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

MORRIS E., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents;  The PEOPLE of the State of California, Real Party in Interest.

BRIAN H., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents; The PEOPLE of the State of California, Real Party in Interest.

No. A021176.

Decided: June 07, 1983

Stan Casper, Casper, Loewenstein & Schwartz, Concord, for Morris E. Marcus Peppard, Richmond, for Brian H. No appearance for respondents. John K. Van De Kamp, Atty. Gen., Robert R. Granucci and Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for real party in interest.

This petition challenges a juvenile court ruling, made under Welfare and Institutions Code section 707, determining that two juveniles were not fit and proper subjects to be dealt with under the juvenile court law.   At the hearings, the juveniles declined to testify because they feared that, in light of the “Truth-in-Evidence” portion of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), their testimony could be used against them during proceedings to determine guilt.   They attack the juvenile fitness hearing statute as unconstitutional because it presumes them unfit but does not permit them to testify with immunity from later use.   We sustain the statute.

Supplemental petitions filed in juvenile court alleged that petitioners should be adjudged wards of the court (Welf. & Inst.Code, § 602) because of committing a murder (Pen.Code, § 187) by use of a knife.   A hearing was held to determine whether they were fit subjects for treatment under juvenile court law.  (Welf. & Inst.Code, § 707.)   Before the hearing began, petitioners moved to dismiss the petitions to determine fitness on the ground that Welfare and Institutions Code section 707, subdivisions (b) and (c), was unconstitutional.   The court denied the motions, conducted the hearing, and found petitioners unfit for treatment under juvenile court law.   Before ruling on the motion, the court declined an offer by one juvenile to testify in camera.

After the fitness hearing, a complaint was filed, petitioners were arraigned, and a preliminary hearing date was set.   This petition for a writ of mandate/prohibition followed.

Welfare and Institutions Code section 707 provides a procedure for determining whether a juvenile is a fit and proper subject to be dealt with under the juvenile court law.   Subdivisions (b) and (c) of section 707 provide that when the minor is alleged to have committed certain serious crimes, including murder, 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 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 ․”  To find the minor fit for treatment under juvenile court law, the juvenile court must make a finding of fitness under each of five criteria set forth in subdivision (c):  “(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.”

If the juvenile is not charged with one of the crimes listed in subdivision (b), the same procedure is followed, except that the juvenile is not presumed unfit for treatment under juvenile court law.  “․ [T]he juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law if it concludes that the minor would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, ․” based upon an evaluation of the same five criteria set forth in subdivision (c), quoted above.   The court may base its determination upon any one or a combination of the five criteria, which it shall recite in its order of unfitness.  (Welf. & Inst.Code, § 707, subd. (a).)

Petitioners argue that the procedure for determining fitness of a juvenile charged with one of the specified serious crimes is unconstitutional because of the “Truth-in-Evidence” portion of Proposition 8, approved at the June 8, 1982, primary election. (Cal. Const., art. I, § 28, subd. (d).)  The contention is that adoption of that measure has nullified the decision in Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 178 Cal.Rptr. 418, forcing the juvenile to choose between waiving his constitutional privilege against self-incrimination and waiving his constitutional due process right to testify in his own behalf at the fitness hearing.

To evaluate this contention, we will trace the law backwards, beginning with Sheila O.   In Sheila O. the petitioner sought a writ permitting her to testify at her fitness hearing without risking use of the testimony later in a determination of guilt.   The Sheila O. court granted the immunity, likening the situation to that presented in People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024.

In Coleman, the defendant had challenged a practice of conducting probation revocation hearings in advance of trials on the same charges.   The defendant raised the constitutional objection presented here—that such a procedure forced him to choose between his right to testify at his probation revocation hearing and his right to avoid incriminating himself for purposes of the pending criminal trial.   The Coleman court declined to reach the constitutional issue, holding as a judicially declared rule of evidence that, upon timely objection, the testimony of a probationer at a probation revocation hearing and any evidence derived therefrom was inadmissible against the probationer during the criminal proceedings unless required for impeachment purposes.1

The court in Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, followed the lead of Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, in announcing a rule of evidence rather than a constitutional rule.   The first prong of petitioners' two-pronged argument is that the rule of evidence announced in Sheila O. must give way to the new constitutional provision that “․ 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․”  (Cal. Const., art. I, § 28, subd. (d).)

