IN RE: RANCE H. (1993)

In this case we are asked to examine the jurisdiction of a referee in a juvenile delinquency matter where the parties have not entered into a written stipulation as mandated by Welfare and Institutions Code section 248 and the minor has objected to the authority of the bench officer during the course of the jurisdictional hearing.

Rance H. was charged in a petition under Welfare and Institutions Code section 602 with possessing a short-barreled rifle in violation of Penal Code section 12020, a felony.  (All further statutory references are to the Welfare and Institutions Code unless otherwise noted.)   On December 3, 1991, a juvenile court referee sustained the petition.   A superior court judge declared appellant a ward of the court, placed him home on probation, and found the offense to be a misdemeanor with a maximum period of confinement of 90 days.

Appellant argues that the disposition must be reversed because the referee lacked jurisdiction to sustain the petition without a written stipulation of the parties, and no stipulation had been made.   As we shall explain, we agree that a written stipulation is mandated by section 248.

In light of our disposition of the jurisdictional issue, we need not reach appellant's additional argument that his right to due process of law was violated by the referee's adversarial questioning of witnesses.

FACTUAL AND PROCEDURAL SUMMARY

On May 14, 1991, a Los Angeles County deputy sheriff observed appellant standing on the sidewalk.   The deputy saw the outline of a weapon in the right side of appellant's pants.   Appellant looked at the police vehicle and fled.   During the ensuing chase, appellant dropped a rifle with a barrel sawed off to less than 18 inches in length.   Appellant was captured and detained.   Appellant denied the charges and testified that a man known to him as “John” had run past him shortly before appellant was arrested.

The jurisdictional hearing was conducted by a juvenile court referee.   According to the court's minutes, she was acting as a temporary judge.   Following the conclusion of the prosecutor's case, the minor called a number of witnesses on his own behalf.   The referee examined one of these witnesses.   The minor's attorney objected on the ground that the referee was “taking over the prosecutor's job.”   The objection was overruled and the questioning continued.   After this examination had continued for some time, the attorney for the minor again stated a continuing objection to the questioning.   The referee concluded her extensive questioning of the witness and asked counsel if they had any further questions.

At this point, the prosecutor intervened.  “Before we proceed, I think there is a point of procedure.   A stipulation should have been signed before this adjudication was begun.   Inadvertently it was not circulated.   I would ask the court that both counsel and the minor be asked to sign this stipulation at this point.”   The referee replied:  “Yes.   We should have had a stipulation signed before we started.”   The attorney for appellant refused to sign it, saying, “I refuse to sign a stipulation after the court's behavior.   I believe that my client is entitled to a fair trial.”

After a brief colloquy about the referee's examination of the witness, the court took a recess.   When the hearing resumed, appellant's attorney objected to proceeding in the absence of a stipulation.   The referee pointed out that there was a sign in front of the bench indicating that she was a judge pro tem.   The referee ruled that appellant had waived the issue because his counsel had participated in the hearing for the previous two days and was aware that the referee was acting as a temporary judge.

Appellant's attorney disagreed and stated that she believed that her client thought that a judge was presiding over the hearing.   The hearing then proceeded with the examination of witnesses.   Later, the prosecutor asked the court to declare a mistrial or to ask the defense counsel to sign the stipulation.   The prosecutor observed:  “Otherwise, defense counsel is blowing hot and cold to wait until the verdict is delivered, and if they like the verdict, of course, they will hang onto that.   If they don't, of course, they will continue to refuse to stipulate.”

The referee indicated that a mistrial was not warranted.   Both sides disagreed.   The prosecutor continued to argue that the hearing should not go forward without a stipulation.   Appellant's attorney reiterated her continuing objection to the authority of the referee to act as a temporary judge in the absence of the stipulation.   Finally, the attorney for appellant moved for a mistrial on the ground that the court lacked jurisdiction without a stipulation.   The prosecutor joined in the motion, which was denied.

The parties concluded the presentation of testimony and argued the case.   The prosecutor stated:  “I'll waive opening, Your Honor, except to tell the court with respect to the issue of a stipulation, counsel informed me earlier that she did agree to stipulate to Your Honor to serve on this case, and on that I will waive opening.”   The attorney for appellant disputed the prosecutor's account, asserted that she had not stipulated to the temporary judge, and reiterated her continuing objection to the jurisdiction of the court.

