IN RE: THIERRY S.

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

IN RE: THIERRY S., a Person Coming Under the Juvenile Court Law. Donald D. KING, as Chief Probation Officer, etc., Petitioner and Respondent, v. THIERRY S., Defendant and Appellant.

Cr. 27911.

Decided: August 19, 1976

Grundell, Smith & Farmer by David Fitzpatrick, San Luis Obispo, for petitioner and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Kathleen M. Crain, Deputy Attys. Gen., for respondent.

In a petition filed by the probation officer of San Luis Obispo County, it was alleged that Thierry S. was a minor who came within the provisions of Welfare and Institutions Code section 6021 , in that he did wilfully damage real property in violation of Penal Code section 594.2

The trial court found the petition to be true, and declared the minor a ward of the juvenile court pursuant to Welfare and Institutions Code section 602; he was placed at home with his parents under conditions of probation and under the supervision of the probation officer. Thierry has appealed from the judgment (order granting probation).

At approximately 1:00 p. m. on June 7, 1975, Mr. Gregory Johnson was supervising his children while they played at the Los Ranchos School playground. Johnson's son told him he had seen some legs sticking out of a window, and Johnson went to investigate. Johnson saw Thierry and another minor standing near the school building, next to a window which was broken. The minor companion of Thierry appeared to Johnson to have something in his hand, either a piece of window pane or a piece of metal stripping. Johnson asked the boys what they were doing, and they replied, ‘hiking.’

Johnson looked through the broken window and observed that the faucets of a sink, located near the window, were running and that the drain was stopped up with paper towels. Johnson then detained the minors and called the sheriff's department. Apparently another person arrived on the scene and tied the boys up so that they would not depart.

Deputy Sheriff Steven Bolts answered the call for assistance. Johnson told Bolts what he had seen; Bolts observed the damage, and placed the minors under arrest; he testified at trial that at this time he believed that the minors had committed a misdemeanor, but not a felony. The minors were advised of their rights with respect to custodial interrogation and taken to the Juvenile Detention Center. Thierry's parents arrived, and Thierry was readvised of his Miranda rights.

Both Thierry and his minor companion had been carrying knapsacks on the day they were arrested and, while Thierry and his companion were being detained, the arresting officer obtained consent to search these items from the companion and Thierry's parents, but not from Thierry. The knapsack of the minor companion contained some small bolt-like objects, referred to at trial as clevises, which the companion stated he had found on the railroad tracks. Search of Thierry's knapsack also revealed some of these objects.

Thierry was released to his parents, after a promise to appear in juvenile court had been obtained. About two weeks later, Deputy Bolts saw a departmental request for information about certain locks used by the Southern Pacific Railroad. On June 7, 1975, another deputy had commenced investigation of damage done to some railroad signal boxes belonging to the Southern Pacific. Small bolt-like objects had been removed, wires had been cut and batteries removed, rendering the signal boxes inoperative. Bolts contacted this deputy, Anselmi, and told him what he had observed in Thierry's pack.

Anselmi contacted Thierry at the latter's home. After Thierry was again advised of his rights, he admitted, in the presence of his parents, that the objects in his pack had been taken by him while he was damaging railroad property. Thierry told a similar story to a railroad detective the following day.

Hence, the petition in juvenile court was filed for damaging railroad property.

At the trial, the minor's counsel raised the issue of the legality of the initial arrest of Thierry by Deputy Sheriff Bolts, and directed the court's attention to Welfare and Institutions Code section 625.13 , a relatively new section, added to that code in 1971, concerning the arrest of minors. The People, and the trial court, relied upon Welfare and Institutions Code section 625, on the ground that that general section conferred upon peace officers the right to detain minors when they suspected that any violation of law had taken place, whether in their presence or not, and whether a misdemeanor or a felony.4

I

By sustaining the petition, the trial court upheld the legality of the original detention of Thierry, a minor, a detention made without a warrant, and justified upon the ground the detaining officer had reasonable cause to believe that such minor had committed a misdemeanor, although the alleged offense had been committed at a time when the officer was not present.

The issue presented on this appeal is the proper construction of Welfare and Institutions Code section 625.1, and what impact, if any, its passage by the Legislature has had on the broad power granted to police officers by Welfare and Institutions Code section 625, to take juveniles into custody without a warrant. Thierry argues here that section 625.1 limits the power of police officers to warrantless detention or custody of minors only when one of the enumerated circumstances set forth therein is applicable, and that since the enumerated circumstances do not include a warrantless detention or taking into custody for misdemeanors not committed in the officer's presence, Thierry's detention was illegal in its inception.

