*1 30, 1970.] F. No. 22654. [S. In Bank. Jan. R.,
In re GLADYS a Person Coming Under the Juvenile Court Law. NINO,
ROBERT E. Officer, etc., as Chief Probation
Plaintiff v. Respondent, R., Minor, etc.,
GLADYS Defendant and Appellant.
Counsel Portmen, Defender, Public Lee Lambert and Thomas C.
Sheldon Carl Defenders, Public for Defendant and Hastings, Deputy Appellant. Jr., General, Harris, Attor- W. Assistant Albert Attorney C.
Thomas Lynch, Kirk, B. General, Attorneys and Charles R. Robert R. Granucci Deputy ney General, Plaintiff and Respondent.
Opinion Gladys R., TOBRINER, appeals 12-year-old judgment girl, J. to the custody ward her committing her a of the court declaring (Welf. & Inst. officer for institutional probation placement. private Cede, out, court committed we shall For the reasons point the jurisdictional the social before study reversible error reviewing report 706; F. (Welf. re Steven & Inst. hearing §§ *4 Cal. (1968) 266 Corey re 270 Cal.App.2d Cal.Rptr. 887]; [75 115]). We that the juvenile also conclude App.2d her the should whether child court consider a appreciates a under conduct whether child be ward the should declared determining 26). (Pen. of the Welfare Code and Institutions hold a ward Finally, we that the court declare a juvenile juvenile under section 602 for an act Penal Code by perpetration proscribed (People section 647a with abnormal v. Pallares sexual interest or intent. 173].) P.2d Cal.App.2d Supp. Court, court, found as a sitting juvenile Clara The Santa County Superior and the terms of Welfare her within the conduct that brought appellant’s act 602 because she committed an proscribed Institutions Cede section 18). Im- a under or child molesting Penal Code section 647a (annoying acts factual that the child committed after mediately allegations accepting 602, the under section which could invoke of the court the jurisdiction action “Now, of what we come to question juvenile proceeded: connection, taken, been with and in this the Court has should supplied called evidence a which is ordered admitted in a social study, special report has been reviewed the Court. The thoroughly at this time and which record, tells the Court whether the child has where social study prior now, interviewed, the child what child when told officer probation interviewed, what told when the child’s officer parents probation school welfare hall report, report, report, psychological, psychiatric and medical and and last family backgrounds, reports, personal history “Any person under the Code section 602 reads: 1Welfare Institutions and juris defining . . crime . is within the years any of this . violates law State 21 diction who ... to be a court, of the may adjudge person ward which such code, any mention of to section without hereinafter court." References quoted section. makes and data and that information all the officer evaluates probation (Italics added.) to the Court.” a recommendation the court examined comments indicate that
The clearly quoted com- had to its determination of whether study prior appellant social report the court’s declaration of a wardship. an act that wоuld warrant mitted of the court contains matter not The relevant jurisdiction report (Welf. & Inst. therefore inadmissible at the on that issue. hearing and §701.) study reviewing error in the social
1. The court committed reversible jurisdiction. the determination report the issue before 2 702,3 701, and sections of Welfare and Institutions Code history indicates that intended to create a bifurcated clearly Legislature the court which would first whether determine procedure would the facts of the case in de jurisdiction support would the social consider at claring wardship study report thereafter on the of that ward.5 This hearing disposition appropriate procedure provides only question 2Section 701 shall first “the court consider whether purpose, jurisdiction], the minor within the this [comes court’s matter or alleged information relevant bring material acts circumstances or which are *5 jurisdiction juvenile him may within the of the court admissible be and (Italics added.) . . received in evidence . .” provides juris court 3Section that the finds the minor its “[i]f that is [within diction], findings it shall and accordingly make enter its and order shall and then proceed question disposition to hear evidence on the of the proper to be of the to receive the made so, doing may hearing, necessary, minor. Prior to social it continue the if (Italics added.) study probation of the officer . .” . . provides finding jurisdiction], 4Section 706 that: [the minor comes within its “After question disposition the court shall hear evidence on of the proper the to be of made shall study the minor. The court receive in the of by evidence social the minor made (Italics added.) . . . probation the officer .” 5In 1959 the Governor of appointed California a Special Study Commission on Justice Juvenile to undertake a comprehensive study of the California Juvenile Court strongly Law. The commission criticized the they courts because “do not distinguish jurisdictional between the hearing. facts and the sоcial data at the Conse wardship quently, gation is sometimes decided on issues that evolve from a social investi though jurisdictional even the clearly have facts not been substantiated. two-stage “In opinion, our hearing procedure a is essential. This serve to differ- will sharply legal entiate more the knowledge between proof treatment and will result in application question each to the appropriate for court decision. “We also realize any that the hearings increase in number of reduce further Therefore, the time available to hear such hearings case. we recommend that both permitted be recommendations to be held on the day, provided report same probation the treatment however, sequence, are available. The should be preserved in (Report event.” of the Special Study Governor’s Commission on Juvenile Justice which, statutory commission thus new language recommеnded with modifica- case, not issue Legislature tions at in this the as Welfare and Institutions enacted a the juris
affords the resolution of necessary protection against premature dictional issue on the material in the social basis legally incompetent report.
