Gladys R., In re

• Citation: 464 P.2d 127,1 Cal.3d 855,83 Cal.Rptr. 671
• Decision Date: 30 January 1970
• Docket Number: S.F. 22654
• Court: United States State Supreme Court (California)
• Parties: , 464 P.2d 127 In re Gladys R., a Person Coming Under the Juvenile Court Law. Robert E. NINO, as Chief Probation Officer, etc., Plaintiff and Respondent, v. Gladys R., a Minor, etc., Defendant and Appellant.

Page 671

83 Cal.Rptr. 671

1 Cal.3d 855, 464 P.2d 127

In re Gladys R., a Person Coming Under the Juvenile Court Law.

Robert E. NINO, as Chief Probation Officer, etc., Plaintiff and Respondent, v. Gladys R., a Minor, etc., Defendant and Appellant.

S.F. 22654.

Supreme Court of California,

In Bank.

Jan. 30, 1970.

Sheldon Portmen, Public Defender, Carl Lee Lambert and Thomas C. Hastings, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, and Charles R. B. Kirk, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Gladys R., a 12-year-old girl, appeals from a judgment declaring her a ward of the court and committing her to the custody of the probation officer for private institutional placement. (Welf. & Inst.Code, § 800.) For the reasons we shall point out, the court committed reversible error in reviewing the social study report before the jurisdictional hearing (Welf. & Inst.Code, §§ 701, 702, 706; In re Steven F. (1969) 270 A.C.A. 643, 75 Cal.Rptr. 887; In re Corey (1968) 266 Cal.App.2d 295, 296, 73 Cal.Rptr. 115). We also conclude that the juvenile court should consider whether a child appreciates the wrongfulness of her conduct in determining whether the child should be declared a ward under section 602 ¹ of the Welfare and Institutions Code (Pen.Code, § 26). Finally, we hold that the juvenile court may declare a juvenile a ward under section 602 for perpetration of an act proscribed by Penal Code section 647a with an abnormal sexual interest or intent. (People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 901, 246 P.2d 173.)

The Santa Clara County Superior Court, sitting as a juvenile court, found that the appellant's conduct brought her within the terms of Welfare and Institutions Code section 602 because she committed an act proscribed by Penal Code section 647a (annoying or molesting a child under 18). Immediately after accepting factual allegations that the child committed acts which could invoke the jurisdiction of the court under section 602, the juvenile court proceeded: 'Now, we come to the question of what action should be taken, and in this connection, the Court has been supplied with a special report called a social study, which is ordered admitted in evidence at this time And which has been thoroughly reviewed by the Court. The social study tells the Court whether the child has a prior record, where the child is now, what the child told the probation officer when interviewed, what the parents told the probation officer when interviewed, the child's school report, welfare report, juvenile hall report, psychological, psychiatric and medical reports, personal history and family backgrounds, and last of all the probation officer evaluates that information and data and makes a recommendation to the Court.' (Italics added.)

The quoted comments clearly indicate that the court examined the social study report prior to its determination of whether appellant had committed an act that would warrant the court's declaration of a wardship. The report contains matter not relevant to the jurisdiction of the court and therefore inadmissible at the hearing on that issue. (Welf. & Inst.Code, § 701.)

1. The court committed reversible error in reviewing the social study report before the determination of the issue of jurisdiction.

The history of Welfare and Institutions Code sections 701, ² 702, ³ and 706 ⁴ clearly indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring a wardship and Thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. ⁵ This procedure affords a necessary protection against the premature resolution of the jurisdictional issue on the basis of legally incompetent material in the social report.

A prohibition of review of the social report before a determination of the jurisdictional issue does not hinder the creation of a court atmosphere conducive to a just consideration of the juvenile's case. ⁶ We recognize that the juvenile court in this case acted entirely within its view of the best interest of the child. It undoubtedly believed that its perusal of the report prior to a decision on the jurisdictional issue would provide helpful background information. ⁷ We hold, however, that Welfare and Institutions Code sections 701, 702, and 706 prohibit the judge from reading the social report before the jurisdictional hearing. (In re Corey, supra, 266 Cal.App.2d 295, 296, 72 Cal.Rptr. 115.)

