IN RE: KATHY P.

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Court of Appeal, Second District, Division 3, California.

IN RE: KATHY P., a Person Coming Under the Juvenile Traffic Court Law. The PEOPLE, Plaintiff and Respondent, v. KATHY P., Defendant and Appellant.

Civ. 51433.

Decided: April 04, 1978

Irwin M. Friedman, Katz, Hoyt & Bell, Los Angeles, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for petitioner and respondent.

This is an appeal by a minor, Kathy Ann P. (hereinafter “minor”) from an order of a juvenile court judge of the Los Angeles County Superior Court denying her motion for a rehearing following an adverse determination by a juvenile court traffic hearing officer.1

FACTS

On December 19, 1976, minor was issued a traffic citation for a violation of Vehicle Code section 21804 (failure to yield the right-of-way).2 Minor signed the citation, promising to appear at the juvenile court traffic division of the Los Angeles Superior Court, Northwest District (Van Nuys), on January 14, 1977. Minor pleaded not guilty at her initial appearance and a hearing was set for February 24, 1977 before a juvenile court traffic hearing officer. We note in this regard that the record before us, which includes the entire juvenile court file, does not reflect that minor consented, as is required by Welfare and Institutions Code section 257,3 to having the matter heard upon a copy of the Vehicle Code citation instead of a formal petition filed under Welfare and Institutions Code section 650 et seq.

Minor appeared at the hearing, accompanied by her father. The handwritten notes of the hearing officer, which constitute the only record of the proceedings, indicate that the citing officer testified, but that minor did not; her father did, however, deliver an argument in her behalf. At the conclusion of the hearing, the hearing officer determined that minor had committed the traffic offense charged in the citation and imposed a fine, payment of which was stayed pending appeal.

Minor's father thereafter sent a letter, dated March 4, 1977, to the “Juvenile Court Traffic Division” of the Los Angeles Superior Court stating that his daughter wished to “appeal” the determination of the traffic hearing officer; this letter was treated by the court as a request for a rehearing. Other than an informal memorandum from the supervisor of the juvenile traffic division summarizing the findings of the hearing officer, and possibly the handwritten notes of the officer,4 no record of the hearing was made available to the court to facilitate its review. On April 13, 1977, the request for a rehearing was denied.

CONTENTIONS

Minor makes the following contentions on appeal:

1. That she was entitled to a hearing before a judge.

2. That the inadequate record of the juvenile traffic proceedings precluded a meaningful review of the traffic hearing officer's decision.

3. That such record does not reflect that she was informed of her right to be represented by counsel retained at her own expense or that she made an intelligent waiver of that right.

4. That there was insufficient evidence to sustain the “judgment.”

As we reverse on other grounds, we do not consider this last contention.

DISCUSSION

We treat minor's first two contentions as essentially going to the same issue; namely, did the decision of the hearing officer and the subsequently imposed fine improperly become judicial acts by a subordinate judicial officer when the request for a rehearing was denied? We conclude that they did and therefore reverse.

The present juvenile traffic hearing procedure provides that a traffic hearing officer, appointed by the presiding judge of the juvenile court (Welf. & Inst.Code, s 255), “. . . may hear and dispose of any and all cases wherein a minor under the age of 18 years as of the date of the alleged offense is charged with any violation of the Vehicle Code not declared to be a felony . . .” (Welf. & Inst.Code, s 256).5 As alluded to previously, the matter can be heard upon a legible copy of the traffic citation in lieu of a formal juvenile petition, provided the minor so consents. (Welf. & Inst.Code, s 257.) Upon a finding that the minor did in fact commit the traffic violation, the traffic hearing officer may impose one of the alternative sentences available under Welfare and Institutions Code section 258. None of these alternative sentences provide for imprisonment, but the hearing officer does have the authority, upon a finding of a violation of a motor vehicle infraction, to direct the probation officer to file a petition to declare the minor a dependent child of the court under the provisions of Welfare and Institutions Code section 325 et seq. After making his determination, the hearing officer is to promptly furnish a written report of his findings and order to the clerk of the juvenile court, who is then required to transmit an abstract of such findings and order to the Department of Motor Vehicles. (Welf. & Inst.Code, s 260.)

