Appendix — Breed v. Jones
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IN THE
Supreme Court of the United States
October Term, 1974
No. 73-1995 —
ALLEN F. BREED,
Gary STEVEN Jonzs,
On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit.
it onneineiunedtenammmmantl
INDEX TO APPENDIX
Page
Relevant Docket Entries—District Court .............. 1
Relevant Docket Entries—Court of Appeals ........ 4
Petition for Writ of Habeas Corpus .................... 7
Exhibit A—Affidavit of Donald W. Pike ........ 14
Exhibit B—Affidavit of Robert L. Walker ........ 14
Exhibit C—Opinion of the California Court of
PE ony sensvenciicnensseneeieneatntssieertecetysoernceeess 14
Exhibit D—Juvenile Court Petition .................. 15
Exhibit E—Findings and Order of Juvenile Court
BR ovecsaeceracercevessenansorss conto sar nteennnmens 17
Exhibit F—Reporter’s Transcript of Juvenile
Court Proceedings, March 15, 22, 1971 ...... 20
Exhibit G—Juvenile Court Minute Order, April
My AEE cearaccpsnceutesncctsseupratveyensvavepncieeeaecnsssaace 34
Exhibit H—Reporter’s Transcript of Juvenile
Court Proceedings, April 1, 1971 ......222222000... 36
Exhibit I—Notice of Denial of State Habeas
Corpus Petition by California Supreme Court .. 46
Exhibit J—Plea of Once in Jeopardy Entered in
Los Angeles County Superior Court -............. 47
Exhibit K—Reporter’s Transcript of Preliminary
Hearing, August 23, 1971 -0000222..22222222222.--- 48
Exhibit L—Information .............02..2..22......--------- 58
Exhibit M—Superior Court Minute Order, Sep-
tember 29, 1971 Serbs pes edpeAac rout snepneicbeueresaeseinn 59
_ Exhibit N—Superior Court Minute Order, Oc-
tober ZO, 1971 .......n-ceccseccersossenssanasevesecscsececons 61
Exhibit O—Superior Court Judgment of Convic- —
tion and Commitment to Youth Authority .... 62
Page
Petition for Writ of Habeas Corpus (cont'd)
Points and Authorities in Support of Petition for
Writ of Habeas Corpus ................222.2..--2220000-+- 64
District Court Order Appointing Guardian ad Litem
No ee
ise cee nes enc aneescn een ce ssremectnemaennnneeevasneantees 92
Response to Petition for Writ of Habeas Corpus .... 93
Petitioner’s Reply Memorandum .......................------- 103
District Court Order for Hearing ......................--.- 113
District Court Minutes, March 6, 1972 ................ 114
Memorandum and Order of District Court Denying
Petition for Writ of Habeas Corpus .................. 115
Notice of Appeal -.............222..:22:ccceeeeeceeeeeeeeeeeeeeees 115
District Court Order Denying Certificate of Prob-
I SR oie vs ste stessersosseismreeren- eens 116
Court of Appeals Order, Granting Certificate of
BO CN ccna chcccsnsppesaiorsesien pease 117
Court of Appeals Order Granting Motion to Ap-
peal in Forma Pauperis .........................-.-..c0e 118
Opinion of the Court of Appeals ............................ 118
Petition for Stay of Mandate ...............222222220.0.2..2--- 119
Opposition to Petition for Stay of Mandate .......... 122
Order Staying Issuance of Mandate ...............0...... 126
APPENDIX.
IN THE
Supreme Court of the United States
October Term, 1974
No. 73-1995
ALLEN F. BREED,
a Petitioner,
VS.
Gary STEVEN JONES,
Respondent.
On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit.
PETITION FOR WRIT OF CERTIORARI FILED
JULY 8, 1974
WRIT OF CERTIORARI GRANTED OCTOBER, 21, 1974.
RELEVANT DOCKET ENTRIES—
DISTRICT COURT.
CIVIL DOCKET
UNITED STATES DISTRICT COURT
Gary Steven Jones, a minor, by and through Lola
. Mae Jones, his guardian ad litem, Petitioner vs. Allen
F. Breed, Director of the California Youth Authority;
Robert-McKibben, Superintendant of the Southern Re-
gional Center Clinic, California Youth Authority, Re-
spondents. 71-2907-LTL.
pase i Nie A i be ROR BEM EERE BAPE
—2—
Date Proceedings
12/10/71—Filed order (ALS) that action may be
filed without prepayment of filing fee and that
further action proceedings be subject to order
of Court. Filed Petitioner’s application for
leave to proceed in forma pauperis. Filed af-
fidavit of Donald W. Pike. Filed affidavit of
Robert L. Walker. Filed Petition for Order ap-
pointing Guardian Ad Litem. Filed order
(ALS) that“Lola Mae Jones be appointed as
Guardian Ad Litem of Minor Gary Steven
Jones. LODGED Order granting leave to
proceed in Forma Pauperis NOT signed.
Filed Petition for a Writ of Habeas Corpus
for Release of Person from State Custody.
Filed Petitioner's Points and Authorities in
support of Relator’s Petition for Writ of
Habeas Corpus. Issued summons.
12/16/71—Filed petitioner’s application of non-resi-
dent attorney to appear in a specific case and
order (LTL) by naming Robert L. Walker.
12/20/71—Filed or (LTL) requiring response to
‘petition for writ of habeas corpus.
1972
1/10/72—Filed respondent’s response to petition for
writ of habeas corpus.
1/13/72—Filed petitioner’s reply memo.
1/20/72—Filed petitioner’s certificate of service.
1/27/72—Filed order (LTL) for hearing to be set
3/6/72, 10 a.m.
weet, naan pe.
a, on
3/6/72—Held hearing and entered order (LTL) Pe-
titioner’s petition for Order to Show Cause
why petition for writ of habeas corpus should
not be issued is order submitted (LTL).
5/5/72—Filed memorandum and order denying peti-
tion for writ of habeas corpus and notified
parties.
6/5/72—Filed petitioners NOTICE OF APPEAL.
Filed petitioner’s Designation of Record on
Appeal. Filed petitioner’s Certificate of Serv-
ice.
6/9/72——Filed petitioner’s petition for certificate of
probable cause.
6/21/72—Filed order (LTL) of petition for Certificate
of Probable Cause in the above matter de-
nied.
9/5/72—Received from Court of Appeals copy of
order of Court of Appeals granting certificate
of probable cause.
9/6/72—Issued and forwarded to Court of Appeals
original record on appeal.
9/25/72—Filed motion, affidavit and order re Appeal
in Forma Pauperis—Motion denied (LTL)
9/27/72—Received from Court of Appeals copy of
order of Court of Appeals permitting pauper
appeal.
—4—
RELEVANT DOCKET ENTRIES—
COURT OF APPEALS.
United States Court of Appeals for the Ninth Cir-
cuit. . '
D.C. No. 71-2907-LTL.
D.C, Judge L.T. Lydick.
Notice of appeal filed 6-5-72.
497 Fed. Rep. 2nd. p. 1160.
Filed in DC: 12-10-71.
Gary Steven 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
_ Authority, Respondents-Appellees. 72-2644.
For Appellant: Peter Bull, Esq. and Robert L. Walk-
er, Esq.of the Youth Law Center. .
' For Appellees: Evelle J. Younger, Calif. Atty. Gen-
eral and Russell Iungerich, Deputy Atty. General.
72-2644
Date _ Filings—Proceedings
1972 .
. Sept. 19—Filed certified transcript of record on appeal
(received Sept. 7, 1972) in one volume,
pleadings, original copy.
Sept. 19—Docket fee paid, cause docketed and en-
tered appearances of counsel.
Sept. 20—Received original and 3 copies of motion
for leave to appeal in forma pauperis. -
—
Sept. 25—Filed order granting motion requesting leave
to appeal in forma pauperis.
Oct. 6—Sent one copy of one-volume record to appel-
lant’s counsel Walker, Youth Law Center;
\ Appellant’s opening brief due Nov. 15, 1972.
Nov. 13—Received originai and 3 appellant’s motion
for extension of time to file brief.
Nov. 13—Received letter of 11/9 from U.S. Attorney
regarding possible motion to dismiss appeal.
Nov. 16—Filed motion and order extending time to file
appellant’s brief to Dec. 15, 1972.
Dec. 12—Filed 25 Appellant’s Briefs.
1973
Jan. 14—Filed 25 Appellee’s Briefs.
Jan. 29—Filed 25 Appellant’s Reply Briefs.
1974
Jan. 7—Received letter from appellant’s counsel Pike
advising of his withdrawal as one of appel-
lant’s counsel.
Jan. 17—Received letter from appellant regarding ad-
ditional citation, with copies of 5th Circuit
decision in Fain v. Duff.
Feb. 24—Argued and submitted to: Goodwin, Wallace,
C.J.J., East, D.J.
Mar. 19—Received appellant’s letter with copies of
documents requested by clerk March 12.
1974.
* —
Mar. 25—Received appellant’s letter submitting 4 copies
of Section 34 of Uniform Juvenile Court
Act.
May 15—Ordered opinion (Wallace) filed and judg- |
ment to be filed and entered.
May 15—Filed opinion—reversed 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.
May 15—Filed and entered judgment.
May 31—Filed appellee’s motion for stay of mandate.
June 3—Filed appellant’s opposition to metion for
stay. .
June 18—Filed Order Staying Mandate to 7/5/74.
July 8—Advised by Supreme Court (Miss Lazowski)
that petition for certiorari filed 7/8/74—
Supreme Court No. 73-1995.
July 15—Filed Supréme Court notice re: filing petition
for certiorari July 8, 1974 S.C. #73-1995.
Ey ES
PETITION FOR WRIT OF HABEAS CORPUS.
In the United States District Court, for the Central
District of California.
Gary Steven Jones, a minor, by and through Lola
Mae Jones, his guardian ad litem, Petitioner, vs. Allen
F. Breed, Director of the California Youth Authority;
Robert McKibben, Superintendent of the Southern Re-
gional Center Clinic, California Youth Authority, Re-
spondents. Civil Action No. 71-2907-LTL.
Filed: Dec. 10, 1971.
TO: THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALI-
FORNIA
The petition of LOLA MAE JONES, on behalf of
minor GARY STEVEN JONES, respectfully shows:
1. I am the mother of GARY STEVEN JONES,
an eighteen year old minor, on whose behalf the present
petition is brought. I am the duly designated guardian
ad litem for purposes of bringing this petition and am
personally authorized by the minor to make this ap-
plication on his behalf.
2. Said minor is presently confined at California
Youth Authority’s Southern Regional Reception Cen-
ter Clinic, whose street address is 13200 South Bloom-
field Avenue, Norwalk, California. He is restrained of
his liberty by ALLEN F. BREED, Director of the
California Youth Authority, and by ROBERT Mc
KIBBEN, Superintendent of the C.Y.A. Southern Re-
gional Reception Center Clinic. Said minor is confined
pursuant to an order of the Superior Court for the
County of Los Angeles, entered October 21, 1971,
finding Gary Steven Jones guilty of robbery in the
SREP AR UES NET ETRE FOE STL SR NE PP IT
i ae sree SPREE
i
first degree and committing him to the California Youth
Authority.
3. The Superior Court order pursuant to which the
minor is confined is patently illegal because Gary had
previously been placed in jeopardy /by the Superior
Court of Los Angeles County, Juvenile Court Depart-
ment, which on March 1, 1971 found him to be a
juvenile delinquent under California Welfare and Insti-
tution Code § 602. This adjudication was based upon
ihe identical armed robbery incident for which Gary
was later prosecuted in adult court and convicted of
violating Penal Code § 211. This second prosecution
and conviction of said minor for the same incident for
which he had previously been adjudged a juvenile de-
linquent was in violation of his right not to be twice
placed in jeopardy guaranteed by the Fifth and Four-
teenth Amendments to the United States Constitution.
4. The pertinent facts are as follows. On February
9, 1971 a petition was filed against said minor in the
_ Superior Court of Los Angeles County, Juvenile Court
Department, under case # 394,221. This petition al-
leged that he was a juvenile delinquent in that he had
committed acts which—if he were an adult—would
constitute a violation of Cal. Penal Code Section “211
[the juvenile court petition is annexed as Exhibit
“D”].
5. A detention hearing was conducted on February
10, 1971 at the conclusion of which the juvenile court
ordered the minor detained. The jurisdictional hear-
ing was held before Referee Jules D. Barnett on March
1, 1971. After hearing testimony, including the tes-
timony of Gary Steven Jones, the court sustained the
petition, specifically finding that the minor was a person
eA S nase MEAT
—9—
described by Section 602 of the Juvenile Court Law.
The Court also ordered that the minor should remain
detained at Juvenile Hall [the findings and order of
Referee Barnett are annexed hereto as Exhibit “E”}.
6. Said minor was represented by court-appointed
counsel at both the detention and jurisdictional hear-
ings. On March 15, 1971 the Court appointed Donald
W. Pike, Esq., co-counsel herein, to represent the minor
at the dispositional hearing. Pursuant to Section 707
of the Cal. W&I Code, the court at that hearing an-
nounced its intention to find that the minor was not
amenable to the Juvenile Court processes and to direct
the district attorney to prosecute the minor under Sec-
tion 211 of the Penal Code. Counsel objected, and the
probation officer was ordered to submit a behavioral
report. The minor was remanded to the custody of
the sheriff.
7. On March 22, 1971 counsel submitted written
points and authorities which challenged the contem-
plated 707 procedure on double jeopardy and due
process grounds. Acting upon the recommendation of
the Probation Department, the court overruled coun-
sel’s objections, remanded the minor to the sheriff’s
custody, and ordered that the minor be prosecuted as
an adult [the Reporter’s Transcript of these proceed-
ings is annexed as Exhibit “F”].
8. A petition for a writ of habeas corpus was
prepared and filed with the Superior Court of the
State of California for the County of Los Angeles.
In the writ petitioner specifically argued that he was
being denied his federal constitutional right not to be
twice placed in jeopardy. After hearing oral argument
on April 2, 1971, the Honorable Marvin A. Freeman
# TSE EA OF a RE,
aay |; aan
denied the writ on the basis that relator’s statutory
and constitutional rights had not been violated [the
minute order of the Court and Reporter’s Transcript
‘are annexed as Exhibits “G” & H“”]. Donald Pike,
co-counsel herein, was appointed to represent the minor
in the adult proceedings dnd to take any appropriate
steps to review the court’s order.
9. Subsequently, a petition for a writ of habeas
corpus raising the same constitutional and statutory
claims was filed in the California Court of Appeal,
Second Appellate District, under Crim. # 19956. On
April 12, 1971 the court stayed the pending criminal
prosecution of the minor. An order to show cause was
issued on May 7, 1971, and on May 19, 1971 the
court denied the petition in an opinion by Justice
Kingsley which is reported at 17 Cal.App.3d 704, 95
Cal.Rptr. 185 [annexed hereto as Exhibit “C”]. The
court rejected petitioner’s contentions on the merits, and
held that although jeopardy had attached in the orig-
inal juvenile court proceeding, no new jeopardy would
attach in the subsequent prosecution in adult court.
10. Subsequently, a petition for hearing was filed
with the California Supreme Court raising the same
constitutional and other claims. On August 4, 1971 the
Court denied a hearing [a photostatic copy of the post
card apprising petitioner of the court’s decision is an-
nexed as Exhibit “T”’].
11. On August 23, 1971 a preliminary hearing was
conducted in the Municipal Court, South Bay District,
Los Angeles County, under case No. A 174204 before
the Honorable George R. Perkovich. The hearing was
held pursuant to a complaint charging GARY STEVEN
JONES with having committed armed robbery on or
about February 8, 1971. Defendant entered a plea of
PERE eg Be te ata ee ae eee oe cot ae ce ae 2 ee
a |
not guilty and a plea of once in jeopardy and once
convicted and submitted this latter plea in writing
[Exhibit “J”]. At the conclusion of the hearing de-
fendant was remanded to Superior Court [the Report-
er’s Transcript is annexed as Exhibit “K”].
12. On September 3, 1971 a felony information
[Exhibit “L”] was filed against the minor in case No.
A-174204 charging him with robbery in violation of
Penal Code § 211. Defendant pleaded not guilty, and
on September 29, 1971 the cause was submitted to
the Honorable Auten F. Bush, sitting without a jury,
on the transcript of the preliminary hearing, and de-
fendant was convicted of violating Penal Code § 211
[minute order annexed as Exhibit “M”]. On October
20, 1971 the minor was committed by the Court to the
California Youth Authority [minute order annexed as
Exhibit “N”].
13. During all of the criminal proceedings in the
Municipal and Superior Courts defendant was rep-
resented by his court-appointed counsel, and co-counsel
herein, Donald W. Pike. During the proceeding in the
California Court of Appeal and on his application for
a petition for hearing to the California Supreme Court,
the minor was represented by Donald W. Pike, Peter
Bull, and Robert L. Walker, his counsel herein.
14. Upon the advice of counsel no appeal has
been sought from the judgment of the Superior Court
of Los Angeles County convicting said minor of rob-
bery in the first degree. It is the considered opinion of
petitioner, minor, and counsel [see affidavit of Donald
W. Pike annexed as Exhibit “A” and incorporated by
reference herein] that the only appealable issue in this
case is whether said minor has been twice placed in
jeopardy in violation of his constitutional rights. This
<P UPN SRS ME SAREE ATO NPAIT SS PES
SPOTS A ISS EEE OLONS Sa has ak
argument has already been presented to, and rejected
by, both the California Court of Appeal and the Su-
preme Court of California. The minor has thus ex-
hausted his state remedies under 28 U.S.C. § 2254,
and presenting the same arguments to the same courts
a second time would be futile and ineffective to pro-
tect his rights.
