F., In re

• Decision Date: 12 March 1969
• Citation: 270 Cal.App.2d 603,75 Cal.Rptr. 887
• Court: California Court of Appeals Court of Appeals
• Parties: In re Steven F., a Minor. Robert E. NINO, Chief Probation Officer of Santa Clara County, Plaintiff and Respondent, v. Steven F., Defendant and Appellant. Civ. 25443.

Page 887

75 Cal.Rptr. 887

270 Cal.App.2d 603

In re Steven F., a Minor.

Robert E. NINO, Chief Probation Officer of Santa Clara County, Plaintiff and Respondent, v. Steven F., Defendant and Appellant.

Civ. 25443.

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

March 12, 1969.

Hearing Denied May 8, 1969.

Caputo, Liccardo, Burriesci & Hogan, by Frank C. Burriesci, San Jose, for appellant.

Thomas C. Lynch, Atty. Gen. of the State of California, John T. Murphy, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Steven F., a minor, appeals from an order of the juvenile court adjudging him to be a ward of that court and from an 'order of probation' thereafter entered. (See Welf. & Inst.Code, § 800, relating to right of appeal.)

The principal contentions are that the court erred in (1) applying the 'preponderance of evidence' test prescribed by Welfare and Institutions Code section 701 rather than that of 'proof beyond a reasonable doubt' and (2) considering, before the jurisdictional hearing, a probation officer's report containing material both inadmissible and prejudicial on the issue of jurisdiction.

Both of these questions are set at rest by appellate court decisions filed since the perfection of the instant appeal.

In re Dennis, M., 70 A.C. 460, 75 Cal.Rptr. 1, 450 P.2d 296, squarely holds that the 'preponderance of evidence' test is properly applied in proceedings under section 701. The 'reasonable doubt' concept, which appellant insists is required under the standards announced by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, was rejected. We consider In re Dennis M., supra, conclusive on the instant issue. (See also In re J.F., 268 A.C.A. 819, 830, 831, 74 Cal.Rptr. 464.)

We now discuss the second of Steven's contentions. The juvenile court proceedings were based on a petition alleging that appellant had committed an assault with a deadly weapon, a violation of Penal Code section 245. The offense was denied by Steven. At the conclusion of the contested jurisdictional hearing, immediately after the court had found appellant to have committed the charged offense and, consequently, within its jurisdiction, it stated, 'Now, in order to assist the court in making a disposition of the case, the probation officer has prepared for the court a special report called a social study. This study has been submitted to the court and is now admitted into evidence. The court has read and reviewed it thoroughly.' The probation report contains much hearsay prejudicial matter, including an unfavorable social study, all unrelated to the charged offense, and concludes with recommendations 'That the allegations of the Petition * * * be found to be true as alleged,' and 'That the said minor be found to come within the provisions and description of Section 602 of ...