Edgar M., In re

• Decision Date: 14 July 1975
• Docket Number: Cr. 18621
• Citation: 14 Cal.3d 727,122 Cal.Rptr. 574
• Court: California Supreme Court
• Parties: Previously published at 45 Cal.App.3d 566, 46 Cal.App.3d 461 45 Cal.App.3d 566, 46 Cal.App.3d 461, 14 Cal.3d 727, 537 P.2d [PG406 In re EDGAR M., a person coming under the juvenile court law. Kenneth E. KIRKPATRICK, as Chief Probation Officer, etc., Plaintiff and Respondent, v. EDGAR M., Defendant and Appellant.

Page 574

122 Cal.Rptr. 574

Previously published at 45 Cal.App.3d 566, 46 Cal.App.3d 461

45 Cal.App.3d 566, 46 Cal.App.3d 461, 14 Cal.3d 727, 537 P.2d [PG406

In re EDGAR M., a person coming under the juvenile court law.

Kenneth E. KIRKPATRICK, as Chief Probation Officer, etc., Plaintiff and Respondent, v. EDGAR M., Defendant and Appellant.

Cr. 18621.

Supreme Court of California,

In Bank.

July 14, 1975.

As Modified on Denied of Rehearing Aug. 13, 1975.

Richard S. Buckley, Public Defender, John J. Gibbons, Lawrence E. Biegel and Laurance S. Smith, Deputy Public Defenders, and David A. Binder, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Russell Iungerich, Deputy Attys. Gen., for plaintiff and respondent.

John H. Larson, County Counsel, and John P. Farrell, Deputy County Counsel, Los Angeles, amici curiae for plaintiff and respondent.

WRIGHT, Chief Justice.

In this case we examine the limitation on the powers of juvenile court referees imposed by the provision in article VI, section 22 of the Constitution that trial courts may be authorized to appoint 'officers such as commissioners to perform subordinate judicial duties.' A referee, acting without the consent of the minor or his counsel, held adjudication and disposition hearings, found that Edgar M., who was under the age of 18 years at the time of the alleged commission of the offense, had committed a criminal act, and made orders purporting to declare the minor a ward of the juvenile court under section 602 of the Welfare and Institutions Code ¹ and to remove him from his home. The minor filed a timely application under section 558 for a de novo rehearing before a judge (§ 560). A juvenile court judge purported to deny the application but this action did not occur until after expiration of the time at which section 558 declares that if the application has not been granted it 'shall be deemed denied.'

We conclude that actual review of and action upon the application by the judge Within the time prescribed was necessary to (1) prevent the referee's acts from exceeding the constitutional limitations restricting such acts to subordinate judicial duties and (2) effectuate the legislative intent to limit the period during which an application for rehearing can remain pending and unresolved. Since the Constitution precludes the operation of section 558's provision for automatic denial of an application not acted upon before the deadline, we are of the opinion that the statutory purpose can best be effectuated by treating such application in accordance with the section's provisions in cases in which the proceedings were not taken down by an official reporter. In those cases the application for rehearing is 'granted as of right,' and we conclude by analogy that the expiration of the time for action on the minor's application should cause it to be automatically granted even though the proceedings in his case were in fact taken down by a reporter.

Because the minor was entitled to a rehearing, the orders made by the referee lacked the finality necessary for appeal under section 800. However, the subsequent order of the court denying a rehearing Purported to be directed against a final judgment and accordingly was appealable as 'an order after judgment' (§ 800). Treating the appeal as taken from this order, we reverse the purported denial of Edgar M.'s application for rehearing on the ground that he was entitled to be reheard as a matter of right.

On May 1, 1973, a juvenile court petition was filed charging Edgar M. with having committed an assault with a deadly weapon (Pen. Code, § 245, subd. (a)) on April 28, 1973, stating that he was 17 years old and had been taken by police to juvenile hall on April 30th, and praying that he be adjudged a ward of the court under section 602. A detention hearing was held the next day, May 2d, before a juvenile court referee, who set an adjudication hearing before a different referee for May 16th and ordered that meanwhile the minor be detained in juvenile hall. The latter referee, who made the orders now before us, released defendant to the care of his family on May 16th and did not return him to custody until the conclusion of the disposition hearing on July 27th.

