Richard M. v. Superior Court

• Decision Date: 24 March 1971
• Citation: 93 Cal.Rptr. 752,482 P.2d 664,4 Cal.3d 370
• Court: California Supreme Court
• Parties: , 482 P.2d 664 Richard M., a Minor, etc., Petitioner, v. The SUPERIOR COURT OF SHASTA COUNTY, Respondent, The PEOPLE, Real Party in Interest. Sac. 7883.

Page 752

93 Cal.Rptr. 752

4 Cal.3d 370, 482 P.2d 664

Richard M., a Minor, etc., Petitioner, v. The SUPERIOR COURT OF SHASTA COUNTY, Respondent The PEOPLE, Real Party in Interest.

Sac. 7883.

Supreme Court of California In Bank.

March 24, 1971.

Paul N. Halvonik, Charles C. Marson, San Francisco, and R. Russ Peterson Redding, for petitioner.

No appearance for respondent.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Doris H. Maier, Asst. Atty. Gen., and Arnold O. Overoye, Deputy Atty. Gen., for real party in interest.

McCOMB, Justice.

Richard M., a minor, through his guardian ad litem, seeks a writ of prohibition to restrain the Superior Court of the County of Shasta, sitting as a juvenile court, from conducting a jurisdictional hearing upon a petition alleging that he comes within the provisions of Welfare and Institutions Code section 602 ¹ because of a violation of Vehicle Code section 10851 (grand theft of a motorcycle). He urges that a hearing has already been held on a prior petition containing the identical charge, that the court found that the allegations of that petition were not sustained and ordered it dismissed, that that decision was final, and that it operated as an acquittal. He therefore contends that the double jeopardy clause of the Fifth Amendment bars a hearing on the pending second petition.

The original petition was filed on May 20, 1970, by deputy probation officer Frank Sauer. The present petition was filed August 31, 1970. Each contained identical allegations, namely, that the minor, aged 16, took a Suzuki mortocycle bearing California License No. 824787 from the rear of Farmers Market on Shasta Dam Boulevard in the town of Central Valley, County of Shasta; that the vehicle was the property of Jerry Johnson and was taken without his consent and with the intent of depriving him of the possession thereof; and that the minor comes within the provisions of section 602. Each petition asks that the minor be dealt with as provided in the 'Juvenile Court Law' (§§ 590--914, incl., Wel. & Inst.Code). Citation to appear and notice of hearing were furnished to the parents of the minor and they were advised of the minor's right to counsel. Hearing on the original petition was set for and was held on June 15, 1970.

At that hearing an uncontested hearing was anticipated and there were present, in addition to juvenile court personnel, only probation officer Sauer, the minor and his parents. Hearing was before the judge. The proceedings were reported as required by section 677. The judge advised the minor of the contents of the petition and of his right to counsel and he ascertained that the minor did not wish to be represented by counsel. ² Then, without swearing the minor he proceeded to examine him as to the circumstances attending the taking of the motorcycle. The minor admitted the theft but explained in considerable detail the circumstances and the reasons, claiming that he was forced to take the motorcycle against his will by an older boy who threatened him with a knife. The parents, also not sworn, stated the reasons why they believed their son's story. At the conclusion the judge indicated that the ward's testimony was consistent with the story he had originally told to the owner, Mr. Johnson, to the highway patrol and to his parents; that the probation officer found it difficult to believe the minor's story; but that to the court 'he (the minor) seemed to be rather detailed about the events, as though he actually recalls what happened, rather than making up some kind of a story, and I would hate to have it on my conscience that it may have really occurred the way it happened and I didn't believe him.' The judge stated that he was not convinced beyond a reasonable doubt that the minor did, in fact, steal this property.

The probation officer then asked for a week's continuance, to bring in Mr. Johnson, stating 'Maybe he could shed some other light on what happened that is not in the police report. I don't know. If he was inside the store he may be able to offer some--give us some idea of the other person.' This apparently related to identification of the older boy implicated by the minor in this theft. The minor had testified that the other boy was a stranger to him. There was evidence (statements by minor and his mother) that the authorities had taken minor's friends to the store to be identified and to a 9-year old Boy Scout, Jack Crouch, who had seen the two boys on the day in question, and that none of them was the person sought. There was evidence (statement of minor) that the owner of the motorcycle had seen the other boy only for a split second, and in the act of running away, at the time he apprehended the minor. The court asked the minor 'Did you tell Mr. Johnson the same--how this all occurred' and the minor responded 'Yes,' and also responded 'Yes' to the question whether he had told the same story to the highway patrolman. The court then questioned 'I think he has consistently told the story right to begin with to Mr. Johnson and the highway patrol?' and the probation officer answered 'Yes.' The judge did not grant the continuance. Instead he stated that he was not satisfied beyond a reasonable doubt, that it was evenly balanced in his mind, and that he was going to have to find that the petition was not sustained. The minute order states 'THE COURT FINDS that the allegations are not sustained and the Petition is ordered dismissed.'

