Petition — Breed v. Jones

IN THE

Supreme Court of the United States

October Ter te

ae &

L995

ALLEN F. BREED,

Petitioner,

vs.

GARY STEVEN JONES,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

EVELLE J. YOUNGER,

Attorney General of the State

of California,

JACK R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

S. CLARK Moore,

Assistant Attorney General,

RUSSELL IUNGERICH,

Deputy Attorney General,

600 State Building,

217 West First Street,

Los Angeles, Calif. 90012,

(213) 620-2782,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

I 1

ee 2

EERIE eee a rae PENT ae 2

Statutory Provisions Involved .................00.0.2...22.---- 2

a a TE ET 2

Reasons Why a Writ of Certiorari Should Be Grant-

a aaa Bs 8

I

This Case Presents a Novel and Important Ques-

tion of Whether Double Jeopardy Bars the

Adult Trial of a Delinquent Juvenile Found

Not to Be Amenable to Treatment Through

the Facilities of the Juvenile Court .................... 8

II

This Court Should Grant Certiorari to Resolve a

Conflict Between the Circuits ............00000.00000... 18

Ill

This Case Also Presents a Conflict Between the

Ninth Circuit and the California Supreme

Court on a Question of Federal Constitutional

RAE AR RD eee ASE OE ote 20

SERS MEE ane SE ea Neen DT EE 22

INDEX TO APPENDICES

Appendix A. Opinion of the United States Court

of Appeals for the Ninth Circuit ............ App. p. 1

Appendix B. Memorandum and Order ................ 16

BET, Gi, GI neccscsccccrcesccescnsesctesesencscens 20

TABLE OF AUTHORITIES CITED

Cases Page

Ashe v. Swenson, 397 U.S. 436 (1970) ................ 9

Benton v. Maryland, 395 U.S. 784 (1969) .......... 8, 9

Bryan v. Superior Court, 7 Cal. 3d 575, 102 Cal.

Rptr. 831, 498 P.2d 1079 (1972) ............... 12

Bryan v. Superior Court, 7 Cal. 3d 575, 102 Cal.

Rptr. 831, 498 P.2d 1079 (1972), cert. denied,

kk 8. , Rae 20

Collins v. Loisel, 262 U.S. 426 (1923) ............ ....... 9

Donald L. v. Superior Court, 7 Cal. 3d 592, 102

Cal. Rptr. 850, 498 P. 2d 1098 (1972) ............ 20

Gary Steven J., In re, 17 Cal. App. 3d 704, 95

Cal. Rptr. 185 (1971), hrg. denied by California

Supreme Court on August 4, 1971 ...... 1, 6, 12, 14

Gladys R., In re, 1 Cal. 3d 855, 83 Cal. Rptr. 671,

Ir 14

Green v. United States, 355 U.S. 184 (1957) ........ 12

Jimmy H. v. Superior Court, 3 Cal. 3d 709, 91

Cal. Rptr. 600, 478 P. 2d 32 (1970) _........... 14

Jones v. Breed, 343 F. Supp. 690 (C.D. Cal.

SRE AS WR neon Me 1, 6, 12

Leland v. Oregon, 343 U.S. 790 (1952) ................ 18

McKeiver v. Pennsylvania, 403 U.S. 528 (1971)

North Carolina v. Pearce, 395 U.S. 711 (1969) .... 11

People v. Bradley, 1 Cal. 3d 80, 81 Cal. Rptr. 457,

460 P. 2d 129 (1969)

Price v. Georgia, 398 U.S. 323 (1970) ....... 12

United States v. Dickerson, 271 F. 2d 487 (D.C.

i, SRR ERD DST aD OSnDNTaR ASO aU ERE: 2 18, 19

Page

United States v. Dickerson, 168 F. Supp. 899 (D.

ER RIERRESRER See Sse e ee toner 19

Winship, In re, 397 U.S. 358 (1972) .............---.--- 3

Miscellaneous

Bureau of Criminal Statistics, Calif. Dept. of Jus-

tice, Crime and Delinquency in California—1972

I ie 21

Rules

Federal Rules of Appellate Procedure, Rule 41(a)

Statutes

California Penal Code, Sec. 211 -22...000.0.cc.. 3, 6

California Welfare and _ Institutions Code, Sec.

FRR ELARE SS SRO eh ON - 2

ee ceed

United States Code, Title 28, Sec. 1254(1) .......... 2

United States Code, Title 28, Sec. 2241 ................ 7

United States Code, Title 28, Sec. 2254 -............... 7

United States Constitution, Fifth Amendment ....8, 11

Textbooks

Note, Double Jeopardy and the Waiver of Jurisdic-

tion in California’s Juvenile Courts, 24 Stan. L.

i I IE IID i ecceertenineipntininmninesamente 16

Rudstein, Double Jeopardy in Juvenile Proceedings,

14 Stan. L. Rev. 266, 297, n. 128 (1972) .......... 9

Supreme Court of the United States

October Term, 1974

a

ALLEN F. BREED,

Petitioner,

vs.

Gary STEVEN JONES,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

The petitioner Allen F. Breed, Director of the Cali-

fornia Youth Authority, respectfully prays that a writ

of certiorari issued to review the judgment and opinion

of the United States Court of Appeals for the Ninth

Circuit entered in this proceeding on May 15, 1974.

Opinions Below

The opinion of the Court of Appeals, not yet re-

ported, appears in Appendix A to this petition. The

opinion rendered by the United States District Court

for the Central District of California is reported as

Jones v. Breed, 343 F. Supp. 690 (C.D. Cal. 1972).

The prior opinion of the California Court of Appeal

disposing of respondent Jones’ identical claim on state

habeas corpus is reported as /n re Gary Steven J., 17

Cal. App. 3d 704, 95 Cal. Rptr. 185 (1971), Arg.

denied by California Supreme Court on August 4,

1971.

—_—

Jurisdiction

The judgment of the Court of Appeals for the Ninth

Circuit was entered on May 15, 1974. This petition

for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

Question Presented

Was respondent Gary Steven Jones placed twice in

jeopardy when the California juvenile court, after a

finding of delinquency and upon determining that this

minor was unfit for treatment as a juvenile, waived

jurisdiction and directed the district attorney to file

criminal charges in adult court?

Statutory Provisions Involved

The four provisions of the California Juvenile Court

Law pertinent to this case are set forth verbatim as

footnotes in the Statement of the Case which follows.

As of the date of filing of the in this case

602 provided:

“Any person under the age of 2/ who violates

any law of this state or of the United States or any ordi

nance of any city or county of this state defining crime or

a person described

_

if committed by an adult, would constitute a violation

of California Penal Code section 211 (robbery). A

detention hearing was held, and respondent was de-

tained pending a hearing on the petition. [See Exhs.

D and E to Dist. Ct. Petn., Record, pp. 19-20.]

On March 1, 1971, a “jurisdictional hearing” was

held pursuant to section 701.* At the conclusion of

this hearing, the juvenile court found that the allega-

tions of the petition were true and that respondent was

a person described by section 602. The proceedings

An amendment in 1971 lowered the jurisdiction age from

21 to 18. A 1972 amendment added “ is” after “person”

and substituted “when he” for “who” before “violates.”

“At the hearing, the court shall first consider the

question whether the minor is a person described by Sec-

tions 600, 601, or 602, and for this , any matter

oa a oe © ---~

or acts which are alleged to bring him within jurisdic-

tion of the juvenile court is admissible and may be re-

ceived in evidence; however, proof beyond a reasonable

doubt supported by evidence, admissible in the trial

of criminal cases, must be oe oe

that the minor is a person described by Section 602,

it appears that the minor has made an extrajudicial ad-

or confession and denies the same at the hearing,

the court ma continue the hearing for not to exceed seven

days to the probation officer to subpoena witnesses

to attend the hearing to prove the allegations of the peti-

tion. If the minor is not represented by counsel at the

it shall be deemed that objections that could have

been made to the evidence were made.” (Emphasis added )

A 1971 amendment effective subsequent to respondent's j

doubt” as above for Bd ny -~y~ of evidence.”

Jones, however, has no claim in the courts below that the

standard of proof failed to satisfy due process under Jn re Win-

ship, 397 U.S. 358 (1972).

soiliiens

were continued for a dispositional hearing pursuant to

section 702.* [Record, p. 21.]

After a hearing held on March 15 and 22, 1971,

the juvenile court found, pursuant to section 707,‘ that

the minor is a person described by Sections 600, 601, or

602. If it finds that the minor is not such a person, it shall

order that the petition be dismissed and the minor be

——— from any detention or restriction theretofore

orde . If the court finds that the minor is such a person,

it shall make and enter its findings and order accordingly

and shall then proceed to hear evidence on the question

of the proper disposition to be made of the minor. Prior

to doing so, it may continue the hearing, if necessary, to

receive the social study of the probation officer or to re-

ceive other evidence on its own motion or the motion of a

parent or guardian for not to exceed 10 judicial days if the

minor is detained during such continuance, and if the

minor is not detained, it may continue the hearing to a

date not later than 30 days after the date of filing of the

that the minor was 16 years of age or r at the

of the alleged commission of s offense and that the

minor would not be amenable to the care, treatment and

training program available through the facilities of the

court by the Youth Authority pursuant to Section 780

or 1737.1, the court may make a finding noted in the

minutes of the court that the minor is not a fit and proper

conliiins

respondent was not a fit subject for treatment as a

juvenile and ordered that respondent be turned over to

the sheriff and district attorney for prosecution as an

adult. [Exh. F to Dist. Ct. Petn., Record, p. 38.]

