Richard W., In re

• Decision Date: 16 April 1979
• Citation: 155 Cal.Rptr. 11,91 Cal.App.3d 960
• Court: California Court of Appeals Court of Appeals
• Parties: In re RICHARD W., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. RICHARD W., Defendant and Appellant. Civ. 4209.

Page 11

155 Cal.Rptr. 11

91 Cal.App.3d 960

In re RICHARD W., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. RICHARD W., Defendant and Appellant.

Civ. 4209.

Court of Appeal, Fifth District, California.

April 16, 1979.

As Modified on Denial of Rehearing May 16, 1979.

Linda A. Schmidt, Fullerton, under appointment by the Court of Appeal, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Gary A. Binkerd, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

CREEDE, ^* Associate Justice.

STATEMENT OF THE CASE

A petition filed pursuant to Welfare and Institutions Code section 602 ¹ alleged two counts of burglary, a violation of Penal Code section 459, occurring on April 28, 1978, at the Sea Gypsy Motel in Pismo Beach. After a contested jurisdictional hearing on May 17, 1978, both counts of the petition were found true beyond a reasonable doubt and the burglaries were determined to be of the first degree. The court further found appellant came within the provisions of section 202, subdivision (b). On May 31, 1978, a dispositional hearing was held and appellant was committed to the Youth Authority, setting the maximum period of physical confinement at six years and four months.

Appellant appeals from the adjudication and disposition.

STATEMENT OF FACTS

On April 28, 1978, Raymond Gill was occupying room 120 of the Sea Gypsy Motel in Pismo Beach and was awakened by his barking dog. He went to the balcony, looked outside and saw a boy with blonde hair coming out of room 114 onto a balcony. Gill then saw another boy, whom he identified at trial as appellant, on the balcony 30 to 35 feet away. Gill watched while the two boys went to the wrought iron railing between two rooms and jumped over the railing onto the balcony of room 112. Gill then asked the operator to call the police.

Officers of the Pismo Beach Police Department arrived at the motel within minutes. Officer Gary Drennan went to the beach side of the motel where he saw two persons standing on a balcony 15 yards away. He identified appellant at trial as one of those persons. As Drennan approached the two boys, both looked at him and jumped from the balcony. He ordered them to halt but they continued up some stairs and down a hallway.

In the meantime, Officers Griffith and Havard were proceeding down a stairwell on the other side of the motel. As they arrived at the bottom, they heard the sound of a person running and saw appellant proceeding toward them looking over his shoulder down the hallway. Appellant was detained and handcuffed. Soon thereafter Officers Drennan and Havard apprehended a second suspect, Robert C., who had shoulder-length blonde hair.

After the two boys were placed in the patrol car, Officer Griffith contacted Raymond Gill in room 120. Gill was asked for a physical description of the persons he had seen and if he could identify the persons in custody in the patrol car. Gill complied and identified the two boys as the persons he had seen previously on the balcony of room 114.

Appellant and the other suspect were searched at the scene of arrest. In appellant's pants pocket Griffith found $55.29 and a cigar cylinder, Black Watch brand. A search of the other suspect produced $53.18 and a bank deposit slip.

Jeffrey Budge, an occupant of rooms 202, 204 and 206 of the motel, testified that on the morning of April 28, 1978, he discovered his mother's purse was missing. The previous evening the purse had been on a couch in room 204 and, among other things, the purse contained the bank deposit slip found on the other suspect.

Audrey Martin, an occupant of room 114, testified that about 1 a. m. on April 28, 1978, she was awakened by a police officer knocking on her door. She discovered her purse had been moved from a table to the floor at the foot of the bed. A cylindrical cigar holder with a Black Watch design containing $3 in dimes together with $72 was missing.

Was appellant denied his right to a fair and impartial hearing before an unbiased judge because the trial court previously accepted the admission of the other minor and later commented on prior proceedings in which appellant had been involved?

Appellant asserts a denial of his constitutional right to a trial by a detached, fair and impartial judge and one who is not biased against him. (U.S.Const., 5th Amend; Cal.Const., art. I, § 7, subd. (a); People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, 137 Cal.Rptr. 476, 561 P.2d 1164.)

