PEOPLE v. CHI KO WONG

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. CHI KO WONG, Defendant and Appellant.

Cr. 25832.

Decided: February 18, 1976

Dennis Roberts, Oakland, Uyeda & Horikawa, Los Angeles, Minami, Tomine & Lew, Dale Minami, Garrick Lew and Ken Kawaichi, Oakland, for defendant and appellant. Bach & Bach, Maxim N. Bach, Chico, and Russell T. Kubota, Fresno, Amicus Curiae for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline, Owen Lee Kwong and Shunji Asari, Deputy Attys. Gen., for plaintiff and respondent.

Defendant and an adult were charged by a 7-count information with (count I) robbery of Eleanor Yan on 30 Dec 73, a felony in violation of Pen.Code § 211; (count II) murder of James Fang on 30 Dec 73, a felony, in violation of Pen.Code § 187; (count III) robbery of Jick Pon on 16 Dec 73, a felony, in violation of Pen.Code § 211; (count IV) assault with intent to commit robbery upon Hing Fong Woo on 9 Sep 73, a felony, in violation of Pen.Code § 220; (count V) robbery of Chang Hoi Muh on 21 Jul 73, a felony, in violation of Pen.Code § 211; (count VI) assault with a deadly weapon upon Narcizo Ayala on 21 Jul 73, a felony, in violation of Pen.Code § 245, subd. (a); and (count VII) robbery of Stephen L. Shilt on 13 Jun 73, a felony, in violation of Pen.Code § 211. As to each count, it also was charged that defendant used a pistol in violation of Pen.Code § 12022.5. Defendant pled not guilty and denied use of a firearm (pistol, revolver) as alleged. Counts IV, V, VI and VII were dismissed on the People's motion made on April 4, 1974, the third day of trial. Defendant was found guilty by a jury of robbery, as alleged in count I, and murder as alleged in count II. The jury fixed each crime as being in the first degree (Pen.Code §§ 189, 211a), also finding that defendant used a firearm in committing each offense. The trial court declared a mistrial as to defendant's co-defendant (as to whom the jury could not agree) and count III against defendant was dismissed by the count in ‘furtherance of justice.’ Defendant was sentenced to state prison on counts I and II, but execution of the sentence on count I was stayed pending appeal or completion of service of the sentence under count II. Defendant appeals from the judgment, raising a number of contentions.

Initially defendant, a 16 1/2—year-old youth, was charged, pursuant to Welf. & Inst.Code § 602, in a juvenile court petition filed 4 Jan 74, with the murder of James Fang on 30 Dec 73, a felony, in violation of Pen.Code § 187. Defendant was arrested for this crime on January 7, 1974. On January 9, 1974, another petition was filed in juvenile court charging defendant with 13 additional crimes. Thereafter a ‘fitness' hearing was held pursuant to Welf. & Inst.Code § 707,1 petitioner was bound over to the district attorney for criminal prosecution as an adult and the juvenile court petitions were dismissed.

Defendant argues there was misconduct by the deputy district attorney during his trial and improper evidence was introduced consisting of a pistol, a nylon stocking (mask) and photographs. Regarding the pistol and the nylon stocking mask, it was testified by Miss Eleanor Yau, cashier at the Twin Dragon restaurant, that when defendant first entered the restaurant he wore a black hat or cap and, a few moments later, pulled the stocking mask down from the cap. She identified defendant in court as the one who pointed a gun as her while the other defendant removed all of the cash from the cash register. James Fang, a restaurant employee, was inside the restaurant and ran out after the defendants. Miss Yan then heard a shot outside and, shortly thereafter, saw Fang when he was brought back into the restaurant unconscious and in considerable pain. (Fang died soon thereafter.) No objection was voiced to any of the items of evidence when offered for identification. When offered into evidence, defendant's attorney said 'objection' and was overruled.

Defendant now comes too late to complain of the items of evidence when they were identified. His objections at the time they were received into evidence were without merit. First, the items all were properly identified and, second, a mere statement of ‘objection’ hardly is informative enough to a trial court regarding the grounds of objection. (Russell v. Geis, 251 Cal.App.2d 560, 570, 59 Cal.Rptr. 569 [1967].)