The juvenile court based its finding of unfitness on

the fact that respondent had been involved in no fewer

than three armed robberies. [/d.] The matter was set

over one month for a nonappearance report as to the

progress of the adult action. [/d.]

On April 1, 1971, the juvenile court denied a peti-

tion for state writ of habeas corpus filed on behalf of

this respondent. This petition raised the same double

jeopardy issue raised in respondent’s petition for writ

of habeas corpus in federal district court. [Exhs. G and

H to Dist. Ct. Petn., Record, pp. 43-65.] Thereafter

respondent sought habeas corpus relief in the Califor-

nia Court of Appeal, Second Appellate District, Divi-

sion Four. Although that court initially stayed the

subject to be dealt with under this chapter, and the court

shall direct the district attorney or other appropriate -

cuting officer to prosecute the person under the icabl

criminal statute or ordinance and thereafter dismiss peti-

tion or, if a prosecution has been commenced in another

court but has been suspended while juvenile court proceed-

ings are held, shall dismiss the petition and issue its order

directing that the other court proceedings resume.

“In determining whether the minor is a fit and proper

subject to be with under this chapter, the offeuse, in

itself, shall not be sufficient to support a finding that such

minor is not a fit and proper subject to be dealt with

under the provisions of the Juvenile Court Law.

See a Se ee See Se SS ee

is brought of any or all of the facts or conclusions set forth

therein oz of any inference to be drawn therefrom is not,

of itself, sufficient to —— a finding that such

is not a fit and per subject to be dealt with the

provisions of the Juvenile Court Law.

“The court shall cause the probation officer to investigate

and submit a report on the behavioral patterns of the

person being considered for unfitness.”

— Ss

pending criminal prosecution of respondent, it ulti-

mately rejected his double jeopardy claim in a published

opinion. In re Gary Steven J., 17 Cal. App. 3d 704,

95 Cal. Rptr. 185 (1971). On August 4, 1971, the

California Supreme Court denied this respondent's

petition for hearing with respect to the Court of Appeal

decision. [ Exh. I to Dist. Ct. Petn., Record, p. 66. ]

Subsequently respondent was held to answer after a

preliminary hearing on the robbery charge. Thereafter

an information charging one count of robbery in viola-

tion of California Penal Code section 211 was filed in

the California superior court. Respondent Gary Steven

Jones pleaded not guilty and submitted his case to the

court, without a jury, on the transcript of the prelimi-

nary hearing. The court found respondent guilty as

charged and ordered him committed to the California

Youth Authority where he is currently in constructive

custody on parole. [See Exhs. J-N to Dist. Ct. Petn.,

Record, pp. 67-84.] No appeal was taken from that

judgment of conviction.

On December 10, 1971, respondent Gary Steven

Jones, through his mother as guardian ad litem, filed

the instant petition for writ of habeas corpus in the

District Court. [Record, p. 2.] After receiving a re-

sponse on behalf of the California Youth Authority

and after hearing argument from both parties, the Dis-

trict Court denied the petition for writ of habeas corpus

in an order filed May 5, 1972. Jones y. Breed, 343

F. Supp. 690 (C.D. Cal. 1972). :

Respondent filed a timely notice of appeal. [ Record,

P. 157.] On June 21, 1972, the District Court de-

ae

—_

able cause.

On August 31, 1972, Chief Judge Chambers of the

Ninth Circuit granted respondent’s application for a

certificate of probable cause and his motion to appeal

in forma pauperis.

On May 15, 1974, the Ninth Circuit reversed the

judgment of the District Court “with directions for the

District Court to issue a writ of habeas corpus directing

the state court, within 60 days, to vacate the adult con-

viction of Jones and either set him free or remand him

to the juvenile court for disposition.”

On June 18, 1974, Judge Wallace of the Ninth Cir-

cuit granted a stay of the mandate of that court under

Rule 41(a) of the Federal Rules of Appellate Proce-

dure pending the filing, consideration and disposition by

this Court of the instant petition for writ of certiorari,

provided such petition was filed in the Clerk’s Office of

this Court on or before July 5, 1974. This petition has

been filed prior to that date. The stay order further

provides that, in the event the petition for writ of certi-

orari is granted, this stay is to continue pending the

final disposition of the case by this Court.

In this case, the jurisdiction of the district court

was invoked pursuant to the federal habeas corpus

Statutes, 28 U.S.C. §§ 2241 and 2254. The double

jeopardy issue presented by this petition was the only

issue raised and considered by the district court and the

Court of Appeals for the Ninth Circuit.

nied respondent’s application for a certificate of =

antinn

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

I

This Case Presents a Novel and Important Question of

Whether Double Jeopardy Bars the Adult Trial

of a Delinquent Juvenile Found Not to Be Amen-

able to Treatment Through the Facilities of the

Juvenile Court

In this case, after a finding of delinquency at a

jurisdictional hearing, the California juvenile court

found respondent Jones unfit for treatment as a juven-

ile because he had committed three armed robberies.

Thereafter respondent Jones was convicted of armed

robbery in adult criminal proceedings.

On habeas corpus, the California courts and the

federal district court found no violation of the prohibi-

ticn against double jeopardy because no new jeop-

ardy was involved when respondent stood trial as an

adult. The Court of Appeals for the Ninth Circuit

reversed the judgment of the district court and ordered

the issuance of a writ of habeas corpus. The Ninth

Circuit held that once jeopardy had attached at the

adjudicatory or jurisdictional hearing in juvenile court,

the minor could not be retried as an adult or as a ju-

venile absent some exception to the Fifth Amendment

guarantee against double jeopardy made applicable to

the States through the due process clause of the Four-

teenth Amendment. See Benton v. Maryland, 395 U.S.

784 (1969). Petitioner submits that this holding pre-

sents an important constitutional issue which this Court

should grant certiorari to decide.

At least 44 American jurisdictions have provisions

in their juvenile court statutes which perinit waiver of

jurisdiction over certain juveniles found unfit for treat-

atlties

ment in the facilities available to the juvenile court.

See Rudstein, Double Jeopardy in Juvenile Proceed-

ings, 14 Stan. L. Rev. 266, 297, n.128 (1972). Of

these jurisdictions, 33 states either make no mention

of when transfer to the criminal courts can occur or

expressly permit transfer after an adjudication of de-

linquency has begun. (/d. at 299-300 nn. 134-37.)

Six states, including the populous states of California

and Pennsylvania, permit the juvenile court to waive

jurisdiction after a finding of delinquency.’ (Jd. at

300 n. 136.) Only 11 jurisdictions provide that when

a waiver hearing is held, it must occur prior to a hear-

ing on the merits of the delinquency petition.* (Jd.

at 299 n. 134.)

In addition to the large number of jurisdictions

which will be affected if the Ninth Circuit’s applica-

tion of the double jeopardy clause to transfer proceed-

ings, this Court must also consider the retroactive na-

ture of such a double jeopardy rule in appraising the

importance of the question raised by this petition. In

Ashe v. Swenson, 397 U.S. 436, 438, n.1 (1970), this

Court stated that Benton v. Maryland, supra, was ret-

roactive in its application of double jeopardy to the

states. Retroactive application of the Ninth Circuit’s

decision to California alone would result in the release

5Conceptually, under the double jeopardy clause, it makes no

difference whether the transfer takes place before or after the

finding’ of delinquency. Assuming that jeopardy attaches when

the first witness is sworn at a combined adjudicatory and transfer

hearing, a new trial in adult court would be a second jeopardy

unless one concludes that no new jeopardy arises or that the

transfer is an exception to the double jeopardy prohibition.

*Obviously a decision to waive jurisdiction made prior to an

adjudicatory hearing would not involve double jeopardy because

the transfer hearing would then be akin to a preliminary hearing.

In Collins v. Loisel, 262 U.S. 426 (1923), this Court held that

jeopardy does not attach at a preliminary hearing.

— =

of a large number of dangerous felons. Taking the

period from 1969 through 1971 alone, it is readily

apparent from the following table that a substantial

number of prisoners may be eligible for outright re-

lease :'

PERSONS UNDER THE AGE OF 21 COMMITTED

TO CALIFORNIA PRISONS DURING THE YEARS

1969-1971

Offense Age at Date of Commitment

IS 16 17 18 19 20

First degree murder 19 19 20

Second degree murder

Manslaughter

First degree robbery

Second degree robbery

Assault with a deadly weapon

Assault on peace officer

Forcible rape

First degree burglary

Second degree burglary

Grand theft 4 19

Receiving stolen property -~—~ «3

Auto theft 1 19

Sale of narcotics

Sale of dangerous drugs

Cor oooooooocoorOoOncoeonan

N

oo

i)

wn

miooocoococoeocoroocoocoooooco

ojoooooc@eccocococococo

Weapons Laws a

Kidnapping 5

Arson ; 1 2

All other felonies a

TOTAL e 13 92 303 626

GRAND TOTAL: 1035

"These figures have been complied by the Bureau of Criminal

Statistics of the California Department of Justice. Although no

figures are presently available as to how many of these persons

are still in prison or on parole, one would expect a high per-

centage of these persons still to be in custody because most of

the crimes enumerated carry lengthy maximum sentences. For

example, the crimes of murder, robbery, and assault with a dead-

ly weapon are punishable by a maximum of life imprisonment in

California. With respect to these figures, it is presumed that all

of these juveniles transferred to adult court with a fitness hearing

which preceded an adjudicatory hearing on the delinquency peti-

tion filed in juvenile court. California law did not provide for

such a preliminary fitness hearing at that time.