A of review of the social before a determination prohibition report the issue does not the a jurisdictional hinder creation of court atmosphere ****6 conducive consideration of the case.* We that just juvenile’s recognize in case the this acted within its view of best entirely interest of the child. It of the believed that its undoubtedly report perusal to a decision on the would back prior issue jurisdictional provide helpful hold, however, information.7 We Welfare ground and Institu tions Code sections and 706 from reading prohibit judge (In Corey, supra, re the social before report jurisdictional hearing. 295, 296.) Cal.App.2d
A recent decision of the Court of the con- holds that Aрpeal correctly Corey struction in given new scheme of Welfare and statutory Institu- tions Code sections and 706 must to all juvenile apply pro- case, the instant ceedings, including initiated since the amendments. F., re (In supra, Steven Corey did 603.)8 not Cal.App.2d involve 295, 297-298, supra, Corey, re 706. In Code sections report construing Legislature’s in commission’s quotes passages these study before report social from review foreclose the intent to jurisdictional issue. determination on social practice criticized the reliance authorities have 6Other study of jurisdictional hearing: “After an elaborate national study advance of the of Justice Law and Administration scope on Enforcement the President’s Commission adjudication inappro danger that will affected ‘To recommended: minimize considerations, investigation not be made known reports social should priate (The Society, Challenge Report adjudication.’ Crime in Free judge advаnce of Justice Law and Administration Cal.App.2d Commission on Enforcement President’s *6 295, 299.) 87.)’’ (In Corey, supra, 1967) (Washington re p. fully might to with juvenile family cooperate 7Actually, and his be reluctant the investigation thought would they that the results of the social probation officer if the become jurisdictional hearing. probation officer judge prior to the The available to submitting the a which report the trial court social prevented from to would thus be disposition. facts relevant In addi complete review to ward’s contained a tion, report prior be probation officer’s would reviewed believed that if the hearing, relationship important and close between jurisdictional might jeopardized. be officer probation and the Corey, supra, Cal.App.2d re that In Attorney General also claims 8The Corey will prospectively be because applied should “new rule” that announces previous justice by encouraging attacks upon the administration of adversely affect indicating majority survey that a Attorney to a 1965 adjudications. of California points General The jurisdictional hear study before the judges continued to read the social Realities, (see Lemert, Court—Quest and Task Force The Juvenile ing M. Edwin Crime; on The President’s Commission Delinquency and Youth Report: Juvenile (1967) 101) to com and certain Administration of Justice Law and Enforcement v. Stovall (cf., decisions new constitutional rule overturned e.g., prior 87 S.Ct. Denno 388 U.S. L.Ed.2d 1967]), but rather whose statutory interpretation interpreted provisions Furthermore, failure of the had remained unsettled.9 previously minor’s to at the to the court’s attorney object hearing pre mature use of the social bar of this issue does not the consideration study on we cannot an that an appeal; expect attorney appellate anticipate court will later sections in a manner controlling contrary interpret the apparently prеvalent contemporaneous interpretation.
We must hold that the court’s review of the social study prior the jurisdictional constituted error. Both In re hearing Corey, prejudicial F., supra, 295, 299, supra, Cal. and In re Steven 603, 604, state: “Where the App.2d commission of crime is as alleged fact and the jurisdictional allegation the court’s error in disputed, the social [reviewing] before the study so jurisdictional hearing goes directly to the fairness of the that the hearing is not resulting adjudication saved VI, article of the California Constitution.” The court’s review of the social in advance report jurisdictional would hearing perhaps not require reversal in a case in which the contents of the social study favored entirely the minor and his home environment. But in the present case the social showed some study into intent under inquiry appellant’s section 647a and some negative indications about home environ- appellant’s suggest, B. E. they prescribe, ments seрarate Witkin: “The if do not statutes document good probation report, great from the and for a reason: The data will be in jurisdiction, part should not therefore tions.] highly prejudicial study irrelevant to and on the issue of and the hearing offered evidence until the disposition. on [Cita practice study But deputy’s the social is not held close to the vest and formally just offered proper judge’s in evidence at the time. It sort of appears on the desk, May he hearing? knows it is he read it before first there. Should he read hearing beginning it? Can he run it in advance? Those informed, efficient bifurcated reading to end without answer; if, questions are not for me to but reliably I am reading hearing, he does make a it before the first practice he must in hearing that other offenses and totally memory wholly blank out his inadmissible evidence of misconduct, reputation, derogatory bad opinions neighbors (See Proceedings of [and others].” the Third Annual Institute for Juvenile Court Judges Referеes, Sponsored by Judicial Council of California pp. 141-142.) Attorney proved predictions Following General’s dire have not accurate. 1, 1968, Corey and the Steven F. decision on October decision on March great petitions no flood of have corpus habeas raised this issue. *7 74], 9In re Cal.Rptr. Patterson 58 Cal.2d 852-853 377 P.2d [27 Patterson, argued does not conflict with the above statement. In the appellant that the probation report improperly officer’s was admitted juvenile and considered hearsay. argument court since it contained rejected. conclusions and The was argued opinion appellant Patterson that the probation does not indicate that the report study jurisdictional that could not properly included a social the court read before the hearing. question. not Patterson does discuss that
