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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA CLARA, Respondent; CARL W., Real Party in Interest.

Civ. 36425.

Decided: March 06, 1975

Evelle J. Younger, Atty. Gen., of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Harriet Wiss Hirsch, Deputy Attys. Gen., San Francisco, for petitioner. Sheldon Portman, Public Defender, Frank D. Berry, Jr., Leonard P. Edwards, Deputy Public Defenders, County of Santa Clara, San Jose, for respondent.

Petitioner made application for writ of mandate, upon due notice to real party in interest, and real party in interest filed points and authorities in opposition. We have determined that an alternative writ or order to show cause would add nothing to the full presentation already made, and that a peremptory writ is proper (Code Civ.Proc. § 1088; 5 Witkin, Cal. Procedure (2d ed.), Extraordinary Writs, p. 3919; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 98 Cal.Rptr. 165).

The record shows that respondent court, sitting as a juvenile court, granted real party in interest minor's motion to impanel an advisory jury for the purpose of assisting the court to determine contested issues of jurisdictional facts in a hearing upon a petition alleging that the minor comes within the provisions of Welfare and Institutions Code, section 602, because of violations of Penal Code, section 187 (murder), Penal Code, section 288 (sexual molestation of a child under 14), Vehicle Code, section 10851 (auto theft), and Vehicle Code, section 20002, subdivision (a) (hit and run).

A jury trial in a juvenile proceeding is not a matter of constitutional right (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 90 S.Ct. 2271, 26 L.Ed.2d 791). The great majority of states, including California, deny a juvenile a right to a jury trial (McKeiver v. Pennsylvania, supra, pp. 548–549, 90 S.Ct. 2271; In re Daedler (1924) 194 Cal. 320, 332, 228 P. 467). In Richard M. v. Superior Court (1971) 4 Cal.3d 370, 376, 93 Cal.Rptr. 752, 482 P.2d 664; it was stated that a jury trial is inapplicable in juvenile proceedings conducted pursuant to the California Juvenile Court Law (Welf. & Inst.Code, § 500 et seq.). In Richard M., the court cited with approval In re T.R.S. (1969) 1 Cal.App.3d 178, 181–182, 81 Cal.Rptr. 574 (see also In re Joe R. (1970) 12 Cal.App.3d 80, 84–85, 90 Cal.Rptr. 530; In re C.E.M. (1970) 13 Cal.App.3d 75, 78, 91 Cal.Rptr. 382; In re Dennis M. (1969) 70 Cal.2d 444, 456, 75 Cal.Rptr. 1, 450 P.2d 296). The rule of law stated in the foregoing cases is controlling and is binding upon the superior court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr.Rptr. 321, 369 P.2d 937). To permit the impanelment of an advisory jury in a juvenile proceeding conducted pursuant to the California Juvenile Court Law would grant to the juvenile indirectly a right to which he is not entitled.

Let a peremptory writ of mandate issue directing respondent superior court to set aside that portion of its order of January 30, 1975, granting the motion of real party in interest.