The Attorney General does not contest the supremacy of article I, section 28, subdivision (d), over a judicially declared rule of evidence.   He contends, however, that the rule of Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, may be grounded upon the federal Constitution and that this court should so rule.   His argument develops by looking backwards to two United States Supreme Court decisions predating Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024.

The first of these is Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, where the defendant testified at a pretrial suppression hearing that he was the owner of a particular suitcase, seeking by his testimony to establish his standing to contest a search.   At trial, over his objection, his testimony was introduced by the government.   The court, through Justice Harlan, reversed the conviction, finding it intolerable that the Fifth Amendment privilege against self-incrimination should have to be surrendered in order to assert the Fourth Amendment claim.

Three years later, in 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, Justice Harlan wrote again for the court as it reexamined Simmons and considered its implications in a different context.   There, a defendant challenged an Ohio law which provided for a jury determination of guilt and penalty in a murder case after a single trial and in a single verdict.   The defendant argued that under the Ohio single-trial procedure he could remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment.   The court rejected the attack, likening the tension to tensions existing elsewhere, such as when the defendant must choose whether to testify and risk opening the door to otherwise inadmissible evidence damaging to his case.

The court in Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, explained its reluctance to base its use immunity rule upon the federal Constitution by setting forth a lengthy and complex analysis of the effect of McGautha, supra, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, upon the ruling and rationale of Simmons, supra, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.   Pertinent to this case is the following discussion in Coleman:  “The court in McGautha made little effort to reconcile its reasoning with that which had preceded it in Simmons.   It noted that ‘not everything said in [Simmons ] can be carried over to this case without circumspection’ (McGautha v. California, supra, 402 U.S. at p. 211, 91 S.Ct. at p. 1469 ․), and adverting to the ‘insubstantiality of the purely Fifth Amendment interests involved in Simmons’ (402 U.S. at p. 212, 91 S.Ct. at p. 1469 ․), implied that Simmons should have been decided on the basis of the court's supervisory powers over federal trials rather than the mandates of the Constitution.   In sum, the court concluded that ‘[w]hile we have no occasion to question the soundness of the result in Simmons and do not do so, to the extent that its rationale was based on a “tension” between constitutional rights and the policies behind them, the validity of that reasoning must now be regarded as open to question ․’  (402 U.S. at p. 212, 91 S.Ct. at p. 1469 ․)”  (Coleman, supra, 13 Cal.3d 867, 881–882, 120 Cal.Rptr. 384, 533 P.2d 1024.)   Several federal courts have agreed that McGautha has removed the constitutional basis for the Simmons ruling.   (See Ryan v. State of Montana (9th Cir.1978) 580 F.2d 988;  United States v. Brugger (7th Cir.1977) 549 F.2d 2;  Flint v. Mullen (1st Cir.1974) 499 F.2d 100.)

 Simmons, supra, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, has not been overruled.   But McGautha, supra, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, provides a closer analogy to this case.   In McGautha, the defendant was concerned that if he testified to gain favor in sentencing, he might harm his defense to the charge.   Here, petitioners were concerned that if they testified to show fitness for treatment under juvenile court law, they might worsen their situation at trial.   The McGautha court acknowledged the poignancy of the position of a man whose life is at stake, but still rejected the argument that the Constitution permitted him to speak without threat of incrimination.   It follows a fortiorari that where only fitness for treatment under juvenile court law is at stake, the federal Constitution does not compel immunity for the juvenile.2

The second prong of petitioners' argument is that if a juvenile may not give immunized testimony at his fitness hearing, the presumption of unfitness and perhaps the entire fitness procedure is unconstitutional.