The People argue on this appeal that the broad grant of power bestowed by section 625 remains the controlling law with respect to warrantless detentions and taking into custody. The People maintain that section 625.1 merely clarifies the grant of power already given. The People also point out that Welfare and Institutions Code section 625, which was enacted in 1961, was amended by the Legislature in 1971, approximately a month after section 625.1 of the same code was passed, substituting age 18 for 21 years and, that if the Legislature had intended to limit the broad authority granted by section 625, it would have expressly repealed the section or would have expressed some recognition of the limitation arguably imposed by section 625.1.

We have not been directed to, nor have we found, any expression of legislative intent underlying the passage of section 625.1. It is clear, however, that when major revision of the juvenile law was undertaken in 1961, section 625 was intended to confer broad authority on police officers with respect to warrantless detention of juvenile offenders. (See generally, Governor's Special Study Commission on Juvenile Justice, Part I, pp. 42–43, 65; Part II, pp. 95–97; compare Pen.Code, § 836, which does not give police officers the right to arrest, without a warrant, an adult for misdemeanors not committed in the officer's presence.)5

The question before us is what the Legislature had in mind in 1971, in enacting Welfare and Institutions Code section 625.1 ten years after the enactment of section 625. One comment notes that ‘[i]t appears that § 625.1 is added by Chapter 1415 to conform with the provisions of § 836 of the Penal Code, grounds for arrest without a warrant. Section 625.1 incorporates all of the provisions of § 836, however 625.1 adds an additional subdivision, (4).’ (3 Pacific Law Journal (1972) ‘Review of Selected 1971 California Legislation,’ p. 367.) Another commentator has stated that ‘a 1971 amendment adding Welf. & I. C. § 625.1 has created an ambiguity in cases of misdemeanors committed outside the presence of the arresting officer.’ (California Juvenile Court Practice (CEB Supplement November 1975), § 31, p. 7.)

Insofar as we have been able to discover, no reported decision has dealt with the proper interpretation of section 625.1 and its relationship to section 625.

We cannot agree that the Legislature, in adopting section 625.1 in 1971, intended to deviate from the policy that it had accepted in 1961 when the reformed Juvenile Court Act of that year was adopted, following the recommendation of the Special Study Commission. To some extent the two sections overlap. Section 625.1 leaves uncovered detentions under sections 600 and 601 of the Welfare and Institutions Code. Section 625.1 added the subdivision dealing with detention for driving under the influence of liquor or drugs. Subsequent to the adoption and chaptering on section 625.1, the Legislature re-adopted section 625 without change except to conform the age limit from 21 to 18 to changes in age of minority adopted that year. All of those factors lead us to the conclusion that the Juvenile Court Act still permits a police officer to detain a minor in all cases where the officer has reasonable grounds to believe that the minor has committed a criminal offense of any grade.

II

Defendant contends that to permit detention of a minor for a misdemeanor not committed in the presence of the arresting officer constitutes a denial of equal protection of law. The contention is without merit. In Part II of the Report of the Special Study Commission, the Commission expanded on its reasons for recommending a broader power of detention for minors than the law set forth for the arrest of adults:

‘In the area of arrest, it is recommen[ed] that peace officers be authorized to take juveniles into custody without a warrant when the officer has reasonable cause to believe he comes within the jurisdiction of the Juvenile Court Law.

‘Since all minors violating state laws or local ordinances come within the jurisdiction of the juvenile court, the question of whether the alleged offense is a felony or a misdemeanor is one that is pertinent solely in the matter of arrest procedure. There is no distinction in the juvenile court between juveniles referred for felony acts or those referred for misdemeanors, and therefore, there is no reason why distinction should be made in the matter of taking the minor into custody. A juvenile involved in misdemeanant behavior may be in greater need of court attention than a juvenile who has committed a felony. Although felony type behavior is usually more serious, this is not always true. For example, a youth who without permission walks into a neighbor's garage and removes personal property may be charged with a felony, burglary, whereas another youth committing a much more serious offense may have only committed a misdemeanor and could technically be taken into custody only if the act occurred in the presence of an officer or a complaint was filed. It should also be pointed out that merely taking a juvenile into custody by no means indicates that he should be placed in detention. Only those juveniles who actually present a danger to the community or to themselves should be detained. Whether a felony or misdemeanor offense is involved should not be the deciding fatcor [sic] in determining whether detention is necessary.

