IN RE: ROBERT S. (1980)

Robert S., a minor, appeals from a dispositional order of a juvenile court based on jurisdictional findings (Welf. & Inst.Code, §§ 602, 702) that he had committed first degree burglary (Pen.Code, §§ 459, 460, subd. 1) and petty theft (Pen.Code, §§ 484, 488). We direct the juvenile court to strike the jurisdictional finding of petty theft; we affirm the dispositional order.

The two crimes charged against appellant were alleged in separate petitions. The burglary petition was heard and sustained by a judge of the juvenile court; the petty theft petition was heard and ostensibly sustained by a juvenile court referee. Appellant neither objected to the referee's participation nor applied for a rehearing (Welf. & Inst.Code, §§ 252-254) of the referee's determination, but now contends that the referee's participation in the jurisdiction hearing deprived him of due process of law.

Appellant's argument in support of this contention is closely similar to the reasoning of the Supreme Court in In re Perrone C. (1979) 26 Cal.3d 49, 160 Cal.Rptr. 704, 603 P.2d 1300, which held that “absent a stipulation conferring judicial power, a juvenile court referee does not have authority under the California Constitution to conduct a jurisdictional hearing.” (At p. 57, 160 Cal.Rptr. at p. 709, 603 P.2d at p. 1305.) But the Supreme Court expressly limited the application of Perrone C. to Perrone C. himself “and to jurisdictional hearings conducted after this opinion becomes final.” (At p. 58, 160 Cal.Rptr. at p. 709, 603 P.2d at p. 1305.) The Supreme Court treated the narrow issue presented in Perrone C. as one of first impression (at p. 55, 160 Cal.Rptr. 704, 603 P.2d 1300); we note, but are neither persuaded nor bound by (cf. 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 667, pp. 4580-4581), the opinion of another Court of Appeal in In re Edward B. (1979) 94 Cal.App.3d 362, 364-365, 156 Cal. 405, in which the issue appears to have been inadequately framed for the court. The referee's jurisdiction hearing in this action was conducted several months before the Supreme Court filed its opinion in Perrone C., which therefore is not applicable to this action. We must therefore undertake our own analysis of the issue.

We agree with appellant's contention that juvenile court referees cannot meaningfully perform adjudicatory functions in jurisdiction hearings. In In re Edgar M. (1975) 14 Cal.3d 727, 733-737, 122 Cal.Rptr. 574, 537 P.2d 406, and in In re Damon C. (1976) 16 Cal.3d 493, 497-498, 128 Cal.Rptr. 172, 546 P.2d 676, the Supreme Court made clear that referees are limited by article VI, section 22 of the California Constitution to “subordinate judicial duties” and cannot act for the court absent consent of the parties, and that when a minor manifests refusal to consent by requesting a rehearing a judge must act for the court, either by granting a rehearing de novo (Welf. & Inst.Code, §§ 252-254) or by denying a rehearing on the basis of information sufficient to enable the judge to make “an independent judgment on the merits” (In re Damon C., supra, 16 Cal.3d at p. 497, 128 Cal.Rptr. at p. 175, 546 P.2d at p. 679). In Jesse W. v. Superior Court (1979) 26 Cal.3d 41, 160 Cal.Rptr. 700, 603 P.2d 1296, the Supreme Court held that a minor who has been “acquitted” by a referee cannot be brought to rehearing de novo before a judge, without the minor's consent, without being “exposed to jeopardy a second time contrary to Fifth Amendment prohibitions.” (At p. 48, 160 Cal.Rptr. at p. 703, 603 P.2d at p. 1299.) When a minor requests a rehearing he implicitly waives any claim he might otherwise make that the hearing de novo he has requested would place him twice in jeopardy (cf. Ludwig v. Massachusetts (1976) 427 U.S. 618, 631-632, 96 S.Ct. 2781, 49 L.Ed.2d 732), but of course as a practical matter a minor will never request a rehearing of a referee's “acquittal”: Such rehearings would occur only upon the court's sua sponte order (Welf. & Inst.Code, § 253). Tacitly acknowledging this practical reality, Jesse W. further recognizes that “‘[b]ecause a referee's determination favorable to a juvenile cannot be reheard, it is not merely a subordinate judicial act and is constitutionally proscribed,”’ citing Edgar M. (Jesse W. v. Superior Court, supra, 26 Cal.3d at p. 47, fn. 5, 160 Cal.Rptr. at p. 703, fn. 5, 603 P.2d at p. 1299 fn. 5.)

