People v. Allgood

• Decision Date: 16 January 1976
• Docket Number: Cr. 13277
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Edward ALLGOOD, Defendant and Appellant.

Page 666

126 Cal.Rptr. 666

54 Cal.App.3d 434

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Edward ALLGOOD, Defendant and Appellant.

Cr. 13277.

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

Jan. 16, 1976.

Hearing Denied March 10, 1976.

Sheldon Portman, Public Defender, Richard Such, Deputy Public Defender, County of Santa Clara, San Jose, for defendant and appellant; Michael S. Wald, Stanford, of counsel.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Harriet Wiss Hirsch, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant, having secured a certificate of probable cause to do so (Pen.Code, § 1237.5, Cal.Rules of Court, rule 31 d), has appealed from a judgment of conviction under which he was committed to the California Youth Authority (Welf. & Inst. Code, § 1731.5) following his plea of guilty to murder in violation of section 187 of the Penal Code, fixed as of the second degree (§ 189) by stipulation. ¹ A minor, some seven weeks under the age of 18 at the time of the commission of the offense, he seeks review of two orders of the juvenile court, which respectively, first, found him not a fit and proper subject to be dealt with under the juvenile court law and directed the district attorney to prosecute him under the applicable criminal statute, as provided in section 707 of the Welfare and Institutions Code, ² and, second, denied his petition for a rehearing on that decision. He also seeks review of an order of the sentencing court which denied his petition for remand to the juvenile court.

On review of the judgment from which the appeal has been taken we may review the rulings of the court which lead to that judgment. (Pen.Code, § 1259.) We conclude that there was no error or abuse of discretion in denying defendant's motion to remand the proceedings to the juvenile court.

We entertain some doubt as to whether the earlier orders of the juvenile court may be reviewed on this appeal from the judgment of the superior court in a regular criminal proceeding. It would appear that review of the juvenile court's orders would more properly be by a petition for extraordinary writ, if an appeal therefrom was not available or was an inadequate remedy. (See People v. Browning (1975), 45 Cal.App.3d 125, 140--141, 119 Cal.Rptr. 420; In re Brekke (1965), 233 Cal.App.2d 196, 197--200, 43 Cal.Rptr. 553 (hg. den. May 19, 1969); and Cal. Juvenile Court Practice (Cont.Ed.Bar 1968) § 140, pp. 128--129. Cf. Agnew v. Superior Court (1953), 118 Cal.App.2d 230, 233--234, 257 P.2d 661.) ³ In fact, following the denial of his motion in the superior court criminal proceedings, the defendant did seek review of all three orders by a petition for writ of mandate and for a writ of prohibition filed with this court (No. 1 Civ. 34288). That petition was denied December 19, 1973, and a hearing was denied by the Supreme Court of California on January 3, 1974. Thereafter, defendant entered his plea of guilty (see fn. 1 above). In order to bring before the court the record of the proceedings before the juvenile court, we have augmented the record on this appeal by including the exhibits filed in connection with the earlier petition for relief. We would be disposed to let the matter rest as beyond the scope of this appeal were it not for the fact that defendant now claims that he was deprived of the effective assistance of counsel at the original hearing in the juvenile court, and the additional consideration that the Attorney General has not questioned the defendant's right to review, but has replied to the issues raised in defendant's brief, and joined with him in referring to the earlier record (see fn. 3 above). Since refusal to review on procedural grounds would only relegate the defendant to a further application for extraordinary relief--this time for ineffective counsel in the original juvenile court proceedings--we have reviewed defendant's contentions concerning the alleged errors of the juvenile court and find them to be without merit. The judgment must be affirmed.

I

The charges in this case arise out of the defendant's admitted strangulation of his mother on October 2, 1973. On October 5, 1973, a petition was filed in the juvenile court alleging that defendant, who was born November 20, 1955, came within the provisions of section 602 of the Welfare and Institutions Code in that he had violated section 187 of [54 Cal.App.3d 441] the Penal Code. On October 25, 1973, following a hearing in which the defendant was represented by a retained attorney, the juvenile court made the original order of which complaint is made. The following day a complaint was filed in a municipal court charging the defendant with murder, and he was arraigned on that offense. Before further proceedings were taken, an indictment charging the same offense was returned by the grand jury. The defendant was arraigned on that indictment on November 14, 1973. A plea of not guilty was entered by the court on his behalf, the public defender was appointed to represent him, in place of his retained attorney who had withdrawn from the case, and the matter was set for jury trial in January 1974.

