E., In re

• Decision Date: 26 September 1985
• Docket Number: No. FOO5265,FOO5265
• Court: California Court of Appeals Court of Appeals
• Parties: In re E.L.B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. E.L.B., Defendant and Appellant.

Page 429

218 Cal.Rptr. 429

172 Cal.App.3d 780

In re E.L.B., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. E.L.B., Defendant and Appellant.

No. FOO5265.

Court of Appeal, Fifth District, California.

Sept. 26, 1985.

Certified for Partial Publication ^*

Review Denied Dec. 19, 1985.

[172 Cal.App.3d 782] Judith K. Kent, Davis, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert D. Marshall, Supervising Deputy Atty. Gen., Michael T. Garcia, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

E.L.B., a minor, was found by the juvenile court to have burglarized the home of Paul Pankradz (Pen.Code, § 459). The minor was placed in C.K. Wakefield School, a local reformatory, for 18 months and ordered to pay restitution. Upon completion of the stay in Wakefield, E.L.B. was to be placed in a suitable group home.

FACTS

Paul Pankradz was at his place of business, Gramp's Appliances, when R.L.C. came by to ask about his friend, Pankradz' grandson, Lucas, who lived with his grandparents. Pankradz informed R.L.C. that Lucas was out of town for the weekend.

R.L.C. testified he left the store and went into the alley behind the store where appellant and his brother A.B. were waiting. R.L.C. informed the two that Lucas was not home; the three boys decided to go to the Pankradz house. When asked what they intended to do once they reached the house, R.L.C. replied, "Just to get into it," and "I guess take some stuff."

When they arrived they knocked on the door. When no one answered, the boys went around the house to the alley and jumped the fence. Once they were inside the fenced area, they entered the house. (The door usually was unlocked.) R.L.C. testified that while in the house he took a phone and some silverware. Although he was not sure, he thought both appellant and A.B. also took items of property. However, he could not remember if either brother took anything when he left the house. R.L.C. did state that no one had a shotgun or any other large item when each left.

Verlo Jackie Whiteside lived across the street from the Pankradz house. On this same morning, Whiteside was sitting in her house having coffee when she noticed "two black boys and one white boy" stop in her yard. At the hearing, Whiteside identified appellant and his brother A.B. as the two black boys. She saw them cross the street and walk around the fence to the alley behind the house. She then saw figures walking through a breezeway between the house and garage. Approximately 15 minutes later, she saw the "big boy's head" from behind a dumpster in the alley (A.B. was the larger brother). She did not see the other two boys at this time.

Whiteside, soon after the incident, was unable to identify appellant as one of the boys. Pankradz' wife, Grace, took appellant to Whiteside's house and asked her if appellant were one of the boys she saw that day. Whiteside was unable to identify him definitely.

According to Pankradz, among the items taken from the house were a .12 gauge shotgun, a .22 caliber Ruger pistol, a radio, silverware, and a camera.

DISCUSSION

II ¹

Appellant's Request for a New Attorney

III

Penal Code Section 1111 ²

The only evidence directly connecting appellant to the burglary of the Pankradz house is the testimony of R.L.C.--an accomplice. In the adult criminal court, under section 1111, a conviction cannot be based upon the testimony of an accomplice unless that testimony is corroborated by other evidence. ( § 1111.) However, in In re Mitchell P. (1978) 22 Cal.3d 946, 949, 151 Cal.Rptr. 330, 587 P.2d 1144, the California Supreme Court held that a finding of wardship pursuant to Welfare and Institutions Code section 602 does not constitute a conviction within the meaning of section 1111. As a result, mandatory application of section 1111 in juvenile proceedings is not required. (Id., at pp. 952-953, 151 Cal.Rptr. 330, 587 P.2d 1144.)

Appellant concedes the Mitchell case in directly on point and controlling, and this court is bound by its holding. (See County of Butte v. Superior Court (1960) 178 Cal.App.2d 310, 311, 2 Cal.Rptr. 913.) Appellant notes, however, that changes in case law and in legislation have occurred since the Mitchell opinion was published and therefore urges the Mitchell holding should be reevaluated.

