Gregory M., In re

• Decision Date: 14 April 1977
• Citation: 137 Cal.Rptr. 756,68 Cal.App.3d 1085
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of GREGORY M., a minor. Margaret C. GRIER, Chief Probation Officer, Plaintiff and Respondent, v. GREGORY M., Defendant and Appellant. Civ. 17121.

Page 756

137 Cal.Rptr. 756

68 Cal.App.3d 1085

In the Matter of GREGORY M., a minor.

Margaret C. GRIER, Chief Probation Officer, Plaintiff and Respondent, v. GREGORY M., Defendant and Appellant.

Civ. 17121.

Court of Appeal, Fourth District, Division 2, California.

April 14, 1977.

Frank L. Williams, Jr., Public Defender, and Jack A. Fleischli, Deputy Public Defender, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Harley D. Mayfield and Bernard A. Delaney, Jr., Deputy Attys. Gen., for plaintiff and respondent.

OPINION

McDANIEL, Associate Justice.

In a petition filed on December 29, 1975, it was alleged that Gregory Allen M., a minor, had committed burglary as well as assault and battery (Pen.Code, §§ 459, 240, 242). A jurisdictional hearing was held on March 15, 1976, at which time the burglary allegation was found to be true beyond a reasonable doubt while the assault and battery charges were dismissed on the motion of the deputy district attorney.

Gregory's request for a rehearing was denied. A dispositional hearing was held on April 20, 1976. At that time the referee ordered Gregory to be released to his parents under the usual terms and conditions of probation, to participate in the Community Work Program for 12 days, and to make restitution. Gregory appeals from the order of April 20 granting probation 'and from the whole thereof.'

FACTS

Gregory was charged with willfully and unlawfully entering a residence with the intent to commit theft therein. Because we have resolved this matter on a procedural basis, a detailed recitation of the facts is not necessary.

ISSUES ON APPEAL

Gregory raises four issues for our consideration. They are:

(1) the California Constitution and state statutes indicate that a rehearing before a superior court judge must be ordered;

(2) due process and equal protection require that a superior court judge, rather than a referee, initially preside at jurisdictional hearings;

(3) defendant was denied his constitutional rights to confrontation, due process and to produce evidence; and

(4) the judgment must be reversed because an independent review of the evidence raises a reasonable doubt as to defendant's guilt.

The Attorney General raises an additional issue: whether or not Gregory filed a timely notice of appeal and, if he did, the scope of review of that appeal. It is this latter issue which we turn to first.

1. The Notice of Appeal and Scope of Review

Plaintiff raises a two-pronged issue: whether Gregory filed a timely notice of appeal and, if so, the scope of our review.

Plaintiff is first concerned with the wording of the notice of appeal. That notice states that the minor appeals 'from the order granting probation . . . entered in the said Superior Court on the 20th day of April, 1976 and from the whole thereof.' Plaintiff asserts that our review is necessarily limited to alleged errors 'related to the specified order.' Because defendant presents no such contentions, plaintiff argues that we cannot consider Gregory's appeal. This argument is reinforced by the second prong of plaintiff's argument which is that the notice of appeal was not timely filed as to either the order resulting from the jurisdictional hearing or the order denying defendant's request for a rehearing. Citing Rule 2, subdivision (a) of the California Rules of Court, plaintiff observes that '. . . to be effective, any appeal from either of those two orders must have been filed within sixty days following their entry . . . (Gregory's) notice of appeal, not filed until June 15, 1976, is clearly untimely as to the March 15 (jurisdictional hearing) order and also untimely, by one day, as to the April 14 order (denying the rehearing request).' Plaintiff then informs us that because the filing of a notice of appeal goes to the jurisdiction of this court to hear a matter, we lack that authority in this case.