A recent decision of the Court of Appeal correctly holds that the construction given in Corey to the new statutory scheme of Welfare and Institutions Code sections 701, 702, and 706 must apply to all juvenile proceedings, including the instant case, initiated since the 1961 amendments. (In re Steven F., supra, 270 A.C.A. 643, 75 Cal.Rptr. 887.) ⁸ Corey did not involve a new constitutional rule that overturned prior decisions (cf., e.g., Stovall v. Denno (1967) 388 U.S. 293, 296, 87 S.Ct. 1967, 18 L.Ed.2d 1199), but rather interpreted statutory provisions whose interpretation had previously remained unsettled. ⁹ Furthermore, the failure of the minor's attorney to object at the juvenile court hearing to the court's premature use of the social study does not bar the consideration of this issue on appeal; we cannot expect an attorney to anticipate that an appellate court will later interpret the controlling sections in a manner contrary to the apparently prevalent contemporaneous interpretation.

We must hold that the court's review of the social study prior to the jurisdictional hearing constituted prejudicial error. Both In re Corey, supra, 266 Cal.App.2d 295, 299, 72 Cal.Rptr. 115, 118, and In re Steven F., supra, 270 A.C.A. 643, 645, 75 Cal.Rptr. 887, state: 'Where the commission of a crime is alleged as the jurisdictional fact and the allegation is disputed, the court's error in (reviewing) the social study before the jurisdictional hearing goes so directly to the fairness of the hearing that the resulting adjudication is not saved by article VI, section 13, of the California Constitution.' The court's review of the social report in advance not the jurisdictional hearing would perhaps not require reversal in a case in which the contents of the social study entirely favored the minor and his home environment. But in the present case the social study showed some inquiry into appellant's intent under section 647a and some negative indications about appellant's home environment. Hence, the court's review of the social study prior to the jurisdictional hearing, at which the jurisdictional facts were far from conclusive, constituted prejudicial error.

We turn now to several contentions by appellant that we consider in order to give guidance to the juvenile court upon any further proceedings.

2. A child under the age of 14 must appreciate the wrongfulness of her conduct in order to become a ward of the juvenile court under section 602.

As we have stated, section 602 provides that any minor who violates 'any law of this State,' that defines crime, comes under the jurisdiction of the juvenile court. We shall point out that in order to become a ward of the court under that section, clear proof must show that a child under the age of 14 years at the time of committing the act appreciated its wrongfulness. This conclusion follows from the statutory postulate that the jurisdiction of the court must rest upon a violation of a law that defines crime and from the further statutory requirement of Penal Code section 26, subdivision One, ¹⁰ that, by definition, a child under the age of 14 years does not commit a crime in the absence of clear proof that he 'knew its wrongfulness.'

A ruling that a child could be committed to the juvenile court under section 602, ¹¹ in the absence of such clear proof, would compel the disregard of section 26 or the assumption of its repeal. Indeed, the Welfare and Institutions Code provides that the juvenile courts exercise exclusive jurisdiction over all minors under the age of 16; these children cannot otherwise be tried as criminal offenders. (See Welf. & Inst.Code, § 707; 40 Ops.Cal.Atty.Gen. 83 (1962).) Hence, if section 26 pertains at all to a definition of criminal conduct it must apply to proceedings under section 602 which, in turn, covers '(a)ny person under the age of 21 years who violates any law of this State * * *.' ¹²

We cannot presume the repeal of section 26 by implication; the decisions clearly establish the contrary presumption. (Warne v. Harkness (1963) 60 Cal.2d 579, 588, 35 Cal.Rptr. 601, 387 P.2d 377.) We have said that 'To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.' (California Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292, 140 P.2d 657, 660, 147 A.L.R. 1028; see Morris v. Williams (1967) 67 Cal.2d 733, 752, 63 Cal.Rptr. 689, 433 P.2d 697.)

In enacting section 602 of the Welfare and Institutions Code, the Legislature must have considered the pre-existing section 26; ¹³ that section constituted practically the only special provision for children in the entire legal system. Section 26 did not lie at the periphery of the statutory scheme, bearing only tangentially upon juvenile offenders. Necessarily confronted with the section, the Legislature must have intended in its later enactment of section 602 a definition of crime consistent with the older section. If the Legislature had intended to repeal section 26 or to sever it from section 602, it could have done so expressly. Yet the legislative history of the...