MICHAEL v. PEOPLE

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

MICHAEL W., Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, et al., Respondents; PEOPLE of the State of California, Real Party in Interest.

Civ. 30231.

Decided: October 24, 1983

Paul S. Meyer, Costa Mesa, for petitioner. Quin Denvir, State Public Defender, and Victoria Sleeth, Deputy State Public Defender, for amicus curiae on behalf of petitioner. No appearance for respondents. Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Nina R. Brice, Deputy Dist. Attys., for real party in interest.

OPINION

In this original proceeding petitioner asks us to direct the juvenile court to vacate an order declaring him unfit for treatment as a juvenile.   He contends Welfare and Institutions Code section 707, subdivisions (b) and (c),1 are unconstitutional in light of the “truth-in-evidence” provisions of California Constitution, article I, section 28, subdivision (d) (Proposition 8).   We conclude section 707 hearing procedures, found to be constitutional prior to Proposition 8's enactment, are unaffected by that initiative measure and, additionally, that a minor's statements to a retained psychiatric expert and to a probation officer charged with preparing a section 707, subdivision (c), fitness report are inadmissible for any purpose in any subsequent proceeding to determine guilt.

I

A section 602 petition was filed November 4, 1982, alleging one count of murder (Pen.Code § 187) and that petitioner was not fit to be dealt with as a juvenile.  (§ 707, subd. (b)(1), fn. 1, supra.)   On counsel's advice, petitioner refused to cooperate with the probation department's investigation and preparation of the fitness report required by section 707, subdivision (c).   Counsel presented no evidence on petitioner's behalf at the January 25, 1983 fitness hearing because real party refused to stipulate to the immunity afforded petitioner by Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 178 Cal.Rptr. 418.   The juvenile court also refused to assure Sheila O. immunity in light of Proposition 8 and found petitioner not amenable to treatment as a juvenile based on the probation department's report, the murder allegation and post-mortem photographs of the victim.

Petitioner reasons as follows:  (1) section 707, subdivision (c), places the burden of establishing amenability to treatment by juvenile court processes on him;  (2) the “truth-in-evidence” section of Proposition 8 has eliminated the exclusionary rules of Bryan v. Superior Court (1972) 7 Cal.3d 575, 102 Cal.Rptr. 831, 498 P.2d 1079 and Sheila O. v. Superior Court, supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418;  (3) consequently, he was effectively precluded from presenting evidence for fear of self-incrimination, thereby rendering the fitness hearing meaningless and its procedures constitutionally deficient.

Real party agrees Sheila O. was laid to rest by Proposition 8, but contends unlimited use of a minor's section 707 testimony does not render the procedure unconstitutional.   Relying primarily upon Crampton v. Ohio, sub nom. McGautha v. California (1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (vacated on other grounds (1972) 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765), and Ryan v. Montana (9th Cir.1978) 580 F.2d 988, real party argues the Constitution only requires an accused be allowed the opportunity to testify;  it does not forbid requiring him to choose between silence and testifying at the risk of self-incrimination.

As noted above, we need not reach the constitutional issue since we conclude the express language of Proposition 8 exempts from its operation the privilege with which we are concerned.

II

 A minor charged with a specified serious offense has the burden of proving, by a preponderance of the evidence under each of five criteria, his amenability to the care, treatment and training program available through the facilities of the juvenile court.  (See § 707, subds. (b) and (c), fn. 1, supra;  People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 177–178, 173 Cal.Rptr. 788.)   The statute contemplates input from the minor in the form of “extenuating or mitigating circumstances.”  (§ 707, subd. (c).)  However, the minor is not required to present evidence, and often does not for fear it might later be used against him or will supply the prosecution with a “ ‘link in [the] chain’ of evidence tending to establish guilt․”  (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673.)