In People v. Superior Court (Stephen S.) (1981) 119 Cal.App.3d 162, 177, 173 Cal.Rptr. 788, hearing denied, decided before Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, announced its immunity rule, the court found no constitutional defect in the presumption of unfitness which attached to juveniles charged with committing certain crimes.   Yet petitioners argue that the void left by Sheila O.'s nullification has somehow rendered Welfare and Institutions Code section 707, subdivisions (b) and (c), unconstitutional.   They do not explain how a statute found constitutional before immunity was provided could become unconstitutional because immunity was provided for a brief period and then removed.   Implicitly, they attack Stephen S. for failing to acknowledge unresolved constitutional tension.

The argument that they do make is that article I, section 15, of the California Constitution provides for due process of law and that the adoption of article I, section 28, subdivision (d), has removed the tools through which due process can be secured.  “It prevents the courts from excluding relevant evidence from criminal proceedings in adult and juvenile courts in order to secure a particular constitutuonal [sic ] right for California citizens or to resolve the tension between two constitutional rights ․,” they argue.   Petitioners' argument depends upon finding in Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, or elsewhere, either a state requirement that constitutional tension be resolved by providing immunity, or, stated another way, a state constitutional right to due process of sufficient force to invalidate the presumption of unfitness unless the juvenile is permitted to testify with immunity at the fitness hearing.   Though this state due process provision or requirement for resolving tensions must be strong enough to invalidate the presumption, it cannot overcome the “Truth-in-Evidence” provision's effect upon Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, under petitioners' argument.

If a state constitutional due process right of the force claimed by petitioners exists, the search for it should start with People v. Ramirez (1979) 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622.   There the defendant challenged the procedures used to determine that he was unsuitable for treatment as a narcotic addict under a commitment to the California Rehabilitation Center (CRC).   The result of that determination was that his commitment was terminated and the criminal proceedings against him were resumed.   At the outset, the Ramirez court announced that it was reviewing the scope of due process under the California Constitution (id., at p. 263, 158 Cal.Rptr. 316, 599 P.2d 622), and shortly thereafter it explained that the reasoning of the federal cases required “some refinement in order to determine the appropriate standards for invoking the state clauses.”  (Id., at p. 265, 158 Cal.Rptr. 316, 599 P.2d 622.)   After further criticism of the federal approach (id., at pp. 266–268, 158 Cal.Rptr. 316, 599 P.2d 622), it announced the state analytical framework:  “We therefore hold that the due process safeguards required for protection of an individual's statutory interests must be analyzed in the context of the principle that freedom from arbitrary adjudicative procedures is a substantive element of one's liberty.   (See Van Alstyne, [Cracks in ‘The New Property’:  Adjudicative Due Process in the Administrative State ] (1977) ․, 62 Cornell L.Rev. [445], at p. 487.)   This approach presumes that when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision-making and in being treated with respect and dignity.   Accordingly, it places front and center the issue of critical concern, i.e., what procedural protections are warranted in light of governmental and private interests.


“These cases disclose that the extent to which due process relief will be available depends on a careful and clearly articulated balancing of the interests at stake in each context.   In some instances this balancing may counsel formal hearing procedures that include the rights of confrontation and cross-examination, as well as a limited right to an attorney.  (See, e.g., Morrissey v. Brewer [1972], 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484;  In re Bye (1974) 12 Cal.3d 96, 115 Cal.Rptr. 382, 524 P.2d 854 ․)  In others, due process may require only that the administrative agency comply with the statutory limitations on its authority.  (See, e.g., Cafeteria Workers v. McElroy [1961], 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230.)   More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.  (See Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 561 [150 Cal.Rptr. 129, 586 P.2d 162] ․)”  (Ramirez, supra, 25 Cal.3d at pp. 268–269, 158 Cal.Rptr. 316, 599 P.2d 622.)

The Ramirez court concluded that due process entitled the patient-inmate to a statement of the grounds for exclusion, access to nonconfidential information that the director considered in reaching his decision, notice and opportunity to respond before the responsible official, and a statement of the final decision and reasons therefor in writing.   In light of the administrative burden and the subjective nature of the director's decision, the Ramirez court determined that a formal hearing with confrontation and cross-examination was not required.  (Gibson v. Superior Court (1982) 135 Cal.App.3d 774, 781, 185 Cal.Rptr. 741.)