After the referee sustained the petition, the attorney for appellant stated:  “I would have a continuing objection to the court sustaining the petition in that the court did not have jurisdiction because the court did not have a stipulation.”   The record does not reflect any ruling in response to this last objection.   The disposition hearing was conducted by a superior court judge.   Appellant filed a timely notice of appeal.

DISCUSSION

I

 The issue in this case is whether a written stipulation is required in a delinquency case to confer jurisdiction on a referee to act as a temporary judge.   At trial, both sides argued that it is.   They were correct.   As we shall explain, unlike other proceedings, in a juvenile hearing pursuant to section 602, the written stipulation of the parties is a mandatory requisite to the authority of a referee to perform anything beyond “subordinate judicial duties.”

California Constitution, article VI, section 21 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.”  Section 22 of article VI of the California Constitution provides:  “The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.”

It is established that “[t]he jurisdiction of a court commissioner, or any other temporary judge, to try a cause derives from the parties' stipulation.   (Rooney v. Vermont Investment Corp. [1973] 10 Cal.3d [351,] 360, [110 Cal.Rptr. 353, 515 P.2d 297].)   Thus in the absence of a proper stipulation, the judgment entered by the court commissioner in this case would be void.   (People v. Tijerina [1969] 1 Cal.3d [41,] 49 [81 Cal.Rptr. 264, 459 P.2d 680];  In re Frye (1983) 150 Cal.App.3d 407, 409–410 [197 Cal.Rptr. 755]․)”  (In re Horton (1991) 54 Cal.3d 82, 90, 284 Cal.Rptr. 305, 813 P.2d 1335.)

The broad provisions of article VI, sections 21 and 22 of the Constitution are supplemented by section 248 which specifically addresses the authority of a referee to preside over juvenile matters under section 602:  “A referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court, except that a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge.”  (Emphasis added.)   The emphasized language was added by a 1980 amendment to the statute.

“In construing statutes, we must determine and effectuate legislative intent.  [Citations.]  To ascertain intent, we look first to the words of the statutes.  [Citations.]  ‘Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.’   [Citation.]”  (Woods v. Young (1991) 53 Cal.3d 315, 323, 279 Cal.Rptr. 613, 807 P.2d 455.)

Section 248 unambiguously expresses the intent of the Legislature to prohibit a juvenile referee from presiding over a jurisdictional hearing under section 602 unless the parties have entered into a written stipulation.   It is difficult to see how this intent could have been expressed with greater clarity.

In this respect, section 248 is distinguishable from California Rules of Court rule 244 which provides in pertinent part:  “The stipulation of the parties litigant that a case may be tried by a temporary judge shall be in writing․”  The California Supreme Court has ruled that the constitutional provisions and rule 244 may be satisfied by the conduct of the litigants and their counsel which amounts to a “tantamount stipulation” even when they have not entered into an express stipulation.  (See In re Horton, supra, 54 Cal.3d at p. 98, 284 Cal.Rptr. 305, 813 P.2d 1335;  In re Richard S. (1991) 54 Cal.3d 857, 865, 2 Cal.Rptr.2d 2, 819 P.2d 843.)

Neither In re Horton nor In re Richard S. addressed section 248, since the statute was not involved in either decision.  Horton involved an adult criminal trial, and Richard S. concerned the custody of a child under section 300.   Moreover, there is a basic distinction between the authority of a referee in a juvenile dependency proceeding, under section 300, such as Richard S., and in juvenile delinquency proceedings under section 602, as in this case.  (See In re Carina C. (1990) 218 Cal.App.3d 617, 624, 267 Cal.Rptr. 205 [“[i]n general, a referee is empowered by section 248 [fn. omitted] to exercise the same judicial authority as a judge of the juvenile court, except in hearings as to which the state or federal constitutional prohibitions against double jeopardy apply.   This statutory exception does not pertain to these facts;  the matter before the court did not implicate any party's constitutional double jeopardy protections.”];   see also In re Lamonica H. (1990) 220 Cal.App.3d 634, 644–645, fn. 5, 270 Cal.Rptr. 60;  In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1484, 272 Cal.Rptr. 489.)

