Kenneth W., In re

• Decision Date: 23 November 1970
• Citation: 12 Cal.App.3d 1120,91 Cal.Rptr. 702
• Parties: In the Matter of Kenneth W., a minor. Leon A. BECKLEY, Probation Officer, Plaintiff and Respondent, v. Kenneth W., Defendant and Appellant. Civ. 27478.
• Court: California Court of Appeals Court of Appeals

Page 702

91 Cal.Rptr. 702

12 Cal.App.3d 1120

In the Matter of Kenneth W., a minor.

Leon A. BECKLEY, Probation Officer, Plaintiff and Respondent, v. Kenneth W., Defendant and Appellant.

Civ. 27478.

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

Nov. 23, 1970.

Mary E. Freitas (Under appointment of the Court of Appeal), San Mateo, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Joyce F. Nedde, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Associate Justice.

The within minor appeals from an order of the juvenile court adjudging him to be a ward thereof under Welfare and Institutions Code, section 602, in that he had committed an armed robbery. (Pen.Code § 211.)

Appellant's sole contention on appeal is that his guilt had been adjudged by the 'preponderance of evidence' standard, as in civil cases, instead of the 'proof beyond a reasonable doubt' standard, as in criminal cases.

The former was the proper standard prior to the decision of the United States Supreme Court on March 31, 1970 in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, ¹ wherein it was held that proof beyond a reasonable doubt is a requisite to due process at the adjudicatory stage of a state juvenile court proceeding.

Winship applies to cases pending on direct appeal from the order or judgment therein. (In re Steven C. (1970) 9 Cal.App.3d 255, 262, 88 Cal.Rptr. 97; In re Joseph G. (1970) 7 Cal.App.3d 695, 705, 87 Cal.Rptr. 25).

The juvenile court herein clearly indicated when announcing its decision that it was applying the 'preponderance of evidence' standard, stating that 'It (the petition) may not be proved beyond a reasonable doubt in juvenile court, and this is simply the same proof as required in a civil case which is just within the scales and I think the people have produced sufficient testimony to warrant this court in sustaining the petition.'

The failure of the court to apply the proper standard cannot be said to be error which is harmless, since it is evident that the decision might have gone the other way if the court had required that the allegations of the petition be proved beyond a reasonable doubt.

Appellant's failure to raise the aforesaid issue at the hearing is clearly excused in view of the fact that less than five months before said hearing the California Supreme Court had upheld the constitutionality of the preponderance of evidence standard established by Welfare and Institutions Code section 701 (In re Dennis M., supra, 70 Cal.2d at p. 460, 75 Cal.Rptr. 1, 450 P.2d 296.) Appellant was not required to anticipate such change of law and is therefore not precluded from raising the issue on appeal. (People v. Mario De Santiago (1969) 71 Cal.2d 18, 27--28, 76 Cal.Rptr. 809, 453 P.2d 353).

We believe the order appealed...