People v. Chi Ko Wong

• Decision Date: 29 December 1976
• Docket Number: Cr. 19351
• Citation: 18 Cal.3d 698,135 Cal.Rptr. 392,557 P.2d 976
• Court: California Supreme Court
• Parties: , 557 P.2d 976 The PEOPLE, Plaintiff and Respondent, v. CHI KO WONG, Defendant and Appellant.

Page 392

135 Cal.Rptr. 392

18 Cal.3d 698, 557 P.2d 976

The PEOPLE, Plaintiff and Respondent, v. CHI KO WONG, Defendant and Appellant.

Cr. 19351.

Supreme Court of California, In Bank.

Dec. 29, 1976.

Dennis Roberts, San Francisco, James Uyeda, Harvey Horikawa, Los Angeles, Uyeda & Horikawa, Los Angeles, Minami, Tomine & Lew, Dale Minami, Garrick Lew, Ken Kawaichi and Yonemura, Yasaki & Kawaichi, Oakland, for defendant and appellant.

Bach & Bach, Maxim N. Bach, Chico and Russell T. Kubota, Fresno, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline, Owen Lee Kwong and Shunji Asari, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Chi Ko Wong appeals from a judgment upon jury convictions of first degree murder (Pen.code, §§ 187, 189) and first degree robbery (Pen.Code, §§ 211, 211a), and findings that he had used a firearm in the commission of each of the offenses. ¹

Defendant was a juvenile at the time of the commission of the offenses and petitions were intially filed in the juvenile court seeking his adjudication as a ward of that court. ² It was determined after a hearing ³ that defendant was not fit for treatment within juvenile court facilities and he was certified to be prosecuted under the general law. ⁴

Defendant contends on this appeal that the juvenile court improperly concluded that he was not a fit subject for treatment as a juvenile. We conclude that the juvenile court order certifying defendant for criminal proceedings cannot be considered on appeal from an ensuing conviction and that defendant's proper recourse to challenge such certification was by collateral attack apart from the criminal prosecution. We further conclude that even if defendant might properly have raised the issue in these proceedings the determination of unfitness was correctly decided on the merits. We likewise reject defendant's other contentions but limit the applicability of the findings that defendant used a firearm in the commission of the offenses.

The facts

During evening hours defendant and another young man entered a Los Angeles restaurant. They paused momentarily and then defendant, who was wielding a pistol, covered his face with a nylon stocking mask which he had pulled from under his cap. Defendant ordered the cashier to step aside and his confederate opened the cash register and removed money from the drawer. As the two young men departed they were pursued by restaurant employee James Fang. A gunshot was heard and Fang was brought wounded and unconscious back into the restaurant. He subsequently died as the result of a gunshot wound.

During the juvenile court hearing on the issue of defendant's fitness for treatment within the facilities of that court, the referee recited that he had read and considered, in addition to the allegations contained in the section 602 petitions, a report from the San Francisco Juvenile Court Probation Office. It is implicit in the hearing transcript that the referee had also read the probation officer's report in the instant matter.

It appears from the San Francisco report that defendant had been associated with a major San Francisco Chinese youth gang, that he had been recruited by the gang to act as a 'hit-man,' that he had been charged in San Francisco Juvenile Court proceedings with possession of stolen property and an illegal knife, and that he was suspected of involvement in two Chinese gang homicides. Defendant had been released from detention in San Francisco to accompany his mother to Los Angeles, and the section 602 petition which had been filed in San Francisco had been transferred to Los Angeles for disposition.

The Los Angeles County Probation Officer's report recommended that defendant was 'not a fit subject for consideration under the provisions of juvenile court law.' It further declared that the allegations in the section 602 petition. if true, indicated that defendant was a serious and ongoing threat to the community; that while defendant had minimal police contact, authorities considered him to be highly sophisticated; that defendant had not been in school for some time and that he appeared to give little more than lip service to the prospect of returning to school or seeking job training; that defendant's father was completely unable to set standards or controls for him; that defendant had virtually emancipated himself from the home of his parents; that, according to a Los Angeles Police Department source, defendant was suspected of involvement in another shooting in Los Angeles; and that, according to the same source, four handguns and three shotguns were found in defendant's residence at the time of his arrest.

