IN RE: CLIFFORD C.

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Court of Appeal, First District, Division 2, California.

IN RE: CLIFFORD C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. CLIFFORD C., Defendant and Appellant.

No. A071973.

Decided: August 09, 1996

Cynthia A. Thomas, Executive Director, Sacramento, Stephanie Clarke, San Francisco, Staff Attorney, First District Appellate Project, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Ronald E. Niver, Deputy Attorney General, for Plaintiff and Respondent.

Clifford C., a minor, appeals from a dispositional order of the juvenile court committing him to the California Youth Authority (hereafter CYA).   He contends the court's dispositional rehearing, following a less restrictive dispositional order made by a juvenile court referee, was improper because the referee was acting as a temporary judge whose order was not subject to rehearing.   He also claims the rehearing violated his constitutional rights to due process and against double jeopardy.   We conclude the court lacked jurisdiction to order a rehearing and, therefore, reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 27, 1995, Clifford admitted two counts of a petition filed pursuant to Welfare and Institutions Code section 602.1  Both admitted counts involved carjacking (Pen.Code, § 214), one count included a weapon enhancement (Pen.Code, § 12022, subd. (b)) and the other included a firearm enhancement (Pen.Code, § 12022.5).   On May 9, 1995, Clifford approached a woman in a parking garage, brandished a knife, and demanded the woman's car keys and backpack.   He then stole her car and drove away.   On June 6, 1996, Clifford approached a man pumping gas at a self-service gas station, pointed a gun at the man, demanded the car keys and drove off in the car.

Clifford surrendered on June 18, 1995 and was detained in juvenile hall.   On June 27, 1995, he appeared before a juvenile court referee, waived his right to trial and entered his admissions.   The case was continued to July 12, 1995 for disposition.   At that time, a different juvenile court referee, sitting pro-tem, referred the matter for a report from the “Guidance Clinic.”   Clifford's counsel indicated she did not wish to provide a waiver for the pro-tem referee to proceed with the disposition.   The dispositional hearing occurred on August 2, 1995, before the juvenile court referee that had presided at the time Clifford entered his admissions.   The referee was in receipt of the probation officer's recommendation for a CYA commitment and the Guidance Clinic's recommendation of a camp program.   After hearing from Clifford, his minister, and his parents, the referee placed the minor in the camp program with a suspended CYA commitment.

On August 15, 1995, the deputy district attorney wrote a letter to the court opposing the disposition and requesting the court order a rehearing pursuant to Welfare and Institutions Code section 253.2  There is no indication on the letter or in the record that a copy was sent to Clifford or his attorney.   On August 22, 1995, the court issued an order, that was served by mail on August 23, setting a rehearing on disposition for August 29, 1995.   At the request of Clifford's counsel, the rehearing was continued to September 19, 1995.   At the conclusion of the rehearing, the judge imposed a CYA commitment.   This appeal followed.

II. DISCUSSION

We must first decide whether the sentencing decision of the juvenile court referee was appropriately subject to a section 253 3 rehearing by the court.   This case presents an apparent conflict between two provisions of the Code regarding the finality of referee orders and time limitations for rehearings by the juvenile court.   Section 250, read in conjunction with section 252, provides for the finality of referee orders 10 calendar days after the date of service of the order.  Section 253 allows a juvenile court, on its own motion, to order a rehearing anytime within 20 judicial days of the date of the hearing before the referee.   In the present case, the rehearing was ordered by the juvenile court, on its own motion, within the 20 day period allowed by section 253 but after the 10 day period prescribed by section 250.   The constitutional issues raised by Clifford need be addressed only if this inquiry results in a determination that the rehearing was properly ordered.

A.

Juvenile court referees are an integral part of our juvenile court system.   They are a creation of statute with their authority and responsibilities set forth in the Welfare and Institutions Code. (See In re Ian J. (1994) 22 Cal.App.4th 833, 836, 27 Cal.Rptr.2d 728.)   Section 247 provides for appointment of juvenile court referees as follows:  “The judge of the juvenile court, ․ may appoint one or more referees to serve on a full-time or part-time basis.   A referee shall serve at the pleasure of the appointing judge, and unless the appointing judge makes his order terminating the appointment of a referee, such referee shall continue to serve as such until the appointment of [her] successor.”   Unless otherwise provided by statute, referees are constitutionally limited to “subordinate judicial duties” under article VI, section 22 of the California Constitution.  (See In re Edgar M. (1975) 14 Cal.3d 727, 732, 122 Cal.Rptr. 574, 537 P.2d 406.)   There are specific statutory provisions that authorize juvenile court referees to perform non-subordinate judicial functions.   For example, “[a] referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court, ․” (§ 248, emphasis added.)   There are two expressed exceptions to the general judicial powers vested in juvenile court referees.   First, “a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge․”  (§ 248.)   Second, where there is no such stipulation, “No order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court.” (§ 249.)   Thus, referees can perform non-subordinate judicial duties, absent a stipulation of the parties, as long as their decisions are approved by a juvenile court judge.  (See In re Courtney H. (1995) 38 Cal.App.4th 1221, 1225, 45 Cal.Rptr.2d 560.)

