W. R. W., In re

• Decision Date: 28 May 1971
• Docket Number: Cr. 19090
• Citation: 95 Cal.Rptr. 354,17 Cal.App.3d 1029
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of W.R.W., a Person under the age of 21 years. Kenneth F. KIRKPATRICK, as Probation Officer, etc., Plaintiff and Respondent, v. W.R.W., a Minor, Defendant and Appellant.

Page 354

95 Cal.Rptr. 354

17 Cal.App.3d 1029

In the Matter of W.R.W., a Person under the age of 21 years.

Kenneth F. KIRKPATRICK, as Probation Officer, etc., Plaintiff and Respondent, v. W.R.W., a Minor, Defendant and Appellant.

Cr. 19090.

Court of Appeal, Second District, Division 5, California.

May 28, 1971.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Beverly K Falk, Deputy Atty. Gen., for plaintiff and respondent.

Richard S. Buckley, Public Defender, Los Angeles County, Kathryn J. McDonald and Laurance S. Smith, Deputy Public Defenders, for defendant and appellant.

REPPY, Associate Justice.

In a petition filed February 11, 1970, appellant W.R.W. (the minor) was alleged to be a minor who came within section 602 of the Welfare and Institutions Code ¹ in that he committed assault with force likely to produce great bodily injury upon another youth in violation of Penal Code section 245. At a hearing before a referee on March 5, 1970, the petition was amended to alleged simple battery in violation of Penal Code section 242 and the petition was sustained, the allegation having been found to be true. The proceedings were continued for disposition. On April 1, 1970, testimony was taken from one witness, Yolanda Mar, and the case was dismissed by the referee. On April 11, 1970, the minor and his parents received notice of the referee's order. On April 16, 1970, the court reporter was directed by a superior court judge to prepare a transcript of the testimony of Yolanda Mar. On May 1, 1970, that judge ordered a rehearing of the matter. At the rehearing, the court denied the minor's motion to dismiss made on the ground that the rehearing was not ordered within the necessary time limits provided by sections 556 through 559. ² After taking testimony, the court found that the allegation of the February 11 petition ³ was true and ordered the minor to be placed on probation for six months and to pay $500 restitution. A motion to vacate this order (decree) was denied. The minor appealed from both orders. ⁴

The minor contends on appeal that the court was without jurisdiction to order a rehearing because the order was made after the dismissal of the case had become final under sections 556 to 559.

Section 556 provides in pertinent part as follows: 'Except as provided in Section 557 ⁵ all orders of a referee * * * shall become immediately effective * * *. In a case in which an order of a referee becomes effective without approval of a judge of the juvenile court, it becomes final on the expiration of the time allowed by section 558 for application for rehearing, if application therefor is not made within such time and if the judge of the juvenile court has not within such time ordered a rehearing pursuant to section 559.' The latter sections read as follows: 'A judge of the juvenile court may, on his own motion, order a rehearing of any matter heard before a referee.' The time allowed by section 558 for application for rehearing is '10 days after service of a written copy of the order and findings of a referee.' It was held in In re Henley, 9 Cal.App.3d 924, 88 Cal.Rptr. 458, ⁶ that 'the provision in section 556 rendering the order of the referee 'final' 10 days after service of copies of such order deprives a juvenile court of jurisdiction to order a rehearing on its own motion following the end of that period. * * * After expiration of the statutory period, an order for rehearing is beyond the jurisdiction of the juvenile court and, therefore, void.' (P. 928, 88 Cal.Rptr. p. 459. See also Richard M. v. Superior Court, 4 Cal.3d 370, 378, fn. 4, 93 Cal.Rptr. 752, 482 P.2d 664.)

The order for rehearing in the instant case was made after the expiration of the ten-day period. The Attorney General contends, however, that the court's ordering of the transcript of Mar's testimony constituted an application by the court for rehearing with the same effect and time limits as an application for rehearing by a minor under section 558. ⁷ He logically points out that the determination as to whether or not to order a rehearing can best be made after an examination of the teanscript, and that the transcript may not reach the court within ten days. ⁸