Brief arguments were then presented at the hearing by counsel and the matter was submitted whereupon the court, utilizing a standard court form, declared: 'The Court finds this minor unfit; certifies this minor to adult court.' The minute order included a finding contained in the form to the effect that '(t)he Court finds that minor was 16 years of age or over and that the minor would not be amenable to the care, treatment and training program available through the facilities of the Juvenile Court.' ⁵

Certification as an Issue on Appeal

It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute. (Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825; People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633; In re Conley (1966) 244 Cal.App.2d 755, 759, 53 Cal.Rptr. 321.) The orders, judgments and decrees of a juvenile court which are appealable are restricted to those enumerated in section 800 (In re Conley, supra, 244 Cal.App.2d 755, 760, 53 Cal.Rptr. 321; In re Corey (1964) 230 Cal.App.2d 813, 821, 41 Cal.Rptr. 379), which provides in pertinent part that '(a) judgment or decree of a juvenile court . . . assuming jurisdiction and declaring any person to be a person described in Section 600, 601, or 602, or on denying a motion made pursuant to Section 567, may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment . . ..' ⁶ An order pursuant to section 707 finding a juvenile unfit ofr treatment through juvenile court facilities is outside the express provisions of section 800 and is thus not an appealable order. (In re Brekke (1965) 233 Cal.App.2d 196, 199, 43 Cal.Rptr. 553; see 6 Witkin, Summary of Cal.Law (8th ed. 1974) Parent and Child, § 353, p. 4857.)

The question remains, however, whether a juvenile court order based on a finding that a youth is unfit for treatment through juvenile court facilities may be properly reviewed on direct appeal of an ensuing criminal conviction stemming from the same offenses alleged in the juvenile court petition. Penal Code section 1259 ⁷ provides, inter alia, that an appellate court may review any question of law involved in any order made prior to judgment. A number of appellate courts have apparently assumed that an order certifying a juvenile for criminal proceedings falls within this provision as such courts have, without discussion of their jurisdiction for doing so, routinely reviewed such an order on appeal following a defendant's conviction in criminal court. (See, e.g., People v. Yeager (1961) 55 Cal.2d 374, 378, 10 Cal.Rptr. 829, 359 P.2d 261; People v. McFarland (1971) 17 Cal.App.3d 807, 811--819, 95 Cal.Rptr. 369; People v. Brown (1970) 13 Cal.App.3d 876, 879--882, 91 Cal.Rptr. 904, cert. den. (1971), 404 U.S. 835, 92 S.Ct. 120, 30 L.Ed.2d 66; and People v. Arauz (1970) 5 Cal.App.3d 523, 527--530, 85 Cal.Rptr. 266.) But at least one recent appellate decision reflects some doubt as to the propriety of post-conviction review of the prior juvenile court order. (See People v. Allgood (1976) 54 Cal.App.3d 434, 439, 126 Cal.Rptr. 666; see also People v. Browning (1975) 45 Cal.App.3d 125, 141, 119 Cal.Rptr. 420.)

There is nothing in the legislative history of Penal Code section 1259 to indicate that the scope of appellate review from a criminal conviction extends to matters beyond the criminal proceedings to a certification order made in prior juvenile court proceedings. Juvenile courts exercise exclusive initial jurisdiction over all youths under 18 years of age (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 784, 94 Cal.Rptr. 813, 484 P.2d 981) and, until that court makes a certification order (§§ 603, 707), the superior court lacks jurisdiction to make any order affecting a juvenile (see People v. Sanchez (1942) 21 Cal.2d 466, 471, 132 P.2d 810) except, perhaps, to suspend criminal proceedings and transfer an accused to the juvenile court when such proceedings have been inadvertently commenced against him in the superior court (§ 604). It is thus manifest that because the certification hearing is an extrajudicial process ⁸ insofar as subsequent criminal proceedings are concerned, appellate review of the criminal proceedings cannot be broadened to include an attack on the certification order within the intended scope of Penal Code section 1259.

Aside from the question of the statutory scope of appeal under Penal Code section 1259, it is settled that matters not presented to the trial court and hence not a proper part of the record on appeal will not be considered by an appellate court. (People v. Brawley (1969) 1 Cal.3d 277, 296, 82 Cal.Rptr. 161, 461 P.2d 361; People v. Merriam (1967) 66 Cal.2d 390, 396--397, 58 Cal.Rptr. 1, 426 P.2d 161; People v. Reeves (1966) 64 Cal.2d 766, 776, 51 Cal.Rptr. 691, 415 P.2d 35.) The record on appeal shall be prepared and filed as prescribed by the rules of court as adopted by the Judicial Council. (Pen.Code, § 1246.) Rule 33 of the California Rules of Court governs the content of the record on criminal appeal ⁹ and...