‘In addition to eliminating the quasi-legal nature of taking juveniles into custody and the employment of ambiguous or felony allegations to support misdemeanor arrests, the commission's recommendation will permit all police processing of juveniles to be governed by the W&I Code and remove those conflicts that now arise due to dependence upon penal code provisions for making juvenile arrests.’ [Italics in original.] (Commission Report, Part II, ch. V, pp. 96–97.)

Since there is a rational basis for the distinction, there is no violation of the Equal Protection provisions of the state and federal constitutions.

III

Neither in the trial court, nor here, has counsel for the minor attacked the validity of the search of the knapsack on any ground other than the claimed illegality of the arrest. Since we hold that the arrest was valid, it follows that the juvenile court proceeding resulted in a valid order.

The judgment (order granting probation) is affirmed.

I dissent.

The majority rejects the minor's contention that Welfare and Institutions Code section 625.1 precluded his warrantless detention by a police officer for a misdemeanor not committed in the detaining officer's presence. The majority also rejects the minor's contention that such a construction of section 625.1 constitutes a denial of equal protection of the laws since an arrest of an adult under similar circumstances is held to be an illegal arrest with all the consequences that flow from an illegal arrest. I consider that both contentions of Thierry S., the minor involved, have merit, and warrant a reversal of the judgment (order granting probation) from which the minor has appealed.

I

SECTION 625.1 OF THE WELFARE AND INSTITUTIONS CODE PRECLUDES A MINOR'S WARRANTLESS ARREST OR DETENTION FOR A MISDEMEANOR NOT COMMITTED IN THE PRESENCE OF THE DETAINING OFFICER

The majority concludes that, in adopting Welfare and Institutions Code section 625.1 in 1971, the Legislature did not intend to deviate from the policy that it had accepted in 1961—ten years earlier—a policy based upon the recommendations of the Governor's Special Study Commission on Juvenile Justice.

I cannot agree that Welfare and Institutions Code section 625.1 merely restates existing law, founded upon the 1960 recommendations of the Governor's Special Study Commission. The position of the majority makes an assumption that the California Legislature expends its time and energy engaging in enacting needless and unnecessary legislation. It is far more reasonable to conclude, as I do, that the legislative intent, in enacting section 625.1, was to limit the broad authority given to peace officers by Welfare and Institutions Code section 625, by conferring upon juveniles warrantless detention or arrest rights substantially similar to the warrantless arrest rights enjoyed by adults. I construe Welfare and Institutions Code section 625.1 as superseding section 625 to the extent that police officers may no longer detain or arrest juveniles or take them into custody for misdemeanors not committed in the officers' presence.

In relying upon the 1960 recommendations of the Governor's Special Study Commission with respect to the juvenile justice system to interpret legislation enacted in 1971, the majority fails or refuses to consider that the present concept of the juvenile justice system is far different from that envisioned by the Governor's Special Study Commission in 1960.

The controversy over the juvenile justice system is discussed at some length in a United States Supreme Court decision rendered in 1971, to wit, McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647. There the majority of that court held that the Sixth Amendment to the United States Constitution did not compel jury trials for juveniles accused of crime. It has been a long-held view that minors require a substantially different treatment from that accorded adults in the criminal justice system, a treatment envisaging emphasis on guidance and rehabilitation, without scrupulous regard for all of the constitutional protections afforded to adult citizens. But this view gradually has been subjected to successful challenge. Thus, it was observed in In re Gault (1967) 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, that ‘neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.’

In In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, the United States Supreme Court held that ‘the Due Process Clause protects the accused [a juvenile] against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ The California Juvenile Court Law of 1961, sponsored by the Governor's Special Commission, provided, in pertinent part, that a finding that a minor had committed a violation of the criminal law needed to be supported only by application of the burden-of-proof standard of proof by a preponderance of the evidence—not the adult criminal law standard of proof beyond a reasonable doubt. (Welf. & Inst.Code, § 701.) But in In re C.D.H. (1970) 7 Cal.App.3d 230, 86 Cal.Rptr. 565, the court held that, as a result of In re Winship, the burden-of-proof standard of proof by only a preponderance of the evidence, found in Welfare and Institutions Code section 701, was unconstitutional. As expressed in In re Winship, supra, 397 U.S. 358, at p. 367, 90 S.Ct. 1068, at p. 1074, 25 L.Ed.2d 368, judicial intervention in a juvenile's conduct ‘cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.’ (Fn. omitted.)

