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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Robert TORRES, Jr., Defendant and Appellant.


Decided: August 15, 1985

John K. Van de Kamp, Atty. Gen., and Shunji Asari, Deputy Atty. Gen., for plaintiff and respondent. Lodmer & Sills, and Robert L. Sills, Los Angeles, for defendant and appellant.

In the Municipal Court of the Whittier Judicial District, Torres certified to the Superior Court of Los Angeles County a plea of guilty to one count of robbery;  he also admitted having previously been convicted of one count of child molestation, his attorney “reserving the right to challenge the applicability of that prior conviction due to the fact my client was 17 years old at the time of the sentencing and had not been certified as an adult.”   The attorney's contention was correct.   A certificate of live birth presented to the superior court at the time of sentencing established that Torres was born on December 22, 1961;  he committed the earlier offense on January 19, 1979;  he had never been referred to the juvenile court.   Torres made a motion to strike the prior, which was denied, and he was sentenced to ten years in prison, five years for the robbery (the upper term) and five consecutive years for having suffered the previous “serious felony” conviction.   He appeals from the judgment, urging that the prior was invalid and should have been stricken.

In addition to the birth certificate, the superior court had before it four superior court files involving Torres, including A 446126 (the contested prior), a criminal justice history printout and a sworn declaration by a deputy district attorney to the following effect:  (1) that according to the criminal history report Torres had claimed “14 separate names (with six different and distinct last names) and five separate dates of birth”;  (2) that “the police reports and probation reports in case A 446126 indicate that at all times defendant claimed his date of birth was 12–22–60”;  and (3) “Mr. Davis [Torres' lawyer] claimed his client had lied to the police and to the court in A 446126 so as not to involve his [client's] mother.”   This showing was objected to as hearsay and as irrelevant but was not controverted.

Since 1961, section 603 of the Welfare and Institutions Code has provided that no court shall have jurisdiction to proceed against a person under the age of 18 at the time of the commission of an offense without first submitting the matter to the juvenile court, and a companion statute, section 604, has provided that when “it is suggested or appears to the judge before whom the person is brought that the person charged was, at the date the offense is alleged to have been committed, under the age of 18 years,” the judge “shall examine into the age of the person, and if, from the examination, it appears to his or her satisfaction that the person was at the date the offense is alleged to have been committed under the age of 18 years,” he or she shall certify the matter to the juvenile court.   The principal point on this appeal is that “jurisdiction” means “jurisdiction” and the prior is accordingly invalid.   We disagree.

In 1934, long before the word “jurisdiction” was written into the code, the court held in In re Gutierrez (1934) 1 Cal.App.2d 281, 287, 36 P.2d 712:  “The plain language of the law imposes upon the juvenile the burden of at least suggesting to the court that he is under the age of eighteen years.   In the absence of such suggestion and unless it appears to the judge that the individual charged with the commission of a criminal offense is under the specified age, no duty arises to suspend the proceedings and examine into the age of the accused.”   No post-1961 case applies the Gutierrez language.   But to us it is clear, at the very minimum, that a juvenile cannot be permitted to manipulate his own age and his own identity for his own purposes and then later claim that he should not have been dealt with under the general law.

Torres also contends that he was not properly advised of and did not waive his right to confront and cross-examine the witnesses against him, as required by In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561.   But we have read the transcript of his plea and his admission of the prior, and it is manifest to us that he was advised of, knew, and validly gave up his constitutional rights with respect to all the issues that would have arisen at a trial of his case.

The judgment is affirmed.



RINGER, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

WOODS, P.J., and ARGUELLES, J., concur.