People of the Territory of Guam v. William E. Kingsbury ( 1981 )

SCHROEDER, Circuit Judge:

This is an appeal from a decision of the District Court of Guam, Appellate Division, affirming a Guam juvenile court decision certifying the appellant, William Kings-bury, to stand trial as an adult. Because Kingsbury was seventeen years old at the time of the alleged crime, he was originally brought before the juvenile court in Guam. Guam Code Civ.Proc. §§ 251, 252. The juvenile court, after a hearing on Kingsbury’s amenability to treatment as a juvenile ruled, pursuant to Guam Code Civ. Proc. § 255, that the appellant should stand trial as an adult. Appellant challenges that determination on the ground that the juvenile court’s failure to conduct a full investigation into his motive constituted a denial of due process.

The appellee asserts, first, that this Court lacks jurisdiction of the appeal because it is an interlocutory decision of the District Court of Guam, and, second, that the juvenile court was correct on the merits. We hold that we have jurisdiction on the appeal from the district court’s decision, and we affirm its holding that the appellant should stand trial as an adult.

The threshold question is one of jurisdiction. While we conclude that some review by the district court at this stage was clearly authorized, the question of this Court’s jurisdiction to review the district court under 28 U.S.C. § 1291 is more complex.

The matter was originally brought to the district court by the appellant on March 6, 1979, as an appeal from the certification order of the juvenile court. The jurisdictional basis for that appeal lies in Guam Code Civ.Proc. § 272 which provides that a party aggrieved by an order of the juvenile court may file a notice of appeal with the district court.¹

On March 15,1979, appellant was indicted in the superior court of Guam. Appellant sought review of the denial of his motion to dismiss the indictment. He petitioned the district court for a writ of mandate under Guam Crim.Proc. Code § 65.17.² The district court reviewed the juvenile court proceedings and decided there had been no error.

Pursuant to 28 U.S.C. § 1291, this Court has jurisdiction over appeals from final orders of the District Court of Guam. In Corn v. Guam Coral Co., 318 F.2d 622 (9th Cir. 1963), we held that appellate jurisdiction extends to orders of the district court sitting in both its capacity as a federal court and in its capacity as an appellate court for the Guam territorial courts. Because our jurisdiction is limited to final orders we must consider whether the decision of the district court in this case is a final decision as to the propriety of the appellant’s trial as an adult.

We view the finality standard to be applied as analogous to the standard applied by the United States Supreme Court to test the finality of state court judgments pursuant to 28 U.S.C. § 1257. Under the standards traditionally applied to section 1257, the fact that a decision is a final decision of the highest state court does not necessarily mean that the decision is final for section 1257 purposes. Thus, the Supreme Court has generally refused to review a state appellate decision where further state court proceedings are pending. See, e. g., California Nat'l. Bank v. Stateler, 171 U.S. 447, 449, 19 S.Ct. 6, 7, 43 L.Ed. 233 (1898).

The Supreme Court has also held, however, that such decisions are final for section 1257 purposes where the claim on appeal has been finally litigated in a state appellate court and may not be raised on appeal again after the end of subsequent state proceedings. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482, 95 S.Ct. 1029, 1039, 43 L.Ed.2d 328 (1975). Appealability here therefore turns on whether Guam law requires a juvenile to question the propriety of standing trial as an adult before the trial takes place and precludes him from raising the issue on post-conviction appeal. The relevant Guam statutes and precedent do not provide a clear answer to this question. Guidance can be found, however, by examining judicial interpretations of similar statutes in other jurisdictions.

There is no unanimity among state courts as to the propriety of pretrial review when a juvenile is ordered to be tried as an adult. The IJA-ABA Juvenile Justice Standards Project advocates pretrial review. See Institute of Judicial Administration and American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Transfer Between Courts § 2.4 (Tent. Draft 1977). Such review is permitted in at least fourteen jurisdictions.³