The California Legislature has recognized this changing trend in extending to juveniles charged with criminal law violations many of the protections of the criminal justice system afforded to adults. Thus, a minor must now be advised of his constitutional rights. (Welf. & Inst. Code, § 627.5 (added in 1967).) The juvenile court is now required to appoint counsel for an indigent juvenile charged with committing a misdemeanor, as well as when he is charged with committing a felony. (Welf. & Inst. Code, §§ 634, 679 (sections amended in 1967 and 1971 to make counsel appointment mandatory instead of discretionary).) A juvenile is now entitled to the privilege against self-incrimination and has a right to confrontation by, and cross-examination of, witnesses. (Welf. & Inst. Code, § 702.5 (added in 1967).) A juvenile now has a right to a free transcript on appeal if he is unable to afford counsel. (Welf. & Inst. Code, § 800 (added in 1967).) And in 1971, the California Legislature changed the burden-of-proof standard for proof of criminal law violations by minors to proof beyond a reasonable doubt to conform to the decisional law. (Welf. & Inst. Code, § 701.)

The conclusion is inescapable that the California Legislature, in 1971, was seeking to bring the statutory law more fully in line with this changing view of the juvenile justice system by adding section 625.1 to the Welfare and Institutions Code. Section 625.1 was designed specifically to produce conformity in detention and arrest requirements for juveniles and adults where alleged or suspected criminal violations are concerned.

I find no persuasive reflection of any different legislative intention by the failure of the Legislature to expressly repeal section 625 of the Welfare and Institutions Code when that section was amended a short time after the enactment of section 625.1. The amendment to section 625 was clearly for the purpose of effectuating the change in the law generally as it related to reducing the age of minority from 21 to 18 years, and can hardly be said to constitute reinstatement of the broad authority for detaining or arresting juveniles originally given to police officers by section 625.

It is to be noted that section 625 deals with several matters other than the right of an officer to take a minor into custody for a criminal law violation. Thus, the section pertains to the detention of minors believed to come within the jurisdiction of the juvenile court by reason of sections 600 and 601 of the Welfare and Institutions Code; to the detention of wards or dependent children of the juvenile court who have violated an order of the court or have escaped from a commitment; to the detention of minors found in a street or public place suffering from any sickness or injury which requires medical treatment or hospitalization. Section 625 also imposes on the detaining officer the requirement to advise minors of their Miranda rights.

The fact that Welfare and Institutions Code section 625 deals with a variety of detention situations involving minors, whereas section 625.1 deals only with the detention of minors believed to have violated the criminal law, lends strong support to the conclusion that the Legislature intended section 625.1 to supersede section 625 in the one area of equalizing the detention and arrest rights between minors and adults with respect to violations of the criminal laws. In making the limited amendment to section 625 after the enactment of section 625.1, the Legislature had no reason to conclude that section 625 should be repealed because of the enactment of section 625.1.

The People make the contention that the amendment of section 625 in 1971 after the enactment of section 625.1, without deleting from section 625 the provision giving a police officer the right to make a warrantless detention of a minor for a misdemeanor committed outside of his presence, should be construed as a legislative adoption and approval of the nondeleted provision. Analogy is drawn to the principle of statutory construction that ‘[i]n interpreting a statute of uncertain wording we presume that the Legislature is familiar with prevailing judicial interpretation of the wording and that when it has amended the statute without changing the wording it has tacitly approved prevailing interpretation.’ (Property Research Financial Corp. v. Superior Court (1972) 23 Cal.App.3d 413, 421, 100 Cal.Rptr. 233, 239; see also Enyeart v. Board of Supervisors (1967) 66 Cal.2d 728, 735, 58 Cal.Rptr. 733, 427 P.2d 509; Reimel v. Alcoholic Bev. etc. Appeals Bd. (1967) 256 Cal.App.2d 158, 171, 64 Cal.Rptr. 26, 65 Cal.Rptr. 251.) The analogy of presumed legislative intent when there has been prior judicial construction of a statute is inapposite to the instant case dealing with a statutory amendment to achieve a specific limited purpose.