In adopting section 248, the Legislature expressly enacted a special rule governing the authority of a temporary judge in juvenile proceedings to which jeopardy attaches.   It is axiomatic that “ ‘[a] specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates.’ ”  (Woods v. Young, supra, 53 Cal.3d at p. 325, 279 Cal.Rptr. 613, 807 P.2d 455.) ¹

Section 248 is distinguishable because the statutory language expressly limits the jurisdiction of a referee in matters to which jeopardy attaches.   This interpretation is consistent with the legislative history of section 248, which is a product of the evolving role of the juvenile referee under California and federal law.

The use of referees in juvenile proceedings predates the major 1961 revision of the Juvenile Court Law.  (Stats.1961, ch. 1616;  Note, 1961 California Juvenile Court Law:  Effective Uniform Standards for Juvenile Court Procedure? (1963) 51 Cal.L.Rev. 421, 433, fn. 71 [hereafter 1961 Juvenile Court article].)

Under juvenile court statutes enacted in 1937 and 1939, all orders made by a referee had to be approved by a juvenile judge.  (Stats.1937, ch. 369, §§ 577–578, former §§ 577–578 of Welf. & Inst.Code;  Stats.1939, ch. 380, § 1, former § 578.1 of Welf. & Inst.Code;  1961 Juvenile Court article, pp. 433–434.)   The 1961 revision required approval of a juvenile judge only when the referee's order removed a juvenile from his or her home.   The revised law also provided opportunities for review by the juvenile court judge either at the request of the juvenile or on the court's own motion.  (Former §§ 555, 557, 558, 559.)   The 1961 Act required all rehearings of a referee's proceedings to be conducted de novo.  (Former § 560.)

This statutory framework did not clearly define the scope of the juvenile referee's authority.   Prior to 1961, former section 729.5 provided that detention hearings would be conducted by a “ ‘judge of the juvenile court.’ ”   (Stats.1949, ch. 1230, § 1;  1961 Juvenile Court article, p. 433, fn. 71.)   The jurisdiction of a referee to conduct detention hearings was in doubt and remained so even under the 1961 revisions to the law.   Although the 1961 statute (former § 632) directed that the minor be brought before a “judge of the juvenile court” for detention hearings, other provisions of the statute addressing detention hearings referred simply to “the court.”  (§§ 633, 638;  former §§ 634–637;  1961 Juvenile Court article, p. 433, fn. 71.)

Beginning in the late 1960's, the United States Supreme Court extended a number of constitutional safeguards to juvenile proceedings.  (See In re Gault (1967) 387 U.S. 1, 13, 33, 41, 55–57, 87 S.Ct. 1428, 1436, 1446, 1451, 1458–59, 18 L.Ed.2d 527 [due process safeguards of notice of charges, right to counsel, privilege against self-incrimination, confrontation and cross-examination];  In re Winship (1970) 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 [reasonable-doubt standard].)   In 1971 the California Supreme Court ruled that juveniles are entitled to protection under the federal and state constitutions against double jeopardy.  (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375, 93 Cal.Rptr. 752, 482 P.2d 664.)   The United States Supreme Court expressly reached the same conclusion in 1975.  (Breed v. Jones (1975) 421 U.S. 519, 531, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346.)   These decisions, when applied to the Juvenile Court Law as revised in 1976, foreshadowed the dilemma which was the impetus for the 1980 amendment of section 248 with which we are concerned.

By 1975, widespread dissatisfaction with the California Juvenile Court Law culminated in massive reform efforts.   Twenty-eight bills directed at juvenile court reform were introduced in the California Legislature during the 1975 session.  (Richard A. Gadbois, Jr. and Kenneth Allen Black, 1976 Amendments to the Juvenile Court Law:  Adult Treatment of 16–17 Year–Old Offenders (1977) 9 U.West L.A.L.Rev. 13;  Julian C. Dixon, Juvenile Justice in Transition (1977) 4 Pepperdine L.Rev. 469, 473–475.)   These reform efforts led to the enactment of three laws in 1976 (Stats.1976, chs. 1069, 1070, and 1071) which redefined the responsibility and authority of probation officers, prosecuting attorneys and the courts in actions under sections 601 and 602.   The 1976 legislation also changed the treatment of 16 and 17–year–olds who committed serious offenses.   As one review of the enacted statutes put it, “the new law seems designed to serve the dual function of imposing more stringent and punitive measures in the case of a sophisticated criminal offender and lessening the penal aspects of the juvenile system if a minor has committed a minor offense or has gone astray in a non-criminal manner.”  (Review of Selected 1976 California Legislation (1976) 8 Pacific L.J. 165, 416.)