Defendant also complains that the court permitted, ‘over strenuous objection,’ the prosecution ‘to insinuate that some extortion or other gang activity was occuring [sic] which would influence the witnesses . . .’ We have carefully examined the reporter's transcript at the pages of which defendant complains (pp. 99, 139, 167–168, 182, 185, 200, 208, 216–220, 223, 236, 245–246, 248, 259–260, 263, 268–278, 355, 361 and 529). Some of the allegedly improper questions and answers related only to counts of which defendant was not convicted; regarding others, the objections were based upon the ‘best evidence’ rule or ‘immateriality’ (distinguish ‘irrelevance,’ People v. Warner, 270 Cal.App.2d 900, 907–908, 76 Cal.Rptr. 160 [1969]; Witkin, Cal. Evidence, 2d ed., §§ 301, 302, pp. 265–267) and some of the complaints relate to statements made out of the jury's presence. We disagree with appellant. While we believe that, in some instances, the trial court erred by admitting evidence of fears (on the theory that the witnesses' states of mind were relevant) such errors, if any, were not prejudicial. There was more than ample evidence of defendant's guilt to convict him of counts I and II, and we conclude that evidence of the witnesses' fears did not prejudice the verdict. It is ‘not reasonably probable that a result more favorable to defendant would have’ resulted. (People v. Watson, 46 Cal.2d 818, 837, 299 P.2d 243, 255 [1956].)

Furthermore, we conclude that any prejudicial misconduct on the part of the prosecuting attorney is unlikely to have affected the case's outcome. Additionally, the record fails to disclose any request for a mistrial or to admonish the jury and all elements complained of easily could have been thus corrected. (People v. Woodberry, 10 Cal.App.3d 695, 708, 89 Cal.Rptr. 330 [1970].)

Next we discuss defendant's contention that the trial court erred by receiving testimony of witnesses through an interpreter without verifying ‘the accuracy of witnesses' testimony.’ We disagree with defendant. (Evid.Code § 752.)

Thus, as to counts I and II, Miss Yau testified without any interpreter as did Patrick Kan. The interpreter was used for most of the testimony of Stephen Tao. George Chen, the next witness for the People, did not identify defendant as being in the Twin Dragon restaurant the night counts I and II were committed. A controversy arose as to the accuracy of the interpreter's interpretations after Gum Hoy Der testified. His testimony related exclusively to count III and defendant's claim of misinterpretation related only to Der's testimony. We find no error.

First, there was no testimony given or offered during the hearing, out of the jury's presence, regarding any claimed error committed by the interpreter.

Second, defendant agreed that the interpreter selected was qualified.2

Third, at the hearing out of the jury's presence, held after Der had testified, the interpreter (who previously properly had been sworn to interpret accurately, Evid.Code § 751), stated in response to the count's question: ‘THE COURT: What are they speaking to you? THE INTERPRETER: One—Mandarin; and there's Cantonese, too. THE COURT: And you understand both? THE INTERPRETER: I understand. . . . I've taught both of them for years, your Honor. . . . THE COURT: The court is quite satisfied and confident with your ability and qualifications.’ Defendant did not offer evidence, or request of the trial court an opportunity to attack the interpreter's interpretation, as in People v. Johnson, 46 Cal.App.3d 701, 120 Cal.Rptr. 372 (1975), on which case defendant relies.

Fourth, count III was dismissed as to this defendant who, therefore, has no basis to complain.

Defendant also contends it was prejudicial error for the juvenile court to certify him to the superior court, arguing that the certification was not supported by ‘substantial evidence’ as required by Welf. & Inst.Code § 707. Defendant concedes the decision of waive or retain jurisdiction is within the sole discretion of the juvenile court but states that the discretion must be exercised within the framework of section 707, and, since no ‘substantial evidence’ was introduced, this made it an abuse of judicial discretion for the court to certify the matter to the superior court.

Defendant's contention raises the question whether the order of the juvenile court under Welf. & Inst.Code § 707, declaring the juvenile unfit, is reviewable on this appeal from the judgment of the superior court following his conviction of the criminal charges. The juvenile court's order is not one of those listed in Welf. & Inst.Code § 800, which is the sole statutory authority for appeal from a juvenile court order. Thus, the juvenile court's order was not itself appealable (In re Brekke, 233 Cal.App.2d 196, 199, 43 Cal.Rptr. 553 [1965]), although it was reviewable by writ. (Donald L. v. Superior Court, 7 Cal.3d 592, 595, 102 Cal.Rptr. 850, 498 P.2d 1098 [1972].)

The proceedings of the juvenile court are not part of the criminal proceeding and the order is not reviewable on this appeal from the judgment in the criminal case. A juvenile dissatisfied with the ruling of the juvenile court should not be free to await the decision on the criminal charges before seeking a review of the juvenile court proceeding.

Defendant's reliance upon People v. Browning, 45 Cal.App.3d 125, 140–141, 119 Cal.Rptr. 420 (1975) is misplaced, inasmuch as the discussion in that case related to the review of the juvenile court finding by a motion to set aside an information. Also, the People did not question the reviewability on appeal of the juvenile court finding. Cases are not authority for points not disputed or argued. (See Meehan v. Hopps, 45 Cal.2d 213, 217–218, 288 P.2d 267 [1955].)

