People v. Brown

• Decision Date: 29 December 1970
• Docket Number: Cr. 8034
• Citation: 13 Cal.App.3d 876,91 Cal.Rptr. 904
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joe BROWN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 904

91 Cal.Rptr. 904

13 Cal.App.3d 876

PEOPLE of the State of California, Plaintiff and Respondent, v. Joe BROWN, Defendant and Appellant.

Cr. 8034.

Court of Appeal, First District, Division 4, California.

Dec. 29, 1970.

Rehearing Denied Jan. 15, 1971.

Hearing Denied Feb. 24, 1971.

Herbert W. Yanowitz, San Francisco, for defendant and appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., of Cal., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

Joe Brown appeals from a judgment entered after a jury found him guilty of murder (Pen.Code, § 187) in the killing of a San Francisco bus driver. Brown and two alleged co-perpetrators, Lewis and McFarland, were brought before the juvenile court upon allegations that they came within the court's jurisdiction by reason of having committed the homicide. Before the jurisdictional hearing began, the probation officer indicated that, 'if the allegations of the petition were found to be true, a motion would immediately be made to transfer (appellant and one other boy) to adult court for further proceedings pursuant to Welfare and Institutions Code section 707.' The third boy, less than 16 years old, was too young to be subject to transfer.

At a consolidated hearing as to all three boys, evidence was introduced tending to show that appellant committed the acts alleged in the petition. A probation report was presented to the court; it stated the conclusion and recommendation that appellant was 'not a fit and proper subject' of the juvenile court, and should be transferred to the superior court for trial as an adult. At the close of the evidence, the court declared that 'each of (the juveniles) is a person described in Section 602 of the Welfare and Institutions Code,' and went on to declare that appellant 'would not be amenable to the care, treatment and training programs of the Juvenile Court.' No findings were entered in the minutes, as required by Welfare and Institutions Code, section 702 (see In re Steiner (1955) 134 Cal.App.2d 391, 285 P.2d 972), to support a determination that appellant came under the juvenile court's jurisdiction. Instead, a finding was entered in the minutes under section 707, determining that appellant was not a proper subject for juvenile court treatment. Thereupon the court directed the commencement of criminal proceedings against appellant.

Appellant was subsequently indicted; his plea of once in jeopardy failed, and a jury found appellant guilty of murder in the first degree. The present appeal is from the ensuing judgment of life imprisonment.

Appellant contends that jeopardy attached within the meaning of the Fifth and Fourteenth Amendments of the United States Constitution when the court entertained proceedings on the juvenile court petition, and that appellant's later prosecution as an adult was therefore impermissible as putting him in jeopardy for a second time. The argument is that Welfare and Institutions Code, section 707 is unconstitutional on its face because it specifically authorizes such proceedings.

Although the double jeopardy clause of the Fifth Amendment has been held a 'fundamental ideal in our constitutional heritage,' applicable to state proceedings by virtue of the due process clause of the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707, 716), the concept of jeopardy traditionally applied only as to successive criminal prosecutions. (Helvering v. Mitchell (1938) 303 U.S. 391, 398--399, 58 S.Ct. 630, 82 L.Ed. 917; Gollaher v. United States (9th Cir. 1969) 419 F.2d 520, 524; See People v. Reynoso (1966) 64 Cal.2d 432, 50 Cal.Rptr. 468, 412 P.2d 812; People v. Levy (1957) 151 Cal.App.2d 460, 463, 311 P.2d 897.)

