Michael v., In re

• Decision Date: 28 February 1986
• Citation: 223 Cal.Rptr. 503,178 Cal.App.3d 159
• Court: California Court of Appeals Court of Appeals
• Parties: In re MICHAEL V., a Minor. The PEOPLE of the State of California, Plaintiff and Respondent, v. MICHAEL V., Defendant and Appellant. AO29437.

Page 503

223 Cal.Rptr. 503

178 Cal.App.3d 159

In re MICHAEL V., a Minor.

The PEOPLE of the State of California, Plaintiff and Respondent, v. MICHAEL V., Defendant and Appellant.

AO29437.

Court of Appeal, First District, Division 4, California.

Feb. 28, 1986.

Review Denied May 8, 1986.

Certified For Partial Publication ^*

Phillip H. Cherney, Palo Alto, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

CHANNELL, Associate Justice.

Michael V. (Michael), a minor, appeals from an order of the juvenile court continuing his status as a ward (Welf. & Inst. Code, §§ 602, 777), ¹ removing him from the custody of his parents ( § 726), and committing him to the Youth Authority ( § 731).

In this case of first impression, ² we are called upon to decide whether a juvenile court judge may consider previously suppressed evidence during the disposition phase of a juvenile delinquency proceeding. Absent a statute to the contrary, we have concluded there is no constitutional bar, state or federal, to the consideration of such evidence at a disposition hearing. Indeed, the Arnold-Kennick Juvenile Court Law ( § 200 et seq.) expressly provides that the juvenile court "shall receive in evidence" such "relevant and material evidence as may be offered" on the question of the proper disposition to be made of the minor. ( § 706; see also § 725.5) It was therefore proper for the juvenile court to consider at Michael's disposition hearing the fact that he was carrying three bindles of cocaine and $35 in currency when he was taken into custody, even though that same evidence had been ordered suppressed at an earlier stage in the juvenile proceedings. When considered with other evidence indicating the previous disposition had not been effective in rehabilitating Michael, we hold further that the juvenile court did not abuse its discretion in committing him to the Youth Authority. We therefore affirm the trial court's judgment.

I. PROCEDURAL FACTS

A. The Petitions

On August 30, 1984, separate petitions were filed against Michael pursuant to sections 602 and 777, respectively. ³ The section 602 petition alleged that Michael, on August 28, 1984, had possessed cocaine and had possessed cocaine for sale, in violation of Health and Safety Code sections 11350 and 11351. That same petition further alleged that based on these allegations, the previous disposition of the juvenile court had been ineffective in rehabilitating Michael, within the meaning of sections 726 and 777.

The section 777 supplemental petition alleged that Michael had last appeared before the juvenile court on February 9, 1984, when he was declared a ward under section 602 for having committed a robbery. (Pen. Code, § 211.) It was further alleged that in February, he had been ordered, inter alia, to obey all laws, to spend 60 days in juvenile hall, to refrain from the use of alcohol and drugs, and to remain out of the Chinatown area in Salinas. Finally, the supplemental petition alleged that the previous court order had been ineffective in rehabilitating Michael in that "on August 28, 1984, he was arrested for possession of cocaine and possession of cocaine for sale on Soledad Street, [in] the Chinatown area."

B. Suppression and Jurisdiction Hearing

1. Suppression Motion

Following detention and "Dennis H." hearings, ⁴ the matter was set for a suppression hearing ( § 700.1) ⁵ and a jurisdiction hearing as to both petitions. At that time, the parties stipulated that both the suppression and the jurisdictional issues would be submitted on the police report; that the first full paragraph of the police report was to be considered for purposes of probable cause only; that the police officers had no search or arrest warrant; and that the controlled substance seized from Michael was cocaine. ⁶

Briefly, the first paragraph of the police report (considered only on the probable cause issue) indicated that officers had received information that "a Mexican male adult, named Michael, between the age of 17 and 19 years of age" and wearing tan pants and a black leather jacket, was selling cocaine at a certain location in Chinatown. The police were told that the suspect kept bindles of what appeared to be cocaine in his jacket pocket.

According to the remaining portion of the police report (considered on all issues), the officers were in the Chinatown area, they approached Michael (who fit the general description given) and asked him if he had anything on him. Michael raised his arms away from his side and said nothing. The officer reached into Michael's left front pocket and found a bindle containing a white powder substance, which appeared to be cocaine. After taking Michael into custody for possession of cocaine, the officer searched Michael further and found two more bindles of cocaine and $35 in currency. After being advised of his rights, Michael acknowledged he had been dealing in cocaine for two weeks, but refused to give investigators specific information as to the supplier of his cocaine.

