Pima County, Juvenile Action No. J-218-1, In re

• Decision Date: 17 October 1974
• Docket Number: No. 2,J--218--1,CA-CIV,2
• Parties: In the Matter of the Appeal in PIMA COUNTY, JUVENILE ACTION NO.1682.
• Court: Arizona Court of Appeals

Page 104

527 P.2d 104

22 Ariz.App. 327

In the Matter of the Appeal in PIMA COUNTY, JUVENILE ACTION NO. J--218--1.

No. 2 CA-CIV 1682.

Court of Appeals of Arizona, Division 2.

Oct. 17, 1974.

Review Denied Dec. 3, 1974.

Albert R. Gamble, Tucson, for appellant.

Dennis DeConcini, Pima County Atty. by Michael P. Callahan, Deputy County Atty., Tucson, for appellee.

OPINION

KRUCKER, Judge.

A juvenile court order granting the State's petition to transfer the subject juvenile to adult court for prosecution is the subject of this appeal. The juvenile's attack on the ruling is two-pronged: (1) Rule 14, Rules of Procedure for Juvenile Court, 17A, A.R.S., is violative of the Fourteenth Amendment of the United States Constitution, and (2) The transfer order is unsupported by the evidence.

The challenge to the constitutional validity of Rule 14 need not be discussed since the Arizona Supreme Court has already considered a like argument and rejected it. State v. Lemon, 110 Ariz. 568, 521 P.2d 1000 (1974). Furthermore, the record reflects no departure from the standards enunciated in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and approved by the Arizona Supreme Court in State v. Yard, 109 Ariz. 198, 507 P.2d 123 (1973) as to the determinative factors which should be considered by the juvenile court judge in deciding whether or not to waive jurisdiction. It also argued that no sufficient standards are provided by the phrase 'not amenable' and therefore there is a possibility of juvenile judges abusing their discretion. This same contention was advanced in L. v. Superior Court of Los Angeles County, 7 Cal.3d 592, 102 Cal.Rptr. 850, 498 P.2d 1098 (1972). The California Supreme Court rejected in and we believe the following statement is apropos:

'. . . Since proper operation of the Juvenile Court Law is predicated on treating each minor as an individual (citation omitted) any attempt to explicate the standards with greater particularity appears not merely unnecessary but undesirable as likely to set up mechanical categories which the spirit of the law forbids.' 102 Cal.Rptr. at 856, 498 P.2d at 1104.

Rule 14(b), Rules of Procedure for Juvenile Court, provides:

'The court may transfer the action for criminal prosecution to the appropriate court having jurisdiction of the offense if the court finds probable cause and resonable grounds to believe that:

(1) The child is not amenable to treatment or rehabilitation as a delinquent child through available facilities: and

(2) The child is not commitable to an institution for mentally deficient, mentally defective or mentally ill persons; and

(3) The safety or interest of the public requires that the child be transferred for criminal prosecution.'

Subsection (c) of Rule 14 requires the juvenile court to state the reasons for transfer. The court did make the requisite findings and the juvenile's sole quarrel appears to be with the finding of probable cause and reasonable grounds to believe that he was not amenable to treatment or rehabilitation as a delinquent child through available facilities. The court did set forth the reasons for ordering him to be tried as an adult, which included the following:

1. The juvenile had been referred to Juvenile Court nine times from 1971 to 1974. The basis for these referrals included burglary, auto theft, strongarm robbery, incorrigibility, shoplifting, and runaway. In 972 he had been placed at the Arizona Youth Ranch and in 1973 at the Averett Westmoreland Youth Home and ran away from each facility less than a month after his arrival.

2. The juvenile was principally involved in a beating of one W. Kurt Kremers; he and another minor had beaten, kicked and stomped the victim to a comatose state; both minors loaded the victim into the back seat of his automobile, transported him to a desert area where he was then beaten to death; the subject juvenile returned about two and a half hours later to the location of the victim's body, poured gasoline over it and set it afire; and the victim was so badly beaten that his skull was broken into moveable segments.

3. The juvenile was in need of lengthy institutionalization in a setting which would provide maximum physical security for the public and the juvenile facilities available to the juvenile court and the Department of Corrections did not have long-term maximum security capabilities.

4. The juvenile had been acknowledged by his stepmother to be beyond her ability to control and supervise and other foster home placements had proven equally unsuccessful.

5. The juvenile had refused to attend schools as a consequence of which he had been removed from schools by action of school authorities.

6. The reports of two psychiatrists indicated that any placement, to give any possibility of success whatsoever, would have to have elements of security not available through existing juvenile facilities.

7. The uncertainty of the acceptance of the juvenile or his retention by some out-of-state juvenile facilities which contract with the Arizona Department of Corrections made a suggestion of placement in such facilities a mere possibility. Consequently, such facilities were not available within the meaning of Rule 14 since their availability was subject to several contingencies, and, if a placement did occur, it was subject to termination at will by the out-of-state authorities.

The subject minor was almost 16 years of age at the time of the hearing below. Since his commitment to the Department of Corrections could not extend beyond his twenty-first birthday, A.R.S. § 8--246(B), the potential time available for rehabilitative attempts was a little more than five years. Psychiatric opinion was unanimous that he required confinement to a structured program in a closed facility. According to one psychiatrist:

'. . . In view of this extensive past record, the prognosis with regard to the treatment and rehabilitation is guarded. It is my professional opinion that treatment could only possibly be successful if the defendant were confined to a structured treatment program in a closed facility for a minimum of one year.'

Appellant counsel places much reliance upon the opinion of another psychiatrist that the juvenile was amenable to treatment and rehabilitation. This psychiatrist recommended 'psychotherapy on a behavioral basis' and 'in a place that also has security.' On cross-examination the psychiatrist indicated that his 'amenability' opinion was somewhat predicated upon his consideration of the alternative. He testified:

'Q. Will you please tell us specifically in the behavioral therapy what you contemplate, in other words, if you had a facility and he came and you knew these things about him you would sit down to do what?

A. I would sit down first to understand him. I would try to make friends with him. I would observe him. I would find out what makes--what motivates (juvenile). What he likes to do. You're asking me for...