After the second juvenile petition was filed on August 31, the minor obtained the services of counsel. Counsel moved to dismiss the second petition on the grounds of acquittal and once in jeopardy. Several hearings were held on this motion. The district attorney took the position that jeopardy had not attached because the minor was not sworn; that the probation officer had anticipated that there would be an admission and had not therefore had any witnesses present; and that had there been any awareness that there was going to be a dismissal witnesses would have been called. He argued that there was not a full and fair hearing. He stated that a continuance had been requested and denied. The same judge heard the motion. He stated: 'It is true that there was considerable colloquy between the court and the minor, and the minor's father for that matter. I do believe, though, that I proceeded in the matter rather precipitously * * * and that the probation officer apparently was, if not intimidated by the court, at least reacting to the court's findings, without being aware of what the situation was. I think he was entitled to a continuance for the purpose of presenting witnesses.' He then denied the motion to dismiss. ³ A second jurisdictional hearing was set. On application of minor's counsel, this court issued an alternative writ of prohibition.

Prohibition is an appropriate remedy to prevent retrial once a defendant has been in jeopardy. (Curry v. Superior Court (1970) 2 Cal.3d 707, 712(1), 87 Cal.Rptr. 361, 470 P.2d 345; see Witkin, Cal.Crim.Proc. (1963) p. 226; idem, I Cal.Crimes (1963) pp. 175 et seq.)

ISSUE: Was the minor placed in jeopardy, within the meaning of the constitutional protections against twice being placed in jeopardy for the same offense, in the June 15th proceedings?

YES. The Fifth Amendment's bar to double jeopardy is applicable to state proceedings by virtue of the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 795--796, 89 S.Ct. 2056, 23 L.Ed.2d 707.) Juveniles are entitled to the fundamental protection of the Bill of Rights in proceedings that may result in confinement or other sanctions, whether the state labels these proceedings 'criminal' or 'civil.' (In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.) In proceedings before the juvenile court juveniles are entitled to constitutional protections against twice being placed in jeopardy for the same offense. (U.S.Const. Amends. V, XIV; Cal.Const., art. I, § 13; see 1 Witkin, supra, Cal.Crimes, pp. 175--177.) People v. Silverstein (1953) 121 Cal.App.2d 140, 142--143, 262 P.2d 656, and In re Bradley (1968) 258 Cal.App.2d 253, 65 Cal.Rptr. 570, hg. den., are disapproved insofar as they contain statements inconsistent with this opinion. (See also In re Dale (1970) 10 Cal.App.3d 952, 956, 89 Cal.Rptr. 499; In re Henley (1970) 9 Cal.App.3d 924, 930--931, 88 Cal.Rptr. 458.)

The protection is not against being twice punished but against twice being put in jeopardy, and it applies whether the accused is convicted or acquitted. (Kepner v. United States (1904) 195 U.S. 100, 129, 24 S.Ct. 797, 49 L.Ed. 114.) A person is in legal jeopardy for an offense "when (1) placed on trial (2) for the same offense, (3) on a valid indictment or information or other accusatory pleading, (4) before a competent court, (5) with a competent jury, duly impaneled and sworn and charged with the case; or, if the trial is by the court, it must be 'entered upon."' (People v. Beasley (1970) 5 Cal.App.3d 617, 635, 85 Cal.Rptr. 501, 513; 1 Witkin, supra, Cal.Crimes (1963) p. 178; 21 Am.Jur.2d 236.) In a court trial jeopardy does not attach until the first witness has been sworn. (People v. Sturdy (1965) 235 Cal.App.2d 306, 314, 45 Cal.Rptr. 203.) The court-trial analogy is pertinent here as a jury trial is inapplicable in juvenile proceedings. (In re T.R.S. (1969) 1 Cal.App.3d 178, 181--182, 81 Cal.Rptr. 574.)

The court below was of competent jurisdiction. The petition was sufficient in form and substance to sustain an adjudication of deliquency. The People actively prosecuted the charges by filing the petition and having the matter set for a jurisdictional hearing. Their explanation that they did not seek to be represented by the district attorney or to provide witnesses because they anticipated that the proceedings would be uncontested, indicates that they expected a hearing to be held, that ...