IN RE: ARTHUR N.

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Court of Appeal, Third District, California.

IN RE: ARTHUR N., a person coming under the juvenile court law. Leroy FORD, Probation Officer of the County of Yolo, Plaintiff and Respondent, v. ARTHUR N., Defendant and Appellant.

Civ. 13875.

Decided: May 21, 1975

Robert L. Walker, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen., by Gregory W. Baugher, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Arthur N., a minor, having been found to be a person described by section 602 of the Welfare and Institutions Code1 was declared a ward of the juvenile court in 1970.2 Thereafter, in hearings on supplemental petitions (§ 777) he was continued in that status. At the time of the offense here in issue, he was a ward of the court and in the physical custody of his mother pursuant to the court's most recent dispositional order.

This appeal arises from a proceeding initiated by supplemental petition filed by the probation officer on May 4, 1972, requesting that the previous disposition be changed, modified, or set aside (§ 775) because Arthur allegedly had committed a robbery (Pen.Code, § 211) on April 27, 1972.

After a contested hearing, the juvenile court sustained the allegations of the supplemental petition, ordered that Arthur remain a ward of the court as a person continuing to be within the provisions of section 602, and committed him to the California Youth Authority.3

The sole contention made by the minor on this appeal is that the evidence was insufficient to show ‘beyond a reasonable doubt’ that (1) he took property from (2) the person or immediate presence of the victim. (See Pen.Code, § 211; People v. Hornes (1959) 168 Cal.App.2d 314, 319–321, 335 P.2d 756.) In response, the Attorney General argues that a proceeding on a supplemental petition to change a prior dispositional order is in the nature of a probation violation hearing and that even where the supplemental petition alleges a new crime, its allegations need only be proved ‘clearly and satisfactorily’ and not ‘beyond a reasonable doubt.’

We reject the minor's contention that the ‘beyond a reasonable doubt’ standard was applicable to his 1972 dispositional hearing, but because the record is susceptible to the interpretation that an inappropriate standard of proof was applied by the trial court, we find it necessary to reverse the judgment.

The juvenile court law (ch. 2 of pt. 1 of div. 2 of the Welf. & Inst.Code, §§ 500–945) is of scant assistance in divining the standard of proof applicable to hearings on supplemental petitions. The converse is true of hearings on original petitions, at least the first phase thereof in which jurisdiction is established.

Hearings on original petitions are governed by article 8 of the juvenile court law (§§ 675–708). As originally enacted section 701 provided that ‘the court shall first consider only the question whether the minor is a person described by [Section] . . . 602, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, a preponderance of evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602, . . .’ (Stats. 1961, ch. 1616, p. 3482.) In 1969 the Supreme Court, rejecting a challenge to the constitutionality of the statute, held that the required standard of proof by ‘a preponderance of evidence’ to sustain a jurisdictional finding, did not violate due process or equal protection of the law. (In re Dennis M. (1969) 70 Cal.2d 444, 460, 75 Cal.Rptr. 1, 450 P.2d 296.)

In 1970 the federal Supreme Court held that constitutional due process required proof beyond a reasonable doubt to sustain the jurisdiction of a juvenile court over a minor charged with an act which would be a crime if committed by an adult. (In re Winship (1970) 397 U.S. 358, 367, 90 S.Ct. 1068, 25 L.Ed.2d 368.) The holding in Winship was expressly limited to the adjudicatory phase of juvenile court proceedings. (Id. at p. 366, 368, 90 S.Ct. 1068; see also In re Kenneth W. (1970) 12 Cal.App.3d 1120, 1122, 91 Cal.Rptr. 702; In re Samuel Z. (1970) 10 Cal.App.3d 565, 569, 89 Cal.Rptr. 246; In re C. D. H. (1970) 7 Cal.App.3d 230, 233–234, 86 Cal.Rptr. 565.) In response to Winship, the Legislature amended section 701 by striking the standard of proof by ‘a preponderance of evidence’ and substitution therefor the requirement of ‘proof beyond a reasonable doubt.’ (Stats.1971, ch. 934, p. 1833.)

The scope of the holding in Winship has arguably been extended to supplemental proceedings by two later decisions of the Court of Appeal (In re Donna G. (1970) 6 Cal.App.3d 890, 86 Cal.Rptr. 421; In re Francis W. (1974) 42 Cal.App.3d 892, 117 Cal.Rptr. 277).

