People v. Superior Court (Steven S.

• Decision Date: 14 May 1981
• Citation: 173 Cal.Rptr. 788,119 Cal.App.3d 162
• Court: California Court of Appeals Court of Appeals
• Parties: , 22 A.L.R.4th 1140 PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent. STEVEN S., a Minor, Real Party in Interest. Civ. 51779.

Page 788

173 Cal.Rptr. 788

119 Cal.App.3d 162, 22 A.L.R.4th 1140

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent STEVEN S., a Minor, Real Party in Interest.

Civ. 51779.

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

May 14, 1981.

Hearing Denied July 8, 1981.

Arlo Smith, Dist. Atty., John V. Carbone, Jr., Asst. Dist. Atty., San Francisco, for petitioner.

Jerrold M. Ladar, James P. Nevin, Nevin & Nevin, San Francisco, for real party in interest.

TAYLOR, Presiding Justice.

In this extraordinary writ proceeding initiated by the People of the State of California (hereafter People), we consider the propriety of an order of respondent juvenile court finding a minor defendant, real party in interest (hereafter minor), to be a fit and proper subject to be dealt with under the juvenile court law.

A minor defendant may challenge a certification order made pursuant to section 707 of the Welfare and Institutions Code ¹ by extraordinary writ in collateral proceedings commenced prior to the commencement of trial on those charges for which the minor defendant is certified as unfit for treatment within juvenile court facilities (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 714, 135 Cal.Rptr. 392, 557 P.2d 976; Cal.Rules of Court, rule 1348(k)). Corollary review of a finding of fitness is permitted to the People, in a proper case of abuse of discretion, prior to the commencement of the section 602 hearing in the juvenile court, for upon the commencement of the jurisdictional hearing, jeopardy attaches, and the order becomes insulated from further review (see In re Richard C. (1979) 89 Cal.App.3d 477, 484, 152 Cal.Rptr. 787). ²

The minor, Steven S., was 17 years old and on probation to the Juvenile Court of Contra Costa County at the time of the commission of the offenses which led to the filing of a petition in the Juvenile Court of the City and County of San Francisco on December 29, 1980. The petition, which alleges that the minor comes within the provisions of section 602, charges the minor in 11 separate counts of violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon), Penal Code sections 6 64/187 (attempted murder), Penal Code sections 6 64/211 (attempted robbery), and Penal Code section 211 (robbery), against six separate victims, Anthony Bowman (Counts I, VIII), Michael Anstadt (Counts II, V, IX), Dudley Bryant (Counts III, XI), Les Schwab (Counts IV and X), John Williams (Count VI) and Sheila Frances (Count VII).

It is further alleged that during the commission of the offenses, the minor was armed with a deadly weapon, a knife, within the meaning of Penal Code section 12022, subdivision (b), and that two of the victims, Bowman and Anstadt, suffered great bodily injury within the meaning of Penal Code section 12022.7 as a result of the attack.

Simultaneously with the filing of the section 602 petition, the People noticed a motion for a fitness hearing pursuant to section 707, subdivision (b), attaching thereto a declaration that the minor had been charged with criminal violations which came within the provisions of section 707, subdivision (b), and section 1203.06 of the Penal Code, and that the minor was not amenable to the care, treatment and training program available through the facilities of the juvenile court. ³

Pursuant to the directive of section 707, subdivision (c) that "upon motion of the (district attorney) made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness," the probation officer of the City and County of San Francisco, Donna Kabay, conducted an extensive investigation and submitted her report to the court. In the course of her investigation, the probation officer interviewed the minor and his parents, reviewed the history of the minor and his family and his behavior in and out of custody, and engaged in discussions with his counselors and his Contra Costa probation officer. The probation officer also reviewed the police reports and talked to all of the victims. Pursuant to rule 1347(a), California Rules of Court, ⁴ she also included information regarding each of the five criteria set forth in section 707, subdivision (c), and listed under rule 1348(b), California Rules of Court. She summarized her conclusions as follows:

"Steven (S.) is appearing before the Court at this time for a fitness hearing pursuant to Section 707(b) of the Welfare and Institutions Code. Steven is a 17 year old ward of the Contra Costa County Juvenile Court, who is at this time being detained at San Francisco Juvenile Hall.

