IN RE: Doneral PATTERSON

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District Court of Appeal, Third District, California.

IN RE: Doneral PATTERSON, a Person Under the Age of Twenty-one Years. Doneral Patterson, Appellant; The Superior Court of the State of California, In and For the County of Sacramento, sitting as the Juvenile Court, Respondent.*

Civ. 10492.

Decided: June 25, 1962

S. Carter McMorris, Sacramento, for appellant. Stanley Mosk, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

Doneral Patterson, a minor aged 17, appeals from a judgment of the Superior Court of Sacramento County sitting as a Juvenile Court declaring him to be a ward thereof and committing him to the care and custody of the Youth Authority.

The judgment was made December 18, 1961, and the alleged acts of the minor as set forth in the petition occurred on November 12, 1961. The new Juvenile Court Law, therefore, enacted in 1961 and effective September 15, 1961 (Stats.1961, Ch. 1616, Welfare and Inst.Code, § 500 et seq.), is the law applicable.

The petition was filed December 1, 1961. It alleges that on November 12, 1961, said minor had entered a Del Paso Heights residence ‘with the intent to commit the crime of theft, thereby violating Section 459 of the Penal Code of California.’ Doneral was taken into custody on November 30, 1961. Opal Patterson, his mother, and only available parent, was given telephonic notice of the detention hearing before the Juvenile Court Referee. This hearing was held December 1, 1961, on which date the court by order adopted his recommendation that Doneral be committed to the custody of the County Probation Officer to be detained in the Juvenile Hall pending hearing of the petition. Also on said December 1, 1961, the county clerk issued a written notice of the hearing before the court on December 18, 1961. This notice was personally served on the said mother.

The hearing was held before the court on the date set. The proceedings taken at said hearing will be discussed hereinafter. After the hearing the court made its findings: That Doneral was 17 years of age and within the provisions of Welfare and Institutions Code section 602 in that on the date above mentioned he had committed the acts of burglary alleged in the petition. The court issued judgment as set forth above.

The appeal is upon three grounds: (1) That the court lacked jurisdiction because of defective notice of the detention hearing to the parent of appellant; (2) That appellant had not been adequately apprised of his right to counsel; (3) That insufficient and improper evidence was introduced to establish the charge against appellant.

The first contention lacks merit. Welfare and Institutions Code section 630 expressly provides that notice to a parent of a detention hearing may be given orally. Notice by telephone satisfies this requirement. It also satisfies due process. (Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 80, 87 P.2d 848; Litchfield v. County of Marin, 130 Cal.App.2d 806, 813, 280 P.2d 117.) Since minors under 18 may now be taken into custody without a warrant, removed from their home and deprived of their freedom (Welf. & Inst.Code, sec. 625), promptitude in the holding of the detention hearing rather than formality in the matter of notification best serves the minor's interests.

The second and third contentions of appellant do have merit. We will discuss them in order of statement. The problem of a minor's right to counsel in juvenile court hearing was probably the topic of greatest concern to all agencies whose studies preceded and prompted the ultimate rewriting of California's Juvenile Court Law in 1961.

Preindicating other activity in the field of juvenile justice reform, the editors of Stanford Law Review in May of 1958 published a study of ‘The California Juvenile Court.’ (10 Standford Law Review 471.) This study included a section on ‘Right to Counsel’ and reported a disagreement among California juvenile court judges and others on the role the attorney should be allowed to take in juvenile court proceedings, stating the arguments pro and con. The article pointed out that the juvenile court law then in effect did not mention a right to counsel, that state constitutional and Penal Code provisions were limited to proceedings in the criminal courts and that appellate court decisions left the question of the extent of a minor's right to counsel in the juvenile court unclear.

