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Court of Appeal, First District, Division 4, California.

IN RE: R.L., a Minor. J. LICAVOLI, Probation Officer, Juvenile Court, City and County of San Francisco, Plaintiff and Respondent, v. R.L., Defendant and Appellant.

Civ. 26258.

Decided: December 30, 1969

Robert H. Betzenderfer, Martinez, Douglas P. Ferguson, Richard E. Bonitz, Raymond E. Bright, Michael L. Ohleyer, San Francisco, for appellant. Thomas C. Lynch, Atty. Gen., State of California, Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent.

Appellant, a 14–year-old boy, was brought before the juvenile court upon a petition alleging that he came under the jurisdiction of that court (Welf. & Inst.Code, § 602) by reason of an armed robbery and a murder committed on April 9, 1968, by him and three other boys. A deputy district attorney was assigned to assist the probation officer in presenting evidence at the jurisdictional hearing scheduled jointly as to all of the juveniles. It was indicated to the trial judge that, if the allegations of the petition were found to be true, a motion would immediately be made to transfer all of the juveniles except the present appellant to adult court for further proceedings pursuant to Welfare and Institutions Code, section 707. The appeal is from an ensuing order committing appellant to the Youth Authority.

At the jurisdictional hearing evidence was presented showing that four boys boarded a city bus occupied only by the driver, after which an explosion was heard. The boys immediately fled on foot and were seen a short distance away by a 12-year-old boy. Two of the fugitives displayed the handle of a pistol and threatened to shoot the youngster's dog.

The bus driver died as a result of a gunshot wound in his side. After he was shot, the bus rolled across an intersection and struck a utility pole. When investigating officers arrived, the coin-changing machine carried at that time by municipal bus operators was found to be missing.

On the evening of the shooting, appellant and three or four companions came to the nearby apartment of Givens, appellant's cousin. Appellant displayed an automatic pistol to Givens and offered to sell it. One of appellant's companions told Givens: ‘Well, I just shot a bus driver. I tried to shoot [him] through the heart.’ The youths also had a coin-changer with them similar to that used by municipal bus drivers. The next day appellant returned and sold the gun to Givens' brother-in-law; at this time, eight or nine rounds were fired from the gun into a telephone pole.

Givens was arrested on June 26, 1968 on unrelated charges. He then informed a police officer that he knew something about the murder; with Givens' help the police recovered the automatic pistol and three of the bullets which had been fired into the telephone pole. Ballistic analysis showed that the bullet recovered from the bus driver's body and those recovered from the telephone pole had been fired from this pistol.

Before Givens was arrested, appellant had come to live in the Givens apartment. While there, he told Mrs. Givens that he and his companions had shot the municipal bus driver. The police arranged, with Givens' cooperation, to have appellant and one of his companions visit Givens in jail, ostensibly to help Givens with an alibi defense to the charges under which he was held. In fact, as Givens knew, the police arranged the visit solely in order to get additional evidence regarding the killing of the bus driver. Specifically, the purpose was to confirm the identity of the other two participants. Appellant and his companion were brought separately to the police station by police officers to meet with Givens. An officer told appellant that he was not under arrest; no questions were directed to him by any officer; the conversations with Givens were tape-recorded without the knowledge of appellant or the other boy.

Immediately after this conversation appellant was arrested for participating in the robbery and murder. An officer gave appellant a Miranda1 warning, and appellant responded ‘Can I see my mother before I'm busted?’ Under cross-examination on voir dire by appellant's counsel as to the admissibility of appellant's later statements, the officer testified, ‘my understanding of ‘busted’ meant before he was taken to the Youth Guidance Center, processed and subsequently incarcerated there. And this was the understanding that I got from him, and our mutual—I believe it would be that our understanding was mutual. Q. You didn't understand that to mean that he wanted to talk to his mother before he talked to you? A. No, sir, I didn't understand that. Q. But he did request to see his mother? A. Yes, sir, and that was arranged.' The officer's understanding of appellant's state of mind is supported by evidence that appellant willingly spoke to the officer after expressing unwillingness to speak to another officer, who, it may be inferred from the record, was not of his own race. Appellant's trial testimony did not dispute the officer's account of the circumstances surrounding the taking of the statement. The statement included an admission by appellant that he and his three companions planned to rob a bus driver, and that he stood at the door of the bus during the robbery and killing. He denied using the pistol or stealing the money-changer. There was no objection on behalf of appellant when the court received evidence of admissions by two of his companions, after they had been arrested and informed of their rights, that one of them had fired the murder weapon and that the other had taken the bus driver's money-changer. According to the admissions, the contents of the money-changer were later divided among the four boys.

