PEOPLE v. SANCHEZ ET AL

Reset A A Font size: Print

District Court of Appeal, Second District, Division 1, California.

PEOPLE v. SANCHEZ ET AL.

Cr. 3560.

Decided: May 26, 1942

Morris Lavine, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Alberta Belford, Deputy Atty. Gen., for respondent.

In an information filed by the district attorney of Los Angeles County, defendant Angelo John Porrello and two others were accused in counts one and two of the crime of robbery, while count three alleged the commission by them of the offense of attempted robbery. This appeal concerns only the defendant Porrello, and is taken from an order denying his motion to vacate and set aside a judgment by which he was sentenced to the state prison at San Quentin. In reviewing the record, we shall, therefore, take cognizance only of those proceedings which affected this appellant. In that regard, it appears that on March 7, 1941, defendant Porrello entered pleas of not guilty to all counts contained in the information, and trial of the same was thereupon set for April 16, 1941. On the last named date, in Department 44 of the Superior Court of Los Angeles County, the record reveals that the following proceedings were had: “Cause as to Defendant Angelo John Porrello is transferred to Department 39 for further proceedings.” It should here be noted that Department 39 is the department of the Superior Court of Los Angeles County designated to hold sessions as a juvenile court.

Nowhere in the record do we find anything to enlighten us as to what action was taken in the juvenile court after reference thereto by the judge presiding in Department 44. The next entry appearing in the clerk's transcript indicates that on April 17, 1941, in Department 44, which is not the juvenile court, appellant herein was permitted to withdraw his plea of not guilty theretofore entered as to count one and to enter a plea of guilty thereto. At the same time he admitted being armed with a deadly weapon at the time of the commission of the offense to which he pleaded guilty, and upon a statement of facts and stipulation of counsel, the court found the crime to be robbery of the first degree. Appellant thereupon waived time for passing sentence and was granted permission to file an application for probation, the hearing thereon and the pronouncement of judgment being continued to May 7, 1941. On the date last mentioned according to the clerk's transcript, appellant herein appeared in Department 44, at which time the record shows that:

“* * * The Court recesses as a Criminal Court and reconvenes as a Juvenile Court. It is ordered that proceedings herein be suspended as to Count 1 of the information. * * * Pursuant to the provisions of the Welfare and Institutions Code, Sections 834 and 835, St.1937, pp. 1046, 1047, defendants are now declared wards of the Juvenile Court under Subdivision (m), Section 700 of said code.

“It is further ordered that the defendants be committed to the Preston School of Industry at Ione, California, during their minority, to–wit: until * * * June 18, 1944, as to Defendant Angelo John Porrello * * *.

“Cause is continued to May 22, 1941, at 9:30 A. M. and transferred to Department 39” (Juvenile Court) “for further hearing relative to financial responsibility and reimbursement. * * *”

In the order by which appellant Porrello was committed to the Preston School of Industry we find the following: “Whereas the said Angelo John Porrello, a boy of the age of 17 years, having duly pleaded guilty in this Court of the crime of robbery, a felony. * * *”

Pursuant to the foregoing commitment, appellant herein was delivered to the authorities at the Preston School of Industry. Subsequent to the placement of appellant in the Preston School of Industry and on or about June 25, 1941, a communication was received from the superintendent of said school, advising of the inmate's physical condition and of his confinement to bed because of heart trouble, and requesting that he be returned to the jurisdiction of the court for the reason that “he could in no way profit by the training program offered at the school.” This information was given to the judge presiding in Department 44, who declined to make any order returning the appellant to the jurisdiction of the court, but indicated that he would make other disposition of the case should the boy be returned. On or about August 12, 1941, in Department 41 of the superior court, the probation officer advised the court of the receipt of a further communication from the superintendent of the Preston School of Industry, reading as follows: “In re Angelo John Porrello. I am enclosing affidavits signed by the Superintendent of the Preston School of Industry and Director of Institutions in the case of Angelo John Porrello. I am also enclosing copy of communication which I sent to Dr. Rosanoff concerning Porrello's case.” Attached to the probation officer's report was an affidavit sworn to by the Director of Institutions of the State of California, which recites in substance that the defendant is unfit due to physical disability to profit by the training program of the Preston School of Industry, and directing his return to the Superior Court of Los Angeles County for further consideration and order.

Upon the recommendation of the probation officer, the judge presiding in Department 41, known as the Master Calendar Criminal Department of the Superior Court of Los Angeles County, directed that the order of May 7, 1941, committing appellant to the Preston School of Industry, be vacated and set aside, and that he be returned to Los Angeles County for further consideration and order in connection with his case. The sheriff was directed to make such return and to place appellant in the General Hospital; and the cause was placed on the calendar in Department 44 of the Superior Court for August 20, 1941. The matter was continued from time to time until, on September 11, 1941, in Department 41, the court, sitting as a criminal department of the superior court, made an order reciting that the previous order committing the defendant to the Preston School had been vacated and set aside; that no legal cause why judgment should not be pronounced existed; and thereupon the court sentenced the defendant to the state prison for the term prescribed by law for the offense of robbery as charged in count 1 of the information and to which the defendant had pleaded guilty. Thereafter appellant made a motion in the last named department for an order vacating and setting aside the judgment and sentence to San Quentin penitentiary, and on December 17, after hearing upon such motion, the superior court made its order denying the same. As heretofore indicated, this appeal is from the last mentioned order.