Before the passage of Proposition 8 the appellate courts of this state fashioned a variety of exclusionary rules in their efforts to reduce constitutional tensions, encourage the minor's participation in the fact-finding process, and secure informed probation reports and enlightened judicial determinations concerning the minor's welfare.   Our Supreme Court in Bryan v. Superior Court, supra, 7 Cal.3d at p. 587, 102 Cal.Rptr. 831, 498 P.2d 1079, held “․ evidence of admissions made by a minor to the juvenile judge or the juvenile probation officer should be excluded in a criminal prosecution, for allowing this evidentiary use of the admissions would frustrate the protective and rehabilitative philosophy of the Juvenile Court Law and would deny to the minor the protection of exclusionary rules which apply to all persons charged with the commission of crimes in comparable circumstances.”   Seven years later another exclusionary rule was announced in In re Wayne H. (1979) 24 Cal.3d 595, 602, 156 Cal.Rptr. 344, 596 P.2d 1;  “We conclude that the subsequent use of statements made by a juvenile to a probation officer in a section 628 interview would frustrate important purposes of that statute, and of the Juvenile Court Law generally.   We therefore hold that such statements are not admissible as substantive evidence, or for impeachment, in any subsequent proceeding to determine criminal guilt, whether juvenile or adult.   Such statements may, of course, be admitted and considered in hearings on the issues of detention and fitness for juvenile treatment.”   Finally, Sheila O. v. Superior Court, supra, 125 Cal.App.3d at p. 813, 178 Cal.Rptr. 418, declared “a rule of evidence that testimony given by the juvenile at the fitness hearing is inadmissible at the jurisdictional hearing except for the purpose of impeachment.”   The parties to this proceeding assume Proposition 8 has nullified these rules of evidence.   We find that assumption unwarranted.

Article I, section 15, of the California Constitution states, “[p]ersons may not ․ be compelled in a criminal cause to be a witness against themselves․”  Article I, section 24, provides “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”  Article I, section 28, subdivision (d), of the California Constitution, added by Proposition 8, reads, “Right to Truth-in-Evidence.   Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”  (Italics added.)

The privilege against self-incrimination is a “statutory rule of evidence relating to privilege.”  California Evidence Code sections 930 and 940 provide,

“§ 930.  Privilege of Defendant

To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify.

“§ 940.  Self-Incrimination Privilege

To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”

Although the constitutional privilege is itself an exclusionary rule (People v. Rucker (1980) 26 Cal.3d 368, 390, 162 Cal.Rptr. 13, 605 P.2d 843;  People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272), these Evidence Code sections independently provide for the evidentiary exclusion of privileged material.  (Cal.Evid.Code, §§ 930, 940;  see also the Law Revision Com. Comments to Cal.Evid.Code, §§ 351, 930 and 940.)   Of course, the authority to define the scope of the privileges and to fashion rules for their application, assertion and waiver in a particular case remains, as it always has, with the judiciary.  (Ibid.;  Wilson v. Superior Court (1976) 63 Cal.App.3d 825, 829–830, 134 Cal.Rptr. 130.)   Thus, Proposition 8, by its own terms, has no effect on self-incrimination issues or previously fashioned exclusionary rules designed to relieve the tension between due process and Fifth Amendment rights in pretrial proceedings.2

III

 Petitioner next contends section 707, subdivision (c), impermissibly operates as a “prosecutorial discovery order” of the sort condemned by a host of California decisions beginning with Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673.  (See, e.g., People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534;  Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65;  Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45;  see also People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19 and People v. Belton (1979) 23 Cal.3d 516, 153 Cal.Rptr. 195, 591 P.2d 485.)   He reasons the prosecution's minimal burden, coupled with the statutory presumption of unfitness, requires him to present evidence of “extenuating or mitigating circumstances” at the section 707 hearing or effectively waive any right he might have to retention by the juvenile court system.   Even if he chooses not to testify (and Sheila O. v. Superior Court, supra, 125 Cal.App.3d at p. 815, 178 Cal.Rptr. 418, reminds us “[s]ignificant evidence may well exist only in the knowledge of the juvenile․”), the evidence he does present would often disclose the nature of his defense, the names of prospective defense witnesses or other matters repeatedly found to have failed the “conceivably might lighten the prosecution's burden of proving its case in chief” and “cannot possibly have a tendency to incriminate” tests of Prudhomme.  (Prudhomme v. Superior Court, supra, 2 Cal.3d at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673).