In earlier of the two cases, In re Donna G., supra, the court was confronted with the claim that the statutory provision governing supplemental petitions (§ 777) was unconstitutionally vague. Although rejecting the claim, the court, citing Winship and In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, stated that the test of vagueness applicable to a criminal proceeding must be applied to provisions governing supplemental proceedings, the result of which may be incarceration for treatment. (6 Cal.App.3d p. 894, 86 Cal.Rptr. 421.) However indisputable the principal enunciated, reliance upon Winship and Gault therefor cannot be construed as an extension by implication of the ‘reasonable doubt’ standard to supplemental proceedings. Gault, like Winship, is limited to the adjudicatory stage of a juvenile hearing, the decision expressly repudiating any concern with the post-adjudicative or dispositional process of juvenile proceedings. (In re Gault, supra, 387 U.S. at p. 13, 87 S.Ct. 1428; see also In re Dennis M., supra, 70 Cal.2d at p. 450, 75 Cal.Rptr. 1, 450 P.2d 296.) The sole significance of Donna G'.s reliance upon Winship and Gault to resolve a constitutional challenge to supplemental proceedings therefore is the recognition implicit therein that such proceedings must comply with ‘constitutional; due process standards required of [adult] criminal proceedings.’ (In re Donna G., supra, 6 Cal.App.3d at p. 894, 86 Cal.Rptr. at p. 423.)

Nonetheless, even in adult criminal proceedings ‘the standard of proof ‘beyond a reasonable doubt’ applies only to the issue of guilt itself. A variety of lesser standards of proof governs other issues that may arise in the course of such proceedings: . . .' (In re Dennis M., supra, 70 Cal.2d at p. 457, fn. 10, 75 Cal.Rptr. at p. 8, 450 P.2d at p. 304.) Thus to justify a revocation of probation the grounds therefor need not be shown beyond a reasonable doubt, but it is sufficient if they are proved by clear and satisfactory evidence. (People v. Ruelas (1973) 30 Cal.App.3d 71, 74, 106 Cal.Rptr. 132; People v. Youngs (1972) 23 Cal.App.3d 180, 186, fn. 3, 99 Cal.Rptr. 901; People v. Hayko, 7 Cal.App.3d 604, at p. 609, 86 Cal.Rptr. 726; People v. Matranga (1969) 275 Cal.App.2d 328, 333, 80 Cal.Rptr. 313.) Where the alleged violation of probation in itself constitutes a crime, circumstances not warranting conviction may justify revocation of probation. People v. Hayko, supra, 7 Cal.App.3d at p. 609, 86 Cal.Rptr. 726; People v. Matranga, supra, 275 Cal.App.2d at p. 333, 80 Cal.Rptr. 313.)

The case of In re Francis W., supra, 42 Cal.App.3d 892, 117 Cal.Rptr. 277, like the instant one, involved a hearing on a supplemental petition to modify the previous disposition of the juvenile court which had placed the minor on probation after he was adjudged a ward of the court. The supplemental petition alleged multiple violations of penal statutes. The juvenile court, in fact, conducted a two-stage hearing identical to that mandated by statute for original proceedings, the first phase of which was contested and culminated in a determination that the minor had committed violations of the criminal law. At the second or dispositional stage of the proceedings the minor was committed to the Youth Authority. On appeal the minor raised claims of constitutional dimension, attacking the admission of his confession (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694); the admission of certain physical evidence seized following a temporary detention (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889) and his judicial admission to an allegation charging excape from a boys' camp received and entered without first advising him of his rights (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1960) 1 Cal.3d 122, 81 Cal.Rptr. 613, 460 P.2d 485). The Court of Appeal reasoned that where a supplemental petition charges acts which, if charged in the original petition, would call forth the protections subsumed under fundamental notions of due process, there is ‘no basis in reason to distinguish between an original and a supplementary proceeding’ and the minor is entitled in each proceeding to the identical constitutional rights. (In re Francis W., supra, 42 Cal.App.3d at p. 898, 117 Cal.Rptr. at p. 280.) For its holding the court relied among other authorities upon In re Winship, supra.

We can entertain no doubt that supplemental proceedings which may result in a substantial loss of personal freedom are circumscribed by the protections of the Fourteenth Amendment to the federal Constitution as well as by the requirements of due process under the state Constitution. (Morrissey v. Brewer (1972) 408 U.S. 471 482, 92 S.Ct. 2593, 33 L.Ed.2d 484; Cal.Const., art. I, § 13; People v. Vickers (1972) 8 Cal.3d 451, 455, 105 Cal.Rptr. 305, 503 P.2d 1313.) Reliance on Francis W., however, for the proposition that due process requires proof beyond a reasonable doubt of allegations in a supplemental petition is misplaced inasmuch as there was no issue before the court in that case relative to the applicable standard of proof.

We conclude therefore that neither the federal nor the state Constitutions as interpreted by authoritative judicial decisions requires proof beyond a reasonable doubt to sustain an allegation of criminal conduct in a supplemental proceeding under the juvenile court law.

