Thornton v. C.E.M.

[77]Opinion

PIERCE, P. J. C.E.M. appeals from an order of the juvenile court entered June 26, 1969, declaring him the ward of the juvenile court and committing him to the California Youth Authority. Count I of the petition filed against C.E.M. was for assault with a deadly weapon with intent to kill. The juvenile court sustained the charge of a lesser offense, assault with a deadly weapon. Count II for willful and malicious discharge of a firearm at an inhabited dwelling house was dismissed.

The following two contentions will be considered on appeal: 1. Denial of appellant’s constitutional right to a trial by jury; 2. Denial of his constitutional rights to equal protection and to due process by virtue of the use of the “preponderance of the evidence” standard rather than the “beyond a reasonable doubt” standard of proof now required in juvenile court proceedings. (Re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 378, 90 S.Ct. 1068].)

The first contention is without merit and will be summarily treated. Appellant’s second contention, which involves the retroactivity of the rules enunciated in Winship, must be sustained.

Facts

At approximately 9:30 in the evening of May 27, 1969, several shots were fired in the bleacher area of Norte Del Rio High School in North Sacramento, narrowly missing persons congregated there. Immediately afterward a group of young Negro boys were seen running from the area from which the shots had been fired. They left the school grounds and ran down Arcade Boulevard. At about the same time 14-year-old Darrell Haney was doing the dishes in his family’s kitchen in their home at 471 Arcade Boulevard. He observed a large group of young blacks running down Arcade Boulevard followed by a smaller group. Haney was visible to passersby in the street. One of the boys in the second group paused, crouched and aimed what appeared to be a rifle at Haney. Shots were fired, one of which struck Haney. The shooting was witnessed by a Norte Del Rio student named David Holmes and by Mrs. Dolores Journey. Holmes testified that at the time of the shooting it was dark but there were street lights on Arcade Boulevard, and he had been able to identify the boy firing the shot as appellant, whom he knew as a fellow classmate at Norte Del Rio. Holmes initially identified the culprit as Clyde M., appellant’s brother, but later corrected the identification to indicate that he had meant appellant. Appellant was identified again by Holmes at both the pretrial lineup and at the juvenile proceedings. Holmes, Mrs. Journey and several other witnesses