—

In view of the probable impact of the Ninth Cir-

cuit rule, it is important that this Court consider wheth-

er double jeopardy must operate to bar the adult trial

of a juvenile who is found unfit for treatment as

a juvenile at or after a hearing on the issue of delin-

quency. This Court has stated that the Fifth Amend-

ment guarantee against double jeopardy furthers three

separate constitutional policies: (1) it protects against

a second prosecution for the same offense after ac-

quittal; (2) it protects against a second prosecution

for the same offense after conviction; and (3) it pro-

tects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

The first and third of these policies are inappli-

cable here because neither an acquittal nor multiple

punishment for the same offense is involved. If any of

these policies is applicable to the transfer situation, it

would be the second one which protects against a sec-

ond prosecution for the same offense after conviction.

In reality, however, this second policy of double jeop-

ardy appears to be just an aspect of the protection

against multiple punishment: a second prosecution is

barred after one conviction because it creates the risk

of a second sentence for the same offense. When a

juvenile court waives jurisdiction and orders a minor

prosecuted as an adult, there is no risk of a second

“sentence” for the same offense. Although the find-

ing of delinquency in juvenile court may be analogized

to a criminal conviction for some purposes, all of the

proceedings—both juvenile and adult—can only re-

sult in a single disposition when there is a waiver of

juvenile court jurisdiction. That disposition is a single

criminal sentence for a single criminal offense.

— =

The California courts and the federal district court

found that no new jeopardy was created by the transfer

of respondent Jones from juvenile court to adult court.

In re Gary Steven J., 17 Cal. App. 3d 704, 710,

95 Cal. Rptr. 185 (1971); Jones v. Breed, 343 F.

Supp. 690, 692 (C.D. Cal. 1972). See also Bryan y.

Superior Court, 7 Cal. 3d 575, 580-84, 102 Cal.

Rptr. 831, 498 P.2d 1079 (1972). This Court has

recognized that “a concept of continuing jeopardy...

has application where criminal proceedings against an

accused have not run their full course.” Price v. Geor-

gia, 398 U.S. 323, 326 (1970). Although the court

below would narrowly confine that concept to re-

trials which follow appellate reversals of criminal con-

victions, this Court has never intimated that continu-

ing jeopardy is limited to that context.

It should be observed that juvenile court transfer

proceedings do not permit the State “. . . to make re-

peated attempts to convict an individual for an al-

leged offense,” a practice which this Court disapproved

in Green v. United States, 355 US. 184, 187-88

(1957). The apparent purpose of the transfer proce-

dures enacted in California and other jurisdictions is

to see that the juvenile is accorded the full panoply of

criminal trial rights before he may be sentenced to

State prison. Those rights are not yet fully applicable

to juvenile delinquency proceedings. As Mr. Justice

Blackmun has written in McKeiver y. Pennsylvania,

403 U.S. 528, 533 (1971), “This Court, however, has

not said that all rights constitutionally assured to an

adult accused of crime also are to be enforced or

made available to the juvenile in his delinquency pro-

ceedings.” (Emphasis in original.) The further equa-

— Ss

tion of juvenile and adult court proceedings may ul-

timately lead some states to adopt criminal sentenc-

ing as one of the dispositional alternatives available

to the juvenile court judge.

In its opinion, the Ninth Circuit asserts that “apply-

ing double jeopardy protection to juvenile proceedings

will not impede the juvenile courts in carrying out their

basic goal of rehabilitating the erring youth.” (Slip

Opinion, p. 7.) In reality, it further engrafts the crim-

inal trial model onto the specialized structure of the

juvenile court system. To avoid the bar of double jeo-

pardy when seeking to remand a juvenile for trial as

an adult, states such as California must adopt a pre-

liminary hearing procedure in juvenile court to deter-

mine at the outset whether the minor is amenable to

treatment as a juvenile or whether he should be tried

as an adult. Such a procedure is reminiscent of the

command of the Red Queen in Lewis Carroll’s Alice

in Wonderland: “Sentence first—verdict afterward.”

A preliminary fitness hearing would require the juve-

nile court judge to focus on disposition considerations

before there has been an adjudicatory hearing on juris-

diction (“guilt”). The California Supreme Court has

pointed out the basic unfairness of this approach in

holding that the juvenile court commits reversible error

by reviewing the probation officer’s social study report

on disposition before the determination of the issue

of jurisdiction. The Court stated:

“The history of [California] Welfare and In-

stitutions Code sections 701, 702, and 706 clearly

indicates that the Legislature intended to create

a bifurcated juvenile court procedure in which the

court would first determine whether the facts of

culties

the case would support the jurisdiction of the court

in declaring a wardship and thereafter would con-

sider the social study report at a hearing on the

appropriate disposition of the ward. This proce-

dure affords a necessary protection against the pre-

mature resolution of the jurisdictional issue on

the basis of legally incompetent material in the

social report.” In re Gladys R., 1 Cal. 3d 855,

859-60, 83 Cal. Rptr. 671, 674-75, 464 P.2d

127, 130-31 (1970) (brackets added; footnotes

omitted ).

The purpose of requiring separate considerations of

wardship and of disposition was to prevent the court

from being affected, at the first stage, by evidence of

the minor’s character not relevant to determination of

his guilt. In re Gary Steven J., 17 Cal. App. 3d 704,

708, 95 Cal. Rptr. 185, 188 (1971).

It thus becomes evident that the Ninth Circuit’s de-

cision in this case does not require California to add a

just minor additional step to its juvenile court pro-

cedures. The preliminary fitness or waiver hearing man-

dated by the Ninth Circuit must be a costly and dupli-

cative full-blown trial bearing no resemblance to the

preliminary hearings held in the criminal courts. Under

California law, the nature of the crime allegedly com-

mitted, the circumstances and details surrounding its

commission, and the minor’s degree oi sophistication in

relation to criminal activities are factors which may be

considered by the juvenile court in the exercise of its

discretion in certifying a minor to the superior court

as not amenable to treatment as a juvenile. Jimmy H. v.

Superior Court, 3 Cal. 3d 709, 715-16, 91 Cal. Rptr.

600, 604, 478 P. 2d 32, 36 (1970). In order to pre-

=

clude manifest unfairness to the juvenile facing trans-

fer, the offense alleged in the juvenile court petition

will need to be proved at the waiver hearing by some

quantum of proof beyond the submission of a mere

prima facie case. Otherwise, a child of tender years

may have to stand trial in adult court because of a

presumption of guilt based on a limited factual hear-

ing. In addition, the judge who presides at the fitness

hearing must be disqualified from sitting at the subse-

quent jurisdictional hearing if the minor is found to be

amenable to treatment as a juvenile, this requirement

because of the potential of prejudice at the adjudica-

tory hearing from this judge’s having examined the ma-

terials on the minor’s prior criminal history in the pro-

bation department’s social study. Thus, in order to

satisfy the Ninth Circuit’s view of the proper interpreta-

tion of the double jeopardy clause, the juvenile courts

must conduct two full trials presided over by two dif-

ferent judges in every case where there is a question as

to the minor’s amenability to treatment in the facilities

available to the juvenile court.

Petitioner further submits that the Ninth Circuit de-

cision does reflect full appreciation of the purpose

served by transfer proceedings when it asserts that “Ap-

pying double jeopardy protection to juvenile proceed-

ings will not impede the juvenile courts in carrying out

their basic goal of rehabilitating the erring youth.” (Slip

Opinion, p. 7.) Transfer provisions, such as California

Welfare and Institutions Code section 707, permit the

juvenile courts to screen out the hardened juvenile of-

fender from those minors who show a better prospect

for rehabilitation. As explained by one writer:

“At some point during the adjudication of a

delinquency case it may become apparent to the

anfitin

juvenile court that the minor is unlikely to benefit

from the rehabilitative resources available to the

court. The minor may have demonstrated by his

past behavior, for example, that rehabilitation is

improbable and that more severe punishment is

required. He may have proven himself a threat to

the proper functioning of juvenile institutions dur-

ing a prior commitment, thereby requiring place-

ment elsewhere; he may be so old that the juvenile

court cannot retain jurisdiction over him for a

period long enough to rehabilitate him or to

punish him fully for his offense. The court may

send the juvenile to the criminal court for adjudi-

cation as an adult for any of these penological

reasons. . . .” Note, Double Jeopardy and the

Waiver of Jurisdiction in California's Juvenile

Courts, 24 Stan. L. Rev. 874, 877 (1972) (foot-

note omitted ).

By requiring a final determination of fitness prior to

the adjudicatory hearing, the Ninth Circuit rule is like-

ly to create two pernicious effects. In close cases the

juvenile court judge may opt for an adult trial rather

than run the risk that a hardened offender not amen-

able to treatment must be retained in a juvenile facility

where his attitude and example may adversely affect

the rehabilitation of other youths. In other cases, the

true character of the juvenile may not be apparent at

the outset of proceedings. In these cases, the more

serious offender must be kept in one of the treatment

facilities available to the juvenile court where he may

be able to corrupt other youths and disrupt efforts di-

rected toward the rehabilitation of others.

A third additional effect of the Ninth Circuit rule

will be in the windfall bestowed upon qa large number

— =

of dangerous felons who were certified for trial as

adults at a time when juvenile court proceedings were

thought to be “civil proceedings” and who were given

the benefit of an adult trial, not as a repeated attempt

to obtain a conviction, but in order to give them the

greater protections accorded in adult criminal proceed-

ings. In McKeiver v. Pennsylvania, supra, 403 U.S. at

551, this Court observed:

“If the formalities of the criminal adjudicative

process are to be superimposed upon the juvenile

court system, there is little need for its separate

existence. Perhaps that ultimate disillusionment

will come one day but for the moment we are

disinclined to give impetus to it.”