Appellant contends that reversal is required by the court's conceded error in refusing to allow reasonable cross-examination of the witnesses who testified at a detention hearing before the hearing on the petition, as required by Welfare and Institutions Code, section 630, subdivision (b). Appellant claims that a detention hearing is analogous to a preliminary hearing in a criminal case and that he was prejudiced by the denial of full cross-examination. Actually a detention hearing is more closely analogous to a bail hearing; errors committed at the detention hearing are not generally subject to review on appeal from a jurisdictional order entered after a later hearing any more than errors committed at a bail hearing in a criminal case are generally subject to review upon appeal from the judgment. (Cf., In re Macidon (1966) 240 Cal.App.2d 600, 49 Cal.Rptr. 861; People v. Hinman (1967) 253 Cal.App.2d 896, 61 Cal.Rptr. 609, cert. den. 391 U.S. 923, 88 S.Ct. 1818, 20 L.Ed.2d 660.)

Appellant complains of an order denying him a claimed right to take depositions of witnesses, pursuant to Code of Civil Procedure, section 2016, subdivision (a). Appellant suggests that because juvenile court proceedings are civil in nature (In re Castro (1966) 243 Cal.App.2d 402, 406, 52 Cal.Rptr. 469), civil discovery rules must be applied. It is true that juvenile court proceedings are special proceedings of a civil nature; but they are subject to certain constitutional requirements, generally applicable in criminal actions, which the United States Supreme Court has extended to juvenile court proceedings. Such proceedings are sometimes for constitutional purposes analogized to criminal actions because deprivation of personal freedom may flow from a finding of delinquent conduct. (In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.) But criminal as against civil labeling of juvenile court proceedings is not an infallible guide in construing the Juvenile Court Law or determining the requisites of due process.

The procedures to be followed by the juvenile courts of this state are set out by statute. (The Juvenile Court Law: Welf. & Inst.Code, § 500 et seq.) The statutes contain no provisions incorporating civil discovery statutes. Two pervasive characteristics of the juvenile court law suggest that the Legislature did not intend to make civil discovery applicable: first, the interests of the community and of the minor before the court both require speedy adjudication; hence, short periods of notice are provided (see, e. g., Welf. & Inst.Code, §§ 660, 661). Section 700 does provide that the court ‘shall continue the hearing as necessary to provide reasonable opportunity for the minor * * * to prepare for the hearing.’ But that expression can hardly be read as importing into the juvenile court law the whole elaborate and time-consuming machinery of civil discovery established by Code of Civil Procedure, sections 2016 et seq. Second, despite Gault, ‘juvenile proceedings retain a sui generis character: although certain basic rules of due process must be observed, the proceedings are nevertheless conducted for the protection and benefit of the youth in question.’ (In re Dennis M. (1969) 70 A.C. 460, 472, 75 Cal.Rptr. 1, 8, 450 P.2d 296, 303.) To allow discovery in a juvenile court proceeding on the theory that the proceeding is not criminal in nature (Welf. & Inst.Code, § 503), and that it must therefore be civil and come within the provisions of Code of Civil Procedure, section 2035 (extending discovery ‘whenever necessary’ to special proceedings of a civil nature), would present the further anomaly of purporting to allow questions on discovery to be directed to the minor, in conflict with his privilege against self-incrimination (Welf. & Inst.Code, §§ 630, subd (b), 702.5). We conclude that although it might be good policy to provide a well-designed system of discovery for use in the juvenile court (see Boches, Juvenile Justice in California: a Re-evaluation (1967) 19 Hastings L.J. 47, 87), the statutes make no present provision for discovery. We find nothing in the decisions of higher courts indicating that due process requires that discovery be created for juvenile proceedings. Therefore, the trial judge did not err in denying discovery.

