People v. Darrell P.People v. Darrell P.
Opinion
We must decide a procedural issue of juvenile law based on our interpretation of a recent decision by our Supreme Court,
In re Winnetka V.
(1980)
Darrell P. appeals from an order of commitment to the California Youth Authority entered by the Superior Court of Yolo County, sitting as a juvenile court, after a rehearing of an order of a referee committing the minor to the Youth Authority but suspending the commitment and releasing him to the custody of his parents. Appellant argues that the trial court committed error of constitutional dimensions in ordering a rehearing without obtaining and reviewing a transcript of the testimony at the hearing before the referee. We reject this contention and affirm the order of commitment.
I
Appellant’s legal difficulties began on July 14, 1978, when a juvenile petition was filed charging that he had committed one count of simple battery (
*919 On May 6, 1980, a supplemental petition was filed charging appellant with the petty theft of property belonging to Yolo County Social Services. 1 Appellant admitted the allegations and the supplemental petition was sustained. Another supplemental probation report revealed that appellant had been referred to the Yolo County Probation Department by Sacramento County due to his involvement in petty theft in that county. The probation officer placed appellant on a work program for two Saturdays and while performing this work at the Social Services Department in Woodland appellant committed theft from that office.
Appellant appeared before a referee for a dispositional hearing. While awaiting the dispositional hearing appellant had been accused of throwing a dirt clod into his school classroom and when confronted, became abusive toward his teacher, was referred to the principal, and finally suspended. It also appeared he had been arrested for driving without a license. The main focus of the hearing was upon the changed home arrangements of appellant’s mother. It appeared in the supplemental probation report that appellant’s natural father, William Foree, had begun dwelling in the home. In the first probation report it had been stated that appellant’s natural father was a Mr. Atwell, now deceased. Appellant, who was adopted by Mr. P. at an early age, believed the deceased Mr. Atwell to be his natural father, and had since been told that Mr. Foree was his natural father. Mr. Foree had moved into the family home as a tenant. The probation report recommended commitment to the California Youth Authority.
Appellant testified that he had been trying to do well while at home awaiting disposition because he did not wish to be committed to the Youth Authority. Appellant’s mother testified that while awaiting disposition appellant had been “pretty good.” He had been good at keeping his curfew. She believed that appellant had been falsely mccused of throwing dirt into his classroom, and became belligerent only upon being pressured. She believed that Mr. Force’s presence is a stabilizing factor. Mr. Foree testified that since he had been in the house appellant had shown some sense and quite a bit of improvement. He desired that appellant be allowed to live in the home and stated that he would provide guidance and control to the best of his ability.
*920 The referee continued appellant as a ward of the court and committed him to the Youth Authority, but suspended the commitment and placed him in the custody of his parents, and ordered that he do community service work on five Saturdays.
The district attorney filed an application for a rehearing of the disposition order. Appellant moved to strike the application, contending the minor alone has the right to apply for a rehearing. The trial court held that while the district attorney did not have the right to move for a rehearing, the application served only to call the court’s attention to the file, and that upon review: “Prima facie [the file] would not point toward returning the minor to his parents’ home.” The court ordered a rehearing on its own motion “... so that the court can in fact hear the testimony which was presented in open court.”
A rehearing was held. 2 The probation officer testified that she had heard that appellant’s relationship with his father was good at times and bad at times. She believed that Mr. Foree would be a positive influence and had been told that he was attempting to work with appellant, but she had no information that he had brought about a positive result. Appellant’s mother testified that his conduct at home while awaiting disposition had been fair, not totally good and not totally bad. His school work had also been fair. She believed that appellant needed help, but did not feel that commitment to the Youth Authority was the answer.
On September 2, 1980, the trial court issued a ruling committing appellant to the Youth Authority. The court explained its reasoning, and concluded that continued home placement was not appropriate. On September 15, 1980, a petition was filed charging that appellant committed an act of simple battery (
Appellant appeals from his commitment to the Youth Authority by the trial court on rehearing of the dispositional order of the referee.
*921 II
In re Winnetka V., supra, guides our discussion and conclusion. Welfare and Institutions Code section 252 provides for a procedure whereby a minor or his parent or guardian may apply to the juvenile court for a rehearing of the decision of a referee. Welfare and Institutions Code section 253 provides: “A judge of the juvenile court may, on his own motion made within 20 judicial days of the hearing before a referee, order a rehearing of any matter heard before a referee.” There is no provision in the code for an application for a rehearing by the People. In the trial court appellant objected to the order of a rehearing on the grounds that the People requested a rehearing and that the order could not be considered on the court’s own motion for that reason. The court held that the People have no right to apply for a rehearing, but the mere fact that a communication from the People to the trial court may precede or even prompt an order for a rehearing on the court’s own motion does not render the order invalid. (In re Winnetka V., supra, 28 Cal.3d at pp. 592-593.) The trial court’s order made it clear that the court was aware that the People had no right to apply for a rehearing and that the court did not treat the People’s application as anything more than an informal communication. The “application” of the People thus did not render the order for a rehearing invalid.