862 Hence, ment. review of social study jurisdic- court’s prior conclusive, were tional at which the facts far hearing, jurisdictional constituted error. prejudicial that we consider in
We turn now to several contentions by appellant order to further any to the guidance juvenile upon proceedings. give her 14 must age appreciate
2. A under the child of of under sec- juvenile a conduct in order to become ward of tion 602. stated, who violates that minor
As we have any provides State,” crime, comes the jurisdiction law this that defines under “any of in become ward court. out that order to We shall point section, child under clear must show that a of the court under that proof the act its of 14 at the time committing wrong- of age years appreciated that the juris- follows from the statutory fulness. This conclusion postulate law defines crime of a diction of the court must rest violation upon 26, sub- of Penal Code section and from the further statutory requirement that, definition, One,10 a child under of 14 does years division age in of that he “knew its not a crime the absencе clear wrong- commit proof fulness.” under A that a child could be committed to ruling 11 602,* would the disre
section in the absence of such clear proof, compel Indeed, of section 26 or the the Welfare and its gard repeal. assumption exclusive juris Institutions Code that the courts exercise provides 16; children cannot otherwise diction over all minors under the these age 707; Code, (See tried Inst. as criminal offenders. Welf. & Ops. § Hence, all (1962).) if at Cal.Atty.Gen. pertains it must under definition of criminal conduct apply proceedings turn, which, under who “[a]ny age years covers person . .”12 violates law of this . . State any committing belonging to capable except are those persons 10“All crimes fourteen, following age classes: under in the absence clear One—Children time of them, committing against they
proof charged the act knew its that at the (Pen. One.) wrongfulness.” References to section subd. hereinafter code, quoted without section. mention 11See footnote 1. crime, might purpose defining still entirely 26 loses its it con 12Even if section auxiliary testify 14 to permitting tinue to against effect of children under the have the 1111), (see because the offenders without corroboration Pen. adult punishable accomplice offenses under sections
child be treated could not (E.g., People Terry v. 286 and the Penal Code. 288 of 458].) 597], (1961) 364 81 S.Ct. cert. U.S. 941 L.Ed.2d den.
863 the 26 by implication; of section the cannot repeal We presume v. Harkness (Warne the contrary presumption. establish clearly decisions 377].) haveWe 601, 387 P.2d 579, Cal.Rptr. Cal.2d 588 60 (1963) [35 be irreconcil must acts the two overcome that “To presumption said have con cannot the two that so inconsistent able, clearly repugnant, maintain bound, if courts are possible, The current operation. Drive- (California stand if the two together.” both statutes of
integrity 657, 287, P.2d 292 (1943) 22 Cal.2d [140 Assn. v. Clark In Restaurant 733, 752 Cal.2d (1967) 1028]; Morris v. Williams see A.L.R. 689, 697].) 433 P.2d Code, the Legis Institutions 602 of the Welfare and In section enacting ;13 section sеction must have considered lature pre-existing entire in the for children the only constituted special provision practically scheme, the statutory 26 did not lie at the Section periphery legal system. confronted offenders. Necessarily only tangentially upon juvenile bearing section, later enactment have intended its must with Legislature If older section. with the of section 602 a definition of consistent crime it from 26 or to sever had intended to section the Legislature repeal 602, history it Yet the legislative could have done so expressly. Law, 602 forms a which section California Juvenile Court present fact, drafted the commission that indicates no such intent. In part, jurisdic law refers to the present necessity “respectable proof under section 602 for the tional facts” for the institution of proceedings violation of “serious crimes against property.” (Report persons Justice, Part I— the Governor’s Commission on Juvenile Study Speciаl (1960) Law Recommendations for in California’s Juvenile Court Changes 21.) p.
Section 26 accords with the historical treatment of juveniles, deriving from the common law that children under the of seven could not early age held Gault (See for criminal conduct. re responsible 1, 1428].) U.S. L.Ed.2d 87 S.Ct. Between the ages seven and fourteen the common law children rebuttably presumed incapable acts, of criminal unless child particular possessed requisite Perkins, Criminal (R. to understand the his act. experience 837.)14 Law (2d 1969) ed. California likewise rebuttably p. pre- con- 26, would not be years probably a child under without But even sidered an respect with a sex Penal Code 1111 of the accomplice under section 59.) (See p. at victim. the child is the offense in which One, in 1850. earliest form was enacted in its Code section subdivision 13Penal in 1874 Legislature the statute 229.) last amended (Stats. p. § ch. Codes) (Amendments (Stats. 1873-1874 form. bring present it to so as to its ch. responsi approach to adhere to this stаtes 14By or common law most statute 18-201; Mont. (See, e.g., Code Idaho bility for their conduct. of minors *9 864 crime, of committing minors of 14 incapable all under
sumes Section child criminal from responsibility. not exclude totally but does extreme truth, no true for its age, which is less venerable 26 embodies a of criminal respon- be to the same standard child cannot held that a young therefore court must elders. A juvenile more his experienced sibility in determining and understanding child’s consider a age, experience, conduct of committing proscribed he would whether capable 602. 365, 380 Cal. People (1967) Lara Cal.2d we observed in v. 67 [62
As
586,
202],
definite role
432 P.2d
a very
Rptr.
