LEACH v. PEOPLE BY BUSCH

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Court of Appeal, Second District, Division 5, California.

Donald Robin LEACH, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California BY Their Attorney, Joseph P. BUSCH, Jr., District Attorney for the County of Los Angeles; Kenneth E. Kirkpatrick, Chief Probation Officer, By his Attorney John D. Maharg, County Counsel of Los Angeles, Real Parties in Interest.

Civ. 38498.

Decided: November 29, 1971

Richard S. Buckley, Public Defender, James L. McCormick, John J. Gibbons, William R. Hawes, Laurence S. Smith, Deputy Public Defenders, for petitioner. John D. Maharg, Douglas C. Miller, Harold S. Vites, Los Angeles, for respondent. Evelle J. Younger, Atty. Gen., Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Division, Daniel Lee Bershin, Deputy Dist. Atty., for real parties in interest.

PROCEDURAL HISTORY

December 29, 1970. A petition alleging that Donald was a person who came within the provisions of section 602 of the Welfare and Institutions Code1 was filed in the juvenile court.2

December 30, 1970. After the petitioner denied the allegations of the petition, he was ordered detained and a ‘fitness'3 hearing was set for January 8, 1971.

January 22, 1971. After a hearing before Referee Moore, a finding was made that Donald was fit subject for juvenile court treatment and the matter was continued to February 5, 1971, for ‘adjudication.’ By that the referee evidently meant that on February 5 he would start taking evidence on the jurisdictional question whether petitioner was a person described in section 602, for the probation officer was directed to subpoena ‘all necessary witnesses.’ None of the evidence before the referee would have been legally admissible at such a jurisdictional hearing: it consisted of the testimony of three probation officers, certain documentary evidence concerning a previous juvenile commitment of petitioner in another state, arrest and police reports and a small ‘gram’—whatever that may be—from the district attorney.

January 27, 1971, the presiding judge of the juvenile court, acting under the powers given to him by section 559, ordered a rehearing of the matters heard before Referee Moore.4 The same day a request for a transcript of the hearing before the referee was filed by Donald's attorney. The request was denied the next day.

February 5, 1971. Several witnesses to the alleged crime who had been subpoenaed pursuant to the referee's order of January 27, 1971, appeared before the referee sitting as a temporary judge and were ordered to return February 18 to testify, but only in the event that petitioner would be found fit for juvenile court treatment.

February 18, 1971. A second ‘fitness' hearing started before a judge other than the one who had granted the rehearing. Again, no legally competent evidence was produced to prove that Donald committed the alleged crimes. After several days of testimony the court found that Donald would not be amenable to treatment through the facilities of the juvenile court. Eventually a complaint was filed in the EL Cerritos Municipal Court, a preliminary hearing was held, Donald was bound over, an information was filed, and a motion under section 995 of the Penal Code denied. This petition for a writ of prohibition followed.

DISCUSSION

It is our view that the way the respondent court handled this matter violated the procedural scheme envisaged by the Legislature.5

The proper procedures to be followed before making a determination that a minor is unfit, were recently outlined by division four of this court in In re Gary Steven J., 17 Cal.App.3d 704, 95 Cal.Rptr. 185. There the court had first held a so-called jurisdictional hearing pursuant to section 701, found the minor to be a person described by section 602 and, at such dispositional hearing, started an inquiry into the minor's fitness. The minor was then found to be unfit. Before this court the minor then claimed that the 701 hearing had placed him in jeopardy and that he therefore could not be tried as a criminal. In rejecting that contention the court said:

‘In fact, the whole philosophy of the present juvenile court law is counter to the interpretation now urged. The purpose of requiring separate consideration of wardship and of disposition was to prevent the court from being affected, at the first stage, by evidence of the minor's character not relevant to determination of his guilt. (In re Gladys R. (1970) 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127.) To require or even permit the introduction at the 701 hearing of the kind of data on which a 707 determination is made would violate both the letter and the spirit of the statute. [Footnote omitted.]’ (In re Gary Steven J., 17 Cal.App.3d 704 at 708, 95 Cal.Rptr. 185, at 189. Emphasis added.)