Appellant contends the trial judge was prejudiced against him because the court previously heard the admission of the other minor involved. Prejudice is attributed to a remark of the trial judge about having the minor before him previously as a prowler. Appellant suggests this reference indicates the court's impermissible consideration of appellant's prior record in finding the petition true.

If appellant's trial counsel had deemed that the judge assigned to hear the case was prejudiced, he had the ability to disqualify that judge under the provisions of Code of Civil Procedure section 170.6. This statute has been expressly held applicable to juvenile cases. (Pamela H. v. Superior Court (1977) 68 Cal.App.3d 916, 918, 137 Cal.Rptr. 612.)

A party in juvenile as well as all other proceedings is entitled to a trial by a judge who is detached, fair and impartial and has a constitutional right not to be tried before a judge who is biased against him. (Adoption of Richardson (1967) 251 Cal.App.2d 222, 59 Cal.Rptr. 323.) If a judge discovers that he cannot avoid consideration of information from another proceeding, or from a hearsay or other source, the preservation of the proper image of justice requires the judge to either recuse himself from conducting the trial or reveal the particular information to the parties so that the person who is possibly affected may either object to the court's consideration of the case, waive possible grounds for disqualification, or otherwise lay aside the issue. (Code Civ.Proc., § 170, subd. 5; People v. Deutschman (1972) 23 Cal.App.3d 559, 566, 100 Cal.Rptr. 330; Battaglia v. United States (9 Cir. 1968) 390 F.2d 256, 259.) It is fully recognized that the judiciary must not only be impartial but should always appear impartial. (State of Cal. v. Kleppe (D.C.1977) 431 F.Supp. 1344, 1350.) "Although defendant is afforded a peremptory challenge of a judge by Code of Civil Procedure section 170.6, there is no presumption in the law that the trial judge is prejudiced. A trial judge hears many items during the course of a trial which are inadmissible, and he is called upon to rule on the admissibility of numerous evidentiary matters. The fact that he has heard these things does not mean that he cannot divorce them from his mind. To justify a mistrial, or a new trial, or a reversal on appeal, an affirmative showing of prejudice is required." (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1009, 95 Cal.Rptr. 360, 368.) ² Appellant is precluded from raising this issue on appeal because a timely objection was not made at the trial level. Even if appellant could raise this issue, the record discloses no evidence supporting appellant's contention or showing the probable existence of prejudice as required by Code of Civil Procedure section 170, subdivision 5.

Appellant goes one step farther and contends that not only was the judge prejudiced, but the court also used the testimony of the other minor in the prior proceeding to reach the conclusion that appellant was guilty of two counts of burglary, thus utilizing improper hearsay and denying appellant the right to cross-examine and confront such witness. This contention is without merit. A judge is not disqualified to try a case merely because he previously, in a separate proceeding, heard a case of a coparticipant or passed on the application of a codefendant for probation. (People v. Kennedy (1967) 256 Cal.App.2d 755, 759, 64 Cal.Rptr. 345; People v. Gibbs (1970) 12 Cal.App.3d 526, 537, 90 Cal.Rptr. 866.) The record does not reflect that any statement of the minor in the other action was considered by the court in making a determination of appellant's guilt. There is no affirmative showing that the admission of the companion in any way implicated the minor. We cannot assume from appellant's bare allegation that the coparticipant's admission was inculpatory as to appellant or was in some manner considered, much less that such separate proceeding improperly influenced the trial court. On the other hand, there is substantial evidence supporting the trial court's determination that appellant participated in the two burglaries alleged in the petition.

It is next contended that the comments of the trial court after finding both counts of the petition true demonstrates impermissible utilization of prior proceedings in weighing the evidence. After making the jurisdictional findings and ordering the minor detained, the court said "This court makes a recommendation to the other judge that the minor be dealt with in a manner that would protect the public. I think once we start burglarizing residences in the nighttime that you are asking for some severe problems. If I recall the last time you were in this court you were a prowler going around looking in people's windows, or something like that. I don't recall specifically, but it seems to me it was something similar to that. And the story was then you were cutting through somebody's yard and under all the circumstances The court could not did not buy that argument. Here we are back here where you are actually going inside of a building and you are taking people's property." (Emphasis added.)

The court made a specific finding that the public should be protected from the minor pursuant to section 202, subdivision (b), and recommended that the minor's case be dealt with...