IN RE: JOHN H.

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Court of Appeal, Sixth District, California.

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

No. H007585.

Decided: September 25, 1991

Barbara Michel, in ass'n with the Sixth Dist. Appellate Program, for defendant and appellant. Daniel E. Lungren, Atty. Gen. of the State of Cal., George H. Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Rene A. Chacon, Deputy Atty. Gen., for plaintiff and respondent.

Proceedings

In October 1989 John H. (Minor) admitted allegations of a juvenile court petition alleging receipt of stolen property (Pen.Code, § 496).   The juvenile court declared Minor a ward of the court, stayed a 30–day commitment to juvenile hall, placed appellant on probation, and returned him to the custody of his parents.

In February 1990 Minor admitted the allegations of a juvenile court petition alleging assault with a deadly weapon (Pen.Code, § 245, subd. (a)(2)) and possession of a loaded firearm in a vehicle (Pen.Code, § 12031, subd. (a)).  The juvenile court continued Minor as a ward of the court and committed him to the county juvenile ranch program for a maximum period of four years and ten months.

In June 1990 Minor admitted the allegations of a juvenile court petition alleging he had escaped from the county juvenile ranch.  (Welf. & Inst.Code, § 871.)   The juvenile court continued Minor as a ward of the court and continued his commitment to the county juvenile ranch for a maximum period of five years and two months.

In August 1990 Minor admitted the allegations of another juvenile court petition alleging he had again escaped from the county juvenile ranch.   (Welf. & Inst.Code, § 871.)   At the conclusion of the jurisdictional hearing, the juvenile court acknowledged that disposition of the case would be difficult, and that it would discuss the matter with the assigned probation officer and ranch superintendent.1  Minor did not object to this proposed course of action.   At the dispositional hearing eight days later the court stated that it had discussed the matter with the probation officer and ranch superintendent.2  Minor offered no objection.   Thereafter the court continued Minor as a ward of the court and committed him to CYA for a maximum period of five years and six months.

Analysis

Minor argues persuasively that his CYA commitment must be reversed because there were unrecorded ex parte communications between the juvenile court on the one hand and Minor's probation officer and the county ranch superintendent on the other hand concerning Minor's continued placement at the ranch.

Various statutes and rules curtail the possibility that ex parte communications will affect a pending criminal case.  (See, e.g., Pen.Code, § 1204 [circumstances in aggravation and mitigation to be presented in open court];  § 1203, subd. (b) [probation report to be prepared after felony convictions and made available to the court and counsel five days before the sentencing hearing], § 1203, subd. (d) [court must inform misdemeanants of information to be considered and permit an opportunity to controvert it];  Welf. & Inst.Code, §§ 702, 706, 725.5 [authorizing receipt and consideration of information affecting juvenile dispositions];  Cal. Rules of Court, rule, 1495(b) [probation officer's social study to be made available 48–hours prior to commencement of dispositional hearing], rule 1495(d) [court's receipt of social study and other relevant evidence on its own motion];  Canons of Judicial Ethics, Canon 3(A)(4); 3  Evid.Code, §§ 450–460 [specifying procedures for taking judicial notice].)

Case law is to the same effect.  (People v. Arbuckle (1978) 22 Cal.3d 749, 753, 150 Cal.Rptr. 778, 587 P.2d 220 [defendant is to be afforded notice of and opportunity to respond to adverse sentencing information];  In re Calhoun (1976) 17 Cal.3d 75, 84, 130 Cal.Rptr. 139, 549 P.2d 1235 [right to counsel extends to sentencing hearings;  receipt of ex parte communication from prosecutor required modification of sentence];  People v. Webster (1983) 143 Cal.App.3d 679, 685–686, 192 Cal.Rptr. 86 [judge's ex parte communication with CYA officials regarding length of minor's probable stay at CYA held prejudicial];  In re Hancock (1977) 67 Cal.App.3d 943, 947–949, 136 Cal.Rptr. 901 [prosecutor's ex parte communication with sentencing judge held prejudicial];  cf. People v. Jennings (1991) 53 Cal.3d 334, 382–385, 279 Cal.Rptr. 780, 807 P.2d 1009 [court's ex parte communication with jurors prohibited;  error must be harmless beyond a reasonable doubt];  but cf. People v. Lichens (1963) 59 Cal.2d 587, 588–589, 30 Cal.Rptr. 468, 381 P.2d 204 [trial judges are presumed to disregard ex parte communications from disinterested persons];  People v. Shaw (1989) 210 Cal.App.3d 859, 864–869, 258 Cal.Rptr. 693 [arresting officer sent letter to court urging severe sentence;  dismissal not required where sentencing judge disqualified himself and defendant given opportunity to respond to letter];  People v. Hernandez (1984) 160 Cal.App.3d 725, 737–751, 206 Cal.Rptr. 843 [ex parte discussion of legal issues by sentencing judge and another judge permissible].)

 These authorities are based on the fundamental premise that a party should be afforded an opportunity to examine and respond to evidence which may deprive him or her of life, liberty, or property.   This premise is embodied in the federal constitutional rights to counsel, to be present, and to due process of law (U.S. Const., Amends. V, VI, XIV), and similar rights under the state Constitution (Cal. Const., art. I, § 15).