The application of double jeopardy to bar adult

trials for minors over whom the juvenile court has

waived jurisdiction clearly decreases its flexibility. If it

is unable to fulfill the rehabilitative ideal because of

an inability to remove disruptive or depraved individ-

uals from its programs, a promising experiment may

come to an end. It would indeed be anomalous if the

application of double jeopardy to waiver proceedings

were to occasion this result. At common law, there

were no juvenile courts, and hence there was no ana-

logue to the sui generis proceedings here involved.

Therefore, it cannot be said that the framers of the

Bill of Rights ever intended double jeopardy to apply

to this unique feature of the juvenile court structure.

While the Ninth Circuit notes that there is authority

indicating that the preferred practice is to hold a fit-

ness hearing prior to any determination of delinquency

(Slip Opinion, p. 9), this preference appears to be

based on the cautious assumption that such a practice

is mecessary to avoid potential application of double

jeopardy to transfers of juveniles to adult courts for

trial. The fact remains, however, that 33 states permit

transfer after an adjudication of delinquency has be-

gun. Although the widespread extent of a practice is

not conclusive as whether that practice accords with

due process, this Court has held that it is plainly

worth considering in determining whether the practice

offends some principle of justice so rooted in the tradi-

tions and conscience of our people as to be ranked as

fundamental. Leland v. Oregon, 343 U.S. 790, 798

(1952). Petitioner submits that the extent of the prac-

tice involved here and its importance to the proper

functioning of the Nation’s juvenile courts make this

case appropriate for certiorari.

II

This Court Should Grant Certiorari to Resolve a

Conflict Between the Circuits

In holding that double jeopardy barred respondent's

trial as an adult, the Ninth Circuit rejected the clear

precedent of a prior District of Columbia Circuit de-

cision to the contrary. In United States v. Dickerson,

271 F. 2d 487, 491 (D.C. Cir. 1959), the Court of

Appeal held that the “full investigation” required by

the District of Columbia juvenile court laws prior to a

waiver of jurisdiction contemplated at the very least

an informal hearing into the allegations of the petition.

The court concluded:

as . it was not improper for the Juvenile

Court to conduct a hearing before determining

whether or not to waive jurisdiction. To hold

that jeopardy attached at that point would pre-

—— gee es .

aaffien

clude the full and informal investigation in the

interests of the minor and the community which

Congress thought necessary to achieve the salutary

remedial purposes of a juvenile court system.”

(Id. at 491-82.)

The Dickerson case is indistinguishable from the

instant case. In Dickerson, the juvenile admitted the

conduct alleged in the delinquency petition, and the

juvenile court found him to be within its jurisdiction

of a delinquent child. Thereafter the juvenile court

waived jurisdiction to the district court for trial. (/d.

at 489-90.) The minor involved was indicted for rob-

bery, but the district court dismissed indictment on

the ground that double jeopardy had attached in the

juvenile court proceedings. United States v. Dickerson,

168 F. Supp. 899, 900-03 (D.D.C., 1958). From

these facts, it is clear that the Court of Appeals

decision in Dickerson is in square conflict with the

Ninth Circuit’s decision in this case. The opinion of

the Ninth Circuit acknowledges the conflict by stating:

“We recognize there is dicta to the contrary

in United States v. Dickerson, 271 F.2d 487

(D.C. Cir. 1959), but that language has been so

undercut by Kent, Gault, and Winship, that we

are not persuaded that it is a correct statement

of today’s law.” (Slip Opinion, p. 11.)

Of course, none of the decisions of this Court which

purportedly undercut the holding of Dickerson hold

that double jeopardy applies to juvenile court proceed-

ings, much less to the waiver of jurisdiction involved

here.

—fiGu.

Iii

This Case Also Presenis a Conflict Between the Ninth

Circuit and the California Supreme Court on a

Question cf Federal Constitutional Law

Perhaps even more important than the conflict be-

tween the circuits as a factor which should motivate

this Court to grant certiorari, is the direct conflict be-

tween the California Supreme Court and the Ninth

Circuit on the question of whether double jeopardy

bars an adult criminal trial where a waiver of juris-

diction occurs during or after a hearing on the merits

of a juvenile delinquency petition. The California Su-

preme Court expressly approved the decision of the

California Court of Appeal in this case, agreeing with

the application of the concept of continuing jeopardy

and rejecting the view that a transfer of the minor is

constitutionally forbidden once legal jeopardy has at-

tached at the jurisdictional stage of the juvenile court

proceedings. Bryan v. Superior Court, 7 Cal. 3d 575,

580-83, 102 Cal. Rptr. 831, 834-36, 498 P.2d 1079,

1082-84 (1972), cert. denied, 410 U.S. 944 (1973).

In this case, the Ninth Circuit has taken the opposite

view.

While the California Supreme Court has indicated

that the juvenile courts of this state may conduct fit-

ness hearings prior to hearing the merits of a delin-

quency petition (see Donald L. v. Superior Court, 7

Cal. 3d 592, 598, 102 Cal. Rptr. 850, 853, 498 P. 2d

1098, 1101 (1972)), the Bryan decision, supra, makes

afifion

it clear that the failure to hold the fitness hearing be-

fore the jurisdictional hearing will not be reversible

error. Moreover, it is well established in California

jurisprudence that, although the California courts are

bound by decisions of this Court interpreting the fed-

eral Constitution, they are not so bound by decisions

of the lower federal courts even on federal questions.

See, e.g., People v. Bradley, 1 Cal. 3d 80, 86, 81

Cal. Rptr. 457, 460, 460 P. 2d 129, 132 (1969).

Thus, the net result will be a substantial number of

California criminal judgments which will be affirmed

on appeal only to be set aside on federal habeas corpus

under compulsion of the Ninth Circuit’s decision in this

case. Unless this Court grants certiorari, this Circuit

may be treated to the spectacle of a federal-state con-

flict of massive proportions. The latest figures avail-

able indicate that the following numbers of juveniles

were remanded for trials as adults during the period

of 1968 through 1972: 1,018 in 1968; 797 in 1969;

914 in 1970; 894 in 1971; and 509 in 1972. Bureau

of Criminal Statistics, Calif. Dept. of Justice, Crime

and Delinquency in Calijornia—1972, p. 52, table

13. Petitioner submits that this Court should grant cer-

tiorari to forestall the deterioration of federal-state rela-

tions which might ensue if the California courts were

ordered to set aside their judgments in all, or even

most, of these cases.

_ =

Conclusion

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Ninth Cir-

cuit.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General of the State

of California,

JACK R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

S. CLARK Moore,

Assistant Aitorney General,

RUSSELL IUNGERICH,

Deputy Attorney General,

Attorneys for Petitioner.

APPENDIX A.

Opinion of the United States Court of Appeals

for the Ninth Circuit.

United States Court of Appeals, for the Ninth Cir-

cuit.

Gary Stevens Jones, a minor, by and through Lola

Mae Jones, his guardian ad litem, Petitioner-Appellant,

vs. Allen F. Breed, Director of the California Youth

Authority; Robert McKibben, Superintendent of the

Southern Regional Center Clinic, California Youth Au-

thority, Respondents-A ppellees. No. 72-2644.

[May 15, 1974].

Appeal from the United States District Court for

the Central District of California.

Before: GOODWIN and WALLACE, Circuit Judges,

and EAST,* District Judge

WALLACE, Circuit Judge:

Seventeen-year-old Jones was apprehended for rob-

bery, detained and adjudicated a ward of the juvenile

court. Subsequently, he was referred for trial as an

adult and was convicted. Having exhausted his state

remedies, he unsuccessfully applied to the district court

for habeas corpus relief, claiming a violation of his

Fifth Amendment right against double jeopardy. We re-

verse.

California does not challenge the use of habeas

corpus as a proper remedy in this case, see Fain v.

Duff, 488 F.2d 218 (Sth Cir. 1973), or contend that

Jones has not exhausted his state remedies. The sole

question before us is whether jeopardy attached during

*Honorable William G. East, Senior United States District

Judge, Eugene, Oregon, sitting by designation.

—_

the juvenile court proceedings to prevent Jones’ trial as

an adult.

The State of California filed a petition in the juvenile

court alleging that Jones, a minor, had committed an

act which, if committed by an adult, would be a viola-

tion of Cal. Penal Code § 211 (robbery). If the alle-

gations in the petition were true, the juvenile court had

jurisdiction pursuant to Cal. Welf. & Inst’ns Code

§ 602.’ The juvenile court, following a preliminary

hearing, ordered that Jones be detained pending a hear-

ing on the delinquency petition.

Twenty days later, the juvenile court held the delin-

quency hearing’ for the purpose of determining wheth-

er Jones had committed the crime alleged, whether the

juvenile court had jurisdiction and whether Jones

would be adjudged a ward of the court.’ Thus, for the

juvenile court to proceed, the state had to prove that

Jones committed the robbery. With the exception of

a right to a jury trial, the delinquency hearing is in

the nature of a criminal trial. See In rc Winship, 397

1Cal. Welf. & Inst’ns Code § 602 provides in part:

Any person who is under the age of 18 years when he

violates any law of this state or of the United States or any

ordinance of any city or county of this state defining crime

. . . is within the jurisdiction of the juvenile court, which

may adjudge such person to be a ward of the court.