The juvenile court law creates a bifurcated procedure wherein the court first determines the jurisdictional facts and, if the facts found support the jurisdiction of the court, determines thereafter the appropriate disposition for the minor. (§§ 701, 702, 706; In re Gladys R. (1970) 1 Cal.3d 855, 859, 83 Cal.Rptr. 671, 464 P.2d 127.) As pointed out hereinabove, section 701 in response to the mandate of Winship prescribes the standard of proof (‘beyond a reasonable doubt’) applicable to the adjudicatory or jurisdictional phase of original proceedings. The statute imposes no standard of proof relative to the dispositional phase of original proceedings.4

Dispositional orders made in original proceedings are subject to subsequent modification. Article 11 of the juvenile court law (§§ 775–782) governs supplemental proceedings to modify dispositional orders of the juvenile court ‘subject to such procedural requirements as are imposed by this article’ (§ 775). (Emphasis added.) Nowhere in article 11 is a standard of proof articulated nor is the standard of proof beyond a reasonable doubt applicable to jurisdictional hearings (§ 701) assimilated directly or inferentially into supplemental proceedings.

Mindful of the necessity to conform supplemental proceedings which may result in a substantial loss of personal freedom with fundamental notions of due process and fairness (Morrissey v. Brewer, supra, 408 U.S. at p. 482, 92 S.Ct. 2593; People v. Vickers, supra, 8 Cal.3d at p. 455, 105 Cal.Rptr. 305, 503 P.2d 1313), we look for guidance to analogous procedures in criminal proceedings involving revocation of probation.

The principal purpose of probation in adult criminal proceedings is to rehabilitate the defendant. (People v. Matranga, supra, 275 Cal.App.2d at p. 332, 80 Cal.Rptr. 313.) Probation can be revoked by the court ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his probation . . . or has subsequently committed other offenses, regardless whether he has been prosecuted for such offenses.’ (Pen.Code, § 1203.2, subd. (a).)5 In considering whether to revoke probation, the court is not determining guilt or innocence of a crime even though the alleged violation of probation may constitute a separate criminal act. The court is dealing with one who has already been adjudicated guilty of a criminal offense beyond a reasonable doubt but who has been offered an opportunity for rehabilitation, thereby conditionally escaping the extreme rigors of the maximum penalty imposed by law. Thus the court is concerned with whether the probationer “can be safely allowed to return to and remain in society” (People v. Hayko, supra, at p. 730). Revocation of probation rests in the sound discretion of the trial court. (Id. 7 Cal.App.3d at p. 609, 86 Cal.Rptr. 726; People v. Matranga, supra, 275 Cal.App.2d at p. 333, 80 Cal.Rptr. 313.)

Article 11 of the juvenile court law governing supplemental proceedings provides that ‘Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.’ (§ 775.) (Emphasis added.) Section 777 provides that ‘An order changing or modifying a previous order by . . . directing commitment to the Youth Authority shall be made only after noticed hearing upon a supplemental petition’ which ‘shall be filed by the probation officer in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the minor.’

The parallel between probation revocation and supplemental proceedings is self-evident. Adult probation may be revoked in the discretion of the court. Juvenile court dispositional orders may be modified or set aside as the court ‘deems meet and proper’ (§ 775). The probation court in revocation proceedings is concerned with whether the adult probationer can be safely allowed to return to or remain in society. The juvenile court in supplemental proceedings determines whether the ‘previous disposition has not been effective in the rehabilitation or protection of the minor’ (§ 777) and if not, whether the welfare of the minor or the safety and protection of the public ‘cannot be adequately safeguarded’ without removing the minor from the custody of his parents (§ 502).

Because of the similarity of the policies to be promoted by both adult and juvenile post-adjudicative disposition proceedings, we conclude that a minor's right to due process and society's interest in rehabilitation of and protection from proven offenders are adequately served by the application to juvenile dispositional proceedings of the standard of proof heretofore applied in adult probation revocation proceedings. That standard was recently reiterated in its constitutional context by our Supreme Court in People v. Coleman (1975), 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024: ‘Among the most significant respects in which Morrissey's ‘minimum requirements of due process' (408 U.S. at p. 489, 92 S.Ct. at. p. 2604 [33 L.Ed.2d at p. 499]) differ from the ‘full panoply of rights due a defendant [in a criminal prosecution]’ (408 U.S. at p. 480, 92 S.Ct. at p. 2600 [33 L.Ed.2d at p. 494]), are with regard to the burden of proof on the state . . . A violation of a condition of probation may be established by a ‘clear and convincing’ showing rather than the more demanding standard of proof beyond a reasonable doubt applicable at criminal trials . . ..' 13 Cal.3d pp. 867–877, fn. 8, 120 Cal.Rptr. p. 393, 533 P.2d p. 1033.)