It is also urged by the People on this appeal that if section 625.1 of the Welfare and Institutions Code is interpreted to supersede section 625, the result is the creation of inconsistent statutes and that, in such a situation, the statute passed last, the amendment to section 625, must prevail over the statute passed first—section 625.1. For this principle of statutory construction, reliance is placed on Davis v. Whidden (1897) 117 Cal. 618, 623, 49 P. 766 and City of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal.2d 284, 288, 282 P.2d 43. The principle of statutory construction set forth in these cases is a valid principle but has no application to the facts of the case before us. The amendment to section 625, enacted after section 625.1, is of course the later statute, but it is not inconsistent with the provisions of section 625.1. The statutory-construction rule of the superiority of a later statute assumes the enactment of conflicting statutes. As applied to the case at bench, the rule leads to the result that section 625.1, a later statute than section 625 on the same subject, prevails over the inconsistent provisions of section 625.

Another principle of statutory construction that I consider applicable to the case at bench states that ‘[w]here the terms of a later specific statute apply to a situation covered by an earlier general one, the later specific statute controls.’ (County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 189, 323 P.2d 753, 757) (Emphasis added.) This same rule of construction is stated in section 1859 of the Code of Civil Procedure which provides, inter alia, that ‘when a general and particular provision are inconsistent, the latter is paramount to the former.’ A recent application of this rule of statutory construction is found in In re James M. (1973) 9 Cal.3d 517, 108 Cal.Rptr. 89, 510 P.2d 33, in which the court held that the legislative intent not to punish batteries attempted without present ability to commit a battery, found in Penal Code section 240 defining criminal assaults, prevailed over the general contempt provisions of Penal Code section 664.

Because of the provisions of Welfare and Institutions Code section 625.1, it is my view that Thierry's initial detention was clearly illegal. This requires a consideration of the question of whether the search of the knapsack by the police and the seizure of ‘clevises' found therein and the subsequent confession by Thierry that he had damaged railroad property resulted in illegally seized, and, therefore, inadmissible evidence to preclude the finding by the juvenile court that Thierry had violated section 594 of the Penal Code so as to bring him within the provisions of Welfare and Institutions Code section 602.

The courts consistently have held ‘that a search, whether incident to an arrest or not, cannot be justified by what it turns up. [Citations.]’ (People v. Brown (1955) 45 Cal.2d 640, 643, 290 P.2d 528, 530.) In the instant case the search of Thierry's knapsack was not incident to a lawful detention or arrest, nor is there any other basis to consider such a search reasonable and lawful. A search incident to an arrest or a detention can be no more reasonable than the arrest or detention itself. In Brown, the court rejected a contention that a defendant's actual guilt justified an unlawful arrest and search. This is in accord with the principle that a search, whether incident to an arrest or not, cannot be justified by what it turns up.

In the case at bench the unlawful search turned up the clevises in the possession of Thierry—clevises which had been stolen from Southern Pacific. Thierry's subsequent confession that he had destroyed railroad property clearly comes within the exclusionary rule that statements resulting from an illegal search are inadmissible as being a ‘fruit’ of that seach. (People v. Bilderbach (1965) 62 Cal.2d 757, 764, 44 Cal.Rptr. 313, 401 P.2d 921.) ‘That the prosecutor may not profit directly or indirectly from an illegal search has been the keystone of the rule excluding illegally obtained evidence.’ (Bilderbach, supra, 62 Cal.2d 757, at p. 763, 44 Cal.Rptr. 313, at p. 316, 401 P.2d 921, at page 924.) Thierry's confession was obviously the result of his illegal detention and the search of his knapsack and seizure of the clevises. The instant case, therefore, is not unlike that of People v. Stoner (1967) 65 Cal.2d 595, 55 Cal.Rptr. 897, 422 P.2d 585, in which defendant made a confession after the police officers told him about incriminating evidence obtained from an illegal search of his room. The Stoner court held that defendant's oral confession was illegally obtained as the product of the illegal search because there was ‘no break in the chain between the illegal search and seizure and defendant's confession.’ (Stoner, supra, 65 Cal.2d 595, at p. 600, 55 Cal.Rptr. 897, at p. 900, 422 P.2d 585, at p. 588.)

In an earlier case it was held that a defendant's own testimony explaining her possession of narcotics seized from her apartment ‘was impelled by the erroneous admission of the illegally obtained evidencenarcotics and cannot be segregated from that evidence to sustain the judgment.’ (People v. Dixon (1956) 46 Cal.2d 456, 458, 296 P.2d 557, 559.) The United States Supreme Court has set forth this same rule: ‘Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence.’ (Wong Sun v. United States (1963) 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441.) The consent to search Thierry's knapsack given by the parents after Thierry had refused to give his own consent is equally the product of Thierry's illegal detention and the resulting illegal search of the knapsack.