Petitioner reasons the primary evil is his burden of proof and suggests the statute might be constitutional if the burden were shifted to the People (to prove petitioner not amenable to juvenile court treatment under each of the five criteria).3  However, the statute has twice survived constitutional challenge despite the allocation of the burden of proof to the minor.  (People v. Superior Court (Steven S.), supra, 119 Cal.App.3d at p. 177, 173 Cal.Rptr. 788;  Sheila O. v. Superior Court, supra, 125 Cal.App.3d at p. 817, 178 Cal.Rptr. 418.)   Under the circumstances, we decline to hold to the contrary, although we frankly lack the sanguine confidence of our distinguished colleagues who have previously considered the matter.  (See In re Ruth H. (1972) 26 Cal.App.3d 77, 86, 102 Cal.Rptr. 534 and La Com v. Pac. G. & E. Co. (1955) 132 Cal.App.2d 114, 118, 281 P.2d 894.)

Shifting the burden of proof to the People would make petitioner's choice to present or withhold evidence at the section 707 hearing a somewhat more strategic and less onerous one, and would place him in a situation not unlike that routinely faced by preliminary hearing defendants.   However, since the Legislature undoubtedly has the power to determine all youths over the age of 16 should be tried as adults (see Sheila O. v. Superior Court, supra, 125 Cal.App.3d at p. 817, 178 Cal.Rptr. 418) and because the section 707 procedure is entirely unconcerned with determining criminal guilt (see In re Wayne H., supra, 24 Cal.3d at p. 599, 156 Cal.Rptr. 344, 596 P.2d 1 and People v. Chi Ko Wong (1976) 18 Cal.3d 698, 716, 718, 135 Cal.Rptr. 392, 557 P.2d 976), we find no patent constitutional defect in requiring the minor to affirmatively establish his amenability to juvenile court treatment.

Indeed, the allocation of the burden of proof has little to do with the problem petitioner presents.   The People would generally have little difficulty in establishing a prima facie case of unfitness, and the minor would be forced to make the same difficult choice that confronts him now.   The discovery problem is a product of the necessary timing of the hearing, which cannot be substantially mitigated by reassignment of the burden of proof.   Petitioner's dilemma is similar to that faced by a probationer whose revocation hearing is scheduled in advance of trial of the new offense.   Appellant in People v. Coleman (1975) 13 Cal.3d 867, 871, 120 Cal.Rptr. 384, 533 P.2d 1024, claimed “revocation of his probation in advance of trial denied him procedural due process because he was forced to forego his opportunity to testify in his own behalf at his revocation hearing in order to avoid incriminating himself at his pending trial.”   Although our Supreme Court found “the choice forced upon [appellant] at his revocation hearing was unnecessarily inconsistent with constitutional values․” (id., at p. 872, 120 Cal.Rptr. 384, 533 P.2d 1024), it declined to reach the constitutional issue;  instead, “in the interests of justice and in the exercise of [its] inherent supervisory powers over the courts of this State․” (ibid.), it fashioned a limited exclusionary rule precluding subsequent prosecutorial use of a probationer's testimony or its fruits to provide “protection ‘coextensive with the scope of the privilege against self-incrimination’ ” and give probationers “all the relief to which they are constitutionally entitled.”  (Id. at p. 892, 120 Cal.Rptr. 384, 533 P.2d 1024.)

