Corey, In re

• Decision Date: 19 November 1964
• Citation: 230 Cal.App.2d 813,41 Cal.Rptr. 379
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of Sylvester COREY, a person under the age of 21 years. Lorenzo S. BUCKLEY, Chief Probation Officer of Alameda County, Plaintiff and Respondent, v. Sylvester COREY, Defendant and Appellant. Civ. 21248, 21906.

Page 379

41 Cal.Rptr. 379

230 Cal.App.2d 813

In the Matter of Sylvester COREY, a person under the age of 21 years Lorenzo S. BUCKLEY, Chief Probation Officer of Alameda County, Plaintiff and Respondent, v. Sylvester COREY, Defendant and Appellant.

Civ. 21248, 21906.

District Court of Appeal, First District, Division 1, California.

Nov. 19, 1964.

Garcia, Bruzzone & Dunn, G. M. Dunn, San Leandro, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

These are two consolidated appeals arising out of the same case and are taken by Sylvester Corey (hereinafter referred to as appellant), who was adjudged to be a ward of the juvenile court. The first appeal (No. 21248) is taken from a judgment of wardship under Welfare and Institutions Code section 602 ¹ and a commitment to the California Youth Authority; ² the second (No. 21906) from an order denying a motion to set aside the judgment and commitment. The People (hereinafter referred to as respondent) contend that this second appeal should be dismissed on the ground that the order therein appealed from is not appealable. Before proceeding to discuss this question we set out the procedural background of these appeals.

A verified petition, filed on December 27, 1962 by the Probation Officer of Alameda County, alleged that appellant, age 17, was a person described in Welfare and Institutions Code section 602, ³ in that on November 10, 1962 he committed robbery while armed with a lug wrench. (Pen.Code, § 211a.) Following a hearing on the petition, the court found that appellant had committed the crime of robbery in violation of Penal Code section 211 ⁴ and therefore declared him a ward of the court. Appellant filed a notice of appeal on January 30, 1963. Thereafter, on November 6, 1963, appellant filed a petition to set aside the judgment and commitment. ⁵ The petition alleged that one Leland Travers was responsible for the robbery which resulted in appellant being declared a ward of the court and his commitment to the Youth Authority. The court issued an order for a hearing pursuant to section 778. ⁶ The hearing was held on November 20 and 26, 1963. On the latter date, the court denied the motion to set aside the judgment and commitment. On November 27, 1963 the first appeal was scheduled for oral argument before this court. At oral argument counsel for appellant requested this court to consider new alibi testimony which had been adduced at the hearing to set aside the judgment of wardship. Since appellant had not as yet appealed from the denial of the motion to set aside the judgment we were unable to grant the request. However, the hearing on the first appeal was continued until such time as the second appeal could be heard. Appellant thereafter filed a notice of appeal from the order denying this motion on December 11, 1963. When the two appeals came on for oral argument, respondent, for the first time, raised the question whether the order denying the motion to set aside the judgment was an appealable order.

Appealability of the Order Denying the Motion to Vacate

It is the general rule that an order is not appealable unless declared to be so by the Constitution or by statute. (People v. Keener, 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587; People v. Valenti, 49 Cal.2d 199, 204, et seq., 316 p.2d 633.) Section 800, which is part of the Juvenile Court Law, provides in pertinent part that '[a] judgment or decree of a juvenile court * * * assuming jurisdiction and declaring any person to be a person described in Section 600, 601, or 602, * * * 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; * * *.' (Emphasis added.) The pertinent language of section 800 which we are called upon to construe is that which we have italicized. Respondent contends that since juvenile court proceedings are civil in nature (§ 503) the italicized language has reference to the applicable provisions concerning appeals in civil cases. Accordingly, respondent urges that we must read section 800 in conjunction with Code of Civil Procedure section 963 which provides for appeals in civil cases. It is respondent's position that the italicized portion of section 800 has reference to the language in subdivision 2 of section 963 of the Code of Civil Procedure which provides that an appeal may be taken 'from any special order made after final judgment * * *.' Since the judgment is not final in the present case, because it is before us on appeal, respondent argues that no appeal can be taken from the order denying the motion to vacate.