These editors answered, argument by argument, the reasons urged to deny the right to counsel: (1) The argument that attorneys would only obstruct the court by treating it as an adversary proceeding was answered by the statement ‘it would seem improper to exclude all attorneys * * * on the ground that some attorneys are obstructionists.’ (2) The urged reason that the ‘probation officer and the judge act as the youth's defense counsel’ (being, as it has been said, in a position in parens patriae to the minor) drew the reply that properly functioning counsel could render valuable assistance; that probation officers are sometimes unaware of the law or might have personal standards which would hamper an unprejudiced defense of the youth; that judges are often far too busy to search out and discover mistakes of probation officers; that attorneys could assist both in the discovery of the truth and in the formulation of plans of rehabilitation. (3) The article stated that the argument that parents would often incur unnecessary expense ‘seems obviously insufficient to justify the conclusion that there should be no right to counsel.’ And (4) the argument that the juvenile court's finding is not a criminal conviction was answered in the language of Mr. Justice White, now of the Supreme Court, them Presiding Justice of the Second District Court of Appeal, Division One, in In re Contreras, 109 Cal.App.2d 787, 789–790, 241 P.2d 631, 633:

‘While the juvenile court law provides that adjudication of a minor to be a ward of the court shall not be deemed to be a conviction of crime, nevertheless, for all practical purposes, this is a legal fiction, presenting a challenge to credulity and doing violence to reason. * * *

‘It is common knowledge that such an adjudication when based upon a charge of committing an act that amounts to a felony, is a blight upon the character of and is a serious impediment to the future of such minor. Let him attempt to enter the armed services of his country or obtain a position of honor and trust and he is immediately confronted with his juvenile court record. And further, * * * the minor is taken from his family, deprived of his liberty and confined in a state institution. True, the design of the Juvenile Court Act is intended to be salutary, and every effort should be made to further its legitimate purpose, but never should it be made an instrument for the denial to a minor of a constitutional right or of a guarantee afforded by law to an adult.’

The Special Study Commission on Juvenile Justice appointed by the Governor in September, 1957, made its report on November 30, 1960, following a comprehensive study which had included questionnaires to, and personal interviews with, juvenile court judges, probation officers and law enforcement administrators throughout the state. This report includes exhaustive treatment of the subject of the minor's right to counsel, with expression of divergent views and practices of juvenile court judges, and also a review of appellate court decisions, including: In re Contreras, supra (where it was held an abuse of discretion to issue a judgment committing a minor to the Youth Authority based partly on inadmissible evidence in a contested proceeding where the minor was not represented by counsel); People ex rel. Weber v. Fifield, 136 Cal.App.2d 741, 289 P.2d 303, (holding that the juvenile court had no right to refuse to allow an attorney to represent the minor but was not required generally to advise the minor of his right to an attorney), and People v. Dotson, 46 Cal.2d 891, 299 P.2d 875, apparently limiting the rule just stated by saying (on page 895, 299 P.2d on page 877) that denial of due process results ‘when by * * * lack of representation of the minor undue advantage is taken of him or he is otherwise accorded unfair treatment resulting in a deprivation of his rights.’

The commission's conclusions regarding the hostile attitude of some juvenile court judges towards the presence of attorneys include this statement: ‘* * * [T]here is no evidence to support the loose assertion that the presence of counsel will destroy the protective philosophy of the juvenile court or seriously alter the informality of proceedings. Where counsel has been employed in the juvenile court, informal hearings have neither been abandoned nor has the protective philosophy of the court been seriously damaged.’

The Study Commission's expression of its belief that the minor's right should include not only the right to counsel but the right to be both advised of this right and the right to have counsel appointed for him was bulwarked by a quotation from Shioutakon v. Dist. of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666, 670:

‘Our concern for the fair administration of justice impels us to hold that, in this and in similar cases in the future, the juvenile must be advised that he has a right to engage counsel or to have counsel named in his behalf. And, where that right exists, the court must be assured that any waiver of it is intelligent and competent.’ (Emphasis added.)

The California Law Revision Commission was authorized by Resolution Chapter 202 of the Statutes of 1957, p. 4589 to make studies on the subject under discussion. Its report of October, 1960, included the following recommendation (p. E–43):

‘In order to insure that the right to counsel is protected, the juvenile court law should be amended to require that the alleged delinquent minor and his parents or guardian be advised of the existence of this right and that the court be authorized to appoint counsel for those who desire such representation but who are without means to employ an attorney.’

These conclusions were preceded by, and predicated upon, an exhaustive review of reported cases on the question, not only in California but throughout the United States in state and federal decisions. Noteworthy in connection with this review is the commission's statement in reviewing the often cited In re Poff, D.C., 135 F.Supp. 224, that:

‘The opinion * * * holds that the benevolent and protective purposes of the juvenile court law were intended to be in addition to the rights which the juvenile held in common with adults. In short, the legislative intent was to enlarge, not diminish these protections.’ (Emphasis added.)