"Steven (S.) is being charged with an extremely serious crime in which two people could possibly have died. As mentioned previously it is this Probation Officer's opinion that on the basis of the type of behavior exhibited in this offense, alone, Steven should be dealt with in the Adult Court. Aside from meeting the criteria of the gravity of the alleged offense the undersigned feels that to varying degrees Steven also meets the remaining criteria. As a result of the type of behavior he has exhibited in the past and the lack of influence the Juvenile Court and Probation Department has (sic) had over this minor and his behavior, this Probation Officer has come to the conclusion that Steven (S.) is not a fit and proper subject to be dealt with within the provisions of the Juvenile Court Law and therefore should be tried as an adult under the General Law. Although Steven does not have an extensive prior record and most of his offenses have been of the misdemeanor nature, through interviews with his Probation Officer, Mrs. Laird, and his parents, it is clear that Steven has established a pattern of violence and aggression that would seem to be attributable to the nature of an adult and not to that of a child. Steven seems to react toward any type of unpleasantness with violence and although numerous people have attempted to change this behavior it has all been to no avail. In fact, it appears that Steven's behavior has only become more criminally sophisticated. The undersigned feels that this is not just a matter of rehabilitating the minor, if possible, but also a matter of protecting a society from the type of senseless violence exhibited in this incident."

The probation officer's report recommended "That Steven (S.) be declared an unfit subject for Juvenile Court Law and that the matter be referred to the District Attorney for prosecution in a Court of Criminal Jurisdiction." ⁵

The matter came on for hearing before respondent court on January 23, 1981. At the hearing, the probation report prepared by the probation officer of the City and County of San Francisco and two probation reports to the Contra Costa County Juvenile Court dated November 12, 1980, and May 28, 1980, were introduced into evidence. Testimony was taken from probation officer Donna Kabay, from Dr. Roger Freed, a psychiatrist employed by minor's counsel, and from James McHale, an employee of the California Youth Authority. ⁶

Dr. Freed, the psychiatrist called by the minor, testified that he had reviewed the report prepared by the probation officer, the police report, the two Contra Costa juvenile probation reports, talked to the family, interviewed the minor on two occasions for two hours for a total of four hours, and had the minor tested by a child psychologist. Although the psychiatrist did not speak to any of the victims or review their medical or hospital records, did not interview the San Francisco probation officer who prepared the report and who was assigned to the minor's case, did not speak to the minor's counselors who had information regarding the minor's recent conduct at the Youth Guidance Center, the counselors described in the probation report, anyone connected with the schools the minor had attended, or the probation officer in the Contra Costa Probation Department who had supervised the minor on probation, the psychiatrist testified that the minor was amenable to treatment in the juvenile court and saw no reason why he could not be handled in the juvenile court system.

James McHale, court liaison and intake consultant with the Division of Institutions called by the minor, testified that he did not know if the Youth Authority could help the minor, but because he was "(a)lmost absolutely sure we can contain him," the Youth Authority would accept him. With respect to the amount of time the minor might be confined to the Youth Authority, McHale testified that first degree murder cases were usually assigned three years in the Youth Authority, but since mid-1979, "that has changed to five years." He estimated that the minor would be confined for 15 months to two years if committed to the Youth Authority.

Although the court commended the probation officer for her thorough and professional job in investigating and preparing the report, the court concluded that the seriousness and gravity of the offenses alone did not require a finding of unfitness, and giving great weight to the testimony of the psychiatrist that the minor, a "young man who has an arrested emotional development," could be rehabilitated if placed in a structured setting where he could be properly supervised, found the minor to be a fit and proper subject for treatment by the juvenile court under each and every one of the criteria enumerated in section 707, subdivision (c), as follows:

"1. The degree of criminal sophistication exhibited by the minor is low;

"2. The minor can be rehabilitated prior to the expiration of the Juvenile Court's jurisdiction (to his age 23, unless further extended, W & I §§ 1769(b), 1800, 1801).

"3. The minor's previous delinquency history (2 contacts) is of recent origin and minor in nature.

"4. Such attempts as there have been to rehabilitate the...