IN RE: LIONEL. (1976)

Lionel P., a minor, appeals from the order of the Superior Court of Los Angeles County, Juvenile Division, finding that he committed murder (Pen.Code, § 187), and declaring him a ward of the court. (Welf. & Inst.Code, §§ 602, 725 subd. (b).)

Sometime preceding February 18, 1974, Sandra B. was the alleged victim of a rape committed by the victim, Nathaniel Holmes. On the afternoon of that day appellant and friends met in a house near 110th and Compton Avenues in the City of Los Angeles and concluded they would talk to the victim at the hamburger stand in which he worked at the corner of 110th and Compton. A large group of boys assembled at the corner to watch. Appellant and a companion approached the victim, each pulled a gun, and each aimed it at him. Appellant's gun would not fire, but the gun of his associate did. The victim was shot about 7 to 9 times and died from the wounds inflicted.

Felton K., a witness who was going with appellant's sister, testified reluctantly that he had been at the scene and had heard the shots. Felton admitted he knew appellant, but did not identify appellant as the person who had used the non-firing gun. He gave no further information.

A police officer testified that two days after the shooting he had a recorded interview with Felton and although Felton had stated to him that another person was the wielder of the non-firing gun, Felton later stated appellant was the wielder of the non-firing gun. We have heard the complete tape of the recorded interview which was introduced into evidence. Appellant now contends the evidence is insufficient to support a finding that he was one of the murderers. (In re Eugene M. (1976) 55 Cal.App.3d 650, 127 Cal.Rptr. 851.)

When reviewing a judgment attacked for insufficiency of evidence, we are bound by the same rules which follow a conviction of an adult. We do not reweigh the evidence; all intendments are in favor of the judgment; the question of whether the evidence is sufficient is for the trier of fact; and if there is substantial evidence to support a finding, we must accept it. (in re Roderick P. (1972) 7 Cal.3d 801, 809, 103 Cal.Rptr. 425, 500 P.2d 1.)

Felton was in court and subject to cross-examination. The out-of-court statement was admissible to prove the truth of the charge that appellant was one of the two people who had killed the victim. (People v. Green (1971) 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998.) However, appellant argues the extrajudicial statement was too unreliable to be able to support the finding.¹ (In re Eugene M., supra, at p. 659, 127 Cal.Rptr. 851.)

Felton was interviewed two days after the murder. He was not under threat of arrest and was specifically told by the police that they knew he had not committed the murder. Appellant had been placed at the scene of the shooting by another witness. Felton admitted being at the scene of the shooting and that he was friendly with appellant's sister and demonstrated a reluctance to testify in detail. The physical evidence indicated all the expended shells were of the same caliber, and corroborated Feltons's out-of-court statement that appellant's gun had jammed and fired none of the bullets.

Unlike In re Eugene M., supra, there was at bench no heavy handed techniques of the type we condemned in In re Eugene M. nor was there any suggestion that the statement was the result of suggestions made by the police. Finally there is nothing in the record to suggest that the statement was made as a result of a threat to charge Felton with murder if he did not incriminate appellant. The out-of-court statement itself and the other evidence which fortified it were such that the trier of fact had ample reason to accept it as truthful.

Appellant asserts prejudicial error because the judge of juvenile court did not act on his motion for rehearing until almost three months following the filing of the transcript of the proceedings before the referee of the juvenile court. (See In re Edgar M. (1975) 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406.)

The record shows that the referee found the petition to be true on May 17, 1974. Appellant immediately petitioned for rehearing. On that same day appellant was committed to the Youth Authority for a period not to exceed 90 days pursuant to Welfare and Institutions Code section 1752.1. On May 21, 1974, the judge of the juvenile court approved the order committing appellant for observation. On June 21, 1974, the reporter's transcript of the hearing was lodged with the judge of the superior court. Appellant returned to court on August 16, 1974. On that date appellant's attorney was not present and the matter was continued until August 21, 1974. On August 21, 1974, the court made its disposition in appellant's case, and 15 days later, on September 5, 1974, the judge of the juvenile court by an affirmative action denied appellant's petition for rehearing. On October 3, 1974, appellant appealed from the decision finding the petition in which he was charged with murder to be true. This is the appeal now before us. More than nine months later and more than 14 months after appellant had petitioned for rehearing the Supreme Court of this state decided In re Edgar M., supra, 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406.