Welf & Inst.Code § 707 states, in part, that: ‘. . . 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 . . . and the court shall direct the district attorney . . . to prosecute . . . under the applicable criminal statute or ordinance . . ..’ Here, the court's minutes reflect the court found: ‘. . . that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court.’ This finding is tantamount to the order approved in In re Brekke, supra, 233 Cal.App.2d at p. 197, 43 Cal.Rptr. 533. The court's reasons were stated in the present case.

The record discloses that defendant was represented by an attorney at the juvenile court hearing and was otherwise afforded his constitutional right to due process. (Kent v. United States, 383 U.S. 541, 560–562, 86 S.Ct. 1045, 1056–1058, 16 L.Ed.2d 84, 97–98 [1966].)

In the Kent case the Supreme Court held unconstitutional the summary ex parte procedure by which the juvenile court ‘waived’ jurisdiction over the minor, thus, subjecting him to criminal prosecution action as an adult. The California procedure, which provides for notice, a hearing and the assistance of counsel, is not comparable. The California statute states the ultimate fact which the juvenile court must find before relinquishing jurisdiction for criminal prosecution. Thus, the decision of the juvenile court is readily subjected to meaningful review by writ under California procedure. What was said in Kent about the necessity of findings of fact by the juvenile court is not applicable to the situation in California.

In Juan T. v. Superior Court, 49 Cal.App.3d 207, 122 Cal.Rptr. 405 (1975), the Court of Appeal reviewed an order made by a juvenile court under Welf. & Inst.Code § 707 and directed the juvenile court to make specific findings of fact in order to enable the appellate court to review the order under attack. Such procedure is not now open to the defendant in the present case. The defendant here did not seek direct review of the juvenile court order. His attack on it now is justifiable only on the theory that the juvenile court proceeding was so lacking in due process as to be void, as was the situation in Kent. As we have indicated, the procedure followed in the juvenile court was not a denial of due process, and the order is not subject to attack on this appeal from the ensuing criminal conviction.

Finally, we discuss defendant's contention that his sentencing constituted a violation of the due process clauses of the state and federal Constitutions. (Cal.Const. art. I, § 7, subd. (a), formerly § 13; federal Const. 5th Amend.)

Defendant first argues that use of an unsupported pre-sentence probation report violated the due process clauses mentioned. We disagree. There was no request that the court hear testimony from anyone regarding the probation report. A jury found defendant guilty of first degree murder and of using a firearm to commit that crime. The trial judge imposed the indeterminate sentence required of him under such circumstances. (Pen.Code §§ 190, 669, 1168, 3023, 3024, 12022.5.)

Evidence taken at defendant's trial established defendant's identity, the nature of the murder and the robbery charged in counts I and II and the weapons discovered during defendant's arrest, on warrant, at 4220 1/2 Raymond Street in Los Angeles. We find no error as claimed by defendant.

Defendant also contends that the punishment ordered was cruel and/or unusual. We disagree. In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1972), relied upon by defendant, does not relate to murder or robbery or the use of a firearm to accomplish such crimes, but to an indecent exposure recidivist (see In re Lynch, supra, 8 Cal.3d at p. 439, 105 Cal.Rptr. 217, 503 P.2d 921). One reason given by defendant for his contention is that he was but 16 1/2 years old. However, Welf. & Inst.Code § 606 reads, in pertinent part: ‘When a petition has been filed in a juvenile court, the minor who is the subject to criminal prosecution based on the facts giving rise to the petition unless the juvenile court finds that the minor is not a fit and proper subject to be dealt with . . ..’ (Emphasis added.) We deem it to be a constitutional section, particularly when taken in conjunction with Welf. & Inst.Code § 707 regarding the age of the minor. Pen.Code § 26 specifically states that a youth 14 years of age or over may be convicted of a crime. Here, defendant was convicted of particularly outrageous crimes; the fact he was but 16 1/2 when he shot and killed a man hardly, under the circumstances, excuses him from serving his sentence.

The judgment is affirmed.

FOOTNOTES

1.  Welf. & Inst.Code § 707 reads, in part: ‘At any time during a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602, when substantial evidence has been adduced to support a finding that . . . the minor would not be amenable to the care, treatment and training program . . . of the juvenile court . . . the court may make a finding noted in the minutes of the court that the minor is not a fit and proper subject to be dealt with under this chapter . . ..’

2.  ‘THE COURT: You've got a qualified official interpreter . . .‘MR. TANNENBAUM [defendant's attorney]: It's been agreed upon.’

DUNN, Associate Justice.

FILES, P. J. and KINGSLEY, J., concur.