However, this 'interpretation' of the statute is a clear departure from the pertinent language of sections 556 and 558. ⁹ Where the language of a statute is clear and unambiguous, its meaning plain, and there is no apparent conflict with the legislative intent there is no need for construction by the court and the courts should not add to or alter that language. (Vallerga v. Dept, Alcoholic Bev. Control, 53 Cal.2d 313, 318, 1 Cal.Rptr. 494, 347 P.2d 909; Caminetti v. Pacific Mutual Life Ins. Co., 22 Cal.2d 344, 353--354, 139 P.2d 908.) The Attorney General relies on In re J.R., 5 Cal.App.3d 597, 85 Cal.Rptr. 396, in which this division of this court interpreted section 558 to provide that a minor's application for rehearing is deemed denied if not granted within 20 days following the date of the receipt of the transcript, rather than the date of the receipt of the application, admitting that the interpretation 'does some violence to the grammar of (the section).' (Pp. 600--601, 85 Cal.Rptr. p. 398.) In re J.R., Supra, involved a portion of section 558 not before us here. We are concerned with the time within which a judge may order a rehearing on his own motion rather than with the time within which the minor's application for rehearing must be deemed denied. The interpretation urged by the Attorney General of the language of sections 556 and 558 pertinent to the issue before us does not merely do 'some violence to,' but constitutes a complete abandonment of that language.

The holding in In re Henley Supra, 9 Cal.App.3d 924, 88 Cal.Rptr. 458, that jurisdiction is lost unless the order for rehearing is issued within ten days, was made with no mention of the possible effect of an order for the transcript, even though In re J.R., Supra, 5 Cal.App.3d 597, 85 Cal.Rptr. 396, had been decided several months previously. A court wishing to examine the transcript before deciding whether or not to order a rehearing is not entirely without recourse. It can ask the reporter to read portions of the transcript orally, or, under section 557, can establish a requirement that all or certain types of orders, e.g., dismissals where the petition has been sustained, and perhaps orders in particular cases, must be approved before becoming effective.

Thus, the order for rehearing was untimely if the referee's order was in fact a valid order. The Attorney General contends that the dismissal resulted from a redetermination, on the basis of Mar's testimony of the jurisdictional issue, i.e., whether the minor had struck the other youth in violation of state law (§ 602), and that the redetermination was invalid because it was made in the absence of certain procedural requirements (§ 775), and after a reading of the probation report. ¹⁰ We do not reach the merits of the contentions of error because the record reveals that the dismissal did not result from a redetermination of the jurisdictional issue.

At the jurisdictional hearing on March 5, after hearing conflicting testimony as to whether the minor had struck the other youth, knocking him down in front of the Mar home, the referee determined that the minor had done so. At the dispositional hearing, Yolanda Mar testified that she had seen the youth fall in her front yard at a time when the minor was in the street entering his car. This testimony was clearly relevant to the jurisdictional rather than dispositional phase of the case. However, we are convinced that the referee's determination of dismissal was not influenced by the Mar testimony. The referee did not announce a reopening of the jurisdictional phase (§ 776), or reverse his prior finding (§§ 702, 775). In fact, during a discussion after Mar's testimony, the referee stated, 'that's the only incident that I am convinced of, was what happened in the front yard, not what happened in the bathroom.' The minor's attorney then stated: 'I was hopeful * * * that * * * perhaps your Honor would reconsider your previous determination.' The referee replied as follows: 'He positively identified (the minor) as being the one who struck him in the front yard. * * * And that (the front yard incident) was the only incident that I was satisfied was true.' The referee then questioned the minor as to his present age, school and career plans, stated that the report indicated that his only other police contact involved the possession of alcohol, and then said: 'In view of the fact that this Minor is now eighteen and I am quite favorably impressed with the parents, I think he is in pretty good hands. * * * I don't even think it is advisable to put him on probation. So I am going to dismiss the case.'

Finally, the Attorney General contends that the dismissal was invalid because dismissal is not a proper means of dispostion under section 725. That section provides:

'After receiving and considering the evidence on the proper disposition of the case, the court ¹¹ may enter judgment as follows:

'(a) If the court has found that the minor is a person described by Sections 601 or 602, it may, without adjudging such minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months.

'(b) If the court has found that the minor is a person described by Sections 601 or 602, it may order and adjudge the minor to be a ward of the court.

'(c) If the court has found that the minor is a person described by Section 600, it may order and adjudge the minor to be a dependent child of the court.'

Section 725 does not list dismissal as one of the possible alternatives. However, the fact that section 725 provides that 'the court May enter judgment as follows' (italics supplied), rather than Shall, leaves open the possibility that...