Appellant's request for a jury trial was denied. He now contends that the Gault decision makes it clear that the United States Constitution guarantees a right to jury trial in juvenile court. The right to trial by jury has long been denied in juvenile court proceedings in California (In re Daedler (1924) 194 Cal. 320, 228 P. 467). The Gault opinion did not deal with the issue of jury trial (In re Gault, supra, 387 U.S. 1, 13-14, 30-31, 87 S.Ct. 1428). Courts of other jurisdictions have divided on the question whether Gault requires that a juvenile be granted a jury trial, but In re Dennis M., supra, 70 A.C. 460, 75 Cal.Rptr. 1, 450 P.2d 296, contains a strong indication that jury trial is not required under Gault. In rejecting a claim that the criminal standard of proof (‘beyond reasonable doubt’) should be applied in juvenile cases, the Supreme Court indicated its view that a jury trial would be injurious to the aims of juvenile proceedings (70 A.C. at p. 472, 75 Cal.Rptr. 1, 450 P.2d 296). Juvenile proceedings are not primarily criminal in nature; therefore trial by jury is not a constitutional requirement. (In re T.R.S. (1969) 1 Cal.App.3d 178, 182, 81 Cal.Rptr. 574.)

Appellant contends that the requirement of Welfare and Institutions Code, section 675, that ‘no other matter shall be heard at [juvenile court] session’ entitled him to a hearing separate from that of his companions. We have found no reported decisions dealing with the joinder of minors in a juvenile court hearing. It appears that the purpose of section 6752 was only to require that juvenile court proceedings be held in a closed court separate from other civil or criminal matters. The statute is silent on the question of joinder; we conclude that it lies within the sound discretion of the juvenile court judge whether to permit a jurisdictional hearing to proceed as to more than one young person at a time where jurisdiction is asserted on the basis of acts which would subject defendants to joint trial in the criminal court.

Appellant also contends that the court's refusal to sever his hearing from those of his companions was prejudicial error under the doctrine announced in People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. There is no question that if this had been a criminal trial severance would be required under Aranda. The various admissions proved to have been made by the boys were so intertwined in their incriminating effect that in a jury trial it would have been impossible by ‘effective deletions' to protect against misuse against appellant of admissions made by the other boys (cf. People v. Aranda, supra, 63 Cal.2d 518, 530, 47 Cal.Rptr. 353, 407 P.2d 265).

Does Aranda apply in a juvenile court jurisdictional hearing where the issues of fact are tried by a judge sitting without a jury? We note, first, that while both the California Supreme Court in Aranda, supra, and the United States Supreme Court in Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, gave heavy emphasis to the fallacy of expecting lay jurors to apply principles of limited admissibility, judges are by training and experience habituated to dealing with such problems. Moreover the result of granting a severance in juvenile court will commonly be that the same judge who presides at the first hearing, and receives evidence admissible only in that hearing, would preside at later hearings concerning others allegedly involved in the same delinquent conduct. That is because in some counties there is only one judge and in others all juvenile matters are heard in a single department designated for that purpose. There is no reason to suppose that the judge would have any more difficulty applying concepts of limited admissibility in a single hearing relating to several juveniles than in successive hearings having to do with the same alleged delinquent conduct.

To adopt appellant's contrary contention would also suggest that the same judge should not conduct successive proceedings as to the same juvenile for fear that he might, in the second case, erroneously consider evidence derogatory to the juvenile which he had received in connection with the first proceeding. In either situation, where a jury is to be employed, a new jury should hear the second case; after a criminal defendant had been tried by jury, one would not expect the same twelve jurors to be reempaneled to try the defendant on another charge.