The cases applying the analysis of Ramirez, supra, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622, to due process questions have focused on what kind of hearing should be held, whether the affected party should be allowed to attend, what kind of notice should be given, and whether written reasons for the deprivatory action must be given.  (See, e.g., Van Atta v. Scott (1980) 27 Cal.3d 424, 434–446, 166 Cal.Rptr. 149, 613 P.2d 210;  People v. Rocha (1982) 135 Cal.App.3d 590, 592–600, 186 Cal.Rptr. 132.)   None has considered whether, when the Legislature has provided for a formal adversarial hearing, the state Constitution requires also that steps be taken to encourage the affected party to testify on his or her own behalf.   None gives any hint that due process requires more than an opportunity to testify.

Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, provides a conceptual framework for determining whether conflicting constitutional rights should be harmonized in favor of providing immunity for a defendant who testifies in a collateral hearing.   Arguably, Coleman, which cited mainly federal cases, merely analyzed federal constitutional law and did not explain a state constitutional approach.   However, for purposes of further analysis, we will assume that Coleman reveals a state law approach to resolving constitutional tensions.

Coleman observed that use immunity had been provided for inmates testifying in prison disciplinary hearings (Palmigiano v. Baxter (1st Cir.1973) 487 F.2d 1280, 1288–1290, vacated (1974) 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155), but that such immunity was not compelled for a defendant in a civil matter who might incriminate himself for a related criminal proceeding (Gordon v. Federal Deposit Insurance Corporation (D.C.Cir.1970) 427 F.2d 578, 580).   Based upon these and other decisions, the Coleman court constructed a “spectral analysis” framework for considering these constitutional tensions:  “It is apparent from analysis of Simmons, McGautha, Flint and analogous authority that cases presenting problems of conflicting constitutional rights have key constant and variable elements.   In every case one set of constitutional rights arises as an incident of liability to criminal prosecution.   What varies is the nature of the concurrent proceedings giving rise to a conflicting set of rights.   At one end of the spectrum of concurrent proceedings are those which accord the defendant minimal procedural rights but which have the potential of imposing serious personal deprivations.   Prison disciplinary hearings epitomize this class.   The need for accommodation is here the greatest, and may well be constitutionally compelled.   If already minimal procedural protections are further eroded by the need to preserve intact the defendant's full rights at a pending criminal trial, there are insufficient safeguards against the imposition of arbitrary deprivations at the concurrent proceeding.   At the other end of the spectrum, the concurrent proceeding may accord the defendant a high degree of procedural protection against arbitrariness, as is the case with civil litigation.   Here the need for accommodation is far less compelling, and does not appear to be of constitutional dimensions.   In such circumstances the defendant's choice as to the better forum—civil or criminal—in which to make his case is generally one of strategy rather than desperation.   Somewhere between these poles lies the revocation hearing at issue in the instant case.”  (Coleman, supra, 18 Cal.3d 867, 885–886, 120 Cal.Rptr. 384, 533 P.2d 1024.)

In the formality of its proceedings, a juvenile fitness hearing is closer to the civil litigation end of the spectrum than to the prison disciplinary hearing end.   However, the juvenile charged with one of the specified serious offenses is less protected than a civil defendant, because a presumption of unfitness works against him.   Thus, as with a probationer facing revocation, his case lies somewhere between the poles in the Coleman spectral analysis.

Having avoided a constitutional ruling, the Coleman court neglected to explain how the analysis would proceed when a case fell between the two poles of the spectrum.   Though the court in Ramirez, supra, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622, did not cite Coleman, it picked up where Coleman left off.   By enumerating the four considerations for a due process determination, it provided a conceptual basis for considering when the need to accommodate a defendant's right to testify with his Fifth Amendment rights is greatest and should be indulged.