The Coleman solution was reaffirmed in People v. Jasper (1983) 33 Cal.3d 931, 935, 191 Cal.Rptr. 648, 663 P.2d 206, in the face of appellant's “sole contention ․ he was improperly forced to choose between exercising his right to remain silent at the revocation hearing, thereby risking the revocation of his probation, and presenting a defense to revocation, thereby providing the People with pretrial ‘discovery’ regarding ․ his defense․”  (Id. at p. 933, 191 Cal.Rptr. 648, 663 P.2d 206.)   The Jasper majority concluded, “․ as Coleman makes clear, by reason of its limited exclusionary rule, a probationer's rights are not impaired by reason of the timing of his revocation hearing.”  (Id., at p. 935, 191 Cal.Rptr. 648, 663 P.2d 206.)   No different result need obtain here.   Moreover, the remedy urged by the dissenting opinions in Jasper, which would bar pretrial revocation hearings absent waiver, is obviously unworkable in the context of section 707 proceedings.  (See People v. Jasper, supra, 33 Cal.3d at p. 942, 191 Cal.Rptr. 648, 663 P.2d 206 and Pen.Code, § 1203.2.)   Consequently, we conclude the immunity afforded by Sheila O. and the additional safeguards we announce today (see discussion, post) are sufficiently protective of the minor's legitimate self-incrimination interests and provide as much relief as is reasonably possible in light of this state's stringent scrutiny of efforts to expand prosecutorial discovery.

IV

 Petitioner finally contends Sheila O. immunity is itself insufficient to protect his legitimate self-incrimination interests.   He urges two points:  (1) Sheila O. allows use of his section 707 hearing testimony for impeachment at trial—even though the legal foundation for that rule, People v. Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, has been supplanted by People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, which bars impeachment use of statements obtained in violation of Miranda; (2) even though his testimony at the section 707 hearing may not later be used against him directly, extrajudicial statements to his retained psychiatrist and the probation officer assigned to prepare the section 707, subdivision (c) report remain unprotected.   He correctly states that any impediment to his cooperation with the probation officer would tend to defeat the purpose of the statutory scheme.   He also maintains professional input supportive of his own testimony is essential to protect his interests in this case.

Sheila O. cites People v. Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, Bryan v. Superior Court, supra, 7 Cal.3d 575, 102 Cal.Rptr. 831, 498 P.2d 1079 and In re Wayne H., supra, 24 Cal.3d 595, 156 Cal.Rptr. 344, 596 P.2d 1, as authority for the limited scope of the use immunity afforded the minor's section 707 hearing testimony (125 Cal.App.3d at p. 816, 178 Cal.Rptr. 418).   Only Coleman sanctions impeachment use of prior testimony.  In re Wayne H. precludes impeachment use of detention interview statements (24 Cal.3d at p. 602, 156 Cal.Rptr. 344, 596 P.2d 1).   Bryan is silent on the issue (7 Cal.3d at p. 587, 102 Cal.Rptr. 831, 498 P.2d 1079), although it approvingly cites other decisions which prohibit impeachment use of adult admissions to a probation officer (People v. Harrington (1970) 2 Cal.3d 991, 999, 88 Cal.Rptr. 161, 471 P.2d 961) or to the court (in the form of a letter written at the suggestion of a probation officer).  (People v. Hicks (1971) 4 Cal.3d 757, 763, 94 Cal.Rptr. 393, 484 P.2d 65.)   Consequently, Coleman stands alone as a basis for the impeachment exception to Sheila O.'s grant of immunity.  (But see Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, to the same effect, contrary to People v. Disbrow, supra, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.)

