Mark L., In re

Decision Date28 July 1983
Docket NumberCr. 22845
Citation193 Cal.Rptr. 165,666 P.2d 22,34 Cal.3d 171
CourtCalifornia Supreme Court
Parties, 666 P.2d 22 In re MARK L., a Minor, on Habeas Corpus.

Friedman, Sloan & Ross, Stanley J. Friedman, Paul G. Sloan and Lawrence A. Gibbs, San Francisco, for petitioner.

George Deukmejian, Fr. Atty. Gen., and John K. Van De Kamp, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Gloria F. DeHart and Mary A. Roth, Deputy Attys. Gen., for respondent.

GRODIN, Justice.

In juvenile court, Mark L., a minor, entered a no contest (Cal.Rules of Court, rule 1354(f)) before a San Mateo Superior Court Commissioner to an allegation that he committed felony burglary. (Pen.Code, § 459.) At a subsequent dispositional hearing, the commissioner declared Mark a court ward and released him to his parents' custody under a strict county probation program. Acting on his own motion, a juvenile court judge ordered rehearing (Welf. & Inst.Code, § 253), overturned the commissioner's dispositional order, and directed Mark's placement in the California Youth Authority (YA) for a 90-day diagnostic evaluation. (Id., § 704.) Mark seeks a writ of habeas corpus, asserting that the YA commitment is void, because the juvenile judge had no power to alter the commissioner's disposition. Under the circumstances of this case, we conclude that the contention has merit.

1. Facts.

A juvenile petition (Welf. & Inst.Code, § 602) 1 charged Mark with five counts arising from two late-night entries into homes in Atherton. Counts I through III alleged that on September 17, 1982, at the home of Concepcion Woodman, he committed first degree burglary for the felonious purpose of false imprisonment (Pen.Code, §§ 236, 459), attempted false imprisonment (id., §§ 236, 664), and unlawful use of a mask or disguise (id., § 185). Counts IV and V asserted that on July 22, 1982 he committed the same burglary and attempted-false-imprisonment offenses at the home of Lynn Pickart; no use of a mask or disguise was charged in the Pickart incident.

According to court reports, Mark, 14, had entered the bedrooms of neighbors and tried to bind and gag the sleeping female occupants. In the Pickart incident, he carried a kitchen knife and an unloaded BB gun. In each case, he fled when the victims awoke and resisted, leaving his jacket behind the second time. He had no prior juvenile record.

Interviewed by psychiatrists and the probation department, Mark said he never intended to hurt anyone but showed little understanding of his motives. All the professional evaluators thought he suffered from severe adolescent adjustment problems, for which he was already in therapy. However, their unanimous view was that Mark was not seriously antisocial. He seemed naive, cooperative, and amenable to treatment.

On October 7, 1982, the parties appeared before James Browning, a superior court commissioner. By prior agreement, Mark was prepared to enter a no contest to count IV, burglary of the Pickart home, in return for dismissal of the remaining counts of the petition. Under the terms of the bargain, disposition was left open.

While advising Mark of the consequences of his plea, Browning twice noted that disposition of the case would be "solely up to the Court." The commissioner cautioned that "the maximum disposition, I'm not saying the Court is going to impose this maximum, but the maximum the Court could impose on this Count would be six years in custody."

After Mark entered his plea and the remaining charges were dismissed, Browning announced the parties' agreement that disposition be continued for further psychiatric and probation reports on Mark's suitability for the county Placement Intervention Program. 2 The commissioner emphasized that "the boy has a right to have the same judicial officer who received the no contest plea impose the disposition," but there were scheduling problems because Browning's normal court assignment was in Redwood City. After discussion, a dispositional hearing was set for October 22, a date convenient to Browning.

The dispositional hearing took place as scheduled. Browning indicated he had read the new report of Dr. Fricke, the court-appointed psychiatrist. It disclaimed a sexual motive in Mark's conduct and recommended he be returned to the community with "intensified treatment efforts" including restitution and apologies to the victims. The deputy district attorney, on the other hand, recommended a maximum 35-day commitment to YA for further diagnostic evaluation.

Browning declined to take that route. He adjudged Mark a court ward, referred him to the Placement Intervention Program for 90 days, specified separate psychiatric therapy for Mark and his parents, and imposed additional restrictions on Mark's movements and associations. 3 Further proceedings were scheduled for January 21, 1983, and Mark was released to the physical custody of his parents under the conditions set in the order.