A. The Procedural Requirements
In Winnetka V., supra,
the court considered the procedural requirements to be followed when an informal request for a rehearing is received from the People. The court did not prescribe a full or formal hearing, but rather held that the court may not order a rehearing on its own motion after receiving a communication from the People until the minor has been notified of the request, supplied with a copy (including exhibits and other attachments), given access to all materials brought to the court’s attention that are not already in the record, advised that he may reply in writing, and accorded a reasonable opportunity to do so. (
The trial court ordered the rehearing more than six months before the Supreme Court issued its decision in In re Winnetka V., supra; however, the trial court’s reasoning anticipated the holding of that case. The court noted that the People have no right to apply for a rehearing, and considered the “application” only as an informal request. The important consideration in such a request is that the People avoid ex parte *922 contacts with the court and that the minor have notice of the request and an opportunity to respond. These requirements were met in the case at bench. The district attorney gave notice to the. minor of hisr “application” for a rehearing, and the minor in fact responded in writing. The procedure followed by the trial court herein was in substantial compliance with the requirements set forth by the Supreme Court in Winnetka V.
The request for a rehearing by the People in this case differed significantly from the request by the People in
Winnetka V.
There, the letter from the district attorney to the trial court was written in a tone of advocacy, contained several factual inaccuracies, and falsely represented the referee’s reasoning and conclusions. (
Since the request from the People contained no factual statements or argument intended to influence the court’s decision and appellant had notice and the opportunity to respond to the request, we can perceive no prejudicial error as described in
In re Winnetka V., supra.
(Cf.
In re Jonathan S.
(1979)
B. The Transcript
Appellant’s contention, however, is that the trial court erred in ordering a rehearing without first obtaining and reviewing a transcript of the testimony given in the hearing before the referee. Although the request for a rehearing from the district attorney asked the court to review the transcript of the hearing, it does not appear whether the court did so. Welfare and Institutions Code section 252 provides that when a minor or his parent or guardian applies for a rehearing, the trial court may grant or deny the request after reading the transcript of the proceedings, but that if the proceedings are not reported then the rehearing *923 must be granted as a matter of right. Welfare and Institutions Code section 253, which provides for the ordering of a rehearing on the court’s own motion, does not provide that the court must or should read the transcript of the proceedings before a referee. Despite the lack of a statutory requirement that the trial court obtain and read a transcript of the testimony before the referee before ordering a rehearing of the matter heard, appellant contends that procedural due process requires that it do so.
The predecessor to section 252 was section 558, which was substantially identical to section 252 except that it provided that if a request for a rehearing was not acted upon by the court it would be deemed denied. In
In re Edgar M.
(1975)
The reasoning of
Edgar M.
was relied upon and extended in
In re Damon C.
(1976)
The basis of the decisions in Edgar M., and Damon C, is the principle that a referee is not a judge and may not exercise judicial duties. The referee’s decision is not binding upon the minor unless he accepts that decision by failing to request a rehearing. Upon a request for a rehearing the minor is absolutely entitled to a hearing de novo before a judge unless the court affirmatively exercises judicial power by adopting the decision of the referee as its own. The court cannot exercise such judicial power, however, without consideration of the entire record before the referee; thus, where the court fails to consider the entire *924 record or the record is not available the minor is absolutely entitled to a rehearing before a judge. To hold otherwise would be to raise the function of a referee to the performance of judicial duties, which is constitutionally and statutorily prohibited.
The same consideration does not apply, we stress, to a situation in which a court orders a rehearing of a decision of a referee. In such a situation that minor is entitled to a hearing de novo before a judge and to the exercise of judicial duties by that judge. (
We have noted that the Welfare and Institutions Code does not require the juvenile court judge to obtain and read a copy of the reporter’s transcript before ordering a rehearing on its own motion. (
In
In re Winnetka V.,
supra,
*925 The judgment (order of commitment) is affirmed.
Puglia, P. J., and Carr, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied October 14, 1981. Mosk, J., was of the opinion that the petition should be granted.
Notes
In September and October 1978, and in February 1979, appellant was the subject of a separate proceeding dealing with (1) the problem that appellant was beyond his mother’s control; (2) unsuccessful placement in a group home and a boys’ ranch; and (3) a charge of burglary.
Appellant petitioned this court for a writ of prohibition to restrain the trial court from rehearing the dispositional order.