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IN RE: JOSEPH B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOSEPH B., Defendant and Appellant.
The minor herein appeals from orders of the juvenile court adjudging him to be a ward of the court within section 602 of the Welfare and Institutions Code, and continuing his custody with the probation officer for placement in either a relative's home, a foster home, a group home, or institutional placement. Errors asserted by appellant concern primarily three sustained petitions filed on the following dates: August 20, 1980; September 3, 1980; and December 2, 1980.
While on school furlough from a previous commitment order, the minor failed to attend school as required by the furlough. On August 20, 1980, a subsequent petition was filed in Alameda County Juvenile Court alleging the minor had violated section 871 of the Welfare and Institutions Code.1 On September 3, 1980, an amendment to the subsequent petition added counts two through six alleging two vehicle infractions, driving a motor vehicle without a license, giving false information to a peace officer and unlawfully resisting and obstructing an officer in the discharge of his duties by running from the officer.
On September 4, 1980, the minor admitted count one (escape) and count three (running from the officer in violation of Pen.Code, § 148), both misdemeanors. The remaining counts were dismissed. On September 19, 1980, the minor was ordered released to his parents' custody and the case was transferred to the Juvenile Court of San Joaquin County, the county of his parents' residence.
Hearing on the transfer was set for October 22, 1980, in San Joaquin County Juvenile Court. Neither the minor nor his parents appeared; a bench warrant issued for the minor and the hearing was continued. Another petition was filed on December 2, 1980, and amended on December 4, 1980, alleging: (1) count one: violation of Penal Code section 647, subdivision (f) for public intoxication; (2) count two: violation of Vehicle Code section 21650, for driving on the wrong side of the road; (3) count three: violation of Vehicle Code section 12500 subdivision (a), for driving without a license. By amendment a fourth count was added alleging violation of section 211 (robbery) and use of a firearm within the meaning of Penal Code section 12022.5. The minor was ordered detained on December 8, 1980.
On December 29, 1980, the court held a jurisdictional hearing on the San Joaquin charges at which the minor admitted the allegations contained in counts one and three. Counts two and four were dismissed.
A dispositional hearing was held January 12, 1981, at which the court ordered the minor be taken from custody of his parents and awarded to the probation officer for further placement.
On appeal the minor contends: (1) the court abused its discretion by removing the minor from parental custody; (2) that as to the petitions of August 20 and September 3, the court failed to comply with section 702.5 of the Welfare and Institutions Code 2 and the record contains no affirmative evidence the minor waived his constitutional rights in admitting the allegations; (3) the alleged escape occurred after he had already served the legal maximum six-month term to which he had been committed; and (4) he was not sufficiently advised of his right to remain silent prior to admitting the petition of December 2, 1980.
The People respond to the merits of each contention and assert generally that appellate review is precluded by the minor's failure to obtain a certificate of probable cause in accordance with Penal Code section 1237.5 as required by the California Rules of Court. We first consider the applicability of Penal Code section 1237.5 on the issue of jurisdiction.
Rule 39(a) 3 provides: “The rules governing appeals from the superior court in criminal cases are applicable to all appeals from the juvenile court except where otherwise expressly provided by this rule, or where the application of a particular rule would be clearly impracticable or inappropriate.” Rule 39 expressly directs juvenile appellants to follow the procedure prescribed for appeals from criminal convictions unless expressly otherwise provided.
Rule 31, which governs appeals in criminal cases, incorporates the procedural requirement of Penal Code section 1237.5 and provides: “(d) In cases in which a judgment of conviction was entered upon a plea of guilty or nolo contendere, the defendant shall file the statement required by Section 1237.5 of the Penal Code, which shall serve as a notice of appeal, within 60 days after the rendition of judgment, but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section. Within 20 days after the defendant files his statement the trial court shall execute and file either a certificate of probable cause or an order denying such a certificate and shall forthwith notify the parties of the granting or denial of such certificate. [¶] If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of such plea which do not challenge the validity of the plea or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code, the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds. [¶] The time for preparing, certifying and filing the record on appeal or for filing an agreed statement shall commence to run when the appeal becomes operative.”
Penal Code section 1237.5 provides: “No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”
The terminology of Penal Code section 1237.5 refers to adult offenders in criminal cases, but the section describes criminal procedures which correspond to similar aspects of juvenile procedures. A judgment of conviction upon a plea of guilty is functionally equivalent to an adjudication under section 602 of the Welfare and Institutions Code upon admission by the minor of the allegations of the petition. “[I]n terms of potential consequences, there is little to distinguish an adjudicatory hearing [in California's juvenile court system] from a traditional criminal prosecution.” (Breed v. Jones (1975) 421 U.S. 519, 530, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346, 356.)
