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Court of Appeal, First District, Division 1, California.

JESSE W., a Minor Petitioner, v. The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent, The PEOPLE, Real Party in Interest.

Civ. 39301.

Decided: November 05, 1976

David R. Packard, Palo Alto, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for real party in interest.

Jesse W. was charged in the juvenile court, according to Welfare and Institutions Code (hereafter statutory citations will be to that code) section 602,* with committing an act which, if committed by an adult, would constitute the misdemeanor offense of battery. A juvenile court referee, who was not acting on ‘stipulation of the parties litigant’ (see Cal.Const., art. VI, § 21; In re Edgar M. (1975) 14 Cal.3d 727, 732, 122 Cal.Rptr. 574, 537 P.2d 406), conducted a hearing to determine whether the minor came within the jurisdiction, and was therefore subject to the available sanctions, of the juvenile court. Finding the evidence not convincing beyond a reasonable doubt, the referee dismissed the petition. The judge of the juvenile court thereafter, on his own motion, timely ordered a rehearing of the matter, as permitted by section 559.

Thereafter Jesse W. applied to this court for a writ of prohibition to prevent the rehearing. His contention was that the proceedings before the referee had placed him in jeopardy, and that a rehearing by the juvenile court judge would constitute double jeopardy, contrary to the Fifth Amendment and the state's Constitution, article I, section 15.

The appellate courts of this state have several times held that in such a context, the double jeopardy rule does not apply. (See In re Bradley (1968) 258 Cal.App.2d 253, 260–261, 65 Cal.Rptr. 570 [hearing by S.Ct. denied; disapproved as to unrelated issue in Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375–376, 93 Cal.Rptr. 752, 482 P.2d 664]; In re Henley (1970) 9 Cal.App.3d 924, 929–931, 88 Cal.Rptr. 458; In re Dale S. (1970) 10 Cal.App.3d 952, 956, 89 Cal.Rptr. 499 [hearing by S.Ct. denied]; see also People v. J. A. M. (1971), 174 Colo. 245, 483 P.2d 362, 364; contra, Aldridge v. Dean (D.C.1975) 395 F.Supp. 1161, 1172.) But we nevertheless issued the alternative writ of prohibition as requested by Jesse W., in order to determine the effect on California's rule, of the recent decision of the United States Supreme Court, entitled Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346.

In Breed v. Jones, a California juvenile court judge or referee (it is not clear which) had found the allegation of a section 602 petition to be true, and that Jones, the juvenile, had committed the act there charged. Thereafter, upon a hearing ‘on the question of the proper disposition to be made of the minor’ (see § 702), the judge of the court concluded that Jones was ‘unfit for treatment as a juvenile,’ and ordered that he be prosecuted for the charged act ‘as an adult’ in the superior court (see § 707). Without success Jones repeatedly contended in the state's courts that the superior court trial would subject him to double jeopardy, contrary to the pertinent state and federal constitutional provisions. On certiorari, the Breed v. Jones court stated: ‘We hold that the prosecution of [Jones] in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment.’ (421 U.S., p. 541, 95 S.Ct., p. 1791.)

The question before us in the instant proceeding is whether the juvenile court referee's negative finding on the issue of Jesse W.'s wrongdoing and his ‘dismissal’ of the section 602 petition, was the adjudication of the proceeding which had been commenced against him. If it was, then according to Breed v. Jones, the grant of a rehearing by the judge of the juvenile court had the effect, as contended by Jesse W., of exposing him to double jeopardy.

It becomes important to consider the function and authority of the referee, frequently appointed by juvenile courts to assist in the performance of the court's duties.

California's Constitution, article VI, section 22, provides: ‘The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.’ (Emphasis added.)

This section acts as a ‘limitation on the powers of juvenile court referees'; and the referee is constitutionally restricted to the performance of “subordinate judicial duties” (In re Edgar M., supra, 14 Cal.3d 727, 729, 732, 122 Cal.Rptr. 574, 576, 537 P.2d 406, 408.)