Pursuant to Welfare and Institutions Code section 262, the minor, or the minor's parents or guardian, may, by motion before a judge of the juvenile court, move to set aside or modify any order of the traffic hearing officer or may request a rehearing. If the judge does not set aside or modify the order, or order a rehearing within ten days after the date of the order, the motion or application must be deemed denied as of the expiration of such period6 and the minor's only remedy for further proceedings is an appeal to this court of the order denying the motion.

While this procedure is undoubtedly well-intentioned, we find, for the reasons discussed below, that it fails to comport with the dictates of the constitutional provisions which define and limit the authority of subordinate judicial officers.

The authority for the appointment of juvenile court traffic hearing officers, acting pursuant to Welfare and Institutions Code section 255 et seq., is found in article VI, section 22 of the California Constitution, added November 8, 1966, which provides as follows: “The Legislature may provide for the appointment by the trial courts of record of officers such as commissioners to perform subordinate judicial duties.” Also pertinent in this regard is article VI, section 21 of the California Constitution, added on the same date, which states: “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.”

Under the applicable constitutional provisions, then, a juvenile court traffic hearing officer may perform only subordinate judicial duties in the absence of a stipulation by the parties. (In re Edgar M., supra, 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406; Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 359-366, 110 Cal.Rptr. 353, 515 P.2d 297; People v. Tijerina (1969) 1 Cal.3d 41, 48-49, 81 Cal.Rptr. 264, 459 P.2d 680.) As there was no stipulation in the present case that the traffic hearing officer could perform all of the functions of a judge, the validity of his actions, as finalized by the juvenile court's denial of a rehearing, must be determined in light of the limited powers granted to all such subordinate judicial officials.

In Rooney v. Vermont Investment Corp., supra, at page 362, 110 Cal.Rptr. 353, 515 P.2d 297, our Supreme Court, in attempting to give a flexible, pragmatic definition to the term “subordinate judicial duties,” held that the scope of such duties must be examined in the context of the powers that commissioners had and were exercising in 1966 when article VI, section 22 was adopted. As stated by the court: “The words ‘subordinate judicial duties' were intended by the (California Constitution Revision Commission) draftsmen as an appropriate constitutional phrase sufficiently broad to permit specific details to be later enacted or adopted by the legislative or rule-making agencies. (Proposed Revision (1966), Cal.Const. Revision Com., pp. 82, 99; Judicial Council of Cal. Annual Rep. (1967) p. 90.) The reference to judicial’ duties was not intended to preclude assignment of ministerial or administrative duties to court commissioners (or other subordinate judicial officers) but was intended to eliminate any possibility that assigning subordinate judicial duties to commissioners (or other subordinate judicial officers) would violate the constitutional doctrine of separation of powers.” (Id.; emphasis in original.)

In In re Edgar M., supra, 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406, our Supreme Court made clear the limited authority granted to subordinate judicial officers in the handling of juvenile matters. Edgar M. was charged with felonious assault. A juvenile court referee, acting without the consent of the minor, adjudicated him a ward of the court and committed him to a county camp. Under former section 554 (now section 248) of the Welfare and Institutions Code it was provided that “(a) referee shall hear such cases as are assigned to him by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court. . . .” Former section 558 (now section 252) of the Welfare and Institutions Code provided for a rehearing by a judge of the juvenile court, upon petition by the minor, as follows: “If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of such proceedings, grant or deny such application (for rehearing). If proceedings before the referee have not been taken down by an official reporter such application shall be granted as of right. . . .” (Emphasis added.) A juvenile court judge approved the referee's order without reading the transcript, which was not yet available. Edgar M. then made a timely application for a rehearing, which was denied by an order made some three months after the expiration of the statutory period. The Supreme Court reversed. Although the court recognized that there was little authority pertaining to the constitutional powers of juvenile court referees, it held that the law relating to other subordinate judicial officers demonstrated that the adjudication of the juvenile, Edgar M., as a ward of the court, violated the constitutional limitations as to “subordinate judicial duties.” As stated in the opinion: “It is clear that without the availability of any review procedures the contested adjudication and disposition of a minor as a ward of the juvenile court by a referee acting without the parties' consent would violate the constitutional limitation upon his functions to ‘subordinate judicial duties' (art. VI, s 22).” (14 Cal.3d at p. 735, 122 Cal.Rptr. at p. 580, 537 P.2d at p. 412.)

