People v. Arauz

• Decision Date: 17 March 1970
• Docket Number: Cr. 3593
• Citation: 85 Cal.Rptr. 266,5 Cal.App.3d 523
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bernardino ARAUZ, Defendant and Appellant.

Page 266

85 Cal.Rptr. 266

5 Cal.App.3d 523

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bernardino ARAUZ, Defendant and Appellant.

Cr. 3593.

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

March 17, 1970.

[5 Cal.App.3d 526] John Joseph McCabe, Jr., under appointment by the Court of Appeal, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen. and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

In an indictment returned by the Grand Jury of San Diego County, appellant, Bernardino Arauz, was charged in Count I with the murder of John McKeen Bright, Jr. (Pen.Code, sec. 187), and in Count II with attempted robbery of George Ruiz (Pen.Code, secs. 664 and 211). It also charged he was armed with a deadly weapon, a .32 caliber pistol, at the time of the attempted robbery. Appellant entered a plea of not guilty to both counts. A jury convicted him of murder and attempted robbery, fixed the degree in each instance as first degree and found he was armed with a deadly weapon at the time of the attempted robbery. He was sentenced to prison on each count for the term prescribed by law. Execution of sentence on Count II (attempted robbery) was stayed pending appeal and service of sentence under Count I (murder), the stay to become permanent upon completion of that sentence. We treat his appeal as an appeal from the judgment of conviction.

The facts are not in dispute. On May 28, 1968, at approximately 10 p.m., appellant entered a liquor store located at 2190 National Avenue, San Diego, California. He carried a pistol and his face and head were covered by a black turtle-neck sweater made into a hood. He stated to Mr. George Ruiz, who owned and operated the store, 'It's me again.' Ruiz went to the cash register. Before he could remove any money, his dog charged appellant who turned and fled. Near the door, he ran into Jack Bright, a customer who had just entered the store. Bright grabbed appellant and a struggle ensued during which Ruiz' dog partially unmasked appellant. The gun discharged, but Bright, who was fatally wounded, continued to hold on to appellant. Both Bright and appellant fell through the front door and onto the sidewalk where appellant extricated himself and fled down the street.

Ruiz summoned the police by telephone. When they arrived, he identified appellant as the robber. Ruiz had known appellant for approximately eight years, during which time appellant had occasionally done odd jobs for him. Sergeant Garcia of the San Diego Police Department went to appellant's home and arrested him. The hood, other blood-stained clothing and the pistol used in the robbery were found hidden in a rubbish heap in a vacant lot adjacent to appellant's home.

Appellant was sixteen years of age at the time of the alleged crimes. Originally, a petition was filed on his behalf in the juvenile court under section 602 of the Welfare and Institutions Code. After a hearing held pursuant to section 707 of that Code, a San Diego Superior Court judge, sitting as a judge of the juvenile court, determined appellant should not be treated as a juvenile in connection with the charges pending against him, but should be held to answer to those charges as an adult. Specifically, the court found appellant 'to be an adult' and ordered him 'certified to the Grand Jury for indictment on the charges of the petition.' It also ordered the section 602 petition dismissed upon the filing of the indictment. No specific written finding was made in the minutes, or elsewhere, that appellant was not a fit and proper person to be dealt with under the Juvenile Court Law.

Appellant asserts the superior court did not properly have jurisdiction to try him because of errors and irregularities in the juvenile hearing held pursuant to Welfare and Institutions Code, section 707. The main thrust of his argument is the court lacked jurisdiction to try him as an adult because the court in juvenile hearing failed to make a specific finding he was not a fit subject for treatment under the juvenile court law.

Welfare and Institutions Code, section 707 provides in part:

'* * * 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, * * * 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 * * *' (Emphasis added.)