In In re Edgar M., supra, the court was concerned with reconciling the legislative intent in Welfare and Institutions Code section 558 and the constitutional limitation upon the powers of a referee. (Art. VI, § 22.) Accordingly the court reconstrued section 558 in such a manner as to make it constitutional. In determining the retroactive effect to be given to its decision the court at page 739, 122 Cal.Rptr. at page 583, 537 P.2d at page 415, stated:

‘Although the ruling shall apply to Edgar M. and to cases in which on the date of the filing of this opinion, the time to appeal has not yet expired or an appeal has been taken and not yet finally determined, the ruling shall not otherwise affect the validity of (1) orders made by a juvenile court judge prior to the filing of this opinion purporting to grant or deny an application for rehearing * * *.’

In In re Edgar M. the court was concerned with the practice whereby actions of the referees became final without any affirmative action by a juvenile court judge. At bench the record shows that the juvenile court judge did act affirmatively in denying the rehearing. At bench appellant has had the required mandatory review. His petition for rehearing was actually denied by the juvenile court judge and not by the combination of inaction and passage of time. (In re Edgar M., supra, at 730, 122 Cal.Rptr. 574, 537 P.2d 406.) Moreover, the denial before us occurred more than nine months before In re Edgar M. Although this factor is not necessarily controlling (see In re Damon C. (1976) 16 Cal.3d 493, 128 Cal.Rptr. 172, 546 P.2d 676) there is nothing to indicate the court did not review all of the documents in denying appellant's motion for rehearing. Nothing in the record indicates appellant did not have a judicial review of the type contemplated by In re Edgar M., and thus to reverse the order denying the rehearing would result in the very thing that the court in In re Edgar M. took pains to state it did not desire. Appellant had his rehearing acted upon by the juvenile court judge and as we read subdivision (1) the retroactive effect of In re Edgar M. does not apply.

The order appealed from is affirmed.

I dissent.

This cause presents still another instance of shoddy and sloppy proof of fact coming out of juvenile court proceedings. (In re Eugene M., 55 Cal.App.3d 650, 127 Cal.Rptr. 851.)

Lionel P. (and four others, three juvenile, one adult) was charged with juvenile delinquency in that he murdered Nathan Holmes on 18 February 1974. Competent evidence established that Holmes was shot and killed at the hamburger stand where he worked by one Michael Durrough. The only direct evidence linking Lionel P. to the murder was given by Bobby McMiller, who testified that Lionel P. was one of a group of six or seven persons, including Durrough and Wayne R., who assembled in a parking lot and went to the hamburger stand immediately before the shooting. Hearsay evidence introduced against other juveniles suggested that the group in the parking lot were members of a gang named the Bounty Hunters and that members of the gang believed Holmes had raped a girl.

As proof that Lionel P. murdered Holmes the prosecution relied on an oral statement by Felton Kiles, age 14, a witness to the shooting. Kiles told his story four times:

(1) 19 February 1974. In a written statement to the police he said he saw Durrough and Wayne R. with guns at the hamburger stand. Durrough did the shooting, and Wayne R. attempted to fire a gun that would not shoot.

(2) 20 February 1974. At the police station, in a tape-recorded interrogation that started at 9 p. m. and continued for well over an hour, Kiles first repeated his story that Durrough did the shooting and Wayne R. attempted to fire a gun that would not shoot. Halfway through the interrogation, the interrogating officers told Kiles he was not telling the truth, asked, ‘Do you want to involve yourself in this murder and go to jail for it,’ and repeatedly suggested (seven times) that Lionel P. had had a gun. Kiles then changed his story and said it was Lionel P., not Wayne R., who attempted to fire the gun that would not shoot. He also said his girl friend was Lionel P.'s sister. When the police summarized his statement and asked if that was the way it happened, Kiles replied, ‘Yeah, anything you say.’