Under In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 it is clear that a minor accused of a crime by juvenile court petition is entitled to “the essentials of due process and fair treatment” under the Fourteenth Amendment (at pp. 30-31, 87 S.Ct. at p. 1445, 18 L.Ed.2d at p. 548). Among the specific rights, connoted by procedural due process, which have been expressly found applicable to such minors are a right to a fair hearing before an impartial judge or referee (In re Jay J. (1977) 66 Cal.App.3d 631, 634, 136 Cal.Rptr. 125; In re Ruth H. (1972) 26 Cal.App.3d 77, 84-87, 102 Cal.Rptr. 534) and a right to have the jurisdictional facts proved beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368; In re Roderick P. (1972) 7 Cal.3d 801, 809, 103 Cal.Rptr. 425, 500 P.2d 1). If the referee is not jurisdictionally empowered to acquit the minor, and thus is logically compelled either to find the minor guilty even in cases in which the referee has a reasonable doubt or to make no finding at all, then in such a hearing the minor has not had and cannot have the benefit either of a fair hearing before a functionally impartial referee or of the requirement that the jurisdictional facts be proved against him beyond a reasonable doubt. Such a hearing must surely be found to accord the minor less than due process. Indeed, a hearing in which the outcome is invariably mandated in advance is not adjudicatory at all.

We conclude that in California juvenile court referees cannot conduct jurisdiction hearings and that, therefore, the referee's jurisdictional finding, in this action, that appellant had committed petty theft must be reversed. Our conclusion does not, however, compel reversal of the dispositional order in this action: The juvenile court's jurisdiction is fully sustained by the judge's finding that appellant had committed first degree burglary (cf. Welf. & Inst.Code, § 602), and it appears from the record that the petty theft finding had no bearing on the maximum term fixed by the court in committing appellant to a county camp. We see nothing to be gained by returning the petty theft allegation for a new hearing before a judge; we shall therefore simply direct that the jurisdictional finding of petty theft be stricken.

The crux of the evidence against appellant with respect to the burglary allegation was the testimony of a neighbor that at 9 p. m. on December 21 she had seen appellant enter the side yard of the victim's home. The neighbor acknowledged that it was dark outside at the time but testified that she saw appellant from a distance of about 20 feet in the illumination of a street light; she had known appellant for six years. At the conclusion of the testimony the judge expressed a desire to visit the scene “and see how dark it is out there at that neighborhood.” Neither attorney objected. Subsequently the judge reported that he had visited the neighbor's residence at 7:15 p. m. on March 25, had seen the location of the street light, and had concluded that the neighbor would not have had any difficulty identifying someone she knew at that location. Appellant contends that the difference in time of night and time of year between the December 21 observation and the March 25 “view” rendered the “view” irrelevant and its use by the court reversible error. We disagree: While it may well be that the March 25 “view” was conducted in twilight rather than in darkness, it is apparent from the judge's subsequent remarks that once on the scene he paid more attention to spatial relations than to conditions of light and darkness, and that the time of the view was not directly relevant to the court's conclusions (cf. Evid.Code, § 353, subd. (b)). In any event in the juvenile court appellant essentially stipulated to this rather unorthodox “view” procedure, made no factual record of any difference in lighting conditions, and made no objection on this or any other ground: Thus he did not adequately preserve the point for appeal (cf. Evid.Code, § 353, subd. (a)).

Appellant also contends that the social study which the court reviewed before it made its dispositional order improperly called to the court's attention certain charges which had been made against appellant but then dismissed. The record is not wholly clear but we are satisfied that the social study accurately reports, with respect to the four charges to which appellant directs his contention, that one of the charges (disturbing the peace) was sustained and that the other three were dismissed. Narrowly viewed, appellant's contention appears to be that the dismissed charges should not have been brought to the court's attention at all. Again we disagree with appellant: As in an adult criminal proceeding, a juvenile court may consider both adjudications and detentions which have not resulted in adjudication, so long as the distinction is clearly maintained, and reversal will be justified only if the minor bears the burden of showing that the court materially relied on a misunderstanding of the nature of the prior contacts and if the record shows that an appropriate objection was made and erroneously overruled in the juvenile court (cf. Loder v. Municipal Court (1976) 17 Cal.3d 859, 867-868, 132 Cal.Rptr. 464, 533 P.2d 624; People v. Phillips (1977) 76 Cal.App.3d 207, 213-214, 142 Cal.Rptr. 658; People v. Herron (1976) 62 Cal.App.3d 643, 646-647, 133 Cal.Rptr. 287; People v. Calloway (1974) 37 Cal.App.3d 905, 909, 112 Cal.Rptr. 745; People v. Jackson (1978) 78 Cal.App.3d 533, 541, 144 Cal.Rptr. 199; People v. Medina (1978) 78 Cal.App.3d 1000, 1006-1007, 144 Cal.Rptr. 581; People v. Tobia (1979) 98 Cal.App.3d 157, 159 Cal.Rptr. 376; In re Michael R. (1977) 73 Cal.App.3d 327, 335, fn. 5, 140 Cal.Rptr. 716). There was no objection whatsoever in the juvenile court and we find no indication in the record that the court misunderstood the information in the social study.

The juvenile court is directed to strike the jurisdictional finding of petty theft. In all other respects, the order appealed from is affirmed.

FOOTNOTES

FOOTNOTE.  

THE COURT:* FN* Before RACANELLI, P. J., and ELKINGTON, and NEWSOM, JJ.