PEOPLE v. LAURENCE (1990)

Laurence R., 17 years old, allegedly drove the car in a drive-by gang shooting in which a rival gang member died.   The People moved under Welfare and Institutions Code section 707 to have the court find Laurence unfit so that he might be tried as an adult.   The court erred in finding Laurence was fit to be tried as a juvenile because it did not find him a fit subject under each and every one of the five criteria set out in the statute.

Welfare and Institutions Code section 707 provides that a juvenile over 16 who commits murder will be tried as an adult unless the juvenile can show he is amenable to treatment in the juvenile system.   His amenability to treatment is evaluated in terms of the following criteria:

“(1) The degree of criminal sophistication exhibited by the minor.

“(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.

“(3) The minor's previous delinquent history.

“(4) Success of previous attempts by the juvenile court to rehabilitate the minor.

“(5) The circumstances and gravity of the offense alleged to have been committed by the minor.”

The court in making its determination is to recite in its order “that the minor is fit and proper under each and every one of the above criteria.”  (Welf. & Inst.Code, § 707, subd. (c), emphasis added;  People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 174, 173 Cal.Rptr. 788.)   The court is to exercise its discretion by considering extenuating or mitigating factors as to each of the five factors listed above.   Having exercised its discretion as to each of the criteria, the court must find the minor not amenable to treatment if it concludes one or more of the named criteria are absent.

In the present case, Laurence had the burden of rebutting the presumption.   At the conclusion of the evidence the court found that Laurence was not criminally sophisticated and that the People had conceded that he could be rehabilitated.   The real issue was the fifth item, the circumstances and gravity of the crime.   As to that factor the court said:

“I want to be very clear, I don't see anything mitigating or extenuating about these facts․

“I'll go a step further and indicate that I honestly believe that this young man, with—the eight years that we have to work with him, with the family support, what's indicated not only from probation, but in Doctor Minkowsky's report, I think that in eight years, it's very possible that we could eliminate or at least reduce the possibility of the repeat of this type of behavior, so I do think that based upon everything, he is amenable.

“I wanted to be very clear, because if, in fact, the law states that there must be mitigation or extenuation for the offense, factor five, there's nothing extenuating or mitigating.

“My interpretation of the law is that I do not have to find extenuation or mitigation to find amenability.

“If I do, then I think my record is clear, and the record should reflect that this young man should be sent to adult court, because clearly, I do not find mitigation or extenuation for this very serious and very unfortunate crime.”

The court erred in ruling that the statute does not require mitigation as to the circumstances and gravity of the alleged crime.   The statute by its plain language requires the minor be found fit under “each and every one” of the listed factors.

An alternative writ or order to show cause would add nothing to the presentation.   A peremptory writ is proper.  (Code Civ.Proc., § 1088;  United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359, 169 Cal.Rptr. 827;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

Let a peremptory writ issue directing the superior court to vacate its order of December 28, 1989, and to enter a new and different order finding the minor is not a fit and proper subject to be dealt with under the juvenile court law.   The stay issued by this court on February 5, 1990, is vacated.   This opinion is made final as to this court five days after the date it is filed.  (Cal.Rules of Court, rule 24(d).)

I dissent.

Before discussing why the trial court determined Laurence R. was a fit and proper subject to be dealt with under the juvenile court law and the applicable law governing that determination, I want to set the scene for this appeal.

In spite of the antiseptic, almost abstract quality of the majority opinion, this case involves a person, 17 year old Laurence R., who has far more at stake than administrative concern as to the name of the court in which his trial will be conducted.  “[T]he certification of a juvenile offender to an adult court has been accurately characterized as ‘the worst punishment the juvenile system is empowered to inflict.’  [Citation.]”  (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 810, 210 Cal.Rptr. 204, 693 P.2d 789.)   A minor may be certified as an adult only after the “minimum requirements of due process and fair treatment as dictated by the Fourteenth Amendment” have been satisfied.  (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 718, 135 Cal.Rptr. 392, 557 P.2d 976¹ citing Kent v. United States (1966) 383 U.S. 541, 560–562, 86 S.Ct. 1045, 1056–1058, 16 L.Ed.2d 84.)   This means, at least in my view, that before we decide this experienced trial judge erred in concluding Laurence should be treated as a minor we should at least consider how he reached his decision.   A case of this importance also requires that we analyze the statute affecting Laurence R.'s right to be treated as a minor in accordance with constitutional principles relating to due process.  (Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 775, 211 Cal.Rptr. 869.)

I

The trial court made its decision based on testimony presented during four days of trial and on the reports submitted by the probation department and Dr. A. Minkowsky.   At the conclusion of the hearing and after the deputy district attorney had argued Laurence R. was not a fit subject to remain under the juvenile law, the court said it was concerned with the first and fifth criteria of Welfare and Institutions Code section 707, subdivision (c) ² —(1) the degree of criminal sophistication and (5) the circumstances and gravity of the crime.   The court started its comments to counsel by stating, “I suspect by your [deputy district attorney's] argument, that basically you're conceding [criteria] two, three, and four and I think appropriately so, ․”  The court then found Laurence fit under the first criterion concluding he did not manifest criminal sophistication in committing the offense.   Ample evidence supports this conclusion.