Coleman allows impeachment use of a probationer's revocation hearing testimony since “․ the privilege against self-incrimination ․ does not ․ encompass a right of an accused to lie in his own behalf at trial.”  (People v. Coleman, supra, 13 Cal.3d at p. 892, 120 Cal.Rptr. 384, 533 P.2d 1024.)   The intent of the Coleman exclusionary rule “is to encourage the fullest possible truthful disclosure of relevant facts and circumstances at the revocation hearing by allowing a probationer who does testify at his revocation hearing nonetheless to enjoy unimpaired the full protection of the privilege against self-incrimination at his subsequent trial.   This privilege requires the prosecution to prove a defendant's guilt through evidence accumulated through its investigative efforts and not extorted from the defendant himself.”  (Ibid.)  The Coleman court discussed the competing factors and the delicate balance struck in formulating its judicial rule of exclusion:  “If a probationer does testify at his revocation hearing, he must testify truthfully if his contribution to the proceedings is to have any significance.   Because a probationer's truthful revocation hearing testimony may well be incriminating, we have provided that such testimony may not be used by the prosecution to ease its burden of producing evidence of guilt at a later trial.   And at that trial the probationer retains his right to remain silent, notwithstanding his having testified at his revocation hearing.   If despite the preclusion of any prosecutorial use of his revocation hearing testimony the probationer nevertheless elects to relinquish his right to remain silent at trial, so be it.   At trial, as at his revocation hearing, a probationer who chooses to testify must testify truthfully, if he is to have the benefit of the exclusionary rule announced herein.”  (Id. at pp. 892–893, 120 Cal.Rptr. 384, 533 P.2d 1024;  fn. deleted.)   We find the Coleman rationale persuasive and the Sheila O. exception tenable.

People v. Disbrow, supra, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, does not compel a contrary result.   Disbrow made certain inculpatory statements after a police officer falsely assured him they could not be used against him in court.   The trial court erroneously admitted these statements to impeach defendant's self-defense testimony.   Our Supreme Court rejected the federal rule of Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 and overruled its earlier decision in People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, which had followed Harris:  “․ the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny.”  (People v. Disbrow, supra, 16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)   The exclusionary rule's deterrent effect on police misconduct and the desire to insulate the judicial system from that misconduct were determined to outweigh the risk of perjury at trial.   (Ibid.)

The function of the statutory self-incrimination privilege in the context of section 707, subdivision (c) proceedings is entirely separate and distinct.   With respect to the minor's testimony, extrajudicial statements are not involved, and his statements are not the equivalent of custodial interrogation where counsel is rarely present and police misconduct is a possibility.   The wisdom and integrity of the judicial system would only be questioned if a minor were allowed to deny at trial what he had admitted under oath at the section 707 hearing.  Coleman itself makes the distinction:  “The exclusionary rule fashioned herein is far less pervasive in effect than the exclusionary rules applicable to illegally obtained evidence.”  (People v. Coleman, supra, 13 Cal.3d at p. 893, fn. 1, 120 Cal.Rptr. 384, 533 P.2d 1024.)   To extend Sheila O. immunity to bar impeachment use of section 707 testimony would indeed “․ permit lawless people to play ducks and drakes with the basic principles of the administration of criminal law.”  (Simmons v. United States (1968) 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (conc. and dis. opn. of Black, J.).)  Sheila O.'s rule of immunity is a correct statement of the law.

V

 A minor's statements to a probation officer charged with preparing the section 707, subdivision (c) fitness reports, however, deserve different treatment.  In re Wayne H. determined subsequent use of a minor's statements to a probation officer in a section 628 detention interview “would frustrate important purposes of that statute, and of the Juvenile Court Law generally․” and held “․ such statements are not admissible as substantive evidence, or for impeachment, in any subsequent proceeding to determine criminal guilt, whether juvenile or adult.   Such statements may, of course, be admitted and considered in hearings on the issues of detention and fitness for juvenile treatment.”  (24 Cal.3d at p. 602, 156 Cal.Rptr. 344, 596 P.2d 1.)   The same considerations which support the Wayne H. rule compel a similar holding here.

