IN RE: PETER MICHAEL B. (1978)

On March 31, 1976, a petition was filed alleging that the minor was a person coming under section 602 of the Juvenile Court Law, in that he had committed petty theft, in violation of section 484 of the Penal Code. After an adjudication hearing before a referee, the petition was sustained and the minor was declared a ward of the court. On April 12, 1976, a second petition was filed, alleging that the minor was a person coming under section 602 in that: (1) he had committed an assault by means of force likely to produce great bodily injury, in violation of subdivision (a) of section 245 of the Penal Code; and (2) that he had committed battery, in violation of section 242 of the Penal Code; and (3) that he had wilfully, unlawfully, and maliciously injured personal property, in violation of section 594 of the Penal Code. After an adjudication hearing before a referee, the petition was sustained on counts 2 and 3, but was found untrue as to count 1, and he was again declared a ward of the court. On July 8, 1976, a combined disposition hearing on both petitions was held, before a court commissioner. At the close of that hearing, the commissioner ordered the minor committed to the Youth Authority. Applications for rehearing were filed in both cases, directed both to the adjudication and to the disposition hearing. All four petitions were denied. The minor has appealed. We affirm.

On this appeal, the minor does not attack the adjudication orders; his attack is directed solely to the dispositional orders.

I

At the disposition hearing, the People were allowed to bring to the attention of the court a statement (amounting to a confession) made by the minor in a previous case in which the charge had been burglary and murder.¹ In that case, that confession had been held inadmissible as being the fruit of an illegal arrest. The facts concerning that arrest and the obtaining of the confession were described in detail to the commissioner sitting in this case. The commissioner admitted the prior confession as part of the record in the disposition hearing. In so doing, he relied, and the People rely here, on In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, and People v. Rafter (1974) 41 Cal.App.3d 557, 116 Cal.Rptr. 281. In Martinez, the Supreme Court held that the Adult Authority, in a parole revocation proceeding, properly could consider statements obtained from Martinez in violation of Dorado ; in Rafter, a similar holding was made as to the consideration of illegally obtained evidence at a probation revocation hearing. In spite of defendant's attempt to distinguish those cases, we find that the commissioner properly relied on the confession herein involved. Like parole and probation revocation proceedings, the issue before a juvenile court on a disposition hearing is the character of the person involved; the fact that the juvenile court law provides for separate hearings on adjudication and on disposition was enacted because the legislature recognized that much evidence, inadmissible on the issue of adjudication, will be relevant and material on the issue of the proper disposition of an adjudicated minor. The exception recognized by the cited cases, making inadmissible statements obtained by police methods that shook the conscience of the court, is not herein involved since the commissioner expressly found that the facts given to him did not show such conduct.

Defense counsel argues here that, if the use of illegally obtained evidence can be presented at a disposition hearing, police may be tempted to obtain such evidence, knowing that it cannot be used in the case under investigation, but with the hope that it may become useful, at some future date, in connection with some new charge. That same possibility exists in the parole and probation cases, but did not induce either of the two courts to reject the evidence. We recognize that a similar argument was found persuasive by the Supreme Court in People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272. However, as the court there stated (at p. 112, 127 Cal.Rptr. at p. 367, 545 P.2d at p. 279) its principal objection to the use of illegally obtained evidence for the purpose of impeachment was “(t)he considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than merely reflecting on the declarant's veracity.” No such risk exists in cases such as the one now before us, where the issue of “guilt” has, already, been adjudicated in a separate proceeding. Another difference exists between Disbrow and this case: the temptation on police to use improper methods to secure a confession for use in the very case under investigation is far stronger than the mere hope that an illegally obtained confession, filed away, may become useful in some future and then unknown case.

We conclude that the commissioner properly considered the earlier confession made in the burglary-murder case. That conclusion is reinforced by the decisions in Lockridge v. Superior Court (1970) 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683, and in People v. McInnis (1972) 6 Cal.3d 821, 100 Cal.Rptr. 618, 494 P.2d 690, where the Supreme Court held that evidence illegally obtained might still be used, in a later and disconnected case. As the Court said in McInnis (at p. 826, 100 Cal.Rptr. at p. 621, 494 P.2d at p. 693), to prevent the use in such a disconnected case “would in effect be giving a crime insurance policy in perpetuity to all persons once illegally arrested.” In the case at bench, the minor cannot hide behind the illegality of his former arrest to prevent the juvenile court from obtaining a full picture of his character and need for rehabilitative treatment.

II

Since it appears that the minor has, during the pendency of this appeal, been released from the Youth Authority, we need not, and do not, consider whether the commitment order could be construed as permitting an incarceration beyond the limits provided in sections 731 and 736 of the Welfare and Institutions Code.

The order appealed from is affirmed.

I dissent.