The same day the defendant filed in juvenile court his motion to set aside the finding embodied in that court's earlier order, and for a rehearing on that matter. On November 16, 1973, the juvenile court denied that motion, giving rise to the second order of which defendant complains.

On November 23, 1973, the defendant filed in the superior court criminal action his motion for certification to the juvenile court pursuant to section 604 of the Welfare and Institutions Code. ⁴ A hearing was held on November 30, 1973, and the motion was denied on December 3, 1973. Thereafter, defendant took the unsuccessful proceedings for review which have been referred to above.

Examination of the provisions of section 604 reflects that it requires any court (other than the juvenile court) to immediately suspend proceedings upon an accusatory pleading when it appears to the satisfaction of the judge that the person charged was under the age of 18 years at the date the offense is alleged to have been committed. No discretion is involved; upon making such a finding and suspension the proceedings must be certified to the juvenile court. (See People v. Murphy (1963), 59 Cal.2d 818, 833--834, 31 Cal.Rptr. 306, 382 P.2d 346; and People v. Yeager (1961), 55 Cal.2d 374, 385--387, 10 Cal.Rptr. 829, 359 P.2d 261.) Proceedings cannot be resumed or commenced 'unless the juvenile court has found that the minor is not a fit subject for consideration under the Juvenile Court Law and has ordered that proceedings under the general law resume or be commenced.' It is apparent that the provisions of section 604 must be construed with those of section 707. When one does so it is obvious that proceedings under section 604 are not applicable when the juvenile court has already ordered that proceedings under the general law be commenced.

Defendant asserts that if it is shown to the criminal court judge that the fitness hearing in the juvenile court was inadequate on its factual basis and in its legal premise, there is no impediment to his certifying the case back to the juvenile court for a proper hearing. He acknowledges that there is no precedent for recertifying the proceedings to the juvenile court under the provisions of section 604. He claims the court should be able to do so under an 'inherent power . . . to conform its procedures to the fundamentals of due process.' (See People v. Clark (1968), 264 Cal.App.2d 44, 46, 70 Cal.Rptr. 324, 325.) He asserts that a review of the order of the juvenile court is no different from a permitted request for reconsideration in the same court. (See Code Civ.Proc., § 1008.) The latter contention disregards the distinction between the juvenile court and the superior court. Section 782 of the Welfare and Institutions Code, not section 604 of that code or section 1008 of the Code of Civil Procedure, governs the right to rehearing in the juvenile court. There is no need to invent new procedural remedies for review of a fitness order of the juvenile court. The aggrieved party has a right to review by a petition for an extraordinary writ. (See fn. 3 above, and accompanying text.) In fact defendant ultimately unsuccessfully sought such relief. He was not denied due process of law.

In People v. Browning, supra, it was contended that the validity of the finding of unfitness could be reviewed by a motion to dismiss the proceedings under section 995 of the Penal Code because the minor was not 'legally committed.' The court concluded, 'It would be entirely inappropriate for a magistrate to question the validity of a juvenile court's finding of unfitness under section 707. How a grand jury would even start to go about it, we cannot imagine. Clearly then a motion to set aside an indictment or an information made under section 995 of the Penal Code could not reach an improper or invalid juvenile order. ( ) Quite apart from these procedural niceties, it would not be in the interest of speedy and orderly administration of criminal justice to sanction an additional avenue of review of juvenile court orders under section 707, by holding that the superior court has some non-statutory power to dismiss on the ground that it thinks the juvenile court acted illegally. (Citation.) In case of continued disagreement we would eventually be called on to arbitrate the squabble. No such detour to this court is called for. The law seems plain enough. Although a finding of unfitness is not appealable (citation), it is reviewable by writ. (Citations.) Further, the People do not question that such a finding may be reviewed on an appeal from an ensuing criminal conviction. Two avenues of review are enough.' (45 Cal.App.3d at p....