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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Tien Van NGUYEN, Defendant and Appellant.

No. G005664.

Decided: April 12, 1990

Appellate Defenders, Inc. and David A. Kay for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom and Gil P. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.


A jury convicted Tien Van Nguyen of felony murder (Pen.Code, § 187;  count I), attempted residential robbery (Pen.Code, §§ 664/211/213.5;  count II), first degree burglary (Pen.Code, § 459/460;  count III), and robbery (Pen.Code, § 211;  count V).   It also found appellant personally used a firearm when committing the attempted robbery, and was armed with a firearm during the commission of the murder.  (Pen.Code, §§ 12022.5, subd. (a), 12022, subd. (a).)  The lower court imposed prison sentences for the murder, burglary and robbery charges, but stayed sentencing on the attempted robbery.

In the published portion of this opinion we consider the validity of the lower court's pretrial ruling finding appellant was an adult when the crimes occurred.


1. Summary of the evidence.

On May 5, 1986, Kim Ngo lived with her mother, father and 13 brothers and sisters in a house on South Huron Street.   At 10:15 p.m. that evening Kim returned home from college, parking her car in the driveway.

Kim saw a man standing by the car pointing a revolver at her head.   She then saw four other men in front of her car with their faces covered and holding guns.   The men ordered Kim to turn over her car keys.   The keys were never recovered.

The assailants moved Kim to the front of the car and ordered her to duck down.   They began planning how to enter the residence.   One suggested holding Kim outside while some members of the group entered the house.   If anything went wrong, the members remaining outside would shoot Kim.   This idea was discarded and the assailants agreed all would enter the house holding Kim.

One assailant held Kim by the shoulder, pointed a gun at her back and walked her toward the front door followed by the other four.   Kim's eight-year-old brother saw her coming and opened the door.   As the group entered the house, Kim was shoved onto a couch.   One assailant entered the kitchen and unhooked a telephone while another began checking bedrooms and bathrooms ordering family members into the living room.

When the latter assailant entered the last bedroom, Hoang Thihuyn, the family's mother, exclaimed “Oh my God” in Vietnamese.   A gunshot rang out.   The assailant ran out of the bedroom and told the other four men to leave which they did.   Hoang Thihuyn subsequently died from a single gunshot wound.

During the ensuing five weeks the police arrested several persons suspected of participating in the attack.   Based on information received from these suspects, appellant was arrested outside his residence June 12.

After his arrest, appellant agreed to speak to the police and admitted participating in the attack on the South Huron residence.   Appellant stated he approached Kim's car and walked Kim to the door holding a gun to her back.   But appellant claimed he handed the gun to another assailant upon entering the house.   He denied shooting the homicide victim.   Appellant's pretrial motion to exclude his confession was denied and a tape recording and written transcript of it were introduced at trial.

The defense rested without presenting any evidence.   Defense counsel argued appellant did not participate in the attack on the Huron residence, claiming his confession was involuntary, and the information appellant provided to the police when interrogated could have been obtained from the news media's extensive coverage of the incident.

2. Motion challenging the superior court's jurisdiction over appellant.

At the preliminary hearing, appellant argued adult courts lacked jurisdiction to proceed with the prosecution of him because he was only 13 when the crimes occurred.   Defense counsel accepted the burden of proof on this issue conceding appellant's age was a matter peculiarly within his knowledge.

The parties presented conflicting evidence on appellant's age.   Appellant and his 26–year–old sister fled Vietnam in 1980 and entered the United States in 1981.   His sister denied recalling when appellant was born.   Before leaving Vietnam, their mother stated appellant's date of birth was September 6, 1972.   His sister admitted that, although she was appellant's legal guardian, he had not lived with her continuously since April 1985.

On several occasions appellant gave the police and school authorities different birthdates generally falling in May or June 1966 or June 1967.   In 1985, appellant stated under oath his date of birth was June 7, 1966, relying on a letter he received from his mother.   Prior to his arrest, appellant was attending high school.

The magistrate denied appellant's motion.   Appellant renewed it in the superior court.   After reviewing the preliminary hearing evidence, the court denied the motion for the following reasons:  (1) The photograph of appellant appearing on his immigration identification card, taken when he entered the United States, “did not appear to be a picture of a nine-year old boy;”  (2) in person, appellant looked like he was 20;  (3) appellant gave conflicting statements about his age depending upon his objective;  and (4) appellant was sophisticated.

The court concluded, “I'm confident when I say looking at this young man before me, he's not 14, he's 20.   And I spent a lot of time reading the transcripts.  [¶] If I had to call this beyond a reasonable doubt, there is no way I could do it based on the transcript.   I am satisfied in my mind he's not 14 and is an adult.”



1. The lower court properly denied appellant's motion challenging the superior court's jurisdiction.

Appellant contends respondent had the burden of proving, beyond a reasonable doubt, jurisdiction to try him rested in an adult court rather than the juvenile court.   At oral argument, appellant adopted, as an alternative, a suggestion the prosecution be required to shoulder this burden by clear and convincing evidence.

