Javier A., In re

• Decision Date: 31 August 1984
• Docket Number: Cr. 43708
• Citation: 159 Cal.App.3d 913,206 Cal.Rptr. 386
• Court: California Court of Appeals Court of Appeals
• Parties: In re JAVIER A., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. JAVIER A., Minor, Defendant and Appellant.

Page 386

206 Cal.Rptr. 386

159 Cal.App.3d 913

In re JAVIER A., A Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. JAVIER A., Minor, Defendant and Appellant.

Cr. 43708.

Court of Appeal, Second District, Division 7, California.

Aug. 31, 1984.

As Modified Sept. 28, 1984.

Hearing Denied Nov. 21, 1984.

John K. Van de Kamp, Atty. Gen., Howard J. Schwab, and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

This case raises two issues. First, did the seizure of a photograph belonging to a non-defendant taint subsequent evidence obtained with the assistance of the photograph. Secondly, may a juvenile be constitutionally denied a right to jury trial in a delinquency proceeding where his wardship and consequent loss of freedom depends upon proof beyond a reasonable doubt that he committed a specified felony.

We reluctantly affirm. Although we find the motion to suppress was properly refused, we also conclude appellant was denied his "inviolate" right to jury trial under article I, section 16 of the California Constitution. Only because of the compulsion of Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321,

369 P.2d 937, do we refrain from reversing and remanding for a new trial where Javier would enjoy the right to trial by jury. Instead we can only urge the Supreme Court to reconsider the 60-year-old decision which upheld the constitutionality of denying jury trials in juvenile proceedings.

I. FACTS AND PROCEEDINGS BELOW

Certain facts are undisputed. Shortly before 9 p.m. on August 17, 1982, three members of the "40th Avenue" juvenile gang were walking near the intersection of Jefferson and 35th Street in Los Angeles. A yellow Ford Torino sped into view and halted a few feet from the three gang members. A rifle emerged from the driver's side of the car. Three shots rang out. One of the gang members, Alberto "Smiley" Hermosillo, clutched his side and fell to the ground, wounded.

In dispute is the identity of the person who fired the shots. The investigation produced its first apparent breakthrough about an hour after the incident. Detective Lane heard about a young woman residing at a certain address who was the girlfriend of someone suspected in a recent shooting. Lane and other officers went to the address and learned the woman's name was Sylvia Franco. She was not there but staying at another residence. While at the first location, however, they obtained consent to search an adjacent apartment. During this search they found a photo album belonging to Franco. Upon reviewing the album, they found a picture of Franco and the defendant, Javier A., "The Puppet."

This photograph was given to Officer Randy Allen Garcia. He was assigned to CRASH, a police unit which monitors gang activities. Officer Garcia interviewed and obtained a signed statement from one of the victim's companions, Mario Rocha. According to this statement Rocha identified the defendant, Javier A., from this snapshot as the person who shot at him and his friends from the yellow Torino.

Detective Lane interviewed Sylvia Franco. According to the detective's version of what was said, Franco revealed she had been "jumped" a few weeks earlier by some members of the 40th Street Gang. Franco then reportedly said her boyfriend, Javier A., told her the day before the shooting he had been looking for the "guys from 40th Street" but had not seen them yet. (At the trial, Franco claimed she had been referring to her brother not the defendant during her conversation with Detective Lane.)

Not long after talking with Sylvia Franco, Detective Lane also interviewed Blanca Orozco. He showed her the photograph from the album. She identified herself, Franco, and Javier in the picture. According to Detective Lane's version, Orozco told him Franco said her boyfriend "Puppet" had shot "Smiley." Purportedly Orozco also said Franco had warned her if either of them talked to the police they would be considered "rats" among the "Al Capone Gang." (At the trial, both Franco and Orozco denied Franco had told Orozco the defendant Javier was the one who shot "Smiley." However, Orozco backed away from this denial somewhat during cross-examination.)