The court went on to hold unconstitutional the procedure by which the failure of the court to act upon a minor's petition for rehearing within the allotted time would automatically be deemed a denial. “Such an automatic denial would cause the referee's adjudication of wardship and order for removal from the home to become the acts of the court itself without any meaningful review of the proceedings by a judge in response to the minor's timely application for rehearing. Insofar as section 558 (now section 252) requires this result it violates the restriction on the referee's powers to subordinate judicial duties imposed by article VI, section 22 of the Constitution and accordingly is invalid.” (14 Cal.3d at p. 736, 122 Cal.Rptr. at p. 581, 537 P.2d at p. 413.) The Supreme Court, however, further held that the statute could be construed to make it constitutional. The determinative issue is whether the judge had sufficient information before him to warrant adoption of the referee's findings as those of the court. In view of the limited authority granted to subordinate judicial officers, a juvenile court judge, upon application for rehearing of a referee's findings, must base his decision to adopt those findings on data “. . . sufficient for forming a judgment independent from that of the referee. Under these circumstances the referee's initial findings and orders become only advisory and their rendition constitutes no more than a subordinate judicial duty. (Citation.)” (14 Cal.3d at p. 736, 122 Cal.Rptr. at p. 580, 537 P.2d at p. 412.) The court concluded that for the procedure to be constitutional, the judge must read the transcript of all the challenged proceedings and act on the application for rehearing within the time limits of section 558 or, as when a transcript is unavailable, a rehearing must be granted as a matter of right. (14 Cal.3d at p. 737, 122 Cal.Rptr. 574, 537 P.2d 406; see In re Damon C. (1976) 16 Cal.3d 493, 496-497, 128 Cal.Rptr. 172, 546 P.2d 676; In re Gregory M. (1977) 68 Cal.App.3d 1085, 1093-1094, 137 Cal.Rptr. 756.)

We turn now to the situation presented in the case at bench. When, as here, a traffic hearing officer has tried a juvenile for a traffic offense, employing all available judicial authority, including the power to receive and weigh evidence, and, after finding that the offense has been committed, has imposed the sentence provided by law, he has exercised the full judicial power of a judge; nothing else remains to be done by a judicial officer in such a case. Yet, no provision has been made to insure a constitutionally adequate system of review of traffic hearing officers' findings as is provided by Welfare and Institutions Code section 252, as construed by In re Edgar M., supra, 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406, in cases wherein the initial hearing has been conducted by a juvenile court referee. In fact, had the instant minor's case been heard by a referee instead of a traffic hearing officer, she would have been entitled to a rehearing as a matter of right since no official transcript of the proceedings was made. (Welf. & Inst.Code, s 252.)

The inadequacy of the procedure currently employed by the court below to review the findings of traffic hearing officers is apparent from a perusal of the record in the case at bench. The information made available to the reviewing juvenile court judge, apparently consisting only of the summary memo prepared by the supervisor of the traffic division and possibly the handwritten notes of the hearing officer, was totally insufficient to enable the judge to make a determination independent from that of the traffic hearing officer. For all practical purposes, then, the findings of the traffic hearing officer had the effect of a final determination, a result incompatible with the limited authority granted to subordinate judicial officers. (In re Edgar M., supra, 14 Cal.3d 727, 735-736, 122 Cal.Rptr. 574, 537 P.2d 406.)

