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Court of Appeal, First District, Division 5, California.

IN RE: JAMES G., Jr., a Person Coming Under the Juvenile Court Law; The PEOPLE of the State of California, Plaintiff and Respondent, v. JAMES G., Jr., Defendant and Appellant.

No. A045528.

Decided: April 26, 1990

Valerie C. West (under appointment by the Court of Appeal), Oakland, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan and Martin S. Kaye, Supervising Deputy Attys. Gen., for plaintiff and respondent.

 We hold that an oral stipulation to conduct a hearing in juvenile court before a temporary judge confers jurisdiction in the judge to act.   The parties and their attorneys cannot acquiesce to the hearing and then validly object to the lack of a written stipulation after the temporary judge has ruled.

James G., Jr., appeals from a judgment finding him within the jurisdiction of the juvenile court (Welf. & Inst.Code, § 602) and committing him to the California Youth Authority.   We affirm.


James contends the absence of a written stipulation for hearing before a temporary judge deprived the court of jurisdiction.   It is undisputed that on January 10, 1989, James orally agreed to hearing by a temporary judge.   The court minutes for that date contain the notation, “Minor waives pro-tem judge.”   The jurisdictional hearing took place on January 19 and 26, before Norlen Drossel, a juvenile court referee acting as temporary judge.   The same temporary judge presided at the dispositional hearing with the express consent of James' attorney.

Article VI, section 21 of the California Constitution provides:  “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.”  Rule 244 of the California Rules of Court (hereafter Rule 244) provides in part:  “The stipulation of the parties litigant that a case may be tried by a temporary judge shall be in writing and shall state the name and office address of the member of the State Bar agreed upon.”  Rule 1415(b) of the California Rules of Court, concerning referees of the juvenile courts, states in part:  “If the referee is an attorney admitted to practice in this state, the parties litigant may stipulate pursuant to rule 244 that the referee shall act as a temporary judge sitting with the same powers as a judge of the juvenile court.”

 In the absence of a valid stipulation a juvenile court referee does not have authority to conduct a Welfare and Institutions Code section 602 jurisdictional hearing.  (Welf. & Inst.Code, § 248;  In re Perrone C. (1979) 26 Cal.3d 49, 57, 160 Cal.Rptr. 704, 603 P.2d 1300.)   If the referee purports to act as temporary judge without any stipulation conferring judicial power, the court is without jurisdiction and the judgment is void.  (In re Robert S. (1988) 197 Cal.App.3d 1260, 1263, 243 Cal.Rptr. 459.)   The question here is whether the oral stipulation shown in the record, together with the lack of any objection by James or his attorney at any time in the proceedings, was sufficient to vest the court with jurisdiction.

This district has held that Rule 244's requirement of a written stipulation is not a jurisdictional prerequisite to allow a juvenile court referee to serve as temporary judge.  (Id., at pp. 1264–1265, 243 Cal.Rptr. 459.)   In Robert S. the appellants, parents of the minor, had orally stipulated to the temporary judge, but no written stipulation had been entered.  (Id., at p. 1262, 243 Cal.Rptr. 459.)   On appeal they claimed the failure to comply with Rule 244 deprived the court of jurisdiction.   The appellate court noted a line of cases holding that stipulation to hearing before a court commissioner acting as temporary judge could be implied from the party's conduct, i.e., from his participation without objection in the proceedings.  (Id., at p. 1263, 243 Cal.Rptr. 459;  see In re Mark L. (1983) 34 Cal.3d 171, 178–180, 193 Cal.Rptr. 165, 666 P.2d 22.)   Although those cases did not apply directly to noncommissioner temporary judges, the Robert S. court concluded that if a valid stipulation could be inferred from conduct, then, “a fortiorari, an express, albeit oral, stipulation ․ is sufficient․”  (Robert S., supra, 197 Cal.App.3d at p. 1264, 243 Cal.Rptr. 459.)

