F., In re

• Decision Date: 13 January 1969
• Docket Number: Cr. 13349
• Citation: 268 Cal.App.2d 761,74 Cal.Rptr. 464
• Court: California Court of Appeals Court of Appeals
• Parties: In re J.F., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. J.F., Defendant and Appellant.

Page 464

74 Cal.Rptr. 464

268 Cal.App.2d 761

In re J.F., a Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. J.F., Defendant and Appellant.

Cr. 13349.

Court of Appeal, Second District, Division 5, California.

Jan. 13, 1969.

As Modified Jan. 15, 1969.

Donald M. Wessling, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Andrea Sheridan Ordin, Deputy Atty. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

When a minor who is subject to the control of the Youth Authority nears his twenty-first birthday, the time he would normally be discharged (Welf. & Inst.Code, § 1769), the Youth Authority Board may apply to the committing court for an order directing that he remain subject to its control after he has reached the age of majority. (Welf. & Inst.Code, § 1800). If the court finds 'that discharge of the person would be physically dangerous to the public because of his mental or physical deficiency, disorder, or abnormality,' it must make an order that the Youth Authority 'continue the treatment.' (Welf. & Inst.Code, § 1801.) Thereafter the Youth Authority may seek renewal of the commitment every two years in case the original commitment was by the juvenile court, and every five years if it resulted from a conviction in criminal proceedings. (Welf. & Inst.Code, § 1802.) It may, of course, discharge the 'person' at any time if 'it is satisfied that such discharge is consistent with the protection of the public.' (Welf. & Inst.Code, § 1766.)

This is an appeal from an order of commitment made under the provisions of section 1802. ¹

Because of the nature of the contentions made by appellant, we must summarize his various contacts with the processes of the Juvenile Court Law.

On May 19, 1960, an order was made making F. a ward of the juvenile court. He was committed to the care of the probation officer to be returned to his home on probation. On September 29, 1960, after the filing of two additional petitions, physical custody was taken from the parents and F. was ordered placed in a forestry camp. On December 27, 1960, after a hearing at which F. was not represented by counsel, he was committed to the Youth Authority. It appeared at that time that he had been unable to adjust to the probation program. This was what we shall refer to as the 'first commitment.' Sometime thereafter F. was paroled (Welf. & Inst.Code, § 1766), but while on parole he again got into trouble. On February 19, 1963, there was held a so-called 'detention hearing.' (Welf. & Inst.Code, § 632.) The court explained to F., who was then seventeen years old, that the purpose of the hearing was to acquaint him with the charges contained in a petition that had been filed by the probation officer, to inform him and his parents of their legal rights and to determine where he would spend his time between then and the date for the hearing on the petition. The court continued: 'Under the law, James, you and your parents have the right to be represented by counsel at all stages of these proceedings, and to have court process issue in your behalf, such as subpoenas for witnesses. In addition, you have the right to remain silent, but if you care to, you may answer questions which the Court is going to ask you this morning. * * *' F. said he understood, as did his father, who was present.

F. was detained pending the hearing, which took place before a referee on March 7, 1963. The referee recommended that F. be readjudged a ward of the court and that he be returned to the Youth Authority for further disposition. The order was approved by the court on March 11. This was what we shall call the 'second commitment.' The record shows that at the hearing of March 7, F. was not represented by counsel. The parties have, however, been unable to obtain a reporter's transcript which would show whether or not he effectively waived the right to counsel.

On October 18, 1966, the Youth Authority Board petitioner the superior court that F. be returned to it for disposition under sections 1800 et seq. ² After an extensive hearing, at which F. was represented by private counsel, the court made a finding that it was 'of the opinion that the discharge of (F.) would be physically dangerous to the public because of his mental deficiency, disorder and abnormality * * *' The petition was granted and this appeal followed.

The sufficiency of the evidence is not attacked. We are, however, faced with the following contentions:

1. The present appeal is a proper vehicle for a challenge of the constitutional validity of the first and second commitments, since the validity of the section 1800 proceedings depends on the legality of these prior commitments.