 Examining the Ramirez considerations, we conclude that state constitutional considerations do not compel that a juvenile be permitted to testify with immunity at a fitness hearing.  (1) The private interest affected:  A juvenile has a strong interest in being treated under juvenile court law because unlike a juvenile court, an adult court may sentence him to a term as long as life imprisonment (see People v. Spears (1983) 33 Cal.3d 279, 188 Cal.Rptr. 454, 655 P.2d 1289;  People v. Davis (1981) 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186), if that is the punishment prescribed for his crime.  (2) The risk of an erroneous deprivation and the probable value of the additional procedural safeguard:  Risk of error is minimal because the defendant possesses various means for presenting evidence of his fitness for juvenile court treatment.   He may present testimony from parents or friends.   He may present independent evidence concerning the alleged events.   The probation report itself may assist in rebutting the presumption.   Of course, testimony from the juvenile could often be of value to the court.   But the opportunity to testify exists in every case.   The procedural safeguard would only remove from the juvenile some of the difficulty in making the choice between testifying and remaining silent.   Even without immunity, the juvenile can prevent error by making the hard choice to testify.  (3) The dignitary interest of the individual:  This interest is hardly implicated at all.   Arguably, more dignity is accorded to a juvenile when he is asked to make the hard choice under circumstances where he must suffer the natural consequences than when he receives a promise of immunity to make his decision easier.   The individual's dignitary interests are well secured by the various procedural protections provided by juvenile court law.  (4) The governmental interest:  Strong governmental interests tip the balance against constitutionally compelled immunity.

The California electorate has expressed its opinion that all relevant evidence (with certain exceptions) should be admitted in juvenile court proceedings.   It has also, through its legislators, decreed that juveniles who commit certain enumerated crimes be presumed unfit for juvenile court treatment and be required to prove otherwise.   Petitioners argue that those two governmental interests cannot both be served without sacrifice of the juveniles' constitutional rights, and that the latter governmental interest must give way.   But, by concluding that the Constitution does not compel the courts to resolve the constitutional tension, both governmental policies can be served.3

Nothing would prevent the Legislature from making all the serious crimes enumerated in Welfare and Institutions Code section 707, subdivision (b), triable in adult court if committed by persons over 16.   If the Legislature could have achieved part of its objective through that more restrictive means, we see no reason to prevent it from taking a less restrictive approach.   In providing the juvenile an opportunity to avoid trial in adult court, the Legislature was required only to ensure that the fitness decision was not made arbitrarily or in an unfair or prejudiced decision-making process.  (See People v. Ramirez, supra, 25 Cal.3d 260, 268, 158 Cal.Rptr. 316, 599 P.2d 622.)   It was not required to provide the juvenile with every potentially available tool for avoiding the presumption of unfitness or to provide the juvenile the most favorable atmosphere for seeking to establish his fitness for treatment under juvenile court law.   There is no unfairness in requiring the juvenile to make the choice whether to waive his privilege against self-incrimination at both the fitness hearing and trial, rather than only during the trial.

The alternative writ of mandate is discharged, and the petition for a peremptory writ is denied.


1.   In People v. Jasper (1983) 33 Cal.3d 931, 191 Cal.Rptr. 648, 663 P.2d 206, the California Supreme Court reaffirmed the rule of Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, for proceedings occurring before adoption of article I, section 28, subdivision (d), of the California Constitution.   It declined to determine that section's effect upon the Coleman exclusionary rule in future cases.

2.   We realize that a contrary conclusion was reached in Ramona R. v. Superior Court (1983) 142 Cal.App.3d 909, 191 Cal.Rptr. 402.   However, the Ramona R. court was able to find a federally compelled exclusionary rule only by ignoring McGautha, supra, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, and its effect upon Simmons, supra, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.   We respectfully disagree with the analysis in Ramona R.

3.   The Legislature is, of course, free to amend Proposition 8 by a two-thirds vote, adding immunity like that of Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418.  (Cal. Const., art. I, § 28, subd. (d).)

BARRY–DEAL, Associate Justice.

SCOTT, Acting P.J., and FEINBERG, J., concur.

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