In the case at bar the respondent court dispensed with the jurisdictional hearing altogether and immediately proceeded to hear the question of fitness which, with certain possible exceptions, clearly seems to have been visualized by the Legislature as part of the dispositional phase of the juvenile court proceedings.

The Supreme Court said in In re Gladys R., supra, 1 Cal.3d at 859–860, 83 Cal.Rptr. at 674, 464 P.2d at 130: ‘The history of Welfare and Institutions Code sections 701, [footnote omitted] 702, [footnote omitted] and 706 [footnote omitted] clearly indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring a wardship and thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. [Footnote omitted.] This procedure affords a necessary protection against the premature resolution of the jurisdictional issue on the basis of legally incompetent material in the social report.’

Sections 701 and 702 clearly command that at the very outset of the proceeding the jurisdictional facts be established on legally competent evidence before the court may proceed to the dispositional phase of the hearing. In re Gladys R. tells us that before making its jurisdictional finding, the court may not even peek at matters, such as a social report, which may, indeed must, be considered at the dispositional phase. Section 702 is followed by three sections dealing with temporary observation of certain minors pending the dispositional hearing. Then comes section 706 which is the basis statute that provides for the dispositional hearing. It, in turn, is followed by section 707. It seems perfectly plain that if the Legislature had intended that in the case of minors who may turn out to be unfit for juvenile court treatment this carefully charted step-by-step process can be avoided altogether, it would not have put section 707 where it did.6 True, section 707 permits the finding of unfitness to be made ‘[a]t any time during a hearing upon a petition alleging that a minor is, * * * a person described in Section 602’ if certain evidence concerning the minor's age and fitness has been offered, but even grammatically that language still presupposes that a jurisdictional hearing be at least commenced. Of course, a rare case may arise where, at such a jurisdictional hearing at which only legally competent evidence is heard, such evidence might disclose unfitness and the court would then not need to proceed further with the jurisdictional hearing. That possibility is clearly visualized in a footnote in In re Gary Steven J., where the court says: ‘Of course, we do not imply that evidence might not properly be offered and received at the 701 hearing which would, in and of itself, show that the minor was not one for whom juvenile court processes were appropriate.’ (In re Gary Steven J., 17 Cal.App.3d at p. 708, fn. 5, 95 Cal.Rptr. at p. 188.) Thus, for example, the record may legitimately show such a past pattern of criminality through evidence competently offered to show a modus operandi, (People v. Haston, 69 Cal.2d 233, 244–249, 70 Cal.Rptr. 419, 444 P.2d 91; People v. Cavanaugh, 69 Cal.2d 262, 272–274, 70 Cal.Rptr. 438, 444 P.2d 110) that the juvenile court can reach the conclusion that its time would be better spent by inquiring into the question of fitness rather than by proceeding with the jurisdictional hearing. However, this diversion of the thrust of the hearing should be the exception, rather than the rule, and should be supported by sound reasons appearing in the record, for it should be recalled that the moment the court starts making a fitness inquiry, it is then permitted to clutter up its mind with precisely the kind of evidence it is forbidden to hear at the jurisdictional hearing. This may have at least two harmful results: first, if after hearing the evidence relevant to the fitness hearing, the court should find the minor to be fit after all, it could no longer sit at the jurisdictional hearing which presumably would be resumed. That is precisely what Gladys R. tells us. This inability of the judge to act further in the matter may pose no problem in a multi-judge court such as respondent, but could not be so easily dealt with in the twenty-odd counties in California that have only one superior court judge. The second harmful effect is a consequence of the first: knowing that he could no longer act at a renewed jurisdictional hearing, the psychological pressure on the judge to find the minor unfit and get him out of the juvenile court system would pervert the purposes of the Juvenile Court Law.

