IN RE: MITCHELL JAMES P.

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

IN RE: MITCHELL JAMES P., a Minor.

Civ. 19002.

Decided: October 26, 1977

Charles J. Nacsin and Bobby R. Vincent, San Bernardino, for minor-appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and A. Wells Petersen and Rudolf Corona, Jr., Deputy Attys. Gen., for respondent.

In a petition filed in the juvenile court under Welf. & Inst.Code s 602, minor was charged with that which would have been a crime had he been an adult (Penal Code s 496 receiving stolen property). Based on the uncorroborated testimony of an accomplice, the trial court found the facts in the petition to be true. The trial court did so reluctantly but based its ruling on controlling authority. (In re R.C., 39 Cal.App.3d 887, 114 Cal.Rptr. 735.)[FN1]

With all due respect, we part company with our brethren on the Courts of Appeal in In re R.C., supra; In re D.L., and In re M. In so doing, we bring ourselves directly within the provisions of Rule 29, California Rules of Court. It appears inevitable that the Supreme Court will grant a hearing in this case to secure uniformity of decision. Therefore, since this opinion will be short-lived and our deathless prose promptly lost to posterity, we will attempt to be brief a mere statement that we disagree with the decisions in the other cases and a brief explanation of our reasons for so holding.

Penal Code s 1111 provides that a conviction cannot be had on the uncorroborated testimony of an accomplice. In re R.C., supra, reasoned that Penal Code s 1111 did not apply to juvenile court proceedings under Welf. & Inst.Code s 602 since an order adjudging a minor to be a ward of the juvenile court is not to be deemed a conviction of a crime. (Welf. & Inst.Code s 203.)

While we agree with In re R.C., supra, that a finding in the juvenile court made on the uncorroborated testimony of an accomplice does not operate to deprive a minor of due process of law (In re R.C., supra, 39 Cal.App. 892-893, 114 Cal.Rptr. 735), we are unable to agree that this procedure does not deny the minor equal protection of the law.[FN2]

In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Supreme Court held that a finding that a minor violated a criminal law cannot be based “. . . on proof insufficient to convict him were he an adult.” (at p. 367, 90 S.Ct. at p. 1074.) Here, the adjudication of the minor's wardship was on the basis of uncontradicted accomplice testimony. This would be insufficient to convict an adult of the crime with which the minor was charged. That procedure operates to deny a minor equal protection of the laws under the Fourteenth Amendment.

Whether we apply the traditional “rationality” test, i. e., does the classification bear a rational relationship to a legitimate state purpose or the “strict scrutiny” standard that the classification be upheld only if it is necessary for the furtherance of a compelling state interest, the distinction between the handling of an adult and the handling of a minor, under these circumstances, fails to pass constitutional muster.

For brevity, we will apply the more liberal “rationality” test. Thus, we ask ourselves the following question: Does the failure to afford a minor the protection of Penal Code s 1111 have a rational relationship to a legitimate state purpose? We think not. We grant that the juvenile court has as its fundamental purpose the protection of the minor (Welf. & Inst.Code s 202) and the provisions of the Penal Code are aimed at the punishment of adult malefactors. Nevertheless, we find the distinction between crimes as committed by adults and non-crimes committed by juveniles too gossamer to withstand constitutional scrutiny when applied to the fact finding process. Obviously, there are differing aims and goals in the two courts, most of which serve a legitimate state purpose. For example, the concept of bail for the adult charged with a crime is inconsistent with the concept of detention for the protection of the minor although the minor may not see it that way.[FN3]

We recognize that the corroboration of an accomplice rule is not universal. Nevertheless, for over one hundred years, the laws of this state have insisted that no adult be convicted of a criminal offense on the uncorroborated testimony of an accomplice. This has become a well established part of our judicial fact finding process. The concept is based on sound social, moral and ethical grounds, i. e., that an accomplice's testimony is so suspect that we demand some outside support before depriving a citizen of his liberty based on that kind of testimony. We can think of no valid reason that same philosophy should not apply to a juvenile facing judicial sanction for allegedly committing that which would be a crime were he an adult. We find no reasonable basis for the distinction as applied to the issue presented in this case. It bears no rational relationship to a legitimate state purpose. The fact that Welf. & Inst.Code s 203 makes juvenile proceedings non-criminal and Penal Code s 1111 applies to adult criminal cases does not justify the application of fundamentally differing means to be used in the fact finding process. (See Welf. & Inst.Code s 701.) We find no valid compelling interest for this distinction.

Judgment reversed.

FOOTNOTES

1.  In re R.C. was followed in In re D.L., 46 Cal.App.3d 65, 120 Cal.Rptr. 276, and In re M., 55 Cal.App.3d 650, 127 Cal.Rptr. 851.

2.  For an interesting analysis of In re R.C., supra, and discussion of the “Purist” vs. “Constitutionalist” debate on the due process and equal protection battleground of juvenile court accomplice testimony corroboration see 14 Santa Clara Lawyer 881.

3.  See also a recent application of the differing procedures insofar as a speedy trial issue is concerned. (Alex T. v. Superior Court, 72 Cal.App.3d 24, 140 Cal.Rptr. 17.)

GARDNER, Presiding Justice.

McDANIEL and MORRIS, JJ., concur.

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