2. The two prior commitments were constitutionally invalid because on neither occasion was F. represented by counsel, nor does the record disclose a constitutionally adequate waiver. Implicit in this point is a major premise that the right to counsel in juvenile proceedings, recognized in In re Gault, 387 U.S. 1, 34--42, 87 S.Ct. 1428, 18 L.Ed.2d 527, must be retroactively applied.

3. Regardless of the validity of the first and second commitments, the order under review must be reversed because:

(a) F. was denied due process in that he was deprived of his liberty without his 'guilt' having been established beyond a reasonable doubt;

(b) it is a denial of the equal protection of the laws to single out minors who have been committed to the Youth Authority as persons whose 'guilt' need not be established beyond a reasonable doubt (c) the code sections under which F. was committed are unconstitutionally vague; and

(d) F. was denied due process in that the trial court failed to make findings 'or render an opinion from which any meaningful appeal can be taken.'

We first deal with the attack on the prior commitments. We agree that the section 1800 proceedings derive their legitimacy from the validity of the prior commitment. (In re Bevill, 68 Cal.2d 854, 858, 69 Cal.Rptr. 599, 442 P.2d 679.) We also assume, for the sake of argument, that the right to counsel, as vouchsafed by Gault, is fully retroactive. (Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41, In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.) ³ This does not settle the question whether appellant may challenge the validity of the prior commitments on this appeal.

We have noted that at the section 1800 hearing, F. was represented by counsel. At no time did counsel make an issue of the constitutional validity of the prior commitments.

In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, ⁴ established that in this state habeas corpus is a proper vehicle with which to challenge the constitutional validity of prior felony convictions, long since final, where there is a claim that the petitioner had not been 'advised of his right to, nor was provided with, nor expressly waived, the services of counsel * * *' (64 Cal.2d at 5, 48 Cal.Rptr. at 690, 409 P.2d at 914.) Woods also recognized that it was constitutionally impermissible to presume waiver from a silent record. (64 Cal.2d at 7, 48 Cal.Rptr. 689, 409 P.2d 913.)

For a short time after the Woods decision, it became arguable that even on a direct appeal, where no issue concerning the validity of a prior conviction had been made at the trial level, findings that such a prior conviction was true could be stricken on appeal. This was the clear implication, if not the holding, of People v. Ebner, 64 Cal.2d 297, 49 Cal.Rptr. 690, 411 P.2d 578. There the defendant admitted three prior convictions and was found to be a habitual criminal under section 644, subdivision (a) of the Penal Code. He appealed. After affirming Ebner's conviction in the case on appeal, the court held: 'Defendant finally contends that the trial court in determining whether defendant was an habitual criminal could not properly consider his Arizona conviction because in the proceedings leading to that conviction defendant was deprived of his constitutional right to counsel. (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733.)

'We have held that a prior felony conviction cannot support an adjudication of habitual criminality under Penal Code section 644 unless at the prior proceeding the defendant was represented by counsel or intelligently and understandingly waived that right. (In re Tucker (1966) 64 Cal.2d 15, 49 Cal.Rptr. 697, 409 P.2d 921; In re Luce (1966) 64 Cal.2d 11, 48 Cal.Rptr. 694 409 P.2d 918; In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.) We cannot determine on the basis of the record before us whether defendant's Arizona conviction of burglary can support an adjudication of habitual criminality. Following the procedure outlined in Tucker, Luce, and Woods, we must return this cause to the trial court for hearing and findings on the factual issue whether defendant suffered a deprivation of his constitutional right to counsel in the Arizona proceedings.' (64 Cal.2d at 304--305, 49 Cal.Rptr. at 694, 411 P.2d at 582.)

Although Ebner apparently stood for the proposition that on an appeal it is the burden of the People of prove the constitutional validity of a prior conviction, this did not remain the law. In People v. Merriam, 66 Cal.2d 390, 58 Cal.Rptr. 1, 426 P.2d 161, where the matter was thoroughly discussed, it was held that the validity of prior convictions was not reviewable where they are 'sought to be challenged for the first time on direct appeal from the judgment wherein such prior was found to be true * * *' ⁵ (66 Cal.2d at 396, 58 Cal.Rptr. at 5, 426 P.2d at 165.) The reason for the Merriam rule is obvious: if the validity of a prior conviction is challenged in the trial court, the People have an opportunity to make the silent record speak. ⁶ The same is true where the...