Only one other matter raised by petitioner requires comment. Attached to the petition is part of the record from an entirely different juvenile proceeding in which the judge who granted the rehearing made a statement to the effect that petitions for rehearing are granted on ex parte requests by counsel ‘all the time’ without other counsel having been notified. Attached to the points and authorities filed in response to the petition in this court is a declaration by the same judge, to the general effect that he frequently grants rehearings after matters heard by referees on the basis of an informal, ex parte request made by ‘Deputy Public Defenders, Police Departments, schools, Deputy District Attorneys, the Probation Department, the Department of Social Services, private counsels.’ As a matter of fact, says the declaration, the majority of such rehearings are granted on the basis of ex parte requests by the Department of Social Services or deputy public defenders. However, the declaration continues, the declarant had no independent recollection as to what caused him to order a rehearing in this particular case.

One of petitioner's points in this writ proceeding is that a rehearing was ordered on the basis of an ex parte request by the district attorney. The respondent denies this. Since the writ must be granted for the reasons outlined above we need not resolve that particular dispute. We do, however, take this occasion to express our view that the power of a juvenile court judge to grant a rehearing after a decision by a referee7 should not be exercised upon ex parte presentations by interested parties or their attorneys. The ability of all counsel to backdoor the juvenile court judge may have been viewed as one of the advantages of the paternalistic juvenile court system, the theoretical basis of which was destroyed by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. While Gault does not, of course, specifically deal with this practice, we are certain that the spirit of that decision imports that ex parte motions are not to be tolerated in juvenile court any more than they are in the rest of the judicial system. We recognize that the dispatch of judicial business, particularly in a busy forum such as the juvenile court in a large metropolitan area, makes a certain amount of ex parte contact between court and counsel inevitable. We need not try to decide the perimeter of such permissible ex parte communications. Nor do we hold that there is anything wrong in requests for rehearings being made ‘informally,’ that is to say an oral presentation in chambers without a formal written motion. We do, however, hold that before a rehearing can be granted under section 559 because an interested party requests it, the party that is perfectly satisfied with the referee's ruling, must be given some opportunity to oppose the request. Fairness and the ethics of our profession demand no less.

DISPOSITION

When this matter again reaches the juvenile court, it should proceed to hold a jurisdictional hearing. Nothing in this opinion shall be construed to deprive the juvenile court of the power to declare the minor unfit under section 707, in accordance with proper procedures.

Let a writ of prohibition issue directing the respondent court and the People to take no further action in the criminal proceedings in People v. Leach (respondent court's number A–421 988) pending a re-examination of the juvenile court proceedings involving petitioner in accordance with the views expressed herein.

I concur in the result. To logically set forth my analysis in determining the issues before us, it is necessary to commence with a statement of procedural and evidentiary facts differing somewhat from the majority opinion.

This cause arises by was of a ‘Petition for Writs of Mandate ant Prohibition Pursuant to Penal Code Sections 995 and 999a.’ The petition sought to have declared void that order holding petitioner to answer for various felonies1 ‘in that petitioner was then and there the proper subject of Juvenile Court jurisdiction, in that respondent [Superior Court] sitting as a Juvenile Court, did not lawfully waive its jurisdiction over petitioner.’ After that ‘petition’ was denied by this court, a petition for hearing was filed in the Supreme Court; the hearing was granted and the matter was transferred back to this court.

Procedural and Factual History

On December 29, 1970, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that the minor, DRL, had committed four offenses, each of which if committed by an adult would be a felony. On December 30, 1970, after proof that DRL was between the ages of 16 and 18, DRL denied the allegations, and his case was set for a hearing,2 hereinafter referred to as a ‘707’ or ‘fitness' hearing, to determine whether the Juvenile Court should declare him ‘not a fit and proper subject to be dealt with under [the Juvenile Court Law].’ The fitness hearing was set for January 8, 1971 upon motion of the deputy district attorney who was acting for the Probation Department in the presentation of the facts in support of the petition. At the time of the motion to set the matter for a fitness hearing, the public defender theretofore having been appointed to represent DRL objected to the setting of such a hearing. The grounds stated for the objection were that ‘to move the court for a fitness hearing is a motion which has to be based upon some sort of cause, which would lead us to believe at this point that perhaps there is an issue as to fit or unfitness, and perhaps there is an issue as to minor's eligibility to further juvenile court treatment. * * * [I] feel without reference to such acts, without some information which would justify the court in ordering a fitness hearing, a fitness hearing is improper. [I] feel, because the minor is 17 years old, he falls under the Juvenile Court Law, [and] does not fall within the general jurisdiction of the Superior Court.’ The court, after reference to certain documents3 then in its possession and reading at least a portion thereof into the record, overruled the objection, ordered the fitness hearing for January 8, and ordered that the petitioner there ‘submit to the Court behavioral report,’ as required by section 707. Thereafter, the deputy public defender urged the court to grant a psychiatric examination (Evid. Code § 1017) and that the results be made available at the fitness hearing4 . In the subsequent argument as to the applicability of section 1017 in fitness hearings, it was suggested that an accelerated clinical examination might be the desire of the deputy public defender, but this offer apparently was not acceptable to him, for he continued to seek a ‘confidential psychiatric examination,’ and no clinical evaluation subsequently appears in the record.

