Michael W. v. Superior Court of Orange County

• Decision Date: 24 October 1983
• Citation: 195 Cal.Rptr. 844,148 Cal.App.3d 297
• Court: California Court of Appeals Court of Appeals
• Parties: MICHAEL W., Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, et al., Respondents; PEOPLE of the State of California, Real Party in Interest. Civ. 30231.

Page 844

195 Cal.Rptr. 844

148 Cal.App.3d 297

MICHAEL W., Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, et al., Respondents;

PEOPLE of the State of California, Real Party in Interest.

Civ. 30231.

Court of Appeal, Fourth District, Division 3, California.

Oct. 24, 1983.

Hearing Granted Jan. 19, 1984.

Cause Retransferred, see 214 Cal.Rptr. 903, 700 P.2d 781.

Paul S. Meyer, Costa Mesa, for petitioner.

Quin Denvir, State Public Defender, and Victoria Sleeth, Deputy State Public Defender, for amicus curiae on behalf of petitioner.

No appearance for respondents.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Nina R. Brice, Deputy Dist. Attys., for real party in interest.

OPINION

TROTTER, Presiding Justice.

In this original proceeding petitioner asks us to direct the juvenile court to vacate an order declaring him unfit for treatment as a juvenile. He contends Welfare and Institutions Code section 707, subdivisions (b) and (c), ¹ are unconstitutional in light of the "truth-in-evidence" provisions of California Constitution, article I, section 28, subdivision (d) (Proposition 8). We conclude section 707 hearing procedures, found to be constitutional prior to Proposition 8's enactment, are unaffected by that initiative measure and, additionally, that a minor's statements to a retained psychiatric expert and to a probation officer charged with preparing a section 707, subdivision (c), fitness report are inadmissible for any purpose in any subsequent proceeding to determine guilt.

I

A section 602 petition was filed November 4, 1982, alleging one count of murder (Pen.Code § 187) and that petitioner was not fit to be dealt with as a juvenile. (§ 707, subd. (b)(1), fn. 1, supra.) On counsel's advice, petitioner refused to cooperate with the probation department's investigation and preparation of the fitness report required by section 707, subdivision (c). Counsel presented no evidence on petitioner's behalf at the January 25, 1983 fitness hearing because real party refused to stipulate to the immunity afforded petitioner by Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 178 Cal.Rptr. 418. The juvenile court also refused to assure Sheila O. immunity in light of Proposition 8 and found petitioner not amenable to treatment as a juvenile based on the probation department's report, the murder allegation and post-mortem photographs of the victim.

Petitioner reasons as follows: (1) section 707, subdivision (c), places the burden of establishing amenability to treatment by juvenile court processes on him; (2) the "truth-in-evidence" section of Proposition 8 has eliminated the exclusionary rules of Bryan v. Superior Court (1972) 7 Cal.3d 575, 102 Cal.Rptr. 831, 498 P.2d 1079 and Sheila O. v. Superior Court, supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418; (3) consequently, he was effectively precluded from presenting evidence for fear of self-incrimination, thereby rendering the fitness hearing meaningless and its procedures constitutionally deficient.

Real party agrees Sheila O. was laid to rest by Proposition 8, but contends unlimited use of a minor's section 707 testimony does not render the procedure unconstitutional. Relying primarily upon Crampton v. Ohio, sub nom. McGautha v. California (1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (vacated on other grounds (1972) 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765), and Ryan v. Montana (9th Cir.1978) 580 F.2d 988, real party argues the Constitution only requires an accused be allowed the opportunity to testify; it does not forbid requiring him to choose between silence and testifying at the risk of self-incrimination.

As noted above, we need not reach the constitutional issue since we conclude the express language of Proposition 8 exempts from its operation the privilege with which we are concerned.

