Dennis J., In re, Cr. 30450

• Decision Date: 19 August 1977
• Docket Number: Cr. 30450
• Citation: 72 Cal.App.3d 755,140 Cal.Rptr. 463
• Court: California Court of Appeals Court of Appeals
• Parties: In re DENNIS J., a Person Coming Under the Juvenile Court Law. Kenneth F. FARE, as Acting Chief Probation Officer, etc., Plaintiff and Respondent, v. DENNIS J., Defendant and Appellant.

Page 463

140 Cal.Rptr. 463

72 Cal.App.3d 755

In re DENNIS J., a Person Coming Under the Juvenile Court Law.

Kenneth F. FARE, as Acting Chief Probation Officer, etc., Plaintiff and Respondent, v. DENNIS J., Defendant and Appellant.

Cr. 30450.

Court of Appeal, Second District, Division 2, California.

Aug. 19, 1977.

Hearing Denied Oct. 13, 1977.

Wilbur F. Littlefield, Public Defender, Kenneth I. Clayman, Albert J. Menaster, Marilyn Van Dam, Stanley Avram Goldman, Deputy Public Defenders, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, Mark Alan Hart, Deputy Attys, Gen., for respondent.

COMPTON, Associate Justice.

This is an appeal from an order of the Juvenile Court of Los Angeles County committing a 17--year old minor to the California Youth Authority.

At issue is whether the juvenile court may retain jurisdiction over a minor who is also under the jurisdiction of the superior court as a result of an adult criminal prosecution. We believe the answer is in the negative.

In two petitions filed with the juvenile court under the provisions of section 602 of the Welfare and Institutions Code ¹ on November 13 and November 18, 1975, it was alleged that Dennis had committed the offenses of possession of marijuana and burglary respectively. By orders issued on December 15 and 19, the petitions were sustained and Dennis was declared to be a ward of the juvenile court. On June 3, 1976, a third petition was filed pursuant to section 602, Welfare and Institutions Code, alleging that Dennis had committed burglary. That petition was also sustained.

Prior to the making of any dispositional orders in regard to the sustained petitions and, on August 18, 1976, yet another petition was filed pursuant to Welfare and Institutions Code section 602 alleging that Dennis had committed the crimes of rape, burglary and robbery.

In connection with the latter petition a hearing was held pursuant to Welfare and Institutions Code section 707 which provides in pertinent part: 'In any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he was 16 years of age or older, of any criminal statute or ordinance . . . the juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law if it concludes that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, based upon an evaluation of the following criteria: (1) The degree of criminal sophistication exhibited by the minor. (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction. (3) The minor's previous delinquent history. (4) Success of previous attempts by the juvenile court to rehabilitate the minor. (5) The circumstances and gravity of the offense alleged to have been committed by the minor. ( ) A determination that the minor is not a fit and proper subject to be dealt with under the juvenile court law may be based on any one or a combination of the factors set forth above, which shall be recited in the order of unfitness. . . .'

Following a hearing Dennis was found to be unfit for handling by the juvenile court and the district attorney then filed an information charging him with the crimes of rape, robbery and burglary. Dennis pleaded guilty in the superior court to second degree robbery and the other charges were dismissed. Proceedings were suspended and he was placed on three years probation on condition that he serve one year in the county jail.

Thereafter the juvenile court disposed of the previously sustained petitions by committing Dennis to the Youth Authority. It is that order which is the subject of this appeal.

The net effect of the juvenile court order is that upon completion of the one-year county jail term as a condition of probation, Dennis will revert to the custody of the Youth Authority whose jurisdiction could extend beyond the three-year probationary period (Welf. & Inst.Code, §§ 1769, 1800), and during the first two years of that commitment he would be subject to the concurrent supervision of the Los Angeles County Probation Department and ultimately to the superior court that placed him on probation.

Presumptively the superior court, in structuring the probationary order following Dennis' conviction for robbery, had before it and took into account his entire background including the matters then pending in the juvenile court. The probation report in that matter reflects Dennis' entire record. Nothing in the record of these proceedings suggests that the judge, in placing Dennis on probation, contemplated an additional commitment by the juvenile court or that the sentence was lessened because of that possibility.

When the juvenile court refused to accept jurisdiction of Dennis on that latest petition, it also had before it the circumstances of the most current alleged offense as well as Dennis' entire history with the juvenile court. Dennis does not attack the order which declared him to be unfit for handling by the juvenile court and concedes that it was a proper exercise of discretion based on the criteria set forth in Welfare and Institutions Code section 707.

The juvenile court in specifying the reasons underlying its decision relied heavily on Dennis' prior delinquent behavior and the escalation in the seriousness of the offenses committed stating: 'The minor's prior delinquent history shows continued violations of the law . . . and continued anti-social conduct in the face of pending petitions . . . previous attempts of the Juvenile Court to rehabilitate the minor have . . . been unsuccessful . . . On the circumstances and the gravity of the offense . . . the minor's past delinquent history . . . the court having considered . . . the advisability of having the minor go into the Juvenile Court system And into the California Youth Authority; . . . makes the finding that the minor is not a fit subject to be dealt with within the Juvenile Court.' (Emphasis added.)

Thus, on September 3, 1976, the juvenile court determined that at that point in his life Dennis had ceased to be a person who could be rehabilitated and that the public could not be adequately protected (Welf. & Inst.Code, § 202) by any of the dispositional options available to that court, which options included commitment to the Youth Authority. (Welf. & Inst.Code, §§ 725, 731.) He then passed to the jurisdiction of the adult court.

Following the sentencing by the superior court, which is on the conviction for robbery, the juvenile court made the order which is now under review and, in effect, found that Dennis was still amenable to rehabilitation for the offenses he previously had committed. That order appears to us to be totally inconsistent with the prior order finding him unfit. The minor is a single person and cannot be subdivided into two or more parts according to the offenses committed.

The commission of criminal offenses by a juvenile constitutes a behavior pattern which forms a basis for the juvenile court to exercise its...