On January 8, 1971, the deputy public defender moved for a severance of any hearing, there being two other minors co-charged in at least some of the allegations of the petition. Also, a motion on behalf of DRL for continuance of the fitness hearing to January 22, 1971 was granted, to permit inquiry into DRL's behavioral background in the State of Oregon, where the minor had resided until the fall of 1970. A renewed motion for the appointment of a psychiatrist under section 1017 was denied without prejudice to the renewal thereof at the time of trial.

On January 22, 1971, the fitness hearing was held.5 At this hearing Referee Moore had before him ‘a packet, with cover letter from the Circuit Court of the State of Oregon, Klamath County, Juvenile Department, which contains photostatic copies of record in the matter of [DRL].’ An order continuing a hearing on the petition, an order and disposition dated January 29, 1968, and a copy of a petition dated February 6, 1968 which was filed, a letter from MacLaren School for Boys, Corrections Division, Oregon State Board of Control, together with copies of material from the Social Board plus a summary of numerous notes and reports relating to the minor's behavior while at the school and on ‘parole'6 were contained in the packet. All of these records, plus a California probation officer's behavioral report dated January 8, 1971, and a supplemental behavioral report dated January 22, 1972 were submitted into evidence by the minor.7 In addition to the above, the referee took evidence from witnesses, and after hearing argument by counsel, found the minor ‘a fit subject for the Juvenile Court.’ The cause, on the adjudication issue, was set for hearing on February 5, 1971. On January 27, 1971, Presiding Judge Freeman of the Juvenile Court issued the following order: ‘Pursuant to section 559 of the Welfare and Institutions Code, the Court on its own motion now orders a rehearing of the findings and order of Referee Moore made on January 22, 1971, a fitness hearing; that the matter shall be set for the appearance calendar of February 3, 1971 at 9:00 a. m. in Dept. 99.’ (The propriety and legality of this order will be subsequently discussed under one of the contentions raised by petitioner.) On January 29, 1971, the deputy public defender filed a motion for continuance from the date set for the rehearing (February 3) to February 17 ‘for purposes of preparation of such case, and to allow time for the preparation of a transcript of the fitness hearing heard on January 22, 1971.’ This motion was denied by Judge Barrett, the judge who was ultimately to rehear the matter. Thereafter, on February 3, 1971, by stipulation, the case was continued to February 18, 1971 for rehearing on the fitness issue, and it was to be held before a judge of the Superior Court sitting as a Juvenile Court judge.8

In a preparatory effort to meet the fitness issue at the time of the rehearing, the deputy public defender filed a discovery motion.9 This motion was consolidated with the fitness hearing and set for determination on February 18 on motion of the deputy public defender with the expressed hope that it might be heard ‘in advance of the fitness hearing, if possible.’ At the time of the February 18 hearing, the motion was presented as the first matter to be considered by the court. After argument, the court declared that the motion came ‘too late,’ and determined to proceed directly to the fitness issue and to then consider the discovery motion. It was in this order of business that the hearing of February 18 commenced. The documents which had been admitted into evidence in the first of the fitness hearings were again submitted for examination by the judge, though the record does not disclose a formal admission of some of them into evidence. The record clearly indicates that either these documents were submitted by and on behalf of the minor, or that those admitted in the first fitness hearing were, by joint acquiescence of the deputy public defender and the deputy district attorney, presented to the judge for his examination.

