Arthur N., In re

• Decision Date: 23 February 1976
• Docket Number: S.F. 23317
• Citation: 127 Cal.Rptr. 641,16 Cal.3d 226,545 P.2d 1345
• Court: California Supreme Court
• Parties: , 545 P.2d 1345 In re ARTHUR N., a person coming under the Juvenile Court Law. Leroy FORD, as Chief Probation Officer, etc., Plaintiff and Respondent, v. ARTHUR N., Defendant and Appellant. . In Bank

Page 641

127 Cal.Rptr. 641

16 Cal.3d 226, 545 P.2d 1345

In re ARTHUR N., a person coming under the Juvenile Court Law.

Leroy FORD, as Chief Probation Officer, etc., Plaintiff and Respondent, v. ARTHUR N., Defendant and Appellant.

S.F. 23317.

Supreme Court of California.

In Bank.

Feb. 23, 1976.

Robert L. Walker, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Gregory W. Baugher, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Arthur N. appeals from an order of the superior court, sitting as a juvenile court, sustaining a supplemental petition brought pursuant to Welfare and Institutions Code section 777, ¹ and committing him to the custody of the Youth Authority. He argues both that proof beyond a reasonable doubt of the facts constituting the misconduct alleged therein is necessary to sustain a supplemental petition when commitment of a ward to the Youth Authority is sought, and that the evidence was insufficient to sustain the petition whether that standard or the 'clear and convincing evidence' standard applies.

As we shall explain, we have concluded that the potential consequences of a supplemental petition under section 777, including commitment to the Youth Authority, are such that proof beyond a reasonable doubt that the minor has committed the acts of misconduct upon which the petition is predicated is required by the due process clause of the Fourteenth Amendment to the United States Constitution. Because it does not affirmatively appear from the record that the court applied the proper standard, the order committing appellant to the Youth Authority must be reversed.

Arthur N. was declared a ward of the Yolo County Juvenile Court in 1970 when the court found him to be a person described by section 602 ² after Arthur had admitted the allegation of an amended petition that he had violated Business and Professions Code section 25662, ³ a misdemeanor, by possessing an alcoholic beverage, beer. Although custody was taken from his mother at the disposition hearing (§ 702), and Arthur was placed in the custody of the probation officer and committed to a county-operated boys' ranch, the court terminated that placement after three and one-half months and, in late August 1970, authorized the probation officer to return Arthur to the physical custody of his mother.

The wardship was transferred to Sacramento County in January 1971 when Arthur and his family moved there. Less than a month later Arthur was placed in a foster home after he had been arrested for shoplifting and resisting arrest. In April 1971 he was again returned to his mother's home after he ran away from the foster home and refused to return. In June 1971 he was arrested for auto theft, and was found by the juvenile court to have committed the lesser offense of taking a vehicle for temporary use without permission.' (Pen.Code, § 499b). After a July 1, 1971, disposition hearing, Arthur was again adjudged a ward of the court and was committed to the custody of his mother with a requirement that he work on the county's juvenile court work project. The family moved back to Yolo County within the month, however, and after the transfer of the case had been accepted by the juvenile court of that county a new disposition hearing was held on September 7, 1971.

At the September 7, 1971, hearing, custody of Arthur was taken from his mother and placed in the probation officer who was authorized to release Arthur to the physical custody of his mother. The court also ordered that Arthur be committed to the juvenile hall for 30 days, suspended on condition that he comply with the other terms of his probation, among which was a series of 20 weekend commitments to juvenile hall for participation in a work program unless he obtained employment.

Arthur remained in the physical custody of his mother until May 3, 1972, when he was detained in juvenile hall. A supplemental petition was filed on the next day pursuant to section 777 seeking modification of the previous disposition orders on grounds that he had violated Penal Code section 211, by committing a robbery on April 27, 1972. The petition was sustained after a contested hearing on May 26, 1972. A supplemental probation report was prepared, and after a disposition hearing on June 19, 1972, the court ordered that Arthur remain a ward of the court under the care, custody and control of the probation officer, and committed Arthur to the Youth Authority. He was then 17 years old. The instant appeal followed. ⁴

I. Evidence of Robbery

1] We turn first to appellant's contention that there was no evidence from which the court could infer that he took any property from the victim, and that, therefore, all of the elements of robbery, the offense with which he was charged in the supplemental petition, were not established under either the 'reasonable doubt' or 'clear and convincing' evidence standard.