When we examine the decisions in other jurisdictions, we find that those having broad statutory language similar to Guam Code Civ.Proc. § 272 have been interpreted as permitting a juvenile to appeal a certification order immediately after the order’s entry.⁴ Further, in the jurisdictions allowing pretrial review, the statutes, like that of Guam, require review, not of the adult court indictment but of the juvenile court certification order.⁵ It is overwhelmingly held by courts addressing the question, that such review is the only, and hence the final review available.⁶ We therefore hold that the district court properly had jurisdiction under section 272 to review the certification decision.⁷ Under the standard suggested by Cox Broadcasting, we have jurisdiction over this appeal from the District Court of Guam.⁸

On the merits, the appellant’s principal claim is that the failure of the juvenile court to make an investigation into motive was a denial of due process. In the context of juvenile certification procedures, due process requires the rights to counsel, to adequate notice and to a statement of reasons at a hearing to determine whether a juvenile is to be tried as an adult. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Harris v. Procunier, 498 F.2d 576 (9th Cir.) (en banc), cert. denied, 419 U.S. 970, 95 S.Ct. 235, 42 L.Ed.2d 186 (1974). Those requirements were met in this case. A day-long hearing was held, attended by appellant, his mother and his counsel. A written decision was rendered and there is no claim of denial of access to records.

Appellant challenges only the failure to investigate into the reason behind the murder. The specific factors to be considered and the weight to be given to each, however, are discretionary. A list of factors is contained in a policy memorandum appended to Kent v. U. S., supra, 383 U.S. at 565, 86 S.Ct. at 1059, and quoted by the district court in this case. These factors include: the seriousness of the crime; whether it was violent or premeditated; whether the crime resulted in personal injury; the prosecutive merit of the complaint; the sophistication of the juvenile; prior record and contacts with the youth authority; and the prospects for rehabilitation. It is clear that the juvenile court took these considerations into account. While investigation into motive may be advisable in some cases, the serious nature of the crime, the premeditation and sophistication involved in this murder, and the fact that appellant would be subject to juvenile jurisdiction for only two months justified certification in this case.

Affirmed.

1 . Guam Code Civ. Proc., Title V, Juvenile Court, Chapter I, General Provisions, Section 272 provides in part:

An interested party aggrieved by order or decree of the court may apply to the District Court of Guam for the allowance of an appeal, and the said court may allow such appeal whenever in the opinion of said court the order or decree ought to be reviewed.

2 . The petition for writ was consolidated with the section 272 appeal. Guam Crim.Proc. Code, Chapter 65, Pleadings and Motions, Section 65.15 provided in part:

Any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the Judge. The following shall be raised prior to trial: (a) Defenses and objections based on defects in the institution of the prosecution;

Section 65.17 provided:

(a) Prior to trial, a party may apply for review of an adverse ruling made pursuant to subsections (a) through (c) of Section 65.15 by means of a petition for writ of mandate or prohibition unless the court, prior to the time review is sought, has dismissed the criminal action, (b) A defendant may seek review of any ruling by the trial court pursuant to subsection (c) of Section 65.15 on appeal from conviction whether or not he has previously sought or obtained review of such ruling and notwithstanding the fact that the judgment of conviction is based upon a plea of guilty or nolo contendere.

Although the district court’s opinion stated that it was treating the matter as an “interlocutory appeal pursuant to § 65.17 of the Guam Criminal Procedure Code”, that section provided only for review by means of a writ. See People of Territory of Guam v. District Court of Guam, 641 F.2d 816 (9th Cir. 1981). The section was repealed in December of 1980. Our holding today is that the district court’s appellate jurisdiction was based upon Guam Code Civ.Proc. § 272, rather than Guam Code Crim.Proc § 65.17.