*Cal. Welf. & Inst’ns Code § 701 provides in part:

At the hearing, the court shall first consider only the

uestion whether the minor is a person described by Sections

200, 601, or 602, and for this pur , any matter or in-

formation relevant and material to the circumstances or acts

which are alleged to bring him within the jurisdiction of

the juvenile court is admissible and may be received in evi-

dence; however, proof beyond a reasonable doubt supported

by evidence, legally admissible in the trial of criminal cases,

must be adduced to support a finding that the minor is a

person described by Section 602... .

*See note 1, supra.

_

U.S. 358, 365-66 (1970); In re Gault, 387 U.S. 1,

49-51 (1967). Jones and two prosecution witnesses

testified at the hearing. The juvenile court found that

Jones had committed the robbery and that Jones was

under the jurisdiction of the juvenile court and con-

tinued the proceedings to a later date at which time

the court would determine the proper disposition of

Jones.‘ At the subsequent hearing, the juvenile court

judge announced he did not intend to proceed with

Jones as a juvenile but intended to find him unamen-

able to the rehabilitative facilities of the juvenile court

and to direct the District Attorney to prosecute Jones

as an adult.” Upon an objection by Jones that he had

*Cal. Welf. & Inst’ns Code § 702 provides in part:

After hearing such evidence, the court shall make a find-

ing, noted in the minutes of the court, whether or not the

minor is a person described by Section 600, 601, or 602.

If it finds that the minor is not such a person, it shall

order that the petition be dismissed and the minor be dis-

charged from any detention or restriction theretofore ordered.

If the court finds that the minor is such a n, it shall

make and enter its findings and order accordingly and shell

then proceed to hear evidence on the question of the proper

disposition to be made of the minor. Prior to doing so, it

may continue the hearing, if necessary, to receive the social

study of the probation officer or to receive other evidence

on its own motion or the motion of a parent or guardian

for not to exceed 10 judicial days if the minor is detained

during such continuance.

5Cal. Welf. & Inst’ns Code § 707 provides in part:

At any time during a hearing upon a petition alleging

that a minor is, by reason of violation of any criminal

statute or ordinance, a person described in Section 602, 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 care, treatment and training

program available through 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 this chapter, and the court shall di-

(This footnote is continued on next page)

—

assumed the hearing was to determine disposition to

the appropriate juvenile facility, not to determine certi-

fication to the adult court for criminal prosecution, the

court granted a one-week continuance. At the next

hearing, Jones objected to the certification, contend-

ing, among other things, that he had already been ad-

judicated a person described in Cal. Welf. & Inst’ns

Code § 602° by the juvenile court and, therefore,

certification to be “tried” again would place him twice

in jeopardy. The court rejected the argument and

certified Jones to be tried as an adult.

Following an unsuccessful attempt to secure habeas

corpus relief in the state courts, Jones was tried and

found guilty of armed robbery and his double jeopardy

argument was again rejected.

Undaunted, Jones filed a petition for habeas corpus

in the district court, once more claiming double jeop-

ardy. The district court judge denied the petition, hold-

ing that jeopardy does not attach in the juvenile pro-

ceedings and even if it had, no new jeopardy arose by

the procedure of certifying Jones to be tried and ulti-

mately convicted as an adult. Jones v. Breed, 343 F.

Supp. 690 (C.D. Cal. 1972).

We must first resolve whether the protection of the

Fifth Amendment “nor shall any person be subject for

the same offense to be twice put in jeopardy of life

rect the district attorney or other appropriate osecuting of-

ficer to prosecute the person under the applicable criminal

statute or ordinance and thereafter dismiss the petition or,

. a Lj —» osecution has been commenced in another court but

n suspended while juvenile court proceedings are

held, shall dismiss the petition and issue its order directing

that the other court proceedings resume.

*See note 1, supra.

afin

or limb . . . .” applies to juvenile court proceedings.’

Certainly the constitutional mandate makes no distinc-

tion between adults and juveniles. See Jn re Gault, 387

U.S. 1, 13 (1967). The district court found that the

nature of the juvenile court proceeding is such that it

should be treated differently from adult criminal pro-

ceedings and double jeopardy restrictions should not

be applied.

The juvenile court system was conceived around the

turn of the century with the emergence of the enlight-

ened concept of separating erring children from hard-

ened felons.* The primary objective of the new system

was to take juvenile offenders out of adult courts and

adult bastilles and provide them with a sound rehabili-

tation program.® The system was envisioned as civil

in nature rather than criminal. Traditional adversarial

fact-finding procedures were abandoned in favor of

informal procedures that would allow the court to de-

termine what was in the juvenile’s best interest and how

he could be retrained, while at a pliable age, to live

*The double j y clause of the Fifth Amendment —

to the states th the Fourteenth Amendment. Benton v. Mary-

land, 395 U.S. 784 (1969) (overruling Palko v. Connecticut,

302 U.S. 319 (1937)).

*Mennel, Origins of the Juvenile Court: Changing Perspectives

on the Py Rights of Juvenile Delinquents, 18 Crime and

Delin. 69 (1972); Comment, Constitutional Rights of Ju-

veniles: “Gaul and Its Application, 9 Wm. & Mary L. Rev.

492 (1967); Note, Due Process and the Juvenile Offender: The

Scope of In re Gault, 14 How. L.J. 150, 51 (1968). For a very

thorough history of the juvenile justice system in the United States

from its meager beginning in the 1820's to the landmark enact-

ment of the juvenile court in Illinois in 1899 (the forerunner of

the modern movement), see Fox, Juvenile Justice Reform: An

Historical Perspective, 22 Stan. L. Rev. 1187 (1970), and Men-

nel, supra.

*Note, supra note 8, at 151; Comment, supra note 8, at 492.

—o—

lawfully in society." The juvenile court judge, in his

role as “father”"’ to the erring juvenile, was to protect

his interest and welfare. Rules of evidence were aban-

doned and constitutional guarantees provided in adult

proceedings were not afforded juveniles."

Although the adoption of these informal methods

was perhaps sound in principle, the complexities of our

society and our overcrowded juvenile court facilities

dictated some modification.’ In Kent v. United States,

383 U.S. 541 (1966), the Court analyzed the proce-

dure for referring a juvenile for trial as an adult. Rec-

ognizing the significant disparity of what could happen

to the juvenile depending upon whether he was tried

as a juvenile or as an adult, the Court was no longer

willing to have the waiver of jurisdiction decision made

without the due process requirements of a hearing, rep-

resentation by counsel, a statement of reasons or con-

siderations for any referral to the adult court and

opportunity for the juvenile’s counsel to review the

child’s social study records.

Kent was followed by In re Gault, 387 U.S. 1 (1967),

in which the Court mandated due process protection

at the delinquency hearing by requiring (1) that the

juvenile be given adequate notice of the charges, (2)

that he be given the right to counsel, (3) that he be

allowed to assert the privilege against self-incrimination

and (4) that he be given the right to confront and

Mennel, supra note 8, at 69; Note, supra note 8, at 151;

Comment, supra note 8, at 492.

“Haviland, Daddy Will Take Care of You: The Dichotomy of

the Juvenile Court, 17 Kan. L. Rev. 317, 322 (1969).

Id.

“’McKeiver v. Pennsylvania, 403 U.S. 528, 543-45 (1971);

Comment, supra note 8, at 492; see Note, supra note 8, at 151.

anf

cross-examine witnesses. More importantly, the Gault

Court sounded a new approach to the juvenile system

and rejected the theory that constitutional safeguards

should be denied juveniles by the expedient of labeling

the proceedings as civil when in fact they were criminal

in nature. The Court reemphasized this requirement in

In re Winship, 397 U.S. 358 (1970), holding that the

charges against the juvenile must be proven at the de-

linquency hearing beyond a reasonable doubt. After

Winship, if the state wished to limit constitutional

rights, it inherited the burden of proving that criminal

safaguesds would be detrimental to Pe age

of the juvenile system."

It was unclear, however, whether these constitution-

al safeguards” included the Fifth Amendment protec-

tion against double jeopardy."* The Supreme Court

has held that not all common law protections avail-

able to adults are available to juveniles. The Constitu-

tion does not require the total emasculation of juven-

“The Supreme Court, 1969 Term, 84 Harv. L. Rev. 1, 160

(1970).

_'8Following Gault, many commentators speculated on what ad-

juveniles.

See Carver and White, Constitutional Safeguards for the Juvenile

Offender, Implications of Recent Supreme Court Decisions, 14

Crime and Delin. 63 (1968); Gardner, Gault And California,

19 Hastings, LJ. 527 (1968): Comment, Juvenile Court Pro-

cedures Beyond GAULT, 32 Albany L. Rev. 126 (1967); Note,

Extending Constitutional Rights To Juveniles—Gault in Indiana,

43 Ind. LJ. 661 (1968); Note, The Constitution And Juvenile

s, 32 Mont. L. Rev. 307 (1971); Comment, In Re

Gault And The Persisting Questions Of Procedural Due Process

And Legal Ethics In Juvenile Courts, 47 Neb. L. Rev. 558

(1968).

‘Note, Double Jeopardy and the Waiver of roy in

California's Juvenile Courts, 24 Stan. L. Rev. 874 (1972); Note,

Double Jeopardy and Due Process in the Juvenile Courts, 29

U. Pitt. L. Rev. 756 (1968).

_

ile court procedures. As Justice Blackmun stated in

McKeiver v. Pennsylvania, 403 U.S. 528, 551 (1971):

If the formalities of the criminal adjudicative

process are to be superimposed upon the juvenile

court system, there is little need for its separate

existence. Perhaps that ultimate disillusionment

will come one day, but for the moment we are

disinclined to give impetus to it.