Evidence was presented at the adjudicatory hearing on the supplemental petition to show that on April 27, 1972, at about 3:40 a.m., Orin D. Rowe was walking on Pendergast Street in Woodland, carrying several packages. A light blue pickup truck stopped near him. A person got out, approached Rowe and asked Rowe if he had any money. When Rowe ignored the questioner and continued walking, two other persons got out of the pickup truck and, joined by the first, hit and pushed Rowe who, with a pocket knife, stabbed one of his attackers in the back. Rowe climbed over a hedge into an alley or yard, but then fell or tripped and dropped the packages he had been carrying. The attackers then left and Rowe picked up his packages.

As Rowe walked on, the truck stopped again. Rowe crossed the street, but two of the occupants got out and again approached him. One swung a chain or board at Rowe who fell and once more dropped his packages, this time in the middle of the street. Rowe drew his knife and ran toward some nearby apartments calling for help. When the returned later with an investigating officer some of the items he had dropped were gone. The missing property included a newly purchased wallet into which he had put $43, a package of new socks, some cigarettes, and a shirt.

Rowe reported the incident to the sheriff's office. As he left the office with a deputy who was to drive him alone, the deputy saw the pickup truck drive by. The deputy pursued and stopped the truck. Rowe identified the driver, appellant's brother David, as one of his assailants. Arthur and David were placed in the patrol car to await the arrival of a Woodland police officer. Arthur had a stab wound in his shoulder and was taken to a hospital for treatment. Rowe identified Arthur at the hearing.

Both in his statement signed at the police station, and in his testimony at the hearing, Arthur denied that he and his companions had been the aggressors in the incident that led to his being stabbed. Arthur testified that he and David had gone out to buy cigarettes and had stopped near Rowe because Arthur thought he knew him. When he realized he did not, he turned to walk back to the truck and was stabbed by Rowe. David then got out of the truck and swung a hose at Rowe. The third person, Tony Ortiz, came from across the street to aid David. They stopped the truck near Rowe the second time to ask him why he had stabbed Arthur. Only David and Tony Ortiz got out of the truck. Rowe immediately yelled and ran toward the apartments. No blows were struck. Arthur denied either taking anything from Rowe or picking up any of the property that Rowe dropped. It was stipulated that David's testimony would be the same as Arthur's if he were to testify.

There was no evidence that any of the missing items of property was found in the possession of Arthur or David. Tony Ortiz had not been located by the probation officer at the time of the hearing.

Appellant does not dispute the sufficiency of the evidence to support an inference that Rowe surrendered his property out of fear when he dropped it and fled from his assailants at the time of the second encounter. Nor does he suggest that the evidence would not support an inference that on both occasions these persons intended to take Rowe's property by force and/or fear. He contends only that there is no evidence that he or his companions were the persons who actually took the missing items from the street where Rowe dropped them.

We disagree. Rowe accompanied the investigating police officers to the scenes of the two encounters between Rowe and his assailants after Arthur had been dispatched to the hospital and David had been taken to the hospital. In this short period of time, still in the early morning, several items of value among Rowe's parcels had disappeared, while those of lesser value--a pair of sunglasses and a box of foot powder--remained. In the absence of evidence that the street was heavily traveled by motorists or pedestrians at this hour, it is a logical inference that the same persons who intended to rob Rowe and who caused him to surrender his property and flee, were the cause of the disappearance of the wallet, the money it contained, and the new clothes.

2] Furthermore, even absent evidence that Arthur and/or his companions had taken any property from Rowe, the other elements of robbery being established, if the court applied the proper standard of proof the order sustaining the petition should be affirmed as modified to reflect that Arthur had committed the offense of attempted robbery. Sections 701 ⁵ and 702 ⁶ do not require that the judge or referee find that a minor charged in an original petition with a criminal offense has committed that offense. Rather, the question to be considered at the adjudicatory hearing is 'whether the minor is a person described by (Section 602).' (§ 701.) After the hearing the court must make a finding 'whether...