Respondent cites In re Harrison, 215 Cal.App.2d 723, 30 Cal.Rptr. 473. This case is not in point because it involves the appealability of an order dismissing a petition to have a minor declared a ward of the juvenile court. Respondent also cites People v. Olds, 140 Cal.App.2d 156, 294 P.2d 1034, wherein it was held that since sexual psychopathy proceedings under the Welfare and Institutions Code are civil in nature the right to appeal is governed by section 963 of the Code of Civil Procedure, an appeal from a verdict must be dismissed because a verdict is not one of the orders specified in said section from which an appeal may be taken. We are of the opinion that the Olds case is not applicable because the circumstances there are distinguishable from those in the present case. The Sexual Psychopathy Law (§ 5500 et seq.) contains no specific provision for appeal and hence section 963 of the Code of Civil Procedure has been held to be applicable to it. (See Gross v. Superior Court, 42 Cal.2d 816, 820-821, 270 P.2d 1025.) The Juvenile Court Law, on the other hand, contains a specific provision for appeals, namely section 800. Accordingly, under the rule that a special statute dealing expressly with a particular subject controls and takes priority over a general statute (Brill v. County of Los Angeles, 16 Cal.2d 726, 732, 108 P.2d 443; Mitchell v. County Sanitation Dist., 164 Cal.App.2d 133, 141, 330 P.2d 411; Estate of Compton, 202 Cal.App.2d 94, 97, 20 Cal.Rptr. 589), section 800, and not Code of Civil Procedure section 963, is the one which must be looked to with respect to appeals under the Juvenile Court Law. This conclusion was reached in Moch v. Superior Court, 39 Cal.App. 471, 179 P. 440, wherein the appellate court held that the right of appeal under the Juvenile Court Law is restricted to appeals from the judgments and orders enumerated in section 23 of that act. Section 23 of the Juvenile Court Law (Stats.1915, ch. 631, p. 1248), is the original statute upon which section 800 is based and its language is substantially the same. ⁷ (See Legislative History, § 800.)

The crux of our inquiry, then, is the meaning and interpretation of the language of section 800 which reads as follows: '[A]ny subsequent order * * * as from an order after judgment; * * *' It should be noted that this language reads differently from that in Code of Civil Procedure section 963, subdivision 2, which provides that an appeal may be taken 'from any special order made after final judgment * * *.' (Emphasis added.) The words we have italicized are not found in section 800. In the case of In re Hartman, 93 Cal.App.2d 801, 210 P.2d 53, an appeal was taken from the orders adjudging the minor to be a ward, committing him to the probation officer and placing him on probation. All three orders were held to be appealable. The last two mentioned were recognized to be appealable orders after judgment under section 580, which, in 1961, became section 800 without substantial change. We are satisfied that the crucial language in section 800 is contained in the words 'subsequent order' and that it was the legislative intent to make appealable any order of a juvenile court after judgment which affects the substantial rights of the juvenile irrespective of whether the order declaring a person to be a ward of the juvenile court has become final (See In re DeBaca, 197 Cal.App.2d 672, 674, 17 Cal.Rptr. 554.) In the present case, the second appeal arises out of proceedings brought pursuant to section 778 which authorizes a proceeding for the purpose of changing modifying or setting aside a previous order of the court making a person a ward or dependent child of the juvenile court where there has been a change of circumstances or new evidence. The purpose of such hearing is to determine whether such circumstances or evidence makes some new or changed disposition desirable or necessary for the continued welfare of the child. Such a hearing and any order made pursuant thereto to affect the substantial rights of the juvenile. There can be little doubt that an order made after a hearing pursuant to section 778 is a proceeding after the original judgment and commitment substantially affecting the rights of the minor and that it is an 'subsequent order' under section 800. (See In re DeBaca, supra, p. 674, 17 Cal.Rptr. 554; In re Syson, 184 Cal.App.2d 111, 114, 7 Cal.Rptr. 298.)

The First Appeal

A. The Sufficiency of the Evidence:

Appellant contends that respondent has not met its burden of establishing its case by a preponderance of the evidence pursuant to section 701. ⁸ This contention is based upon the assertion that the evidence was insufficient to identify him as the perpetrator of the robbery and that the uncorroborated testimony of Van Jenks (hereinafter called Jenks) as to identity was mere opinion and therefore so inherently weak from an evidentiary standpoint as to leave it without convincing force. Opposed to this evidence, argues appellant, is the alibi evidence adduced by him which, when weighed against the evidence of identification, has so much more convincing force as to impel the conclusion, as a matter of law, that respondent has not proven its case by a preponderance of the evidence....