In People v. Aranda, supra, 63 Cal.2d 518, 530, 47 Cal.Rptr. 353, 360, 407 P.2d 265, 272 the California Supreme Court, ‘in the absence * * * of a holding by the United States Supreme Court that the due process clause requires [a separate trial where the confession of one defendant implicates a codefendant adopted such a rule]’ announced such a requirement ‘not as constitutionally compelled, but as judicially declared rules of practice to implement section 1098 [of the Penal Code].’ There is no discussion in Aranda of the possible extension of the new rule to juvenile court proceedings where juries are not used. Similarly, in Bruton v. United States, supra, a requirement of severance was announced as to federal criminal prosecutions where the right to trial by jury always applies under the Sixth Amendment to the United States Constitution. Neither in Bruton nor in Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, reh. den. 393 U.S. 899 (where the Bruton rule was extended to state criminal prosecutions) is any mention made of extending the Aranda-Bruton requirement to proceedings where there is no right to trial by jury. It seems to us that fairness to the juvenile does not require, and good functioning of the juvenile court system does not permit, that we extend the Aranda-Bruton idea to the juvenile court either as a ‘judicially declared rule of practice’ or as a matter of constitutional requirement.

Nevertheless, we shall briefly consider whether any error in refusing to grant separate trial could have been prejudicial. The California Supreme Court has held that an Aranda error does not automatically require reversal: ‘failure to adhere to the Aranda procedure constitutes reversible error only if it causes prejudice.’ (People v. Charles (1967) 66 Cal.2d 330, 337, 57 Cal.Rptr. 745, 750, 425 P.2d 545, 550, cert. den. 389 U.S. 872, 88 S.Ct. 159, 19 L.Ed.2d 153, followed in People v. Fuller (1969) 268 Cal.App.2d 844, 855, 74 Cal.Rptr. 488.) The admission into evidence of a valid confession by the defendant has been held to be such a circumstance as to render the admission of a codefendant's confession in violation of Miranda to be nonprejudicial error (People v. Hill (1967) 66 Cal.2d 536, 58 Cal.Rptr. 340, 426 P.2d 908, cert. den. 390 U.S. 911, 88 S.Ct. 838, 19 L.Ed.2d 884; People v. Charles, supra). In those cases in which an Aranda error has been found to be prejudicial, no confession by the appealing defendant has been involved (e. g., People v. Massie (1967) 66 Cal.2d 899, 918, 59 Cal.Rptr. 733, 428 P.2d 869; People v. Matola (1968) 259 Cal.App.2d 686, 691, 66 Cal.Rptr. 610). Here appellant's own confession to his cousin's wife was properly admitted. That confession—although not as long or detailed as those of his companions—implicated him to substantially the same extent as did the statements of the other boys. That confession, added to the statement appellant gave to police after he was arrested, makes it almost inconceivable that in a separate hearing the court would have failed to sustain the petition.

Since Bruton, the California Supreme Court has applied the Chapman3 harmless error test to a Bruton-Aranda error. (People v. Flores (1968) 68 Cal.2d 563, 567–568, 68 Cal.Rptr. 161, 440 P.2d 233, cert. den.393 U.S. 1057, 89 S.Ct. 697, 21 L.Ed.2d 698). Applying this test, we have concluded that beyond reasonable doubt the failure to grant separate trial, even if erroneous, did not contribute to the result.

Under compulsion of the California Supreme Court's decision (In re Dennis M., supra, 70 A.C. 460, 75 Cal.Rptr. 1, 450 P.2d 296), appellant has properly withdrawn his contention that the court erred in failing to require proof of appellant's participation in the crime ‘beyond a reasonable doubt.’

Appellant correctly contends that In re Gault, supra, 387 U.S. 1, 47, 87 S.Ct. 1428, 18 L.Ed.2d 527, 557, indicates that the rule of exclusion declared in Miranda v. Arizona, supra, applies in juvenile court proceedings (In re H.L.R. (1969) 269 A.C.A. 705, 711, 75 Cal.Rptr. 308; In re Rambeau (1968) 266 Cal.App.2d 1, 5, 72 Cal.Rptr. 171; In re Teters (1968) 264 Cal.App.2d 816, 819–821, 70 Cal.Rptr. 749). Appellant also points out that erroneous reception in evidence of a confession which, under Miranda, should have been excluded, is ordinarily prejudicial because proof of a confession is catastrophic to the defense (People v. Spencer (1967) 66 Cal.2d 158, 57 Cal.Rptr. 163, 424 P.2d 715). Hence it is contended that the reception of Givens' testimony concerning the confessions made to him while he was in jail and acting as a police representative calls for reversal. It is no doubt true that if appellant had known that Givens was assisting the police, or that the conversation was being recorded, he would not have told Givens the names of the other boys who were involved in the shooting, thus impliedly admitting his own involvement. But the Miranda rule is not designed to require police investigators to be sporting in their conduct toward a suspect; rather, the purpose is to protect a suspect, in an inherently coercive situation of custody, from being led to give up his constitutional rights without first being informed that any waiver of rights must be free and voluntary.