At the same time, the 1976 legislation set the stage for a direct conflict with the decisions of the California Supreme Court concerning the constitutional authority of juvenile referees in matters brought under section 602.

Under the 1976 revisions to the Juvenile Court Law, section 250 provided that all orders of a referee became effective immediately, subject to the juvenile court's authority to require approval of “any or all” orders of referees.  (§§ 250, 251.)   In addition, either the juvenile or his or her representative could seek rehearing by a juvenile court judge of a referee's adverse decision.  (§ 252.)   As before, the trial court could order a rehearing on its own motion.  (§ 253.)   All rehearings were to be heard de novo.  (§ 254.)

The California Supreme Court explained the conflict created by this legislation.  “Under this statutory scheme, it appears the Legislature gave juvenile court referees the power to make final orders.  [Citation.]  But ․ [we] held in In re Edgar M. (1975) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406] ․ that juvenile referees are constitutionally limited to only ‘subordinate judicial duties' under article VI, section 22 of the California Constitution.   Under that case there exists real question as to whether a juvenile court referee can constitutionally make any final determinations.  ‘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” (art. VI, § 22).’  (In re Edgar M., supra, 14 Cal.3d 727, 735 [122 Cal.Rptr. 574, 537 P.2d 406].)  [¶]  So long as the referee's finding is advisory only, his power to act will be upheld.   Where a referee attempts to make a final adjudication, his act is unconstitutional.  [His] ‘determinations ․ are not binding until adopted by the court itself.’  (Id., at p. 734 [122 Cal.Rptr. 574, 537 P.2d 406]․)”  (In re Perrone C. (1979) 26 Cal.3d 49, 54–55, 160 Cal.Rptr. 704, 603 P.2d 1300.)

After deciding In re Edgar M., the Supreme Court ruled that the statutory procedure for redetermination of the juvenile's status in a de novo hearing after a referee has dismissed the charges constituted a violation of the constitutional prohibitions against double jeopardy.  (Jesse W. v. Superior Court (1978) 20 Cal.3d 893, 904, 145 Cal.Rptr. 1, 576 P.2d 963 [Jesse W. I.] vacated and remanded for reconsideration sub nom.   California v. Jesse W., 439 U.S. 922, 99 S.Ct. 304, 58 L.Ed.2d 315;  Jesse W. v. Superior Court, (1979) 26 Cal.3d 41, 43, 47, 160 Cal.Rptr. 700, 603 P.2d 1296 [Jesse W. II.];   see Note, Jesse W. v. Superior Court:  Double Jeopardy Clause Prohibits Judicial Rehearing of Juvenile Court Referee's Dismissal (1979) 67 Cal.L.Rev. 744.)

In In re Perrone C., supra, 26 Cal.3d 49, 160 Cal.Rptr. 704, 603 P.2d 1300, the Supreme Court examined the dilemma created by the conflict in the statutory and the common law:  “Under California Law then, Perrone C. came to his jurisdictional hearing with this bleak prospect:  the referee conducting the hearing could not acquit him without violating the California Constitution no matter how weak the evidence.   That is because ․ a referee's finding of acquittal cannot be reheard.   To do so would be double jeopardy.   The acquittal would be a final determination, not merely a subordinate judicial act, which is constitutionally prohibited under article VI, section 22 of the California Constitution (Jesse W. [II]․)  Under the law the referee could only find him guilty.   He can do this because the judge's later independent decision to deny the application for rehearing based on the record makes the referee's true finding advisory only, not a final determination (In re Edgar M., supra, 14 Cal.3d 727, 735–736 [122 Cal.Rptr. 574, 537 P.2d 406] ).   The judge, on application for rehearing, could not acquit Perrone C. unless he conducted a second trial (§ 252).   At the second trial the judge could also give a harsher penalty than was given by the referee [citation].   There is no way under this process Perrone C. could lawfully be acquitted in one trial.   To be acquitted he must be subjected to two separate trials, one before the referee, the second before the judge.   The requirement of the second hearing in order to be lawfully acquitted conflicts with the spirit of Swisher and its focus on a single proceeding where the minor is not subjected ‘to the embarrassment, expense and ordeal of a second trial.’   (Swisher v. Brady [1978] 438 U.S. 204, 216 [98 S.Ct. 2699, 2707, 57 L.Ed.2d 705]․)”  (Id. 26 Cal.3d at pp. 56–57, 160 Cal.Rptr. 704, 603 P.2d 1300, emphasis in original.)

