Steven C., In re

• Decision Date: 29 June 1970
• Citation: 9 Cal.App.3d 255,88 Cal.Rptr. 97
• Parties: In re Steven C., a Minor. Carroll B. PEBBLES, Supervising Probation Officer, Juvenile Court, San Francisco, Plaintiff and Respondent, v. Steven C., Defendant and Appellant. Civ. 26819.
• Court: California Court of Appeals Court of Appeals

Page 97

88 Cal.Rptr. 97

9 Cal.App.3d 255

In re Steven C., a Minor.

Carroll B. PEBBLES, Supervising Probation Officer, Juvenile Court, San Francisco, Plaintiff and Respondent, v. Steven C., Defendant and Appellant.

Civ. 26819.

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

June 29, 1970.

Hearing Denied Aug. 26, 1970.

Brewster Q. Morgan, Robert H. Betzenderfer, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Karl S. Mayer, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Steven C., a minor (hereafter referred to as 'Steven'), appeals from an order of the juvenile court adjudging him to be a ward of the court and committing him to the Youth Authority upon approval of an order of the juvenile court referee finding the minor to have violated the provisions of Penal Code section 245. ¹

Facts

While in his office at approximately 2:20 p.m. November 1, 1968, James Kearney, principal of the high school Steven attended, heard two 'shots' he thought to be firecrackers. Upon searching his office and an adjacent bathroom, Kearney found, in each place, a spent .22 caliber bullet. Holes in the wall evidenced such bullets having come through the walls.

Vice-principal Walter Odone and Officer Ray Fortin were sent in search of the gun from which such bullets may have been fired. A .22 caliber pistol was found in the school incinerator and returned to Kearney's office. Steven's thumb print was lifted from the weapon but was conjectured not to have been in a position normally held for firing. A criminologist testified that analysis of the bullets indicated their having been fired from the pistol. However, his examination of Steven's hand did not indicate affirmatively that Steven had fired the pistol.

Kevin Conroy, a juvenile division police officer, interrogated Steven in the principal's office. After Steven had been admonished of his Miranda rights, ² he admitted that he had 'handled' the gun but explained that he had only hidden the gun for a person he identified as 'Tony.'

Hector Agustin, Steven's school friend, testified that Steven had shown him the subject gun at lunch the day of the incident. Agustin further testified that Steven had said that 'he was going to shoot some windows' at school. Agustin did not see Steven do any shooting at school. Rubin Bray, also Steven's school acquaintance, testified that Steven also showed him the pistol at lunch the day of the shooting and that Steven had remarked 'It would be funny if I shot at the principal.' Bray did not see Steven shoot but did hear three 'shots' fired while at school.

Testifying on his own behalf, Steven denied adamantly having fired the pistol on the day of the incident but did admit having handled the gun on that day. He explained that he had received the gun from Tony Savelli at lunch but had given it back to him before returning to school and that he did not thereafter again handle the pistol except to hide it at school upon Tony's request. Steven denied ever having said he intended to shoot at the principal.

Contentions

Defendant asserts five grounds for reversal: (1) That he was denied his constitutional right to a jury trial; (2) that there was prejudicial error in allowing defendant's probation officer to conduct the case against defendant; (3) that his right against self-incrimination was violated because he was not given adequate Miranda warnings; (4) that the evidence was insufficient to sustain a finding that he violated Penal Code section 245; and (5) that he was deprived of due process because the court adjudicated his guilt upon the evidence adduced on the basis of a preponderance of the evidence rather than by proof beyond a reasonable doubt.

Jury Trial

Defendant first argues that it was error to deny his request for a jury trial because a jury trial is constitutionally compelled even in juvenile court proceedings. We disagree.

The recent United States Supreme Court decisions which have declared that juveniles are entitled, under the Fourteenth Amendment, to due process protection in juvenile court proceedings (In re Gault, 387 U.S. 1, 30--31, 87 S.Ct. 1428, 18 L.Ed.2d 527; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, 372) have not extended such protection to include the right to a jury trial. (See Kent v. United States, 383 U.S. 541, 555, 86 S.Ct. 1045, 16 L.Ed. 84.) In Gault the Supreme Court stated that it did not purport to rule on whether ordinary due process requirements, such as the right to a jury trial, must be observed in a juvenile dispositional hearing. (P. 27 of 387 U.S., 87 S.Ct. 1428.)