plays
law
to minors under
criminal
overall
of
afforded
system protections
that has
We know no change
under our
system.15
special
its abandonment.
rendition
this decision that
occurred since the
prompts
Penal
has
considered
To the
one Court of
contrary,
Appeal
apparently
T.R.S.
(See
re
Code sеction 26
to section 602
applicable
proceedings.
178,
574].)16
1
(1969)
181
Cal.Rptr.
[81
Furthermore,
26
kind
of fundamental
provides
protection
to
602 which
children
under section
this
should not
charged
lightly
discard. Section 602
600 and 601
is
from sections
clearly distinguishable
with
of their
the child:
to
respect
consequences
operation upon
upon
602,
of section
commitment
youth
custody
application
94-201;
(1941)
21,
152;
(1947) §
§
Rev. Code
Okla.
Ann.
tit.
Utah Code Ann.
Stat.
76-1-41;
924]; Clay
(1953)
(1960)
§
Ala.App.
v. State
40
2d
v.
[120
Blocker
658
So.
(1940)
State
462];
If a
finds a lack of clear
that a child under 14
proof
years
at the time of
the act
committing
of its
knowledge
possessed
wrongfulness
under sections 602 and
the court
well declare the child a ward
might
under section 600 or 601.20 These latter
far less severe
carry
provisions
for
consequences
all,
and life of the child.21
liberty
After
it is the pur
(1969)
Cal.App.2d
R.
footnote
In re Daniel
17See
suffi
petition
facts
probation
supplemental
which states
If the
officer files
247].
of the Welfare
under section 601
cient to indicate that a child declared a ward
and Institutions Code had not received an
rehabilitation,
disposition
effective
for his
might
juvenile court
Authоrity
direct a commitment
to the California Youth
(see
Code,
730, 777). Also,
&
§§
Welf.
Inst.
if a section 601 ward violates a court
order,
may
(See
commit
of
him as
ward
the court.
Code,
602, 731;
§§
& Inst.
Report
Study
Welf.
on Juvenile
Court Law
of the
Special
Governor’s
Commission
Justice,
Changes
Part
I—Recommendations
in California Juvenile
(1960)
21.)
p.
1
“Any person
age
8Section 600.
years
under the
of 21
any
who comes
juvenile
of
within
following descriptions
jurisdiction
is within the
may
court which
adjudge
(a)
person
such
to be a dependent child of the court:
isWho
in need of
proper
parental
and effective
guardian,
care or control and
or
parent
has no
or has
guardian
parent
willing
control,
or
capable
exercising
no
or has no
destitute,
to exercise or
such care or
control,
guardian
parent
or
actually exercising
(b)
such care or
Who is
life,
or who
provided
is not
with the necessities of
or who is not provided
abode,
place
with a home or suitable
оr
place
whose home is
by
an unfit
for him
neglect, cruelty,
reason of
depravity
parents,
guardian
of his
or
or of his
or other
(c)
person
custody
physically dangerous
whose
or care he is.
Who is
public
deficiency,
(Welf.
because of a
physical
mental or
disorder
abnormality.”
or
& Inst.
Code,
600.)
§
“Any
601.
person
years
19Section
under the
persistently
who
or habit
ually
guardian,
obey
refuses to
proper
reasonable and
orders or directions of
parents,
his
authorities,
custodian or school
or who is beyond
person,
the control of such
any person
or
this
who is a
meaning
habitual truant from school
any
within the
law of
State,
idle, dissolute,
danger
lewd,
or who
leading
cause is in
or
life,
jurisdiction
adjudge
immoral
within the
may
court which
such
person
(Welf.
to be a
601.)
ward of the court.”
&
§
Inst.
fact,
acceptable
20In
the most
function of
placement
be the
(See
youths, who are
not covered
602.
Justice,
President’s Commission on Law
Enforcement and the
Society
tration of
Challenge
Administration of
of Crime in a Free
85;
(1967)
President’s Commission on Law Enforcement and the Adminis
Justice,
Report:
Task Force
Delinquency
(1967)
Juvenile
and Youth Crime
25-27; George,
pp.
also Fenster v.
(1968)
46-48;
J.
Gault and the Juvenile Court
pp.
