IN RE: JANET A. (1980)

Janet A., a minor, appeals from a dispositional order of a juvenile court, and from its subsequent order denying a rehearing as to jurisdiction (Welf. & Inst. Code, § 800). She seeks review of the jurisdictional finding (Welf. & Inst. Code, §§ 602, 702) that she had committed battery (Pen.Code, § 242), contending that she was deprived of due process of law when her jurisdiction hearing was conducted, over her objection, by a juvenile court referee rather than by a judge. The dispositional order was for probation without wardship (Welf. & Inst. Code, § 725, subd. (a)). We are informed that the probation period has expired and that the juvenile court has dismissed the petition (Welf. & Inst. Code, § 782), but appellant has nevertheless pressed her appeal and we have concluded that it may be maintained (cf. In re Dana J. (1972) 26 Cal.App.3d 768, 771, 103 Cal.Rptr. 21). We reverse and remand for further proceedings.

Appellant's argument on the merits is closely similar, upon analysis, 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.Rptr. 405, in which the issue appears to have been inadequately framed for the court. The referee's jurisdiction hearing in this action was conducted some 18 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 implicit 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, 2788, 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. (See In re Edgar M., supra, 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406.])”’ (Jesse W. v. Superior Court, supra, 26 Cal.3d at p. 47, fn. 5, 160 Cal.Rptr. at p. 703, 603 P.2d at p. 1299.)

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). 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, 1074, 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 beyond a reasonable doubt. Such a hearing would 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 herein that appellant had committed battery must be reversed.

Inasmuch as all proceedings subsequent to the jurisdiction hearing were predicated upon a jurisdictional finding which we thus hold to have been invalid, in our view the juvenile court may properly reinstate the proceedings in this matter as they existed immediately before the invalid jurisdiction hearing, and may require a new jurisdiction hearing before a judge. Alternatively, the juvenile court may properly adhere to the determination, implicit in its order of dismissal, that “the minor is not in need of treatment or rehabilitation” (Welf. & Inst. Code, § 782) and may simply permit the dismissal to stand.

The dispositional order and the jurisdictional order are reversed and the cause is remanded for proceedings consistent with this opinion.

FOOTNOTES

FOOTNOTE.  

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