In his report, Dr. Minkowsky defined criminal sophistication “as the degree to which a person has moved into a criminally oriented lifestyle.”   Because Laurence's background was “scarcely delinquent ․ much less criminal” Minkowsky stated,

“During the current offense the defendant was the driver of a vehicle in a caravan.   As in earlier matters his involvement was modest, he played no ascendant role in the hostilities, and he reports that he was simply following the cars in front of him.   The author has seen no confirming or disconfirming evidence to support this contention, but it is not out of character with the defendant's personal make-up.   He is generally more acquiescent and passive than the reverse.   It is of interest that the subject was said to have exhorted Mr. Mizicko [the shooter] to get rid of the gun early in the evening.   If this is supported by witness testimony, an even greater argument can be made for a lack of criminal sophistication.”

Thus the seriousness and gravity of the offense—the fifth criterion—was the determinative issue for the trial court.   As to this criterion the court decided there were no extenuating or mitigating circumstances.   This legal conclusion is subject to our independent review.

It is unclear as to what the Legislature meant to include within the scope of “extenuating or mitigating circumstances” where the crime is as heinous as murder.   Every murder is reprehensible.  Section 707 reflects the legislative intent, however, that some minors over 16 years of age be treated under the juvenile court law even though they are murderers.   To effectuate this intent the Legislature authorized judges to determine what circumstances, if any, made perpetrators of some murders less culpable than others.

In this context, i.e., the attempt to distinguish among murderers, a further generalization is appropriate.   A murderer who actually kills is generally more culpable than one who is guilty of murder on a vicarious theory of guilt.   Here Laurence R.'s guilt was predicated on an aiding and abetting theory.   He did not own or possess the weapon used in the killing.   His involvement was limited to driving the car.   Although Laurence R. was admittedly part of the gang activity leading up to the killing, a reasonable inference is that he did not intend to kill anyone.   Thus the court should have found extenuating and mitigating circumstances as to the gravity of the offense.

The presence of extenuating and mitigating circumstances as well as the court's conclusion that Laurence R. is a fit subject for the juvenile law is fully supported by the report submitted by the probation department.   That report says in part:

“A major factor in the framework of 707 is the category of amenability.   Amenability is a more encompassing and nebulous issue than the gravity of the offense.   Is indeed this young man open to change and can he be treated given the amount of time in the Juvenile system?   If one were to agree with Dr. Minkowsky, clinical psychologist, we would view Laurence as highly amenable to treatment.   Dr. Minkowsky notes that in the course of the evaluation, there is nothing to suggest that Laurence is firmly antisocial or that he is belligerent.   To the contrary, Laurence's conflicts are of a highly socialized nature.   While the Probation Officer does question the lack of completeness of police reports received by Dr. Minkowsky, thereby showing Laurence in a decidedly favorable light, we do not disagree with the basic assessment and psychological dynamics presented.

“In essence, the Probation Officer views Laurence as a young man who was not functioning adequately at home and thus became involved in gang activity in the neighborhood․

“While the crime is of the gravest nature, it is not believed that Laurence intended to kill anyone.   Certainly, he intended to fight and that had become part of the gang ethic.   It is believed that he did not give thought to the consequences, and afterwards to the gravity of the acts.

“While this young man will undoubtedly require appropriate punishment and treatment, it is believed that such can be accomplished within the Juvenile system.   Given his relatively firm basis of values, it is felt that Laurence can be rehabilitated within the framework of the Juvenile system․”  (Emphasis added.)

Because the record establishes the court properly analyzed the relevant considerations before deciding Laurence R. was fit to remain within the juvenile court system we should affirm the order.   The order should also be affirmed when examined from a statutory perspective.

II

Section 707, subdivision (c) provides that following the presentation of relevant evidence, “․ the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria.”

Significantly the statute primarily requires the court to determine the minor's amenability to the facilities of the juvenile court and only secondarily the manner in which this determination must be made.   In performing the latter role the court may consider extenuating or mitigating circumstances.   The statute does not mandate the court find “extenuating or mitigating circumstances” in order to find amenability.

Even if there are no “extenuating or mitigating circumstances” as to the circumstances and gravity of the alleged murder, the statute does not prevent the court from finding the minor a fit subject to be dealt with under the juvenile court law.

Initially it is important to note that the majority's statement the court found that Laurence R. was not fit under each criteria of the statute (maj. opn. p. 216) is not supported by the record and is patently at odds with its quotation of what the trial court said.  (See maj. opn. p. 217.)   Admittedly the court found no “extenuating or mitigating circumstances” as to the gravity of the offense.   The court nonetheless found Laurence R. to be amenable to the juvenile court.   The majority not only ignores this latter finding of fitness but without analysis or discussion impliedly concludes the legal predicate to such a finding is a finding of extenuating or mitigating circumstances as to each listed criterion.   The majority's judicial surgery adding another element to the statute is contrary to both the text of the statute and the constitutional considerations which govern our interpretation of its meaning.