Revolution
see
Leary (1967)
A.2d opinion of 530] President’s Commission on Justice, Law Enforcement Delinquency the Administration of Report: and Task Force Juvenile (1967) pp. and Youth Crime 360-362. 444, 1, As we 70 454 observed in re Dennis M. Cal.2d In 296], patriae parens 450 P.2d theory, ‘‘Gault casts doubt on the traditional Gault, exposes many practice supra, 1, .” re defects in its . . . 16-30 U.S. 539-547, 1428], requires L.Ed.2d consequences S.Ct. courts to look to the proceedings of the rather juvenile formal rights than the labels to determine appro what are Gault, priately applied proceedings. juvenile Here as in “The offender is however, ‘delinquent.’ disconcerting, now classed as a ... It is that this term has come only slightly stigma to involve less than the term ‘criminal’ applied to adults.” (387 544].) p. pp. U.S. at 23-24 at may [18 L.Ed.2d Juvenile records well haunt the life, youthful throughout making offender his it difficult for employment him find (See pp. 544-545].) or career. enter a U.S. at 24-25 pp. [18 L.Ed.2d at In addi tion, might the fact that the institution to which he be sent is called an “industrial school,” home,” “receiving euphemistic or other such title cannot mask the true regimented (See nature confinement in such correctional institutions. 387 U.S. 545].) realities, p. at L.Ed.2d at In the face of [18 court such the statement that the protects youths they involved and therefore need not be afforded rights their fundamental under section will not suffice. Attorney expresses 22The prevents General some concern that if section 26 a child being brought supervision under the of the court under section 602 “it quite possible juvenile proceedings is under that no other could be initiated other than something proscribed where the act amounts to by the Penal Code. Rambeau, (1968) [; R., suрra, See In re 266 A.C.A. 462-63 cf. In re Daniel But as we supra, observed in 749].’’ In re Dennis 70 Cal.2d M. “Indeed, youth’s alleged may 456: only crime often be or latest most symptom underlying overt of an behavioral or personality disorder which could equally wardship well warrant a declaration of pursuant to provisions other of the (Citing Rambeau.) §§ code.” Welf. & Inst. Other sections for be invoked to for may possibly wardship provide this child with no that a child injurious Section 601 potentials. provides who authorities, the lawful orders his disobeys or school who parents beyond control of such or who is in persons, danger leading immoral life be a ward of the court. Section may adjudged 601 might cover children clearly who lack the under- younger or age experience stand the wrongfulness their conduct. If the court considers child, for the he be inappropriate covered particular the even broader of section provisions 600. of the Governor’s (Report Justice, on Special Study Commission Juvenile Part I—Recommendations in Juvenile Changes Court Law 18-21.) pp. Section 602 should to those apply only who over 14 and may to understand the presumed of their wrongfulness acts and to under those of 14 who age clearly appreciate of their conduct.23 In the instant case we are confronted with a 12-year-old girl social and mental of a Section 26 7-year-old. stands to her protect *12 other young like her from the people harsh strictures of section 602. if the
Only age, experience, and knowledge, conduct of the child demonstrate clear by that he proof has violated a law criminal should he be declared a ward of the court under section 602. may
3. A child declared a ward court under section proscribed by 602 conduct Penal Code section 647a. “Every person Penal Code section 647a who or provides: annoys molests (Italics added.) child under a 18 is . . . .” vagrant the words include a as an Clearly, minor well as adult. “[е]very person” believe, therefore, We declare to be a ward of the court under for an violative act of Penal Code 647a. out, however,
We narrow point of section comparatively province 647a; it to offenders who are motivated an applies only or by unnatural Pallares, abnormal People sexual interest intent. supra, or v. 112 Cal. App.2d Supp. contention that the words rejecting “annoys or molests” in section 647a rendered the section impermissibly vague, stated in “When are used in part: reference to offenses [these words] against children, there is a connotation of abnormal sexual motivation on part of the offender. no intent Although is as element specific prescribed of this offense, a particular of the section as a whole in reading light of the evident of this and purpose similar enacted in this state legislation indicates that the acts forbidden are those motivated an unnaturаl T.R.S.,
23See In re supra, 178, 1 Cal.App.3d 181.
868
or abnormal sexual or interest intent with Several respect children.” Courts of have cited followed Appeal Pallares. v. People Cars- (E.g., (1959) 45, kaddon 201]; 170 People 47 P.2d Cal.App.2d v. [338 Thompson (1959) 727, 167 249]; People 733 P.2d Cal.App.2d v. [335 Moore (1955) 197, 137 40]; 200 P.2d see In re Sheridan Cal.App.2d [290 (1964) 365, 230 894]; 372 Cal.App.2d People v. Cal.Rptr. [40 Mizer (1961) 261, 195 272]; Witkin, Cal.App.2d 268-269 2 Cal. Cal.Rptr. [15 619, (1963) Crimes 567-568.) pp.