Such terminological variation between adult and juvenile court procedures is inevitable when juvenile court law adopts by incorporation certain procedural rules applicable in criminal cases.4 Just as we necessarily “look to the consequences of the proceedings rather than the formal labels to determine what rights are appropriately applied to juvenile proceedings” (In re Gladys R. (1970) 1 Cal.3d 855, 866, fn. 21, 83 Cal.Rptr. 671, 464 P.2d 127), one looks to the substance and consequences of the proceedings rather than the formal labels to implement the requirements with which a juvenile must comply under rule 39. Obviously rule 39 contemplated such cross-reference to corresponding criminal proceedings and classifications despite the necessary and implicit terminological variances. A contrary conclusion would as a practical matter debilitate rule 39 and leave juvenile appellants with little guidance concerning procedural requirements for perfecting appeals. As the Advisory Committee Comment to rule 39 states: “Neither the statutes nor the California Rules of Court presently provide guidance as to the handling of juvenile court matters on appeal. As a result, practices vary from county to county and from one appellate district to another. In most jurisdictions, the clerk's offices have applied the rules governing civil appeals to dependency proceedings and have attempted to apply the rules governing criminal appeals to section 602 cases, at least insofar as the costs and preparation of transcripts and the appointment of counsel are concerned. In section 601 proceedings, there has been a wide disparity of practices. [¶] Subdivision (a) provides generally that the rules governing appeals from the superior court in criminal cases (Cal.Rules of Court, rules 30–38) apply to all appeals from the juvenile court․ The general criminal rules would not apply, however, where express provision is made to the contrary in this rule ․ or where the application of a particular rule would be clearly impracticable or inappropriate ․” (See In re Eugene R. (1980) 107 Cal.App.3d 605, 612–613, 166 Cal.Rptr. 219.)
Application of rule 31 to minor appellants is not “clearly impracticable or inappropriate” but promotes the legislative policy that juvenile court matters be handled expeditiously at the appellate as well as the trial court level. The reasons for applying the procedural requirements of section 1237.5 in criminal appeals pertain as well to appeals from juvenile court. Section 1237.5 “merely establishes a procedure for screening out frivolous claims among ․ issues which have not been waived.” (People v. Kaanehe (1977) 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028; People v. Ribero (1971) 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308.)
Section 203 of the Welfare and Institutions Code does not conflict with rules 39 and 31 where those rules incorporate the procedural requirements of Penal Code section 1237.5. Section 203 (Welf. & Inst.Code) provides: “An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.” In the present context we do not deem an order adjudging a minor a ward of the juvenile court (Welf. & Inst.Code, § 602) to be a conviction nor do we deem a proceeding in the juvenile court to be a criminal proceeding. Rather, we view them as functional equivalents for purposes of perfecting an appeal in accordance with the California Rules of Court.
Section 800 of the Welfare and Institutions Code provides the statutory authority for appeals in juvenile cases.5 No explicit provision of section 800 authorizes an appeal after an admission by a juvenile. Nor does the section exempt juveniles from the requirement of a certificate of probable cause in such an appeal. However, a 1980 amendment to section 800 does indicate a legislative intent to place restrictions on an appeal after admission of the petition allegations by the minor. That amendment states (Stats.1980, ch. 1092, § 4, p. 3506): “A ruling on a motion to suppress [evidence] pursuant to Section 700.1 [Welf. & Inst.Code] shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition.” (Emphasis added.)
The intent of this amendment appears to be an effort to conform juvenile suppression hearings with the adult procedure set forth in Penal Code section 1538.5, subdivision (m), which provides that: “․ A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.”
The People further urge application of the familiar rule of statutory interpretation, expressio unius est exclusio alterius. Under that rule “ ‘ “where a statute enumerates things upon which it is to operate it is to be construed as excluding from its effect all those not expressly mentioned.” ’ ” (People v. Mancha (1974) 39 Cal.App.3d 703, 713, 114 Cal.Rptr. 392.) 6
Without adopting the expansive implication from the amendment to Section 800 contended for by the People, we are persuaded from the rules of court and this amendment that the procedure for appeals by minors from judgments under sections 601 or 602 of the Welfare and Institution Code, parallels the procedure for appeals by adults from judgments of conviction.