On October 29, Presiding Juvenile Judge Capaccioli advised Mark's counsel that he had ordered a rehearing of Commissioner Browning's disposition. Counsel lodged no objection on the record, and the rehearing was held on November 2. Both Fricke and Mark's probation officer testified that the YA setting was unsuitable, disruptive, and physically dangerous for Mark. Nonetheless, Judge Capaccioli placed Mark in YA for a 90-day diagnostic evaluation, ordered him immediately detained in juvenile hall, and continued final disposition in the meantime.

Mark sought a writ of habeas corpus in this court, and we issued an order to show cause. On November 16, we stayed the YA commitment pending resolution of his petition. On November 24, we directed that Mark be released in the interim to his parents' custody "under the terms and conditions" of the October 22 disposition by Commissioner Browning.

2. Habeas Corpus as Proper Remedy.

Habeas corpus is available to obtain relief from unlawful restraint occasioned by a void judgment or order. (Pen.Code, § 1473.) Although the writ is not a substitute for appeal (In re Walker (1974) 10 Cal.3d 764, 773, 112 Cal.Rptr. 177, 518 P.2d 1129), the YA commitment order challenged here was not a final judgment subject to appeal. (§§ 704, 800.) Because the challenge is to the court's jurisdiction to make the order, the minor's failure to object to the conduct of the rehearing by the juvenile court judge did not constitute a waiver. (Griggs v. Superior Court (1976) 16 Cal.3d 341, 344, fn. 2, 128 Cal.Rptr. 223, 546 P.2d 727.)

3. Validity of Order on Rehearing.

The Juvenile Court Law provides that many matters may be heard and decided in the first instance by referees rather than judges. (§§ 247-250.) 4 However, referees, sitting as such, are but "subordinate" judicial officers with limited powers. (Cal. Const., art. VI, § 22; In re Edgar M. (1975) 14 Cal.3d 727, 732, 122 Cal.Rptr. 574, 537 P.2d 406.) All their findings and orders are subject to rehearing de novo by a juvenile court judge, either at the minor's request or on the judge's own motion. (§§ 248-254.)

Nonetheless, Mark argues that the rehearing order in this case was beyond Judge Capaccioli's power. He contends, among other things, that the rehearing violated his right to disposition by the same judicial officer who took his negotiated plea. We agree and find the claim dispositive.

In People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220 this court held that "whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea. [Citations.]" Thus, the sentence imposed by a judge other than the one who took the plea "cannot be allowed to stand. [Citations.] ..." (Pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.)

Arbuckle has been extended to dispositions by judges in juvenile cases. (In re Thomas S. (1981) 124 Cal.App.3d 934, 937, 177 Cal.Rptr. 742; In re Ray O. (1979) 97 Cal.App.3d 136, 139-140, 158 Cal.Rptr. 550.) The only issue remaining is whether it applied to the bargained plea in this case, since the plea was entered before a juvenile court officer other than a regular judge.

We emphasize that here, as in Arbuckle, the record indicates an actual assumption by the court and parties that the officer taking the plea would have final and exclusive dispositional authority. Browning made repeated references to the dispositions "the Court" could or might impose, "though I'm not saying" what the court "is going to" do. In context, Browning's interchangeable use of the personal pronoun with the phrase "the Court" implied that he and "the Court" were one and the same. (Compare Arbuckle, supra, 22 Cal.3d at p. 756, fn. 4, 150 Cal.Rptr. 778, 587 P.2d 220.)

If any doubt on that score remained, Browning laid it to rest by announcing Mark's right to have "the same judicial officer" who took the plea handle the disposition. That was an obvious reference to Arbuckle, and the deputy district attorney did not object. Despite Browning's usual assignment elsewhere, considerable effort was expended to ensure that he, rather than some other judge or referee, would act at the dispositional phase. There seems ample basis to conclude "that the plea bargain herein was entered in expectation of and reliance upon [disposition] being imposed by the same [judicial officer]." (Id., at p. 756, 150 Cal.Rptr. 778, 587 P.2d 220.)

Yet any attempt by a referee, sitting as such, to make a final or binding disposition exempt from review by a juvenile judge would violate express statutory provisions (§§ 250-254); arguably it would contravene the "subordinate judicial duties" clause of the Constitution (...

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