Gary J., In re
| Citation | 95 Cal.Rptr. 185,17 Cal.App.3d 704 |
| Decision Date | 19 May 1971 |
| Docket Number | Cr. 19956 |
| Court | California Court of Appeals |
| Parties | In the Matter of Gary Steven J_ _, On Habeas Corpus. |
Donald W. Pike, Beverly Hills, Peter Bull, San Francisco, for petitioner; Robert L. Walker, San Francisco, of counsel.
Joseph P. Busch, Jr., Dist. Atty., Los Angeles, Harry Wood and Donald J. Kaplan, Deputy Dist. Attys., for real party in interest.
On February 9, 1971, a petition was filed in the Juvenile Court of Los Angeles County, alleging that the relator herein--Gary Steven J.--was a person described by section 602 of the Welfare and Institutions Code, 1 in that he had committed an act which, if committed by an adult, would constitute a violation of section 211 of the Penal Code (robbery). After a detention hearing, the minor was detained pending a hearing on the petition. A 'jurisdictional' hearing, pursuant to section 701, 2 was held on March 1, 1971, resulting in a finding that the allegations of the petition were true and that the minor was a person described by section 602. The proceedings were continued for a dispositional hearing, pursuant to section 702. 3 At that hearing, the court announced its intention to find, pursuant to section 707, that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, and that the court intended, under that section, to dismiss the petition and direct that the minor be prosecuted as an adult in the superior court. After an adjournment sought by the minor's counsel, such an order was made. The present proceeding is designed to test the validity of the order; 4 we conclude that it was validly made and not subject to attack herein.
It is not here contended that the order was not based on evidence sufficient to support the findings required by section 707. The contentions are:
(1) That, as a matter of statutory construction, the order under section 707 must be made during the pendency of the 701 hearing and that, the 701 hearing having terminated, statutory power to send the juvenile to superior court for a criminal trial had lapsed; and
(2) That, at whatever stage the statute permits an order such as the one herein involved to be made, constitutional rights affording protection against double jeopardy prevent such action at any time after the 701 hearing has begun.
We conclude that the statutory scheme was followed in the case at bench. Section 707 reads as follows:
'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, or if, at any time after such hearing, a minor who was 16 years of age or older at the time of the commission of an offense and who was committed therefor by the court to the Youth Authority, is returned to the court by the Youth Authority pursuant to Section 780 or 1737.1, 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 or, if a prosecution has been commenced in another court but has been suspended while juvenile court proceedings are held, shall dismiss the petition and issue its order directing that the other court proceedings resume.
'In determining whether the minor is a fit and proper subject to be dealt with under this chapter, the offense, in itself, shall not be sufficient to support a finding that such minor is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.
'A denial by the person on whose behalf the petition is brought of any or all of the facts or conclusions set forth therein or of any inference to be drawn therefrom is not, of itself, sufficient to support a finding that such person is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.
'The court shall cause the probation officer to investigate and submit a report on the behavioral patterns of the person being considered for unfitness.'
Although sections 701 and 702 clearly contemplate that the determination of wardship, and the determination of treatment shall be separately considered; and, except in cases where the probation officer has anticipated the jurisdictional finding and prepared his social study in advance, that they will be made on different days, still the language of both sections speaks of 'the hearing and, in section 702, of a continuance of 'the' hearing. We conclude that the statute did not intend, nor contemplate, that the 707 consideration should necessarily be part of a 701 hearing.
In fact, the whole philosophy of the present juvenile court law is counter to the interpretation now urged. The purpose of requiring separate consideration of wardship and of disposition was to prevent the court from being affected, at the first stage, by evidence of the minor's character not relevant to determination of his guilt. (In re Gladys R. (1970) 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127.) To require or even permit the introduction at the 701 hearing of the kind of data on which a 707 determination is made would violate both the letter and the spirit of the statute. 5
We are aware of the language in People v. Brown (1970) 13 Cal.App.3d 876, 91 Cal.Rptr. 904, which seems to hold that the 707 finding must be made during a 701 hearing and prior to the conclusion of that stage. But that language is dicta; the 707 finding had been made during the 701 hearing; no objection was made to the consideration at that point of the evidence leading to the 707 decision. Under these circumstances, decision as to the point herein involved was not necessary for the decision of the case and, for the reasons above set forth, we are not inclined to follow it.
We conclude also that the constitutional rights against double jeopardy were not violated by the procedure herein adopted. It is clear that, at the time when the present juvenile court law was under consideration, it was not thought that the concept of double jeopardy, as applied to adults in criminal cases, was applicable to juvenile court proceedings. In fact, the recommendation of the Special Study Commission, which drafted the proposals forming the basis for the 1961 revision, said:
'Prohibit minors from being subject to criminal prosecution based on the facts giving rise to a juvenile court petition once final judgment has been made in the juvenile court, except that a finding of unfitness in the juvenile court shall not constitute final judgment in the terms of this recommendation.
'Comments:
'There are several cases on record where juveniles have been tried and sentenced in a criminal court for an offense upon which final judgment was previously made in the juvenile court. Such a course of action, while rare, is unfortunately permissible under the present juvenile court law.
'In an adult case, this is prohibited because it would constitute placing the individual in double jeopardy. The Commission sees no valid reason why juveniles, as well, should not be protected from such proceedings.
That recommendation is now embodied in section 606 of the act.
Ten years later, in Richard M. v. Superior Court (1971) 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664, the Supreme Court determined that, in view of decisions of the United States Supreme Court which had been rendered after the present juvenile court law was adopted: '* * * (i)n proceedings before the juvenile court juveniles are entitled to constitutional...
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