Raymond B. v. Superior Court

• Decision Date: 21 February 1980
• Citation: 162 Cal.Rptr. 506,102 Cal.App.3d 372
• Court: California Court of Appeals Court of Appeals
• Parties: RAYMOND B., a minor, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The PEOPLE, Real Party in Interest. Civ. 57632.

Page 506

162 Cal.Rptr. 506

102 Cal.App.3d 372

RAYMOND B., a minor, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The PEOPLE, Real Party in Interest.

Civ. 57632.

Court of Appeal, Second District, Division 1, California.

Feb. 21, 1980.

Hearing Denied April 17, 1980.

Wilbur F. Littlefield, Public Defender, Kenneth I. Clayman, Stephen E. Webber, Henry J. Hall, Deputy Public Defenders, for petitioner.

No appearance for respondent.

John K. Van de Kamp, Dist. Atty., Donald J. Kaplan and Maurice H. Oppenheim, Deputy Dist. Attys., for real party in interest.

LILLIE, Acting Presiding Judge.

Having previously denied the minor's petition for writ of mandate to compel the juvenile court to dismiss petition filed pursuant to section 602, Welfare and Institutions Code, this court pursuant to order of the California Supreme Court issued an alternative writ of mandate.

A petition was filed in juvenile court on September 4, 1979, alleging that the minor comes within section 602 in that he violated Penal Code sections 415 (disturbing the peace, a misdemeanor) and 240/241 (assault on a peace officer, a felony). On arraignment the commissioner referred the matter to the probation department for investigation and report under section 654, Welfare and Institutions Code, and continued it to October 1. On October 1 the juvenile court rejected the recommendation of the probation officer that the petition filed September 4 be dismissed and the case be retained by the probation department for informal supervision; and set the matter for an adjudication hearing. Thereafter this petition was filed.

Citing Marvin F. v. Superior Court, 75 Cal.App.3d 281, 142 Cal.Rptr. 78, petitioner argues that inasmuch as the initiation of formal juvenile proceedings under section 653, and the decision to divert him to informal probationary supervision pursuant to section 654 rest in the sole discretion of the probation department, the juvenile court was bound to accept the recommendation of the probation officer and dismiss the petition. Originally petitioner did not directly urge that the petition was not properly before the juvenile court; however, after real party in interest pointed out that Marvin F. v. Superior Court, 75 Cal.App.3d 281, 142 Cal.Rptr. 78, holding that the probation officer cannot delegate to the district attorney his right to initially determine whether a petition should be filed, is inapposite because here the probation officer initially determined a petition should be filed and accordingly it was filed by the district attorney, petitioner in a reply letter brief asserted that the section 602 petition was not properly before the juvenile court because no investigation had been made by the probation officer. We deal with this matter first even though it was not petitioner's original contention either here or in the trial court.

First, the record establishes that the probation officer exercised his discretion in connection with and initiated the commencement of proceedings in the juvenile court by the district attorney. The minor was arrested on July 8; on that day a three-page arrest report was made by police who took the minor into custody. On July 11 a juvenile investigation report was made setting forth personal information concerning the minor, the time and place of arrest, the nature of the charge and the minor's version of the incident. Thereafter on August 7, probation officer, M. Williams, directed a report (form 1120) regarding the minor to the district attorney and accordingly, on August 16 the district attorney executed the 602 petition and thereafter filed the same in juvenile court. Nothing in the record suggests that the probation officer in any manner delegated to the district attorney or to any one else his authority to determine whether to commence formal juvenile court proceedings.

Second, the record fails to disclose that prior to referring the case to the district attorney the probation department did not make an investigation to determine whether proceedings in the juvenile court should be commenced ( § 653) or in lieu of filing a juvenile petition, to institute an alternative program of informal probationary supervision ( § 654). It is asserted by petitioner that probation form 1120 reflects no initial investigation ( § 653), while real party in interest alleges that prior to the filing of the juvenile petition, the minor had been considered by the probation department for informal probationary supervision ( § 654) and rejected, and that the probation officer's failure to check the box "Minor is not suitable for 654 WIC because:" and thereafter fill in the reason,was an oversight. ¹ Of interest at this point is the suggestion made by the juvenile court that for a prior police contact (reckless driving and resisting arrest (1977) and petty theft (1978)), the minor was "already on 654"; asked by the court if this was not true, minor's counsel responded that it "isn't clear." In this connection we note the language on the face page of the probation officer's report, "Retain as 654 WIC Expir. Date 3-31-80," and of the recommendation that the case be "retained" by the probation department. However, assuming that prior to referring the matter to the district attorney, the probation officer did not make a full investigation ( §§ 652, 653) the absence thereof on the record before us does not render the juvenile petition subject to attack as having been improperly filed. ²

It is true that section 653, Welfare and Institutions Code mandates the probation officer to make an investigation in the first instance to determine whether proceedings in juvenile court should be commenced or the minor diverted to a program of informal probationary supervision under section 654, however, section 653 requires only that the probation officer make such investigation "As he deems necessary to determine whether proceedings in the juvenile court should be commenced." ³ (Emphasis added.) This language is interpreted in Marvin F. v. Superior Court, 75 Cal.App.3d 281, 142 Cal.Rptr. 78 as requiring the probation officer to "make whatever investigation he thinks is reasonable for the exercise of his discretion." (P. 289, 142 Cal.Rptr. p. 82.) The Marvin F. holding is a narrow one. An agreement between the probation department and the district attorney providing that when a police officer requests that the district attorney review a report of an alleged section 602 misdemeanor offense, the probation department is obliged to refer the case to the district attorney, was held to conflict with the statutory scheme for processing applications for commencement of juvenile court proceedings because, among other things, the initial determination to file a petition cannot be delegated to the prosecuting attorney inasmuch as such judgment is expressly vested in the probation department, and it removed the probation officer's options of referring the cause to the prosecuting attorney ( § 653), instituting alternative programs of informal supervision for the minor in lieu of filing a juvenile petition ( § 654) or taking no action. Referring to the statutory scheme for processing an application for commencement of juvenile court proceedings, the court said at page 289, 142 Cal.Rptr.at page 82: "The statute ( §§ 653, 654, 655) is unambiguous legislation which sets forth the steps to be taken before the matter is placed in the hands of the prosecuting attorney for action. Upon receipt of the application, the probation officer must make Whatever investigation he thinks is reasonable for the exercise of his discretion, that is, to (1) 'cause the affidavit to be taken to the prosecuting attorney' ( § 653), or (2) 'with consent of the minor and the minor's parent or guardian, delineate specific programs of supervision for the minor, for not to exceed six months' ( § 654), or (3) refuse to take any action on the application." (Emphasis added.)

If we assume no initial full bloom investigation was made by the probation officer, we also assume on the state of the record here that, as he is empowered to do under section 653 and in the exercise of his discretion he deemed such an investigation unnecessary for the further exercise of his discretion to determine whether to divert the minor to informal supervision or cause the matter to be referred to the prosecuting attorney to commence juvenile court proceedings particularly in light of the arrest report, the juvenile investigation report and the probability that the minor already had been investigated or even been "on 654" in connection with a previous police contact. "The statute clearly contemplates an intermediate evaluation by the probation officer, granting him discretion to...