IN RE: MAURICE M.

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

IN RE: MAURICE M., a Person Coming Under the Juvenile Court Law. PEOPLE of the State of California, Plaintiff and Respondent, v. MAURICE M., Defendant and Appellant.

Civ. 49965.

Decided: October 19, 1981

Law Offices of Maurice S. Moyal, Inc., Concord, for defendant and appellant. George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen.—Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Mary A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

A juvenile court referee found that appellant Maurice M. committed a robbery.  (Pen.Code, § 211.)   The juvenile court judge denied appellant's petition for rehearing.   Appellant was adjudged a ward of the court, and ordered to remain enrolled at Northstar Academy in Grass Valley.   Appellant contends that his jurisdictional hearing was invalid because he did not personally waive his right to a hearing before a juvenile court judge, and that his petition for rehearing must be deemed granted because the juvenile court judge did not have good cause for extending time for decision on the petition.

I

 Absent a stipulation of the parties conferring judicial power, a juvenile court referee does not have authority under the California Constitution to conduct a jurisdictional hearing.  (In re Perrone C. (1979) 26 Cal.3d 49, 57, 160 Cal.Rptr. 704, 603 P.2d 1300.)   Before appellant's jurisdictional hearing, his counsel and the district attorney signed a stipulation that the matter could be heard by referee Douglas Corbin.   The stipulation is of minimal content.   It is undated, and signed only by the two lawyers, although it contains signature lines for both the minor and his or her parent or guardian.   The document states:  “We, the undersigned parties, stipulate that the Honorable Referee Douglas T. Corbin may sit as a temporary judge in the above-captioned matter.  (California Rules of Court, Rule 1316b.)”

After the referee conducted the jurisdictional hearing, appellant applied for a rehearing before the juvenile court judge pursuant to Welfare and Institutions Code section 252, arguing that the evidence was insufficient and the victim's interpreter incompetent.   Over a month later, appellant's counsel filed a further memo in support of the request for rehearing, arguing for the first time that the stipulation was inadequate.   Counsel attached a declaration that although his signature was on the stipulation, he did not recall signing it.   He declared that he did not explain appellant's “rights pursuant to Perrone” to appellant or his parents,1 as he (counsel) was unaware of Perrone until after the jurisdictional hearing.  (Perrone was filed on Dec. 12, 1979;  appellant's jurisdictional hearing commenced on Feb. 21, 1980.)   Counsel also declared that when he signed the stipulation, he did not intend to waive appellant's “Perrone rights.”

In its memorandum of decision denying rehearing, the court (1) found the stipulation to be adequate;  (2) noted that there is as yet no requirement that a minor be voir dired as to whether he agrees to a hearing before a referee;  and (3) stated that absent a record indicating otherwise, it would presume counsel was authorized to enter into the stipulation.

 Equating what he gave up by entering into this stipulation with the constitutional rights one waives upon pleading guilty, appellant argues that his “right to due process guaranteed by Perrone” can only be safeguarded by requiring an informed personal waiver on the record.   Appellant correctly notes that an uninformed waiver of the right to confront witnesses and the privilege against self-incrimination renders a guilty plea involuntary and requires that it be set aside.   Thus when a minor admits the allegations of a petition, the record must reflect his knowledgeable personal waiver of those constitutional rights.  (In re Ronald E. (1977) 19 Cal.3d 315, 320–321, 137 Cal.Rptr. 781, 562 P.2d 684;  see Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)   However, appellant's reliance on the Boykin-Tahl line of cases in the instant context is misplaced.

Constitutionally, a juvenile court referee is a subordinate judicial authority who cannot make final determinations.   Nevertheless, a referee's finding of acquittal cannot be reheard by the juvenile court judge, because to do so would violate double jeopardy prohibitions.  (Jesse W. v. Superior Court (1979) 26 Cal.3d 41, 47, 160 Cal.Rptr. 700, 603 P.2d 1296.)   As a consequence of these two principles, a referee has no constitutional power to make a determination favorable to a minor.   However, to subject a minor to a proceeding in which the finder of fact has no power to find in his favor, no matter how weak the evidence against him, would deny him due process.  (In re Perrone C., supra, 26 Cal.3d at p. 56, 160 Cal.Rptr. 704, 603 P.2d 1300.)   To bestow full judicial power on a referee, so that his power to make final determinations is not limited, a stipulation to that effect between the parties is necessary.   (Id., at p. 57, 160 Cal.Rptr. 704, 603 P.2d 1300.)