The basic approaches of the juvenile and adult adjudi-

cative processes dictate that the systems not operate

exactly alike. In McKeiver, the Court rejected the con-

tention that a juvenile court must provide a jury trial;

Justice Blackmun stated:

If the jury trial were to be injected into the

juvenile court system as a matter of right, it would

bring with it into that system the traditional de-

lay, the formality, and the clamor of the adversary

system and, possibly, the public trial.

403 U.S. at 550. But that case does not dictate the non-

applicability of double jeopardy. Whether a jury is re-

quired deals with the method of juvenile adjudication;

whether double jeopardy applies goes to the very core

of basic application of rights and does not affect how

the juvenile is tried. Its only effect on procedure per-

tains to whether the hearing to determine whether a

minor is a fit subject for the juvenile program must be

held before he is adjudicated a ward of the court.

Applying double jeopardy protection to juvenile pro-

ceedings will not impede the juvenile courts in carrying

out their basic goal of rehabilitating the erring youth.

Indeed, basic constitutional guarantees such as that

against double jeopardy are so fundamental to our no-

tions of fairness that our refusal to find them appli-

afi

cable to the youth may do irreparable harm to or de-

stroy their confidence in our judicial system. Ultimately,

this may be more important than our recognition of the

need for special and informal procedures to rehabili-

tate juveniles.

A youth is entitled to double jeopardy protection

particularly when the state has elected to try him as an

adult. We agree with the Fifth Circuit’s statement in

Fain v. Duff, 488 F.2d 218, 225 (Sth Cir. 1973):

Here we have a juvenile threatened with a crimi-

nal prosecution. By indicting him, the state has

expressed a desire to treat him in all respects as

an adult. Is there any question that since the state

now proposes to subject him to the powers of the

state as it would an adult, it must now accord him

all the procedural rights than an adult has?

We hold that the Fifth Amendment guarantee of dou-

ble jeopardy is fully applicable to juvenile court pro-

ceedings.

Having concluded that the protection against double

jeopardy is among the safeguards available to a juven-

ile, we must decide whether jeopardy attaches during

the delinquency hearing. When the juvenile court can,

on the basis of the delinquency hearing, impose severe

restrictions upon the juvenile’s liberty, we believe

jeopardy attaches. As the Fifth Circuit, when faced

with a similar question in Fain v. Duff, 488 F.2d at 225,

concluded:

Although commitment to the Division of Youth

Services may result in the juvenile being allowed

to return to his home, it may also result in in-

carceration until age 21. Fain’s commitment to

the division resulted from his having been found

anit

delinquent. And his being found delinquent re-

sulted from his having violated a criminal law of

the State of Florida. F.S.A. §39.01(9). Thus, a

violation of the criminal law may directly result

in incarceration. This is a classic example of “jeop-

Several states have held that jeopardy attaches in

the juvenile court proceeding.'’ The California Su-

preme Court in Richard M. v. Superior Court, 4 Cal.

3d 370, 482 P.2d 664 (1971), held that a second

juvenile prosecution is barred where the identical de-

linquency petition has been dismissed in a prior juven-

ile court proceeding where, after a hearing on the

merits, a termination similar to an acquittal has been

ordered.

Although California concedes that jeopardy attaches

when the juvenile is adjudicated a ward of the court,

it argues that no new jeopardy attaches when the ju-

venile is referred to the adult court and subsequently

convicted. It contends that the juvenile’s prosecution

in both the juvenile and adults courts is one continuous

proceeding. To provide a legal theory for its position,

California points to its own decisions contending that

there is a “continuing jeopardy.” Bryan v. Superior

Court, 7 Cal.3d 575, 583, 498 P.2d 1079 (1972),

cert. denied, 410 U.S. 944 (1973). That theory was

applied by the California District Court of Appeal

and by the United States District Court in this case.

''E.g., Arizona: Anonymous v. Superior Court, 10 Ariz.App.

243, 457 P.2d 956 (1969); Idaho: State v. Gibbs, 94 Idaho

908, 500 P.2d 209 (1972); lowa: State v. Halverson, 192 N.W.

2d 765 (lowa 1971); Texas: Collins v. State, 429 $.W.2d 650

(Tex. App. 1968).

— )

In re Gary J., 17 Cal.App.3d 704 (1971); Jones v.

Breed, 343 F.Supp. 690, 692 (C.D. Cal. 1972).

Jones argues, on the other hand, that if the juvenile

court is to certify a child to the adult court free of

jeopardy, it must do so at a fitness hearing held prior

to any determination of delinquency. There is no doubt

that this is the preferred practice. Antieau, Constitu-

tional Rights in Juvenile Courts, 46 Cornell L. Q. 387,

397-98 (1961); California Juvenile Court Deskbook,

§ 10.4, at 148-50 (Cal. College of Trial Judges

(1972)); Model Rule for Juvenile Courts 9, National

Council on Crime and Delinquency (1969). In fact,

the California Supreme Court has commended this pro-

cedure. Donald L. v. Superior Court, 7 Cal.3d 592, 598,

498 P.2d 1098, 1101 (1972).”

The question, however, is not whether it is prefer-

able to have the fitness hearing first,” but whether

the subsequent adult trial is a new jeopardy rather than

a continuing jeopardy which both parties agree at-

taches at the juvenile court delinquency hearing. The

theory of continuing jeopardy was implied in United

States v. Ball, 163 U.S. 662 (1896), and enunciated

by Justice Holmes in his dissent in Kepner v. United

States, 195 U.S. 100, 134-35 (1904). In Kepner the

Court held that to allow the prosecution to appeal from

a judgment of acquittal would place a defendant in

double jeopardy. Justice Holmes dissented, arguing that

18The thrust of Jones’ argument is that, in order to comport

with the prohibition against double jeopardy, the juvenile court

must waive jurisdiction in favor of the adult court prior to the

delinquency heariny and not after it. Some states provide for this

by statute. E.g., Ga. Code Ann. § 24-A-2501; N.M. Stat. Ann.

§ 13-14-27.

"The fitness —— procedure is described in Jimmy H.

v. Superior Court, 3 Cal.3d 709, 478 P.2d 32 (1970).

— =

“a man cannot be said to be more than once in jeop-

ardy in the same cause, however often he may be

tried. The jeopardy is one continuing jeopardy from

its beginning to the end of the cause.” The prohibition

of double jeopardy. he argued, only forbids “a trial in

a new and independent case where a man already

[has] been tried once.” 195 U.S. at 134.

The Court has never adopted Holmes’ theory,”

but it has adopted a form of continuing jeopardy under

which a person may be retried on any charges of an

indictment for which he has been convicted and for

which he has, upon an appeal initiated by him, had

that conviction reversed. Green v. United States, 355

U.S. 184 (1957). If he has been acquitted, either

implicitly or expressly, of any charge, he cannot be re-

tried on that charge. Price v. Georgia, 398 U.S. 323

(1970). Similarly, he may not be tried for a single

offense growing out of a single occurrence, criminal

episode or transaction by two courts created under

the authority of one state. Waller v. Florida, 397 U.S.

387 (1970); Ashe v. Swenson, 397 U.S. 436 (1970).

The principles of continuing jeopardy, as adopted

by the Supreme Court, do not support California’s ar-

gument that the jeopardy that attaches at the juvenile

adjudicatory hearing continues through the adult

20(Justice Holmes] did dissent from the holding in Kepner—

that the Government could not appeal an acquittal—on the

ground that a new trial after an appeal by the Government

was part of the continuing jeopardy rather than a second jeopardy.

But that contention has been consistently rejected by this Court.

Green v. United States, 355 U.S. 184, 196 (1957).

Nee —————————rlre ee ee

— =

trial.*’ First, the trial in adult court does not follow

as a result of an appeal taken by the minor from

his juvenile court conviction, but is a retrial for the

same offense initiated by the state. Continuing jeop-

ardy allows retrial following an appeal initiated by the

defendant claiming error in his first conviction. If the

conviction is reversed, retrial must be in the same court

as the first trial. It would be in violation of the prin-

ciples enunciated in Price v. Georgia and Green v.

United States to allow the state to initiate a retrial after

it has already obtained a conviction in juvenile court.

Second, transfer following the adjudicatory hearing

would essentially allow the minor to be tried for one

offense in two courts created by the same state in viola-

tion of the principles enunciated in Waller v. Florida

and Ashe v. Swenson. The juvenile courts are a sep-

arate court system from the adult courts and once a

minor has been placed in risk of conviction he cannot

be retried. Although trial in both the juvenile and the

adult court may not result in separate punishment,

double jeopardy protects double risk of conviction, not

21As one commentator recently asserted:

Continuirz jeopardy relies on the yin oan that the sev-

eral trials are all based on the same complaint. In the certifi-

cation situation this underlying premise is lacking. When the

juvenile court judge enters a finding of nonamenability, the

juvenile petition is dismissed; subsequent criminal action is

based on a new complaint alleging the same facts. Even

under Holmes’s formulation this would not be continuing

jeopardy since each prosecution proceeds under the authority

of a different complaint.

Note, Double Jeopardy and the Waiver of Jurisdiction in Cali-

fornia’s Juvenile Courts, 24 Stan. L. Rev. 874, 888 (1972) (foot-

notes omitted).

—14—

just double risk of punishment. Price v. Georgia, 398

U.S. at 331. Rather than supporting California’s ap-

proach, the principles of continuing jeopardy dictate

that once jeopardy has attached to a minor in a ju-

venile court delinquency hearing, he may not be placed

in peril of conviction in an adult court for charges

based on any occurrence, criminal episode or trans-

action used as the basis for the petition in the juvenile

court.

