IN RE: Teddy Y.

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

IN RE: Teddy Y., a person coming under the Juvenile Court Law. TEDDY Y., Appellant, v. Kenneth F. FARE, as Acting Chief Probation Officer, etc., Petitioner and Respondent.

Cr. 29816.

Decided: October 28, 1977

Paul Halvonik, State Public Defender, Gary S. Goodpaster, Chief Asst. State Public Defender, and Laurance S. Smith, Deputy State Public Defender, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Anthony D. Blankley and Janelle B. Davis, Deputy Attys. Gen., for petitioner and respondent.

A minor appeals from orders of the Juvenile Court, denying his petition for a rehearing and committing him to the Youth Authority. We reverse the orders.

The minor was charged with being a person coming within section 602 of the Welfare and Institutions Code, in that he had committed arson, within the meaning of section 448a of the Penal Code. On July 2, 1976, after an adjudication hearing before a referee, the charge was found to be true and the minor was adjudicated a ward of the court. On July 16, 1976, the minor filed his petition for a rehearing.[FN1] The matter came on for hearing before Judge Smith on August 2, 1976, and, with the consent of all parties, was continued until August 11, 1976. On August 9, 1976, Judge Smith filed his order denying rehearing. On August 11, 1976, the matter came on for a disposition hearing before the referee. On August 11, 1976, the referee made her order committing the minor to the Youth Authority. A formal order of commitment was signed by Judge Smith on the same day. On August 27, 1976, the minor noticed an appeal from the various orders.

On July 1, 1976, the minor had filed an affidavit of prejudice against Judge Smith, under section 170.6 of the Code of Civil Procedure. No further reference to that affidavit was made until October 21, 1976, when the minor filed a motion to vacate Judge Smith's order on the ground that Judge Smith was disqualified by reason of the earlier affidavit of prejudice.[FN2] On November 1, 1976, Judge Smith denied the motion to vacate his final judgment of commitment but vacated his earlier order denying a rehearing and transferred that matter to Judge Martin. On November 10, 1976, Judge Martin, having read the transcript of the adjudication, entered her order again denying the rehearing.

The minor has filed a second appeal from all of the orders adverse to him. We reverse all of the orders.

I

At the adjudication hearing, and at the later stages, the minor contended that he was entitled to a jury trial on the charge made against him. That contention has heretofore been made and rejected. (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647; People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 124 Cal.Rptr. 47, 539 P.2d 807.)

II

The minor contends that, under In re Edgar M. (1975) 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406 Judge Martin's order denying a rehearing of the adjudication hearing, having been made after the time limits imposed by section 252 (formerly section 558) of the Welfare and Institutions Code, was a nullity and that the petition for rehearing of that order must be deemed granted. We conclude that Edgar M. dictates that result. It is the clear holding of that case that if a judge has not acted on a petition for a rehearing of a referee's order within the statutory period, the grant of the requested rehearing is mandatory. It is unfortunate that the series of events in the case at bench results in a situation in direct opposition to the obvious legislative purpose behind section 252. That purpose is to have juvenile court proceedings determined promptly. Here, the compelled result means that Teddy's case cannot be finally determined for, at the best, 18 months after it began. But the solution of that dilemma is for the Legislature or the Supreme Court; it is not for us.

III

Since there must be a new adjudication hearing before a superior court judge, the dispositional order, based on the original adjudication, necessarily falls. If the rehearing herein ordered results in a new adjudication sustaining the petition, a new dispositional hearing, based on that new order, must be held.

The orders appealed from are reversed.

I concur in the result but I do not agree with some of the reasoning set forth in the majority opinion.

I disagree with the majority's statement that the series of events in the case at bench result in a situation in direct opposition to the obvious legislative purpose behind section 252 (formerly section 558) of the Welfare and Institutions Code. I agree that the legislative purpose set forth in section 252 is that which is the purpose involved in all court proceedings, whether they be criminal cases, civil cases, or juvenile court cases. There is an obvious public policy to dispose of all court proceedings as expeditiously and promptly as possible in the interests of justice. But I do not agree that the result in the case at bench is in opposition to such policy. The majority does not tell us why the result is contrary to public policy.

The majority sees a dilemma in what happened in the case at bench a dilemma which the majority states is for the Legislature or the Supreme Court to solve. I don't know what the majority expects the Supreme Court to do about section 252 which it did not do in 1975 in deciding the case of In re Edgar M. (1975) 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406. In re Edgar M. made an interpretation of section 558 of the Welfare and Institutions Code (now section 252) in view of constitutional principles. In 1976 the Legislature enacted Welfare and Institutions Code section 252, which is the same as the former section 558. Had the Legislature felt that the In re Edgar M. decision created a dilemma because of its interpretation of section 558, the Legislature could have made such changes as it desired by amending section 558, rather than simply reenacting it as section 252.

If there is a dilemma which the majority feels needs solving, I suggest that juvenile court judges simply follow Welfare and Institutions Code section 558 (now section 252) as it was interpreted by the California Supreme Court in In re Edgar M. I see no necessity for this court to call upon the Legislature or the Supreme Court to take action because of the situation presented in the instant case. Had the law been properly followed, Teddy's case would not have been before us but would have been finally determined promptly with his rights fully accorded to him.

If, for whatever reason, the juvenile court judge fails to act on a petition for rehearing during the time limit set forth in section 252, I see no public policy vitiated in the result we reach under In re Edgar M. of requiring the juvenile court judge to proceed to conduct an adjudicatory hearing de novo. This result is fair to the juvenile who has a right to have the juvenile court judge observe the time limits set forth in Welfare and Institutions Code section 252.

FOOTNOTES

1.  Since the record before us does not show the date when the minor was served with a copy of the referee's order, we treat the petition for rehearing (as do the parties) as being timely.

2.  It appears from the record before us that Judge Smith was not personally aware of the filing of the affidavit of prejudice until it was brought to his attention by the minor's motion of October 21, 1976, counsel for the minor having forgotten its existence and not having called it to the attention of Judge Smith at any of the earlier proceedings before that judge.

KINGSLEY, Associate Justice.

FILES, P. J., concurs.

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