In addition to the portion of the statute quoted above, section 707 subdivision (c) also provides:

“A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefor recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria.   In making a finding of fitness, the court may consider extenuating or mitigating circumstances in evaluating each of the above criteria.”

Putting aside the somewhat awkward, repetitious phrasing of this paragraph it is apparent the Legislature intended that the court find fitness as to each of the listed criteria.   The Legislature did not say, however, this finding was dependent on the court also finding “extenuating or mitigating circumstances” as to each criterion.   The language of the statute plainly says the court may—not must—consider such circumstances.   The Legislature's deliberate choice of may instead of shall connotes a legislative intent that the trial court be permitted to consider such evidence and not mandate that it do so in every case.³  The reason for this is quite simple.   The Legislature was well aware there might be cases such as the one before us where the minor is a fit person to remain within the juvenile court system even though it was possible that there might not be extenuating circumstances as to a single criterion.   The Legislature did not say, however, the absence of such circumstances precluded amenability.   Had the Legislature intended to do so it would have been simple for such a statute to have been drafted.

In construing the statute we look to the words of the statute itself.  (See e.g. Selected Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)   The majority depart from this rule for no articulated reason.   The majority opinion sheds no light on why the majority substitutes “shall” for “may” in the statute.

“Shall” is particularly offensive here because it changes the mandatory but nonetheless rebuttable presumption of section 707 subdivision (c) (People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 174–178, 173 Cal.Rptr. 788) into a conclusive presumption.   Pursuant to the majority's interpretation of the statute, any time a minor 16 years of age or older commits a grave offense for which there are no extenuating circumstances the minor will be conclusively presumed to be an adult for purposes of the criminal law.   Had the Legislature wanted a conclusive presumption in such circumstances it would have so provided.   Well aware that the law is chary of conclusive presumptions in criminal cases (see People v. Roder (1983) 33 Cal.3d 491 and cases cited at pages 496–497, 189 Cal.Rptr. 501, 658 P.2d 1302), the Legislature enacted a statute providing for a rebuttable presumption.   Rejecting the same argument the majority accept here, Edsel P. v. Superior Court, supra, 165 Cal.App.3d 763, 211 Cal.Rptr. 869 which states, “If we were to accept this reasoning, [i.e. absent extenuating or mitigating circumstances as to the gravity of the offense the minor must be treated as an adult] ․ all fitness hearings involving a minor charged with any of the offenses enumerated in subdivision (b) would reach a foregone conclusion and thereby be deprived of purpose.   Such a result is impossible to reconcile with the language of section 707, subdivision (c), which clearly does not create a mandatory or irrebuttable presumption.  (Cf. People v. Roder (1983) 33 Cal.3d 491, 498 [189 Cal.Rptr. 501, 658 P.2d 1302].)”  (Id. at p. 777, 211 Cal.Rptr. 869.)

III

Based on the facts of this case and the language and purpose of the statute I would affirm the trial court's order.   I do so in spite of language in People v. Superior Court (Steven S.), supra, 119 Cal.App.3d 162, 173 Cal.Rptr. 788 which suggests a different result.

Steven S. said “No evidence of ‘extenuating or mitigating circumstances' having been produced to rebut the seriousness and gravity of the crime, the court was required, under this criterion alone, to make a finding of unfitness.”  (Id. at p. 187, 173 Cal.Rptr. 788.)   I do not interpret this sentence as mandating the result here.  Steven S. made no effort to interpret the statute.   A case does not stand for a proposition neither analyzed nor discussed.  (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38, 4 Cal.Rptr. 176, 351 P.2d 344.)   I believe all the appellate court in Steven S. did was to express its view that the multiple stabbings and robberies in that case were such as to indicate the minor was not a fit subject for the juvenile court law and the minor had not presented any evidence to the contrary.   The facts of that case are considerably different than the facts before us.   The facts in Steven S. justify the result reached by that court.   The facts here require a different result.

IV

The final difficulty I have in accepting the result reached by the majority in this case is the majority's willingness to encroach upon the legitimate exercise of trial court discretion.   Even though judicial resources must be used efficiently it should be clear there is no better use of judicial time than when a judge calls upon his or her experience and knowledge to see that justice is done.   This function—the exercise of judicial discretion to reach a just result—is central to being a judge.   In taking away that prerogative here in order to deprive Laurence R. of his right to be tried as a minor the majority also deprive this thoughtful and conscientious trial judge of an essential part of his judicial role.   Although it is not surprising when the executive and legislative branches of government limit judicial discretion it is indeed startling when it is self-inflicted.

I would have hoped that we as judges would understand that more is involved in this case than the mere filling in of blanks on a sheet of paper.   Respectfully, I have never seen great art painted by numbers.   I have a similar concern with the justice system when appellate courts judge trial court decisions on the basis of an omitted number.   Our review should turn on whether the court considered the facts and complied with the law to see that justice was done.   Here the trial judge did just that—he achieved justice in this case.   No more can—or should—be required.

FOOTNOTES

1.   Overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28, 33–34, 164 Cal.Rptr. 1, 609 P.2d 468.

2.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

3.   Section 15 provides “shall” is mandatory and “may” is permissive.

NARES, Associate Justice.

BENKE, J., concurs.