On August 26, 1982, slightly over a week after the attempted murder, Detective Lane arrested Javier. After his arrest Javier signed a written statement and gave a tape recorded statement to the police. In these statements, Javier admitted he and some of his friends had driven into the "40th Street" neighborhood in his father's yellow Ford Torino. They were armed with a .22 caliber rifle Javier had obtained. The purpose was to avenge his girl friend who had been beaten up in an attempted rape by members of the "40th Street" gang. Javier recognized "Smiley from 40th Street" among a group of people walking down Jefferson Boulevard. According to his statement to the police, Javier said, "Stop the car so I can shoot them." He then pointed the rifle out of the car The People filed a petition under Welfare and Institutions Code section 602 charging Javier, then age 15, with three counts of attempted murder. (Pen.Code, §§ 187, 664.) It was further alleged he used a firearm (Pen.Code, § 12022.5) and intentionally inflicted great bodily injury. (Pen.Code, § 12022.7.) Javier moved to suppress evidence under Welfare and Institutions Code section 700.1. This motion was denied. Javier also requested a jury trial. This request likewise was denied.

window at "Smiley" and fired approximately four shots. ¹

After a non-jury trial the court found the petition true as charged except for the great bodily injury allegation. The court then declared Javier a ward of the court and committed him to the California Youth Authority for a maximum of 15 years and 8 months.

II. APPELLANT'S MOTION TO SUPPRESS EVIDENCE UNDER WELFARE & INSTITUTIONS CODE SECTION 700.1 WAS PROPERLY DENIED.

Appellant argues his statement to the police should have been excluded as the fruit of an illegal search and seizure. We disagree. We conclude the trial court did not err in denying the appellant's motion to suppress because (1) there was no illegal search and seizure of the photograph album under either the constitutional standard as made applicable to the states in Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, or under California's vicarious exclusionary rule and (2) furthermore even if the photograph album were illegally obtained any fruits thereof were admissible under the "doctrine of inevitable discovery."

Preliminarily, in resolving whether the motion to suppress was properly denied, the reviewing court may "[o]nly [consider] the evidence before the trial court when it was called upon to rule on the motion ...." (People v. Gibbs (1971) 16 Cal.App.3d 758, 761, 94 Cal.Rptr. 458.) The parties stipulated to what amounted to a distilled version of the testimony presented at the Dennis H. hearing, ² not the actual testimony. Therefore, the analysis of the merits of appellant's arguments must be limited to the evidence presented at the motion to suppress. These stipulated facts are:

(1) The investigating officers received information a young woman at a specified address was an associate of a person suspected in a recent shooting; (2) at that location the officers determined the young woman was staying with a friend or relative by marriage; (3) the officers made a consensual search of an adjacent apartment; (4) during the search the officers found a photo album; (5) the officers were informed the album did not belong to the person who consented to the search, but in fact belonged to the young woman; (6) the young woman never consented to the search and removal from the apartment of her photo album; (7) the contents of the photo album were subsequently reviewed and shown to witnesses; (8) Javier was identified from the photo album as the boyfriend of the young woman, Sylvia Franco; (9) Sylvia told detectives Javier was her ex-boyfriend and he had told her a couple days before that he had been looking for dudes from the 40th Street gang so he could get even with them for assaulting her sometime earlier and (10) this was the first time officers learned Javier's true and correct name. Based on these facts, the trial court ruled that under Proposition 8 enacted in June 1982 appellant had no standing to assert a third party's Fourth Amendment rights against an unreasonable

search and seizure and the doctrine of inevitable discovery was applicable.

A. There Was No Unreasonable Search and Seizure of Ms. Franco's Photo Album.

The Fourth Amendment of the United States Constitution and article I, section 13 of the California Constitution both guarantee the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. To effectuate these fundamental constitutional guarantees, the Supreme Court has held that "evidence seized during an unlawful search could not constitute proof against the victim of the search." (Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Wong Sun v. United States (1962) 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441; Mapp v. Ohio, supra (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, emphasis supplied.) The United States Supreme Court only excludes evidence unlawfully obtained from the defendant himself not that resulting from a search of another person. (Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.) However, in People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855, the California Supreme Court adopted the so-called vicarious exclusionary rule. This allows a defendant to attack the search and seizure of the person or property of a third party. The rationale for expanding the exclusionary rule beyond the scope mandated by the United States Supreme Court was to enhance the deterrent effect of the...