People v. Browning

Decision Date06 February 1975
Docket NumberCr. 24735
Citation119 Cal.Rptr. 420,45 Cal.App.3d 125
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent. v. Frederick Allen BROWNING, Defendant and Appellant.

Ruth Ohanessian, Los Angeles under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and David R. Chaffee, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Judge.

Defendant Frederick Allen Browning appeals from a judgment sentencing him to prison after he was convicted after a court trial of first-degree murder, first-degree robbery, first-degree burglary (Counts I, II, III), felony joy-riding (Count V) and second-degree burglary (Count VI). 1


The contentions on appeal relate solely to defendant's status as a juvenile--he was 17 years old when the crimes were committed--and to evidentiary questions concerning Counts, I, II, and III (murder, robbery, burglary).

I Juvenile Court

In March 1973, a petition was filed in juvenile court charging defendant and one James Freeman with armed robbery and murder in the course of the robbery. These charges formed the basis for Counts I, II and III. After defendant and Freeman were ordered detained, a hearing was held to determine defendant's fitness to be treated as a juvenile. 2 The juvenile court commissioner was aware of the petitions alleging the offenses that turned out to be Counts V and VI.

The probation officer's report revealed a history of about 25 previous contacts with law enforcement authorities, resulting in various dispositions. Defendant was on juvenile probation, and had 'been through all of the programs that juvenile probation has to offer.' The probation officer, in effect, recommended that defendant be prosecuted as an adult.

The juvenile court found that defendant was not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law, and ordered the district attorney to prosecute defendant as an adult under the Penal Code.

Details of the juvenile court proceedings will be added in the discussion.

II Murder, Robbery, Burglary

To place in perspective defendant's challenges to evidentiary rulings in connection with Counts, I II and III, we briefly note the evidence presented against defendant at the trial.

On December 22, 1972, at about 9:00 p.m., Linn Searles was robbed and killed in his store, the Magic Wand, in Pasadena. Searles' wife, who was working downstairs in the store when the events occurred, heard someone say, 'I will take all that,' heard a crash and several shots, and ran upstairs to find her husband dying. She called the police. A .38 caliber revolver was found at the scene, probably the victim's own gun. Searles had been shot with a .22 caliber gun.

A man who lived near the store discovered the victim's wallet several days later and turned it over to the police. A man passing the store at the time of the robbery testified 3 that he was stopped at an intersection when he heard shots, looked across the street towards the Magic Wand store, and saw two men run from the store. He described the men as black, wearing dark clothing, between 5 8 and 5 10 , wearing naturals, about 17 or 18 years of age, and thin. Defendant 'might' have been one of the boys he saw running from the store.

Charles Lymon, a friend of both defendant and Freeman--tried, as noted, as a juvenile--testified that he, defendant and Freeman were just 'riding around' of the night of the robbery when they reached the vicinity of the Magic Wand store. Freeman said that the store was a good place to 'hit.' Defendant and Lymon refused, but then defendant said okay. Lymon let defendant and Freeman out of the car near the store. They wanted him to wait, but he refused. He then drove around the block and saw defendant, Freeman and a Caucasian man inside the store. Lymon saw no weapons.

Police Officer Long testified that he tape-recorded a conversation between defendant and Freeman while they were in custody in adjoining jail cells on the murder charge. Freeman said, in substance, that the police knew everything, that they knew that he and defendant had been in a blue car and that Lymon had driven off. Both Freeman and defendant discussed the fact that the victim wore a shoulder holster--information known only to the police.

Officer Long also testified that he spoke to defendant in jail, after advising him of his Miranda rights. Defendant, who lived in Pasadena, first said that he was in Santa Ana when the murder occurred and then said that he was home taking a bath.

A tape recorded conversation, diacussed below, between Officers Long and Hyzy, and one Daniel Sherrod was read, in which Sherrod said that Freeman was talking about the murder and robbery and defendant was laughing or saying nothing.


On his appeal defendant raises eight contentions. Six relate to the finding that he was unfit to be handled as a juvenile, the rest arise out of the criminal trial.