15. This. petition has been prepared by attorney
Robert L. Walker. According to his annexed affidavit
[Exhibit “B” incorporated by reference herein], this
petition contains all of the information required by Lo-
cal Rule 19 of the Rules of this Court. .
16. As a result of his criminal conviction for
armed robbery, GARY STEVEN JONES suffers from
many disabilities which would not exist if he were mere-
ly a ward of the juvenile court. He is a convicted felon
(Cal. Penal Code §§ 17, 213) and is, therefore, not
entitled to have his conviction record sealed (see Cal.
Penal Code § 1203.45), whereas all juvenile court rec-
ords are sealable under Cal. W&I Code § 781. AI-
though there is no way to determine if the juvenile
court would have committed Gary to the California
Youth Authority, the potential duration of his commit-
ment to the Youth Authority by the juvenile court could
have been until he reached age twenty-one (Cal. W&I
Code § 1769), whereas presently he may remain in
the Youth Authority until he reaches age twenty-five
(Cal. W&I Code § 1771). In addition, under certain
conditions the Youth Authority may return, him to Su-
perior Court for sentencing to state prison (Cal. W&I
§ 1737.1). But he could never be sentenced to state
prison once he was committed to the Youth Authority
as a ward of the juvenile court even if he were returned
by the Youth Authority as incorrigible. Other ways
in which the minor petitioner is seriously prejudiced
ESL STEELE Dating: Ree! TNE Me RED Note *
a |.
by his unlawful conviction as an adult felon are fully
set forth in Point IV of his Points and Authorities filed
with this petition.
17. ' Because of the foregoing facts, GARY STEV-
EN JONES is being restrained of his liberty in viola-
tion of the Constitution of the United States. The waiv-
er of minor to adult court pursuant to Cal. W&I Code
§ 707 and subsequent trial of minor in adult court
after jeopardy had atiached in the juvenile proceed-
ing placed him in doub!. jeopardy. Since Cal. W&I
Code § 707 has been construed by California state
courts to authorize this procedure, that statute is un-
constitutional.
WHEREFORE, it is respectfully prayed that a writ
of habeas corpus issue directing said minor’s release
from the unlawful detention and remanding said minor
to the custody of the Juvenile Court of Los Angeles
County for disposition pursuant to that Court’s pre-
vious finding that the minor is a person described by
Section 602 of the California Welfare and Institutions
Code, or in the alternative, this Court should issue an
order directing respondents BREED and MC KIBBEN
(depending upon whether Gary has been transferred
to the Youth Authority’s Southern Regional Reception
Center Clinic) or their legal representative, to show
cause why such a writ should not issue, and for such
other and further relief as law and justice may require.
Subscribed and sworn to before me this 24th day
of November, 1971.
/s/ Lola Mae Jones
Lola Mae Jones
/s/ G.L. Washington
Notary Public
—14—
EXHIBIT A—AFFIDAVIT OF DONALD W. PIKE.
(This exhibit has been omitted because it pertains
only to the question of exhaustion of state remedies. )
EXHIBIT B—AFFIDAVIT OF
ROBERT L. WALKER.
(This exhibit has been omitted because it pertains
only to compliance with local Rules of Court.)
EXHIBIT C—OPINION OF THE CALIFORNIA
COURT OF APPEAL.
(This exhibit has been omitted from this Appendix
because it appears as Appendix C to the Petition for
Writ of Certiorari, pages 20-27.)
—15—
EXHIBIT D—JUVENILE COURT PETITION.
Superior Court of California, County of Los Angeles
Juvenile Court.
PETITION
In the Matter of Gary Stephen Jones, a minor. Num-
ber 394221-0317197-SC-ACT.
Petitioner is informed and believes and therefore
alleges, that Gary Stephen Jones, hereinafter called
minor, resides at 943 West 134th Street, Compton,
California, and was born on 6/22/53 and was 17
years of age on June 22, 1970, and comes within the
provisions of Section 602 of the Welfare and Institu-
tions Code of California, in that: said minor, on-~or-~
about February 8, 1971 at 16201 South Hawthorre
Boulevard, County of Los Angeles, did willfully and
unlawfully by means of force and fear take from the
person, possession, and immediate presence of James
Mattera, the following described personal property to
wit: a cash register containing money; thereby violating
Section 211 of the Penal Code of California.
Further, at the time of the commission of the above
offense, the minor was armed with a deadly , weapon,
to wit: a gun.
The name and residence address of each parent and
guardian of minor, known to me, is as follows: Mother:
Lola Jones, 943 West 134th Street, Compton, Cali-
fornia. ;
Minor was taken into custody by Lennox Sheriff's
Station on 2/8/71 at 10:10 P.M. Minor is detained.
The present whereabouts of minor is Juvenile Hall.
PERO SIE APT OL HONE ILE TRE OD
ee |e
Therefore, petitioner respectfully requests that this
minor be adjudged and declared a ward of the Juvenile
Court and dealt with as such.
KENNETH E. KIRKPATRICK,
PROBATION OFFICER, Petitioner
By /s/ T. Fay
T. FAY, IDC
Deputy Probation Officer
I certify under penalty of perjury that the foregoing
is true and correct, according to my information and
belief.
Executed at (City)
LOS ANGELES, California
/s/ T. Fay
Signed
—_17—
EXHIBIT E—FINDINGS AND ORDER OF
JUVENILE COURT REFEREE.
Superior Court of the State of California, for the
County of Los Angeles, Juvenile Court.
Date: March 1, 1971.
Hrg. Room 5.
Judge:
Referee: Jules D. Barnett.
Deputy Clerk: Marie Franks.
Deputy Sheriff: Ralph Calderon.
Probation Officer: S. Canin.
DPSS Social Worker: .....-------------+
Reporter: Irma Demar.
In the Matter of Gary Stephen Jones, 17 years of
age, a minor. No. 394221-0317197-SC.
FINDINGS AND ORDER OF REFEREE
Appearances: Attorneys: Stephen Behrendt; Deputy
District Attorney, Norman F. Montrose.
Adjudication Proceedings: The 602 petition filed
February 10, 1971, is read to those present, and the
minor and any parent or guardian or adult relative
are informed of their right to counsel, the nature of
the hearing, its procedures and possible consequences.
Pursuant to Section 700 of the Juvenile Court Law,
conflict matter, Private Counsel is appointed as coun-
sel for minor. ‘
The parent- or guardian or adult relative present,
being advised of his rights, indicates his desire to pro-
ceed without independent counsel.
LAAN: I PI, I
EO LOTTE PER
|
Minor denies the allegations in paragraph I of the
petition filed February 10, 1971 (as amended).
Minor with the advice of counsel waived his rights
and testified.
Sworn and Testifying: Minor; James Matern; Dep.
Frank Gomez, LASO.
Sworn Only: “— Fred Laxon ‘oa William Hess,
LASO.
The Court Orders:
Petitioner’s Exhibits 1 (black cash register tray);
2 (.38 calibre Smith and Wesson, brown wood handle,
Serial No. 28880); 3 (.38 calibre Iver Johnson, Serial
No. G 30691) and 4 (blue woolen cap) are admitted
into evidence by reference to Case No. A 173344,
Superior Court.
_ THE COURT FINDS:
1. That notice of this hearing has been duly given
as required by law.
2. That minor was born on June 22, 1953.
3. That the allegations of the petition filed Feb-
ruary 10, 1971 (as amended) are true, and the peti-
tion is sustained. _
4. That minor is a person described by Section 602
of the Juvenile Court Law.
THE COURT ORDERS:
_ That minor shall remain detained at Juvenile Hall
pending the disposition hearing.
Proceedings continued for disposition to the appear-
ance calendar a March 15, 1971, at 9:00 a.m. in Dept.
L.A.
OEY RH Sr ene Ra nga 2 a
SE a OORT 0 3p etree
—
All parties present to return on that date without
further order, notice or subpoena.
/s/ Jules D. Barnett
Referee of Juvenile Court
This Order Was Entered.
William G. Sharp,
County Clerk and
Clerk of the Superior Court
Names and addresses of persons to be served with
copies of this order:
Minor: Juvenile Hall.
Mother: Lola Jones, 943 West 134th Street, Comp-
ton, California.
Attorney: Stephen Behrendt, 9465 Wilshire Boule-
vard, Beverly Hills.
ORION 4 ge, pearing
eT Dae ere a
—20—
EXHIBIT F—REPORTER’S TRANSCRIPT OF
JUVENILE COURT PROCEEDINGS,
MARCH 15, 22, 1971.
Superior Court of the State of California, for the
County of Los Angeles.
Hearing Room No. 5.
Hon. Jules D. Barnett, Commissioner.
In the matter of Gary Steven Jones, a person under
the age of 21 years. No. 394221.
REPORTER’S TRANSCRIPT
March 15, 1971.
March 22, 1971.
APPEARANCES:
For the Minor: Donald W. Pike, Esq., 424 South
Beverly Drive, Beverly Hills, California.
Also present: Gary Steven Jones, Minor; Minor’s
mother; Eileen Harney, Probation Officer; Ann Chaus,
Court Officer; Robert E. Knourek, CSR Official Pro
Tem, 1601 Eastlake, Los Angeles, California.
LOS ANGELES, CALIFORNIA,
MONDAY, MARCH 15, 1971; A.M.
THE COURT: We have the matter of Gary Steven
Jones coming up. Mr. Pike represents the young man
and we have the mother of the young man here. And
do we have any communication with Mr. Jones, the
father? I note a different address.
MINOR’S MOTHER: We are divorced.
THE COURT: I know that.
(Discussion. )
a, ;
THE COURT: All right, we will proceed. We have
the probation officer in this matter.
MISS HARNEY: Eileen Harney H-a-r-n-e-y.
THE COURT: Would you all please stand and
raise your right hands?
(Whereupon the Court administered the oath to
all the people in the courtroom. )
THE COURT: Be seated please.
We have a probation officer's report and recom-
mendation to be considered. This, of course, is triggered
by a petition which was sustained after the taking of
testimony in this court and the Court has read and
considered the recommendation and receives it into evi-
dence and the recommendation here is two-fold—I
guess—that the Minor be considered for unfitness and/
or be committed to the Youth Authority.
And I will hear your comments, Mr. Pike.
MR. PIKE: Well, your Honor, I am placed in a
position here with this report making the 707 recom-
mendation, that if the Court gave an indication that
there was—that it was going to follow that recommen-
dation, I would have a different argument, I believe.
THE COURT: Well, we have a technical problem
here of which you are aware that prior to a declaration
of unfitness being made, we must receive and consider
a behavioral report.
MR. PIKE: Yes.
THE COURT: Of course, we can do violence to pro-
cedure by considering this report a behavioral report
and it might well be the same thing.
However, the thing which concerns me is quote why
I didn’t consider a behavioral report when I heard this
matter and the only explanation I may have is that I
must have considered it and yet disregarded it for some
reason.
LE NA ERT La NR “: 4
—2?-—
The report of this young man is truly horrendous
and I recall the case and the testimony taken and we
have the probation officer in court and it would ap-
pear that the sum total of what has gone before may
well be having undue influence upon me.
MR. PIKE: It would appear to me, your Honor,
that this is a proper case for the California Youth
Authority facilities, particularly in view of the psychiat-
ric discussion that is contained within the report, be-
cause I am not aware of any County facility which
would have the kind of examination that this Minor
is obviously in need of.
THE COURT: Oh, now, the only question here is
whether we CYA the youngster or declare him unfit.
I will hear you Miss Harney, if you have any com-
ment to—
MISS HARNEY: Well, actually my original recom-
mendation one would be CYA because of his psychiat-
ric elements and which I discussed with my superior
and they felt that it wasn’t enough, so to speak, but
I still feel, personally, that CYA would be proper be-
cause even though the acts committed are extremely
serious in nature, I do feel that the Minor is still some-
what immature and does have extreme problems which
I think need to be met and my feelings would be that
they might not be met if he was considered unfit and
. declared adult.
THE COURT: I happen to disagree with you.
They have the same facilities in adult court that they
have in juvenile court. They have greater facilitie
This young man has been a gun man ever since he
started. His whole history is replete with the use of guns
and it is a pretty alarming situation—16 and a half
years old, right?
TL EY RO EB SO A PE gees pe {
—23—
MR. PIKE: (Nodding his head.)
THE COURT: Is that correct?
MISS HARNEY: No, 17.
MINOR’S MOTHER: He is 17.
MISS HARNEY: He will be 18 in June.
THE COURT: He will be 18 in June.
MR. PIKE: He hasn’t been to a camp at all, your
Honor. I understand that is— -
THE COURT: No, Mr. Pike. All I see here—this,
of course, is the most alarming thing I have seen in
my life.
This youngster goes back with guns to 1970—loaded
.22 caliber Browning automatic pistol in his pocket.
There was a behavioral—an unfitness hearing held
in June of 1970 and he was continued as a juvenile.
And, again in 1970, the second gun charge—am
I right, Mr. Pike, in reading the file?
MR. PIKE: That is correct.
THE COURT: He has two gun charges in 1970
and then he has another gun charge in front of me.
And he has two companions against whom proceedings
are being held pending as adults for this same affair;
is that correct?
MR. PIKE: I am not sure about that, your Honor.
MISS HARNEY: Yes, one of those was previously on
a juvenile case load at South Central, but it is now
being tried as an adult and the other one wasn’t an
adult—a sibling.
THE COURT: Right. Three times arrested; three
times use of a gun. I am going to have to consider this
for unfitness.
MR. PIKE: Your Honor, at this time I would make
a motion to continue the matter on the ground of sur-
prise.
SERENE Serre a eae Bite a RT
—24—
Minor was not informed that it was going to be a
fitness hearing.
MISS HARNEY: Minor was informed.
THE COURT: Just a moment. When was that—
just a moment, finish the statement.
MR. PIKE: At the time Minor was last in court,
it was continued for disposition hearing, and counsel
at that time would have advised the Minor with re-
gard to handling the matter as a juvenile on a disposi-
tion hearing, had I been his counsel.
However, I would also move to strike this report
on the grounds that the probation officer, in preparing
a disposition matter where the Minor doesn’t know
that she is preparing for a fitness hearing, has disclosed
confidences to his probation officer which I would
move to strike.
I move to strike the disposition report from the file
and have it removed from the file and on the grounds
that’ there has been a miscarriage—a lack of due
process under the 14th Amendment and a breach of
the confidential relationship established between the
Minor and the probation officer.
THE COURT: Insofar as striking the report, that
motion is denied.
However, we will, under the circumstances, set this
for the technical behavioral report procedures. Notice
must be given, and notice is hereby given officially.
The matter will be set for one week hence and you
will prepare a behavioral report, Miss Harney, and in
the interim the youngster will be confined in the Coun-
ty Jail.
MR. PIKE: May I, for the record, make one other
objection, your Honor? I would object on the grounds
of violation of the 6th Amendment of the Constitution
FEE IES : PETRA DRI ISIN PERE oP HRS
—25—
of the United States, that this Minor has been subject-
ed to duuble jeopardy and further objection—violation
of the 6th Amendment, that after adjudication that the
Minor is being subjected to additional punishment
more than would be rendered under the juvenile court
at the time of the adjudication and it must only be
for grounds that occurred prior to the time of the ad-
judication and I would ask the Court permission to
submit written points and authorities and on the
grounds that the Supreme Court ruled in the case—
in New Jersey that punishment cannot be increased
after the adjudication hearing except for offenses for
matters that occurred after the time of the adjudica-
tion.
There are two United States Supreme Court cases,
two years ago.
THE COURT: Mr. Pike, this Court takes strong
issue when you use the words “punishment increased”.
We are concerned with the rehabilitation of this young-
ster and we feel that the facilities of the juvenile court
may not be sufficient as I have indicated to you.
I have not precluded or foreclosed any further argu-
ment by you. Now, about whether as a personal mat-
ter you can continue with this matter, that is some-
thing that I don’t know. Do you wish to submit find-
ings in any event?
MR. PIKE: I would like to write a memorandum.
THE COURT: I commend you for that and appre-
ciate your intent and it will go back on my calendar
for the purpose of accepting it. It might not be ac-
cepted before another commissioner.
If you will, I would appreciate your points and au-
thorities sent to my attention for me to consider at
the behavioral hearing which will be a week from to-
day on the 22nd.
ASL! AVE STR MGA na POPE OE TLE ELIE OTE AEE EE EIEN ITA
a, |e
MISS CHAUS: Do you wish the behavioral report—
this report would not be any different from the report
that is now—
THE COURT: Miss Chaus, the requirements of the
statute are that we receive a behavioral report, and no
disrespect to counsel, there is no need to leave open
a procedural hole in the proceedings here.
So we will have to do it just as the requirements
are set forth. I will put this notation down to myself.
Attorney Pike is to send points and authorities to me
and I state for the record that I shall consider the said
points and authorities prior to my making a ruling;
the ruling which I have not in any way indicated, but
I wish to explore the entire possibility and the matter
will be set down on my calendar.
MISS HARNEY: Your Honor, is it possible that
during this week’s period to have a private psychiatric
report?
THE COURT: No, I don’t know if it can be ar-
ranged through the—
MISS HARNEY: I noticed that at the last fitness
hearing that the Minor had—there was a psychiatric
report submitted.
THE COURT: This is 1970. It is not that far back
that we have to have a new one.
MISS HARNEY: It was not submitted into court
records. It was submitted for the eyes of the Minor’s
counsel only.
THE COURT: I can only assume that the psychiat-
ric report is not helpful in any way to the Minor.
Mr. Pike, I am glad that you concur with that.
MR. PIKE: That is correct.
THE COURT: Submit your report at the behavioral
hearing—what you know about the youngster’s back-
FORRES PIO Om LR YE bos
a, |
ground, et cetera, et cetera—on my calendar on the
22nd—3/22.
One final factor, Miss Chaus: We have an address
of the father and make sure that he is served.
MISS CHAUS: Yes, sir.