The statute uses the permissive 'may' as opposed to the mandatory 'shall' with reference to the finding the minor is not a fit and proper subject to be dealt with under juvenile court law and the notation of such finding in the court's minutes. (See Welf. & Inst.Code, sec. 15; see also People v. Aadland, 193 Cal.App.2d 584, 589--592, 14 Cal.Rptr. 462 and People v. Balt, 78 Cal.App.2d 171, 172--173, 177 P.2d 362, holding 'may' to be permissive and not mandatory under other provisions of the juvenile court law.)

"When the meaning to be given a particular term is prescribed by the Legislature in enacting a statute, that meaning is binding upon the courts." (Department of Social Welfare v. Wingo, 77 Cal.App.2d 316, 319, 175 P.2d 262, 264).

Since the Legislature in section 15 of the Welfare and Institutions Code specifically provided the word 'may' is premissive, its later use of the word 'may' in section 707 must be given that effect. Accordingly, the juvenile court's failure to make an express finding appellant was not a fit and proper subject for consideration and treatment under the juvenile court law was not error which deprived the superior court of jurisdiction to try him as an adult.

While we have held the juvenile court was not required by Welfare and Institutions Code, section 707 to make an express finding appellant, as a minor over 16 years of age, was not a fit and proper person for treatment under the juvenile court law before it could order him prosecuted as an adult, we do not wish to be understood as saying the court need not in fact have made that determination. It is only when the court concludes upon substantial evidence the minor is not amenable to care and treatment under the program available through juvenile court facilities, the court is empowered to order an adult prosecution. (Welf. & Inst. Code, sec. 707.) So long as the evidence adduced at the hearing supports such a finding, it may be properly implied from the court's order he be prosecuted as an adult. (See People v. Yeager, 55 Cal.2d 374, 387, 10 Cal.Rptr. 829, 359 P.2d 261.)

The transcript of the juvenile hearing has been made a part of the record on appeal. Testimony by appellant's probation officer revealed his past law violations as well as his previous failure to respond to the rehabilitative procedures and facilities provided by the juvenile court. At the time of the alleged offenses, appellant was on parole from the California Youth Authority. Our review of the record of that hearing, including the statements made by the judge, not only convinces us substantial evidence was presented to support a finding appellant was not a fit and proper person to be dealt with under juvenile court law, but also satisfied us the judge in fact made such a determination even though he failed to express it in a specific written finding.

Welfare and Institutions Code, section 707 also provides:

'The court shall cause the probation officer to investigate and submit a report on the behavorial patterns of the person being considered for unfitness.'

Appellant asserts this provision operates to prejudice the minor rather than protect him is in violation of the rule established in In re Corey, 266 Cal.App.2d 295, 72 Cal.Rptr. 115, reiterated in In re Steven F., 270 A.C.A. 643, 75 Cal.Rptr. 887. Corey construed the requirements of Welfare and Institutions Code, sections 701, 702 and 706, and did not deal with section 707. It held it was prejudicial and improper for the judge to read the probation officer's 'social report,' which contained matter both inadmissible and prejudicial on the issue of jurisdiction (i.e., on the question of whether the minor had committed the offense alleged in the petition) until he had determined the question of jurisdiction (i.e., made a finding the allegations of the petition were true).

We find no inconsistency between the provision in section 707 permitting the consideration and use of information concerning the minor's behavioral background in a hearing to determine whether he is to be handled as a juvenile or as an adult, and the rule established in Corey, forbidding the consideration of such information in a hearing to determine whether the minor in fact committed the offense alleged in the petition. The two hearings have entirely different purposes. While the rule in Corey might well operate to prevent a judge who has read and considered the probation officer's report prepared and submitted pursuant to section 707, from later presiding at the jurisdictional hearing, should continued juvenile consideration be ordered, we are not here confronted with that problem. The court ordered appellant treated as an adult under the general criminal law. The judge who conducted the hearing and made the order did not participate in his trial. The rule in Corey has no application to the instant case.

In his brief, appellant complains of other errors and irregularities in connection with his juvenile hearing which he has not supported with either argument or authorities. While not required...