3 . See State v. Trail, 255 S.E.2d 900, 902 (W.Va. 1979); State, In Interest of Atcheson, 575 P.2d 181, 183 (Utah 1978); Boyd v. State, 341 So.2d 680, 683 (Ala. 1976); Interest of Doe, 98 Idaho 40, 557 P.2d 634, 636 (1976); In re Welfare of I.Q.S., 309 Minn. 78, 244 N.W.2d 30, 35 (1976); State v. Evangelista, 134 N.J.Super. 64, 338 A.2d 224, 227 (1975); In re Doe, 86 N.M. 37, 519 P.2d 133, 134 (1974); Aye v. State, 17 Md.App. 32, 299 A.2d 513, 517 (1973); P.H. v. State, 504 P.2d 837, 839 n. 1 (Alaska 1972); Graham v. Ridge, 107 Ariz. 387, 489 P.2d 24, 25 (1971); Templeton v. State, 202 Kansas 89, 447 P.2d 158, 161 (1968); In re Doe I, 50 Haw. 537, 444 P.2d 459 (1968); In re Houston, 221 Tenn. 528, 428 S.W.2d 303 (1968); State v. Little, 241 Or. 557, 407 P.2d 627, 628 (1965), cert. denied, 385 U.S. 902, 87 S.Ct. 208, 17 L.Ed.2d 133 (1966). In a number of states which do not allow pretrial appeal, the statutory appeal provisions differ from those in Guam. See D.H. v. People, 192 Colo. 542, 561 P.2d 5, 6 (1977) (transfer order not appealable because does not meet Colorado definition of finality); In re Becker, 39 Ohio St.2d 84, 314 N.E.2d 158, 159-60 (1974) (juvenile appeal statute permits appeal only of delinquency finding); Commonwealth v. Croft, 445 Pa. 579, 285 A.2d 118 (Pa. 1971) (certification order not appealable under statute which permits rehearing after order “committing” or “placing” child); People v. Jiles, 43 Ill.2d 145, 251 N.E.2d 529, 530 (1969) (court refused to exercise rule-making power to permit review of transfer order). But see In re 479 S.W.2d 433, 434 (Mo. 1972); Kent v. Reid, 316 F.2d 331, 334 (D.C.Cir.1963). The Hawaii Supreme Court in In re Doe, 50 Haw. 537, 444 P.2d 459, 460 (1968) argues persuasively that the Kent decision should be limited to its facts. Moreover, since the Kent decision, the District of Columbia has changed its juvenile statute to allow immediate appeal. See Choco v. United States, 383 A.2d 333 (D.C.App.1978).

4 . Boyd v. State, 341 So.2d 680, 683 (Ala. 1976); In re Doe, 86 N.M. 37, 519 P.2d 133, 134 (1974); In re Houston, 221 Tenn. 528, 428 S.W.2d 303 (1968). See Interest of Doe, 98 Idaho 40, 557 P.2d 634, 636 (1976). But see Interest of Clay, 246 N.W.2d 263, 265 (Iowa 1976).

5 . See cases cited in first sentence of footnote 3 supra.

6 . See State v. Stanley, 60 Haw. 527, 592 P.2d 422, 425-26 (1979), cert. denied, 444 U.S. 871, 100 S.Ct. 149, 62 L.Ed.2d 97 (1979); State v. Harwood, 98 Idaho 793, 572 P.2d 1228, 1230 (1977); People v. Chi Ko Wong, 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976, 983-85 (1976), overruled on another ground sub nom. People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (Sup.Ct.1980) (en banc); Aye v. State, 17 Md.App. 32, 299 A.2d 513 (1973); State v. Briggs, 245 Or. 503, 420 P.2d 71, 73 (1966); State v. Loray, 46 N.J. 179, 190, 215 A.2d 539, 545 (1965).

7 . We do not agree with the Territory of Guam’s argument that section 272 does not permit appeals from certification orders. The Territory relies on the fact that the section provides that if the order appealed from is affirmed, the district court should remand to the jurisdiction of the juvenile court. The Territory argues that if the legislature contemplated appeals from certification orders, the remand on affirmance would be to the Guam superior court rather than to the juvenile court.

The certification order, however, is an action of the juvenile court. It is therefore appropriate to remand the action to the juvenile court. Where a certification order has been affirmed, section 272 requires the juvenile court to reassume “jurisdiction ... in the same manner as if no appeal had been taken.” The jurisdiction over the juvenile is immediately transferred upon remand from the juvenile court to the Guam superior court.

8 . We do not reach the question whether a juvenile may attack a certification order on post-conviction appeal if he fails to seek appellate review of the certification order prior to trial as an adult. We also do not decide whether a juvenile may challenge a certification order on post-conviction appeal if the District Court of Guam refuses to exercise its discretionary appellate authority under section 272. Appeal to this Court from the denial of a motion to dismiss the criminal indictment is not proper. Guam v. Lefever, 454 F.2d 270 (9th Cir. 1972).