Appellant contends (1) that the trial court was without jurisdiction to vacate its order committing him to the Preston School of Industry; (2) that his commitment to such school constituted jeopardy, by reason of which his subsequent sentence to the state prison violated the due process of law clauses of the federal and state Constitutions, in that such state prison sentence placed him twice in jeopardy for the same offense; and (3) that in vacating and revoking its original order committing appellant to the Preston School of Industry the trial court abused its discretion.

We do not deem it necessary to discuss any of the foregoing grounds of appeal, because of our conviction that none of them is determinative of the sole, only and real issue here presented but not referred to in the briefs of either appellant or respondent, viz., the jurisdiction of the superior court to make its original order committing appellant to the state school. We are persuaded that the superior court sitting in the exercise of its general jurisdiction was without authority to recess in such capacity, reconvene as a juvenile court, and thereupon dispose of this case in the latter capacity. We arrive at this conclusion because the court found and determined that at the time appellant was before it charged with a felony he was of the age of seventeen years. Section 571 of the Welfare and Institutions Code designates the superior court, when sitting in the exercise of the jurisdiction conferred by chapter 2 of the code, as the “juvenile court.” Section 572 of the last named code directs that in counties such as Los Angeles, having more than one judge of the superior court, the judges of said court shall annually in the month of January designate one or more of their number to hear all cases provided for in the chapter last referred to.

Section 825 of the Welfare and Institutions Code specifically provides that no court shall have jurisdiction to try the case of any person under the age of eighteen years at the time of the alleged commission of a public offense unless the matter has first been submitted to the juvenile court, by petition as provided in article 7 of chapter 2, or by certificate of any other court as provided in article 9 of the Welfare and Institutions Code, and said juvenile court has made an order therein directing that such person be prosecuted under the general law. Section 826 provides that whenever an indictment or information is filed in any court charging a person with a crime, and it is suggested or appears to the judge before whom such person is brought that at the date the offense is alleged to have been committed such person was under the age of eighteen years, the judge shall immediately suspend all proceedings against such person; he shall examine into his age, and if from such examination it appears to the satisfaction of such judge that the person in question was at the date the offense is alleged to have been committed under the age of eighteen years, he must forthwith certify the case to the juvenile court, setting forth in such certification the facts mentioned in section 826. This section also requires that thereupon all proceedings against such person shall be suspended until the juvenile court issues its mandate as provided in sections 831 and 832. The last mentioned sections empower the judge of the juvenile court, should he conclude that such person is not a fit subject for further consideration in the juvenile court, either to proceed as a committing magistrate and hold a preliminary examination if the person is charged with a felony, or to remand the person to the court in which the charge is pending for further proceedings thereon. Upon the receipt of such mandate, the court before whom the charge is pending is then vested with full authority to proceed with the examination or trial of the charge.

Section 833 definitely provides that whenever a person is accused of crime in the superior court by indictment or information, and it is suggested to the court that the person is under the age of eighteen years at the date the offense is alleged to have been committed, the superior court shall recess as a criminal court and reconvene as a juvenile court; but the section further provides: “If there are two or more judges of the same superior court, and the action is brought before a judge other than a juvenile court judge, the case shall be transferred from the department in which it is to the department of a juvenile court judge. The juvenile court shall hear and dispose of any such case in the same manner and with the same powers as if the case had been transferred thereto from a court other than the superior court.”

While it is true that section 834 of the Welfare and Institutions Code, as contended by the attorney general, authorizes the superior court to recess as a criminal court and reconvene as a juvenile court, such authority is restricted to those cases in which the defendant is over the age of eighteen years and under the age of twenty–one years. Appellant herein, being under the age of eighteen years, does not come within the purview of section 834, but his case is governed by the provisions of section 833.

In the case at bar, it appears from the clerk's transcript that an order was made transferring the cause to the juvenile court, but nowhere does it appear that the juvenile court judge at any time found that appellant was not a fit subject for further consideration under the juvenile court law and remanded the cause to the criminal department of the superior court for further proceedings therein. In fact, at the time the superior court had under consideration appellant's motion to set aside and vacate its judgment sentencing appellant to the state prison, the reporter's transcript reveals the following:

“The Court: Just a moment. Was he not declared unfit for the juvenile court and returned to Department 44?

“Mr. Lavine (Defendant's Counsel): No, that does not appear in the minutes.

“The Court: Look on the jacket and see if he was not declared unfit and returned to Department 44.

“Mr. Lavine: No, that does not appear as far as the defendant Porrello is concerned. Perhaps––

“The Court: Perhaps the juvenile file would show that. * * *”

Further inquiry along this line was thereupon apparently abandoned.

Until this appellant, because of his age, was certified to the juvenile court and by the latter tribunal remanded back to the criminal department of the superior court as a subject unfit for consideration by the juvenile court, the superior court was without jurisdiction to consider or dispose of the case sitting in the exercise of its general jurisdiction as a criminal department of the court.

For the foregoing reasons, the order appealed from and the judgment by which appellant was sentenced to state prison are reversed and the cause remanded with directions to the superior court to proceed in accordance with the provisions of sections 825 and 826 of the Welfare and Institutions Code and the views herein expressed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concurred.