With these concepts before it the 1961 legislature acted. By the entirely new Juvenile Court Law, in Welfare and Institutions Code, section 633 thereof, it was provided that in his appearance at the detention hearing the minor, and also his parent or guardian if present ‘shall first be informed of the reasons why the minor was taken into custody, the nature of the juvenile court proceedings, and the right of such minor and his parent or guardian to be represented at every stage of the proceedings by counsel.’

By Welfare and Institutions Code, section 634, provision is made for appointment by the court of counsel for the minor or his parent if indigent, and the provision is mandatory if the minor is charged with misconduct which would constitute a felony if committed by an adult. Separate counsel may be appointed where a conflict of interest is shown between parent and the minor.

Thereafter, as provided in section 659 of said code, the notice of the court hearing to determine wardship must also contain ‘A statement that the minor, or his parent or guardian, is entitled to have his attorney present at the hearing on the petition, and that, if the parent or guardian is indigent and cannot afford an attorney, and the minor or his parent or guardian desires to be represented by an attorney, such parent or guardian shall promptly notify the clerk of the juvenile court.’

Welfare and Institutions Code, section 679, provides inter alia: ‘Any such minor * * * has the right to be represented at such hearing by counsel of his own choice.’

The procedure at the hearing is outlined in Welfare and Institutions Code, section 700, which provides that at the beginning of the hearing the judge or clerk shall first read the petition to those present and ‘upon request of the minor * * * or upon the request of any parent, relative or guardian, the judge shall explain any term of [sic] allegation contained therein and the nature of the hearing, its procedures, and possible consequences. The judge shall ascertain whether the minor or his parent or guardian has been informed of the right of the minor to be represented by counsel, and if not, the judge shall advise the minor and the parent or guardian, if present, of the right to have counsel present. If the parent or guardian is indigent and desires to have the minor represented by counsel, the court may appoint counsel to represent the minor, and in such case the court must appoint counsel if the minor is charged with misconduct which would constitute a felony if committed by an adult.’

This recitation of the provisions of the new law makes it abundantly clear that the Legislature has heeded the recommendations of both the Governor's Study Commission and of the California Law Revision Commission by explicit direction to juvenile court judges and referees to advise both minors and parents of the right to counsel and that the right includes mandatory court appointment to indigent parties in cases of felony proportion; and, moreover, it has decreed that it is the court's duty to make such advice unmistakably clear.

We now consider the record to determine to what extent compliance with the legislative mandate in this regard was had here.

Attached to the reporter's transcript is the affidavit of Walter A. Schmidt, Juvenile Court Referee who conducted the detention hearing. It shows that Mrs. Patterson was not present thereat, although she had been notified by telephone. It also shows the following:

‘Said minor * * * was advised of his right to counsel, as well as the allegations of the petition that was filed on the 1st day of December 1961, pursuant to Section 633 of the Welfare and Institutions Code of the State of California.’

The record also shows that the notice of the hearing to determine wardship which was mailed to Mrs. Patterson thereafter contained the statement required by Welfare and Institutions Code, section 659, and hereinabove quoted.

A reading of the transcript of the court hearing, however, is silent as to any attempt by the judge to ascertain whether either the minor or his parent understood the nature of the hearing, its procedures, or possible consequences. (This will be discussed below.) Nor is there any information in the record that the judge took any steps to ascertain whether the minor or his parent had been informed of the right to counsel, or of the extent of such advice if given.

The Attorney General argues that section 700 does not expressly require the judge to make that ascertainment at the hearing itself; that since the referee's affidavit states that he gave the advice required by section 633, and since the written notice contained the statement required by section 659 it must be assumed that the judge had acquainted himself with these compliances before the hearing, which, it is argued, was sufficient.

We do not think so. It is implicit in section 700 that the judge shall personally ascertain at the outset of the hearing, from the minor and his parents themselves, and after first making sure they understood the nature of the charge, and its possible consequences, whether they desire counsel, also making it clear (since the charge here was of felony proportions) that if they could not afford to employ counsel, one would be appointed. This was not done. It cannot be assumed that because the notice contained a statement setting forth the rights of the minor and his parent with respect to representation by an attorney that Mrs. Patterson both read and understood the statement; or that the information was relayed to the minor. Had the legislature intended this written notice to be a substitute for ascertainment by the judge at the hearing it would not have included the the further requirement. Certainly, in the absence of ascertainment by the judge at the hearing, there can be no assurance ‘that any waiver of (the right) is intelligent and competent.’ (Shioutakon v. Dist. of Columbia, supra.)