(3) 5 March 1974. At the preliminary hearing Kiles, under oath, testified he hadn't seen anybody with a gun. When he talked to the police he had been scared and in a mood to say anything.

(4) 20 March 1974. At the hearing in juvenile court Kiles, again under oath, testified only that he saw boys in a parking lot, and afterwards, while walking around with McMiller, he heard shots from the direction of the hamburger stand.

Because there was no competent evidence to show that Lionel P. was a member of the Bounty Hunters or that Holmes' murder had been planned in the parking lot, the prosecution correctly concluded it must prove Lionel P.'s active participation in the shooting to support a finding of murder. To prove Lionel P.'s active participation in the shooting, the prosecution selected from four accounts by Kiles (two under oath, two not under oath) one account that presented events as the prosecution conceived them to have happened and used that account as sole proof of Lionel P.'s murder of Holmes. Proof thus consisted of a single accusation, classified as hearsay, suggested by the police, given under pressure, repudiated by the accuser, and uncorroborated by other evidence. Kiles first said that Wayne R. used the misfiring gun, then that Lionel P. used the gun, then that he hadn't seen anybody with a gun, and in his final testimony he said nothing at all about a gun. The prosecution's arbitrary selection of one of these accounts is especially difficult to credit, because the one witness who gave direct evidence, Bobby McMiller, testified he saw Wayne R. (not Lionel P.) fleeing the scene of the shooting with gun in hand.

Under other charges, other theories of proof, other evidence, Lionel P. might have been found guilty of conspiring to murder Holmes. But such was neither the charge nor the proof, and at the conclusion of the hearing the trial judge specifically rejected a finding of conspiracy. We are left with a finding of murder, more accurately aiding and abetting of murder, based entirely upon the supposed use of a gun by Lionel P., a supposition supported only by extrajudicial accusation suggested by the police and later disavowed by the accuser.

In our preoccupation with new rules of evidence designed to serve extraneous policies rather than extract truth and reality from fact, we run the danger of forgetting that the basic purpose of all evidentiary rules is to ensure reliable proof of fact. The danger of accepting out-of-court hearsay accusation as sole proof of fact was recognized as long ago as 1603 in the trial of Sir Walter Raleigh (5 Wigmore on Evidence (3d ed.), § 1364), and is exemplified in the present record, which is devoid of evidence of probative value to prove Lionel P. attempted to shoot Holmes at the hamburger stand. It strains at the gnat of Miranda rite but swallows whole the camel of hearsay-accusation. At bench is no nickel-and-dime juvenile caper of stolen hubcaps or theft from newsracks, but one of murder, our most serious and abhorrent crime. Even under the loose procedures of juvenile law, the proof necessary to support a finding of murder is grossly inadequate.

I would reverse the adjudication for want of sufficient evidence to sustain proof of conviction beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.)

FOOTNOTES

1.  We have noted the analysis of Felton's admission made by our dissenting brother. The trier of fact, however, had the advantage of seeing and hearing Felton testify; he knew what Felton had said at the preliminary hearing; and he heard his long tape interview. In our opinion the inherent probabilities of what is expressly and implicitly made clear from Felton's testimony at the preliminary hearing, on the tape, and at the trial show infallibly that Felton saw the actual shooting, knew more than his admission with respect to the participation of Lionel P., and that the admission is in fact the truth. Concededly, a 14-year old is at a disadvantage when interrogated by two policemen at a police station but apperehension or fear on the part of Felton, if any, at the time of and during the recorded interview was inspired not by the conduct of the police interrogators as much as by consequences that could be suffered from punitive action of the gang that originated and completed the murder. The tape suggests neither collusion or duress. It was a fair interrogation.

ROTH, Presiding Justice.

COMPTON, J., concurs.