THE COURT: My calendar, 3/22/71; and de-
tained pending and at the County Jail.
MR. PIKE: County Jail.
THE COURT: That is right, and we will have it
set for 9:00 o’clock in the morning.
Thank you very much. That is all. See you all back
here then.
MINOR’S MOTHER: May I visit with him?
THE COURT: I am sorry. Since he is in the County
Jail—what are the visiting hours?
MR. PIKE: I am not sure.
THE COURT: I think that you can during the
week.
MR. PIKE: Between 10:00 and 12:00 and 2:00
or something in the afternoon.
THE COURT: Yes, at the County Jail facility.
Thank you.
LOS ANGELES, CALIFORNIA
MONDAY, MARCH 22, 1971; A.M.
THE COURT: We have the matter of Gary Steven
Jones.
The youngster is here in court and is that you Gary?
THE MINOR: Yes.
THE COURT: And is the mother here?
MINOR’S MOTHER: Yes.
THE COURT: And Mr. Pike represents the young-
ster.
Would you both please stand and raise your right
hands?
a, | ae
MISS CHAUS: Sir, the field probation officer.
THE COURT: Miss field probation officer, your
name is? ;
MISS HARNEY: Eileen Harney H-a-r-n-e-y.
THE COURT: Would you please stand and raise
-your right hands?
(Whereupon the Court administered the oath to
all the people in the courtroom. )
THE COURT: Be seated please.
When last you were in court, young man, a petition
filed on your behalf was found true and just so that
the record is quite clear, by the Court’s sustaining the
petition and found that you came within the provisions
of Section 602 of the Welfare and Institutions Code.
At that time—
This Court requests a behavioral report to be filed
so that the issue of whether you are fit for further
consideration as a juvenile can be raised and can be
done in compliance with the statute.
The Court has for its consideration a behavioral
report which it has read and considered together with
all of the other information in the file, and it is the
Court’s intent to declare the youngster unfit for further
treatment as a juvenile, and I will hear you, Mr. Pike.
MR. PIKE: Your Honor, it seemed to me that there
was a hearing in this court where the Court found him
to come within Section 602 and then it was continued
for disposition.
THE COURT: Yes.
MR. PIKE: Is that correct?
THE COURT: Yes.
MR. PIKE: And that at the time of the disposition
hearing the Matter was then again continued for five
days for the fitness hearing which we are here for to-
day.
—29—.
THE COURT: (Nodding his head. )
MR. PIKE: Is that correct?
MISS CHAUS: Yes.
THE COURT: I will accept your recollection.
MR. PIKE: I offer in evidence a memorandum of
points and authorities relating to this matter and—
THE COURT: Let the record reflect the fact that
the Court has read it and discussed it actually with
you. Is that correct?
MR. PIKE: Yes.
THE COURT: You may proceed. The memorandum
is received into evidence.
MR. PIKE: Without going into argument on the
memorandum of points and authorities, I would like,
at this time, to call Eileen Harney.
THE COURT: Miss Harney, come up here, please.
EILEEN HARNEY, _
a witness previously sworn, was examined and testified
as follows:
THE COURT REPORTER: State your name,
please.
THE WITNESS: Eileen E-i-l-e-e-n Harney H-a-r-n-e-y.
EXAMINATION
BY MR. PIKE:
Q Miss Harney, I have reviewed the report that
you have submitted to the Court this morning which is
dated March the 22nd, and in the first paragraph of
that report you state, “reason for hearing,” but I don’t
find a recommendation in the report.
A Well, according to the records that I found in
the office it stated that a behavioral hearing is re-
quested—that you submit a behavioral hearing and
you do not necessarily make a recommendation.
I a 7 Te
—30—
Q I see. Are you familiar with the facilities avail-
able through the California Yough Authority for treat-
ment of this Minor?
A_ In the past I am aware that the facilities have
been quite good in the psychiatric department which is
where I feel that the Minor needs help.
However, at this time, I am told that they are not
as good as they have been.
Q_ Are you familiar with the facilities that are avail-
able through the adult authority for the treatment of a
Minor?
A I believe those could be a variety of facilities.
Q_ But you are not familiar with them, are you?
A Beyond the fact of Wayside, County Jail and
Youth Authority, not too much.
Q And do you have any information with regard
to the handling of a Minor by the adult authorities
after he has.been declared unfit and if he were con-
victed asan-adult?
A_ Ido not, although I believe that he would prob-
ably be committed to the Youth Authority.
Q Do you know the reception centers it has in
the State of California?
A_ No, Ido not.
Q_ And so it is your belief that he would then go
to the same Youth Authority?
A That’s what I understand, but I do not know
that to be a point of law.
MR. PIKE: No further questions.
THE COURT: Thank you very much, Miss Harney.
MR. PIKE: Your Honor, I personally called the lo-
cal administrative office of the Youth Authority and
discussed it with them, what possibly might happen to
this Minor if he were convicted as an adult, and they
tell me there are three reception centers in California.
|
One at Perkins, one at Tracy and one at Norwalk.
That the facility at Tracy is being phased out by the
Youth Authority and that 25 percent of the people
they normally used to send to Tracy are now being sent
‘to Norwalk and from the southern part of the state—
25 percent from the northern part of the state that
used to be sent to Tracy are now being sent to Perkins.
Originally Perkins and Norwalk received minors
from juvenile court largely and Tracy received minors
and adults from the adult court, but that most minors
were sent to Norwalk from the adult court and only
in exceptionally dangerous cases or exceptionally large
persons under the age of 18 were sent to Tracy and
that the. local office’s evaluation was that this minor
would go to Norwalk if he were convicted as an adult.
Further that it was their policy now to attempt. to
sepdrate Youth Authority persons from any adult au-
thority person which means previously Tracy has been
used as a reception center for both adults and Youth
Authority and that it was the policy of the Youth
Authority and adult authority that in the future they
would attempt to treat at separate facilities persons
committed to Youth Authority whether or not they
were over the age of 18.
I visited the area in the County Jail where this
Minor is detained and I was informed by the jailer
that on his 18th birthday he would be removed from
that facility and thereafter housed with the general
population at County Jail without any special facilities.
The special facilities in which he is detained now
are very primitive—three to a cell and probably the
cell is about 8 by 12—8 by 14 with no windows and
very close to the attorney room in the County Jail.
a
MISS HARNEY: He has been moved from that
particular cell.
THE COURT: That is all sieht Let counsel finish
his argument.
MR. PIKE: I would argue that first—that the points
and authorities set forth my feeling with regard to the
improper hearing of a 707 at this time; and further
I would argue that if the Court does find this boy to
be unfit, that it is cruel and unusual punishment to
send the Minor to the County Jail for a period of
time that will be probably 90 to 120 days before he
gets to sentencing again; when he will, in fact, go to
the same reception center of the Youth Authority that
he would go to from here—that we are not here to
punish.
We are here to rehabilitate and that rehabilitation
can only be impaired if the Minor is put in some kind
of a primitive holding cell between now and the time
that he finally works his way down to the Youth Au-
thority.
THE COURT: Anything else? +
MR. PIKE: No, your Honor.
THE COURT: Mr. Pike, your argument is not novel,
actually, but it actually sets forth the reverse side of
the Jimmy H. coin. |
Jimmy H.' says one of the factors—that merely be-
cause the disposition would be different if he were de-
clared an adult, is not enough reason to declare him
adult.
You, of course, espouse the other side of the coin.
Merely because he should be a juvenile—so following
Jimmy H. to its logical conclusion, the aspect of what
will or will not happen should have no total bearing
in these sense that it shouldn’t be the complete—as
Jimmy H. said—complete motivating factor.
sie iittala sk it tutte Med baka
i"
—<inS3—
So within the purview of that-case, and within the
purview of the Brown case which you are familiar with,
the Court feels that the Minor is not a fit and proper
subject to be dealt with as a juvenile and will declare
him unfit.
This record I have read is one of the most threaten-
“ing records I have read about any Minor who has
come before me.
We have, as a matter of simple fact, no less than
three armed robberies, each with a loaded weapon.
The degree of delinquency which that represents, the
degree of sophistication which that represents and the
degree of impossibility of assistance as a juvenile which
that represents, I think is overwhelming and bearing
in mind that factor and all other factors which are rele-
vant, all of which I have read and evaluated, I declare
the youngster unfit for treatment as a juvenile and he
will be turned over to the Sheriff and the District
Attorney or other appropriate prosecuting officers shall
prosecute the matter under the applicable criminal stat-
ute and the matter will be set over one month for a
nonappearance report as to the progress of the adult
action.
That is it, young fellow.
(Certifications and affidavits of service omitted in
printing. )
—34—
EXHIBIT G—JUVENILE COURT MINUTE
ORDER, APRIL 1, 1971.
Superior Court of the State of California, for the
County of Los Angeles, Juvenile Court. Dept. 96.
Date: April 1, 1971.
Judge: Marvin A. Freeman.
Referee: .........c...cccccceccessecee |
Deputy Clerk: N. Shigeoka.
Deputy Sheriff: A. M. Simpson.
Probation Officer: S. Canin.
DPSS Social Worker:
Reporter H. McCrea.
In the Matter of Gary Stephen Jones, a minor. No.
394221-0317197-SC 162.
MINUTE ORDER
Matter comes before the Court for hearing in re:
Ex Parte Application for Petition for Writ of Habeas
Corpus.
Attorney Donald Pike is appointed to represent minor
pursuant to Section 700 of the Welfare and Institutions
Code.
Petition for Writ of Habeas Corpus, preliminary
statement, and Points and Authorities submitted In
Propria Persona by minor’s mother, Lola Jones, is re-
ceived as filed by counsel, Donald Pike.
The Court states that in view of the importance of
the issues which have been raised in the ex parte ap-
plication for Petition for Writ of Habeas Corpus, the
Court will hear oral argument on the Petition.
Matter is argued by counsel for the minor.
a \ an
The Court now orders that the Petition for Writ
of Habeas Corpus be denied.
Court Reporter, Helena Mc Crea, is ordered to pre-
pare a transcript (original and two copies) of the
proceedings held this date at a cost to the County of
Los Angeles.
Counsel, Donald Pike, is further appointed to rep-
resent minor in the adult proceedings pursuant to Sec-
tion 987.2 of the Penal Code of California, and to pros-
ecute appeal, or take other appropriate proceedings
to review the instant order.
The Clerk is directed to forward'a copy of this min-
ute order to Attorney Donald Pike, 424 South Beverly
Drive, Beverly Hills, California 90212; and Helena
Mc Crea, court reporter.
—36—
EXHIBIT H—REPORTER’S TRANSCRIPT OF JU-
VENILE COURT: PROCEEDINGS, APRIL 1,
1971,
Superior Court of the State of California, for the
County of Los Angeles, Juvenile Court.
Department No. 96.
Hon. Marvin A. Freeman, Judge.
In the Matter of Gary Stephen Jones, a person un-
der the age of 21 years. No. 394221.
REPORTER’S TRANSCRIPT
April 1, 1971
APPEARANCES: £
For the Minor: Donald W. Pike, 424 S. Beverly
Drive, Beverly Hills, Calif. 90212, 553-8533; Kenneth
E. Kirkpatrick, Probation Officer, By: S. Canin, Depu-
ty Probation Officer; Helena M. McCrea, CSR, 1601
Eastlake, Los Angeles, Calif. 90033.
LOS ANGELES, CALIFORNIA, THURSDAY,
APRIL 1, 1971, 1:45 P.M.
THE COURT: In the matter of Gary Stephen Jones,
this is the petition for writ of habeas corpus.
The minor in this matter is represented by conflict
counsel appointed under section 700 of the Welfare and
Institutions Code.
Although this is an ex parte application, in view:
of the importance of the issue which has been raised
the court will hear oral argument upon the petition,
counsel.
[Oral argument of counsel omitted. |
THE COURT: Certainly, the court had before it that
time this question although it wasn’t pointed up to
ae ee
the court. So that the issue has inferentially at least
been before an Appellate Court and there have been
other cases, In Re Breck—
MR. PIKE: Jimmy H.., I believe.
THE COURT: And Jimmy H. There have been
several cases where the court has at least viewed sec-
tion 707 and has not seen fit to raise any question
about it as indeed it would if it was apparent there
was some serious question of construction being placed
upon it.
Our procedure of course is not exactly in accordance
with 707. We do set the matter for a separate fitness
hearing in these cases. Although 707 doesn’t talk about
a separate fitness hearing, it does however talk about
the submission of a report on the “behavioral patterns”,
which was added. Perhaps it was simply an oversight
in the section not to make it clear that you couldn’t
have the report on “behavioral patterns” unless you
set a new and separate hearing. But that is exactly
what we do. We set a separate hearing. Despite the
fact that 707 as I construe it—and to repeat, I con-
strue that section as giving the Juvenile Court the juris-
diction at any time before the disposition order to or-
der a fitness hearing. In other words, I construe the
language “At any time during a hearing” to mean at
any time until the disposition order has been made.
Despite the fact, as I say, that this construction of
the statute creates the obvious problems you have in-
dicated I don’t see how I can read the section as it is
written any differently.
Now I am, of course, aware of those problems. I
think not only the problems you raise but other prob-
lems. Not only do you have the question, if I under-
stand you correctly, as to what is the juvenile to do if
—383—
the court has adjudicated the petition, finds the petition
sustained. And now between that sustaining of the pe-
tition, the completion of the adjudication phase of
the hearing and the disposition hearing he now has
to decide how he should act and you of course have to
advise him how he should act. Should he now act as
perhaps he wants to act and tell everything to the
probation department, everything about himself and
thus create the possibility that instead of there being a
disposition hearing there will be a hearing which will
start out as a disposition hearing and will end up as
an arraignment for a fitness hearing? If he doesn’t open
up with a probation officer there is of course the danger
that the probation officer will find that he is so un-
cooperative that he cannot make a recommendation
for the kind of treatment you think he really should
have and, yet, as the attorney worrying about what
might happen as the disposition hearing, you have to
advise him to continue to more Of less stand upon
his constitutional right not to incriminate himself in the
sense that he makes it likely for the court to set it
for a fitness hearing. I see the difficulties you mentioned
there.
There is also the difficulty that if in the adjudication
hearing his counsel should say “You are fortunate they
didn’t send you over for a fitness hearing at the deten-
tion hearing. You are fortunate you are being tried
in juvenile. The best thing for you to do since you are
being treated as a juvenile to act as we originally
thought a juvenile should act in Juvenile Court, namely,
admit everything and that is the best way for you to be
given the kind of treatment that you as a juvenile
perhaps need.” And yet you are afraid to do that be-
cause that admission one way or other may end him
10...
up in the adult court where you would want to try
the case totally differently.
The second danger of course is not obviated by
saying the court should not have the jurisdiction to or-
der a fitness hearing after the petition has been ad-
judicated because surely the decision to whether or
not he should admit would come long before then—
sometime before then.
What you are really saying is that even if we con-
strue section 707 narrowly, that the hearing is over
once the petition has been sustained, you sometimes
have problems as to how to act when at any time the
court may decide to call for a fitness hearing. I think
that perhaps relates more to the constitutionality of
this section than the construction because I think you
would agree that the section must be read to at least
give the court the right after the hearing has started
and before the adjudication to set a fitness hearing
for the minor.
Well, as I have said before, I construe the section
as I have indicated. I think that is what the legisla-
ture meant. I think the legislature may have been think-
ing in pre-Gaultian terms. It certainly was, thinking in’
pre-Gaultian terms because that was before Gault. It
may well be that the legislature would not have enacted
this statute after Gault had laid down the guidelines
it did or establish the rules it did.
Your second question of course relates to the consti-
tutionality and, again, we discussed this informally. be-
fore this hearing,| counsel, and rather than have you
repeat on the record the argument you made then let
me say this. We have followed section 707 in the Ju-
venile Court for a long time. Of course, we do not have
a great number of fitness determined. I think that last
|
—40—
year the total number may have been about thirty
cases where we found a minor unfit. In previous years
it was substantially less. Even though there have not
been a great number, we nevertheless have clearly fol-
lowed the policy of recognizing 707 as giving the court
the jurisdiction to set a fitness hearing after the com-
mencement of the introduction of testimony at the ad-
judication in the Juvenile Court.
For the moment let’s ignore the question as whether
before or after the adjudication. I do not think it
would be proper for me to rule now that this section
is unconstitutional. As I say, we have not introduced
any substantial evidence regarding the amenability dur-
ing the adjudication so that we have not unconstitu-
tionally in terms of fairness followed that language,
particularly since it is not direct language but merely —
inferential. But where we have followed this section,
previous judges have followed it. Now, since 1961 I
would not declare the section unconstitutional insofar
as it permits finding of unfitness after the adjudication
proceedings have commenced, particularly, as I say,
in light of the fact that I believe at least three times
appellate courts have seen this section in one light or
other and have not made any comment on possible
unconstitutionality. ; 4
If the United States Supreme Court which has the
ultimate responsibility on constitutionality may follow
a doctrine of abstention it seems only appropriate that
the trial court should follow a doctrine of abstention.
I have considerable doubts about the constitutionality.
Let me say that I think that the presentation ~ you
made informally and in part here and in your docu-
ments, papers, clearly point up a problem in the proper
representation of the minor which ‘thus become his
7 Ai.
Problem in the fairness of the treatment he receives. I
think you have pointed up enough so it would make
one wonder whether the juvenile is not now, in the
terms of Gault, again being treated worse than the
adult. The fact that it is not double jeopardy, accord-
ing to appellate cases does in a sense mean that the
juvenile is treated worse than an adult. The adult
never has to go through these two proceedings.
