Morris E. v. Superior Court of Contra Costa County

• Decision Date: 07 June 1983
• Docket Number: No. A021176,A021176
• Court: California Court of Appeals Court of Appeals
• Parties: MORRIS E., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents; The PEOPLE of the State of California, Real Party in Interest. BRIAN H., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents; The PEOPLE of the State of California, Real Party in Interest.

Page 90

192 Cal.Rptr. 90

143 Cal.App.3d 687

MORRIS E., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents; The PEOPLE of the State of California, Real Party in Interest.

BRIAN H., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY et al., Respondents;

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

No. A021176.

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

June 7, 1983.

Hearing Granted Aug. 11, 1983.

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

Stan Casper, Casper, Loewenstein & Schwartz, Concord, for Morris E.

Marcus Peppard, Richmond, for Brian H.

No appearance for respondents.

John K. Van De Kamp, Atty. Gen., Robert R. Granucci and Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for real party in interest.

BARRY-DEAL, Associate Justice.

This petition challenges a juvenile court ruling, made under Welfare and Institutions Code section 707, determining that two juveniles were not fit and proper subjects to be dealt with under the juvenile court law. At the hearings, the juveniles declined to testify because they feared that, in light of the "Truth-in-Evidence" portion of Proposition 8 (Cal. Const., art. I, § 28 subd. (d)), their testimony could be used against them during proceedings to determine guilt. They attack the juvenile fitness hearing statute as unconstitutional because it presumes them unfit but does not permit them to testify with immunity from later use. We sustain the statute.

Supplemental petitions filed in juvenile court alleged that petitioners should be adjudged wards of the court (Welf. & Inst.Code, § 602) because of committing a murder (Pen.Code, § 187) by use of a knife. A hearing was held to determine whether they were fit subjects for treatment under juvenile court law. (Welf. & Inst.Code, § 707.) Before the hearing began, petitioners moved to dismiss the petitions to determine fitness on the ground that Welfare and Institutions Code section 707, subdivisions (b) and (c), was unconstitutional. The court denied the motions, conducted the hearing, and found petitioners unfit for treatment under juvenile court law. Before ruling on the motion, the court declined an offer by one juvenile to testify in camera.

After the fitness hearing, a complaint was filed, petitioners were arraigned, and a preliminary hearing date was set. This petition for a writ of mandate/prohibition followed.

Welfare and Institutions Code section 707 provides a procedure for determining whether a juvenile is a fit and proper subject to be dealt with under the juvenile court law. Subdivisions (b) and (c) of section 707 provide that when the minor is alleged to have committed certain serious crimes, including murder, the minor "shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment and training program available through the facilities of the juvenile court ...." To find the minor fit for treatment under juvenile court law, the juvenile court must make a finding of fitness under each of five criteria set forth in subdivision (c): "(1) The degree of criminal sophistication exhibited by the minor.

"(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.

"(3) The minor's previous delinquent history.

"(4) Success of previous attempts by the juvenile court to rehabilitate the minor.

"(5) The circumstances and gravity of the offenses alleged to have been committed by the minor."

If the juvenile is not charged with one of the crimes listed in subdivision (b), the same procedure is followed, except that the juvenile is not presumed unfit for treatment under juvenile court law. "... [T]he juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law if it concludes that the minor would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, ..." based upon an evaluation of the same five criteria set forth in subdivision (c), quoted above. The court may base its determination upon any one or a combination of the five criteria, which it shall recite in its order of unfitness. (Welf. & Inst.Code, § 707, subd. (a).)

Petitioners argue that the procedure for determining fitness of a juvenile charged with one of the specified serious crimes is unconstitutional because of the "Truth-in-Evidence" portion of Proposition 8, approved at the June 8, 1982, primary election. (Cal. Const., art. I, § 28, subd. (d).) The contention is that adoption of that measure has nullified the decision in Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 178 Cal.Rptr. 418, forcing the juvenile to choose between waiving his constitutional privilege against self-incrimination and waiving his constitutional due process right to testify in his own behalf at the fitness hearing.

To evaluate this contention, we will trace the law backwards, beginning with Sheila O. In Sheila O. the petitioner sought a writ permitting her to testify at her fitness hearing without risking use of the testimony later in a determination of guilt. The Sheila O. court granted the immunity, likening the situation to that presented in People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024.

In Coleman, the defendant had challenged a practice of conducting probation revocation hearings in advance of trials on the same charges. The defendant raised the constitutional objection presented here--that such a procedure forced him to choose between his right to testify at his probation revocation hearing and his right to avoid incriminating himself for purposes of the pending criminal trial. The Coleman court declined to reach the constitutional issue, holding as a judicially declared rule of evidence that, upon timely objection, the testimony of a probationer at a probation revocation hearing and any evidence derived therefrom was inadmissible against the probationer during the criminal proceedings unless required for impeachment purposes. ¹

The court in Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, followed the lead of Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, in announcing a rule of evidence rather than a constitutional rule. The first prong of petitioners' two-pronged argument is that the rule of evidence announced in Sheila O. must give way to the new constitutional provision that "... 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...." (Cal. Const., art. I, § 28, subd. (d).)

The Attorney General does not contest the supremacy of article I, section 28, subdivision (d), over a judicially declared rule of evidence. He contends, however, that the rule of Sheila O., supra, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, may be grounded upon the federal Constitution and that this court should so rule. His argument develops by looking backwards to two United States Supreme Court decisions predating Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024.

The first of these is Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, where the defendant testified at a pretrial suppression hearing that he was the owner of a particular suitcase, seeking by his testimony to establish his standing to contest a search. At trial, over his objection, his testimony was introduced by the government. The court, through Justice Harlan, reversed the conviction, finding it intolerable that the Fifth Amendment privilege against self-incrimination should have to be surrendered in order to assert the Fourth Amendment claim.

Three years later, in 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, Justice Harlan wrote again for the court as it reexamined Simmons and considered its implications in a different context. There, a defendant challenged an Ohio law which provided for a jury determination of guilt and penalty in a murder case after a single trial and in a single verdict. The defendant argued that under the Ohio single-trial procedure he could remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment. The court rejected the attack, likening the tension to tensions existing elsewhere, such as when the defendant must choose whether to testify and risk opening the door to otherwise inadmissible evidence damaging to his case.

The court in Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, explained its reluctance to base its use immunity rule upon the federal Constitution by setting forth a lengthy and complex analysis of the effect of McGautha, supra, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, upon the ruling and rationale of Simmons, supra, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. Pertinent to this case is the following discussion in Coleman: "The court in McGautha made little effort to reconcile its reasoning with that which had preceded it in Simmons. It noted that 'not everything said in [Simmons ] can be carried over to this case without circumspection' (McGautha v. California, supra, 402 U.S. at p. 211, 91 S.Ct. at p. 1469 ...), and adverting to the 'insubstantiality of the purely Fifth Amendment interests involved in Simmons' (402 U.S. at p. 212, 91 S.Ct. at p. 1469 ...), implied that Simmons should have been decided on the basis of the court's supervisory powers over federal trials rather than the mandates of the Constitution. In sum, the court...