At the contested adjudication hearing, held May 31st, the referee heard evidence on the allegations of the petition and found that they were true and that Edgar M. was therefore within the court's jurisdiction under section 602. After continuances the referee held the disposition hearing on July 27th at the conclusion of which he adjudged Edgar M. to be a ward of the court under section 602, ordered him removed from his home and put into the county camp placement program, and further ordered that he be detained at juvenile hall pending execution of the dispositional order.

On August 3d the document embodying the referee's orders of July 27th was countersigned as 'approved' by a juvenile court judge. The apparent purpose of this approval was to supply the prerequisite to the effectiveness of the referee's order for county camp placement imposed by section 555. At the time of this approval, the reporters' transcripts of the hearings of May 31st and July 27th were not yet available (see fn. 3, post), and there is no indication in the record that the judge held any hearing or had any information about the case beyond the contents of the superior court file.

An application for a de novo rehearing of the entire adjudication and disposition proceedings before a juvenile court judge (S 560 )² was timely filed on August 3d. This application was authorized by section 558, which further provides: 'If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of such proceedings, grant or deny such application.' A judge denied the application on December 14, 1973. However, the order of denial came three months too late to have any effect under the statutory scheme because the period within which section 558 declares that the application must be granted or else be 'deemed denied' had already expired. ³ The normal length of such period is 20 days after the court receives the application, and the court can extend the period up to 45 days after such receipt. ⁴ No indication of any extension appears in the record, but even assuming maximum exercise of the court's extension power, the automatic denial prescribed by section 558 occurred no later than September 17, 1973.

As noted at the outset, we have concluded that it would be unconstitutional to give effect to a referee's orders declaring a minor to be a ward of the juvenile court and committing him to county custody if his application for rehearing before a judge had been denied by operation of law rather than by affirmative judicial act. A referee is constitutionally limited to the performance of 'subordinate judicial duties.' (Cal.Const., art. VI, § 22; Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 361--362, 110 Cal.Rptr. 353, 515 P.2d 297.) Although full judicial powers can be conferred on an otherwise qualified referee by 'stipulation of the parties litigant' (Cal.Const., art. VI, § 21; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 5--6, 118 Cal.Rptr. 21, 529 P.2d 53), there is here not only an absence of any such stipulation but an affirmative objection by the minor to the hearing of the case by any referee of the juvenile court. ⁵

Plaintiff argues that under the rationale of Rooney v. Vermont Investment Corp., supra, 10 Cal.3d 351, 361--365, 110 Cal.Rptr. 353, 515 P.2d 297, the subordinate judicial duties which a referee is constitutionally permitted to perform include at least those powers given referees by statute in 1966, when article VI was adopted in its present form. Since the Juvenile Court Law of 1961 and its amendments up to 1966 included the substance of the statutory scheme under which the present referee acted (see §§ 550--560), his actions would necessarily be valid under this theory as subordinate judicial duties. But the theory is unsound. In Rooney we were dealing with the powers of court commissioners, not the powers of juvenile court referees. We pointed out that the history of the drafting and adoption of section 22 of article VI indicates that the section was intended (1) to replace a prior provision that covered only superior court commissioners (former art. VI, § 14) and (2) to retain constitutional authorization for the long standing legislation (Code Civ.Proc., §§ 259, 259a) under which such commissioners had exercised their powers.

The applicability of section 22 to juvenile court referees presents a different picture. The section's phrase 'officers such as commissioners' for the first time extended Express constitutional sanction for the delegation by trial courts of subordinate judicial duties to persons holding positions Other than court commissioner, including that of juvenile court referee. ⁶ The prior constitutional authorization for such delegation had arisen from the implicit inclusion in permissible judicial powers under former article VI of the power of appointment by trial courts of masters and referees to assist in the fact finding process. (See Estate of Johnston (1970) 12 Cal.App.3d 855, 861, 91 Cal.Rptr. 116; 1 Witkin, Cal.Procedure (2d ed. 1970) Courts, § 228.) It appears from the history of section 22 (see Rooney v. Vermont Investment Corp., supra, 10 Cal.3d at pp. 361--365, 110 Cal.Rptr. 353, 515 P.2d 297) that the drafters intended to include in 'subordinate judicial duties' those functions constitutionally delegable to masters and referees under the prior version of article VI. On the other hand, there is no indication that the framers of section 22 focused their attention on the particular statutes which governed the activities...