California Appellate Courts have stated that all that
this second trial means is in effect that under certain
circumstances we don’t give certain juveniles the chance
of remaining in Juvenile. Adults never have the chance
of being in Juvenile so presumably juveniles cannot ob-
ject if at least they have a chance and a few of them—
if you want to talk in terms of groups—get sent out
to the adult court on the individual case. Again, that is
Brown, as I recall it. On the individual case I don’t
recall the exact language but the court with respect to
the individual minor pointed up the fact that at most
he had an inconvenience by having first been tried
in juvenile and then sent over to adult.
In any event, the court reached the result that it was
not double jeopardy, and it was pointed out in that
case that his rights in the: adult court were prejudiced
by what happened in the Juvenile Court. | may say
in that regard that it has been suggested that the way
to solve that problem of the Possible impairment of
rights in adult court from there having been previous
juvenile Proceedings is by making the juvenile proceed-
ings confidential and not being able to be used against
the minor. I must Say that doesn’t impress me be-
cause if the minor admitted something in the Juvenile
Court and named his companions nobody is going to
eradicate from the minds of the district attorney or
—42—
other people the information they obtained. But even
though I have considerable doubts as to how fair it is
to have the minor go all the way through or even part
of the way through or even just start a juvenile ad-
judication and then be able to send him over to the
adult court I still would not declare the section uncon-
stitutional. It is, I suppose a question of quantum in
part.
There is one other thing I wanted to say on that.
Of course the fitness hearing itself is a burden upon
the minor that adults don’t have. But I don’t assume
the minor can argue with that because I don’t assume
anybody would say it is unconstitutional to say that
certain minors will not have the benefit of the treat-
ment as minors.
Do you have anything to add, counsel?
MR. PIKE: Yes. There is a section, I believe it is
704 which gives the court authority when the court
questions the possibility of the minor being amenable
to the treatment and facilities available to the—juvenile,
that they can refer him to the Youth Authority under
section 704. The language in that section, as I recall,
says after the minor has been found to be a person who
comes within section 602—
THE COURT: Yes.
MR. PIKE: As the court pointed out in interpret-
ing the statute, it is peculiar that this statute appears
before section 707 instead of after section 707, so that
I may be reaching to draw an inference from that
statute that the legislature enacted that to take care of
the very kind of case we have here today.
THE COURT: As I look through these other sec-
tions T don’t think the placement could really be of
any significance. It is true that the disposition by the
RA
| a
court, 725, is after 707 but there are obviously previous
sections. They talk in terms of the procedure to get
the disposition hearing. I think the language of 707
is clear enough so that I don’t think that the place-
ment would be of any importance at all.
I don’t disagree, counsel, as to what would be the
better procedure. I have no doubt but that the better
procedure is that at the detention hearing, the deci-
sion be made as to whether there should be a fitness
hearing. At the detention hearing it is clear that the
police report may be considered, anything probation
introduces may be considered. There is no requirement
that evidence be limited to competent evidence, and
in the usual case it should be at the detention hearing.
I will go further and say I don’t think that the
Juvenile Court would be crippled if there were no
707 as it is now constituted, that is, I don’t know
our operation would really be hampered if the rule
were laid down that at the arraignment or detention
hearing or in any event before the introduction of
evidence at the adjudication the court may set the mat-
ter for a fitness hearing.
I suppose that now and then a case might come
up where at the adjudication hearing facts came out
that would make the court realize that at a previous
proceeding or hearing or at a previous time there
should have been made an order that a fitness hearing
be set. I suppose it would be best if we had a law
that said that there would be a right upon the showing
of evidence which was not before the court at the time
of the detention hearing or, in any event, before the
adjudication hearing. Perhaps something along those
lines.
— —44—
But we are not writing statutes here now and we
are not establishing procedures here. We have only
the question before us as to what 707 means, I have
indicated the way it has been construed here and the
way I intend to continue to construe it until the Appel-
late Court construes it differently or until it is appealed
or amended and, as<f have already stated, I will not:
declare it unconstitutional in light of all of these facts.
If you have nothing further, counsel—Let me add
this finally. I think this is an important point though
we don’t have many cases and those cases where they
do come up, there are serious offenses generally involved
and minors generally with rather lengthy records or
records of rather serious offenses. They are difficult
cases. I recognize counsel’s problems in these cases
and I therefore will on the record now appoint you
specially first to represent the minor in the adult court.
It is my understanding you are going to ask for a con-
tinuance there?
MR. PIKE: That is correct.
THE COURT: And, secondly, to prosecute the ap-
peal in this matter, which you have indicated you are
‘. going to take up one way or the other.
MR. PIKE: Thank you.
THE COURT: I will ask that you use clemency
upon the county in terms of time expended. You have,
I think, the matter very clearly in mind yourself: so
I think the formulation of the problem will not be
difficult for you. There are no factual problems that
would cause any difficulty, and I do hope you will be
able to receive some help, as you have indicated, from
e public law agency or private agency devoted to
work in this field.
—45—
Also, in line with what I have said to you before,
I have ordered the transcript of this proceeding to be
prepared immediately. If the record does not indicate
I ordered it, I do now order at county expense in view
of the fact that the mother is receiving aid now.
MR. PIKE: An original and two, your Honor. The
reporter has indicated to me that it would be less ex-
pensive if we ordered an original and two copies at
‘this time although ~~ the writ were granted by
whatever appellate court I took it to I would probably
only, need the original.
THE COURT: I think an original and two is called
for. The extra expense is worth it. If nothing happens
with this in the appellate, court, I can use it as the
formulation for some guidelines I will be promulgating
in this court.
The petition for writ of habeas corpus is denied
for the reasons stated on the record.
MR. PIKE: Thank you very much, your Honor.
(Whereupon, the proceedings in the above-entitled
matter were concluded. )
(Certification of court reporter omitted in printing.)
cilia
EXHIBIT I—NOTICE OF DENIAL OF STATE
HABEAS CORPUS PETITION BY CALIFOR-
' NIA SUPREME COURT.
Clerk’s Office Supreme Court, 4250 State Building,
San Francisco, California 94102, Aug. 4, 1971.
Dear Sir: I have this day filed Order Hearing De-
nied.
In re: 2 Crim. No. 19956, Jones vs. Habeas Corpus.
' Respectfully, .
G.E. BISHEL —
Clerk
ot
a,
EXHIBIT J—PLEA OF ONCE IN JEOPARDY EN-
TERED IN LOS ANGELES COUNTY SUPE-
RIOR COURT.
DONALD W. PIKE
424 South Beverly Drive
Beverly Hills, California 99212
879-3611
Attorney for Defendant—Appointed
counsel under Section 987(a) of
the Penal Code
Superior Court of the State of California, County
of Los Angeles, Southwest District.
People of the State of California, Plaintiff, vs. Gary
Steven Jones, Defendant. No. A 174,204.
Filed Sept. 7, 1971.
ONCE IN JEOPARDY AND
ONCE CONVICTED
The defendant pleads that he has already been
placed once in jeopardy and convicted of the offense
charged, by the judgment of the Superior Court of the
County of Los Angeles, Juvenile Court, rendered at
1601 Eastlake Avenue, Los Angeles, California, in
Hearing Room 5, on the Ist day of March, 1971. At-
tached is a copy of the findings of that court.
/s/ Donald W. Pike
Donald W. Pike
scsi acs
EXHIBIT K—REPORTER’S TRANSCRIPT OF
_ PRELIMINARY HEARING, AUGUST 23, 1971.
In the Municipal Court, South Bay Judicial Dis-
trict, County of Los Angeles, State of California.
Hon. George R. Perkovich, Judge, Division III.
The People of the State of California, Plaintiff. vs.
Gary Stephen Jones, Defendant. No. A 174204, Vio.
Sec. 211, Penal Code.
REPORTER’S TRANSCRIPT
OF PRELIMINARY HEARING
MONDAY, AUGUST 23, 1971
APPEARANCES:
For the People: Nikola M. Milulcich, Esq., Deputy
District Attorney.
For the Defendant: Donald W. Pike, Esq., 424
South Beverly Drive, Beverly Hills, California.
Reported by: Sandra B. Pister, CSR.
TORRANCE, CALIFORNIA: MONDAY,
AUGUST 23, 1971; 11:00 A.M.
THE COURT: People vs. Jones.
MR. MILULCICH: The People call James Thomas
Mattera.
MR. PIKE: Before calling the witness to the stand,
I would like to enter a plea of once in jeopardy and
once convicted and I have that plea with me in writ-
ing.
THE COURT: Please show it to the District At-
torney.
Have you been apprised of it?
MR. MILULCICH: No, your Honor.
anaes y RESP EAE MOR CO Oy PRR RTE, AR et 5 LOLS yl
a om
MR. PIKE: ‘The matter has been to the Court of
Appeals. It was rejected there. A writ of habeas cor-
pus.
MR. MILULCICH: The defendant was certified as
an adult from the juvenile court and this is the basis
of counsel’s motion that he has, in fact, been in jeo-
pardy.
THE COURT: Has that issue been tried on the
writ of habeas corpus?
MR. PIKE: That is correct. We are in the court of
the State of California, but in order to preserve the
record I again raise the plea and I would like to file
a written plea.
THE COURT: All right.
MR. PIKE: It has been attached to a certified copy
of the court’s ruling in the juvenile court of which this
matter was previously tried.
MR. MILULCICH: If I am not mistaken, the pro-
cedure would be for the defendant, in effect, to with-
draw his plea of guilty if there has been one.
THE COURT: There hasn’t been any plea entered.
Let’s go off the record.
(Whereupon a discussion was held off the rec-
ord. )
THE COURT: Back on the record. On the same
questions of facts, then the plea is rejected, proceed
with the preliminary hearing.
JAMES THOMAS MATTERA,
called as a witness by and on behalf of the People.
being first duly sworn, was examined and testified
as follows:
THE CLERK: Be seated and state your name, please.
_ THE WITNESS: James Thomas Mattera.
x
. PEED OT ENT s eo ath
—s0—
DIRECT EXAMINATION
BY MR. MILULCICH:
Where do you live?
4030 West 164th Street.
And is your telephone number there 370-3002?
Yes.
Where do you work?
I work at the Lawndale Liquor Store, 16201
Hawthorne Boulevard in the City of Lawndale.
Q Were you working at that location on or be-
fore February, 1971?
A Yes, I was.
Q At approximately 10:45 p.m., did something
unusual occur?
A_ Yes. I was robbed. _
MR. PIKE: Move that be stricken as a conclusion
of the witness.
THE COURT: It will be stricken.
Tell us what happened, what you observed and what
you saw.
THE WITNESS: Well, I was working. One cus-
tomer was at the counter and two people came in and
walked in the back of the store and waited until I
finished with this customer, and they came up with a
ten cent bag of potato chips and they pulled guns and
said, “Back up against the wall.”
BY MR. MILULCICH:
Q Either. one of those persons in the courtroom
today?
A_ Yes, he is.
Q_ Point him out, please.
A_ The guy on the left.
THE COURT: Indicating the defendant.
rOP?rO ro
BY MR. MILULCICH:
Q_ What happened after the guns were pulled?
A_ He said, “Back against the wall,” and I did, and
he, the defendant or the guy right there, reached up
and picked up the whole cash box and handed it over
to the other guy.
Q_ And then what happened?
A. And then I told him—I asked him if he would
leave the box and he said that he didn’t have time and
he stayed in the front. )
THE COURT: Which one is the one in the front, —
the defendant?
THE WITNESS: The defendant stayed while the
other person walked out and he followed him.
THE COURT: And then they left?
THE WITNESS: Right.
MR. MILULCICH: I have what appears to be a
shopping bag along with some number attached thereto.
May I have these items marked as People’s 1 for
identification?
THE COURTTIT’ may be so marked.
MR. MILULCICH: May I approach the witness?
THE COURT: You may.
MR. MILULCICH: May the record reflect I am
now opening this bag and exposing the contents therein
which appears to be a box or a cash register and two
guns and I am showing them to the witness.
Sir, I show you these items presently before you pre-
viously marked as People’s 1 for identification.
Do these items appear at all familiar to you?
A This looks like the box.
a ee
THE COURT: Indicating the cash drawer?
THE WITNESS: That looks like one of the guns.
THE COURT: Referring to a .38 Smith and Wesson
with a short barrel, one inch barrel, apparently.
Do you see the other gun there?
THE WITNESS: Yes.
THE COURT: Do you recall seeing that before?
THE WITNESS: I just remember the brown handle.
THE COURT: Where did you see this one, the one
inch Smith and Wesson with the brown handle?
THE WITNESS: I couldn’t state positively which
person had it. I just know that one had a brown handle
and one of those two persons had it..
BY MR. MILULCICH:
Q_ I show you what appears to be kind of a blue
wool-type cap that I have removed from People’s 1 for
identification. :
I ask you to look at that and tell me if that appears
at all familiar to you. |
A At the time both of them had one on.
Q. They had this type of a cap on?
A_ Yes, they tucked it up.
MR. MILULCICH: No further questions.
THE COURT: Cross-examination.
CROSS-EXAMINATION
BY MR. PIKE:
Q Mr. Mattera, that brown handled gun, the only
thing you recognize is that it has a brown handle; is
that correct?
A Yes.
a
Q Are there any marks on the cash drawer that is
before you that was contained in People’s 1 that helps
you identify the cash drawer that came from your store?
A No.
THE COURT: IT just looks like it; it resembles it?
THE WITNESS: Yes.
BY MR. PIKE:
Q Prior to your ,testifying here today, on how
many occasions after the event that you have testified
to on February the 8th or between February the 8th
and today, how many times have you seen the de-
fendant?
AI really couldn’t say. I have seen him because I
had to go downtown—
THE COURT: How many times between the date of
this incident at the liquor store and today, how many
times, if you can remember seeing him?
THE WITNESS: I know for sure at least once.
THE COURT: At least once?
THE WITNESS: Yes.
BY MR. PIKE:
Q_ Didn’t you see a photograph of this defendant?
A The day after.
Q_ Where was that that you saw the chnniaregh?
A_ I was at the store and the two detectives or police -
officers came in with the pictures.
Q How many pictures did the detectives have for
you?
A_ I couldn’t tell; it was more than one.
Q More than three?
A_ Yes, there was.
Q How many pictures did you recognize that were
in that group that was brought to you?
A One.
Q_ And were all of those pictures of black men?
A_ Yes, they were.
Q They were all mug shots; that would be a profile
and a name would appear? It would be an official
photograph taken by the police.
A_ I can’t remember.
Q You testified you saw this defendant at one
other time. Where was it that you saw him?
A It was downtown in some court. I got sub-
penaed.
It was in a court?
Yes.
Did you testify in that court?
Yes, I did.
Did you identify the defendant in that court?
Yes, I did.
Do you know what the outcome of that ap-
pearance in court was?
A_ No, I don’t.
Q Were you excluded from the courtroom during
the time the testimony was taken?
A As|I gave my testimony.
Q Prior to the time you gave your testimony were
you excluded when anyone else gave their testimony?
A_ Yes, I think so.
MR. PIKE: No further questions.
THE COURT: Anything further?
You may stand down.
MR. MILULCICH: The People call Officer Gomez.
THE COURT: You are going to put on the full-
blown case?
MR. MILULCICH: No, your Honor.
OPFrO FO PO
re REAR YNS ER AIR SOMOS ome whee " si
a {a
FRANKLIN GOMEZ,
called as a witness by and on behalf of the People,
being first duly sworn, was examined and testified as
follows:
THE CLERK: Be seated and state your full name,
please. |
THE WITNESS: Franklin Gomez. G-o-m-e-z.
DIRECT EXAMINATION
BY MR. MILULCICH:
Q Deputy Gomez, what is your present occupation
and assignment?
A Deputy Sheriff for the County of Los Angeles,
currently assigned to Administrative Services.
Q Were you so employed and so assigned on Feb-
urary 8, 1971?
A_ Yes, I was.
Q Did you have—did you have occasion to receive
a call over your police radio unit as to an armed rob-
bery?
A_ Yes, I did.
Q_ What information was given to you?
A The information was there was an armed robbery
at 16201 Hawthorne Boulevard, the Lawndale Liquor
Store perpetrated by two male Negroes with a third
suspect driving the car that the suspects left in.
The vehicle was described as a possible 1960 to
1963 General Motors product, either an Oldsmobile or
a Pontiac, brown-and-white in color. That one of the
taillights was inoperative.
Q_ Did you subsequently observe a vehicle matching
this description?
A_ Yes, I did.
sills
Q_ Where was it?
A The vehicle was eastbound on El Segundo
Boulevard approaching Central Avenue. |
Approximately what time was that?
Approximately 23:10 or 11:10.
Did you happen to stop that vehicle?
Yes, we did.
Did you observe anything inside this vehicle?
Yes.
Drawing your attention to the items previously
marked People’s 1 for identification, I ask you to look
at them and tell me if you can recognize any of those
items?
A_ Yes, I do.
Q_ Which items do you recognize and can you tell
us where you first saw them.
A_I recognize all of the items, the cash box with
the guns. There was also some currency and change
and the caps were found in the front seat on the floor-
board between the front passenger’s seat.
Q Do you recognize any person that was in the
vehicle at the time you stopped them?
A_ Yes, I do.
Q Is that person in the courtroom?
A Yes.
Q_ Will you point him out?
A_ Yes. He is the person sitting t my far left.
THE COURT: Indicating the defendant.
BY MR. MILULCICH:
Q Where was he seated when you first observed
this vehicle?
A He was in the right, rear passenger seat.
MR. MILULCICH: Thank you. Nothing further.
OFO FO PO
a, See
MR. PIKE: No further questions.
THE COURT: You may stand down.
MR. MILULCICH: At this time the People offer
People’s 1 for identification into evidence.
MR. PIKE: No objection.
THE COURT: Any defense at this time?
MR. PIKE: No, your Honor.