The statutory scheme provides the minor an opportunity to seek a rehearing by a juvenile court judge of a decision made by a referee as long as an application for rehearing is filed within 10 calendar days after service of the referee's written order and findings. (§ 252.)   In addition, as previously noted, a juvenile court judge may independently order a rehearing of a matter heard by a referee if the order for rehearing issues within 20 judicial days of the original hearing. (§ 253.)   Rehearings ordered pursuant to either section are “before a judge of the juvenile court and shall be conducted de novo.” (§ 254.)

The time frames set for rehearing in sections 252 and 253 4 must be considered in conjunction with other provisions governing the finality of orders issued by a juvenile court referee.   Section 250 provides “all orders of a referee other than those specified in Section 249 5 shall become immediately effective, subject also to the right of review as hereinafter provided, and shall continue in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court.   In a case in which an order of a referee becomes effective without approval of a judge of the juvenile court, it becomes final on the expiration of the time allowed by Section 252 for application for rehearing, if application therefor is not made within such time and if the judge of the juvenile court has not within such time ordered a rehearing pursuant to Section 253.”  (Emphasis added.) 6

By the clear language of section 250, even if a referee's order has not been approved by the juvenile court judge, it becomes final 10 days after service unless, within that 10 day period, the judge has ordered a rehearing pursuant to section 253.   This interpretation of the statute is supported by rule 1417(c), which became effective on January 1, 1990 and provides:  “An order of a referee shall become final 10 calendar days after service of a copy of the order and findings under rule 1416, if an application for rehearing has not been made within that time or if the judge of the juvenile court has not within the 10 days ordered a rehearing on the judge's own motion under rule 1418.” 7  (See In re Roderick U., supra, 14 Cal.App.4th at p. 1553, 18 Cal.Rptr.2d 555, citing rule 1417 and concluding a referee's order is final after the expiration of 10 days from service.)   It would be illogical to assume there was any legislative intent to provide a longer period of time in a case, such as the present one, where the judge had already approved the referee's order.

 The question whether the statutory provision rendering the referee's order “final” 10 days after service “deprives a juvenile court of jurisdiction to order a rehearing on its own motion following the end of that period” has been previously addressed.  (In re Henley (1970) 9 Cal.App.3d 924, 88 Cal.Rptr. 458.)   In Henley, the Court of Appeal held no rehearing can be ordered after the expiration of the 10 days.8  “As we perceive this provision ․ [9 ] the order of the referee becomes final in the sense that it attains the full status and dignity of a judgment rendered and entered by the juvenile court itself and thereafter can be modified or set aside only by those means normally available to modify or set aside a judgment of the court,․  Under this construction of the statute, a juvenile court has authority to order a rehearing [under section 253][10 ] only so long as the order of the referee occupies an inferior status, that is, only before it becomes final.   After expiration of the statutory period, an order for rehearing is beyond the jurisdiction of the juvenile court and, therefore, void.”  (Id. at p. 928, 88 Cal.Rptr. 458.)

 Respondent argues the apparent irreconcilable conflict between the time periods specified in sections 250 and 253 can be resolved by reading the language “within such time,” contained in section 250 to mean 20 days.   However, the statutory language of section 250 is clear on its face.   It provides for finality of a referee's order after 10 days from service, “if the judge of the juvenile court has not within such time ordered a rehearing pursuant to Section 253.”   The referent of the term “within such time” is clearly the 10 days specified earlier in the same sentence.   Any other reading of this language would amount to a judicially created amendment.   The Legislature has had an opportunity to amend section 250 and has not done so.  Henley, which was decided in 1970, clearly prohibited a juvenile court from ordering a rehearing, on its own motion, when the 10 day period had expired.  Sections 250, 252 and 253 were amended after Henley was decided.  Section 250 was enacted in 1976 to replace former section 556 and was amended in 1980.  (Added by Stats.1976, ch. 1068, p. 4751, sec. 4. Amended by Stats.1980, ch. 532, p. 1484, sec. 2.)   Despite the decision in Henley, the Legislature did not use either of these occasions to change the statutory language concerning the finality of a referee's order.   Respondent argues the addition of the language in section 253 giving the juvenile court 20 days after the hearing before the referee was intended to overrule Henley.11  There is no support for this contention.   Indeed, it is contradicted by the fact that Henley involved an interpretation of the predecessor statute to section 250, which has not been amended, not the predecessor statute to section 253, which was amended.  “When a statute has been construed by the courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statue.”  (People v. Bouzas (1991) 53 Cal.3d 467, 475, 279 Cal.Rptr. 847, 807 P.2d 1076.)   An intent to “ ‘legislate by implication,’ ” as respondent argues, “ ‘is not to be presumed.’ ”  (In re Christian (1994) 7 Cal.4th 768, 776, 30 Cal.Rptr.2d 33, 872 P.2d 574;  People v. Williams (1995) 40 Cal.App.4th 446, 458, 46 Cal.Rptr.2d 730.)