In the instant case the supplemental petition alleged that the existing dispositional order, based on the antecedent adjudication of wardship, had ‘not been effective in the rehabilitation’ of Arthur in that Arthur had violated section 211 of the Penal Code as specifically detailed therein. The juvenile court conducted a two-stage hearing. In the first stage the court took judicial notice of records of the court establishing Arthur's status as a person coming within section 602. Testimony of witnesses and other evidence was received concerning the alleged robbery. The court sustained the allegations of the supplemental petition and set the matter for dispositional hearing. Following the disposition hearing, the court rendered formal findings among which were: (1) that the factual allegations of it the supplemental petition were true; (2) that Arthur was declared a ward of the court on March 16, 1970; (3) that Arthur had been tried on probation, had failed to reform and was ‘now in violation of his probation’ (§ 726) and (4) that Arthur ‘continues to be a person scoming within the provisions of Section 602 . . ..’ The court adjudged that Arthur ‘remain a Ward’ and be committed to the Youth Authority.

From the foregoing recapitulation it is obvious that the instant proceedings were not original proceedings under article 8 of the juvenile court law. They were clearly ancillary to the original proceedings which had eventuated in an adjudication of wardship in 1970 and were so regarded by the trial court, notwithstanding that the court elected in its discretion to conduct separate hearings upon the two primary issues raised by the supplemental petition. Accordingly, the instant proceedings are governed by article 11 of the juvenile court law and the allegations of the supplemental petition alleging the commission by Arthur of a robbery may be sustained by the juvenile court only if it finds the evidence thereon meets the ‘clear and convincing’ standard applicable to probation revocation proceedings in criminal cases. (People v. Coleman, supra, 13 Cal.3d at pp. 876–877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024.)

In the ordinary case where, as here, the sufficiency of the evidence to support the findings of the juvenile court is challenged on appeal, the function of an appellate court is limited to a determination of whether there is substantial evidence from which a reasonable trier of fact could conclude that the evidence upon which the findings necessarily rest satisfies the applicable standard of proof. (Cf. In re C. D. H., supra, 7 Cal.App.3d at p. 233, 86 Cal.Rptr. 565.) While a review of the record might satisfy us that the evidence of Arthur's involvement in the robbery alleged in the supplemental petition is quantitatively sufficient, only the trier of fact is practically and legally competent to assess the quality of the evidence in the light of the appropriate standard of proof. The record herein is silent as to the standard of proof applied by the juvenile court. The general rule is that as to such matters upon which the record is silent, the appellate court will presume that the trial court proceeded correctly. (In re C. D. H., supra, 7 Cal.App.3d at p. 234, 86 Cal.Rptr. 565; People v. Clifton (1969) 270 Cal.App.2d 860, 862, 76 Cal.Rptr. 193.) However, we cannot indulge that presumption in favor of the orders appealed from herein because of the uncertainty at the time of trial as to the correct standard of proof to be applied and the very real possibility that the juvenile court assumed that a standard of proof less stringent than clear and convincing evidence, viz., by a preponderance of the evidence, applied to post-adjudicatory proceedings.

The only claim of error herein and the only possible error suggested by a review of the record is the possible application of an incorrect standard of proof. Under different circumstances we would be justified in ordering a limited reversal of the challenged dispositional order with directions to the trial judge to make new findings on the present record, thus obviating the necessity for a new trial in which the same evidence is presented a second time. (See In re C. D. H., supra, 7 Cal.App.3d at pp. 234–235, 86 Cal.Rptr. 565.) However, the passage of three years since the hearing is bound to have dimmed the memory of the trial judge to an extent affecting the ability to make the subtle judgments necessary to a determination of relative credibility in the light of the standard of proof announced herein.

Accordingly, the dispositional order of June 21, 1972, is reversed and the cause is remanded for a new hearing upon all issues raised by the supplemental petition.

FOOTNOTES

1.  Hereinafter all references to code sections are to the Welfare and Institutions Code unless otherwise indicated.Section 602 provides in part: ‘Any person who is under the age of 18 years when he violates any law of this state . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.’

2.  The minor admitted the allegation of the amended 1970 petition charging that he unlawfully possessed an alcoholic beverage (Bus. & Prof.Code, § 25662, a misdemeanor).

3.  We allowed the minor to file a late notice of appeal. (In re Arthur N. (1974), 36 Cal.App.3d 935, 112 Cal.Rptr. 89.)

4.  Section 706 provides: ‘After finding that a minor is a person described in Sections 600, 601, or 602, the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer and such other relevant and material evidence as may be offered, and in any judgment and order of disposition, shall state the social study made by the probation officer has been read and considered by the court.’

5.  Probation revocation proceedings are of course subject to due process protections. (People v. Vickers (1972) 8 Cal.3d 451, 458, 105 Cal.Rptr. 305, 503 P.2d 1313.)

PUGLIA, Presiding Justice.

JANES and EVANS, JJ., concur.