THE COURT: It appearing to me that the offense
in the within complaint mentioned to wit, violation of
Section 211 of the Penal Code, robbery, a felony, was
committed and there is sufficient cause to believe that
the within named defendant committed the same. That
he will be held to answer to the same. That he appear
for arraignment in Torrance Southwest J on September
7, 1971, at 9:00 a.m. ;
Bail to stand in the amount heretofore fixed.
[Certification of reporter omitted in printing].
ROY Wit
ee, OS IOS Te
% a Se
EXHIBIT L—INFORMATION.
Superior Court of the State of California, for the
County of Los Angeles.
The People of the State of California, Plaintiff,
v. Gary Stephen Jones, Defendant. No. A-174204.
Robbery (Sec. 211 P.C.).
INFORMATION
The said Gary Stephen Jones is accused by the Dis-
trict Attorney of and for the County of Los Angeles,
State of California, by this information, of the crime
of Robbery, in violation of Section 211, Penal Code
of California, a felony, committed as follows: that the
said Gary Stephen Jones on or about the 8th day of
February, 1971, at and in the County of Los Angeles,
State of California, did willfully, unlawfully, felonious-
ly and by means of force and fear take personal proper-
ty from the person, possession and immediate presence
of James Thomas Mattera. ;
That at the time of the commission of the above
offense, said defendant, Gary Stephen Jones, was
armed with a deadly weapon, to wit, a pistol.
JOSEPH P. BUSCH, JR.
‘District Attorney for the County of
Los Angeles, State of California
By JOHN M PROVENZANO, Deputy
casi
EXHIBIT M—SUPERIOR COURT MINUTE
ORDER, SEPTEMBER 29, 1971.
Superior Court of California, County of Los An-
geles. Dept. SWJ.
Date: Sept. 29, 1971.
Honorable: Auten F. Bush, Judge.
J. Tabb, Deputy Sheriff.
W. Powell, Deputy Clerk.
N. Devereaux, Reporter. 7 )
People of the State of California Vs. Jones, Gary
Stephen. 603 C A 174204.
Counsel for Plaintiff: Joseph P. Busch, Jr., by I.
Bloom, Deputy. —
Counsel for Defendant: D. Pike.
Nature of Proceedings: Trial ‘(Submission on Tran-
' script) Trans from SW F.
The defendant personally and all counsel waive trial
by jury. , '
Cause Called for Trial.
By stipulation of defendant and all counsel
‘cause is submitted on the testimony contained in the
transcript of the proceedings had at the preliminary
hearing, subject to this court’s rulings, with each side
reserving the right to offer additional evidence, and
all stipulations entered into at the preliminary hearing
be deemed entered into in these proceedings. It is
further stipulated that all exhibits received at the pre-—
liminary hearing are deemed received in evidence jn —
these proceedings, subject to this court’s rulings, The
defendant personally waives his right to’ confrontation
eee
of witnesses for the purpose of further cross-examina-
tion. :
The Court States it has read and considered the
transcript of the preliminary hearing.
Argument waived, cause submitted.
The Court finds the defendant guilty as charged to
211 P.C., degree fixed as first.
Defendant waives time for sentence. Referred
to probation department and further proceedings con-
tinued to 10-20-71 in Dept. SWJ at 9 A.M.
Remanded.
/
f
= Ae
EXHIBIT N—SUPERIOR COURT MINUTE
ORDER, OCTOBER 20, 1971.
Superior Court of California, County of Los An-
geles. Dept. SWJ.
Date: October 20, 1971.
Honorable: Auten Bush, Judge.
J. Tabb, Deputy Sheriff.
W. Powell, Deputy Clerk.
ON, Devereaux, Reporter.
People of the State of California, vs. Jones, Gary
Stephen. A174204. X-511939.
Counsel for Plaintiff: Joseph P. Busch, Jr., District
Atty. by I. Bloom, Deputy.
Counsel for Defendant: D. Pike.
Nature of Proceedings: Probation and Sentence.
Probation denied. Sentenced as shown below.
_Committed to the California Youth Authority.
‘Remanded.
weil cai
EXHIBIT O—SUPERIOR COURT JUDGMENT OF
CONVICTION AND COMMITMENT TO
- YOUTH AUTHORITY.
Superior Court of the State of California, for the
County of Los Angeles. Dept. Southwest J.
Date: October 20, 1971.
Honorable: Auten Bush, Judge.
J. Tabb, Deputy Sheriff. |
W. Powell, Deputy Clerk.
N. Devereaux, Reporter. -
People of the State of California vs. Jones, Gary
Stephen. A174204. X-511939.
Counsel for Plaintiff: Joseph P. Busch, Jr., District
Atty., by I. Bloom, Deputy.
Counsel for Defendant: D. Pike.
Nature of Proceedings: Probation and Sentence.
Probation is denied.
Whereas the said defendant having been duly found
guilty of the crime of Robbery (Sec. 211. P.C.), a
felony, as charged in the information, which the Court
found to be Robbery of the first degree committed in
Los Angeles County, on or about the 8th day of Feb-
ruary, 1971 and it appearing that the defendant was
‘under the age of 21 years at the time of apprehension
on the 8th day of February, 1971, to-wit: the age of.
seventeen (17) years, born on the 22nd day of June,
1953.
It Is Therefore Ordered, Adjudged and Decreed
that said defendant be committed to the Youth Au-
thority of the State of California for the term pre-
scribed by law.
Si ihe a
er a
It Is Further Ordered that the defendant be remand-
ed to the custody of the Sheriff of Los Angeles County
to be held in custody in the County Jail under the
jurisdiction of the Youth Authority of the State of
California, subject to any orders the Authority may
issue.
This Minute Order Was Entered
Oct. 21, 1971
WILLIAM G. SHARP, County Clerk
and Clerk of the Superior Court.
sill i
POINTS AND AUTHORITIES IN SUPPORT OF
PETITION FOR WRIT OF HABEAS CORPUS.
DONALD W. PIKE
424 South Beverly Drive
Beverly Hills, California
90212
Tel: (213) 553-8533
PETER BULL
ROBERT L. WALKER
Youth Law Center
795 Turk Street
San Francisco, California 94102
Tel: (415) 474-5865
Attorneys for Petitioner
In the United States District Court, for the Central
District of California.
Gary Steven Jones, a minor by and through Lola
Mae Jones, his guardian ad litem, Petitioner, vs. Al-
lea F. Breed, Director of the California Youth Au-
thority; Robert McKibben, Superintendent of the South-
ern Regional Center Clinic, California Youth Authori-
ty, Respondents. Civil Action No. 71-2907-LTL.
Filed: Dec. 10, 1971.
POINTS AND AUTHORITIES
IN SUPPORT OF RELATOR’S
PETITION FOR A WRIT OF
HABEAS CORPUS
TABLE OF CONTENTS
I.
INTRODUCTION AND STATEMENT OF
ae Sees
II.
PETITIONER WAS TWICE PLACED IN JEOPAR-
DY IN VIOLATION OF HIS RIGHTS UNDER
THE FIFTH AND FOURTEENTH AMEND-
MENTS TO THE UNITED STATES CONSTI-
BEE Re ecsstinicssacapneupcaascksondemamnsibinmiinieiicmnions 68
THE GUARANTEE AGAINST TWICE BEING
PLACED IN JEOPARDY AFFORDED BY
THE FEDERAL CONSTITUTION IS APPLI-
CABLE TO JUVENILE DELINQUENCY PRO-
CORSEPEINGID ccisaccsheaecntionsntenpsiencepanhtveunsinntiasssion 76_
HABEAS CORPUS IS THE PROPER REMEDY .. 82
V.
PETITIONER HAS EXHAUSTED HIS STATE
COURT REMEDIES AS REQUIRED BY 28
U.S.C. SECTION 2254(b). REEXHAUSTION
OF THESE REMEDIES WOULD BE INEF-
FECTIVE TO PROTECT HIS RIGHTS ........ 87
CR, ta cersnceestnnsnesienperaenntiianamnnncaiiniticninnsrenne 90
I. INTRODUCTION AND STATEMENT OF
FACTS.
It is scarcely possible to imagine a procedure more
directly at odds. with the clear language and funda-
mental policies of the double jeopardy clause than that
to which Gary Steven Jones has been subjected. On
March 1, 1971 he was adjudicated by the Juvenile
Court of Los Angeles County to be a person described
by Section 602 of the California Welfare and Institu-
tions Code [hereinafter cited as “Cal. W&I Code”.
This determination was reached after the juvenile court
oni
referee heard testimony, including testimony of the
minor, and the court explicitly sustained the petition
[the findings and order of Referee Barnett are an-
nexed to relator’s petition as Exhibit “E”].’
Instead of holding a dispositional hearihg the-court
held a hearing pursuant to Cal. W&I Code § 707 to
determine if the minor would be “amenable to the
care, treatment and training program available through
the facilities of the juvenile court. . . .”* The court
found that the minor was not a proper subject for
treatment under the Juvenile Court Law and directed
that he be tried again in adult court.
1Proceedings under the Juvenile Court Law are bifurcated.
Since there are no provisions for bail, the juvenile court is re-
quired to hold a detention hearing within one judicial day after
a petition is filed. The purpose of the hearing is to determine
whether the minor should be detained or released pending his
jurisdictional hearing. Cal. W&I Code §§ 632, 635, 636. With
the exception of the minor’s right to a jury trial, the jurisdictional
hearing is identical to a criminal trial [Jn re Winship, 397 U.S.
358 (1970)]. The purpose of the proceeding is for the juvenile
court to determine if the minor has committed the act or acts
which allegedly bring him within the jurisdiction of the juvenile
court. Cal. W&I Code § 701.
If the juvenile court finds that the minor is a person described
by Section 602 of the Cal. W&I Code, it will hold a disposi-
tional hearing which serves the same function as a sentencing
proceeding in a criminal case. This hearing will normally be held
a number of days after the jurisdictional hearing so that the
probation officer will have sufficient time to provide the court
with an up-to-date social studies report. Cal. W&I Code, § 702.
Dispositional alternatives include varying kinds of probation,
commitment to a juvenile home, ranch, or camp, or commitment
— “1g: California Youth Authority. Cal. W&I Code §§ 727, 730,
2In its entirety Cal. W&I Code § 707 provides:
“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 com-
mission of such offense and that the minor would not be amen-
soe
Petitioner was subsequently tried in connection with
the identical incident for which he had been found a
person coming within the Juvenile Court Law. He was
convicted of having committed armed robbery in viola-
tion of Cal. Penal Code § 211 and committed to the
California Youth Authority.* At each stage of the pro-
ceedings petitioner’s court-appointed counsel has scrupu-
lously objected that the procedure outlined above con-
stituted double jeopardy in violation of the minor’s
constitutional rights.
able to the care, treatment and training program available
through the facilities of the 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 com-
mitted 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 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 appropriate prosecuting officer to prose-
cute the person under the applicable criminal statute or ordi-
nance and thereafter dismiss the petition or, if a prosecution
has been commenced in another court but has been suspended
while juvenile court proceedings are held, shall dismiss the peti-
tion and issue its order directing that the other court pete dl
resume.
In determining whether the minor is a fit and proper subject to
be dealt with under this chapter, the offense, 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 therefrom 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 investigate and ©
submit a report on the behavioral patterns of the person being
considered for unfitness.”
8The minute orders of the Superior Court have been annexed
to relator’s petition as Exhibits “M” and “N”.
—68—-
II. PETITIONER WAS TWICE PLACED IN JEOP-
ARDY IN VIOLATION OF HIS RIGHTS UN-
DER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Petitioner has been compelled to undergo two trials,
one in juvenile court and one in adult court, based
upon the same underlying incident. During éach pro-
ceeding he was “in jeopardy” because an unfavorable
adjudication would subject him to loss of liberty for an
extended period of time. See Cal. W&I Code §§ 727,
731; Cal. Penal Code § 213; see In re Gault, 387
U.S. 1 (1967). If petitioner had been tried twice as an
adult based upon the same underlying facts, no one
would dispute that he was being placed in double
jeopardy.* See, e.g., Benton v. Maryland, 395 US.
784 (1969), which held that the double jeopardy guar-
antee is enforceable against the states through the
Fourteenth Amendment. Yet, merely because the initial
proceeding was conducted in juvenile court, the state
courts have sustained this anomalous procedure with-
out, however, articulating a defensible rationale. In fact,
Judge Freeman, the Presiding Judge of the Los Angeles
Juvenile Court, revealed his personal doubts regarding
its constitutionality, although he felt compelled by Cali-
fornia appellate decisions to deny petitioner’s writ.
“I have considerable doubts about the constitu-
tionality. . . . I think you [counsel] have pointed
up enough so it would make one wonder wheth-
er the juvenile is not now, in the terms of Gault,
again being treated worse than the adult. The fact
that it is not double jeopardy according to appel-
4We assume of course, that there was no reversal on appeal or
other contingency not applicable here.
YSERA Se SA De RENE TS I
slg isc
late cases does in a sense mean that the juvenile
is treated worse than an adult. The adult never
has to go through these two proceedings.”
It is well-established that jeopardy attaches in a non-
jury trial no later than when the first witness is sworn.
United States v. Jorn, 27 L.Ed.2d 543 (1971); Wade
v. Hunter, 336 U.S. 684, 688 (1949); Richard M. v.
Superior Court, 4 Cal. 3d 370, 93 Cal. 752 (1971).
On the other hand, Cal. W&I Code § 707 authorizes
the transfer of a case from juvenile court to adult court,
and the commencement of criminal proceedings at
any time during the jurisdictional hearing.*® Since this
statute authorizes a second prosecution for the _ Same
underlying offense after jeopardy has already attached
at the initial proceeding, it is in fatal conflict with the
constitutional prohibition against twice placing a person
in jeopardy. This procedure, sanctioned by Cal. W&I
Code § 707 and utilized in the present case, is pre-
cisely the type of practice which the double jeopardy
guarantee was intended to prevent. See United States
v. Ball, 163 U.S. 662, 669 (1896); Ex Parte Lange,
18 Wall. 163, 21 L.Ed. 872, 877 (1874); United States
v. Sabella, 272 F.2d 206 (2d Cir. 1959).’
5Reporter’s Transcript, April 1, 1971, p. 15 [Exhibit “H”].
®See footnote 2; supra.
7The constitutionality of Cal. W&I Code § 707 is ripe for
decision before this Court. The California Court of Appeal
specifically upheld the constitutionality of the procedure encom-
passed by Section 707 in denying the writ below. In re Gary
Steven J., 17 Cal. App. 3d 704 at 709-10. Although the Su-
preme Court of California’s denial of a hearing does not indi-
cate agreement with all of the reasoning contained in the imter-
mediate appellate court’s opinion, it may “be taken as an ap-
proval of the conclusion there reached.” See Cole v. Rush, 45 Cal.
2d 345, 289 P.2d 450, 453 n.3 (1955); DiGenova v. State
Board of Education, 57 Cal.2d 167, 367 P.2d 865 (1962).
Therefore, both an intermediate appellate court and the highest
court in California have either explicitly or implicitly upheld Cal.
W&I Code § 707 against a constitutional attack.
—70—
The purpose underlying the double jeopardy clause is
to prevent the State, with all of its resources and power,
from making repeated attempts to convict an individual.
The double jeopardy clause is intended to protect the
individual from the anxiety, embarrassment, expense,
and ordeal of a second trial. Green v. United States,
355 U.S. 184, 188 (1957). In language particularly ap-
propriate to the case at bar, the Supreme Court has
stated,
“The protection is not, as the court below held,
against the peril of second punishment but against
being tried twice for the same offense.” Kepner v.
United States, 195 U.S. 100, 130 (1904).
Trial of Gary in adult court upon the identical facts
already adjudicated in juvenile court is clearly barred
by this principle. It is constitutionally immaterial wheth-
er either or both adjudications resulted in conviction
or acquittal.
“|. . the accused, whether convicted or acquitted,
is equally put in jeopardy at the first trial.” United
States v. Ball, 163 U.S. 662, 669 (1896)s Accord,
Helvering v. Mitchell, 303 U.S. 391, 3 1938);
In re Nielson, 131 U.S. 176 (1889); Richard M.
v. Superior Court, 4 Cal. 3d 370, 376; 93 Cal.
Rptr. 752, 756 (1971).° .
There is one federal district court decision which
squarely examined the procedure before this Court and
found it to be constitutionally inadequate. United States
v. Dickerson, 168 F. Supp. 889 (D.D.C. 1958), re-
&*The common law not only prohibited a second punishment
for the same offense, but it went further and forbid a second
trial for the same offense, whether the accused had suffered
punishment or not, and whether in the former trial he had been
acquitted or convicted.” (Emphasis rr ee Ex Parte Lange,
18 Wall. 163, 21 L.Ed. 872, 877 (1874).
peng? te
versed on other grounds, 271 F.2d 487 (D.C. Cir.
1959). In Dickerson a minor entered a guilty plea in
juvenile court and was found by the court to be a
delinquent child. As in the present case, the Juvenile
Court attempted to transfer jurisdiction to the adult
court after the jurisdictional hearing had terminated.
Since jeopardy had attached, the court held that waiver
of jurisdiction was impermissible.
“This result in no way interferes with the statu-
tory authority of the Juvenile Court to waive ju-
risdiction to the District Court in certain cases.
The waiver of jurisdiction, however, must take
place before jeopardy attaches. It may be exer-
cised either after a preliminary hearing, or after
an ex parte investigation, but may not occur after
the defendant has pleaded guilty and his plea
was accepted, or after the case has-been tried or
the trial has been started in Juvenile Court. The
mere fact that different terminology is used in the
Juvenile Court in a commendable and humane
effort to disassociate its activities from the atmos-
phere of a criminal tribunal does not affect these
conclusions.’ We must not be misled by names or
terms, but must be guided by juristic concepts to
which the names or terms are attached. Id. at 903.°
_ *The Court of Appeals for the District of Columbia Circuit
overruled this decision in part because, in its view, the District
Court had erred in applying procedural safeguards observed in
criminal proceedings to the juvenile court. This basis of the
court’s reversal would appear to be impliedly overruled by In re
Winship, 397 U.S. 358 (1970); and In re Gault, 387 U.S. 1
(1967). In addition, the Court of Appeals felt that in waiving
the minor to adult court, the juvenile court judge had implicitly
rejected his guilty plea [United States v. Dickerson, 271 F.2d
487, n. 9 at 491 (1959)], a ground clearly not pertinent to the
|. present case.