The Fifth Circuit in Fain v. Duff, 488 F.2d 218 (5th

Cir. 1973), reached this same conclusion. Fain was ar-

rested for rape and adjudged a delinquent by a ju-

venile court. Subsequently, a grand jury indicted him

for the same offense. Habeas corpus issued from the

district court based upon former jeopardy and the cir-

cuit court affirmed. We detect no reason to distinguish

Fain from our case and are disposed to adopt its reason-

ing. We recognize there is dicta to the contrary in

United States v. Dickerson, 271 F.2d 487 (D.C. Cir.

1959), but that language has been so undercut by

Kent, Gault and Winship, that we are not persuaded

that it is a correct statement of today’s law.

There are basic issues of fairness upon which we

should comment. Nowhere in our criminal system do

we allow the prosecution to review in advance the ac-

cused’s defense and, as here, hear him testify about the

crime charged. The most heinous and despicable crim-

inal is saved from such an invasion of his fundamental

rights. Yet, if we adopt California’s position, we ap-

prove having such a procedure applied to those of

tender years. This offends our concepts of basic, even-

handed fairness.

enffian

We hold that once jeopardy attaches at the adjudica-

tory or jurisdictional hearing in the juvenile court

(here held pursuant to Cal. Welf. & Inst’ns Code

§ 602), the minor may not be retried as an adult or

a juvenile absent some exception to the double jeop-

ardy prohibition. There was none here. We cannot al-

low this fundamental constitutional right to be wrenched

from the minor under the guise of providing a system

for his protection.

We reverse with directions for the district court to

issue a writ of habeas corpus directing the state court,

within 60 days, to vacate the adult conviction of Jones

and either set him free or remand him to the juvenile

court for disposition.

anion

APPENDIX B.

Gary Steven Jones, a minor, by and through Lola

Mae Jones, his guardian ad litem, Petitioner, v. Allen

F. Breed, Director of the California Youth Authority,

Robert McKibben, Superintendent of the Southern Re-

gional Center Clinic, California Youth Authority, Re-

spondents. No. 71-2907-LTL.

343 F.Supp. 690 (C.D. Cal., May 5, 1972).

MEMORANDUM AND ORDER

LYDICK, District Judge.

This matter is before the Court on a Petition for

Writ of Habeas Corpus filed on behalf of minor Gary

Steven Jones, a prisoner of the State of California com-

mitted to the California Youth Authority after his con-

viction under California law of robbery in the first de-

gree.

The Court has considered the arguments and has

reviewed the Petition, the response, the reply and the

authorities cited by both parties as well as the complete

record of all state court proceedings.

The sole issue before this Court is whether Jones

has been placed twice in jeopardy in violation of his

rights under the Fifth and Fourteenth Amendments to

the United States Constitution by reason of his subjec-

tion to those procedures of the Welfare and Institutions

Code of the State of California, known otherwise as the

Juvenile Court Law, establishing a special treatment

for suspected juvenile offenders.’

‘California Welfare and Institutions Code, Sections 602, 701,

702 and 707.

— =

The question here presented has been previously

considered at each stage of the proceedings before the

involved state courts and duly submitted to the Court

of Appeal, Second District, and Supreme Court of the

State of California, on habeas corpus.’

Briefly stated, the facts are that on February 9,

1971 a petition was filed with the juvenile court in

Los Angeles, alleging that Jones was a person described

by Section 602 of the Welfare and Institutions Code in

that he had committed an act which, if committed by

an adult, would constitute a violation of Section 211

of the Penal Code of the State of California (robbery).

After a detention hearing, the minor was detained pend-

ing a hearing on the petition. A second hearing, pur-

suant to Section 701 of the Welfare and Institutions

Code, was held on March 1, 1971 and resulted in a

finding that the allegations of the petition were true

and that the minor was a person described by Section

602. The proceedings were continued for dispositional

hearing pursuant to Section 702. At that hearing, the

Court announced its intention to find, pursuant to Sec-

tion 707, that the minor would not be amenable to the

care, treatment and training program available through

the facilities of the juvenile court and that the court in-

tended under that section to dismiss the petition and

direct that the minor be prosecuted as an adult in the

Superior Court. After an adjournment, sought by the

minor’s counsel, such an order was made. Jones

was thereafter prosecuted as an adult in the Superior

Court and convicted as above noted.

2In Re J.. 17 Cal.App.3d 704, 95 Cal. Rptr. 185 (1971);

Cert. denied by California Supreme Court August 4, 1971.

—_— =

It is the second hearing before the juvenile court

under Section 701 on which this Court has been asked

by petitioner to focus its attention and to find that such

hearing was tantamount to a criminal trial wherein

jeopardy attached at its commencement thus foreclos-

ing any later criminal prosecution.

Such finding cannot be made. That hearing was

but one step in a comprehensive program developed

by the State of California for the handling of delin-

quent youth. That program, representing the combined

efforts of the California legislature and judiciary, is a

thoughtful and in this Court’s view entirely constitu-

tional effort to strike a realistic balance between the

public’s right to order and its interest in the proper

care and handling of juveniles.

The preliminary procedures of the California Juvenile

Courts Law, civil rather than criminal in nature, pro-

vide to a minor accused of a crime a means to escape

some of the consequences which would result to an

adult offender if in the opinion of the juvenile court the

minor is one who would benefit from its application.

As applied by California courts, those procedures con-

tain all the essential elements of due process and funda-

mental fairness required by the Federal Constitution as

interpreted by the U.S. Supreme Court, in, among others,

Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed.

224 (1948), Kent v. U.S., 383 U.S. 541, 86 S.Ct.

1045, 16 L.Ed.2d 84 (1966), In re Gault, 387 USS.

1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and Mc-

Keiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976.

29 L.Ed.2d 647 (1971).

Tk distinctions between the preliminary procedures

and hearings provided by California law for juveniles

—i9—

and a criminal trial are many and apparent and the ef-

fort of petitioner to relate them is unconvincing. How-

ever, even assuming jeopardy attached during the pre-

liminary juvenile proceedings, and further assuming all

rights constitutionally assured to an adult accused of

crime are to be enforced and made available to a ju-

venile® it is clear that no new jeopardy arose by the ju-

venile proceeding sending the case to the criminal

court. Such transfer neither acquitted nor convicted and

could not in any event represent a second trial for

the same offense or more than a continuing jeopardy

for a single offense.

While there is no doubt that certain formal and

technical rules as to when jeopardy attaches or termi-

nates may have their place and serve a valid function

in adult criminal proceedings, to apply these same rigid

and inflexible standards to a juvenile court could de-

prive if of its ability to function. In this regard, this

Court is in full concurrence with the findings of the

U.S. Supreme Court in its most recent examination of

the juvenile courts:

“If the formalities of the criminal adjudicative

process are to be superimposed upon the juvenile

court system, there is little need for its separate ex-

istence. Perhaps that ultimate disillusionment will

come one day, but for the moment we are disin-

clined to give impetus to it.” McKeiver v. Pennsyl-

vania, 403 U.S. 528, at 551, 91 S.Ct. 1876, at

1989 (1971).

The Petition for Writ of Habeas Corpus is denied.

’But see McKeiver v. Pennsylvania, supra, at page 533, 91

S.Ct. 1976.

—20.—

APPENDIX C.

[Crim. No. 19956, Second Dist., Div. Four. May 19,

1971.)

In re GARY J., a Minor, on Habeas Corpus.

KINGSLEY, J.—On February 9, 1971, a petition was

filed in the Juvenile Court of Los Angeles County,

alleging that the relator herein—Gary J.—-was a per-

son described by section 602 of the Welfare and Insti-

tutions Code,' in that he had committed an act which,

if committed by an adult, would constitute a violation

of section 211 of the Penal Code (robbery). After a

detention hearing, the minor was detained pending a

hearing on the petition. A “jurisdictional” hearing, pur-

suant to section 701,” was held on March 1, 1971,

resulting in a finding that the allegations of the petition

‘Unless otherwise indicated, statutory references are to the

Welfare and Institutions Code.

*Section 701 of the Welfare and Institutions Code reads as fol-

lows: “At the hearing, the court shall first consider only the

ion whether the minor is a person described by Sections 600,

1, or 602, and for this purpose, any matter or information

relevant and material to the circumstances or acts which are al-

leged to bring him within the jurisdiction of the juvenile court

is admissible and may be received in evidence; however, a pre-

of evidence, legally admissible in the trial of criminal

cases, must 2 ame to — a that the minor is a

person descri y Section , and a preponderance of evi-

dence, legally admissible in the trial of civil cases must be ad-

duced to su a finding that the minor is a person described

by Sections or 601. When it appears that the minor has

made an extrajudicial admission or confession and denies the

same at the hearing, the court may continue the hearing for

not to exceed seven days to enable the probation officer to sub-

poena witnesses to attend the hearing to prove the allegations of

the petition. If the minor is not represented by counsel at the

hearing, it shall be deemed that objections that could have been

made to the evidence were made.”

Pm

=—=?2 |

were true and that the minor was a person described

by section 602. The proceedings were continued for a

dispositional hearing, pursuant ic section 702.* At that

hearing, the court announced its intention to find, pur-

suant to section 707, that the minor would not be

amenable to the care, treatment and training program

available through the facilities of the juvenile court,

and that the court intended, under that section, to

dismiss the petition and direct that the minor be

prosecuted as an adult in the superior court. After

an adjournment sought by the minor’s counsel, such

an order was made. The present proceeding is de-

signed to test the validity of the order;* we conclude

that it was validly made and not subject to attack

herein.