Such a referee's determinations ‘are not binding until adopted by the court itself,’ and ‘the referee's initial findings and orders become only advisory and their rendition constitutes no more than a subordinate judicial duty.’ (In re Edgar M., supra, 14 Cal.3d 727, 734, 736, 122 Cal.Rptr. 574, 579, 537 P.2d 406, 411.) His functions may be likened to those of the traditional master in chancery, and: “It is not within the general province of a master to pass upon all the issues in an equity case, nor is it competent for the court to refer the entire decision of a case to him without the consent of the parties. It cannot, of its own motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented and devolve that duty upon any of its officers.' (Kimberly v. Arms (1889) 129 U.S. 512, 524, 9 S.Ct. 355, 359, 32 L.Ed. 764, 768.)' (Id., p. 734, 122 Cal.Rptr., p. 579, 537 P.2d 411.)

The Juvenile Court Law provides for the reconsideration and review, and for the adoption or modification or rejection, by the judge of the juvenile court of all of the referee's findings and orders. The statute with which we are concerned in the case at bench is section 559, which provides: ‘A judge of the juvenile court may, on his own motion made within 20 judicial days of the hearing before a referee, order a rehearing of any matter heard before a referee.’ For similar and related provisions, see sections 554, 555, 556, 557, 558 and 560.

This statutory reservation of ultimate authority to the judge of the juvenile court is required by, and is a proper compliance with, the command of the state's Constitution, article VI, section 22. ‘The Juvenile Court Law directs referees to hear cases assigned by the presiding juvenile court judge ‘with the same powers as a judge of the juvenile court’ (§ 554) but subjects the referee's findings and orders resulting from such hearings to procedures for their review by a regular judge. It is clear that without the availability of any review procedures the contested adjudication and disposition of a minor as a ward of the juvenile court by a referee acting without the parties' consent would violate the constitutional limitation upon his functions to ‘subordinate judicial duties' . . ..’ (In re Edgar M., supra, 14 Cal.3d 727, 735, 122 Cal.Rptr. 574, 580, 537 P.2d 406, 412.)

It will thus be seen that the referee's finding that Jesse W.'s charged wrongdoing had not been established beyond a reasonable doubt, and his order dismissing the section 602 petition were but advisory and provisional; the ‘adjudicatory proceeding’ (see Breed v. Jones, supra, 421 U.S. 519, 541, 95 S.Ct. 1779, 44 L.Ed.2d 346) continued, until adjudication by the judge of the juvenile court.

An accused person, including a minor in a juvenile court (see In re James M. (1973) 9 Cal.3d 517, 520, 108 Cal.Rptr. 89, 510 P.2d 33), is placed in ‘jeopardy’ within the meaning of the state and federal constitutional provisions when, on valid charges, he is placed on trial before a competent tribunal with ‘jurisdiction’ to adjudicate the issue of his guilt. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601, 119 Cal.Rptr 302, 531 P.2d 1086;Richard M. v. Superior Court, supra, 4 Cal.3d 370, 376, 93 Cal.Rptr. 752, 482 P.2d 664; Paulson v. Superior Court (1962) 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641; Jackson v. Superior Court (1937) 10 Cal.2d 350, 352, 74 P.2d 243.) It is patent that in section 602 adjudicatory proceedings the competent tribunal with power to adjudicate the minor's ‘guilt’ is the judge of the juvenile court, and not his ‘subordinate’ judicial official, the referee.

Jesse W. was here placed on trial before the juvenile court on the issue created by the section 602 petition and his response thereto. The judge of that court alone, as indicated, had jurisdiction to adjudicate the issue; the referee, as pointed out by the state's Constitution, statutes and judicial decisional authority, did not.