ET TTD SE PE OUND OIE NE LILI ELI ILLITE IE TEN OR
pas,
The facts in Dickerson are identical to the case at bar
except for the insignificant difference that Gary was ad-
judicated a delinquent after a jurisdictional hearing,
whereas Dickerson had entered a plea of guilty. Since
jeopardy had attached in both cases, subsequent prose-
cution of either minor for the same offense for which he
had previously been found a delinquent child would
be barred.
The California Court of Appeal, Second Appellate
District, rejected petitioner’s double jeopardy argument
below in an opinion in which the Court commented,
“.. . while it is true that . . . jeopardy had at-
tached once the first witness had testified at the
701 [jurisdictional] hearing, no new jeopardy had
arisen by the proceeding sending the case to the
criminal court. The entire juvenile court law con-
templates a careful determination, on a case-by-
case basis (citations omitted), as to the type of
procedure most likely to protect society and to
rehabilitate the minor. Under some circumstances,
a minor will go from criminal 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.” 17 Cal.App.3d
704 at 710; Appendix “C”.
This reasoning, we submit, reflects an attitude towards
juvenile court proceedings which the Supreme Court
decisively repudiated in In re Winship, 397 U.S. 358
(1970), when it said,
“ .. civil labels and good intentions do not them-
selves obviate the need for criminal due process
safeguards in juvenile court .. .” Jd. at 366.
on, ae
If the protection afforded by the double jeopardy clause
of the Fifth Amendment is applicable to juvenile pro-
ceedings—and this was the assumption of the Califor-
nia Court of Appeal—it is beside the point either that
the juvenile court is seeking to rehabilitate those minors
falling within its jurisdiction or that Cal. W&I Code
§ 707 provides a mechanism by which the court trans-
fers those minors over age 16 whom it believes it can-
not rehabilitate to adult court. 3
The immutable fact remains that under Cal. W&I
Code § 707 minors like Gary Steven jones are com-
pelled to undergo two trials for the same offense. It is
patently erroneous to perceive the jurisdictional hear-
pau ing in juvenile court, as did the Court of Appeal, as
merely prefatory to the later criminal proceeding.”
Under Cal. W&I Code § 602 the jurisdictional hearing
is a fullblown trial at which the district attorney must
establish beyond a reasonable doubt [Jn. re Winship,
597 U.S. 358 (1970)] the minor’s guilt. The sole’
issue before the juvenile court during the jurisdictional
hearing was whether the district attorney had estab-
lished that Gary had committed a robbery under Cal.
Penal Code § 211. The court’s jurisdictional finding
exposed Gary to institutionalization until age 21 [Cal.
W&I Code § 607], and at no time during the jurisdic-
tional hearing was Gary’s suitability for treatment be-
/
There is no requirement under the Juvenile Court Law by
which the jurisdictional hearing must precede the Section 707
[transfer of jurisdiction] hearing. The two factors which the
juvenile court must consider in determining whether to waive
jurisdiction are the minor’s past record of delinquency and his
havior pattern as described in the probation officer’s report.
Jimmy H. v. Superior Court, 3 Cal.3d 709, 714; 91 Cal. ptr.
600 (1970). These two factors may obviously be explored at
a hearing conducted prior to the time jeopardy attaches at the
jurisdictional hearing.
‘treme
ALAS
oe as
fore the Court. Unless benign motives and post hoc
reasoning are to overshadow reality, the constitutional
prohibition cannot be avoided merely because of the
label affixed to the proceeding.
“Precise constitutional rights cannot be diminished
or whittled away by the device of changing names
of tribunals or modifying the nomenclature of
legal proceedings.” United States v. Dickerson,
168 F.Supp. 899, 902 (D.D.C. 1958), rev'd. on
other grounds,.271 F.2d 487 (D.C.Cir. 1959).
Nor may the double jeopardy protection be applied
with any less vigor because the two proceedings which
the minor is forced to endure will take place in dif-
ferent courts. This is the “dual sovereignty” theory
‘under which double prosecutions for the same offense
in state and local courts were formerly permitted. This
fictional basis for duplicate prosecutions was laid to rest bes
in Waller v. Florida, 397 U.S. 387, 440 (1970), wnere
‘the Court held,
ye a ‘dual sovereignty’ theory is an anachro-
nism, fle oe second trial constituted double
jeopardy .
_ Although we believe that Cal. W&I Code § 707 is
unconstitutional, we are not asserting that California is
powerless to provide a procedure by which the most
_ incorrigible juveniles may be transferred to adult court
for prosecution. The question is not whether a de-
termination to waive a minor to adult court should ever
be made, but merely when it is to be made. There is no
reason to believe that in most cases such a determina-
‘tion could not be reached at the detention hearing or
at a special waiver hearing conducted prior to the in-
ception of the adjudicatory proceeding. As the presid-
bial “ y GL MLE OT EE OLEAN EAM OE
fae; ae
ing Judge of the Los Angeles Juvenile Court noted in
denying relator’s; petition for a writ of habeas corpus,
“... 1 don’t think that the Juvenile Court would
be crippled if there were no 707 as it is now con-
stituted, that is, I don’t know our operation would
really be hampered if the rule were laid down that
at the arraignment or detention hearing or in any
event before the introduction of evidence at the
adjudication the court may set the matter for a
fitness hearing.”:(RT 18).”
Unlike Cal. W&I Code section 707, recent draft
and model statutes have stressed that a determination to
transfer a juvenile to adult court must be made prior to
the commencement of adjudicatory proceedings. Thus,
Section 34(a) of the third tentative draft [May, 1968]
of the Uniform Juvenile Court Act, prepared by the
American Bar Association National Instittite provides:
“After a petition has been filed charging delin-
quency based on conduct which is designated a
public offense under the laws, including local ordi-
nances, of this state, the court may, before hear-
ing the petition on its merits, transfer the offense
for criminal prosecution to the appropriate court
having jurisdiction of the offense. . . .” (Emphasis
supplied.) See also Rule 9, Model Rules of Ju-
venile Courts (N.C.C.D. 1968).
As these commentators have made clear, contemporary
constitutional standards demand that the waiver de-
cision be reached before jeopardy has attached at the
jurisdictional hearing.
A different rule would have the impermissible effect
of creating divergent double jeopardy standards for
NExhibit “H”, p. 18.
snl
adults and juveniles. There is no constitutional justifica-
tion for holding that jeopardy attaches in adult proceed-
ings when the first witness is sworn [United States v.
Jorn, 27 L.Ed.2d 543 (1971)], while concomitantly
holding that a minor who has testified in a juvenile
proceeding and who has been adjudicated a delin-
quent, is not placed in double jeopardy at his sub-
sequent criminal trial for the same underlying offense.
Since this is what transpired in the present case, this
Court must reject the conclusion of the California Court
of Appeal and hold that petitioner has been twice
placed in jeopardy in violation of his rights under the
Fifth Amendment.
Il. THE GUARANTEE AGAINST TWICE
BEING PLACED IN JEOPARDY AFFORD-
ED BY THE FEDERAL CONSTITUTION IS
APPLICABLE TO JUVENILE DELINQUENCY
PROCEEDINGS. °
This writ presents an issue of first impression in this
Court and in the Ninth Circuit—whether the protec-
tion afforded by the double jeopardy clause of the Fifth
Amendment is applicable to proceedings in juvenile
court under California W&I Code Section 602. If,
as petitioner contends, the double jeopardy clause does
apply to delinquency proceedings, petitioner was placed
in jeopardy during the jurisdictional hearing in juvenile
court, and his subsequent prosecution in adult court
was unlawful.
The Supreme Court of California has recently con-
fronted this issue and held that the double jeopardy
provisions of both federal and state Constitutions are
applicable to proceedings under Section 602 of the Ju-
venile Court Law. Richard M. v. Superior Court, 4
oni
Cal.3d 370, 93 Cal.Rptr. 752 (1971). There is a
scarcity of other authority on this issue, but such au-
thority as does exist supports the proposition that mi-
nors in juvenile delinquency proceedings are protected
by the double jeopardy clause. United.States v. Dicker-
son, 168 F.Supp. 899, 902 (D.D.C. 1958); rev’d on
other grounds, 271 F.2d 487 (D.C. Cir. 1959); Tolli-
ver v. Judges of the Family Court, 59 Misc.2d 104
(N.Y. Fam.Ct. 1969); Anonymous v. Superior Court,
10 Ariz. App. 956,°959; 457 P.2d 956 (1969) [“...
we accept, without deciding, that in this post-Gault era,
the Double Jeopardy clause applies to juvenile proceed-
ings . . .”]; In re Holmes, 379 Pa. 599, 109 A.2d 523,
526 (S.Ct. of Pa. 1954) (dictum). A number of state
and federal court decisions in Texas have held that it
is a deprivation of fundamental fairness and due proc-
ess of law to convict a defendant in adult court based
upon the same act for which he had been adjudged a
delinquent in juvenile court. Hutlin v. Beto, 396 F.2d
216 (5th Cir. 1968); Sawyer v. Hauck, 245 F.Supp. 55
(W.D.Tex. 1965); Garza v. State, 369 S.W.2d 36
(Tex.Cr.App. 1963). Although these decisions were
founded upon the due process clause of the Fourteenth
Amendment, rather than the double jeopardy clause of
the Fifth Amendment, it must be recalled that under
Palko v. Connecticut, 302 U.S. 319 (1937), the double
jeopardy clause was not considered to be applicable
against the states. These cases were decided under the
Palko rule which was not overturned as regards the
double jeopardy prohibition until the Supreme Court
decided Benton v. Maryland, 395 U.S. 785 (1969).
Nevertheless, in Collins v. State, 429 S.W. 2d 650
(Tex.Civ.App. 1968), the court foreshadowed Benton
in holding that a second juvenile court proceeding on
aa ee
the same facts was barred on double jeopardy grounds,
despite a previous nonsuit. In view of this decision, it
seems likely that previous decisions by federal and state
tribunals in Texas have been heavily based upon no-
tions of double jeopardy, although at that time, the
courts chose due process as the purported basis for their
decisions because they considered themselves bound by
Palko.
The language of the double jeopardy clause applies
to all persons without exception; it draws no distinctions
between adults and minors: :
“. .. nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb
”
U.S. Const., Amend. V.
The plea of autrefois convict was known at early com-
mon law” and is one of the most deeply ingrained in
our Anglo-American system of jurisprudence. Green v.
United States, 355 U.S. 184, 188 (1957). So firmly
entrenched is this principle that every state constitution
contains a provision prohibiting double jeopardy. Sigler,
Double Jeopardy, 34 (1969). Indicative of the impor-
tance attached to this protection is the fact that the
Supreme Court has ruled that its decision in Benton
v. Maryland, 395 U.S. 784 (1969), making the double
jeopardy clause enforceable against the states, is fully
retroactive. Ashe v. Swenson, 397 U.S. 436, 437, fn. 1
(1970). In view of the importance attached to this
monumental bulwark of liberty, it would indeed be
iz |. the plea of autrefois convict, or a former conviction
for the same identical crime, though no judgment was ever
iven, or perhaps will be . . . is a good plea in bar to an in-
ictment.” Blackstone's Commentaries, Vol. Il, Section 379,
p. 2571 (Jones Ed. 1916).
eal
surprising if the protection it affords were available to
hardened criminals but not to children. Compare In re
Gault, 387 U.S. 1, 47 (1967).
In several decisions the United States Supreme Court
has applied various provisions of the Bill or Rights to
juvenile delinquency proceedings. The Court has held
that a minor at such a proceeding is entitled to ade-
quate notice of the charges against him, representation
by counsel, the right not to incriminate himself, and
the right to confront and cross-examine witnesses [Jn re
Gault, 387 U.S. 1 (1967)], as well as the right to be
tried in accordance with a reasonable doubt standard
of proof [Jn re Winship, 397 U.S. 358 (1970)]. In an
earlier decision the Court had held that in a transfer
of jurisdiction hearing such as the one in the present
case, the minor is entitled to a hearing, representation
by counsel,’ and a statement of reasons or considera-
tions; and counsel is entitled to review the child’s social
studies records. Kent v. United States, 383 U.S. 541
(1966).”*
The principle which emerges from these decisions is
that in the absence of strong, contervailing considera-
tions the provisions of the Bill of Rights will be applied
to delinquency proceedings in juvenile court. In Winship
particularly the Court placed the burden on the state
to demonstrate that the application of criminal safe-
guards would harm particular beneficial aspects of
18Counsel was already required under a District of Colum-
bia statute. Although it is by no means clear, the requirements of
some kind of hearing and findings of fact seem to have rested |
upon a due process foundation. See especially 383 U.S. at 561.
The Supreme Court of California has read Kent to be a con-
stitutional ruling insofar as it requires appointment of counsel at
transfer of jurisdiction hearings. Jn re Harris, 67 Cal.2d 76, 64
Cal.Rptr. 319, 321 (1967).
easton
the juvenile judicial process. See The Supreme Court,
1969 Term, 84 Harv.L.Rev. 1, 160 (1969). Bill of
Rights safeguards which are not inconsistent with the
philosophy and practices of the juvenile court will be
required because a minor in a delinquency proceeding
will be “subjected to the loss of his liberty for years”
and because such a proceeding is “comparable in se-
riousness to a felony prosecution.” In re Gault, 387
U.S. 1 at 33 (1967).
Last term the Court held that minors in delinquency
proceedings do not possess 4 federal, constitutional right
to a trial by jury. McKiever v. Pennsylvania, .... U.S.
..--» 29 L.Ed.2d 647. (1971). Although the result was
different, this decision was no more than an applica-
tion of those principles already adumbrated in Kent, —
Gault, and Winship, supra. The Court found that im-
position of the jury trial requirement would destroy
this distinctive quality of the juvenile court system.
“If the jury trial were to be injected into the juve-
nile court system, it would bring with it into that
system the traditional delay, the formality and the
clamor of the adversary system and, possibly, the
public trial.” 29 L.Ed.2d at 663.
Unlike the jury trial requirement, application of the
double jeopardy safeguard would not radically affect
the juvenile court process. In fact, it would not affect
at all the nature of either the jurisdictional hearing, or
the waiver of jurisdiction hearing under Cal. W&I Code
Section 707. The sole difference would be that the juve-
nile court would be required to hold a Section 707
hearing prior to the time that jeopardy attached at the
jurisdictional hearing, a result which is recommended
in both the Uniform Juvenile Court Act and the Na-
tional Council on Crime and Delinquency’s Model Rules
ii esis
for Juvenile Court,‘ and which the Presiding Judge of
the Los Angeles Juvenile Court has indicated would not
hamper his Court’s operation.”*
Imposition of the double jeopardy guarantee is fully
in keeping with the philosophy and practices of the
juvenile court. It will not increase the formality of the
process or introduce unnecessary delays. Quite to the
contrary, it will expedite the time when a decision must
be made as to whether a minor will be dealt with as a
juvenile or transferred to adult court, thereby relieving
some of the anxiety which is both counterproductive to
rehabilitation of the minor and which the double jeop-
ardy clause is intended to prevent. See Green v. United
States, 355 U.S. 184, 187-88 (1957).
By contrast, it is.fundamentaly unfair to expose the
minor to a jurisdictional hearing when he does not know
if he later will be subjected-to a criminal prosecution
for the same underlying offense. In this situation, it is
impossible for counsel to reach an intelligent decision
as to whether his client should testify, not knowing
whether his client’s testimony might later be used against
him at the criminal trial. The present procedure turns
every jurisdictional hearing into a potential preliminary
hearing and deprives the juvenile court in many in-
stances of the opportunity of hearing the minor’s side of
the case. Thus, the double jeopardy guarantee would
actually be in keeping with the juvenile court’s re-
habilitative goal and help the court to effectuate its
aim.*®
14See p. 13, supra.
15P_ 12-13 supra; Exhibit “H” Appendix p. 62.
'Since the purpose of a Cal. W&I Code Section 707 hear-
ing is to transfer jurisdiction to adult court for criminal prosecu-
tion, even more of the criminal safeguards should be available
than at a juvenile court jurisdictional hearing.
eS ee
In fact, the patent unfairness of exposing the minor
to this uncertainty may destroy any realistic possibility
for his rehabilitation. See In re Gault, 387 U.S. 1, 33
(1967), and articles and reports cited therein. It does
not auger well for a system of juvenile justice to claim
an exemption from a constitutional provision that would
protect a juvenile from the anxiety and actuality of
multiple prosecutions for the same underlying offense.
The rehabilitative goals of the juvenile court process
are neither consistent with nor enhanced by a method
of proceeding deemed so basically repugnant when
applied to adults.
IV. HABEAS CORPUS IS THE PROPER REMEDY.
Habeas corpus is the proper remedy by which one
who is incarcerated may challenge the legality of the
judgment pursuant to which he is confined. 28 U.S.C.
Section 2241. Therefore, Gary Steven Jones may chal-
lenge by a writ of habeas corpus the lawfulness of the
Superior Court judgment convicting him of robbery in
the first degree and sentencing him to the California
Youth Authority. If, as petitioner contends, he was
twice placed in jeopardy by the juvenile court adjudica-:
tion and adult court prosecution, his present confine-
ment is illegal and he is entitled to be released and
remanded to juvenile court. See Peyton v. Rowe, 391
U.S. 54 (1968), where one of the claims petitioners
was permitted to raise by a petition for a writ of habeas
corpus was that he had been twice placed in jeopardy
for the same offense.