I conclude, therefore, that there was no legally admissible evidence sufficient to sustain the allegations of the petition charging Thierry with a criminal law violation.

II

A LEGISLATIVE ENACTMENT AUTHORIZING A WARRANTLESS DETENTION OR ARREST OF A MINOR FOR A MISDEMEANOR NOT COMMITTED IN THE PRESENCE OF THE DETAINING OR ARRESTING OFFICER, WHEN THE ARREST OF AN ADULT UNDER SUCH CIRCUMSTANCES IS ILLEGAL, CONSTITUTES A DENIAL TO MINORS OF EQUAL PROTECTION OF THE LAWS

Thierry, the minor in the instant case, contends that if Welfare and Institutions Code sections 625.1 and 625 are to be interpreted as authorizing the warrantless detention or arrest of a minor by a police officer for a misdemeanor not committed in the officer's presence, they violate the equal-protection-of-the-laws provisions of the United States and California Constitutions, since an arrest of an adult under similar circumstances is illegal under California law. I consider this contention to be sound and well founded.

The majority rejects this equal protection of the laws contention on the theory that the Legislature had a rational basis for making a distinction between minors and adults insofar as the right of arrest or detention without a warrant for misdemeanor violations is concerned.

This case before us represents a credible opportunity for this court to impose equality of treatment between minors and adults in the pre-judicial area of detention and arrest for criminal law violations. But the majority refuses to take advantage of the opportunity and place a judicial stamp of approval on the changing concepts and philosophy of the juvenile justice system. Instead, the majority places a judicial stamp of approval on the fading and thoroughly discredited and unsound view that the right of minors to be free from easy and arbitrary arrest or detention by police officers is not of real significance because law enforcement officials are concerned with the constitutional rights and best interests of minors just as are other component members of the juvenile justice system. Hence, police officers can be trusted with exercising sound discretion in making arrests or detentions of minors for misdemeanors not committed in the officers' presence without having to first secure an arrest warrant. The majority takes this view, as it does in interpreting Welfare and Institutions Code section 625.1, by relying on the now outmoded and discredited philosophy of a juvenile justice system that envisions few constitutional rights accorded to minors compared with those accorded to adults, embodied in the 1960 report of the Governor's Special Study Commission on Juvenile Justice.

This philosophy in the case before us is that of drawing the erroneous conclusion that since police officers have occasion to detain minors because of non-criminal activities—activities which bring them within the province of Welfare and Institutions Code section 600, such as the neglected child situation, or of Welfare and Institutions Code section 601, such as the incorrigible or run-away child—there is no reason to require a higher standard just because the arrest or detention is for a criminal law violation. But to classify minors charged with criminal violations as constituting a situation no more serious than that set forth in Welfare and Institutions Code sections 600 and 601, overlooks the far more devastating consequences to minors resulting from criminal violations than those resulting from activities that fall within the framework of Welfare and Institutions Code sections 600 and 601.

The society in which we live and work generally classifies a criminal violation by a minor as being in the same category as a conviction of such a violation by an adult. Judicial recognition ought to be given to the societal outlook that a minor who has been found to have violated the criminal law has been convicted of committing a crime and carries with him a record of such criminal conviction. This societal outlook is prevalent in spite of the legalistic classification that a court's finding that a minor has committed a violation of the criminal law is not to be viewed as a criminal conviction or that a custody confinement resulting from such a violation is not to be considered punishment for committing a crime.

In addition, there is one aspect of the Juvenile Court Law that especially compels an equality of treatment in detention and arrest rights between minors and adults for criminal law violations. Minors are already in the less favored position of not being entitled to bail as contrasted with the right of an adult. In view of this serious consequence involved in a minor's detention or arrest for a criminal law violation, a police officer certainly should not be given the authority to detain or arrest a minor for a misdemeanor not committed in the officer's presence when the officer has no such authority to arrest an adult in a similar situation even though the adult has an absolute right to bail.

The majority's analysis of the principle of equal protection of the laws is untenable and erroneous for a reason more crucial than that of reliance on the 1960 recommendations of the Governor's Special Study Commission on Juvenile Justice. The majority has used the wrong standard for testing the validity of a legislative classification under the equal-protection-of-the-laws provisions of the United States Constitution (U.S.Const., 14th Amend.) and of the California Constitution (Cal.Const., art. I, § 7).

