, John Henry Brekke (already a ward of the court, as will be noted more fully hereinafter) 'is not a fit and proper subject to be dealt with under the Juvenile Court Law of the State of California,' and directing the District Attorney of Sacramento County to prosecute him under the general law. ² The order contained findings that a 'supplemental petition' had been filed August 21, 1964 by the probation officer under section 602 alleging that said minor on August 19, 1964 had murdered one Julius Daniel Micheletti, that a hearing had been held upon said petition and evidence taken, that said minor was over 16 years of age, and would not be amenable to the care, treatment and training program of the facilities of the juvenile court.

The motion to dismiss the appeal is upon the ground that the order is nonappealable. The question presented has novelty because it involves an interpretation of the provisions of section 800 ³ (which covers those orders, judgments and decrees of the juvenile court which are appealable), and particularly that portion thereof making appealable 'any subsequent order' to a judgment 'assuming jurisdiction and declaring any person to be a person described in Section 602.'

The interpretation is to be made with reference to a situation unique so far as the case law of California is concerned.

At the time of the petition charging said minor with murder he had already been involved in the theft of an automobile and had been adjudged a ward of the juvenile court under section 602 ⁴ in March, 1964. He had been then committed to the care and custody of his father.

On August 19, 1964 a verified supplemental petition was filed, charging the minor with a violation of the previous order and he was ordered to be detained and placed under the care and custody of the probation officer. It was during such detention that the alleged murder of Micheletti, a counselor at the juvenile hall, was committed.

Because of these facts, it is the minor's contention that the order of September 11, 1964 is a 'subsequent order [which] may be appealed from as from an order after judgment.' Although a literal interpretation of section 800 would support that position we do not believe, within the purposes and reasons of that section, or of section 707, or of the Juvenile Court Law as a whole, such a construction is permissible. In our opinion the Legislature, by use of the words last quoted, must be deemed to have intended to refer only to subsequent orders relating to the judgments and decrees theretofore made and the matters which caused them to be made. Any other construction would defeat the purposes of section 707.

By that section (see footnote 2) the juvenile court when it has determined that a minor brought before it who has committed a felony is not amenable to care and treatment as a juvenile and is not a fit and proper subject to be dealt with under juvenile court law may direct that he be tried under the general law. Such a determination made when the minor is brought before the juvenile court for the first time, i. e. before any judgment or order making him a ward of the court, is admittedly not appealable. The reason it is not is obvious. A time-consuming appeal would prejudice both the prosecution, in its ability to present evidence of guilt, and the defendant, in his right to a speedy trial. Although section 800 provides that precedence be given appeals from juvenile court judgments and orders a considerable lapse of time during the appeal is inevitable. This case is illustrative. The order appealed from was dated September 11, 1964. The reason stated is equally applicable when a minor, already a ward of the court, is brought before the juvenile court on an entirety new matter. Actually there is more reason for the application of section 707 to the second (or, as here, the third) offender. He has demonstrated the fact that he is 'not a fit and proper subject to be dealt with under the Juvenile Court Law.' It would be an anomaly in the law to give preferential rights of appeal to the incorrigible minor over the minor brought before the juvenile court for the first time. ⁵

It is elementary that 'an order is not appealable unless declared to be so by the Constitution or by statute.' (People v. Keener, 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 862, 361 P.2d 587, 590; People v. Valenti, 49 Cal.2d 199, 204, 316 P.2d 633; In re Corey, 230 A.C.A. 884, 891, 41...