Richard C., In re

• Decision Date: 21 February 1979
• Citation: 152 Cal.Rptr. 787,89 Cal.App.3d 477
• Parties: Matter of RICHARD C., a minor. PEOPLE of the State of California, Plaintiff and Appellant, v. RICHARD C., Defendant and Respondent. PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent, RICHARD C., a minor, Real Party in Interest. Civ. 44164, 44126.
• Court: California Court of Appeals Court of Appeals

Page 787

152 Cal.Rptr. 787

89 Cal.App.3d 477

Matter of RICHARD C., a minor.

PEOPLE of the State of California, Plaintiff and Appellant, v. RICHARD C., Defendant and Respondent.

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent, RICHARD C., a minor, Real Party in Interest.

Civ. 44164, 44126.

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

Feb. 21, 1979.

Rehearing Denied March 23, 1979.

Hearing Denied April 19, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Ann K. Jensen, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Benjamin Elliot Kaplan, Nancy A. Aimola, San Francisco, for defendant and respondent (Under appointment of the Court of Appeal).

KANE, Associate Justice.

This is an appeal and a petition for writ of mandate ¹ filed by the People seeking appellate review of the juvenile court's judgment granting respondent minor's petition for rehearing and dismissing the charges against him.

On January 18, 1978, a petition was filed charging that Richard C. was a person described by section 602 of the Welfare and Institutions Code ² in that he had violated three section of the Penal Code, i. e., section 496, subdivision 1 (buying, concealing, receiving stolen property, a felony); section 12031, subdivision (a) (carrying a loaded firearm in a public place, a misdemeanor); and section 12025, subdivision (a) (carrying a concealable firearm without a license, a misdemeanor). The evidence giving rise to the petition and charges therein was produced at a suppression hearing initiated by the minor pursuant to section 1538.5 of the Penal Code, and may be summarized as follows:

On Monday, January 16, 1978, at approximately 12:20 p. m., David Bozzi was in his garage when he heard voices coming from the area of his driveway. Mr. Bozzi peeked through the mail slot in the garage door and observed Richard C. and a female conversing no more than three feet from the garage door. Bozzi noted the minor's appearance and clothing, and saw a large bulge in the minor's rear pocket. Bozzi also saw that the minor was holding an automatic pistol ³ in his hand, and was attempting to load it. Upon seeing this, Bozzi went upstairs and reported to the police by telephone what he had observed. Bozzi then returned to the mail slot and continued to watch the minor and the female. When the female departed and the minor passed by the garage door on his way down the street, Bozzi opened the garage door. Momentarily, a police officer arrived. Bozzi provided a description of the pistoltoting youth, indicated the direction in which the minor was walking, got into the police car, and proceeded with the officer down the street, where he spotted Richard C. across the street, approximately one-half block from Bozzi's home. Bozzi pointed to him and announced, " 'That is the man.' " The officer observed that the minor fit the description previously provided by Bozzi. The officer then walked towards the minor on a diagonal and from behind. As he approached the minor the officer order him to "halt," then asked Richard C. if he had a gun. At that point, the minor moved his right hand toward his waistband area. The officer knocked the minor's hand back, because "I wasn't about to allow him to get his hands around a gun." The officer then unzipped the minor's jacket and withdrew the loaded automatic pistol from the minor's waistband. The minor was thereupon handcuffed and placed under arrest for possession of a loaded and concealed weapon in a public place.

The procedural steps taken in the case may be described as follows:

On February 22, 1978, the matter came on before a juvenile court referee for hearing on Richard C.'s motion to suppress evidence and for a jurisdictional hearing.

On February 28, 1978, the referee issued findings and orders, in which (1) the motion to suppress was denied; (2) the allegations of the petition were found true beyond a reasonable doubt; (3) the matter was continued to March 2, 1978, for dispositional hearing.

On March 2, 1978, the minor petitioned the juvenile court for rehearing of the referee's ruling on the suppression motion and expressly waived rehearing of the jurisdictional finding.

On March 20, 1978, the matter came on for a dispositional hearing before the referee. After having read and considered the probation report, the referee issued a dispositional order with was filed on March 24, 1978, in which the minor was declared a ward of the court, was ordered placed in a study and evaluation program for a period not to exceed 90 days, and the matter was continued to June 23, 1978, for receipt of the evaluation report on the minor.