“The is the primary purpose [section 647a] ‘protection offenders, children from interference sexual and the apprehension, Moore, segregation (People supra, the latter.’ v. punishment 895, 197, 199; Pallares, Cal.App.2d Supp. v. People 112 Cal.App.2d )”. (People ... v. (1957) 423, Carskaddon 49 Cal.2d 425-426 4]; Municipal [318 v. P.2d see Mandel Court (1969) 276 Cal.App.2d 649, 670-671 173]; In Sheridan, [81 re Cal.Rptr. supra, 230 Cal. 365, 371; In re App.2d (1964) Huddleson 623- 581]; Cregler (1961) cf. re 56 Cal.2d Cal. Cal.Rptr. [40 308 [14 289, 363 305].) P.2d Rptr. this Considering connotation of purpose, the words section, “molest” used in “annoy” and the rule that we must a criminal defendant the doubt give benefit reasonable every as to whether the statute v. (Peoplе to him Baker applicable 69 Cal.2d 675]; 442 P.2d In re Zerbe Cal.Rptr. Cal.2d 840]), 388 P.2d 10 A.L.R.3d we reaffirm the construction given 647a Pallares and subsequent cases.24 *13 Pallares, People supra, the decision in v. the since
During years 895, the has not amended section 647a Legislature Cal.App.2d Supp. Carskaddon, People supra, 49 Attorney 24The v. Cal.2d General cites support by motivation an abnormal does not in his contention that sexual intent question. We that constitute of the crime in observed in Carskaddon “as an element statute, ordinarily “annoy” used in relate ‘offenses “molest”] this words and abnormal sexual motivation [the children, against part a connotation of on the [with] Pallares, supra, (People p. Ordinarily, annoyance the V. or offender.’ the ‘not the molestation which is forbidden concerned with state mind of the child’ offense,’ objectionable which but it is ‘the acts of defendant constitute the if his person unhesitatingly would conduct is ‘so lewd or obscene that by normal irritated it, “annoy purview would or of’ the such conduct molest” within statute. . . .” (Itаlics added.) Attorney upon “ordinarily,” seizes word The General italicized subsequent but did intend to overrule clearly Carskaddon not Pallares and cases that regard motivation an abnormal sexual interest or intent as an of the element offense. Carskaddon did not state that such motivation did not constitute an element and, contrary, cited Pallares apparent approval. the crime to the with In Cars coming kaddon the no evidence that defendant had act found committed an 647a, it purview unnecessary within the of section and therefore held in that case to consider the matter motivation. motivation an abnormal sexual or as an exclude interest intent element offense, of the has amended those years Legislature during 3, 1955, 169, (Stats. section in other on three occasions. ch. respects § 639; 1957, 1735, 3120; ch. ch. Stats. Stats. p. p. circumstances, 1241.) Under the we must generally presume Legisla- (See Corp. ture has in the construction. Oil acquiesсed judicial Richfield v. Public Utilities Com. 54 Cal.2d 4].) 354 P.2d
We a conclude that declare to be a ward of the court under Welfare and Institutions section 602 for Code com- mission of act Code not by Penal section 647a. We need proscribed however, evidence, decide whether sufficient under section particularly 26, was introduced case in instant that an abnormal support finding sexual interest or intent motivated conduct. need we de- Nor appellant’s cide since, whether the court failed to render such a as we have finding seen, the court’s review of the social study report prior jurisdic- tional itself hearing requires parties reversal judgment. may, course, introduce, further additional evidence of such proceeding, interest, abnormal sexual well as additional the minor’s evidence of appreciation her conduct.
We summarize our on the two chief issues of this case in a position few words. Our first major holding precludes the sociаl
reading study to the determination of report prior jurisdiction since reliance upon legally material in could induce incompetent report prejudice. ruling our second reaching we have recognized over centuries our has attained past society of relative stage sophistication in which it realizes that antisocial conduct in most cases stems from motivation psychological in the individual that cannot be into segregated the easy categories of “criminal” or “non-criminal.” It would be particularly undesirable for court, a juvenile arbitrarily, without of the child’s analysis appreciation of the conduct, of her to hold this “wrongfulness” emotionally child disturbed of 12 years of criminal guilty conduct. To reach that *14 would, result we in our be judgment, compelled to misread the pertinent statutes, to even disregard our presently of inadequate knowledge psy- and to retreat to an chology, which approach the сommon pre-dates early law. Clara the Santa and the case is remanded to is reversed judgment court, Court, for further aas sitting juvenile proceedings Superior
County with this consistent opinion. Peters, J., Mosk, J., Sullivan, J., J., and C. concurred.