Section 707, subdivision (c), directs the probation officer to investigate and prepare a fitness report on the behavioral patterns and social history of the minor.   The scope of the report is quite broad and is not limited to the five criteria specified by section 707, subdivision (c).  (See People v. Chi Ko Wong, supra, 18 Cal.3d at pp. 717–718, 135 Cal.Rptr. 392, 557 P.2d 976.)   The report must be considered by the juvenile judge at the fitness hearing (§ 707, subd. (c);  Cal.Rules of Court, rule 1348 (a)) and is often the sole basis for the decision.   The purpose of the probation officer's interview and report is not to marshal evidence of guilt but to “assist in the evaluation of the minor's fitness for treatment as a juvenile․”  (In re Wayne H., supra, 24 Cal.3d at p. 599, 156 Cal.Rptr. 344, 596 P.2d 1.)   The section 707 decision, to the ends of furthering the protective and rehabilitative philosophy of the juvenile court and assuring an informed decision, should be based upon the most complete knowledge of the minor obtainable.  (Ibid.)  Further, “[t]he minor may be well-advised to make frank admissions concerning the alleged crime ․ to the juvenile probation officer who prepares the social study․”  (Bryan v. Superior Court, supra, 7 Cal.3d at p. 587, 102 Cal.Rptr. 831, 498 P.2d 1079.)   Since the minor may be the only one capable of describing and explaining the circumstances of the alleged offense, and since he alone is uniquely able to acknowledge guilt and remorse, “[t]o use these admissions against a minor in a subsequent criminal prosecution would discourage candor and contrition, factors which might properly influence the probation officer's recommendations and the juvenile court's decision as to disposition.”  (Ibid.)  Similar rules have been formulated in the adult arena (see People v. Hicks, supra, 4 Cal.3d at p. 762, 94 Cal.Rptr. 393, 484 P.2d 65 and People v. Harrington, supra, 2 Cal.3d at p. 931, 88 Cal.Rptr. 161, 471 P.2d 961);  any “[r]efusal to apply the exclusionary rules of Harrington and Hicks to the admissions of juveniles transferred for criminal prosecution would be flagrantly discriminatory.”   (Bryan v. Superior Court, supra, 7 Cal.3d at p. 588, 102 Cal.Rptr. 831, 498 P.2d 1079;  fn. omitted.)

In order to afford equal protection and to promote the purposes of section 707, subdivision (c), we hold the rule of In re Wayne H. is equally applicable to a minor's statements at a section 707, subdivision (c) probation interview.   This determination does not conflict with our previous view of the correctness of the scope of the Sheila O. rule.   Where the previous statement is testimonial, it may be used for impeachment but not otherwise.  (See, e.g., Byers v. Justice Court (1969) 71 Cal.2d 1039, 80 Cal.Rptr. 553, 458 P.2d 465, sub nom. California v. Byers (1971) 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9;  Veh.Code. § 20013.)

Finally, we address the question of whether statements made to a psychiatric expert retained on the minor's behalf should be admissible for any purpose in subsequent trial proceedings.   We do not doubt the minor's burden of proof will require him to present psychiatric evidence of extenuating or mitigating circumstances or effectively waive any chance he might have had to retention by the juvenile system in many cases.   An informed professional medical opinion on the minor's mental processes, though not mandated by statute, would often be of value to the court and sometimes essential to obtain a favorable fitness decision.

The analogous procedure of Penal Code section 1368, which deals with a criminal defendant's mental competence to stand trial, is instructive.   Like the section 707, subdivision (c) determination, the purpose of the inquiry pursuant to Penal Code section 1368 et seq., is not to determine guilt or innocence.   There, mental competency alone is at issue.  Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 122 Cal.Rptr. 61 held a compelled psychiatric examination does not violate the privilege against self-incrimination so long as it is accorded the protection of a “judicially declared immunity.”  (Id., at p. 469, 122 Cal.Rptr. 61.)  People v. Arcega (1982) 32 Cal.3d 504, 186 Cal.Rptr. 94, 651 P.2d 338, approved Tarantino and emphasized the basis for the rule was the constitutional privilege against self-incrimination.   In a related context, Posner v. Superior Court (1980) 107 Cal.App.3d 928, 932–934, 166 Cal.Rptr. 123, held psychiatric reports and other materials prepared by a defense expert for a Penal Code section 1368 hearing not subject to prosecutorial discovery prior to the hearing for reasons stated in Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673 and Allen v. Superior Court, supra, 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65.

