People v. McFarland

• Decision Date: 24 May 1971
• Docket Number: Cr. 8097
• Citation: 17 Cal.App.3d 807,95 Cal.Rptr. 369
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert McFARLAND, Jr., Defendant and Appellant.

Page 369

95 Cal.Rptr. 369

17 Cal.App.3d 807

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert McFARLAND, Jr., Defendant and Appellant.

Cr. 8097.

Court of Appeal, First District, Division 2, California.

May 24, 1971.

Richard J. Cohen, William Pinkus, Mill Valley, court appointed counsel, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant, Robert McFarland, appeals from a judgment entered on a jury verdict finding him guilty of murder (Pen.Code, § 187) and from the prior proceedings transferring him from the juvenile court, pursuant to Welfare and Institutions Code section 707. ¹ As to the juvenile court proceedings, appeallant contends that: 1) the juvenile court's initial jurisdictional finding, pursuant to Welfare and Institutions Code section 602 and the subsequent transfer to the superior court, caused jeopardy to attach within the meaning of the Fifth and Fourteenth Amendments of the U.S. Constitution, so that Welfare and Institutions Code section 707 and the transfer procedure are unconstitutional; 2) the order finding that he came under the jurisdiction of the juvenile court, pursuant to Welfare and Institutions Code section 602, was invalidated by the unconstitutional admission of his extrajudicial statements, as well as the application of the preponderance of the evidence standard; and 3) the order, pursuant to Welfare and Institutions Code section 707, finding him not amenable to the programs of the juvenile court was not based on sufficient evidence or the study required by the statute. As to the judgment of conviction, appellant contends that the improper and prejudicial admission of the testimony of the witness, Arthur Givens, and the insufficiency of the evidence to corroborate the testimony of the accomplice, Dennis Parrish, require a reversal.

Because of the length and complexity of the issues raised, we will set forth the pertinent facts and issues relating to the juvenile and superior court proceedings separately.

1. THE JUVENILE COURT PROCEEDINGS

The record reveals the following pertinent facts: On July 11, 1968, three separate petitions were filed in the juvenile court charging that on April 9, 1968, appellant and his co-perpetrators, Ronald Lewis and Joseph Brown, robbed and killed San Francisco bus driver Martin Whitted. The petition as to appellant also contained a notice of a hearing pursuant to Welfare and Institutions Code section 602, i.e., a jurisdictional hearing to determine whether appellant had committed the offense charged.

Prior to the admission of any testimony at the hearing, the court denied a defense motion that the applicable standard of proof was beyond a reasonable doubt rather than a preponderance of the evidence. At the hearing, which commenced on August 1, 1968, the People adduced eyewitnesses and other testimony concerning the offense charged and a statement taken from appellant unde the following circumstances: On the morning after the killing, April 10, 1968, several San Francisco police officers proceeded to appellant's home and found him asleep in the living room. Appellant was awakened by his mother, who had admitted the officers. Officer Sanders informed appellant that he was under arrest, but did not at that time advise him of his rights.

After some discussion with appellant and his mother, appellant was handcuffed and taken to the Hall of Justice. On the way, Sanders verbally admonished him of his rights, and asked if he understood them and wanted to talk. Appellant answered both questions affirmatively and made a statement to Sanders concerning the offense. At the Hall of Justice, appellant was read a 'juvenile rights card' by Probation Officer Licavoli and thereafter stated that about 7 p.m. on April 9, he and three others, one armed with a gun, headed for the 900 block of Innes Street to commit armed robbery. They stopped a bus driven by Whitted; then three of them boarded the bus and the one with the gun told Whitted it was a holdup. Whitted did not respond. After appellant reached for the money changer, a scuffle ensued and the gun went off. All four ran up the hill to the home of one of the participants and split up the money in the changer. This statement and a subsequent one, ² were admitted over appellant's timely objections. Prior to the statement, no effort was made by anyone to contact appellant's mother and inform her that she had a right to an attorney.

In the course of the section 602 hearing, the court indicated it would then proceed to make a determination whether appellant was to be tried by the juvenile court or the superior court pursuant to sections 702 and 707. The People then introduced the testimony of Mr. Miller of the San Francisco Juvenile Probation Department. Miller indicated that while he had never personally spoken with appellant, ³ he was familiar with his case from a review of the files and with appellant's prior behavior insofar as it related to the Youth Guidance Center and juvenile court. Miller submitted the report on appellant's behavior patterns, set forth in the footnote below. ⁴

After Miller indicated that appellant's age was 17 as of January 30, 1968, and some discussion as to the meaning of the term 'social study,' the court admitted the report over appellant's objection. On cross-examination, Miller indicated that he did not know whether appellant had denied the petty theft charge brought in 1964 or the particular circumstances of the malicious mischief charges in December 1965, and the March 10, 1966 petty theft charge. After a recess to allow him to re-examine the files, Miller explained that the portion of his report relating to petty theft in May 1964 was erroneous, as appellant had merely been referred for malicious mischief, which was denied, and disposed of by admonishment and dismissal and that there was only one citation for malicious mischief in 1965. Miller also indicated that in February and May 1967, respectively, charges of petty theft and purse snatching against appellant were dismissed for lack of evidence, but that in July 1967, appellant admitted an auto theft and was committed to the California Youth Authority (hereafter CYA) on probation until March 1968. Miller also indicated that appellant had never had diagnostic treatment or psychiatric interviews at juvenile hall, nor ever been committed to a CYA institution. Miller based his conclusion that appellant would not be amenable to the programs of the juvenile court on his past behavior.

To rebut Miller, appellant called Mr. Finster, the Supervising Parole Agent for the CYA in San Francisco, who had been in parole work for 12 years and was familiar with the facilities available to the juvenile court, including those of the CYA. Finster stated that he could not draw any conclusions as to whether appellant would be amenable to juvenile court facilities from the report without access to psychiatric or psychological tests or a social history. He indicated that youngsters charged with murder had been committed to the CYA, that appellant's past behavior was similar to that of most cases received by the CYA, and showed less criminal activity than that of the majority of CYA wards.

Thereafter, the juvenile court found that each of the minors was a person described in section 602 of the Welfare and Institutions Code. The court further found that Lewis, who was under the age of 16, would be amenable to the care and treatment of the juvenile court, while appellant and Brown, who were over 16, would not be amenable to the juvenile court programs. Accordingly, the court ordered the petition as to appellant and Brown filed in the juvenile court dismissed and directed their prosecution in the superior court. Appellant's subsequent motion of once in jeopardy was denied.

Thereafter, on August 15, 1968, appellant, Brown and Dennis Parrish, who was over 18 and charged as an adult, were indicted by the grand jury for the murder of the bus driver. After counsel was appointed to represent appellant, the court denied a motion to dismiss the indictment made pursuant to Penal Code section 995 on the grounds that the superior court lacked jurisdiction because of improper certification. Subsequently, the trials of Parrish and Brown were severed.

Contentions identical to those made by appellant concerning double jeopardy and the constitutionality of the transfer procedure (Welf. & Inst.Code, §§ 701--707) were recently rejected by this court (Division Four) in People v. Brown, 13 Cal.App.3d 876, 91 Cal.Rptr. 904. The court said at pages 880 and 881, 91 Cal.Rptr. at page 906: '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 shall make a finding, Noted in the minutes of the court, whether or not the minor is a person (coming within the court's jurisdiction).' (Italics added.) Section 702 (and later sections) go on to provide for further and separate proceedings to decide upon placement after adjudication had 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) * * *.' (Italics...