In Mitchell, the majority confronted the critical question whether the underlying purpose of the accomplice corroboration rule permitted different treatment of those persons charged with crimes from the treatment of persons charged with juvenile offenses. The court recognized that accomplice testimony generally is suspect. (In re Mitchell P., supra, 22 Cal.3d at p. 951, 151 Cal.Rptr. 330, 587 P.2d 1144.) However, under the circumstances, the court considered the problem to be not difficult:

"[W]hen a judge rather than a jury is trier of fact it is not unreasonable to assume he is more critical of accomplice testimony and more likely to accord it appropriate weight. Although juries are generally required upon demand by defendant in a criminal proceeding, the state is not constitutionally compelled to provide a jury in juvenile proceedings [citation].... It thus follows there is less reason for application of the arbitrary accomplice corroboration rule in juvenile court proceedings." (Id., at pp. 951-952, 151 Cal.Rptr. 330, 587 P.2d 1144.)

The Mitchell court also indicated that by making distinctions between criminal and juvenile proceedings, the Legislature considered the possible opportunity to rehabilitate a minor outweighed policy arguments supporting the exclusion of evidence not otherwise constitutionally proscribed. (Id., at p. 952, 151 Cal.Rptr. 330, 587 P.2d 1144.)

The Chief Justice dissented, noting the majority ignored that the Legislature, in enacting section 1111,

"went beyond mere suspicion of accomplice testimony. It expressed a more profound and sweeping judgment, 'such testimony has been legislatively determined never to be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated.' " (22 Cal.3d at p. 956, 151 Cal.Rptr. 330, 587 P.2d 1144.)

The dissent further stated that because a minor's guilt had to be established beyond a reasonable doubt in the juvenile court, the legislative concerns underlying section 1111 applied equally to juvenile proceedings.

The dissent also discussed that the purpose of the juvenile proceeding was to provide protection for the minor from the stigma and consequences society attaches to criminal convictions. However, by not applying the accomplice corroboration rule in juvenile proceedings, the dissent reasoned the majority actually was taking away protection; that the court should look to the consequences of its acts rather than to labels assigned "criminal" or "ward of the court." (22 Cal.3d at p. 959, 151 Cal.Rptr. 330, 587 P.2d 1144.) Finally, the Chief Justice noted that neither the courts nor the Legislature distinguished between section 1111's application in a jury trial versus a court trial, and that the United States Supreme Court found " 'no persuasive distinction' " between a Welfare and Institutions Code section 602 proceeding and a criminal prosecution. (Id., at p. 961, 151 Cal.Rptr. 330, 587 P.2d 1144; see Breed v. Jones (1975) 421 U.S. 519, 531, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346.)

Numerous legislative changes in the laws governing juveniles and juvenile proceedings (changes in Welf. & Inst.Code, §§ 202, 602, 650, subd. (b), 676, subd. (a)(18)) have occurred since the filing of the Mitchell opinion. These changes involve the addition of language expressly recognizing the need to protect the public from the criminal conduct of minors ( § 202), the requirement that a prosecuting attorney initiate the petition against the minor ( §§ 602, 650, subd. (b)), and the opening of certain juvenile proceedings to the public when the proceeding involves a violent or serious offense ( § 676).

Numerous other developments in recent years have made juvenile proceedings much less informal and more similar to adult criminal proceedings. The same rules of evidence and pretrial discovery apply ( § 701); juveniles may seek to suppress illegally obtained evidence in a section 1538.5-type pretrial hearing ( § 700.1); juveniles must be read their Miranda rights (In re Michael M. (1970) 11 Cal.App.3d 741, 743, 96 Cal.Rptr. 887); they must be notified of their right to appeal (In re Arthur N. (1974) 36 Cal.App.3d 935, 940-941, 112 Cal.Rptr. 89). (See In re Javier A. (1984) 159 Cal.App.3d 913, 959-962, 206 Cal.Rptr. 386.) We all must admit the present juvenile adjudication hearing is a far cry from former closed proceedings where a judge was briefed of the charges, and proceeded to question the parents and child in a personal and casual fashion. The accomplice corroboration rule would add little to any stigma attached to the complicated network of juvenile proceedings. On the contrary, application of the rule would offer more protection by ensuring that each proceeding afford fairness to the juvenile.

Various commentators and courts have discussed the narrowing gap between criminal and juvenile courts. The United States Supreme Court noted the trend in Breed v. Jones, supra, 421 U.S. 519, 528-530, 95 S.Ct. at 1785-1786:

"Although the juvenile-court system had its genesis in the desire to provide a distinctive procedure and setting to deal with the problems of youth, including those manifested by antisocial conduct, our decisions in recent years have recognized that there is a gap between the originally benign conception of the system and its realities. With the exception of McKeiver v. Pennsylvania [1971] 403 U.S. 528, 91 S.Ct. 1976 ..., the Court's response to that perception has been to make applicable in juvenile proceedings constitutional guarantees associated with traditional criminal prosecutions....

"... For it is clear...