A recitation of the facts giving rise to the allegations in the petition is deemed unnecessary in the instant case due to procedural error. Section 707,10 in essence, grants to the court the power to make a determination that a minor, as described in section 602 and of certain minimum age requirements, is unfit to be dealt with as a juvenile, and therefore must be treated as though he were an adult. The first sentence of section 707 tells us that this determination may be made ‘[a]t any time during a hearing upon a petition alleging that a minor is * * * a person described in Section 602 * * *.’ (Emphasis added.) The word ‘petition’ as used in section 707 refers to section 650: ‘A proceeding in the juvenile court to declare a minor a ward * * * of the court is commenced by the filing with the court * * * a petition, in conformity with the requirements of [sections 650–664].’ There are two different hearings that may properly be termed as ‘hearings on the petition’ as that term is used in section 707. The first is the section 701 hearing. In this hearing, the court determines whether the juvenile court may properly take jurisdiction over the minor. Jurisdiction may be taken whenever evidence is adduced to show that the ‘minor is a person described by * * * Section 602 * * *.'11 (Welf. & Inst. Cede § 701.) Therefore, in the 701 hearing, when jurisdiction is to be taken on the basis that the minor ‘is a person described by * * * 602,’ admissible evidence is limited to evidence that is ‘relevant and material’ to a 602 determination. Section 602 provides in part: ‘Any person under the age of 21 years who violates any law * * * is within the jurisdiction of the juvenile court * * *.’ Therefore, whenever jurisdiction is to be taken on the basis of 602, evidence admissible in the 701 hearing is limited to that evidence which is relevant and material to establishing that the minor has ‘violated’ a law, and all other evidence is inadmissible. Certainly, one type of inadmissible evidence is a probation report. (In re Gladys R., 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127.)12 However, we have been told by the California Supreme Court that a 707 ‘fitness' determination cannot be made in the absence of a probation report. (Jimmy H. v. Superior Court, 3 Cal.3d 709, 91 Cal.Rptr. 600, 478 P.2d 32.)13 The result of this is that since probation reports are impermissible in 701 jurisdictional hearings, and since probation reports are compulsory in making 707 fitness determinations, it follows that the 701 ‘hearing on the petition’ is not the ‘hearing on the petition’ referred to in section 707.

The second hearing that may properly be termed ‘a hearing on the petition’ [emphasis added] as that term is used in section 707 is the hearing to be held under 706. Section 706 provides: ‘After finding that a minor is a person described in * * * 602, the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the [probation report] of the minor made by the probation officer and such other relevant and material evidence as may be offered, and in any judgment and order of disposition, shall state the social study * * * has been read and considered by the court’ (Emphasis added.) This section 706 hearing is generally referred to as the dispositional hearing. In this hearing, it is expressly authorized, and demanded, that a probation report be admitted into evidence. (Jimmy H. v. Superior Court, supra.) Therefore, since a 706 dispositional hearing is a ‘hearing on the petition’ as referred to in section 707, and since probation reports are mandatory in the 706 dispositional hearing, and since probation reports are mandatory in making the 707 fitness determination, it is inescapable then that the 706 dispositional hearing is the only hearing in which a 707 fitness determination may be made. Not only is this the necessary result of examination of the code, it is legislatively logical: a court cannot determine whether a minor will be amenable to juvenile court treatment until the court first determines whether the minor is subject to juvenile court treatment.14