In People v. Silverstein (1953) 121 Cal.App.2d 140, 262 P.2d 656, 657, the Court of Appeal Held that since the purpose of the juvenile court laws is 'to save minors from the rigors of the criminal law' and to provide beneficial and corrective training, and since double jeopardy has strict application to criminal prosecutions, 'the constitutional provisions against double jeopardy do not apply to this case, for the reason that the proceeding in the Juvenile Court was not a criminal prosecution.' (Id. at pp. 142--143, 262 P.2d at p. 657.) It may be questioned whether the Silverstein analysis remains valid in light of Re Gault (1966) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. There the United States Supreme Court declared that, for purposes of determining whether the fundamental requirements of due process apply to a juvenile court's jurisdictional hearing, '(a) proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.' (387 U.S. at p. 36, 87 S.Ct. at 1448.) The court reviewed the beneficial and noncriminal purposes of the juvenile court laws which were mentioned in Silverstein and concluded, nevertheless, that '(t)here is no material difference in this respect between adult and juvenile proceedings of the sort here involved.' (387 U.S. at p. 36, 87 S.Ct. at p. 1448.) Also see Re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 where it was held that the requirement of proof beyond a reasonable doubt (which, like double jeopardy, had formerly been applied only to criminal proceedings) applied to the juvenile jurisdictional hearing. The court again reviewed the same Parens patriae ideas relied on in Silverstein, but concluded that '(w)e made clear in (Gault) that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for '(a) proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.'' (397 U.S. 358, at 365, 90 S.Ct. 1068, at 1073, 25 L.Ed. at 376.)

These expressions by the United States Supreme Court raise grave doubts as to the vitality of the Silverstein approach. (Cf. United States v. Dickerson (D.C.1958) 168 F.Supp. 899, reversed on other grounds, United States v. Dickerson, 106 U.S.App.D.C. 221, 271 F.2d 487; Anonymous v. Superior Court (1960) 10 Ariz.App. 243, 457 P.2d 956; Tolliver v. Judges of Family Court (1969) 59 Misc.2d 104, 298 N.Y.S.2d 237; Collins v. State (Tex.Civ.App.1968) 429 S.W.2d 650.)

Assuming the applicability to juvenile proceedings of the constitutional prohibition against double jeopardy, the effect thereof on the proceedings against appellant must be examined. We note preliminarily that learned authorities have suggested that '(o)nce the adjudicatory hearing begins, the child is in fact 'in jeopardy,' and to transfer him to criminal court for another trial on the facts alleged in the petition would constitute a deprivation of due process of law. (Citation.)' (National Council on Crime and Delinquency, Council of Judges, Model Rules for Juvenile Courts (1969) Rule 9 and Comment, p. 22; see also Sheridan, William H., Family and Juvenile Court Acts (1969) U.S. Govt. Printing Office, Washington, Children's Bureau Publication 472, p. 31; Handbook of the National Conference of Commissioners on Uniform State Laws, Uniform Juvenile Court Act (1968) § 34, subd. (a), p. 270.) We have concluded, however, that the California statute does not permit double jeopardy in a case such as ours.

Under Welfare and Institutions Code, section 701, the court is first to consider, at the jurisdictional hearing, 'only the question whether the minor is a person described by (section) 602.' It is provided by section 702 that '(a)fter hearing such evidence, the court shal make a finding, Noted in the minutes of the court, whether or not the minor is a person (coming within the court's jurisdiction).' (Emphasis added.) Section 702 (and later sections) go on to provide for further and separate proceedings to decide upon placement after adjudication has occurred. (Cf. In re Corey (1968) 266 Cal.App.2d 295, 72 Cal.Rptr. 115.) It is then provided in section 707 (in language which might sequentially be better placed before the dispositional provisions of section 702) that '(a)t any time During a hearing upon a petition * * * 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 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 (the Juvenile Court Law) * * *.' (Emphasis added.) Thereupon, criminal proceedings are to be commenced. When the statutes are so compared, it is seen that the Legislature has provided a channel of adjudication which may be described as having a downstream fork at the point where unfitness may be determined under section 707. That determination is to be made not after juvenile court jurisdiction has been established bur During the jurisdictional hearing. Therefore the consequence of the determination, when viewed before the commencement of a proceeding, is not to permit criminal proceedings to be brought against one who has already suffered deprivation of liberty as a result of a...