It makes no material difference that if this Court
orders petitioner released from his present confine-
ment, the Juvenile Court of Los Angeles County may
subsequently restrain him of his liberty. In re Bonner,
Bivet emacs
Ue
151 U.S. 242 (1894) [habeas corpus lies to obtain pe-
titioner’s release from the prison to which he had been
unlawfully sentenced without prejudice to his being
sentenced to the appropriate prison]; Velasquez v. Rhay,
408 F.2d 9 (9th Cir. 1969) (per curiam); see Carafas
v. LaVallee, 391 U.S. 234, 239 (1968) [The 1966
amendments to the habeas corpus statute, especially
the new section 2244(b), contemplate the possibility of
relief other than immediate release from physical cus-
tody]. These cases stand for the proposition that the
custodial consequences of an unlawful conviction must
be invalidated on a petition for a writ of habeas corpus
even if the relator would remain in a different and valid
custody upon his release. Development—Federal Ha-
beas Corpus, 83 Harv.L.Rev. 1038, 1081 (1970). As
the Supreme Court has stated in language equally ap-
propriate to this case,
“Whatever its other functions, the great and central
office of the writ of habeas corpus is to test the
legality of a prisoner’s current detention. The peti-
tioner is now serving a . . . Jf sentence imposed
pursuant to a conviction .<“. as he contends, that
conviction was obtainedin violation of the Consti-
tution, then his confinement is unlawful. It is im-
material that another prison term might still await
him even if- he should successfully establish the
unconstitutionality of his present imprisonment.”
(Emphasis in original.) Walker v. Wainwright,
390 U.S. 355, 336-37 (1968).
Tt is, of. course, true that if petitioner is remanded
to juvenile court, that court might tommit him to the
California Youth Authority to whose jurisdiction he is
presently committed by the Superior Court. But this
Court may not refuse issuance of a writ upon specula-
ceili
tion as to what disposition could be imposed by the
juvenile court. While commitment to the California
Youth Authority is an authorized disposition under
the Juvenile Court Law (Cal. W&I Code Section 730),
so are commitments to a juvenile home, ranch, or camp
or some form of probation (Cal. W&I Code Section
725, 730, 731). At this juncture it is impossible to
determine which alternative the juvenile court would
choose. Moreover, the particular disposition chosen by
the juvenile court does not alter the illegality of the
commitment order of the Superior Court, which is what
is being challenged by the petition for a writ of habeas
corpus.
It is also clear that commitment to the California
Youth Authority by an adult court involves a confine-
ment of considerably longer duration than a compa-
rable commitment by the Juvenile Court. Cal. W&I
Code Section 1769 provides that every person com-
mitted to the Youth Authority by the juvenile court
shall be discharged upon expiration of two years or
his twenty-first birthday, whichever occurs later. But
under Cal. W&I Code Section 1771 every person con-
victed of a felony’’ and committed to the Youth Au-
thority shall be discharged when he reaches age twenty-
five unless an order for further detention has been
made. Thus, the difference in the potential duration
17Gary Steven Jones is clearly a convicted felon. Cal. Penal
Code Section 17(a) provides, “A felony is a crime which is
punishable with death or by imprisonment in the state prison.
Every other crime or public offense is a misdemeanor except
those offenses that are classified as infractions.” Under Cal.
Penal Code Section 213 robbery is punishable by imprisonment
in state prison for not less than five years. Since robbery in the
first degree cannot be-—punished by a fine or imprisonment in
county jail, it can never \be considered a misdemeanor. Cal.
Penal Code Section 17(b) Peopie v. Hannon, 96 Cal.Rptr. 35
(1971).
SL Fact ELI Ly EM NARA tl OR ERT
oe ae
of commitment in the present case (where petitioner
was 18 years of age at sentencing) between the illegal
adult court order and a lawfully imposed order of the
juvenile court would be four years.
Petitioner would likewise suffer a number of disabil-
ities from the adult court conviction which would not
occur if he were merely a ward of the juvenile court.
As a convicted felon his credibility could be impeached
by evidence of his prior felony conviction. Cal. Evid.
Code Section 788. His felony conviction would be
grounds for denying him state employment [Cal. Gov.
Code Section 18935(f)] or revoking it [Cal. Gov.
Code Section 199].’* In addition, while all juvenile
court records are sealable under Cal. W&I Code Sec-
tion 781, records of felonies tried in adult court are
not sealable. See Penal Code Section 1203.45(a). The
stigma attached to the subject of such records—even
though a minor at the time of his offense—has been
explicity recognized by the Supreme Court of California
in T.N.G. v. Superior Court, 4 Cal. 3d 767, 94 Cal.
Rptr. 813 (1971). With a prior felony conviction on
his record petitioner would be subject to a two-year
minimum term in state prison if he is convicted of a
felony in the future. Cal. Penal Code Section 3024(c).
In addition, he may be subject to a finding of habitual
criminality under Cal. Penal-Code Section 644 which
would greatly increase the minimum term he would
have to serve on a future conviction before release on
parole. Petitioner would not saffer such increased pun-
18It is also noteworthy that the Cal. Business and Professions
Code lists thirty-six licensed occupations which subject licensees
to disciplinary action upon conviction of a felony and/or a crime
involving moral turpitude. C.E.B. California Criminal Law
Practice Sections 25-28 (1969 ed); see also Note, 14 Stan.L.Rev.
533, 541 (1962).
‘ inane
Bae
ae
es.
- ishment if his record indicated only that he had been a
ward of the juvenile court.
Finally, and most significantly, a person committed
to the California Youth Authority pursuant to a crim-
inal conviction may be returned to the committing court
if at any time that person appears to the Youth Author-
ity,
“. . . to be an improper person to be retained in
any such institution or facility, or to be so incor-
rigible or so incapable of reformation under the
discipline of the authority as to render his de-
tention detrimental to the interests of the author-
ity .. .” Cal. W&I Code Section 1737.1.
Under the same statute the youth may thereupon be
sentenced to state prison for the term he could have
received less the time he served at the Youth Authority.
In the present case, Gary could be returned at any
time to the Superior Court and sentenced to an inde-
terminate term of not less than five years in state
prison. Cal. W & I Code Section 1737.1; Cal. Penal
Code Section 213. As a ward of the juvenile court.
Gary could never be sentenced to state prison even if
the Youth Authority returned him to the juvenile court
as unamenable to its rehabilitative processes. Cal.
W&I Code Sections 1737.1. It is, therefore, abun-
dantly~ apparent that a commitment to the Califor-
nia Youth Authority by the Superior Court carries -far
graver immediate and collateral consequences than a
similar Juvenile Court commitment. The illegal Superior
Court commitment order must be cognizable on a peti-
tion for a writ of habeas corpus. Compare Sibron vy.
New York, 390 U.S. 40, 51-55 (1968).
NAT ERE WN RTA NE ARETE SM OT
ae
V. PETITIONER HAS EXHAUSTED HIS STATE
COURT REMEDIES AS REQUIRED BY 28
U.S.C. SECTION 2254(b). REEXHAUSTION
OF THESE REMEDIES WOULD BE INEFFEC-
TIVE TO PROTECT HIS RIGHTS.
As noted in relator’s petition and in the annexed af-
fidavit of Donald W. Pike (Exhibit “A”), petitioner
exhausted his state remedies by filing petitions for a.
writ of habeas corpus in the Superior Court of Los
Angeles County and the California Court of Appeal,
Second Appellate District, and, then, by filing a peti-
tion for hearing with the Supreme Court of California.
All three courts turned petitioner down, the court of
Appeal writing an opinion which indicated that it had
met and rejected petitioner’s double jeopardy claim on
the merits. Since petitioner had exhausted his state
court remedies case, it obviously would have been futile
for him to have raised on appeal the identical double
jeopardy claim before the same courts which had pre-
viously rejected it. :
Under well-established California law denial of col-
lateral relief on the merits is res judicata and fore-
Closes appellate relief in the Same court on the same
issue. People v. Medina, 97 Cal.Rptr. 25 (1971). In
the Medina case, the same court which denied Gary a
writ of habeas corpus had denied a petition for a writ
df mandate or prohibition raising the constitutionality
of a search and seizure. When petitioner sought to raise
the identical constitutional issue again on appeal, the
court held that it was barred from granting relief by its
previous denial of appellant’s writ. Jd. at 26. Since
Gary’s petition for a writ of habeas corpus was re-
jected on the merits, it is clear under the Medina de-
cision that appellate relief would not have been avail-
able to him.
——— .
28 U.S.C. Section 2254(b) provides that a state pris-
oner’s application for a writ of habeas corpus shall be
denied unless it appears that, ;
“, .. the applicant has exhausted the remedies avail-
able in the courts of the State, or that there is
either an absence of available State corrective
process or the existence of circumstances rendering
such process ineffective to — the rights of the
prisoner.””° ;
This requirement of exhaustion has been construed
to mean that it is only nece’sary to exhaust state
remedies once. Brown v. Allen, 344 U.S. 443 (1953);
Grundler. vy. North Carolina, 283 F.2d 798, 800 (4th
Cir. 1960). This: is both because 28 .U.S.C. Section
2254(b) refers only to “exhaustion” and nowhere men-
tions as a statutory requirement “reexhaustion”, and be-
cause reexhaustion of the same constitutional claim
already rejected would obviously be “ineffective to pro-
tect the rights of the prisoner.” 28 U.S.C. Section
2254(b).
In Schiers v. People, 333 F.2d 173 (9th Cir. 1964),
by way of example, the defendant unsuccessfully ap-
pealed his conviction but failed to pursue a state habeas
corpus remedy which was theoretically available to him.
The court stated,
“Title 28 U.S.C. Section 2254, seule that a
- state prisoner’s application for habeas corpus ‘shall
not be granted unless it appears that the appli-
cant has exHausted the remedies available in the
19The Ninth Circuit has stated that this doctrine of exhaus-
tion of state remedies is based on comity and is not jurisdictional.
O’Neil v. Nelson, 422 F.2d 319, 323 (9th Cir. 1970).
y
—=—§ 9
courts of the State . . .’ This requires that ‘con-
stitutional issues arising out of state criminal pros-
ecutions should be presented first to state courts’
(Citation omitted). These issues, however, need
only be presented once. (Citation omitted.)” Id.
at 174.
And in Evans v. Cunningham, 335 F.2d 491 (4th Cir.
1964), the Court went even further in holding that
relator Evans would not be required to exhaust his
State remedies where co-defendant Sims’ arguments on
appeal had been rejected by the highest court in Vir-
ginia.
“Under these circumstances, any competent lawyer
would advise Evans that he was wasting his time
if he undertook to persuade the Virginia Supreme
Court of Appeals to reverse itself, unless he was
armed with some fresh argument which Sims had
not presented. Evans has none.” Jd. at 493.
There is no more reason to require Gary to reexhaust
his state remedies through the state appellate process
than there was to require petitioners in the above-cited
cases to redundantly pursue their collateral remedies.
As the aforementioned cases demonstrate, reexhaustion
of state remedies is unnecessary where relator’s argu-
ments have been made and rejected on the merits.
Although the exhaustion requirement has a sound
basis, its purpose would be subverted by blind insistence
that petitioner abortively seek an appellate remedy
which in reality is illusory.
,
Oe ee
~-99—
CONCLUSION
For the foregoing reasons a writ of habeas corpus
should issue directing the release of Gary Steven Jones
from his unlawful detention in the California Youth
Authority institution in which he is presently confined,
and remanding the,minor to the Juvenile Court of Los
Angeles County for disposition pursuant to that Court’s
previous finding that the minor was a person described
by Cal. W&I Code Section 602.
Dated: December 2, 1971.
Respectfully submitted,
Peter Bull
Robert L. Walker
Donald W. Pike
By: /s/ Robert L. Walker
Robert L. Walker
ARP ROT gate AST RHI Sent rite dt catokind nee cae tan hat orto a, a eee ee otto
—9i|—
DISTRICT COURT ORDER APPOINTING
GUARDIAN AD LITEM.
In the United States District Court, for the Central
District of California.
Gary Steven Jones, a minor, by and through Lola
Mae Jones, his guardian ad litem, Petitioner, vs. Allen
F. Breed, Director of the California Youth Authority;
Robert McKibben, Superintendent of the Southern
Regional Reception Center Clinic, California Youth
Authority, Respondents. Civil Action No. 71-2907-LTL.
ORDER APPOINTING GUARDIAN AD LITEM
Filed: Dec. 10, 1971.
Upon reading the petition for appointment of Guard-
ian ad Litem, and it being deemed by the Court to be
necessary and expedient, and good cause appearing
therefor;
IT IS HEREBY ORDERED THAT:
LOLA MAE JONES.-be hereby appointed and con-
stituted as the Guardian ad Litem of minor GARY
STEVEN JONES for the purpose of initiating and
maintaining the above-stated habeas corpus proceed-
ing.
Dated: Dec. 10,1971.
/s/ Albert Lee Stephens, Jr.
UNITED STATES DISTRICT JUDGE
PRENSA AR SON Rwy Cre "
<A RRR DRT tO Ren t
—92—
—
DISTRICT COURT ORDER REQUIRING
RESPONSE TO PETITION.
United States District Court, Central District of Cali-
fornia. =” ;
Gary Steven Jones, a minor, by and through Lola
Mae Jones, his guardian ad litem, Petitioner, vs. Allen
F. Breed, Director of the California Youth Authority;
Robert McKibben, Superintendent of the Southern Re-
gional Center Clinic, California Youth Authority, Re-
spondents. Civil No. 71-2907-LTL.
ORDER REQUIRING RESPONSE TO
PETITION FOR WRIT OF HABEAS CORPUS *
Filed: Dec. 20, 1971.
In this action, petitioner has filed a petition for writ
of habeas corpus. He is a minor in the custody of the
California Youth Authority.
IT IS ORDERED that respondents serve and file
their response to the petiuon within a period of fifteen
days hereafter, unless time is extended by the Court for
good cause shown.
Dated: December 17, 1971.
/s/ Lawrence T. Lydick
Lawrence T. Lydick
United States District Judge
—93—
RESPONSE TO PETITION FOR WRIT OF
HABEAS CORPUS.
United States District Court, Central District of Cali-
fornia.
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. Civil No. 71-2907-LTL.
RESPONSE TO PETITION FOR
WRIT OF HABEAS CORPUS
PETITIONER’S CONTENTION
Filed: Jan. 10, 1972.
Petitioner’s sole contention is that his trial as an
adult in the California superior court was barred by
the constitutional prohibition against double jeopardy
since jeopardy had attached in juvenile court prior to
that court’s finding that he was not a fit subject for
consideration under California’s J uvenile Court Law.
PRELIMINARY STATEMENT
In this case, petitioner seeks to relitigate the double
jeopardy issue presented to the California Court of Ap-
peal in In re Gary Steven J., 17 Cal. App. 3d 704,
95 Cal. Rptr. 185, hrg. denied (Cal.Sup.Ct., Aug. 4,
1971), and resolved adversely to petitioner. Copies of
all the essential records appear to have been appended
to the petition, and this petitioner has exhausted his
remedies in the California courts, a
At this point it is instructive to review the procedural
Steps leading to the Juvenile Court’s waiver of jurisdic-
tion over this petitioner. On February 9, 1971, a
epeemememewensnen — ESRC CER
a)
petition was filed in the Juvenile Court c* Los Angeles
County alleging that petitioner Gary Steven Jones was
a person described by section 602 of the California Wel-
fare and Institutions Code,’ in that he had committed
an act which, if committed by an adult would constitute
a violation of California Penal Code section 211 (rob-
bery). A detention hearing was held, and petitioner
was detained pending a hearing on the petition. (See
Exhs. D and E to Petn., 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 allegations
1Unless otherwise indicated, all further references to Califor-
nia statutes will be to the California Welfare and Institutions
Code. Section 602 provides:
“Any person under the age of 21 years who violates any
law of this State or of the United States or any ordinance
of any city or county of this State defining crime or who,
after having been found by the juvenile court to be a per-
son described by Section 601, fails to obey any lawful order
of the juvenile court, is within the jurisdiction of the juvenile
court, which may adjudge such person to be a ward of the
court.”
*Section 701 provides:
“At the hearing, the court shall first consider only the
question of whether the minor is a person described by
Sections 600, 601, or 602, and for this purpose, any mat-
ter or information relevant and material to the circumstances
or acts which are alleged to bring him within the jurisdiction
of the juvenile court is admissible and miay be received in
evidence; however, a preponderance of evidence, legally ad-
missible in the trial of criminal cases, must be adduced to
support a finding that the minor is a person described by
Section 602, and a preponderance of evidence, legally ad-
missible in the trial of civil cases must be adduced to sup-
port a finding that the minor is a person described by Sec-
tions 600 or 601. When it appears that the minor has made
an extrajudicial admission or confession and denies the same
at the hearing, the ourt may continue the hearing for not
to exceed seven days to enable the probation officer to sub-
poena witnesses to a.tend the hearing to prove the allega-
tions 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.”
—95—
—ef the petition were true and that petitioner was a
person described by section 602. The proceedings were
continued for g dispositional hearing pursuant to sec-
tion 702.* [A transcript of the jurisictional hearing is
not appended to the petition, but its absence is not cru-
cial because the result may be inferred from the court’s
comments at the dispositional hearing (see Exh. F. to
Petn., Petn. p. 27) and because there appears to be
no dispute as to the outcome of the jurisdictional
hearing. |
After a hearing held on March 15 and 22, 1971, the
juvenile court found, pursuant to section 707,‘ that pe-
8Section 702 provides:
“After hearing such evidence, the court shall make a
finding, 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 dis-
charged from any detention or restriction theretofore or-
dered. 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 receive other evi-
dence on its own motion or the motion of a parent or guard-
ian for not to exceed 10 judicial days if the minor is de-
‘tained during such continuance, and if the minor is not de-
tained, 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 for an ad-
ditional 15 days, if the minor is not detained. The court
may make such order for detention of the minor or his re-
lease from detention, during the period of the continuance,
as Is appropriate.”