We do not agree with plaintiff's contentions. Welfare and Institutions Code section 800 ¹ provides in pertinent part as follows: 'A judgment or decree of a juvenile court or final order of a referee which becomes effective without approval of a judge of the juvenile court assuming jurisdiction of the juvenile court assuming jurisdiction described in Section 601 or 602, or on denying a motion made pursuant to Section 567 (motion to set aside or modify orders of a traffic hearing officer), 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 . . .' Assuming that the referee's order of March 15, 1976, which resulted from the jurisdictional hearing and which found defendant to be a person described by section 602, may be appealed from in the same manner as a final judgment, then any order issued subsequently may be appealed from as 'an order after judgment.' Therefore, the referee's order of April 20, 1976, in which he placed Gregory on probation, may be considered as an order after judgment and hence appealable. Because Gregory's notice of appeal from that order was filed within 60 days after the date the order was served, the appeal was timely. (Cal.Rules of Court, Rule 2, subd. (a). ²)

The next question which we must decide is the scope of our review in this appeal. That is, are we limited to reviewing errors which only relate to the April 20 dispositional order as plaintiff would have us believe, or may we also review alleged errors which may have occurred at the jurisdictional hearing and/or on the denial of Gregory's application for a rehearing.

We are of the opinion that we may review errors alleged to have occurred at the jurisdictional hearing and/or on the denial of the request for a rehearing and/or at the dispositional hearing. Rule 251 of the Rules of Court sets forth the time when a juvenile is to be informed of his right to appeal: '(i)n juvenile court proceedings in which the minor is found to be a person described by Section 600, 601, or 602 of the Welfare and Institutions Code after a contested issue of fact or law, the juvenile court judge or referee, after making his order at the conclusion of the Dispositional hearing . . . shall advise . . . the minor . . . of any right to appeal from such order . . .' (Emphasis added.) The Rules of Court do not presently provide for informing the juvenile of his appellate rights after a jurisdictional hearing or on denial of his request for a rehearing. ³ Such an omission suggests that a juvenile's complaints regarding either hearing will not be heard by an appellate court or will be considered in the appeal from the dispositional order. The first alternative is tantamount to depriving the juvenile of his due process rights. That the second alternative is the better one is supported by the following analysis.

At the dispositional hearing the juvenile court determines what should happen to the juvenile who was found, in the jurisdictional hearing, to be a ward of the court. The dispositional hearing cannot be thought of in isolation from the other proceedings in the case because the disposition imposed is directly related to what the court found in the jurisdictional hearing. A comparison may be made to adult criminal proceedings where a sentence or an order granting probation may be deemed a final judgment (Pen.Code, § 1237) for the purpose of appeal and in which the defendant 'May challenge on appeal all matters necessarily adjudicated in the proceedings culminating in the order granting probation as to which he has preserved the right to contest.' (People v. Flores, 12 Cal.3d 85, 94, 115 Cal.Rptr. 225, 230, 524 P.2d 353, 358; see also Pen.Code, § 1259.)

We conclude that we may consider errors alleged to have occurred at the jurisdictional or dispositional hearings, or on the denial of the request for review. ⁴ We now turn to the issues presented by Gregory.

THE REQUEST FOR A REHEARING

Gregory asserts that his request for a rehearing pursuant to section 252 ⁵ was erroneously denied because the transcript reviewed by the judge in ruling on the request did not include defense counsel's argument. In support of his position he cites In re Damon C., 16 Cal.3d 493, 128 Cal.Rptr. 172, 546 P.2d 676, in which the defendant also claimed that the trial court, in ruling on his request for a rehearing, was insufficiently informed to reach an independent judgment. Damon had been found to be within the jurisdiction of the juvenile court for offenses unrelated to the proceedings then under consideration (§ 602). While on a one-day leave from the custody imposed pursuant to the earlier proceedings, he allegedly forced his way into a woman's car and ordered her to drive to a park where he raped her. A supplemental petition was filed in the juvenile court alleging that Damon had committed the additional offenses of kidnap and rape. He denied the allegations and a jurisdictional hearing followed before a referee. The referee found the allegations to be true and that Damon was subject to the jurisdiction of the court pursuant to section 602.

Damon's attorney filed a request for a rehearing but failed to state the reasons for the request as is required by section 252. Nevertheless, the judge ordered the preparation of the proceedings before the referee. All of the proceedings were transcribed with the exception of the arguments of counsel. The judge considered that part of the transcript which was available for his consideration, adopted the referee's findings and denied the request for a rehearing.

In discussing the issue of whether or not the trial judge had sufficient information before him to justify his adopting the referee's findings as his own, the Supreme Court determined that he did not. "If the proceedings Have been taken down by a reporter but the judge does not in fact read the transcripts and act on the application within the required period, the proceedings should be treated as a practical matter...