I would reverse the dispositional orders on the ground that the trial court committed prejudicial and reversible error in considering, at the dispositional hearing, evidence of the minor's inculpatory statements regarding two unrelated offenses and which had been denied admissibility in the proceedings regarding those offenses on the ground that such statements were the exploitative product of an illegal arrest. The majority takes the view that the exclusionary rules for illegally obtained evidence do not apply to a dispositional hearing in the juvenile court, and that evidence obtained in violation of the exclusionary rules is admissible for the purpose of establishing the minor's character as an aid in the determination by the trial court of the appropriate disposition for the minor.

The majority considers that the holdings of In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, and People v. Rafter (1974) 41 Cal.App.3d 557, 116 Cal.Rptr. 281, constitute persuasive authority in support of a rule for admissibility of illegally obtained evidence at a minor's dispositional hearing. I fully recognize and appreciate the fact that the California Supreme Court in the Martinez case held that the Adult Authority could properly consider illegally obtained evidence in parole proceedings relying upon two principles: First, that exclusion of illegally obtained evidence in the Adult Authority parole proceedings was not required in order to carry out One of the two purposes of both the Fourth Amendment exclusionary rule and the Dorado-Miranda¹ exclusionary rule, namely, the deterrence of illegal governmental conduct; Second, that the critical responsibilities of the administration of the parole system require that the Adult Authority be permitted to consider all relevant evidence, including illegally procured evidence. In People v. Rafter, supra, the court, relying upon the Martinez holding, determined that illegally obtained evidence was admissible in a probation revocation hearing.

I do not consider either Martinez or Rafter as persuasive authority for the question presented in the case at bench. On the contrary, I think that the rationale of People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, leads to the conclusion that illegally obtained evidence that has been held inadmissible by a court in the guilt phase of a criminal proceeding should not be admissible or usable in Any dispositional hearing before a juvenile court.

I reject as untenable the view of the majority that, in a minor's dispositional hearing, a rule requiring exclusion of evidence illegally obtained in a different criminal or juvenile court proceeding would be of no assistance in deterring illegal conduct by law enforcement officers. One purpose for the exclusion of illegally obtained evidence is “to deter unconstitutional methods of law enforcement.” (People v. Moore (1968) 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 805, 446 P.2d 800, 805.) “By denying Any profit from the unconstitutional methods of law enforcement, it is to be anticipated that law enforcement officials will have No incentive to engage in such methods.” (Ibid.) (Emphasis added.) It is my view that a rule of law which makes admissible in a minor's dispositional hearing or, in an adult's sentencing hearing, evidence that has been illegally obtained in an unrelated proceeding, will provide Substantial incentive to law enforcement officers to procure confessions in violation of Dorado-Miranda and to procure other evidence in violation of the Fourth Amendment to the United States Constitution. Law enforcement officials are not only interested in gaining convictions but also in securing maximum sentences in many cases. This latter objective provides an incentive for law enforcement officials to obtain statements of a defendant in violation of Dorado-Miranda in cases in which evidence of such statements may not be needed to obtain a conviction in the particular case, but which then will be useful in the sentencing proceedings of this same defendant in other criminal cases.

I am in accord with the view of Justice Peters, expressed in his dissenting opinion in Martinez, that even in Adult Authority proceedings the majority there asserted “without any analysis their belief that the incremental deterrence of police misconduct to be reaped from an application of the exclusionary rule to Adult Authority proceedings would be ‘slight.’ ” (Martinez, supra, 1 Cal.3d 641, 652, 83 Cal.Rptr. 382, 390, 463 P.2d 734, 742.)

In the Moore case the high court also stated that “(t)he exclusionary rule is not a penalty but is derived from the principle that the state must not profit from its own wrong.” (Moore, supra, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 805, 446 P.2d 800, 805.) If those principles stated in Moore are to have a meaningful application, it is essential that all illegally obtained evidence, regardless of the proceeding in which such evidence was obtained, be excluded from a minor's dispositional hearing or an adult's sentencing hearing in order to accomplish the objectives of denying “any profit from the unconstitutional methods of law enforcement” (Moore, supra, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 805, 446 P.2d 800, 805) and to ensure that law enforcement officials “will have no incentive to engage in such methods.” (Ibid.)

In considering the question of whether evidence, illegally obtained in another proceeding, should be excluded from All disposition hearings in the juvenile court and from All adult sentencing hearings, it is not sufficient to look solely to only one of the two purposes that support the exclusionary rules, namely, the objective of deterring law enforcement officials from such illegal conduct. Consideration must also be given to the second purpose served by the exclusionary rules. This second purpose will most certainly be served by refusing admissibility to illegally obtained evidence in a juvenile's dispositional hearing as well as in an adult's sentencing hearing. This second purpose which undergirds the exclusionary rules is sometimes called “the imperative of judicial integrity.” (See Elkins v. United States (1960) 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669.)