In In re Perrone C., the Supreme Court adopted the published opinion of the Court of Appeal (Civ. No. 18281) which had been filed on March 5, 1979.   On March 26, 1979, Assembly Bill No. 1308, which addressed the authority of juvenile referees, was introduced.   The bill was sponsored by the State Public Defender's Office.  (See Analysis of Assem. Bill No. 1308 as amended May 15, 1979, prepared for Assembly Commission on Criminal Justice.) ²

As originally drafted, Assembly Bill No. 1308 provided that, if directed by the presiding judge of the juvenile court, a referee could perform specific functions, including “(a) If the referee is a member of the State Bar, he may hear and determine any case assigned to him with the written consent of all parties in the capacity of a temporary judge.”  (Assem. Bill No. 1308, (1979–1980 Reg.Sess.) § 2.)   The bill also rewrote section 250 to provide that the decisions of a referee would be final where the referee was sitting as a temporary judge pursuant to the written stipulation of the parties.  (Id. at § 4.)   The original version of AB 1308 made no changes in section 251, which provided that juvenile judges could require express approval of “any or all orders of referees” by a judge of the juvenile court.  (Id. at § 5.)   After technical amendments by the author, AB 1308 was sent to the inactive file on the author's motion in June, 1979.  (1 Assem. Final Hist. (1979–1980 Reg.Sess.) p. 841.)

In January 1980, the bill was restored to active status, passed the Assembly, and was sent to the Senate.  (Ibid.)  A Senate amendment on June 9, 1980, after In re Perrone C. had been decided, provided that a referee could conduct detention hearings and arraignments “in matters arising under Section 602, as well as any hearing, including an adjudication hearing, in a proceeding to which the state or federal constitutional prohibition against double jeopardy does not apply.”  (Assem.Bill No. 1308 as amended June 9, 1980, § 2.)   The same amendment added an expression of legislative intent:  “It is the intent of the Legislature that referees of the juvenile court shall retain all of the powers constitutionally held by them prior to the enactment of this act, and nothing herein shall be construed to restrict, curtail, or diminish their powers in any manner not mandated by the Constitution.”  (Id. at § 5, p. 3.)

Analyses of Assembly Bill 1308 prepared for the Assembly and Senate Committees reveal the Legislature's concern with the impact of the decisions in In re Edgar M., Jesse W. and Perrone C. on the authority of juvenile court referees.  (See Analysis of Assem.Bill No. 1308 as amended May 15, 1979, prepared for Assembly Committee on Criminal Justice;  Analysis of Assembly Bill No. 1308 as amended May 6, 1980, prepared for Senate Committee on Judiciary;  Analysis of Assembly Bill 1308 as amended June 23, 1980, prepared for Senate Committee on Judiciary.)

There was substantial opposition to Assembly Bill No. 1308 at this point.   (Analysis of Assembly Bill No. 1308 as amended May 6, 1980, prepared for Senate Committee on Judiciary, p. 1.)   The California Attorney General's Office opposed the bill because it went “beyond the decision in Perrone C. by affecting all proceedings in all juvenile cases including those brought under section 601 or section 300.”  (Letter dated May 22, 1980, from California Attorney General's Office to Assemblyman Elihu M. Harris [author of A.B. No. 1308];  see also Enrolled Bill Report prepared July 14, 1980, by the Governor's Legal Affairs Office [hereafter Legal Affairs Bill Report].)

On June 23, 1980, further Senate amendments completely recast the bill.   The entire text of the previous version of Assembly Bill No. 1308 was deleted and two simple amendments to existing law were proposed.  Section 248 was amended to provide:  “A referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court, except that a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge.”  (June 23, 1980 amendments indicated by italics.)   The following language also was added to section 250:  “Where a referee sits as a temporary judge, his or her orders become final in the same manner as orders made by a judge.”

According to an analysis prepared for the Governor, this amendment was suggested by the presiding judge of the Los Angeles Juvenile Court to codify In re Perrone C. (Legal Affairs Bill Report.)   With these amendments, the California District Attorneys' Association dropped its opposition.  (Ibid.)