In other jurisdictions a number of cases have held that a jury trial is required in juvenile proceedings. (See Nieves v. United States, D.C., 280 F.Supp. 994, 998; Peyton v. Nord, 78 N.M. 717, 437 P.2d 716.) The California rule, however, is that a juvenile is Not entitled to a jury trial. (In re Daedler, 194 Cal. 320, 332, 228 P. 467; People ex rel. Weber v. Fifield, 136 Cal.App.2d 741, 743, 289 P.2d 303; In re T.R.S., 1 Cal.App.3d 178, 182, 81 Cal.Rptr. 574; In re R.L., 3 Cal.App.3d 707, 713, 83 Cal.Rptr. 81; In re Dennis M., 70 Cal.2d 444, 456, 75 Cal.Rptr. 1, 450 P.2d 296.) The rationale of the California cases is that the Constitution does not require that the full panoply of rights accorded adults accused of crime be extended to juveniles since to do so would introduce a strong tone of criminality in juvenile proceedings. (See In re T.R.S., supra; In re Dennis M., supra, at p. 450, 75 Cal.Rptr. 1, 450 P.2d 296; In re R.L., supra.) Accordingly, in the absence of a mandate from the United States Supreme Court we must follow the California rule.

Steven's reliance upon Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491, 522, is misplaced. That case stands for the proposition that the Sixth Amendment right to a trial by jury is guaranteed by the Fourteenth Amendment in criminal proceedings. (P. 148, 88 S.Ct 1444.) That case involved criminal proceedings against adults and does not mention or imply that the rule it enunciated applies to juvenile proceedings. We here observe that in DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148, the issue of the right to a jury trial was tendered to the United States Supreme Court, but it declined to rule on the issue on the basis that the DeBacker proceedings predated May 20, 1968, the effective date of the principle announced in Duncan. The rationale of the Supreme Court's declination appears to be that since the court would not extend the Duncan rule to proceedings commenced prior to May 20, 1968, even if it were inclined to accord a jury trial to juveniles, it would certainly not do so for juvenile proceedings had before that date. (At pp. 32--33, 90 S.Ct. 163.)

Quantum of Proof

Steven contends that constitutional error was committed by not requiring proof beyond a reasonable doubt. ³ This contention is meritorious in the light of the recent United States Supreme Court case of In re Winship, supra, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, which holds that proof beyond a reasonable doubt is a Fourteenth Amendment due process requirement applicable against state juvenile courts. (90 S.Ct. 1068, 25 L.Ed.2d p. 375.) The effect of this decision is to declare as unconstitutional the preponderance of evidence standard provided for in Welfare and Institutions Code section 701 and to overrule California cases which have held the statute constitutional. (See In re Dennis M., supra, 70 Cal.2d 444, 450, 75 Cal.Rptr. 1, 450 P.2d 296; In re Davis, 242 Cal.App.2d 645, 651, 51 Cal.Rptr. 702; In re Johnson, 227 Cal.App.2d 37, 39, 38 Cal.Rptr. 405; In re Castro, 243 Cal.App.2d 402, 408, 52 Cal.Rptr. 469; In re Steven F., 270 Cal.App.2d 603, 604, 75 Cal.Rptr. 887.)

Although the Winship case does not indicate whether its decision operates prospectively only, we deem it applicable to pending cases, including those on appeal. We do so by analogy to the United States Supreme Court decisions which have extended various bill of rights protections to the states via the Fourteenth Amendment to cases on appeal at the time of their decision, even though purporting not to apply the decision retroactively. (See, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Kent v. United States, supra, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84.) Accordingly, in such cases, notwithstanding the judgment's correctness when entered, it will be reversed while the case is on direct review if a rule of constitutional dimension substantially affecting the rights of the appellant intervenes by reason of a United States Supreme Court decision. (See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 541, 61 S.Ct. 347, 85 L.Ed. 327; Carpenter v. Wabash Ry. Co., 309 U.S. 23, 36, 60 S.Ct. 416, 84 L.Ed. 558; Dinsmore v. Southern Express Co., 183 U.S. 115, 120, 22 S.Ct. 45, 46 L.Ed. 111; Crozier v. Fried Krupp Aktiengesellschaft, 224 U.S. 290, 308, 32 S.Ct. 488, 56 L.Ed. 771; Southern Public Utility Dist. v. Silva, 47 Cal.2d 163, 165, 301 P.2d 841.)

Our conclusion that the Winship rule is applicable to the instant case requires that we reverse the order appealed from and remand for a retrial under standards consistent with that decision.

Sufficiency of Evidence

Defendant argues that there was insufficient evidence to support the referee's determination that defendant violated Penal Code section 245. From an appellate viewpoint there is substantial evidence to sustain that determination, ⁴ but, as indicated above, the order must nevertheless be reversed because that evidence was not measured by the trier of fact in terms of the quantum of proof standard prescribed by the reasonable doubt rule. ⁵ We do, however, consider here, for future guidance, Steven's...