The importance of this second purpose of the exclusionary rules is set forth with profound conviction by Justice Peters in his dissenting opinion in Martinez as follows: “This court has articulated this concern in a variety of ways, declaring that ‘the state must not profit from its own wrong’ (People v. Parham, 60 Cal.2d 378, 386, 33 Cal.Rptr. 497, 501, 384 P.2d 1001, 1005), and that it is ‘morally incongruous' for the state to impose punishment when it, itself, has become a law breaker. (People v. Cahan, supra, 44 Cal.2d 434, 446, 282 P.2d 905.) In both Miranda v. Arizona (1966) 384 U.S. 436, 479-480, 86 S.Ct. 1602, 16 L.Ed.2d 694, 726-727 (10 A.L.R.3d 974), and Mapp v. Ohio, supra, 367 U.S. 643, 659 (6 L.Ed.2d 1081, 1092), 81 S.Ct. 1684, the United States Supreme Court cited with approval Justice Brandeis' eloquent dissent in Olmstead v. United States (1928) 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944, 960 (66 A.L.R. 376): ‘Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ (See also, People v. Cahan, supra, 44 Cal.2d 434, 446, 282 P.2d 905.)” (Martinez, supra, 1 Cal.3d 641, 654, 83 Cal.Rptr. 382, 391, 463 P.2d 734, 743.)

The majority in the case at bench discounts the importance of People v. Disbrow in deciding the question before us because the majority interprets the Disbrow court as making the principal objection to the use of illegally obtained statements of a defendant for impeachment purposes the potential for prejudice to a defendant by the jury's misuse of such statements. The majority also discounts the importance of Disbrow because of the majority's belief that the temptation for the police to use improper methods to secure a confession in the very case under investigation is far stronger than a temptation to obtain a confession illegally for use in some other case. I find little merit or substance in these two distinctions which the majority makes between Disbrow and the case at bench. In Disbrow the court made it quite clear that the exclusionary rules for evidence that is illegally obtained is supported by the Two distinct purposes discussed herein, and that the second purpose of maintaining the integrity of the judiciary is not a principle of minor consequence.

Thus, even though the second justification for the exclusionary rules was not mentioned by the Martinez majority, it is set forth by the California Supreme Court with confidence in its continuing vitality and viability six years later in People v. Disbrow. “In addition to the likelihood that police misconduct may be encouraged by Harris, we are further convinced of the impropriety of receipt of this evidence by a Significant rationale of the exclusionary rule itself. In People v. Cahan (1955) 44 Cal.2d 434, 445, 282 P.2d 905, 912 (50 A.L.R.2d 513), the landmark case in which this court adopted the rule for California two decades ago, we said, ‘the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. . . . Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ”dirty business.“ ‘ In the case at bar, accordingly, exclusion of the statements illegally extracted from defendant by Detective Yost would ‘relieve the courts from being compelled to participate in such illegal conduct.’ (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156, 98 Cal.Rptr. 649, 652, 491 P.2d 1, 4.)” (Disbrow, supra, 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 367, 545 P.2d 272, 279; fn. omitted.) (Emphasis added.)²

I consider that the principle of the “integrity of the judiciary” will be just as much violated, vitiated and trampled upon by admitting illegally obtained evidence irrespective of the proceeding in which such evidence was obtained at a minor's disposition hearing or at an adult's sentencing hearing as by admitting such evidence at the guilt phase of a hearing or trial.

I am firmly convinced that Both purposes which caused the courts to adopt and fashion the exclusionary rules for illegally obtained evidence will be Substantially and Significantly served by applying the rule to a minor's disposition hearing and to an adult's sentencing hearing. To admit such evidence at a dispositional or sentencing hearing constitutes an ill-conceived step that is bound to materially weaken the effectiveness of the exclusionary rules.

I would therefore reverse the two dispositional orders.

FOOTNOTES

1.  The facts concerning the confession, the manner in which it had been obtained, and the result of the earlier case were given to the commissioner by statements of counsel, not under oath. No objection was made to that informal method of presentation and it is not here claimed that the facts were not accurately presented or that the minor had any additional information to give to the court. Under those circumstances we treat the statements of counsel as being the equivalent of sworn testimony.

1.  People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.  In People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, the California Supreme Court held that, although a defendant's confession was secured in violation of Miranda and was thus inadmissible in the prosecution's case in chief, it became admissible as a prior inconsistent statement for the limited purpose of impeaching defendant after he had testified as a witness, under the holding of Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. In People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, the California Supreme Court reversed Nudd and held that the California courts would no longer follow Harris.

KINGSLEY, Associate Justice.

FILES, P. J., concurs.