II

A minor charged with a specified serious offense has the burden of proving, by a preponderance of the evidence under each of five criteria, his amenability to the care, treatment and training program available through the facilities of the juvenile court. (See § 707, subds. (b) and (c), fn. 1, supra; People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 177-178, 173 Cal.Rptr. 788.) The statute contemplates input from the minor in the form of "extenuating or mitigating circumstances." (§ 707, subd. (c).) However, the minor is not required to present evidence, and often does not for fear it might later be used against him or will supply the prosecution with a " 'link in [the] chain' of evidence tending to establish guilt...." (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673.)

Before the passage of Proposition 8 the appellate courts of this state fashioned a variety of exclusionary rules in their efforts to reduce constitutional tensions, encourage the minor's participation in the fact-finding process, and secure informed probation reports and enlightened judicial determinations concerning the minor's welfare. Our Supreme Court in Bryan v. Superior Court, supra, 7 Cal.3d at p. 587, 102 Cal.Rptr. 831, 498 P.2d 1079, held "... evidence of admissions made by a minor to the juvenile judge or the juvenile probation officer should be excluded in a criminal prosecution, for allowing this evidentiary use of the admissions would frustrate the protective and rehabilitative philosophy of the Juvenile Court Law and would deny to the minor the protection of exclusionary rules which apply to all persons charged with the commission of crimes in comparable circumstances." Seven years later another exclusionary rule was announced in In re Wayne H. (1979) 24 Cal.3d 595, 602, 156 Cal.Rptr. 344, 596 P.2d 1; "We conclude that the subsequent use of statements made by a juvenile to a probation officer in a section 628 interview would frustrate important purposes of that statute, and of the Juvenile Court Law generally. We therefore hold that such statements are not admissible as substantive evidence, or for impeachment, in any subsequent proceeding to determine criminal guilt, whether juvenile or adult. Such statements may, of course, be admitted and considered in hearings on the issues of detention and fitness for juvenile treatment." Finally, Sheila O. v. Superior Court, supra, 125 Cal.App.3d at p. 813, 178 Cal.Rptr. 418, declared "a rule of evidence that testimony given by the juvenile at the fitness hearing is inadmissible at the jurisdictional hearing except for the purpose of impeachment." The parties to this proceeding assume Proposition 8 has nullified these rules of evidence. We find that assumption unwarranted.

Article I, section 15, of the California Constitution states, "[p]ersons may not ... be compelled in a criminal cause to be a witness against themselves...." Article I, section 24, provides "[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." Article I, section 28, subdivision (d), of the California Constitution, added by Proposition 8, reads, "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press." (Italics added.)

The privilege against self-incrimination is a "statutory rule of evidence relating to privilege." California Evidence Code sections 930 and 940 provide,

" § 930. Privilege of Defendant

To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify.

" § 940. Self-Incrimination Privilege

To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him."

Although the constitutional privilege is itself an exclusionary rule (People v. Rucker (1980) 26 Cal.3d 368, 390, 162 Cal.Rptr. 13, 605 P.2d 843; People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272), these Evidence Code sections independently provide for the evidentiary exclusion of privileged material. (Cal.Evid.Code, §§ 930, 940; see also the Law Revision Com. Comments to Cal.Evid.Code, §§ 351, 930 and 940.) Of course, the authority to define the scope of the privileges and to fashion rules for their application, assertion and waiver in a particular case remains, as it always has, with the judiciary. (Ibid.; Wilson v. Superior Court (1976) 63 Cal.App.3d 825, 829-830, 134 Cal.Rptr. 130.) Thus, Proposition 8, by its own terms, has no effect on self-incrimination issues or previously fashioned exclusionary rules designed to relieve the tension between due process and Fifth Amendment rights in pretrial proceedings. ²

III

Petitioner next contends section 707, subdivision (c), impermissibly operates as a "prosecutorial discovery order" of the sort condemned by a host of California decisions beginning with Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673. (See, e.g., People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534; Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65; Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45; see also People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19 and People v. Belton (1979) 23 Cal.3d 516, 153 Cal.Rptr. 195, 591 P.2d...