Both the United States Supreme Court and the California Supreme Court have used a two-level test for measuring legislative classifications against the constitutional requirement of equal protection of the laws. In areas such as economic regulation, the courts have exercised restraint by investing state legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.

A second and different test for measuring the validity of legislative classifications against the constitutional requirement of equal protection of the laws is applied in cases involving ‘suspect classifications' or in cases touching on ‘fundamental interests.’ Here our two highest courts have adopted an attitude of active and critical analysis by subjecting a state's legislative classifications to ‘strict scrutiny.’ “Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose. [Citations.]” (Serrano v. Priest (1971) 5 Cal.3d 584, 597, 96 Cal.Rptr. 601, 609, 487 P.2d 1241, 1249.) (Emphasis in original.)

In the case before us we are not dealing with a ‘suspect classification’ such as a classification based on wealth or property. (See Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (poll tax requirement for voter's qualification).) The question presented, therefore, is whether a minor's interest in freedom from police restraint, detention or arrest constitutes a fundamental interest for the strict-scrutiny standard of equal-protection-of-the-laws evaluation.

Although the United States Supreme Court has denominated a number of interests as fundamental for purposes of applying federal equal protection rights under the Fourteenth Amendment (see Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (travel); Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (personal privacy—contraception); Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (personal privacy—abortion)), the California Supreme Court has also made determinations of interests deemed fundamental under the equal-protection-of-the-laws provisions of the United States Constitution or the California Constitution, or both. (See Serrano, supra, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (education); People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 64 Cal.Rptr. 327, 434 P.2d 623 (unanimous jury verdict in criminal trial); Zeilenqa v. Nelson (1971) 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578 (holding public office).)

But it is significant that the California Supreme Court has made clear that the two-pronged test for deciding the constitutional validity of state legislation under the principle of equal protection of the laws is one applied by it independently of the fact that the Supreme Court of the United States also applies such a test. (See Crownover v. Musick (1973) 9 Cal.3d 405, 429, fn. 17, 107 Cal.Rptr. 681, 509 P.2d 497.) ‘However, when defining fundamental interests under the California Constitution, we exercise our inherent power as a court of last resort independent of fundamental interest determinations which may be reached by the United States Supreme Court solely on interpretations of the federal Constitution. [Citations.]’ (People v. Olivas (1976) 17 Cal.3d 236, 246, 131 Cal.Rptr. 55, 61, 551 P.2d 375, 381; compare, e. g., Serrano, supra, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241, with San Antonio School District v. Rodriquez (1973) 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16; see also People v. Maher (1976) 17 Cal.3d 196, 130 Cal.Rptr. 508, 550 P.2d 1044; People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099.)

Olivas proceeds to hold that ‘personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.’ (Olivas, supra, 17 Cal.3d 236, at p. 251, 131 Cal.Rptr. 55, at p. 64, 551 P.2d 375, at p. 384.) (Emphasis added.) Having determined that the legislative scheme involved—Welfare and Institutions Code section 1731.5, which authorized commitment of a misdemeanant between the ages of 16 and 21 to the Youth Authority for a term potentially longer than the maximum jail term which might have been imposed for the same offense if committed by a person over the age of 21 years—affected the fundamental interest of personal liberty, Olivas then proceeded to apply the strict scrutiny test of equal protection validity: ‘the burden shifts; thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.’ (Olivas, supra, 17 Cal.3d 236, at p. 251, 131 Cal.Rptr. 55, at p. 65, 551 P.2d 375, at p. 385.) (Emphasis in original.) Although it was argued that the State had a compelling interest in the Youth Authority's purpose of rehabilitative efforts for youthful offenders, the Olivas court concluded that ‘[n]evertheless, we cannot constitutionally condone the imposition of unequal terms of incarceration on youthful misdemeanants even if for purposes of rehabilitative efforts by the authority.’ (Olivas, supra, 17 Cal.3d 236, at p. 257, 131 Cal.Rptr. 55, at p. 69, 551 P.2d 375, at p. 389.)

In the case at bench, the principles set forth in Olivas compel a similar result. A minor's interest in freedom from detention and arrest falls squarely within the concept of ‘personal liberty’ as a ‘fundamental interest.’ This shifts the burden upon the State to establish that it has a compelling interest which justifies the law—Welfare and Institutions Code sections 625 and 625.1—which authorize a minor's detention by a police officer for a misdemeanor not committed in his presence, and then demonstrate that the distinctions between minors and adults insofar as warrantless arrests or detentions for misdemeanors are concerned are necessary to further that purpose.