In the case before us, the first judicial proceeding to which petitioner was subjected after he was temporarily detained was ordered as a ‘fitness hearing,’ to which petitioner properly objected. Since there is no such hearing as a ‘fitness hearing,’ but only a ‘fitness determination’ that, if applicable, is made in a 706 dispositional hearing, then the order represents two possibilities: first, the order was actually intended to be for a ‘dispositional hearing,’ in which case the order,15 the subsequent hearing, and the order arising out of the hearing16 were all void as having improperly preceded a 701 jurisdictional hearing;17 or, second, the order really was intended to be for a ‘fitness hearing,’ in which case the order, the subsequent hearing, and the order arising from the hearing were likewise void for the reason that there is no such hearing authorized by the code. Since, under either interpretation, the order, the subsequent hearing, and the order arising from the hearing were void, then the judge, in the exercise of his powers under section 55918 in setting aside the order arising from the hearing, acted properly, for the order showed the type of hearing upon which it was based. However, when that same judge proceeded to order a rehearing of that same ‘fitness hearing,’19 he likewise issued a void order, and as a consequence of that order, a second void ‘fitness hearing’ was held from which there again issued a void order, this time declaring petitioner unfit to be dealt with as a juvenile, as contrasted to the first finding of fitness.

Despite our above analysis, the order for ‘rehearing’ indicates that it may not have been the voidness of the referee's hearing which prompted the judge's action. If that be the case, there was an error caused by the court's abuse of discretion in granting a rehearing on the fitness issue without reference to the evidence adduced at that hearing.20

In Richard M. v. Superior Court, 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664 and in In re Gladys R., 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127, the Supreme Court has reiterated the close relationship between juvenile proceedings under Welfare and Institutions Code section 602 and the constitutional protections guaranteed in criminal actions. Welfare and Institutions Code section 55821 provides the right of the minor involved, or his parent or guardian, to apply to the Juvenile Court for a rehearing where the hearing complained of was held before a referee. Assuming the validity of the hearing where, as in Los Angeles, a reporter is recording the proceedings had before the referee, it is the obligation of the Juvenile Court judge, before acting upon the application, to read the transcript of such proceedings. Thus, though there is implicit within the section a requirement for the exercise of judicial discretion, it is not spelled out in detail. The Legislature has expressed its faith in the judge not to act in an arbitrary and capricious manner. Likewise, there is provided by section 559 the right of the Juvenile Court judge, on his own motion, to order a rehearing of any matter heard before a referee. Again, without the feeling of necessity to spell out that discretion was required, the Legislature relied upon the customary judicial use of discretion as an adequate safeguard of that power which might otherwise be used capriciously. We read within section 559 the requirement that the judge who orders a rehearing after acquiring knowledge of the proceedings which have been held before the referee must act in the exercise of judicial discretion.22

Undoubtedly, the ultimate responsibility for the result of the Juvenile Court hearing, be it before a referee or the judge, is that of the judge, and the Legislature has affixed safeguards to assure that that responsibility shall not change.

I conclude that the rationale of In re William M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737, particularly at page 30, expresses the concern for discretionary rulings. There could be no greater impact upon the citizenry than through its youth, and justice implies reasoning, not arbitrariness. As stated in William M. (at p. 30, 89 Cal.Rptr. at p. 43, 473 P.2d at p. 747): ‘The requirement for factual hearings prescribed by sections 630 and 635 would be pointless if the juvenile court could refuse to hear any facts at all in named categories of cases.’

Having determined that all of the orders in this case regarding ‘fitness hearings' were void, the peremptory writ must be granted, and upon return of petitioner to the Juvenile Court, the Juvenile Court should proceed with the jurisdictional hearing provided for in section 701.

I concur in so much of this concurring opinion as deals with Welfare and Institutions Code section 559.

FOOTNOTES

1.  Unless otherwise noted all references to code sections are to the Welfare and Institutions Code.

2.  The crimes which allegedly brought Donald under the provisions of section 602 were robberies, allegedly committed on December 24 and 25, 1960, and a murder committed on the later date.

3.  It is apparent that in the respondent court the term ‘fitness' is used synonymously with amenability ‘to the care, treatment and training program available through the facilities of the juvenile court,’ the precise language employed in section 707. We shall, from time to time, avail ourselves of the same verbal shorthand.

4.  The circumstances which motivated the judge to order the rehearing are a matter of dispute. We advert to the problem at the end of this opinion.