The legal conclusion, moreover, stated in Referee Schmidt's affidavit that ‘Said minor * * * was advised of his right to counsel * * * pursuant to Section 633 * * *’ does not sufficiently inform this reviewing court what facts were included in the advice given. Did he make it plain to Doneral that this was the first step in proceedings where, upon proof of commission of the acts charged, the consequences which actually followed could occur, to-wit: deprivation of his freedom, removal from his family, commitment to the Youth Authority for confinement for a period of months, perhaps years? This we cannot ascertain from the record before us. Since there is no requirement that a court reporter be present at the detention hearing, the referee's affidavit is, on appeal, the substitute therefor. Its averments should be factual and explicit; not couched in legal conclusions. Conclusions are for the court to draw from facts deposed. We are convinced that the judgment must be reversed for want of adequate advice by the court of the right of the minor and his parent to counsel and to possible appointment of counsel by the court.

This result perhaps obviates necessity of decision on the adequacy of the evidence adduced by the court at the hearing to sustain its judgment. We have, nevertheless, carefully reviewed the transcript of the hearing, find that the hearing did not fulfill the law's requirements, and therefore include an expression of our views which may become relevant when the matter is reheard.

The law provides (Welf. & Inst.Code, sec. 680) that: ‘[T]he proceedings shall be conducted in an informal nonadversary atmosphere with a view to obtaining the maximum co-operation of the minor upon whose behalf the petition is brought * * *.’ It also provides (sec. 701):

‘At the hearing, the court shall first consider only the question whether the minor is a person described by Sections 600, 601, or 602,1 and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, a preponderance of evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602 * * *. If the minor is not represented by counsel at the hearing, it shall be deemed that objections which could have been made to the evidence were made.’ (Emphasis added.)

The judge is required at the beginning of the hearing to cause the entire petition to be read to those present ‘and upon request of the minor * * * or * * * of any parent * * * the judge shall explain any term of allegation contained therein and the nature of the hearing, its procedures, and possible consequences.’ (Emphasis added.) (Welf. & Inst.Code, sec. 700.)

A summary of the very brief transcript of 7 pages shows the following: Two boys were before the court, Andrews, 16, and Patterson, 17. A third, and older boy, Joe Washington, was not present. He had been brought before the criminal court and had pleaded guilty. At the outset of the hearing, the probation officer was sworn. The judge identified the parties present and asked: ‘Now, you both understand the nature of this proceeding, I presume, do you? This is a burglary charge here against both boys.’ Mrs. Patterson answered, ‘Yes.’ Mrs. Andrews said nothing. The boys said nothing. The probation officer was asked to read the petition. He actually read only the brief paragraph thereof charging a house entry with intent to commit theft. He then volunteered: ‘Your Honor, both minors admit the allegation and report that on or about November 11th they conspired with one Joe Washington, aged 19 * * *.’ He went on to give a brief account of the manner in which the offense had been committed, stated the prior record of offenses with which the boys had been charged, their school records and family relationships. (The statement was actually a sketchy summary of a small portion of the long probation report. Nothing in the record indicates that a copy of this report was ever furnished the minors or their parents.)

Following the probation officer's statement the court said: ‘Is that about it, boys, as far as this burglary is concerned?’ Doneral Patterson answered, ‘Yes.’ The Andrews boy remained silent. Doneral then made the following unintelligible statement in reply to a court question rgarding intended disposition of the stolen property: ‘He said his girl needed a radio.’ (Who ‘He’ was is not disclosed.) Mrs. Andrews then volunteered: ‘My boy told me he was helping them move somebody.’

After a further question by the court Andrews stated: ‘I had a radio and picture and I was just keeping that. It wasn't mine. It was Joe Washington's. I was keeping it for him and I didn't know—Well, I knowed it was stolen, see, but I didn't figure—well, I figured like this, he got it, I say I keep it for him, he probably come back and get it.’