My discussion heretofore of the majority's basis for its interpretation of Welfare and Institutions Code section 625 and 625.1 discloses that the State has no compelling interest to justify the law of warrantless arrest or detention of a minor by a police officer for a misdemeanor not committed in the officer's presence. If the purpose be stated as the State's interest in the welfare of minors, certainly the distinction which permits a warrantless arrest or detention of a minor for a misdemeanor which results in an incarceration without the right to bail while protecting an adult from any such intrusion upon his personal liberty lacks any semblance of necessity to further the state's interest in the welfare of minors.

I would reverse the juvenile court's order (judgment) declaring the minor, Thierry, to be a ward of the juvenile court and placing him on probation on two grounds. First, I would hold that Welfare and Institutions Code section 625.1 governs the detention and arrest of minors for criminal law violations and precludes a minor's detention or arrest for a misdemeanor not committed in the officer's presence. Second, I would hold that to the extent that Welfare and Institutions Code sections 625 and 625.1 authorize a detention or arrest of a minor for a misdemeanor not committed in the officer's presence, these sections are invalid as constituting a denial to minors of their constitutional rights of equal protection of the laws—a denial of such rights under the California Constitution irrespective of whether there is any violation of the United States Constitution.

FOOTNOTES

1.  Section 602 provides, in part: ‘Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.’

2.  Section 594, subdivision (a) provides: ‘Every person who maliciously injures or destroys any real or personal property not his own, in cases otherwise than those specified in this code, is guilty of vandalism.’ Subsections (b) and (c) of section 594 set forth the punishment for vandalism, making the division between a felony and misdemeanor dependent upon whether the amount of injury or destruction is one thousand dollars ($1,000) or more, or less than one thousand dollars ($1,000).

3.  Section 625.1 provides: ‘A peace officer may, without a warrant, take a minor under the age of 18 into temporary custody as a person described in Section 602: [¶](a) Whenever the officer has reasonable cause to believe that the minor has committed a public offense in his presence. [¶](b) When the minor has committed a felony, although not in the officer's presence. [¶](c) Whenever the officer has reasonable cause to believe that the minor has committed a felony, whether or not a felony has in fact been committed. [¶](d) Whenever the minor has been involved in a traffic accident and the officer has reasonable cause to believe that the minor had been driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug.’

4.  Section 625 provides, in pertinent part: ‘A peace officer may, without a warrant, take into temporary custody a minor: [¶](a) Who is under the age of 18 years when such officer has reasonable cause for believing that such minor is a person described in Sections 600, 601, or 602. . . .’

5.  In explaining its reasons for section 625, the Commission said:‘While this recommendation may appear to increase the power of police by permitting them to arrest juveniles who have committed misdemeanors outside their presence, in effect it merely legalizes practices that are presently employed under the provisions of the juvenile court law and the Penal Code. In the Commission's survey, 99 out of 130 California law enforcement agencies reported that they arrest, without warrants, juveniles whom they believe have committed misdemeanors outside their presence. In these instances, it is common practice to use Section 700(b) or 700(k) W & I Code as the basis for arrest on the grounds that the minor is not receiving proper parental control or is in danger of leading ‘an idle, dissolute, lewd, or immoral life.’ The net effect of the latter device is to arrest juveniles because of the alleged commission of specific delinquent acts, but to list as the basis for the arrest a vague section of 700 W & I Code because of concern over possible false arrest suits. For the same reason, though less frequently used, police will charge the minor with a felony whereas under normal circumstances a misdemeanor charge would have been employed.‘Since minors violating state laws or local ordinances already come within the jurisdiction of the juvenile court law, the question of whether the alleged offense is a felony or a misdemeanor is one that is pertinent solely in the manner of arrest procedure. The Commission believes it is sounder public policy to permit law enforcement agencies to take juveniles into custody on the basis of their specific delinquent acts rather than forcing them to resort to general charges of parental neglect or felonies as a shield to protect the validity of the arrest.‘If enacted, this provision should result in greater uniformity in juvenile arrest practices and more specific arrest charges. In addition, it should help eliminate the need to acquire lower court warrants for juvenile arrests, a practice that not only avoids detention screening by probation, but is a frequent source of unnecessary referrals to the juvenile court.’ (Governor's Special Study Commission on Juvenile Justice, Part I, ch. IV, p. 43.)

KINGSLEY, Associate Justice.

FILES, P. J., concurs.