As amended, AB 1308 was enacted and signed by the governor.   Witkin describes the legislation as a codification of In re Perrone C. and Jesse W. II.   (10 Witkin, Summary of Cal.Law (9th ed. 1989) Parent and Child, § 478, pp. 524–525;  Review of Selected 1980 California Legislation (1981) 12 Pacific L.J. 235, 517–518.)

As this review of the statutory history and delinquency case law makes clear, the Legislature intended to prevent juvenile court referees from exercising the powers of judges in delinquency cases to which jeopardy could attach unless the parties stipulated to the bench officer having the powers of a judge.   The stipulation could not be implied;  it had to be in writing.   The lack of a written stipulation in this case prevented the referee from having the powers of a judge.   The adjudications based upon her purported exercise of those powers cannot stand.

II

 We must next determine whether the case may be remanded for a new jurisdictional hearing under section 602.  “In proceedings before the juvenile court juveniles are entitled to constitutional protections against twice being placed in jeopardy for the same offense.  [Citations.]”  (Richard M. v. Superior Court, supra, 4 Cal.3d at p. 375, 93 Cal.Rptr. 752, 482 P.2d 664.)

 Legal jeopardy does not attach where the court has no jurisdiction (Anger v. Municipal Court (1965) 237 Cal.App.2d 69, 71, 46 Cal.Rptr. 577;  cf. cases where an error of less fundamental significance occurs, and jeopardy does attach, e.g. People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70, 78, 2 Cal.Rtpr.2d 389, 820 P.2d 613.)  (See also Lockhart v. Nelson (1988) 488 U.S. 33, 40–41, 109 S.Ct. 285, 290–91, 102 L.Ed.2d 265 [no jeopardy bar where enhancement set aside due to error in receiving evidence of pardoned prior conviction rather than on account of insufficiency of evidence];  United States v. Tateo (1964) 377 U.S. 463, 464, 84 S.Ct. 1587, 1588, 12 L.Ed.2d 448 [retrial not barred where reversed because guilty plea not freely given;  People v. Shirley (1982) 31 Cal.3d 18, 71, 181 Cal.Rptr. 243, 723 P.2d 1354 [retrial not barred where reversal is due to error in admission of evidence].)

As we have seen, in enacting the 1980 amendments to section 248, the Legislature expressly provided that a juvenile court referee's power to act in a matter as to which jeopardy applies is subject to that officer having a written stipulation from the parties that he or she may act as a temporary judge.   There was no written stipulation in this case, and, as a result, the referee lacked the fundamental power to act as a temporary judge at this jurisdictional hearing.

We reverse the judgment against appellant because of legal error—the referee was without jurisdiction—rather than because of insufficiency of the evidence to sustain the petition.   The principles of double jeopardy, therefore, do not bar remand for a new jurisdictional hearing under section 602.³

DISPOSITION

The judgment is reversed for a new jurisdictional hearing under section 602.

FOOTNOTES

1.   The Attorney General relies on In re Julio N. (1992) 3 Cal.App.4th 1120, 5 Cal.Rptr.2d 86 for the proposition that a written stipulation is not required.   The court in Julio N. applied the principles of In re Horton, supra, 54 Cal.3d 82, 284 Cal.Rptr. 305, 813 P.2d 1335 and In re Richard S., supra, 54 Cal.3d 857, 2 Cal.Rptr.2d 2, 819 P.2d 843, concluding that the tantamount stipulation doctrine applied in a juvenile delinquency matter to confer jurisdiction in the absence of a stipulation.  (Id. at 3 Cal.App.4th at pp. 1122–1123, 5 Cal.Rptr.2d 86.)   The decision is based entirely on rule 244;  section 248 is neither cited nor addressed in Julio N.   As we shall explain, the difference in the language of section 248 and rule 244 supports our conclusion that a written stipulation is necessary in juvenile delinquency proceedings before a temporary judge.

2.   We have taken judicial notice of certain legislative materials pursuant to Evidence Code sections 452, 455 and 459.

3.   In light of our disposition, we need not and do not reach appellant's further argument that the referee deprived him of a fair trial through the adversarial examination of his witness.

EPSTEIN, Associate Justice.

ARLEIGH M. WOODS, P.J., and TAYLOR, J., assigned **, concur.