On April 18, 1978, the juvenile court granted the minor's Motion for rehearing of the suppression order, which was submitted on the transcript of the suppression hearing, and ordered the petition dismissed.

While the main dispute between the parties revolves around the legality of the search and seizure, Richard C. also contends that appellate review is not available to the People. While we agree that the People do not have a right of direct appeal, we hold that for reasons which follow the ruling of the juvenile court is reviewable by a petition for an extraordinary writ.

Turning to the question whether appeal lies in the instant case, we invoke the well established principle reiterated in a series of cases that the right to appeal from an order or judgment in a criminal case is purely statutory. As a consequence, no appeal by the People is proper unless expressly permitted or authorized by statute (People v. Valenti (1957) 49 Cal.2d 199, 316 P.2d 633; People v. Thompson (1970) 10 Cal.App.3d 129, 135, 88 Cal.Rptr. 753; People v. Hale (1965) 232 Cal.App.2d 112, 125, 42 Cal.Rptr. 533).

The pertinent statutory and regulatory provisions governing appeal in a juvenile case are section 800 and rule 1396 of the California Rules of Court. While section 800 provides that in a section 602 proceeding appeal lies only from a judgment or order of a juvenile court or A final order of the referee declaring the minor a ward of the juvenile court, ⁴ rule 1396 reaffirms that even if the conditions prescribed by section 800 are satisfied, appeal may be taken Only by the minor, his parent or guardian. ⁵

In the case at bench we have neither a decree nor a judgment of the juvenile court declaring the minor a ward of the court under section 601 or 602. Furthermore, it is clear that the order of the referee may not be considered final for two main reasons. For one thing, the case law squarely holds that Where, as here, the order of the referee is adverse to the minor, it does not become final until the juvenile court has acted upon the minor's petition for rehearing (In re Edgar M. (1975) 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406; In re Raymond P. (1978) 86 Cal.App.3d 797, 807, 150 Cal.Rptr. 537). For another, section 249 itself clarifies that "No order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court." (Emphasis added. See also § 250.) The record here unambiguously indicates that while the March 24, 1978, order of the referee did remove the minor from the physical custody of his parents and placed him at the Hidden Valley Ranch School for study and evaluation purposes, the order was never expressly approved by a judge of the juvenile court. ⁶ The conclusion is thus inescapable that even if rule 1396 (which precludes an appeal by the People by implication) is disregarded, the appeal here taken must be held invalid and ineffective.

A much more sophisticated question is whether the judgment in dispute is reviewable by a prerogative writ.

In passing upon this issue, we are, of course, well aware of the general proposition that the restriction on the People's right to appeal is not only a procedural limitation allocating appellate review between direct appeals and extraordinary writs, but is a substantive limitation on review of the trial court's determinations in criminal trials and that to permit the People to resort to an extraordinary writ where there is no right to appeal would be to give the People the very appeal which the Legislature has denied them (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 498, 72 Cal.Rptr. 330, 446 P.2d 138; People v. Thompson, supra, 10 Cal.App.3d 129, 136, 88 Cal.Rptr. 753).

However, as the Supreme Court pointed out in Howard, the prohibition against proceeding by way of a writ when appeal is foreclosed is not absolute; rather, it requires a delicate balancing of the complicated considerations of preventing harassment of the accused as against correcting possible errors (People v. Superior Court (Howard) 69 Cal.2d at p. 501, 72 Cal.Rptr. 330, 446 P.2d 138). In accordance with the balancing test spelled out in Howard, later cases acknowledge that review by a prerogative writ is possible if the trial court acts in excess of its jurisdiction, and if there is no danger of a further trial or retrial, which would be in contravention of the proscription against double jeopardy (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202; People v. Superior Court (Brodie) (1957) 48 Cal.App.3d 195, 121 Cal.Rptr. 732; see also Jesse W. v. Superior Court (1978) 20 Cal.3d 893, 145 Cal.Rptr. 1, 576 P.2d 963; In re Raymond P., supra, 86 Cal.App.3d 797, 150 Cal.Rptr. 537). A considerable line of authorities holds that the court's failure to either properly interpret or follow the law is in excess of its jurisdiction and reviewable on the People's petition for a prerogative writ (People v. Superior Court (Vasquez) (1977) 69 Cal.App.3d 14, 19, 137 Cal.Rptr. 762; People v. Superior Court (Brodie), supra, 48...