5.  Although certain of petitioner's contentions, both in juvenile court and before us come extremely close to the ground upon which we feel compelled to grant the writ, he does not urge the precise reason for our decision. It appears, however, from the record that the procedure which we hold to be out of tune with the statutory scheme was one that was customarily followed by the respondent court. ‘* * * Furthermore, the failure of the minor's attorney to object at the juvenile court hearing to the court's premature use of the social study does not bar the consideration of this issue on appeal; we cannot expect an attorney to anticipate that an appellate court will later interpret the controlling sections in a manner contrary to the apparently prevalent contemporaneous interpretation.’ (In re Gladys R., 1 Cal.3d 855, 861, 83 Cal.Rptr. 671, 676, 464 P.2d 127, 132. Emphasis added.)

6.  In People v. Brown, 13 Cal.App.3d 876, 881, 91 Cal.Rptr. 904, 906, the court noted that the language of section 707 ‘might sequentially be better placed before the dispositional provisions of section 702.’ The point, of course, is that it was not so placed. In a later decision, In re Gary Steven J., 17 Cal.App.3d 704, 708, 95 Cal.Rptr. 185, the portion of the Brown decision in which the quoted statement was made, was described as a dictum.

7.  As noted the power rests on section 559 of the Welfare and Institutions Code which reads as follows: ‘A judge of the juvenile court may, on his own motion, order a rehearing of any matter heard before a referee.’

1.  In March 1971, an information was filed in the Superior Court against petitioner (a minor). The result reached makes unnecessary a detailing of the charges.

2.  Welf. & Inst. Code § 707:‘At any time during a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602, when substantial evidence has been adduced to support a finding that * * * the minor was 16 years of age or older at the time of the alleged commission of such offense and that the minor * * * would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, or if, at any time after such hearing, a minor who * * * was 16 years of age or older at the time of the commission of an offense and who was committed therefor by the court to the Youth Authority, is returned to the court by the Youth Authority pursuant to Section 780 or 1737.1, the court may make a finding noted in the minutes of the court that the minor is not a fit and proper subject to be dealt with under this chapter, and the court shall direct the district attorney or other appropriate prosecuting officer to prosecute the person under the applicable criminal statute or ordinance and thereafter dismiss the petition or, if a prosecution has been commenced in another court but has been suspended while juvenile court proceedings are held, shall dismiss the petition and issue its order directing that the other court proceedings resume.‘In determining whether the minor is a fit and proper subject to be dealt with under this chapter, the offense, in itself, shall not be sufficient to support a finding that such minor is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.‘A denial by the person on whose behalf the petition is brought of any or all of the facts or conclusions set forth therein or of any inference to be drawn therefrom is not, of itself, sufficient to support a finding that such person is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.‘The court shall cause the probation officer to investigate and submit a report on the behavioral patterns of the person being considered for unfitness.’

3.  These documents recited the facts that DRL was an escapee from placement by the Oregon Juvenile Court and had been a ‘run away’ from such placement several times; that he had a prior record of petty theft, incorrigible behavior, was married, and the father of a child.

4.  Reference was to Evid.Code § 1017: ‘There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his mental or emotional condition.’

5.  No renewed objection to the holding of the fitness hearing was made at this time.

6.  The record is replete with the explanation that ‘parole’ as it is used in Oregon is relatively the same as ‘probation’ as used in California, and that it is not the same as ‘parole’ as used in this state.

7.  From the reporter's transcript: ‘MR. HARE [Deputy District Attorney]: Excuse me, all of these documents were submitted into evidence by the minor; is that——THE COURT: They were. Yes.'

8.  Welf. & Inst. Code § 560: ‘All rehearings of matters heard before a referee shall be before a judge of the juvenile court and shall be conducted de novo.’

9.  This motion sought an inspection of various documents, statements and reports alleged to be available to the petitioner.

10.  Hereafter, unless otherwise noted, all section references are to the Welfare and Institutions Code.

11.  Welfare and Institutions Code section 602 provides: ‘Any person under the age of 21 years who violates any law of this State or of the United States or any ordinance of any city or county of this State defining crime or who, after having been found by the juvenile court to be a person described by Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.’

