IN RE: PERRONE C. (1979)

This appeal challenges whether a juvenile court referee has authority to make a jurisdictional finding of guilt against a minor in view of article VI, section 22 of the California Constitution limiting referees to performing only “subordinate judicial duties.”

Perrone C., a 15-year-old youth, appeals from a juvenile court finding that he came within section 602 of the Welfare and Institutions Code by violating Penal Code section 236, a felony (false imprisonment). The juvenile court referee conducted a jurisdictional hearing, in effect a trial in which witnesses were examined and cross-examined. The referee found beyond a reasonable doubt the allegation of false imprisonment was true. Perrone C. was later committed to the California Youth Authority. He applied for a rehearing; a juvenile court judge reviewed the record and denied his application.

Perrone C. contends he was denied constitutional due process under the Fourteenth Amendment of the United States Constitution and article I, sections 7(a)^[FN1] and 15^[FN2] of the California Constitution by being placed in jeopardy before a referee who could lawfully decide against him but not in his favor. (See Jesse W. v. Superior Court (1978) 20 Cal.3d 893, fn. 5 at 899, 145 Cal.Rptr. 1, 576 P.2d 963; cert. grtd. (1978) 439 U.S. 922, 99 S.Ct. 304, 58 L.Ed.2d 315; In re Kenneth T. (1978) 87 Cal.App.3d 142, 145, 150 Cal.Rptr. 737.) He further contends recent decisions of the United States Supreme Court and California Supreme Court must be interpreted to mean a juvenile court referee can no longer hold a jurisdictional hearing under our statutory procedure absent a stipulation between the parties allowing him to do so. For reasons we will explain, we agree with these contentions.

Function and Authority of Juvenile Court Referees

Under juvenile court law the judge of the juvenile court may appoint one or more referees to serve on a full-time or part-time basis. Currently every newly-appointed referee must have been admitted to practice law in this state, generally for a period of not less than five years. (See Welf. & Inst. Code ss 247, 553.)^[FN3] Until 1971 persons with at least five years experience in probation work at the supervising level were also eligible for appointment, and many of these non-lawyer referees may still be serving. (See 1977 Annual Report of the Judicial Council, Juvenile Court Rules and Comments, p. 27; Gough, Referees in California's Juvenile Courts: A Study in Sub-Judicial Adjudication (1968) 19-1 Hastings L.J. 3.) The referee serves at the pleasure of the appointing judge and continues to serve until the judge terminates the appointment. Compensation paid to referees is fixed by the board of supervisors (Welf. & Inst. Code s 247). A referee hears those cases assigned to him by the presiding judge of the juvenile court “With the same powers as a judge of the juvenile court.” (Section 248, emphasis added.)

Section 250 provides in part:

“(A)ll orders of a referee . . . shall become immediately effective, subject also to the right of review as hereinafter provided, and shall continue in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court. In a case in which an order of a referee becomes effective without approval of a judge of the juvenile court, it becomes final on the expiration of the time allowed by section 252 for application for rehearing, if application therefor is not made within such time and if the judge of the juvenile court has not within such time ordered a rehearing pursuant to section 253.”

Section 251 provides in part:

“The judge of the juvenile court . . . may establish requirements that any or all orders of referees shall be expressly approved by a judge of the juvenile court before becoming effective.”

With regard to the application for rehearing, the minor or his representative may apply to the juvenile court judge for a rehearing after the referee has made a finding against him. Upon reading the record the judge may grant or deny the application (s 252). There is no provision for the judge at that point to acquit or find in the juvenile's favor. He must first conduct a rehearing before he can do so. All rehearings of matters heard before a referee shall be before the juvenile court judge and Shall be conducted de novo (s 254, Italics added). The judge may also order a rehearing on his own motion (s 253). Finally, section 800 provides in part:

“A judgment or decree of a juvenile court Or final order of a referee which becomes effective without approval of a judge of the juvenile court assuming jurisdiction and declaring any person to be a person described in Section 601 or 602 . . . may be appealed from in the same manner as any final judgment, . . .” (Italics added.) (See also, Cal.Rules of Court, Rules 1316-1319.)

Under this statutory scheme, it appears the Legislature gave juvenile court referees the power to make final orders. (See In re Raymond P. (1978) 86 Cal.App.3d 797, 150 Cal.Rptr. 537, hg. den. Jan. 25, 1979.) But the California Supreme Court 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, s 22).” (In re Edgar M., supra, 14 Cal.3d 727, 735, 122 Cal.Rptr. 574, 580, 537 P.2d 406, 412.)

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. at p. 579, 537 P.2d at p. 411; see Cal.Rules of Court, rule 1316(a).)

In examining the character of a referee's adverse finding when, as in our case, a minor files an application for rehearing, the court said:

“(The) judge's decision to deny the application and hence adopt the referee's determinations as those of the court is based on data amply sufficient for forming a judgment independent from that of the referee. Under these circumstances the referee's initial findings and orders become only advisory and their rendition constitutes no more than a subordinate judicial duty.” (Id. at p. 735-736, 122 Cal.Rptr. at p. 580, 537 P.2d at p. 412.)