Further analysis seems desirable. Within the meaning of the apposite constitutional provisions, in a juvenile court section 602 hearing the minor is placed in jeopardy at its commencement, ordinarily with the swearing of the first witness. (People v. Upshaw (1974) 13 Cal.3d 29, 32–33, 117 Cal.Rptr. 668, 528 P.2d 756.) The hearing may be before a judge, or a referee, of the juvenile court. If for any reason the hearing is aborted without ‘legal necessity’ therefor (see Curry v. Superior Court (1970) 2 Cal.3d 707, 713–714, 87 Cal.Rptr. 361, 470 P.2d 345), then the minor has suffered ‘prior jeopardy.’ But the hearing will ordinarily continue before the judge or the referee to its intended conclusion. In such a case there is no ‘prior’ jeopardy until the adjudicatory act of the juvenile court judge. This adjudication may be the express act of the judge, or it may follow from his passive election to allow the advisory findings and the provisional decision of the referee to stand. (See §§ 554–560.)

It follows that the juvenile court judge's continuing jurisdiction over the case, and his rehearing order following the referee's provisional finding and order of dismissal, did not expose Jesse W. to double jeopardy.

The holding of Breed v. Jones, supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, is found to be inapposite to the issue here at hand. Treating the hearing of that case as having been conducted by a referee, that official made no adjudication of, and was without jurisdiction to adjudicate, the issue of Jones' delinquency; the adjudication was thereafter made by the judge of the juvenile court. If the hearing was before the judge of the court, in that case also, it was he who made the adjudication. It was following the adjudication that the Breed v. Jones juvenile court judge remanded Jones to the superior court for another trial of the same issue, this time as an adult subject to criminal sanctions. The high court found jeopardy to have attached by virtue of the first adjudicatory proceeding, and the following criminal trial to have exposed the minor to double jeopardy. In the case at bench, as has been pointed out, there had been no prior adjudicatory proceeding before the juvenile court judge's rehearing order. Instead, that order was made in the course of the then pending proceedings against Jesse W.

We have considered the language of section 554, pointed out and relied upon by Jesse W.: ‘A referee shall hear such cases as are assigned to him by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court.’ This statute gives the referee the power of a judge of the juvenile court in presiding over the hearing. As we have pointed out, it may not be construed as equating his judicial decisional powers with those of the judge for such a grant would be contrary to the limitation of the state's Constitution, article VI, section 22. ‘The Juvenile Court Law directs referees to hear cases assigned by the presiding juvenile court judge ‘with the same powers as a judge of the juvenile court’ (§ 554) but subjects the referee's findings and orders resulting from such hearings to procedures for their review by a regular judge.' (In re Edgar M., supra, 14 Cal.3d 727, 735, 122 Cal.Rptr. 574, 580, 537 P.2d 406, 412.)

The court in In re Dale S., supra, 10 Cal.App.3d 952, 956, 89 Cal.Rptr. 499, 502, declared: ‘[E]very proceeding before a referee is subject to a rehearing and, a fortiori, every order of a referee is subject to being modified or vacated by an order of a juvenile court judge upon rehearing. It follows that if the referee's order does not become final, as in this case, because a rehearing is granted pursuant to section 558 or 559, the rehearing de novo does not place the minor in jeopardy a second time; the rehearing is a part of the original proceedings.’ We hold that this continues as a correct statement of the law of this state.

A contention of Jesse W. that the juvenile court judge did not ‘review all evidence on the record of the referee's hearing’ is unsupported by any record furnished us. ‘In the absence of a record that reveals error, it must be presumed that there was no error.’ (People v. Goodloe (1964) 225 Cal.App.2d 686, 688–689, 37 Cal.Rptr. 589, 591.)

For these several reasons we have concluded that Jesse W. is not entitled to the relief he seeks.

The peremptory writ of prohibition is denied, and the alternative writ is discharged.


FOOTNOTE.  Section 602 provides:‘Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime or who, after having been found by the juvenile court to be a person described by Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.’

ELKINGTON, Associate Justice.

MOLINARI, P. J., and SIMS, J., concur.

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