12.  ‘The history of Welfare and Institutions Code sections 701 * * * and 706 clearly indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine * * * jurisdiction * * * and thereafter would consider the [probation] report at a [706] hearing on * * * disposition * * *. [T]he court's review of the social study prior to the jurisdictional hearing, at which the jurisdictional facts were far from conclusive, constituted prejudicial error.’ (In re Gladys R., 1 Cal.3d 855, 859, 862, 83 Cal.Rptr. 671, 674, 464 P.2d 127, 130.)

13.  ‘Though the standards for determining a minor's fitness for treatment as a juvenile lack explicit definition [Citations omitted], it is clear from the statute [707] that the court must go beyond the circumstances surrounding the offense itself and the minor's possible denial of involvement in such offense. [Citations omitted.] The court may consider a minor's past record of delinquency [Citations omitted], and must take into account his behavorial pattern as described in the probation officer's report.’ (Jimmy H. v. Superior Court, 3 Cal.3d 709, 714, 91 Cal.Rptr. 600, 603, 478 P.2d 32, 35.)

14.  It is this conclusion with which the majority opinion is at variance. (See majority opinion, pp. 690–691.) If the rationale of the majority were to be applied to the adult processes, it would be proper to hold a sentencing (dispositional) hearing before the trial (adjudicatory hearing).

15.  The court's order of January 8, 1971 stated: ‘THE CASE IS CONTINUED TO THE APPEARANCE CALENDAR OF JANUARY 22, 1971, 9:00 A.M., LOS ANGELES, FOR A FITNESS HEARING.’ (Emphasis added.)

16.  The court's order of January 22, 1971 stated: ‘[T]he Court finds that the minor is a fit subject for Juvenile Court * * *. Matter is continued * * * for adjudication.’ By adjudication, the court apparently meant the jurisdictional hearing as prescribed by 701.

17.  Welfare and Institutions Code section 706 states: ‘After finding that a minor is a person described in * * * 602, the court shall hear evidence on the question of the proper disposition of the minor. ‘ (Emphasis added.)

18.  Welfare and Institutions Code section 559: ‘A judge of the juvenile court may, on his own motion, order a rehearing of any matter heard before a referee.’

19.  The court's order of January 27, 1971: ‘pursuant to Section 559 of the Welfare and Institutions Code, the Court on its own motion now orders a rehearing of the findings and order of the referee made on January 22, 1971, a fitness hearing * * *.’ (Emphasis added.)

20.  The fact that the presiding judge did not refer to the transcript (or indeed, to the file itself) is established by filed affidavits in support of the petition.

21.  Welf. & Inst. Code § 558: ‘At any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his parent or guardian may apply to the juvenile court for a rehearing. Such application may be directed to all or to any specified part of the order or findings. If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of such proceedings, grant or deny such application. If proceedings before the referee have not been taken down by an official reporter, such application shall be granted as of right. If an application for rehearing is not granted within 20 days following the date of its receipt, it shall be deemed denied.’

22.  The section is procedural in its nature, and implements the power of the Juvenile Court judge, given to him by other sections of the Juvenile Court Law, to make the decision of the referee conditional, and not final. The Legislature has given the Juvenile Court judge the power to establish requirements that all orders of the referee shall be expressly approved by him before becoming effective as final judgments. Prior to the amendment of the Juvenile Court Law in 1961, all findings and recommendations of the referee were required to be submitted to the Juvenile Court judge for approval before they became effective as orders (Stats. 1937, ch. 369, p. 1022, § 567.) Section 559, added by the statutes of 1961, was one of the measures adopted to relieve the judge of this burden, and to allow him to review the order of the referee in those cases in which he felt that it was necessary or advisable. The matters and things which might prompt the Juvenile Court judge to order a rehearing on any matter heard before a referee could vary widely, depending upon the facts of each case. Just how the Legislature could lay down detailed guidelines to help the Juvenile Court judge in determining when to order, or when not to order, a rehearing under such wide and varied circumstances is not apparent to us. In any event, under the Juvenile Court Law, the minor is afforded due process of law by review of the judgment of the Juvenile Court judge on appeal from the judgment rendered upon the final order.

KAUS, Presiding Justice.

AISO, J., concurs.