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Court of Appeal, Fourth District, Division 1, California.

IN RE: RONALD E., on Habeas Corpus.

Civ. 14923.

Decided: August 04, 1976

Appellate Defenders, Inc., by J. Perry Langford, and Alden J. Fulkerson, San Diego, under appointment by the Court of Appeal, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler and John W. Carney, Deputy Attys. Gen., for respondents.

Ronald E. petitions this court for a writ of habeas corpus challenging the procedures followed by the juvenile department of the Imperial County Superior Court and the California Youth Authority which led to the revocation of his parole and to his confinement at the Youth Training School, Ontario, California.

In June 1971, petitioner was made a ward of the Imperial County Juvenile Court. Since then, five supplemental petitions alleging criminal activity have been filed against petitioner. Following the third supplemental petition, petitioner was committed to California Youth Authority. No appeal was taken from his order of commitment. Petitioner was later paroled.

A fourth supplemental petition was filed in April 1975 charging petitioner with taking an automobile without the consent of the owner with intent to temporarily deprive the owner of possession (Veh.Code § 10851). A jurisdictional hearing was held and the court found the allegation to be true. Rather than make an order ‘adjudicating’ or continuing the minor a ward of the court, the juvenile court ordered the matter referred to the California Youth Authority parole board for final disposition.

Based at least in part on the true finding by the juvenile court, the California Youth Authority parole board revoked petitioner's parole. He was again paroled in September 1975.

Petitioner attempted to appeal the order of the juvenile court which contained the true finding. On motion of the Attorney General, this court dismissed the appeal because no final, appealable order had been entered by the court below (In re Ronald E., 4 Civil 14520, filed February 26, 1976 and not certified for publication). The order referring petitioner to the parole board was construed as a custodial directive in response to a ‘hold’ which had been placed on petitioner by the California Youth Authority.

Following petitioner's parole in September 1975, essentially the same procedures were repeated. A fifth supplemental petition was filed. The juvenile court found the allegations of criminality contained in the petition were true and referred the matter to the parole board for final disposition.

Before the juvenile court hearing on the fifth supplemental petition was held, petitioner was given a ‘notice to parolee awaiting court action’ which provided in pertinent part:

‘You have been charged with violating a law.

‘No parole revocation hearings will be held until court action is completed. The Youth Authority may order you held in custody until the court action is completed.

‘Any court or criminal proceeding which establishes probable cause to believe that you have violated a law may be used by the Youth Authority as a determination of probable cause to believe that you have violated parole in subsequent parole revocation proceedings.

‘If the court decides you have violated a law, this will be considered as a violation of parole, and will be considered by the Youth Authority in deciding whether to revoke your parole.’

The parole board conducted a violation and disposition hearing and again revoked petitioner's parole. It is apparent the two allegations, as to which the juvenile court had earlier made true findings, were not independently tried by the parole board. The board merely ascertained petitioner was the juvenile to whom the findings related and found they constituted a substantial violation.

Petitioner meritoriously contends the procedures followed by the parole board and the court have thwarted any effective review of his parole revocation either judicially or administratively.

Ordinarily a parole authority's action will be judicially reviewed on habeas corpus only where the authority acts ‘without information, fraudulently or on mere personal caprice’ (Eason v. Dickson, 9 Cir., 390 F.2d 585, 589, fn. 4; In re Spence, 36 Cal.App.3d 636, 640, 111 Cal.Rptr. 782). The only information before the parole board regarding the two most serious allegations was that the juvenile court had found the allegations were true. Had the juvenile court acted upon its findings by filing an appealable order, petitioner would not be prejudiced by this procedure because he would be entitled to a reconsideration of his parole revocation should the juvenile court action be reversed on appeal (In re Brown, 67 Cal.2d 339, 341, 62 Cal.Rptr. 6, 431 P.2d 630).

Because the juvenile court action resulted in an interim nonappealable order, petitioner has been denied judicial review of its findings. The parole board's uncritical acceptance of the court's findings demonstrates the futility of any administrative review of the judicial findings. In effect the court acted as a hearing officer for the board in a manner in which the hearing officer's findings could not be questioned. The procedure denies petitioner due process in the matter of his parole status.

The procedural defects to which we allude were involved in the actions taken on both the fourth and fifth supplemental petitions. Petitioner is not presently restrained by reason of the fourth supplemental petition so we do not extend relief to that proceeding.