8Section 702 of the Welfare and Institutions Code read as fol-

lows: “After hearing such evidence, the court shall make a find-

ing, noted in the minutes of the court, whether or not the minor

is a person described by Sections 600, 601, or 602. If it finds

that the minor is not such a person, it shall order that the petition

be dismissed and the minor be discharged from any detention or

restriction theretofore ordered. If the court finds that the minor is

such a person, it shall make and enter its findings and order ac-

cordingly and shall then proceed to hear evidence on the question

of the proper disposition to be made of the minor. Prior to doing

so, it may continue the hearing, if necessary, to receive the social

study of the probation officer or to receive other evidence on its

own motion or the motion of a parent or guardian for not

exceed 10 judicial days if the minor is detained during such

continuance, and if the minor is not detained, it may continue

the hearing to a date not later than 30 days after the date of

filing of the petition. The court may, for good cause shown

continue the hearing fur an additional 15 days, if the minor is

not detained. The court may make such order for detention of

the minor or his release from detention, during the period of

the continuance, as is appropriate.”

*The contentions here made were seasonably raised in the ju-

venile court proceeding and by way of a petition for habeas

corpus in the superior court.

—~ =

I

It is not here contended that the order was not

based on evidence sufficient to support the findings

required by section 707. The contentions are:

(1) That, as a matter of statutory construction, the

order under section 707 must be made during the pend-

ency of the 701 hearing and that, the 701 hearing

having terminated, statutory power to send the juvenile

to superior court for a criminal trial had lapsed; and

(2) That, at whatever stage the statute permits an

order such as the one herein involved to be made,

constitutional rights affording protection against dou-

ble jeopardy prevent such action at any time after the

701 hearing has begun.

II

(1) We conclude that the statutory scheme was fol-

lowed in the case at bench. Section 707 reads as fol-

lows: “At any time during a hearing upon a petition

alleging that a minor is, by reason of violation of any

criminal statute or ordinance, a person described in

Section 602, when substantial evidence has been ad-

duced 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 amen-

able to the care, treatment and training program avail-

able through the facilities of ihe juvenile court, or if,

at any time after such hearing, a minor who was 16

years of age or older at the time of the commission of

an offense and who was committed therefor by the

court to the Youth Authority, is returned to the court

by the Youth Authority pursuant to Section 780 or

1737.1, the court may make a finding noted in the

affiun

minutes of the court that the minor is not a fit and

proper subject to be dealt with under this chapter, and

the court shall direct the district attorney or other ap-

propriate prosecuting officer to prosecute the person

under the applicable criminal statute or ordinance and

thereafter dismiss the petition or, if a prosecution has

been commenced in another court but has been sus-

pended while juvenile court proceedings are held, shall

dismiss the petition and issue its order directing that the

court proceedings resume.

“In determining whether the minor is a fit and prop-

er subject to be dealt with under this chapter, the of-

fense, in itself, shall not be sufficient to support a

finding that such minor is not a fit and proper subject

to be dealt with under the provisions of the Juvenile

Court Law.

“A denial by the person on whose behalf the petition

is brought of any or all of the facts or conclusions set

forth therein or of any inference to be drawn there-

from is not, of itself, sufficient to support a finding

that such person is not a fit and proper subject to be

dealt with under the provisions of the Juvenile Court

Law.

“The court shall cause the probation officer to in-

vestigate and submit a report on the behavioral patterns

of the person being considered for unfitness.”

Although sections 701 and 702 clearly contemplate

that the determination of wardship, and the determina-

tion of treatment shall be separately considered; and,

except in cases where the probation officer has an-

ticipated the jurisdictional finding and prepared his so-

cial study in advance, that they will be made on dif-

ferent days, still the language of both sections speaks

= 24

of “the” hearing and, in section 702, of a continuance

of “the” hearing. We conclude that the statute did

not intend, nor contemplate, that the 707 consideration

should necessarily be part of a 701 hearing.

In fact, the whole philosophy of the present Juvenile

Court Law is counter to the interpretation now urged.

The purpose of requiring separate consideration of

wardship and of disposition was to prevent the court

from being affected, at the first stage, by evidence of

the minor’s character not relevant to determination of

his guilt. (Jn re Gladys R. (1970) 1 Cal.3d 855

[83 Cal.Rptr. 671, 464 P.2d 127].) To require or

even permit the introduction at the 701 hearing of

the kind of data on which a 707 determination is made

would violate both the !etter and the spirit of the stat-

ute.°

We are aware of the language in People v. Brown

(1970) 13 Cal.App.3d 876 [91 Cal.Rptr. 904], which

seems to hold that the 707 finding must be made dur-

ing a 701 hearing and prior to the conclusion of that

stage. But that language is dicta; the 707 finding had

been made during the 701 hearing; no objection was

made to the consideration at that point of the evidence

leading to the 707 decision. Under these circumstances,

decision as to the point herein involved was not neces-

sary for the decision of the case and, for the reasons

above set forth, we are not inclined to follow it.

5Of course, we do not rag | that evidence might not properly

be offered and received at the 701 hearing which would, in and of

itself, show that the minor was not one for whom juvenile court

processes were appropriate.

— 25

Ill

(2) We conclude also that the constitutional rights

against double jeopardy were not violated by the pro-

cedure herein adopted. It is clear that, at the time when

the present Juvenile Court Law was under considera-

tion, it was not thought that the concept of double jeop-

ardy, as applied to adults in criminal cases, was

applicable to juvenile court proceedings. In fact, the

recommendation of the Special Study Commission, which

drafted the proposals forming the basis for the 1961

revision, said:

“Recommendation No. 6

“Prohibit minors from being subject to criminal pros-

ecution based on the facts giving rise to a juvenile

court petition once final judgment has been made in

the juvenile court, except that a finding of unfitness

in the juvenile court shall not constitute final judgment

in the terms of this recommendation.

“Comments:

“There are several cases on record where juveniles

have been tried and sentenced in a criminal court for

an offense upon which final judgment was previously

made in the juvenile court. Such a course of action,

while rare, is unfortunately permissible under the pres-

ent juvenile court law.

“In an adult case, this is prohibited because it would

constitute placing the individual in double jeopardy.

The Commission sees no valid reason why juveniles, as

well, should not be protected from such proceedings.

“In so recommending, the Commission proposes that

the proceeding by which a minor is found unfit for

processing in the juvenile court shall not constitute

—26—

final judgment in terms of this recommendation. Thus,

the information disclosed at the juvenile court hearing

in certified cases would be permitted to be considered

in the criminal courts.”

That recommendation is now embodied in section

6U6 of the act.

Ten years later, in Richard M. v. Superior Court

(1971) 4 Cal.3d 370 [93 Cal.Rptr. 752, 482 P.2d

664], the Supreme Court determined that, in view of

decisions of the United States Supreme Court which had

been rendered after the present Juvenile Court Law was

adopted: “. . . [i]n proceedings before the juvenile court

juveniles are entitled to constitutional protections against

twice being placed in jeopardy for the same offense.”

The issue before us is whether that proposition operates

to bar the kind of disposition of a juvenile case that was

made here. We conclude that it does not.

There are three situations in which it could be con-

tended that the constitutional rights had been violated:

(a) where, as in Richard M., the minor is, in effect,

found not guilty of the offense underlying the section

602 petition; (b) where the minor is made a ward un-

der section 701 and the 702 hearing has resulted in a

treatment disposition order under section 725—here

both section 606 and the Constitution would prohibit a

renewal of the case in another court; (c) the case at

bench, where no final disposition order has been made.

In the situation before us, while it is true that, under

the language in Richard M., jeopardy had attached once

the first witness had testified at the 701 hearing, no

new jeopardy has arisen by the proceedings sending the

case to the criminal court. The entire Juvenile Court

Law contemplates a careful determination, on a case-

~~ =

by-case basis,° as to the type of procedure most likely

to protect society and to rehabilitate the minor. Under

some circumstances, a minor will grow from the crimi-

nal court to the juvenile court; in other cases he will go

from the juvenile court to the criminal court. But, until

one court or the other reaches a final disposition of the

case, only a single jeopardy is involved. In Richard M.,

the Supreme Court impliedly felt this to be true; in re-

counting the risks which that minor had faced, the court

enumerated not only the possibility of a disposition at a

702 hearing but ii expressly mentioned the very possibil-

ity which has here occurred.’

In short we can find neither statutory nor constitu-

tional objections to the order herein attacked. The peti-

tion for a writ of habeas corpus is denied.

Files, P. J., and Jefferson, J., concurred.

Petitioner’s application for a hearing by the Supreme

Court was denied August 4, 1971. Peters, J., was of the

opinion that the petition should be granted.

®Jimmy H. v. Superior Court (1970) 3 Cal.3d 709 [91 Cal.

Rptr. 600, 478 P.2d 32]; Bruce M. v. Superior Court (1969)

270 Cal.App.2d 566 [75 Cal.Rptr. 881].

™The minor was exposed to the possibility that an adjudica-

tion would be made; that.the court might then proceed to the

dispositional phase of the bifurcated juvenile court proceedings

(§ 702); and that, since an uncontested hearing was anticipated

that the Social Report and Recommendations of the Probation Of-

ficer were prepared and available (§ 702). The minor was

not immune from the possibility that the court would determine

that he was not amenable to the programs available to the ju-

venile court and that it might direct that he be prosecuted under

the applicable criminal statute (§ 707).” (Richard M. v. Su-

perior Court (1971) 4 Cal.3d 370, 376 [93 Cal.Rptr. 752, 482

P.2d 664}.)