People v. Lavandera

SHINN, P. J.

George Lavandera was convicted of petty theft in the Justice Court of San Jose Township, Los Angeles County, and sentenced to the county jail. On his 18th birthday, he escaped from the Los Angeles County Wayside Honor Rancho, a facility of the county jail. He was later apprehended, tried, convicted and sentenced to San Quentin for the ■felony of escape. He appeals from the judgment and an order denying his motion for a new trial. There is no dispute as to the facts, the sole issue being the legality of the confinement from which defendant liberated himself. It is not questioned by the People that defendant was under 18 years at the time the offense of petty theft occurred. Since the justice court did not refer his case to the juvenile court, defendant contends that his conviction and confinement were void and the escape lawful. No appeal was taken from the conviction of petty theft. The fact the defendant was under 18 at the time of the offense was first brought out in his trial for escape.

In a brief which evidences great industry and extensive research upon the part of his counsel, defendant relies on what he claims to be a clear and absolute legislative command that no court has jurisdiction to try a person under 18 with

[433]

out first referring the matter to the juvenile court. This contention is based on section 825 of the Welfare and Institutions Code which reads: “No court shall have jurisdiction to try the case of any person under the age of eighteen years at the time of the alleged commission of a public offense or crime unless the. matter has first been submitted to the juvenile court by petition as provided in Article 7 of this chapter, or by certificate of any other court as provided in this article, and said juvenile court has made an order therein directing that such person be prosecuted under the general law.” A reading of this section alone might lead to a conclusion that even though the trial court after taking evidence had determined a defendant to be 18 or over there could be no valid trial without a referral to the juvenile court if defendant was actually under 18. It is necessary, however, to look beyond section 825 and read it with the following section as an entire enactment. Section 826 provides that whenever it is suggested or appears to the trial judge that the defendant was under 18, “he shall examine into the age of such person, and if, from such examination, it appears to his satisfaction that such person was at the date the offense is alleged to have been committed under the age of eighteen years, he shall forthwith certify [the matter] to the juvenile court. ...” Section 826 governs in the matter of referral to the juvenile court; section 825 to cases that are or should have been referred. The court having jurisdiction over the crime and person may proceed unless after the court’s investigation it appears to the satisfaction of the trial judge that the defendant was under 18 at the date of the offense. The fact as to age must at this preliminary stage of the proceeding be determined in order that the case may proceed in accordance with the finding of the trial judge. If the finding is in error jurisdiction is not for that reason defeated.