We, therefore, find that the failure to provide a means of making available to the reviewing juvenile court judge sufficient data so that he or she can form a judgment independent from that of the traffic hearing officer renders the procedure used here constitutionally invalid. To hold otherwise would permit traffic hearing officers to perform judicial functions which go beyond the scope of their limited authority to act in a merely advisory capacity absent a stipulation by the parties to the contrary. (Id., at p. 736, 122 Cal.Rptr. 574, 537 P.2d 406.)

The fact that the minor was charged with an infraction rather than the type of serious criminal offense involved in In re Edgar M., supra, is of no consequence. It is the nature of the duty performed, not the severity of the case tried, which determines whether a subordinate judicial officer has exceeded the limited powers granted to such officials by article VI, section 22 of the California Constitution. We recognize that the Judicial Council, citing Gordon v. Justice Court (1974) 12 Cal.3d 323, 326, footnote 2, 115 Cal.Rptr. 632, 525 P.2d 72, has suggested that it may be permissible to distinguish infraction cases from those involving misdemeanors or felonies in determining the proper scope of subordinate judicial duties. (Judicial Council of Cal. Annual Rep. (1975) The Authority of Municipal Court Commissioners and Traffic Referees, pt. 1, ch. 5, pp. 32-33.) Gordon, however, merely held that it was improper to allow non-attorney judges to preside over criminal trials of offenses punishable by a jail sentence; the court expressly declined to express any opinion as to whether lay “judges” could properly hear contested infraction cases. (Gordon v. Justice Court, supra.) In light of the more explicit statements in Rooney, supra, and In re Edgar M., supra, concerning the limited powers of subordinate judicial officers, we feel compelled not to follow the Judicial Council's suggestion.

It is not our intention to completely scuttle or invalidate the existing procedure for trying minor juvenile traffic offenses before traffic hearing officers. We recognize that the state has a “substantial interest in maintaining the summary nature of motor vehicle violation proceedings . . . (and the) chief reason for classifying some prohibited acts as infractions is to facilitate their swift disposition. (Citation.) Unconstrained by the more stringent procedural requirements of a major criminal trial, . . . (the) courts . . . are free to develop innovative procedures to expedite traffic cases.” (In re Dennis B. (1976) 18 Cal.3d 687, 695, 135 Cal.Rptr. 82, 88, 557 P.2d 514, 520.)

Juvenile traffic cases can continue to be heard by traffic hearing officers provided certain procedural safeguards are implemented. First, a juvenile charged with a minor traffic offense (or one of the other offenses specified in Welf. & Inst.Code, s 256 (fn. 5, supra )) must be advised prior to the hearing of his rights with respect to having the matter heard upon the face of the citation in lieu of a formal petition, and his knowing and intelligent consent must be obtained before the former may be substituted for the latter. (Welf. & Inst.Code, s 257.) Second, the juvenile may, at the same time, stipulate that the traffic hearing officer can act as a judge pro tem,7 in which case the juvenile must be advised that review of the hearing officer's decision will be limited to actual, demonstrable error. If the juvenile declines to so stipulate, then a transcript or recording of the proceedings before the traffic hearing officer should be made such as will permit a reviewing judicial official to make an independent determination of the cause if the juvenile requests a rehearing. In this regard, juveniles who decline to stipulate should be informed that a request for rehearing will render the findings of the traffic hearing officer advisory only and that the final determination will be made by the reviewing juvenile court judge. Furthermore, if a request for rehearing is not acted upon within the statutory ten-day period (Welf. & Inst.Code, s 262), then it must be deemed granted; the absence of an adequate record of the proceedings before the hearing officer will, of course, compel the granting of a rehearing as a matter of right. (In re Edgar M., supra, 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406.)

Although the issue is not directly raised by the instant parties, we also note that it would be contrary to the requirements of due process for a traffic hearing officer to present the case for the prosecution in addition to performing his proper role of making an advisory adjudication of the matter. (In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 97 Cal.Rptr. 158.) However, since the record in the present case does not disclose whether the traffic hearing officer participated in any examination of the citing officer, we express no further opinion on the issue.