 In the present case, the trial court had ex parte communications with the probation officer assigned to Minor's case as well as the superintendent of the ranch from which Minor had twice escaped.   The trial court's comments at the dispositional hearing strongly suggest that the conversations tilted the balance in favor of CYA commitment.   While it is possible that the juvenile court may have reached the same disposition in the absence of the ex parte communications, it would involve pure speculation on our part to reach this conclusion without some sort of record support.   If anything, the record that exists indicates that Minor would not have been committed to CYA but for the ex parte communications.   The judge presiding at the hearing had been lenient to Minor in a prior disposition.   Further, the judge, when announcing his intention to undertake the ex parte communications, had indicated that this was a close case.   Yet, after discussing the case in private with the ranch superintendent as well as the probation officer who had twice recommended CYA commitment, the judge found that CYA commitment was the only viable alternative.   It follows therefrom that the ex parte conversations were dispositive.   We recognize, of course, that CYA commitment was fully supported and would have been proper even before the latest escape.   We also have no doubt that the judge was extremely concerned with Minor's well-being.   The earlier disposition makes that clear.   Nonetheless, without a record of the ex parte communications we have no way of knowing the precise grounds on which the CYA commitment was based.

 The Attorney General argues that defendant waived the issue by failing to object either when the judge announced the proposed ex parte communications or later, when he reported his decision based on those conversations.   We are reluctant to apply the concept of waiver herein, particularly since the rights involved are fundamental, the waiver occurred by reason of counsel's acquiescence, and the silent record permits only speculation as to why no objection was raised.   Considering the potentially damaging impact of the ex parte communications, it is difficult to justify the lack of objection.   The only plausible explanation is that the failure to object was based on deference to the court's expressed wishes rather than an informed tactical decision.   While we can understand and respect that deference is an important part of good lawyering, it will not justify an abandonment of a client's fundamental constitutional rights.   We also believe the court should not have placed counsel in such a position.   Direct communications between the court and the probation officer, ranch superintendent, or other similarly situated officials should be conducted in open court or in chambers with all parties present.   Anything less is an invitation to error.

Disposition

The judgment is reversed and remanded to juvenile court for redisposition by a different juvenile court judge.

FOOTNOTES

1.   The court stated:“Well, as I indicated, I really don't know what the proper solution to John's problem is.   Unfortunately, Judges aren't given greater wisdom just greater responsibility, and I don't know that—I recall this scenario very well, and in effect did not follow the recommendation of the Probation Department at the time to send John to a state institution on the basis that I was hoping that he could complete that Ranch program.“․“MS. ORAL [Defense Counsel]:  Your Honor, if I may interject for a moment?“THE COURT:  All right.“MS. ORAL:  “I have the Ranch file concerning John, and it would seem, according to the report, that he's done nothing but excellent work at the Ranch.   They have found him in every area—all he gets are good, good, good, good, good, high marks.“THE COURT:  I've been to the Ranch, Miss Oral.   I've spoken with Mr. Primak.  [Mr. Primak was the superintendent of the county juvenile ranch from which Minor had escaped.]   I know exactly what's going on with John.“I was pleased that John was doing as well as he was, because my hope was to validate my opinion that it wasn't necessary to send him to CYA [California Youth Authority] to achieve his rehabilitation.   His Ranch progress was quite acceptable, there's no question about it, and I'm going to contact the Ranch to find out what his predictable release would have been had he not fouled it up like he did.“So that's no surprise to me at all.   In fact, I counted on him.   It's a very, very difficult position, John, you are putting us all in.   The people that really care about you, but I'm not comfortable making a dispositional order in this matter until I've had an opportunity—I'm going to contact the Ranch.   I'm going to contact Mr. Dean.  [Mr. Dean was the probation officer assigned to Minor's case.]   I'm going to review this matter quite carefully, and I will of course let counsel, as well as any other individual, address the Court prior to disposition, but I'd like to continue this matter.”  (Bracketed material added.)

2.   The court stated:“All right.   The matter is submitted.“Certainly this matter is not one of first impression with me.   I recall the previous offenses quite well.   The recommendation was to send Johnny to CYA for the act of firing a weapon upon individuals.   It was clearly gang related.   I recall the position of his family and everyone at that time.“At that time I went against the recommendation of the Probation Department, and it was certainly my hope that Johnny would complete the Ranch program and put the experience behind him and do what the Ranch indicated was to stress the severity of the crime, review the past peer associations, gang affiliations, as well as a sense of respect for laws and rules, enhance his education.   All of these things.“․“Now I'm very careful about committing minors to the Youth Authority for I have very strong feeling as to when it's appropriate and when it's not.   And I've discussed this matter at length with Mr. Dean regarding the appropriateness of the program for John.   For there was some concern in my mind that perhaps CYA was an inappropriate disposition, and that accountability could be reached by merely a County Jail sentence since the Minor is going to be 18 in such a short period of time.“But after talking with Mr. Dean, reviewing the entirety of the circumstances surrounding this minor, his background, his values, I am convinced that contrary to CYA being contraindicated, it is totally indicated in this particular case.“․“And when I talked to Mr. Dean about the personal interest he has taken in this matter, the period of time he has personally counseled John as to his responsibilities, the consequences, and all that goes into proper probation officer's conduct, I'm convinced that it would be a total disservice to this young man for me to release him at this time, or to place him in the County Jail facility.“․”

3.   This Canon provides:  “A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding․”

CAPACCIOLI, Acting Presiding Justice.

PREMO and BAMATTRE–MANOUKIAN, JJ., concur.