The stipulation which robes the referee with full judicial power might also be characterized as a waiver of the minor's right to have his jurisdictional hearing conducted in the first instance by the judge.   However, it is apparent that the minor gives up no rights comparable to those protected by Boykin-Tahl requirements when he so stipulates.   He is still entitled to be represented by counsel and to contest the allegations of the petition;  he can still confront and cross-examine witnesses and exercise his right against self-incrimination.   Moreover, the referee is subject to disqualification pursuant to Code of Civil Procedure sections 170 and 170.6, as would be the judge.  (Welf. & Inst.Code, § 247.5.)   In sum, the stipulation is not at all analogous with a Boykin-Tahl waiver.   The rationale underlying Boykin, Tahl, and their progeny is not applicable here.

This case is also distinguishable from People v. Moore (1969) 270 Cal.App.2d 486, 76 Cal.Rptr. 150, in which the court held that the record should reflect that a pro. per. defendant has been informed of his choices before he stipulates that a court commissioner can preside as judge pro tempore over his jury trial.   Appellant here was represented by counsel, so there was no similar need for an explanation on the record of the differences between referees and judges.   Even if counsel was in fact unaware of Perrone, presumably he was nevertheless aware generally of those differences, and took them into consideration when he signed the stipulation.  (See Cal.Juvenile Court Practice (Cont.Ed.Bar 1968) § 116, p. 111.)

 Perrone requires only a stipulation of the parties to confer judicial power on the referee.  (Perrone, supra, 26 Cal.3d at p. 57, 160 Cal.Rptr. 704, 603 P.2d 1300.)   A stipulation is an agreement between counsel respecting business before the court, and like any other agreement or contract, it is essential that the parties or their counsel agree to its terms.  (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142, 199 P.2d 952.)   The authority of attorneys to stipulate on behalf of their clients is well-settled (see Cohn v. Bugas (1974) 42 Cal.App.3d 381, 392, 116 Cal.Rptr. 810), and a client is bound by the acts of his attorney within the scope of his actual authority, either express or implied.  (Fidelity & Casualty Co. v. Abraham (1945) 70 Cal.App.2d 776, 783, 161 P.2d 689.)  (See also 1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, § 134, p. 145:  stipulation for judge pro tempore is a procedural step, frequently the subject of stipulation.)   An express personal waiver and a stipulation are not the same, and we conclude that the court in Perrone did not mean personal waiver when it called for a stipulation.  (Cf. People v. Hall (1980) 28 Cal.3d 143, 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826.)

Appellant also argues that the stipulation was defective because it failed to meet all the requirements of California Rules of Court, rule 244.   Rule 1316(b) provides that if the referee is an attorney admitted to practice in the state, the parties may stipulate pursuant to rule 244 that the referee shall act as temporary judge.  Rule 244 provides that the stipulation shall be in writing, and shall set out in full the name and office address of the attorney agreed upon, and that the stipulation “shall be submitted to the presiding judge ․ [whose] approval and order designating the person selected ․ shall be endorsed upon the stipulation, which shall thereupon be filed.   The judge pro tempore ․ shall take and subscribe the oath of office, which shall be attached to the stipulation and order of approval, ․” 2

 Unquestionably the instant stipulation does not comply with rule 244, as it bears neither file stamp nor endorsement by the presiding judge.   However, while a Rule of Court phrased in mandatory language is generally as binding on the courts and parties as a procedural statute, it is seldom jurisdictional and ordinarily departure from it is not reversible error unless prejudice is shown.  (Estate of Cooper (1970) 11 Cal.App.3d 1114, 1121, 90 Cal.Rptr. 283.)   Appellant does not argue that the referee was in fact not qualified, and there is nothing in the record which suggests that appellant was prejudiced by the failure to comply with all the requirements of rule 244.   Consistent with the presumption that official duty has been regularly performed (Evid.Code, § 664), under these circumstances it may fairly be presumed that the presiding judge has approved referee Corbin's employment, and that he has fulfilled all the conditions set forth in rule 244.

II

Appellant contends his petition for rehearing should be deemed granted because the court did not have good cause when it extended its time to rule on the petition.