Here there was uncontradicted evidence that appellant was not regarded either by himself or by the police as being in custody. There was no actual detention as in People v. Furnish (1965) 63 Cal.2d 511, 47 Cal.Rptr. 387, 407 P.2d 299 cert. den. 384 U.S. 1011, 86 S.Ct. 1918, 16 L.Ed.2d 1017. The investigating officer's explicit testimony that appellant's interview with Givens was so arranged as to avoid giving appellant the impression that he was in custody was undisputed in appellant's own testimony. Appellant's statement to Givens was therefore admissible (cf. People v. Arnold (1967) 66 Cal.2d 438, 449, 58 Cal.Rptr. 115, 426 P.2d 515; People v. Kelley (1967) 66 Cal.2d 232, 246, 57 Cal.Rptr. 363, 424 P.2d 947; also see People v. Hardeman (1966) 244 Cal.App.2d 1, 35, 53 Cal.Rptr. 168, cert. den. 387 U.S. 912, 87 S.Ct. 1700, 18 L.Ed.2d 634). The present case is distinguished from such cases as Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, People v. Arguello (1965) 63 Cal.2d 566, 47 Cal.Rptr. 485, 407 P.2d 661, and People v. Ellingsen (1968) 258 Cal.App.2d 535, 65 Cal.Rptr. 744, by the fact that, according to the uncontradicted evidence, appellant was neither under charge nor in custody when he made the statement to Givens.

Because the Givens statement was not taken in violation of Miranda requirements, there is no basis for appellant's subsidiary contention that his ensuing admission to a police officer, after a proper Miranda warning was given, was to be excluded as tainted by the circumstances of the Givens statement.

Appellant next complains that the investigation proceeded in violation of Welfare and Institutions Code, sections 625 and 626. Section 625 provides that when a peace officer takes a juvenile into temporary custody upon reasonable cause for believing that he has committed an offense, the officer shall give a specified warning comparable to that required by Miranda. As we have seen, such a warning was given appellant as soon as he was arrested. Section 626 provides that if the minor is to be held in custody the officer must take him ‘without unnecessary delay before the probation officer of the county in which such person was taken into custody, * * * and deliver the custody of such minor to the probation officer.’ It is true that appellant remained for some hours in police custody after he was arrested and before he was delivered to the Probation Department at the Youth Guidance Center. But the arrest was lawful (unlike In re Rambeau, supra, 266 Cal.App.2d 1, 72 Cal.Rptr. 171) and appellant was voluntarily making statements after having received a statement of his Miranda rights. We do not regard the brief interrogation of appellant at police headquarters, in this homicide case involving several juveniles, as a violation of the requirement of section 626 that the minor be taken ‘without unnecessary delay’ to the probation officer.

Finally we consider appellant's contention that the judge applied an improper standard of proof and should as a result have granted a mistrial. Approximately halfway through the hearing, it emerged that the judge entertained several mistaken ideas as to the hearing then in progress. He thought that in some prior hearing it had been determined that the three juveniles before him had committed a crime and thus were subject to juvenile court jurisdiction pursuant to Welfare & Institutions Code, section 602. He thought that the hearing in progress was intended only to decide a motion under Welfare & Institutions Code, section 707 (transfer to superior court) with regard to two of the juveniles (not appellant). The judge was at that point unaware that he would have any decision to make regarding appellant. After it was explained by both the deputy district attorney and defense counsel that the judge would have to determine whether jurisdiction existed under section 602 (i. e., whether the juveniles had committed a crime) the judge indicated that he still thought the standard of proof to be applied was that used in section 707 hearings rather than hearings under section 602 ‘substantial evidence’ rather than ‘preponderance of the evidence, legally admissible in the trial of criminal cases.’ (Welf. & Inst.Code, § 701.) When the above misunderstandings emerged, counsel for appellant moved for a mistrial; this motion was denied. But the judge's temporarily incomplete grasp of juvenile court procedure did not require him to grant a mistrial. The decision to grant or deny a motion for a mistrial is within the discretion of the trial court; it is for the trial judge to determine whether injustice will result from the events leading to that motion (People v. Ray (1967) 252 Cal.App.2d 932, 61 Cal.Rptr. 1.) The record indicates that the various misunderstandings mentioned above were dispelled before the judge rendered his decision; hence the question remaining for us, relating to proof, is whether there was sufficient evidence to sustain the order. The evidence we have reviewed enabled the judge to determine, by ‘a preponderance of evidence * * * admissible in the trial of criminal cases,’ that the jurisdictional allegations of the petition were true. (Welf. & Inst.Code, § 701; In re Dennis M., supra, 70 A.C. 460, 468, 75 Cal.Rptr. 1, 450 P.2d 296; In re J.F. (1969) 268 Cal.App.2d 761, 772, 74 Cal.Rptr. 464.)