Finally, as to minor's contention that she was not advised of her right to be represented by counsel at her own expense,8 we note only that the meager record before us makes it impossible to determine whether, in fact, she was so advised or whether she knowingly waived the right. There is no question, however, that such advice should have been given. (Cal.Const., art. I, s 15; In re Gault, supra, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420.) The juvenile court should, therefore, if it has not already done so, take steps to insure that future juvenile traffic violators are advised, at a meaningful stage of the proceedings, of their right to retain counsel and that any waivers of that right are intelligently and knowingly made.9

The order denying a rehearing is reversed.

FOOTNOTES

FOOTNOTE.  

1.  The denial of a motion for a rehearing under Welfare and Institutions Code section 262 to set aside or modify a traffic hearing officer's order is an appealable order. (Welf. & Inst.Code, s 800.)

2.  At the time of the alleged violation, Vehicle Code section 21804 provided as follows: “The driver of a vehicle about to enter or cross a highway from any public or private property, or from an alley shall yield the right-of-way to all vehicles approaching on the highway.” Vehicle Code section 21804 now provides: “The driver of a vehicle about to enter or cross a highway from any public or private property, or from an alley, shall yield the right-of-way to all vehicles and bicycles approaching on the highway.” (Amended by Stats.1976, ch. 751, p. 2023, s 13.)

3.  Welfare and Institutions Code section 257 provides in pertinent part as follows: “With the consent of the minor, a hearing before a traffic hearing officer . . . wherein such minor is charged with . . . (a) traffic offense may be conducted upon an exact legible copy of a written notice given pursuant to (the provisions) . . . of the Vehicle Code . . . in lieu of a petition as provided in . . . (Welfare and Institutions Code sections 650 et seq.).” (Emphasis added.)

4.  It is not clear from the sparse record before us whether the handwritten notes of the hearing officer were actually reviewed by the juvenile court judge or whether his denial of a rehearing was based solely on the supervisor's memorandum.

5.  The title “traffic hearing officer” may be somewhat misleading in that their authority to hear cases in the juvenile court extends somewhat beyond those involving only minor traffic offenses under the Vehicle Code; they may also hear “. . . any and all cases wherein a minor under the age of 18 years as of the date of the alleged offense is charged with . . . a violation of subdivision (m) of Section 602 of the Penal Code (driving on private land), or a violation of the Fish and Game Code not declared to be a felony, or a violation of any of the equipment and registration provisions of the Harbors and Navigation Code, or a violation of any provision of an ordinance of a city or county relating to traffic offenses or a violation of Section 126 or 27176 of the Streets and Highways Code (failure to observe posted warnings or notices and failure to obey special rules and regulations of a bridge and highway district, respectively).” (Welf. & Inst.Code, s 256.)

6.  But see In re Edgar M. (1975) 14 Cal.3d 727, 736, 122 Cal.Rptr. 574, 537 P.2d 406, and discussion thereof, infra.

7.  Only traffic hearing officers who are members of the State Bar may serve as judges pro tem, however. (Cal.Const., art. VI, s 21.)

8.  As the offense with which the minor was charged is an infraction, she had no right to the appointment of counsel at public expense upon a showing of indigence. (Pen.Code, s 19c.)

9.  We respectfully suggest that the Judicial Council establish appropriate rules governing practice and procedure in connection with juvenile traffic hearing matters. The current court rules promulgated by the Judicial Council relating to juvenile matters state that “(t)he rules . . . do not apply to any action or pro-proceeding heard by a traffic hearing officer, nor to any rehearing or appeal from a denial of a rehearing following an order by a traffic hearing officer. . . .” (Cal.Rules of Court, rule 1301, adopted by the Judicial Council of the State of California, effective July 1, 1977, pursuant to the authority contained in art. VI, s 6, of the Cal.Const. and Welf. & Inst.Code, s 265.)

FAINER,* Associate Justice. FN* Judge of the Superior Court of Los Angeles County, assigned by the Chairperson of the Judicial Council.

ALLPORT, Acting P. J., and POTTER, J., concur.