Welfare and Institutions Code section 604, subdivision (a) provides that “[w]henever a case is before any court upon an accusatory pleading and it is suggested or appears to the judge” the defendant was a minor when the offense allegedly occurred, the court must hold a hearing to determine the defendant's age.   If “it appears to [the court's] satisfaction” the defendant was a minor at the time of the alleged offense, the case must be certified to the juvenile court.   Where a court determines a certification request upon conflicting evidence, its decision will be reversed only for an abuse of discretion.   (People v. Alexander (1923) 62 Cal.App. 306, 308, 216 P. 968.)

 Appellant claimed to be 13 and subject only to the juvenile court's jurisdiction.  “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”  (Evid.Code, § 500.)   Indeed, when appellant first sought to transfer the cause to the juvenile court, his attorney expressly conceded the defense had the burden of proving appellant was a minor.

The Law Revision Commission comment on section 500 states in part:  “In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors:  the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.   In determining the incidence of the burden of proof, ‘the truth is that there is not and cannot be any one general solvent for all cases.   It is merely a question of policy and fairness based on experience in the different situations.’ ”  (7 Cal. Law Revision Com. Rep. (Jan.1965) p. 89.)

 These criteria do not support shifting the burden of proof to the prosecution.   Appellant's birth records and other witnesses who have personal knowledge of his true age are in Vietnam.1  It does not appear the probability appellant is a minor is greater than the probability he is not.

There are no public policy considerations supporting a different result.2  The juvenile court has jurisdiction over persons who are charged with committing crimes when under 18 years of age.  (Welf. & Inst.Code, § 602.)   A minor who is 16 or older may be prosecuted in an adult court if he or she is unfit to be dealt with under the juvenile court law.  (Welf. & Inst.Code, § 707.)   However, minors under 16 years of age must be retained and handled by the juvenile court.  (In re James G. (1985) 165 Cal.App.3d 462, 467, 211 Cal.Rptr. 611.)

Nonetheless, most of the procedural rights accorded adults charged with criminal offenses also apply to minors subject to wardship proceedings under section 602.

By statute, a minor is entitled to notice of the charges and a hearing (Welf. & Inst.Code, §§ 658, 700);  to counsel, including appointed counsel if the minor is indigent (Welf. & Inst.Code, §§ 679, 700);  to subpena witnesses (Welf. & Inst.Code, § 664);  to confront and cross-examine witnesses and the privilege against self-incrimination (Welf. & Inst.Code, §§ 630, subd. (b), 702.5);  and to have proof of his wardship status determined beyond a reasonable doubt by evidence legally admissible in criminal cases (Welf. & Inst.Code, § 701).   In addition, all of the foregoing rights, as well as others, are constitutionally protected.  (In re Gault (1967) 387 U.S. 1, 29–31, 87 S.Ct. 1428, 1444–1446, 18 L.Ed.2d 527, [notice, counsel, privilege against self-incrimination, and confrontation];  In re Winship (1970) 397 U.S. 358, 365–368, 90 S.Ct. 1068, 1073–1075, 25 L.Ed.2d 368 [beyond a reasonable doubt burden of proof];  Breed v. Jones (1975) 421 U.S. 519, 529–531, 95 S.Ct. 1779, 1785–1787, 44 L.Ed.2d 346;  Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375, 93 Cal.Rptr. 752, 482 P.2d 664 [protection against being twice placed in jeopardy for the same offense];  Gallegos v. Colorado (1962) 370 U.S. 49, 52–55, 82 S.Ct. 1209, 1211–1213, 8 L.Ed.2d 325;  In re William G. (1985) 40 Cal.3d 550, 556–557, 221 Cal.Rptr. 118, 709 P.2d 1287;  In re Roderick P. (1972) 7 Cal.3d 801, 810–811, 103 Cal.Rptr. 425, 500 P.2d 1 [the exclusion of evidence obtained by coercion or in violation of a person's rights under the Fourth and Fifth Amendments].)

Similarities also exist in post-conviction matters.   In sentencing an adult convicted of a criminal offense, the primary concerns are punishment and protection of society.  (Pen.Code, § 1170, subd. (a)(1);  People v. Warner (1978) 20 Cal.3d 678, 689, 143 Cal.Rptr. 885, 574 P.2d 1237;  3 Witkin and Epstein, Cal. Criminal Law (2d ed.1989) § 1253, pp. 1452–1453.)   On the other hand, juvenile court proceedings were originally “designed for the rehabilitation of minors and not punishment.”  (In re Dennis J. (1977) 72 Cal.App.3d 755, 762, 140 Cal.Rptr. 463.)   However, recent amendments to the Juvenile Court Law place greater emphasis on the protection of society and using punishment to rehabilitate minors.  (Welf. & Inst.Code, § 202, subds. (a) and (b).   See In re Michael D. (1987) 188 Cal.App.3d 1392, 1396, 234 Cal.Rptr. 103.)