Traynor, the with the which BURKE, J. I concur majority opinion except portion the of holds that in under 14 to within jurisdiction order for minor the under Welfare and Institutions Code 602 there juvenile court of the crime that the minor at the time must be “clear proof” committing (Pen. Code, One).1 subd. knew its With to respect of that I dissent. portion and are in the court conducted for
Proceedings juvenile protection (Welf. & as law Inst. benefit of minors and not to them violators prosecute M., In re Dennis 502; 70 Cal.2d It 296]). 2 P.2d is believe that intended Legislature unreasonable to One, Penal Code in a insti subdivision to apply proceeding tuted to minor’s benefit and which seeks determine whether comes within the that sub minor terms of section 602.3 of Application in such division could result in some juvenile excluding proceedings are minors who in dirе need of the care and afforded guidance by the Juvenile Court Law from It receiving those benefits. that likely appears minors would be in very greater so excluded those need of receiving such care than others more knew that their acts sophisticated plainly who. were wrongful. finds a lack of clear state, “If proof
The majority the act knowl- committing at the time possessed a child under years 1 age “Any person under provides: and section 602 Welfare Institutions Code defining crime ... is within the any this State . . . years of 21 jurisdiction the court.” who violates law of court, person to ward adjudge such be a which of the committing persons are crimes capable “All provides: Penal Code following except fourteen, classes: One. Children under belonging to those charged committing that at the time the act proof of clear in absence them, wrongfulness.” against they knew of its One, and without mention of to subdivision hereinafter sections Referenсes code, quoted sections. chapter “The Arnold Kennick Juvenile purpose [the reads: this 2Section 502 jurisdiction under the for each minor Court such care and secure Law] home, spiritual, his will serve the guidance, in own as preferably emotional, mental, the best of the welfare minor and interests physical State; family removing strengthen possible, the minor’s ties whenever preserve and safety protection only parents his when his welfare or custody of him removal; and, safeguarded without when the minor adequately cannot be public care, custody, discipline family, to secure for him as own from his is removed nearly This given parents. which have been his equivalent to that' should possible liberally carry out purposes.” construed these shall be chapter 1873-1874, long last was enacted 1872 and amended Code section 3Penal *15 (see this Cal. system established in state Juvenile Court was juvenile court before the 14). (1968) p. Practice 26, the well might its under sections 602 аnd edge wrongfulness of declare the child ward and Institutions sections a under Code] [Welfare statement, however, 601.”4 The con- 600 or fails to give quoted adequate law a sideration to the fact that children who violate a crime many defining or 601. Under the not found to come within either section 600 may such children will be of the attention need majority they position deprived in to order become citizens. For a law-abiding 12-year-old boy example, on one occasion a gun exhibits a loaded in manner in the threatening pres- Code, (Pen. 417), ence of another his the evidence does not show § disorder, conduct was the result of “a mental or or physical deficiency, (see Code, Inst. abnormality” (c)). Welf. & subd. § A 13-year-old (Health 11530). has of & girl A possession marijuana Saf. 13-year- § on (Pen. Code, 261, 1), old one occasion boy commits statutory subd. rape § awith a willing 13-year-old girl or private goes (Pen. place, joyriding 499b) or (Pen. Code, commits 488). theft petty In none of the foregoing instances is there “clear that the at minor the time of proof” committing crime had knowledge of its In the wrongfulness. foregoing instances some courts might conclude that the minor did not come within either section 600 or and additional proof bring minor within section 600 or 601 might not be available.
It is in the above statement of the implicit that knowl quoted majority of of the act is edge not for an adjudication that required a minor under is a described A by section 601. minor person bemay come adjudicated to within section 601 where he has refused persistently “Any age 4Welfare and person Institutions Code section 600 of reads: under the years following jurisdiction who comes any descriptions within is within the adjudge of the may person dependent which to be child such a of the court: “(a) proper parental Who is in need of and effective care or control and has no capable guardian, parent guardian willing or or parent or has no exercise or control, exercising guardian such parent actually exercising care or or has no or such care control. or destitute, “(b) life, provided Who is or who is not with necessities or who abode, provided place not or is with home suitable or whose home an is unfit neglect, cruelty, place depravity for him reason or of either of his parents, or guardian person custody or of his or other whose care he is. “(c) dangerous physically public Who to the of a physical is because mental or deficiency, abnormality.” disorder or “Any person Welfare and section 601 reads: under Institutions Code years persistently habitually obey who or refuses to the reasonable and proper authorities, guardian, parents, orders or directions of his custodian or school or who beyond any person the control of such or who habitual person, is truant State, meaning any danger school within the law of this or who from cause is in idle, dissolute, lewd, life, leading jurisdiсtion or immoral is within adjudge person court which such be ward of the court.” code, References of any hereinafter to sections 600 and without mention n quoted sections. *16 It would school authorities. and orders the reasonable proper to obey the wrong knowledge Legislature had the required been anomalous have crime a serious in who committed a minor under 14 fulness of his act and not to have under one section have order for the court to jurisdiction under The welfare another. lesser transgression it for a relatively required would make juris society manifestly child and best-interests of the latter than over jurisdiction child more diction of former imperative that with to the disposition one difference exists Although respect child. and within section 601 minor be made of a minor found to come may otherwise same are dispositions found to come within section 6025 confined, be for such minors and both ordered for may authorized both 731, Code, 725, 730, 733, (Welf. in a home. & Inst. juvenile §§ example, 734.) and law rebuttable of lack of criminal