The Fifth District in In re Chadwick C. (1982) 137 Cal.App.3d 173, 186 Cal.Rptr. 827, has held no certificate of probable cause is required for an appeal by a juvenile after an admission. We do not find the Chadwick reasoning persuasive. After distillation, the rationale appears to be that Penal Code section 1237.5 procedures are not “appropriate” to juvenile proceedings because the juvenile is young and inexperienced, his trial counsel may neglect to advise him of the necessity of the certificate or to assist him in securing it, as in the Chadwick case, and the many difficulties encountered by courts and counsel in adult appeals in connection with Penal Code section 1237.5 requirements would be “even more intense and frustrating to all concerned in juvenile appeals.” (137 Cal.App.3d 173, at p. 181, 186 Cal.Rptr. 827.) While semantically pleasing, such observations present no compelling reason for exempting juveniles from the certificate of probable cause requirements. With the exception of a jury trial, delinquency jurisdictional hearings are essentially indistinguishable from a criminal trial. Nor is there any significant difference between adult and juvenile appellate procedures. To require a certificate of probable cause for those matters occurring prior to entry of the admission is no more burdensome for counsel for a juvenile than for an adult.
The minor here failed to obtain a certificate of probable cause after admitting the allegations of the petitions which are the subject of this appeal. We must therefore determine whether any of the errors asserted come within any recognized exceptions.
As stated in rule 31(d), a certificate of probable cause is not required where the appeal is based upon grounds occurring after entry of the plea and which do not challenge the validity of the plea. (See People v. Kaanehe, supra, 19 Cal.3d at p. 8, 136 Cal.Rptr. 409, 559 P.2d 1028.) Falling within this exception is the minor's first contention, that the juvenile court abused its discretion by ordering him removed from his parents' custody.
The probation officer's dispositional report was considered by the juvenile court before that court ordered the minor removed from the custody of his parents. After extensively reviewing the minor's social history, and in consideration of the parents' repeated failure to control the minor's continuing unlawful behavior and their failure to exert a positive influence on the minor, the report recommended the court find that “the welfare of the minor requires that his custody be taken from his parents” and that the “[c]ustody of the minor be taken from the parents and the minor be committed to the care, custody and control of the Probation Officer for placement in a suitable relative's home, foster home, private institution, school, camp, group home or public institution; ․”
After the minor had been adjudged a ward pursuant to section 602 of the Welfare and Institutions Code, the court exercised its discretion under section 727.7 Although the minor's record reflects a series of sustained petitions for relatively minor violations the evidence before the court was that the parents had failed on several occasions to stem the trend toward increased lawlessness. The probation report stated the parents were unable to provide necessary supervision and control and that the minor told the probation officer he disregards their efforts to keep him out of trouble. Rather than resorting to CYA commitment the court took the less severe approach of treating the minor primarily as a placement problem at this juncture. Under the facts of this case we conclude the court's order reasonably carries forth the legislative purpose of California juvenile court law as articulated in Welfare and Institutions Code, section 202.8 We discern no abuse of discretion. (See In re Todd W. (1979) 96 Cal.App.3d 408, 417–419, 157 Cal.Rptr. 802; In re Donna G. (1970) 6 Cal.App.3d 890, 894–895, 86 Cal.Rptr. 421.)
With respect to contentions two through four raised on this appeal, the minor has failed to file the statement described in Penal Code section 1237.5 within the time prescribed under rule 31(d). However, in the interest of judicial economy, we address these additional appellate contentions.
The minor asserts his admissions to the Alameda County petitions were in noncompliance with section 702.5 of the Welfare and Institutions Code;9 further there is no affirmative evidence he waived his constitutional rights.
The minute order of the Alameda County proceedings before Referee J.W. Moroney discloses “[m]inor advised of and waives his constitutional rights per section 702.5 W. & I. Code and maximum length of confinement is four years, four months.” The minute order further reveals the presence of a court reporter, Shelly Hench, at such hearing but the minor has failed to provide this court with a reporter's transcript of the proceedings. The record as reflected in the minute order alone was sparse but much more detailed in respect to advisement and waiver of section 702.5 constitutional rights, than the scant record in In re Mary B. (1971) 20 Cal.App.3d 816, 98 Cal.Rptr. 178. If the minor appellant desired this court to review the full record, it was incumbent upon the minor to provide the court with that record by securing and filing a reporter's transcript.
The minor's third contention is that the alleged “escape” occurred after he had served the legal maximum term of six months to which he had been committed and such six-month term was improperly extended by the court's order of February 11, 1980.