Appellant argues proof of his age is analogous to an element of an offense.   But ascertainment of his age merely determined which court had jurisdiction over the case.   His loss of freedom and resulting social stigma would have occurred regardless of whether he was convicted of a crime in an adult court or declared a ward after the juvenile court found the allegations of a petition to be true.  (See In re Winship, supra, 397 U.S. at pp. 363–367, 90 S.Ct. at pp. 1072–1074.)   He also claims the length of incarceration for an adult is longer than the period of time juvenile authorities can hold someone.   This assertion is not necessarily true.  (See Welf. & Inst.Code, §§ 1780 et seq., 1800 et seq.)   Furthermore, we do not believe any potential difference in the length of commitment is sufficient cause to shift the burden of proof.  Section 604 requires a request to certify an action to juvenile court be established to the court's “satisfaction.”   Here, the trial judge stated he was “satisfied in [his] mind” appellant was an adult.

In re Colar (1970) 9 Cal.App.3d 613, 88 Cal.Rptr. 651 is of no assistance to appellant.  Colar held a minor was entitled to a detention hearing under Welfare and Institutions Code section 632 even though the police arrested him pursuant to a criminal complaint and warrant issued by an adult court.   (Id. at pp. 615–616, 88 Cal.Rptr. 651.)   The prosecution conceded the person charged was a minor subject to the juvenile court's jurisdiction.   In this case appellant's age was the very fact in issue.

Furthermore, we conclude appellant's burden of persuasion was to establish his minority by a preponderance of the evidence.   This standard applies “[e]xcept as otherwise provided by law.”  (Evid.Code, § 115.   Cf. People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 176–177, 173 Cal.Rptr. 788.)   Appellant's age is not an element of any of the offenses charged against him.   Where the law imposes on a criminal defendant the burden of proving a fact collateral to whether he committed the criminal acts charged, the defendant's burden of proof is by a preponderance of the evidence.   (People v. Figueroa (1986) 41 Cal.3d 714, 722, 224 Cal.Rptr. 719, 715 P.2d 680;  People v. Tewksbury (1976) 15 Cal.3d 953, 963–966, 127 Cal.Rptr. 135, 544 P.2d 1335.   Compare People v. Montalvo (1971) 4 Cal.3d 328, 333, 93 Cal.Rptr. 581, 482 P.2d 205.)

Appellant argues the prosecution should bear the burden of establishing he is an adult by either proof beyond a reasonable doubt or by clear and convincing evidence.   Even assuming the prosecution has the burden of proof, we reject these higher standards of proof.

None of the criteria for using either elevated burden exists.  “[I]f the proceedings seriously put at risk both the personal liberty and the good name of the individual, the safeguard of proof beyond a reasonable doubt is required.”  (People v. Thomas (1977) 19 Cal.3d 630, 638, 139 Cal.Rptr. 594, 566 P.2d 228.   See also In re Winship, supra, 397 U.S. 358, 365–366, 90 S.Ct. 1068, 1073–1074;  People v. Burnick (1975) 14 Cal.3d 306, 318–322, 121 Cal.Rptr. 488, 535 P.2d 352.)  “The courts have defined clear and convincing evidence as evidence which is so clear as to leave no substantial doubt and as sufficiently strong to command the unhesitating assent of every reasonable mind.  [Citations.]”  (In re Terry D. (1978) 83 Cal.App.3d 890, 899, 148 Cal.Rptr. 221.   See also People v. Caruso (1968) 68 Cal.2d 183, 190, 65 Cal.Rptr. 336, 436 P.2d 336.)

These burdens are employed where the interest or interests involved are considered sufficiently important that, to ensure a correct factual finding is achieved, the risk of error is either substantially or entirely placed on the party shouldering the burden of persuasion.  (Addington v. Texas (1979) 441 U.S. 418, 423–424, 99 S.Ct. 1804, 1807–1808, 60 L.Ed.2d 323;  In re Angelia P. (1981) 28 Cal.3d 908, 915–922, 171 Cal.Rptr. 637, 623 P.2d 198.)   Such an interest is not involved here.   Appellant's motion to transfer merely determined which court had jurisdiction over the case.   In fact, imposition of either elevated burden would likely render proof by the prosecution of the defendant's majority impossible in cases similar to this one.

Accordingly, the lower court properly denied appellant's motion to transfer his case to the juvenile court.



Appellant's conviction on all counts, the sentence imposed on count I (murder) and the stay of the sentence on count II (attempted residential robbery) are affirmed.   The cause is remanded to the lower court with directions to stay sentencing on count III (burglary) and to consider whether to resentence appellant on count V (robbery).


FOOTNOTE.   See footnote *, ante.

1.   During the preliminary hearing, respondent moved to compel a medical examination of appellant to establish his age.   The defense objected.   The magistrate deferred ruling on the motion, decided appellant's certification request based on the evidence previously introduced, and noted respondent's motion could be re-filed if appellant was bound over to the superior court and he renewed his request to transfer the case to the juvenile court.   Respondent did not renew the motion.

2.   We note that in at least one other context the Legislature has imposed the burden of proof as to age on a defendant.  Penal Code section 190.5 prohibits imposing the death penalty on one who is under 18 years of age when he or she commits a capital crime.   However, it further states “[t]he burden of proof as to the age of such person shall be upon the defendant.”

FOOTNOTE.   See footnote *, ante.

MOORE, Associate Justice.

SONENSHINE, Acting P.J., and CROSBY, J., concur.