Thus In re Edgar M. held that where a minor files a petition for rehearing after a referee's adverse finding, such a finding is advisory only and not final until the juvenile court judge acts on the petition. On its face the opinion would appear to dispose of the case at hand so as to uphold the finding of the juvenile court. Other cases also have held a juvenile's due process and equal protection rights are not violated by having referees conduct jurisdictional hearings (In re Gregory M. (1977) 68 Cal.App.3d 1085, 1093-1094, 137 Cal.Rptr. 756; In re Jay J. (1977) 66 Cal.App.3d 631, 634, 136 Cal.Rptr. 125; In re R.C. (1974) 39 Cal.App.3d 887, 897, 114 Cal.Rptr. 735; In re John H. (1978) 21 Cal.3d 18, 145 Cal.Rptr. 357, 577 P.2d 177). However, we have found no decision dealing with the due process question which has surfaced as a result of the California and United States Supreme Court decisions in Jesse W. and Swisher v. Brady (1978) 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705. That is the question of whether it is a violation of due process for a juvenile court referee to conduct a jurisdictional hearing in which he has the power to find against the minor but not in his favor. We treat the question, therefore, as one of first impression.

Violation of Due Process

Jesse W. held double jeopardy exists if, after a referee has acquitted or dismissed the petition against a minor at the jurisdictional hearing, the juvenile court judge then orders a de novo rehearing (Jesse W. v. Superior Court, supra, 20 Cal.3d 893, 899, 145 Cal.Rptr. 1, 576 P.2d 963).

“Here the juvenile court does not purport to act in review of a recommended determination. It has ordered a de novo rehearing . . . . A rehearing de novo ‘is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held.’ (Citation.)” (Id. at p. 898, 145 Cal.Rptr. at p. 4, 576 P.2d at p. 966.)

Under such circumstances the California Supreme Court held the referee's finding becomes a final determination and constitutionally invalid (Id. at p. 897, 145 Cal.Rptr. 1, 576 P.2d 963). The court concluded therefore that a referee who conducts a jurisdictional hearing cannot dismiss the petition.

“Because a referee's determination favorable to a juvenile cannot be reheard, it is not merely a subordinate judicial act And is constitutionally proscribed. (Citation.)” (Id. at p. 899, fn. 5, 145 Cal.Rptr. at p. 5, 576 P.2d at p. 967. Italics added.)

While striking down the referee's authority to make a finding in favor of the juvenile, the court apparently left intact the referee's authority to find against him:

“. . . While neither that constitutional proscription nor jeopardy limitations would foreclose referee jurisdictional recommendations adverse to a juvenile and subject to petition for rehearing by the juvenile, it is nevertheless apparent a referee's usefulness in hearing the jurisdictional issue will be severely limited. We do not purport to define those limits. However juvenile court referees may continue to hear and to make advisory recommendations as to detention, fitness, dispositional and perhaps other matters without offending constitutional limitations.” (Jesse W. v. Superior Court, supra, 20 Cal.3d 893, 899, fn. 5, 145 Cal.Rptr. 1, 5, 576 P.2d 963, 967.)

In effect, the court said the referee may lawfully make a true finding against the juvenile but may not lawfully acquit him. Because the court did not address the due process issue created by that strange posture of the law, we believe it imperative to address it here. A trial procedure in which the trier of fact can only find against the accused, even if only advisory, is a blatant violation of constitutional standards. Under our system of justice all triers of fact must be free to find for or against a party appearing before them on the basis of the evidence. They are also under an oath to follow the law of our constitution. Where a referee knows he will violate that law by acquitting a juvenile, then he is under a subtle but powerful pressure to find against him. The freedom of choice is no longer present. The process is slanted towards guilt. To place a trier of fact in such a position violates “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (See Palko v. Connecticut (1937) 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.) We hold the inability to acquit to be a violation of due process.

The existing law likewise places the judges of the juvenile court in an untenable position. They have a right to expect the referees in their court will decide jurisdictional hearings fairly, based on the evidence and in accordance with law. If judges permit referees to acquit, however, then the judges are sanctioning conduct contrary to the constitutional limitations placed on referees.

Impact of Swisher v. Brady upon Jesse W.

On October 30, 1978, the United States Supreme Court vacated the judgment in Jesse W., granting petition for certiorari (—- U.S. ——, 99 S.Ct. 304, 58 L.Ed.2d 315) and remanded the case to the California Supreme Court for reconsideration in light of Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). Although Jesse W. has been vacated, at least one California Court of Appeal has held the decision remains good law. (See In re Raymond P., supra, 86 Cal.App.3d 797, 150 Cal.Rptr. 537.) Swisher not only sustains Jesse W. on the double jeopardy issue but persuades us further to find due process is violated in this case where two trials are required for acquittal.