The common capacity presumption child 14 has in juvenile of a between 7 and been as regarded inapplicable 458, (5th 256 F.2d (Borders 1958) court v. United States Cir. proceedings. 459; 771, (1918) 773]; sec Court v. State Juvenile 139 Tenn. S.W. 549 [201 39, 317; Rubin, (1958 Courts, etc., ed.) 31 Am.Jur. Juvenile Crime p. 56.) and Juvenile cases reasoned cited that Delinquency court are not in nature and are not instituted juvenile proceedings criminal child for offense but rather have punish providing purpose for the child’s welfare. In this state the Legislature has provided specifically that a shall not be deemed a criminal juvenile proceeding proceeding. (Welf. 503.) & Inst. In In re Gault light U.S. 1 1428], L.Ed.2d held that 87 S.Ct. which certain procedural pro tections due in required process applicable proceed such not in all ings, be cases for proceedings may regarded every purpose However, M., as civil rather than criminal. we in In re Dennis out pointed . . supra, Gault . proceedings 70 Cal.2d “even after character; generis retain a sui certain basic rules of due although process observed, be must are nevertheless conducted proceedings pro tection and benefit in Thus youth the conclusion reached question.” Borders and Juvenile Court remains valid. One of section 26 that subdivision applies of its support position that under state “the majority a juvenile proceeding over under courts exercise exclusive all minors jurisdiction One “we cannot repeal of 16” presume [subdivision of] 602 ward ward a section 5The under which a circumstances (See & Authority Welf. Inst. identical. committed the Youth are not §§ *17 873 the decisions establish the clearly contrary by implication; pre statement is Even if it be assumed that the former sumption.” quoted correct, it section 26 is does not follow that subdivision One of repealed a determination of the subdivision by by implication inapplicability in a under section 602. As the majority recognize, proceeding that subdivision is where an adult defendant with a sex charged applicable crime a child contends that the latter is an whose testi against accomplice (Pen. Code, 1111). People Terry, corroboration v. mony requires (E.g. § Williams, 48, 597]; People 180 v. 12 59 Cal.App.2d Cal.Rptr. Cal.App. [4 Becker, 223]; 2d People 208 et P.2d v. 140 seq. [55 Cal.App.
164 P.2d Witkin, see 1 (1963), Cal. 122.) Crimes 196]; [35
The also note that majority “Section 602 is from clearly distinguishable sections 600 and 601 with to the of their respect consequences operation the child: upon upon section commitment of the application youth custody of California Youth becomes far more Authority However, likely.” and Institutions Welfare Code restrictions on places ,6 such a (§ 734) commitment 733 and where such a commitment is § authorized it is one only of several alternatives.7 Under the circum possible stances the fact that Youth commitment be an Authority may alternative available for a minor found to be a described person section 602 should by not subdivision One preclude holding of section 26 is in a inapplicable juvenile court under section proceeding 602. Lara, majority rely statements People v. upon quoted 67 Cal. 2d
365, 380-381 statements, P.2d Those Cal.Rptr. how 202]. ever, were made in connection with our of the claim that rejection defend ants, aged 17 and crime, 18 at the time of the had not waived knowingly their rights to silent, counsel and to remain and Lara did not involve or prohibits 6Section 733 Authority commitment to the Youth of specified persons including, others, among years age, ward under 734 prohibits section such a commitment judge fully “unless the ... satisfied that physical mental and qualifications condition ward such as to render it probable that he will by be benefited the reformatory discipline educational or provided other treatment by Authority.” the Youth 7Where court has found the minor to a person by described section it may, adjudging court, without the minor a ward of the place probation the minor on supervision officer, under the of the probation may adjudge or the court the minor to (Welf. Code, 725.) be a ward of the court. & § Inst. “. . . no ward . . . shall be physical taken from the custody parent of a hearing . . . upon unless the court first finds” one of (e.g. several enumerated facts probation minor has been tried on reform). (Welf. failed to and has & Inst. Where the court has found exists, such fact may it for a order ward of fhe types of treatment (e.g. authorized for a section 600 or 601 ward commit minor to care of probation placed to be family institution, officer home or private in suitable suitable commit juvenile home) (Welf. minor the minor to or commit the Youth Authority & 731), subject Inst. heretofore to the restrictions mentioned. subdivision One of section decide the question applicability is a described determine whether minor person in a proceeding 602. T.R.S., 574], also In re cited that sub deciding assumed without to have merely *18 majority, appears whether in to determine One section 26 a preceding division applies section 602.8 than 14 is a described by minor less person has been held Penal section 26 (insanity) Subdivision Three of Code a minor whether in determine applicable proceeding M.G.S., (In re is a described 267 Cal.App.2d person by One of 808]), it does not follow that subdivision but in such Permitting section 26 is likewise a proceeding. applicable the minor of defense of in such a does not insanity proceeding deprive 705), sub (see, care & Inst. whereas holding needed Welf. e.g., can, such a as we have division One of section 26 proceeding applicable seen, minors of needed care. deprive
For the reasons above stated I would uphold position Attorney that subdivision One of section 26 a juvenile General inapplicable whether a minor comes within section to determine 602. proceeding McComb, J., concurred. T.R.S., supra, stated respect question 8With In re evidence, required proof’ ‘clear
only, “There is no merit to the contention the wrongfulness of his establish the knew the Penal does not minor conduct.”