The court, having received this englightening information and having ascertained that Joe Washington was an older boy, asked whether it was Washington who had gotten them ‘into this.’

Andrews' ambiguous answer denied that he and Doneral had participated in the first night's burglary, but admitted the following: ‘[A]nd the next morning we all of us went over there and started loading again and then Joe kept taking other kids back over there, I don't know who all, and got other items.’

Nothing else appears in the transcript regarding the charged offense. The judge's single question inquiring into the possible domination of the older boy over Andrews and Patterson was not pursued. It was brought out that Patterson, unmarried, was the father of a child; that he had been a ward of the Fresno Juvenile Court for auto theft and had been released.

These proceedings, so far as they may be judged from the written record, seem a too perfunctory and summary fulfillment of a hearing designed as one in parens patriae. The petition was not read in its entirety as the law requires. Absent such reading, how could the minor or his parent be expected to exercise intelligently the right to request an explanation ‘of any term of allegation contained therein and the nature of the hearing, its procedures, and possible consequences?’ Moreover, and although the judge is admonished to give such explanation upon request, we do not see how the judge fulfills the part of the dual role which casts him as counsel for the defense, in a nonadversary proceeding without at least informing the minor and the parent of the right to make the request. The order made here—commitment to the Youth Authority for supervised training—is the most serious of the measures which the juvenile court law provides in its scheme of rehabilitation of the minor. Yet there is nothing in the record indicating that any of the parties had any warning of this as a possible consequence. On the contrary, the last three lines of the transcript contain a rather plaintive unintended epilogue. After the judge had pronounced judgment, including commitment to the Youth Authority and remanding to the Juvenile Hall until acceptance, the following occurred: ‘MRS. ANDREWS: Sir, where are they going? THE COURT: They will be out at Juvenile Hall for three or four weeks.’ This was the truth, and nothing but the truth—however, it was certainly not the whole truth!

We also cannot find that the evidence adduced at the hearing fulfilled the requirement of ‘a preponderance of evidence, legally admissible in the trial of criminal cases.’ (Sec. 701, supra.) We cannot agree with the contention of the Attorney General that the offhand question by the judge: ‘Is that about it, boys' and Doneral's monosyllabic answer, ‘Yes,’ was the equivalent of a formal plea of guilty in a criminal court, thus obviating the taking of evidence. In fact, the whole philosophy of the new juvenile court law is inimical to the concept both of formal pleas as we know them in criminal law and of their consequences. On the contrary if any comparison with criminal procedure is to be asserted then it should be noted that the minor occupies the position before the court of being there with every protective plea entered in his behalf. True, the boys charged were not protesting innocence and the proceeding was uncontested. But, in juvenile court hearings, where, as we have been at some pains to emphasize, the proceedings are primarily on behalf of the minor, the goal being rehabilitation, not punishment, the ends of justice are not achieved by an admission of guilt. To the contrary, it is there the inquiry should begin. The ‘informal nonadversary atmosphere’ prescribed by the Legislature was not intended to invite cursory consideration and summary disposal. The meager evidence of the record leaves this court with a curiosity unsatisfied as to who the ringleader of this escapade was: Washington or Patterson, and, if the former, whether Patterson and the Andrews boy were willing accomplices or whether they succumbed to temptation dominated by an older boy—a not uncommon happening.

The probation report, which is in the record and which was no doubt studied by the court and constituted the principal ground for the severe judgment imposed, shows that Doneral Patterson's past record was not a good one. The report evidences a skilled, painstaking and unprejudiced investigation by a competent probation officer. But that is not the point. The legislation under discussion contemplates the report as an aid to the court but not as a substitution for the court's own search for, and hearing and evaluation of, facts amd motives. Here, so far as the record discloses, principal reliance was on the probation officer. The rest of the hearing was perfunctory. This does not meet the more exacting requirements of the new Juvenile Court Law.

The judgment is reversed and the matter remanded for proceedings to be taken in compliance with the views expressed herein.

FOOTNOTES

1.  Section 600 relates to minors in need of proper and effective parental care or control, and destitute or neglected minors; section 601 relates to habitually disobedient or truant minors, or those in danger of leading immoral lives; section 602 relates to minors violating laws defining crimes, or those failing to obey court orders.

PIERCE, Justice.

PEEK, P. J., and SCHOTTKY, J., concur.