At the suppression hearing, Michael challenged the admissibility of the cocaine bindles and currency found on him, as well as his later statements. Michael's motion to suppress was granted. ⁷

2. Jurisdictional Findings

Following its suppression ruling, the juvenile court judge found that none of the allegations in the section 602 petition were true. Referring to the section 777 supplemental petition, the judge noted that the allegations "just said [Michael] was arrested with possession of cocaine on Soledad Street in the Chinatown area, so that does indicate a violation of [a] condition of probation as to where he was located." He therefore found the allegations of the supplemental petition to be true. The matter was then set for a disposition hearing.

C. Disposition Hearing

Before the disposition hearing, a probation report was prepared (see §§ 280, 702; rule 1371(b) ), which included within it a discussion of the circumstances of the violation on August 28, including references to the cocaine and currency previously ordered suppressed. The judge began the disposition hearing by indicating he had read the probation report and by stating his tentative views of the case: "I will tell you frankly, I think it calls for Youth Authority." As one of his reasons, ⁸ the judge stated, "I just think that anybody who is involved in a robbery [referring to Michael's prior offense] and then is down in this--in the Chinatown area where he was told not to be, he lives close by, but he was told not to be in the area, with three bindles of cocaine and a hundred [sic] dollars on him, ⁹ he is giving us a message loud and clear. [p] Now, having said that, I will be willing to have all kinds of arguments to the contrary to show why it shouldn't happen."

After defense counsel objected, the judge continued the matter so counsel could research and prepare points and authorities as to whether or not the suppressed evidence could be considered when determining a proper disposition. The court subsequently ordered Michael committed to the Youth Authority. In doing so, the court expressly considered "the fact that the minor was found in the forbidden area, as described in the probation report, and in possession of three bindles of cocaine and $35.00 in currency." ¹⁰

II. DISCUSSION

A. Nature of Hearings on Supplemental Petition

The precise issue in this case is whether, in a juvenile delinquency proceeding, ¹¹ a juvenile court judge may consider previously suppressed evidence when making a determination of disposition ¹² on a supplemental petition filed pursuant to section 777.

Preliminarily, it is helpful to our analysis to clarify the nature of the hearing on a supplemental petition. The statutory law is silent on the subject. (See In re Francis W. (1974) 42 Cal.App.3d 892, 897, 117 Cal.Rptr. 277.) In his argument, the Attorney General seeks to analogize the hearing with parole or probation revocation hearings, and cites cases where the consideration of illegally seized evidence was upheld. (See United States v. Vandemark (9th Cir.1975) 522 F.2d 1019, 1022 [probation revocation]; People v. Hayko (1970) 7 Cal.App.3d 604, 609, 86 Cal.Rptr. 726 [same]; In re Martinez (1970) 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734 [parole revocation].) But a hearing on a supplemental petition is neither of these. A juvenile court may neither grant (In re Owen E. (1979) 23 Cal.3d 398, 403-404, 154 Cal.Rptr. 204, 592 P.2d 720; Breed v. Superior Court (1976) 63 Cal.App.3d 773, 787, 134 Cal.Rptr. 228) nor revoke parole. (In re Ronald E. (1977) 19 Cal.3d 315, 326-328, 137 Cal.Rptr. 781, 562 P.2d 684.) And analogies to an adult probation revocation hearing were rejected as "superficial" by our Supreme Court in In re Arthur N. (1976) 16 Cal.3d 226, 235-236, 127 Cal.Rptr. 641, 545 P.2d 1345. Although each proceeding is triggered by a petition alleging acts of misconduct by a person already subject to the jurisdiction of the * MESSAGE(S) *MORE SECTIONS FOLLOWcourt, neither the purposes nor the consequences of these disparate proceedings are the same. (Ibid.)

To promote uniformity in practice and procedure in this area (see rule 1301(b) ), the Judicial Council, acting pursuant to its constitutional and statutory authority (Cal. Const., art. VI, § 6; § 265), has prescribed that a two-part hearing be held on a supplemental petition, analogous to the jurisdiction and disposition hearings held on the original petition. (Rule 1392(d); see Adv. Committee comment, rule 1392(d), Deerings Ann. Rules of Court (1980 ed.) p. 423; 6 Witkin, Summary of Cal. Law (8th ed. 1984 Supp.) Parent and Child, § 479A, p. 568.) ¹³ As this rule is not inconsistent with statute, it has the force of positive law binding on the courts and parties in the same way as a procedural statute. (See People v. Wright (1982) 30 Cal.3d 705, 711-712, 180 Cal.Rptr....