I Constitutionality of Section 707

Welfare and Institutions Code, section 707 provides, as relevant, that when a petition is filed alleging that a person under 18 years of age has violated any law or ordinance, and the minor was 16 years of age or older when the offenses were allegedly committed, 'when substantial evidence has been adduced to support a finding that . . . the minor would not be amenable to the . . . program available through . . . 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, and the court 'shall direct the district attorney . . . to prosecute' the minor under the applicable criminal law. '(T)he 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 as a juvenile.

Defendant contends that the statute is unconstitutionally vague, because it does not provide meaningful standards for the exercise of judicial discretion. This contention was resolved against defendant recently in Donald L. v. Superior Court, 7 Cal.3d 592, 601, 102 Cal.Rptr. 850, 498 P.2d 1098. Yet, defendant contends that he does not intend to resurrect the arguments of Donald L.

Rather, he wishes to focus on an issue not discussed in Donald L.: where a minor has been found to be a ward of the court under section 602, the resources available to the juvenile authorities are coextensive with those available to the Adult Authority, including transfer to an Adult Authority institution (Welf. & Inst.Code, §§ 731, 1753). The only meaningful distinction between treatment as a juvenile offender and treatment as an adult is therefore that the jurisdiction of the juvenile authorities, in a case like this, expires when the juvenile would reach the age of 21. (Welf. & Inst.Code, § 1769.) 4 Since it is difficult for experts to estimate precisely the time needed for rehabilitation (see generally, Jimmy H. v. Superior Court, 3 Cal.3d 709, 715, 91 Cal.Rptr. 600, 478 P.2d 32), it follows that any attempt by a court to estimate the time needed to rehabilitate a juvenile offender, necessarily permits 'unbridled exercise of judicial authority.'

We disagree. Donald L., in holding section 707 constitutional, discussed and relied on Jimmy H., (see 7 Cal.3d at p. 601, 102 Cal.Rptr. 850, 498 P.2d 1098), which spoke with confidence of the very infirmity cited by defendant--the ability to estimate the length of confinement needed. (3 Cal.3d at pp. 714--715, 91 Cal.Rptr. 600, 478 P.2d 32.)

II Abuse of Discretion

Defendant next contends that the juvenile court applied improper criteria in determining that he was not 'a fit and proper subject' to be dealt with under juvenile law. Defendant more or less concedes that the time required to rehabilitate a juvenile offender is a proper consideration in determining whether the offender is unfit to be treated as a juvenile. (Jimmy H. v. Superior Court, Supra, 3 Cal.3d 709, 715, 91 Cal.Rptr. 600, 478 P.2d 32.) He claims, however, that the juvenile court's determination was based on misapprehension and ignorance of the law: first, the court's concern that sections 607 and 1769 would be construed to terminate juvenile court jurisdiction at age 18: 5 and second, the juvenile court's belief that if defendant were convicted as an adult, he could nevertheless be committed to the Youth Authority and kept under its jurisdiction until his 25th birthday under section 1771 of the Welfare and Institutions Code--a belief contrary to the provisions of section 1731.5(b) of that code, if defendant were found guilty of the crimes alleged in the juvenile court petition.

If in fact the juvenile court had relied chiefly upon an erroneous belief concerning defendant's possible treatment as an adult offender, or on the court's concern that sections 607 and 1769 would be construed to read '18 years,' rather than 21 years, defendant's contention would be viable. (See Jimmy H. v. Superior Court, Supra, 3 Cal.3d 709, 712, 716, 91 Cal.Rptr. 600, 478 P.2d 32.) However, the record does not support his position.

The matter of defendant's fitness was submitted to the court on the basis of the testimony of Mrs. Searles and Lymon, given at the pre-detention hearing; statements made by defendant's father, defendant's entire juvenile court file and the probation officer's report mandated by section 707. That report reviewed defendant's many contacts with the police and the juvenile court system--about 25 since May 1966. It related that all 'efforts to rehabilitate the minor to the community have been to no avail since he obviously has continued his delinquent behavior.' Further: 'It is this officer's opinion that at this point minor is badly in need of a long term...

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