The Robert S. court further concluded that Rule 244's requirement of a written stipulation is not constitutionally mandated (id., at pp. 1264–1265, 243 Cal.Rptr. 459), that it was not jurisdictional and that any objection had been waived both by the appellants' express oral agreement and by their participation in the proceedings without any objection.  “ ‘ “ ‘It would seem ․ intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceeding to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’ ” ' ”  (Id., at p. 1265, 243 Cal.Rptr. 459.)

 We find the reasoning of Robert S. persuasive and the present case indistinguishable.   There is no dispute that James expressly agreed to have the case heard by a temporary judge.   He participated in the entire proceeding without objection, and indeed requested that the same judge hear the dispositional hearing.   He does not claim that the temporary judge was unqualified to serve or was improperly appointed.   It would not be in the interest of justice to accord him a “second bite at the apple” because of a formal error in an arrangement to which he deliberately consented.

James argues Robert S. is distinguishable in that the appellants there had expressly agreed to trial by a particular temporary judge, while the oral stipulation here was made before a judge other than the one who in fact heard the case.   The distinction might be significant had James and his attorney not then appeared before the temporary judge, Norlen Drossel, participated in the entire proceeding without objection, and requested that Drossel also preside over the dispositional hearing.   Together with the express oral agreement that the case be heard by a temporary judge, that conduct waives any objection to the lack of compliance with Rule 244.  (See In re P. I. (1989) 207 Cal.App.3d 316, 320–322, 254 Cal.Rptr. 774 [stipulation that referee sit as temporary judge at jurisdictional hearing, together with minor's active participation and lack of objection at dispositional hearing, waives any objection to lack of written stipulation relating to dispositional hearing].)

In support of his jurisdictional claim James cites In re Heather P. (1988) 203 Cal.App.3d 1214, 250 Cal.Rptr. 468 and In re Damian V. (1988) 197 Cal.App.3d 933, 243 Cal.Rptr. 185.   In both cases the Fifth District Court of Appeal held lack of compliance with Rule 244 a jurisdictional defect.  (Heather P., supra, 203 Cal.App.3d at p. 1225, 250 Cal.Rptr. 468 [lack of written stipulation];  Damian V., supra, 197 Cal.App.3d at p. 938, 243 Cal.Rptr. 185 [oath of office not attached to filed stipulation].)  The analysis provided in Damian V., on which the Heather P. court also relied, is not persuasive.

 The court in Damian V. reasoned, first, that because the language of Rule 244 is mandatory its requirements were therefore jurisdictional.  (197 Cal.App.3d at p. 938, 243 Cal.Rptr. 185.)   The two categories are not, however, equivalent;  failure to comply with a mandatory procedural step does not necessarily defeat the court's jurisdiction.  (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 551, fn. 2, 94 Cal.Rptr. 158, 483 P.2d 774;  2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 3, p. 368.)   Second, from the absence of a subscribed oath of office in the record the Damian V. court concluded the temporary judge had never properly qualified to hear the case.   Because his authority rested on nothing but the consent of the parties, his judgment was a nullity.  (Damian V., supra, 197 Cal.App.3d at pp. 938–939, 243 Cal.Rptr. 185.)   By this argument the court ignores the presumption of regularity normally accorded judgments on appeal.  “ ‘The judgments and orders of the superior court, a judge pro tempore presiding, are entitled to the same presumption of regularity as a court with a regular judge presiding.’ ”  (Estate of Kent (1936) 6 Cal.2d 154, 163, 57 P.2d 901.)   We should not assume, without evidence, that the temporary judge acted without having ever taken the oath of office.   The written stipulation required by Rule 244 is not a jurisdictional prerequisite, and James has waived any objection by his express oral agreement and participation without objection.

II **

The judgment of the juvenile court is affirmed.


FOOTNOTE.   See footnote *, ante.

LOW, Presiding Justice.

KING and HANING, JJ., concur.