 Welfare and Institutions Code section 252 provides in part:  “If an application for rehearing is not granted, denied, or extended within 20 days following the date of its receipt, it shall be deemed granted.   However, the court, for good cause, may extend such period beyond 20 days, but not in any event beyond 45 days, following the date of receipt of the application, at which time the application for rehearing shall be deemed granted unless it is denied within such period.”   The reviewing court will not read a “good cause” extension into an order of denial issued after the 20-day period.   The juvenile court judge must act within 20 days of the filing of the petition, either by granting or denying it, or by informing the parties both that it has extended time, and why.  (In re Danny T. (1978) 22 Cal.3d 918, 921–922, 150 Cal.Rptr. 916, 587 P.2d 712.)   Furthermore, the mere recital in an order that an extension is for good cause will render the order ineffective.   To guard against routine extensions and careless decisions to ensure a reasoned decision, and to facilitate appellate review, the juvenile court must articulate why it has concluded that good cause exists to extend time.  (In re Freddie R. (1979) 96 Cal.App.3d 829, 830–831, 158 Cal.Rptr. 260.)

Appellant's petition for rehearing, in which he argued that the evidence was insufficient and the victim's interpreter incompetent, was filed on April 10, 1980.   Thus the court was required to act on the petition on or about April 30.   On April 22, appellant, his counsel, his father, and the district attorney appeared before the juvenile court judge.   Counsel stipulated that the interpreter was not state-certified.   The court granted the People five days to submit a “due diligence declaration” as to the availability of a state-certified interpreter, and the matter was continued to May 9.

Appellant argues that the delay to obtain the declaration was not good cause for the extension until May 9, because the declaration was to be submitted by April 27.   However, we find it unnecessary to consider that argument, in light of the fact that appellant did not object to the extension.

 The cases which have considered the 20-day requirement of Welfare and Institutions Code section 252 have not discussed the effect of an appellant's failure to object to an extension of that period.  (E. g., In re Danny T., supra, 22 Cal.3d 918, 150 Cal.Rptr. 916, 587 P.2d 712;  Charles R. v. Superior Court (1980) 110 Cal.App.3d 945, 168 Cal.Rptr. 284;  In re Michael C. (1979) 98 Cal.App.3d 117, mod. 99 Cal.App.3d 536a, 159 Cal.Rptr. 306;  In re Freddie R., supra, 96 Cal.App.3d 829, 158 Cal.Rptr. 260.)   However, an analogy between this requirement and an adult defendant's right pursuant to Penal Code section 1382 to be brought to trial within 60 days seems apt.   The basic policies underlying the right to a speedy trial are to expedite the disposition of criminal proceedings, and to protect the accused from having criminal charges pending against him for an undue length of time.  (People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Wilson (1963) 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452.)   However, delay is not always a disadvantage to the accused, and when a defendant fails to object at the time a cause is set for trial beyond the statutory period, his consent to that delay is presumed.  (Johnson, supra, 26 Cal.3d at p. 567, fn. 7, 162 Cal.Rptr. 431, 606 P.2d 738;  Wilson, supra, 60 Cal.2d at p. 146, 32 Cal.Rptr. 44, 383 P.2d 452.)   Similar policies underlie the automatic grant provision of Welfare and Institutions Code section 252:  to expedite juvenile court proceedings, and to protect the juvenile from a prolonged period of uncertainty as to whether a referee's order is to be final.  (In re Danny T., supra, 22 Cal.3d at p. 921, 150 Cal.Rptr. 916, 587 P.2d 712;  Charles R. v. Superior Court, supra, 110 Cal.App.3d at pp. 953–954, 168 Cal.Rptr. 284.)   We conclude that if appellant, represented by counsel and accompanied by his father, also a lawyer, made no objection to the court's continuance beyond the 20-day period, presumably he consented to that delay.

The orders sustaining the supplementary petition and denying rehearing are affirmed.

FOOTNOTES

1.   Appellant was then and is now represented by a member of his father's law firm.   Appellant's father was present at all of these proceedings, and although he was not counsel of record, he acted as co-counsel during the jurisdictional hearing when he examined one witness.

2.   The Welfare and Institutions Code now also requires a written stipulation.   Effective January 1, 1981, Welfare and Institutions Code section 248 was amended to provide that a referee shall not conduct any hearing to which double jeopardy prohibitions attach “unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge.”  (Stats.1980, ch. 532, No. 3 Deering's Adv.Legis. Service, p. 375.)

SCOTT, Associate Justice.

WHITE, P. J., and BARRY–DEAL, J., concur.