‘Section 707 provides:
“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
(This footnote is continued on next page)
«
—96—
titioner was not a fit subject for treatment as a juve-
nile and ordered that petitioner be turned over to the
Sheriff and district attorney for prosecution as an adult.
(Exh. F. to Petn., Petn. p. 38.) The court based its
finding of unfitness on the fact that petitioner had been
involved in no less than three armed robberies. (/d.)
The matter was set over one month for a non-appear-
ance report as to the progress of the adult action. (/d.)
On April 1, 1971, the juvenile court denied a peti-
tion for writ of habeas corpus filed on behalf of this
petitioner. This petition raised the same double jeopardy
asserted in the instant petition. (Exhs. G and H to
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,
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 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 appropriate prosecuting officer to prosequte “
the person under the applicable criminal statute or ordi-
nance 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 dis-
miss 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 dealt with under this chapter, the offense,
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 therefrom 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 pro-
visions of the Juvenile Court Law.
“The court shall cause the probation officer to investi-
gate and submit a report on the behavorial patterns of the
person being considered for unfitness.”
acne
—97—
Petn.) Thereafter this petitioner filed for habeas corpus
relief in the California*Court of Appeal, Second Appel-
late District, Division Four. Although that court initial-
ly stayed the pending criminal prosecution of this peti-
tioner, it ultimately rejected his double jeopardy claim
in a published opinion. Jn re Gary Steven J., 17 Cal.
App. 3d 704, 95 Cal. Rptr. 185. On August 4, 1971,
the California Supreme Court denied a hearing with
respect to the Court of Appeal’s decision. (Exh. 1 to
Petn. )
Subsequently petitioner 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 superior court. Petitioner pleaded not guilty and sub-
mitted his case to the court, without a jury, on the tran-
script of the preliminary hearing. The court found peti-
tioner guilty as charged and ordered him committed to
the California Youth Authority where he is currently
confined. (See Exhs. J-N. to Petn.)
ARGUMENT
PETITIONER WAS NOT PLACED TWICE IN
JEOPARDY WHEN THE JUVENILE COURT
WAIVED JURISDICTION AND ORDERED
HIS PROSECUTION AS AN ADULT
Petitioner contends that the juvenile court’s waiver
of jurisdiction after witnesses had been sworn at the
hearing pursuant to section 701 was a violation of the
Fifth Amendment's prohibition against double jeopardy.
Respondent submits that double jeopardy is not appli-
cable to such a waiver of jurisdiction.
At the outset, it is clear that double jeopardy is
applicable to the States through the Due Process Clause
SS wet Se dee RN LIM EES TONS
—98—
of the Fourteenth Amendment. Benton v. Maryland,
395 U.S. 784 (1969). Although the United States Su-
preme Court has never expressly decided whether double
jeopardy is within the panoply of due process rights
made applicable to juvenile court proceedings by its
decision in Jn re Gault, 387 U.S. 1 (1967), the Cali-
fornia Supreme Court has recently applied the prohibi-
tion against double jeopardy to juvenile proceedings,
holding that a second juvenile proceeding was barred
where the petition had been dismissed in a prior
proceeding after a hearing on the merits and under cir-
cumstances analogous to an acquittal in a criminal
_ case. Richard M. v. Superior Court, 4 Cal. 3d 370,
_ 93 Cal. Rptr. 754, 482 P.2d 664. It is respondent’s
position in this litigation even if double jeopardy ap-
plied to juvenile proceedings as a matter of federal law,
the procedure followed in this case did not violate the
Fifth Amendment.
It is face apparent that the rationale behind the
double jeopardy clause does not extend to the situation
confronting the Court in this case. In Kepner v.
United States, 195 U.S. 100, 129 (1904), the United
States Supreme Court held that the protection afforded
by the double jeopardy clause is protection against
twice being put in jeopardy and that it applies whether
the accused is convicted or acquitted. Implicit in the
reasoning of the Court is the notion that there must
be some disposition of the proceedings at issue which
results in a definitive conclusion tantamount to either
an acquittal or a conviction. In the instant case, there
was no such definitive resolution of the proceedings—
there was merely a transfer of petitioner’s case to an-
other forum. Such a transfer does not invoke the bar of
double jeopardy.
a EPR NETH BEE TRE LRT ODI A tp rain
—99—
This conclusion is defensible on either of two the-
ories. The first is that the jurisdictional hearing and
subsequent proceedings were roughly analogous to a
preliminary hearing in a criminal case. It is well estab-
lished that jeopardy does not attach at a preliminary
hearing. See, e.g., United States v. Dickerson, 168 F.
‘Supp. 899, 920 (D.D.C., 1958), overruled on other
grounds, 271 F.2d 487 (D.C. Cir. 1959). Respondent
submits that a jurisdictional hearing pursuant to sec-
tion 701 (see note 2, supra) is analogous to a prelimi-
nary hearing for purposes of the California Juvenile
Court Law where, as here, the juvenile court makes an
order waiving jurisdiction and ordering a prosecution
of the minor as an adult.
The second theory supporting the conclusion that
double jeopardy did not bar this petitioner’s prosecution
in the adult court is the theory that persuaded the Cali-
fornia Court of Appeal. In its decision, the Court of
Appeal stated:
“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.”
In re Gary Steven J., supra, 17 Cal. App. 3d
710. (Emphasis is court’s own. )
Under this theory, the transfer of proceedings was
not tantamount to either an acquittal or a conviction.
Therefore, petitioner was not placed “twice in jeopar-
dy” because the transfer did not result in any second
attachment of jeopardy. In upholding a State’s right to
retry an accused after a reversal on appeal, the United
States Supreme Court has formulated “. . . a con-
cept of continuing jeopardy that has application where
Bh nea
—f00—
criminal proceedings against an accused have not run
their full course.” See Price v. Georgia, 398 U.S. 323,
326 (1970). Under the circumstances of this case, it is
obvious that the proceedings against petitioner had not
yet run their full course when the transfer order was
made. By a parity of reasoning, it should logically
follow that this petitioner’s criminal trial was consti-
tutionally permissible under the “continuing jeopardy”
principle.
Petitioner cites a comment of the draftsmen of the
Model Rules for Juvenile Courts to the effect that once
the adjudicatory ‘hearing has begun, the child is in
jeopardy and subsequent transfer to the criminal court
would violate due -process. (Petnr’s. Pts. & Auth.,
p. 13.) As authority for this statement, the comment
cites Hultin v. Beto, 396 F.2d 216 (5th Cir. 1968).
The Hultin case holds that a child adjudged a delin-
quent and held in custody as such cannot be tried by a.
criminal court without regard to how he may respond
to the guidance given him under the juvenile law, and
does not state or hold that jeopardy, whether or not it
attaches in the juvenile proceeding, precludes trial as an
adult upon a finding of unfitness, |
Indeed, the concept of a transfer hearing before the
facts sustaining jurisdiction are found may conceivably
afford less protection to the minor than the procedure
followed in this case. First, it is difficult to perceive
how a finding of unfitness can rationally be made
without at least a preliminary determination that the
minor committed the act charged; and secondly, the
minor may be acquitted and released completely dur-
ing the jurisdictional hearing, without <ver having to
face criminal charges in an adult cov.t.
iat
aire
—101—
In the only federal case to deal squarely with the
issue presented here, the court found that an inquiry
into the facts of the offense prior to a transfer to
adult court was essential to the function of the juvenile
court. In United States. v. Dickerson, 271 F.2d 487,
491 (D.C. Cir. 1959), the Court of Appeals held that
the “full investigation” required by the District of
Columbia juvenile court laws prior to a waiver of ju-
risdiction contemplated at the very least an informal
hearing into the allegations of the petition. The Court
continued:
“, . . Consequently, it was not improper for the
Juvenile Court to conduct a hearing before de-
termining whether or not to waive jurisdiction.
To hold that jeopardy attached at that point would
preclude 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.”
(1d. at 491-92.)
Respondent submits that the [ Dickerson| decision is
so closely in point as to control the disposition of this
petitioner’s claim.
Finally, respondent submits that jif petitioner’s: argu-
ment were accepted, it could conceivably bar any
waiver of jurisdiction by the California juvenile courts.
Such a result would be unfortunate. A minor, such as"
petitioner, who has committed three armed robberies
may well be characterized as a “hardened criminal”
with respect to other youths of his same age. Retention
of such an offender as a ward of the juvenile court
is likely to frustrate the attempts of overworked juvenile
probation officers to rehabilitate other minors who
may be influenced by the behavior of such an indi-
0 ieee” 7
—102—
vidual. The California Legislature undoubtedly intend-
ed that the juvenile court have the flexibility to reject
such hardened individuals when it enacted section 707.
CONCLUSION
For the foregoing reasons, respondent urges that this
petition for a writ of habeas corpus be denied.
Respectfutiy submitted,
EVELLE J. YOUNGER, Attorney General
, |. HERBERT L. ASHBY, Chief Assistant
Attorney General—Criminal Division
DORIS H. MAIER, Assistant Attorney
General—Writs Section
S. CLARK MOORE,
Deputy Attorney General
By /s/ Russell Iungerich
RUSSELL IUNGERICH
Deputy Attorney General
Attorneys for Respondents
(Affidavit of service omitted in printing. )
—193—
PETITIONER’S REPLY MEMORANDUM.
In the United States District Court, for the Central
District of California.
Gary Steven Jones, a minor, by and through Lola
Mae Jones, his guardian ad litem, Petitioner, vs. Allen
F. Breed, Director of the California Youth Authority;
Robert McKibben, Superintendent of the Southern Re-
gional Center Clinic, California Youth Authority, Re-
spondents. Civil Action No. 71-2907 LTL.
PETITIONER’S REPLY MEMORANDUM
Filed: January 13, 1972.
Respondent forthrightly concedes either explicitly, or
by implication, a number of points central to peti-
tioner’s contention that being tried twice in connection
with the same incident, once in juvenile court and once
in adult court, deprived him of his federal and state
constitutional rights not to be twice placed in jeopardy.
Respondent concedes that petitioner has exhausted his
State remedies.‘ Respondent recognizes that the Su-
preme Court of California has held that the double
jeopardy clause of the Fifth Amendment is applicable
to juvenile delinquency proceedings [Richard M. vy.
Superior Court, 4 Cal.3d 370, 93 Cal.Rptr. 754
(1971)], and respondent does not argiic that this rul-
ing is erroneous or that it should be rejected by this
Court.” Respondent also concedes that for federal
constitutional purposes the protection afforded by the
"Respondent’s Response to Petition for Writ of Habeas Corpus,
p. 2, lines 3-4.
*Id., p. 7, lines 27-32; p. 8, lines 1-4.
“—104—
double jeopardy clause is available to the convicted
and the acquitted on an equal basis.*
Nevertheless, respondent maintains that in order for
an accused to be placed twice in jeopardy “there
must be some disposition of the proceedings at issue
which results in a definitive conclusion tantamount to
either an acquittal or a conviction.”* This statement
is totally devoid of any legal foundation. The law is
clear that jeopardy attaches in a non-jury trial no later
than when the first witness is sworn. United States v.
Jorn, 91 S.Ct. 547 (1971); Wade v. Hunter, 336 USS.
684, 688 (1949); Richard M. v. Superior Court, 4
Cal.3d 370, 93 Cal.Rptr. 752 (1971). These cases
establish unequivocally that once jeopardy attaches, it
is constitutionally immaterial whether the proceeding is
subsequently aborted or proceeds to a “definitive” con-
clusion.
In United States v. Jorn, supra, for example, 91 S.
Ct. 547 (1971), the trial court declared a mistrial after
the first witness was sworn. Although this trial never
proceeded to a “definitive” conclusion, the district court
found that the double jeopardy clause prohibited fur-
ther proceedings and granted defendant’s motion to dis-
miss a subsequently filed indictment. The United States
Supreme Court agreed that defendant had been twice
placed in jeopardy and affirmed the district court’s dis-
missal of the indictment. If, as the Supreme Court
found, the double jeopardy clause bars a second pro-
ceeding where the first trial culminates in a mistrial, a
fortiori the double jeopardy principle is applicable in
the case at bar where the jurisdictional hearing was
3Jd., p. 8, lines 7-11, citing Kepner v. United States, 195 U.S.
100, 129 (1904).
4Id., p. 8, lines 12-15.
4
—105—
concluded, and the Court sustained the petition finding
Gary to be a person described by Cal. W&I Code
§ 602.°
Respendent asserts that a jurisdictional hearing in
juvenile court (Cal. W&I Code § 602) is roughly
analogous to a preliminary hearing in a criminal case.°
The argument continues that since jeopardy does not
attach at a preliminary hearing in a criminal case,
neither does it attach at a jurisdictional hearing in
juvenile court.
The Achilles heel in this reasoning is, of ¢ourse,
that a jurisdictional hearing is comparable to a crim-
inal trial and not to a preliminary hearing. If this
were not true, the Supreme Court would not have held
that at a jurisdictional hearing a minor must be ac-
corded his right to confront and cross-examine his ac-
cusers [Jn re Gauit, 387 U.S. 1 (1967)], and to be
tried in accordance with a reasonable doubt standard
[In re Winship, 397 U.S. 358 (1970)], rights not
granted to adult criminals at preliminary hearings. Sim-
ilarly, the California Supreme Court has held that the
juvenile court may not examine a minor’s probation re-
port at the jurisdictional hearing precisely because it
would prejudice the Court’s determination of guilt or
innocence. In re Gladys R., 1 Cal.3d 855, 83 Cal.
Rptr. 671 (1970).
Section 701 of the Cal. W&I Code establishes the
rules governing jurisdictional hearings. It provides that
at such a hearing. “. . . the [juvenile] court shall first
consider only the aiettion whether the minor is a per-
*The junvenile court’s minute order was annexed to relator’s
petition as Exhibit “E”.
“Respondent's Response to Petition for Writ of Habeas Corpus,
p. 8, lines 26-31.
—106—
son described by Section . . . 602... .” Cal. W&I
Code § 602 provides, in pertinent part,
“Any person under the age of 21 years who vio-
lates any law of this State or of the United States
. . . ls within the jurisdiction of the juvenile court,
which may adjudge such person to be a ward of
the court.”
Since under this language the juvenile court is required
to find the minor’s guilt of an underlying law violation
in order for the court to adjudicate him a person de-
scribed by Cal. W&I Code § 602, this proceeding is
clearly akin to a criminal trial, and not to a preliminary
hearing.’
Respondent cites Price v. Georgia, 398 U.S. 323
(1970), for the proposition that the United States Su-
preme Court has formulated a concept of continuing
jeopardy which applies where criminal proceedings have
not run their ful) course.* But the language in Price
refers to a situation where a defendant appeals and ob-
tains a reversal of his conviction. It is, of course, well-
established that double jeopardy does not prohibit the
State from retrying a defendant who has secured a re-
versal on appeal. See Green v. United States, 355 U'S.
™The Juvenile Court Law’s analogue to a preliminary hearing
in a criminal case is the detention hearing. “Unless sooner re-
leased, a minor taken into custody under the provision of this
article shall be brought before a judge or referee of the juvenile
court for a hearing (which shall be referred to as a ‘detention
hearing’) to determine whether the minor shall be further de-
tained, as soon as possible but in any event before the expiration
of the next judicial day after a petition to declare such minor a
ward . . . has been filed. If the minor is not brought before a
judge or referee of the juvenile court within the period prescribed
by this section, he shall be released from custody.” Cal. W&I
Code § 632. The standards for detention are set forth in Cal.
W&I Code § 636.
SRespondent’s Response to Petition for Writ of Habeas Corpus,
p. 9, lines 19-20.
—107—
184, 189 (1957); United States v. Ball, 163 U.S. 662
(1896). By filing a notice of appeal the defendant has
waived his right to plead jeopardy as a bar to a sub-
sequent prosecution.®
But the remand of Gary Steven Jones from juvenile
to adult court cannot be attributed to a voluntary act or
decision by the minor. Since Gary opposed the transfer
of jurisdiction from juvenile to adult court, and inter-
posed a plea of “once convicted, once in jeopardy,”
he clearly did not waive his right to be protected by the
double jeopardy prohibition. His case is similar to
United States v. Sabella, 272 F.2d 206 (2d Cir. 1959),
where defendants challenged on appeal the legality of
their sentences but did not attack the validity of their
convictions. Since they themselves had not put in issue
the legality of their convictions, and since they had not
waived any rights emanating from the prohibition
against double jeopardy, the court held that a second
trial in connection with the same underlying incident
would be barred.
In ‘short, the doctrine of “continuing jeopardy” is a
bugaboo which has no basis in law except insofar as it
is inartfully employed to justify a retrial following a
successful appeal. Where the defendant is tried twice
for the same underlying offense, where each trial results
in a finding that he committed the act of which he was
accused, and where each trial exposes him “to his loss
of liberty for years” [In re Gault, 387 USS. 1, 36
(1967)], it would be the sheerest Caprice to claim
that the defendant should not be immune from this
It is also evident that our entire system of appellate review
of criminal convictions is premised upon the appellate court’s
power to remand for a retrial. Appellate courts would most cer-
tainly be reluctant to reverse criminal convictions if every reversal
insulated the defendant from subsequent prosecution.
PATA ONNAGOO IRR, DCMI RETA ARIE ARENA 28 FES SER INR
—108—
double prosecution because the juvenile court proceed-
ing was terminated prior to disposition. See United
States v. Jorn, 91 S.Ct. 547 (1971). Nor may peti-
tioner’s constitutional rights be adulterated because the
two proceedings were conducted
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