The order is affirmed.

I dissent. I agree with the majority's well-stated reasoning in all respects except as to the procedure under which appellant's tape-recorded confession was elicited in an ostensible private conversation with Givens at the police station, and which was followed—not preceded—by his (appellant's) formal arrest, a Miranda admonition, and his second confession made directly to the police. As the officers forthrightly testified, the arrangement was a well-planned pretext in which the police had primed Givens, functioning as their agent, to have appellant talk to him about a crime of which appellant was then under strong suspicion upon the basis of evidence already available.

I would agree from the evidence that the officers were pursuing the wholly valid objective of obtaining the names of other suspects; accordingly, I do not impugn their motives in formulating and executing the arrangement with Givens. The question, though, is whether the confessions it successively produced from appellant were admissible against him. I would hold them to have been inadmissible (1) under the Miranda rule (Miranda v. Arizona (1966) 384 U.S. 436, 444–445, 471–474, 86 S.Ct. 1602, 16 L.Ed.2d 694, 706–707, 722–723), in that appellant was ‘in custody’ within its meaning, despite the initial lack of a formal arrest, because under the circumstances he might reasonably have believed that his freedom of action in the police station was limited (People v. Arnold (1967) 66 Cal.2d 438, 445–447, 58 Cal.Rptr. 115, 426 P.2d 515 and cases cited; People v. Ellingsen (1968) 258 Cal.App.2d 535, 542, 65 Cal.Rptr. 744); and (2) under the Massiah rule by reason of the police-agent role played by Givens. (Massiah v. United States (1964) 377 U.S. 201, 205–207, 84 S.Ct. 1199, 12 L.Ed.2d 246, 250–251; People v. Arguello (1965) 63 Cal.2d 566, 570, 571–572, 47 Cal.Rptr. 485, 407 P.2d 661; People v. Flores (1965) 236 Cal.App.2d 807, 810–812, 46 Cal.Rptr. 412.)

I acknowledge that the precise facts of the Givens arrangement fall somewhat short of those in each of the situations described in the iust-cited authorities. It nevertheless included their significant elements, and it violated the spirit of the Miranda and Massiah rules because its consequences brought about an effective, police-initiated compromise of the constitutional rights which both rules avowedly protect. Adaptations of the arrangement in other cases, moreover, could seriously erode the rules themselves. For these reasons, I would apply the rules to these facts and (upon the authority of In re Gault (1967) 387 U.S. 1, 47–50, 87 S.Ct. 1428, 18 L.Ed.2d 527, 557–558)in this proceeding. Having done so, I would reverse the order under compulsion of the further rule that ‘the erroneous admission of a confession is necessarily prejudicial.’ (People v. Charles (1967) 66 Cal.2d 330, 341–342, 57 Cal.Rptr. 745, 753, 425 P.2d 545, 553.


1.  Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.  ‘All cases under the provisions of this chapter shall be heard at a special or separate session of the court, and no other matter shall be heard at such session. No person on trial, awaiting trial, or under accusation of crime, other than a parent, guardian, or relative of the minor, shall be permitted to be present at any such session, except as a witness.’

3.  Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

CHRISTIAN, Associate Justice.

DEVINE, P. J., concurs.

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