In the present case, appellant's dispositional hearing before the referee occurred on August 2, 1995.   The referee's findings and orders were approved by the juvenile court judge and served on the parties in compliance with sections 248 and 249 on August 4th.   Eighteen days later, on August 22, 1995, the juvenile court judge issued an order setting a rehearing.   The delay in ordering the rehearing clearly exceeded the statutory 10 day limitation.   Since the 10 day provision of section 250 is jurisdictional, the juvenile court was thereafter powerless to order a rehearing.  (See In re Dennis B., supra, 18 Cal.3d at p. 690, 135 Cal.Rptr. 82, 557 P.2d 514.)   Accordingly, a referee's order becomes “conclusive and binding upon the parties if, 10 calendar days after service of the order, no one applies for rehearing or rehearing is not otherwise ordered.”  (In re Roderick U., supra, 14 Cal.App.4th at p. 1553, 18 Cal.Rptr.2d 555.)   The orders rendered as a result of the de novo hearing by the juvenile court judge held on August 22, 1995 are, therefore, void.  (In re Mark L. (1983) 34 Cal.3d 171, 179–180, 193 Cal.Rptr. 165, 666 P.2d 22;  In re Henley, supra, 9 Cal.App.3d at p. 928, 88 Cal.Rptr. 458.)

Since the juvenile court lacked jurisdiction to order or hold a rehearing, we need not address the constitutional issues raised by appellant or the argument asserting the referee was actually sitting as a temporary judge.  (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230, 45 Cal.Rptr.2d 207, 902 P.2d 225.) 12

III. DISPOSITION

The dispositional order of the juvenile court is vacated, and the order of the juvenile court referee is reinstated.

FOOTNOTES

FOOTNOTE.  

1.   Welfare and Institutions Code section 602 states:  “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime ․ is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”

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

3.   Section 253 provides:  “A judge of the juvenile court may, on his own motion made within 20 judicial days of the hearing before a referee, order a rehearing of any matter heard before a referee.”

4.   The 10 day period specified in section 252 refers to calendar days.  (See In re Dennis B. (1976) 18 Cal.3d 687, 690, 135 Cal.Rptr. 82, 557 P.2d 514;  In re Michael C. (1979) 98 Cal.App.3d 117, 121, 159 Cal.Rptr. 306;  California Rules of Court, rule 1417(c).)   All further references to rules are to the California Rules of Court.

5.   In the present case the referee's order removing Clifford from the home was approved by the juvenile court judge, in conformance with section 249, within two days.

6.   Section 250 also provides:  “Where a referee sits as a temporary judge, his or her orders become final in the same manner as orders made by a judge.”   Appellant argues the referee presiding in the present case was sitting as a temporary judge by virtue of “tantamount stipulation” of the parties.   If that were the case, no rehearing by the juvenile court judge would be allowed.  (See In re Ian J., supra, 22 Cal.App.4th at p. 837, 27 Cal.Rptr.2d 728;  In re Roderick U. (1993) 14 Cal.App.4th 1543, 1551, 18 Cal.Rptr.2d 555.)

7.   The relevant portion of rule 1416 requires the referee to serve written findings and orders, along with an explanation of the right to seek review by the court, on the minor, parent or guardian and minor's counsel.   The relevant portion of rule 1418 is a restatement of sections 252 and 253.

8.   The same jurisdictional rule applies to situations where a minor petitions for rehearing pursuant to section 252.   The juvenile court is without authority to order a rehearing if the 10 day period has expired.   (In re Dennis B., supra, at p. 690, 135 Cal.Rptr. 82, 557 P.2d 514;  In re Michael C., supra, 98 Cal.App.3d at p. 121, 159 Cal.Rptr. 306.)

9.   Section 250 was formerly section 556 of the Welfare and Institutions Code which was addressed in Henley.

10.   Section 253 was formerly section 559 of the Welfare and Institutions Code which was addressed in Henley.

11.   Section 559 was amended to add the 20 day language before it was replaced by the current section 253.  (Stats.1971, ch. 698, p. 1356, sec. 2.)

12.   The order for rehearing by the juvenile court judge was predicated on a ex parte communication from the deputy district attorney.   The parties did not raise this issue on appeal, and we make no ruling regarding the procedures invoked.   We do wish to note that where a section 253 rehearing is based on an ex parte communication from a district attorney, due process requires the minor be given a copy of the letter and a reasonable and meaningful opportunity to respond before the rehearing is ordered.  (In re Winnetka V. (1980) 28 Cal.3d 587, 169 Cal.Rptr. 713, 620 P.2d 163.)

HITCHENS, Associate Justice, Assigned.* FN* Judge of the San Francisco Superior Court sitting under assignment by the Chairperson of the Judicial Council.

KLINE, P.J., and LAMBDEN, J., concur.

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