Prior to the September 2, 1980 supplemental petition in Alameda County, petitions had been sustained or admissions made by the minor on charges of battery and vandalism (October 6, 1978), possession of stolen property (April 27, 1979) and brandishing a firearm (December 10, 1979). He was approved for placement at Chabot Camp for a period not to exceed six months, but was held at Juvenile Hall pending an opening at Chabot. He was released to spend Christmas at home but failed to return. Ultimately, he was sent to Chabot on January 30, 1980, but was back in court on February 11, 1980, charged with camp failure (hitting another boy) on a supplemental petition filed pursuant to section 777, subdivision (a) of the Welfare and Institutions Code. The petition was apparently sustained by stipulation, the previous order was modified to exclude the phrase “not to exceed six months” and the minor returned to Chabot. On August 18, 1980, he left the camp and on August 20, 1980, was charged with escape.
Dispositive of this issue is the fact that no appeal was taken from the order of February 11, 1980. The notice of appeal herein was filed March 11, 1981. The time has long expired to attack on appeal the February 11, 1980 order.
Finally, the minor alleges he was not sufficiently advised of his right to remain silent prior to his admission of the allegations of the December 2, 1980 petition in the County of San Joaquin. The court advised the minor “he was entitled to a hearing,” “witnesses would testify” at such hearing and he “could subpoena and have witnesses testify” for him; that “you would not be required to say anything, but if you said anything, it would be used against you.” Further, that if the minor admitted the truth of the allegations he would not have a hearing. We conclude the court adequately advised the minor of the specific constitutional rights he would be waiving if he admitted the allegations.
The orders are affirmed.
1. Section 871 provides: “Any person under the custody of a probation officer in a county juvenile hall, or committed to a county juvenile home, ranch, camp, or forestry camp, who escapes or attempts to escape from such county juvenile hall, home, ranch, camp, or forestry camp, is guilty of a misdemeanor.”
2. Section 702.5 of the Welfare and Institutions Code provides: “In any hearing conducted pursuant to Section 701 or 702 to determine whether a minor is a person described in Section 601 or 602, the minor has a privilege against self-incrimination and has a right to confrontation by, and cross-examination of, witnesses.”
3. References to rules are to California Rules of Court.
4. For example, the following pertinent events correspond: where the adult violator of law is convicted, the juvenile is adjudged a ward of the court; the adult offender pleads guilty to the charges, but the juvenile admits the allegations contained in the petition; the adult is sentenced, but the juvenile is committed.
5. Section 800, as pertinent herein, states:“A judgment in a proceeding under Section 601 or 602, or the denial of a motion made pursuant to Section 262, may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment. Pending appeal of the order or judgment, the granting or refusal to order release shall rest in the discretion of the juvenile court. The appeal shall have precedence over all other cases in the court to which the appeal is taken.“A ruling on a motion to suppress pursuant to Section 700.1 shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition or even if the judgment is a dismissal of the petition or any count or counts thereof; however, no appeal by the people shall lie as to any count which, if the people are successful, will be the basis for further proceedings subjecting any person to double jeopardy in violation of the state or federal Constitution.”
6. See also Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 320, 172 Cal.Rptr. 594: “[L]egislative enumeration of certain exceptions by necessary implication excludes all other exceptions.”
7. Section 727 of the Welfare and Institutions Code provided in pertinent part: “(1) When a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 601 or Section 602 the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of such minor, including medical treatment, subject to further order of the court. [¶] The court may order the care, custody, control and conduct of such minor to be under the supervision of the probation officer or may commit such minor to the care, custody and control of: ․ (c) The probation officer, to be boarded out or placed in some suitable family home or suitable private institution, subject to the requirements of Chapter 3 (commencing with Section 1500) of Division 2 of the Health and Safety Code; provided, however, that pending action by the State Department of Social Services, the placement of a minor in a home certified as meeting minimum standards for boardinghomes by the probation officer shall be legal for all purposes.”
8. Section 202 provides: “(a) The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state; to protect the public from criminal conduct by minors; to impose on the minor a sense of responsibility for his own acts; to preserve and strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when necessary for his welfare or for the safety and protection of the public; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents. This chapter shall be liberally construed to carry out these purposes. [¶] (b) The purpose of this chapter also includes the protection of the public from the consequences of criminal activity, and to such purpose probation officers, peace officers, and juvenile courts shall take into account such protection of the public in their determinations under this chapter.”
9. This section provides that in hearings to determine whether a minor is a person described in section 601 or 602 of the Welfare and Institutions Code, the minor has a “privilege against self-incrimination and has a right to confrontation by, and cross-examination of, witnesses.”
CARR, Associate Justice.
PUGLIA, P.J., and SPARKS, J., concur.
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Docket No: Civ. 20541.
Decided: April 13, 1983
Court: Court of Appeal, Third District, California.
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