Petitioner does contend we should set aside the commitment order which was based upon the third supplemental petition because the reporter of the hearing on that petition was not an official court reporter. That was an issue which would have been reviewable had an appeal been taken. Habeas corpus cannot serve as a substitute for an appeal in the absence of special circumstances (In re Shipp, 62 Cal.2d 547, 551, 43 Cal.Rptr. 3, 399 P.2d 571; In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513). We hold special circumstances are not present where, as here, a court reporter not qualified by certification may be appointed by the court to serve as a pro tempore official reporter in Imperial County upon a written stipulation of the parties (Gov.Code § 70044). Since the use of an unqualified court reporter may be waived by stipulation at trial, we hold a failure to object to the reporter's qualifications on appeal, or by failing to take an appeal, waives the objection for purposes of habeas corpus.

Petitioner contends he was not adequately advised of his Boykin-Tahl rights either at the hearing on his initial petition in 1971 or at the hearings on the first three supplemental petitions. These four proceedings all involved an admission of the allegations by Ronald. The third supplemental petition resulted in Ronald's commitment to CYA, his later parole and to his recommitment on the fourth and fifth supplemental petitions for violation of parole.

Boykin-Tahl advisements of rights are applicable to juvenile proceedings in which the juvenile admits an offense involving delinquency and potential detention (In re Mary B., 20 Cal.App.3d 816, 820, 98 Cal.Rptr. 178). A failure to establish a knowledgeable waiver of rights before accepting a guilty plea (or admission in a juvenile case) in the record of the proceedings is a ground for habeas corpus relief (In re Sutherland, 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857).

The People concede there was no compliance with Boykin-Tahl requirements at the hearing on the initial petition in 1971. Indeed, Ronald did not even personally admit the allegations of the petition at that hearing.

We need not determine whether the defect in the hearing on the initial petition carries over to infect the supplemental petitions which followed and which ultimately led to Ronald's present commitment.

Following the initial petition and the first and second supplemental petitions, the juvenile court's dispositions involved juvenile hall detention, foster home placement and release to Ronald's mother. It was not until after the hearing on the third supplemental petition that Ronald was committed to the CYA. That commitment led to Ronald's status as a parolee and to his recommitment following the fourth and fifth supplemental petitions for violation of parole.

Ronald's present confinement flows from his commitment to CYA based upon the third supplemental petition because the parole which was revoked is related to that commitment. The allegations of the third supplemental petition were admitted, giving rise to our inquiry whether the requirements of Boykin-Tahl were met.

On March 8, 1974 the juvenile court called Ronald's case on the third supplemental petition. The court appointed the Public Defender to represent him and the Public Defender acknowledged receipt of a copy of the petition. Ronald was detained pending a jurisdictional hearing set for March 15, 1974. At the March 15, 1974 hearing the third supplemental petition was amended to allege Ronald received stolen property rather than the original allegation of burglary. Defense counsel announced Ronald would admit the allegations contained in the petition as amended. The court then advised Ronald as follows:

‘THE COURT: Well, Ronald do you understand that under the law you don't have to say anything you can remain silent do you understand that right?

‘RONALD E: Yes, sir.

‘THE COURT: Do you understand further that you have the right to have witnesses brought in here to testify as to your conduct and you have the right to cross-examine those witnesses, do you understand that you have this right?

‘RONALD E: Yes, sir.

‘THE COURT: And do you understand further that you have the right to have witnesses brought in for you to testify on your side, do you understand that you have this right?

‘RONALD E: Yes, sir.

‘THE COURT: All right, understanding Ronald, that you have those rights do you now give up those rights and admit the allegations in the petition, receiving stolen property as amended here in Court?

‘RONALD E: Yes, sir.

‘THE COURT: Very well, you may sit down. Upon stipulation of his counsel and after advising the minor of his constitutional rights and the minor having waived those rights the Court will find the third supplemental petition sustained.’

While defense counsel said he had discussed the amended allegation with Ronald, it does not affirmatively appear on the record that Ronald understood the nature and elements of the crime of receiving stolen property. Likewise lacking on the face of the record is a factual basis for the admission or advice as to the consequences (In re Tahl, 1 Cal.3d 122, 133, 81 Cal.Rptr. 577, 460 P.2d 449).

Ordinarily the remedy for Boykin-Tahl error is to permit a withdrawal of the plea (admission here) and to remand for further proceedings (In re Sutherland, supra, 6 Cal.3d 666, 672, 100 Cal.Rptr. 129, 493 P.2d 857). Were we to do that we would be faced with the problem of whether compliance with Boykin-Tahl requirements in proceedings on a supplemental petition operates to cure Boykin-Tahl error on the initial petition which is now some five years old. The problem arises because of the practice of tying the proceedings together by use of supplemental petitions when independent petitions would serve the purpose. Under these circumstances we deem it appropriate to order the discharge of petitioner rather than to seek a way to patch up the multiple errors appearing in the procedures followed in his case.

The writ of habeas corpus is granted and petitioner is ordered discharged from custody.

GERALD BROWN, Presiding Justice.

AULT and COLOGNE, JJ., concur.