Swisher dealt with double jeopardy. At issue was a Maryland statute^[FN4] relating to juvenile hearings conducted by masters, similar to our jurisdictional hearings conducted by referees. Under Maryland law, the master's findings are only proposals; There can be no trial de novo as is allowed in California ;^[FN5] any party may file exceptions to the master's proposals, in which case the juvenile court judge can act upon the exceptions only on the basis of the record made before the master and such relevant evidence to which the parties do not object. The judge may accept, reject, or modify the master's proposals or remand the matter back to the master. In any event, there is only one trial (Swisher v. Brady, supra, 438 U.S. 204, 211, 98 S.Ct. 2699, 2704, 57 L.Ed.2d 705, 712) (1978). In Swisher the master acquitted the minor and the state filed exceptions. The issue became whether the judge, upon review of the record, could modify the master's proposal and find against the minor. The United States Supreme Court held such a procedure does not constitute double jeopardy because it is a single proceeding “which begins with a master's hearing and culminates with an adjudication by a judge.” (Id. 438 U.S. at p. 215, 98 S.Ct. at p. 2707, 57 L.Ed.2d at p. 715.) The evidence was only presented once before the master and therefore there was no second trial. The major difference between the Maryland statute approved by the Supreme Court and the California law is that Maryland permits no more than one proceeding while California provides for two separate trials. It was the California-type concept of a “second crack” at the juvenile which the Supreme Court condemned (Swisher v. Brady, supra, 438 U.S. 204, 215, 98 S.Ct. 2699, 2707, 57 L.Ed.2d 705, 715) (1978). The impact of Swisher on Jesse W. is to give strength to that portion of the California opinion which prohibits referees from acquitting a juvenile at a jurisdictional hearing since that order cannot be reheard and thus is a final determination.

Status of the 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, as we have seen, 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. v. Superior Court, supra, 20 Cal.3d 893, 899, 145 Cal.Rptr. 1, 576 P.2d 963). 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 (s 252). At the second trial the judge could also give a harsher penalty than was given by the referee (In re Anthony M. (1976) 64 Cal.App.3d 464, 134 Cal.Rptr. 540). 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, supra, 438 U.S. 204, 216, 98 S.Ct. 2699, 2707, 57 L.Ed.2d 705, 716) (1978.)

Conclusion

We do not intend by this opinion to detract from the good work of juvenile court referees. But the state's interest in using referees to meet the heavy burden of juvenile court caseloads must be weighed against the increasing trend to granting constitutional safeguards to minors (see Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346; Richard M. v. Superior Court (1971) 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664; In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527) and more particularly against fundamental notions of fair play. We are aware the purposes and structure of the juvenile system are different from the adult criminal justice system but that does not mean our concept of due process should be ignored (see Jesse W. v. Superior Court, supra, 20 Cal.3d 893, 905, 145 Cal.Rptr. 1, 576 P.2d 963 (conc. opn. of Thompson, J.)).

By stipulation of the parties full judicial powers can still be conferred on an otherwise qualified referee for the jurisdictional hearing (Cal.Rules of Court, rule 1316(b); Sarracino v. Superior Court (1974) 13 Cal.3d 1, 5-6, 118 Cal.Rptr. 21, 529 P.2d 53).

We hold that absent a stipulation conferring judicial power, a juvenile court referee does not have authority under the California Constitution to conduct a jurisdictional hearing. Our decision applies only to jurisdictional hearings based on a section 602 petition.

In view of the widespread reliance on the authority of referees to hold jurisdictional hearings and the serious adverse effect retroactivity would have on the administration of justice, we limit the application of our decision to the present appellant and to jurisdictional hearings conducted after this opinion becomes final. (See In re Love (1974) 11 Cal.3d 179, 187-189, 113 Cal.Rptr. 89, 520 P.2d 713; Stovall v. Denno (1967) 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Hawkins v. Superior Court (1978) 22 Cal.3d 584, 594, 150 Cal.Rptr. 435, 586 P.2d 916.)

Because of our holding it is not necessary to reach the other issues raised by appellant.

The order declaring appellant a ward of the court and committing him to the California Youth Authority is reversed. The case is remanded to the juvenile court for further proceedings consistent with this opinion.

FOOTNOTES

FOOTNOTE.  

1.  “Article 1, section 7(a) provides: ‘A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.’ ”

2.  “Article I, section 15 provides in part: ‘Persons may not twice be put in jeopardy for the same offense . . . or be deprived of life, liberty, or property without due process of law.’ ”

3.  All section references are to the Welfare and Institutions Code unless otherwise noted.

4.  Rule 911, Maryland Rules of Court.

5.  Section 254.

EHRENFREUND,[FN*] Associate Judge. FN* San Diego Superior Court Judge sitting under assignment by the Chairperson of the Judicial Council.

STANIFORTH, Acting P. J., and WIENER, J., concur.