Although we recognize it would be possible for the minor to prevail at the fitness hearing without offering professional evidence of his mental condition, and though he is not as directly compelled to undergo a mental examination as is a Penal Code section 1368 defendant, we conclude basic fairness to the minor and the interests of both the minor and the state in accurate fact-finding and enlightened decisions compel a rule that he not be required to present evidence of his mental condition at the section 707 hearing at the risk of sacrificing his self-incrimination privilege.   Consequently, we hold any statements a minor may make to a psychiatric expert retained or appointed to assist counsel in preparation and presentation of the minor's defense, and the fruits of those statements in the form of opinions, reports or testimony, may not subsequently be used against the minor for any purpose on the issue of guilt.

Since the juvenile court erroneously refused to recognize petitioner's Sheila O. rights, and because we conclude those rights and the additional ones considered today are required to protect the minor's statutory and constitutional privileges in a proceeding where he bears the burden of proof, we remand for further proceedings in conformance with the views expressed in this opinion.

Let peremptory writs issue prohibiting respondent from proceeding further other than to order preparation of a new probation report, including any statement the minor chooses to offer to the probation officer, and to conduct a new hearing concerning the minor's fitness pursuant to section 707, subdivision (c).

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.Section 707, subdivisions (b) and (c) provide:“(b) The provisions of subdivision (c) shall be applicable in any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of one of the following offenses:“(1) Murder.“(2) Arson of an inhabited building.“(3) Robbery while armed with a dangerous or deadly weapon.“(4) Rape with force or violence or threat of great bodily harm.“(5) Sodomy by force, violence, duress, menace, or threat of great bodily harm.“(6) Lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code.“(7) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.“(8) Any offense specified in Section 289 of the Penal Code.“(9) Kidnapping for ransom.“(10) Kidnapping for purpose of robbery.“(11) Kidnapping with bodily harm.“(12) Assault with intent to murder or attempted murder.“(13) Assault with a firearm or destructive device.“(14) Assault by any means of force likely to produce great bodily injury.“(15) Discharge of a firearm into an inhabited or occupied building.“(16) Any offense described in Section 1203.09 of the Penal Code.“(17) Any offense described in Section 12022.5 of the Penal Code.“(18) Any felony offense in which the minor personally used a weapon listed in subdivision (a) of Section 12020 of the Penal Code.“(19) Any felony offense described in Section 136.1 or 137 of the Penal Code.“(2) Manufacturing, compounding, or selling one-half ounce or more of any salt or solution of a controlled substance specified in subdivision (e) of Section 11055 of the Health and Safety Code.“(c) With regard to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of any of the offenses listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.   Following submission and consideration of the report, and of any other relevant evidence which the petitioner or the minor may wish to submit the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria:“(1) The degree of criminal sophistication exhibited by the minor.“(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.“(3) The minor's previous delinquent history.“(4) Success of previous attempts by the juvenile court to rehabilitate the minor.“(5) The circumstances and gravity of the offenses alleged to have been committed by the minor.“A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefor recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria.   In making a finding of fitness, the court may consider extenuating or mitigating circumstances in evaluating each of the above criteria.   In any case in which a hearing has been noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing and no plea which may already have been entered shall constitute evidence at the hearing.”

2.   We have reviewed the ballot pamphlet's discussion of Proposition 8.   It discloses no contrary intent on the part of the proponents of the measure;  thus, we may not infer any different expectation was entertained by the electorate.

3.   The argument was raised initially in the amicus brief, and by petitioner only in his reply to that brief.   The People did not address the issue.

TROTTER, Presiding Justice.

CROSBY and WALLIN, JJ., concur.

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