Jesse W. v. Superior Court

576 P.2d 963, 20 Cal. 3d 893, 145 Cal. Rptr. 1, 1978 Cal. LEXIS 208

• Court: California Supreme Court
• Decided: March 31, 1978
• Docket: S.F. 23580
• Status: Published

Opinions

Opinion

CLARK, J.

Jesse W., a minor, seeks writ of prohibition to restrain the respondent juvenile court from proceeding pursuant to statute (Welf. & Inst. Code, former § 559, now § 253) to redetermine petitioner’s status as a ward after a referee had absolved petitioner of misconduct charged in a petition filed pursuant to Welfare and Institutions Code section 602. Welfare and Institutions Code section 602 provides: “Any person who is under the age of 18 years when he violates any law of this state . . . defining crime ... is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” All section references hereinafter are to the Welfare and Institutions Code unless otherwise specified.

Petitioner contends that the statutory procedure for redetermination of his status constitutes a second exposure to jeopardy for the same offense, contrary to Fifth Amendment prohibitions. We agree and order the writ to issue.

Petitioner was charged pursuant to section 602 with having committed in December 1975 a battery as defined by Penal Code section 242. At a hearing before a juvenile court referee to determine the truth of such allegations, both the People and petitioner called witnesses who were examined and cross-examined. After brief argument the referee dismissed the charges on the ground that he entertained a reasonable doubt whether petitioner had committed the charged offense.

In April 1976, following the referee’s order dismissing the petition, a juvenile court judge, acting pursuant to sections 559 and 560,¹ ordered a de novo rehearing of the allegations of petitioner’s misconduct. Petitioner moved to dismiss the charges on the ground that he had been once in jeopardy and, after the motion was denied, sought the instant relief. Proceedings in the juvenile court have been stayed pending the result of this proceeding.

In support of his claim that a de novo rehearing before a juvenile court judge would expose him a second time to jeopardy, petitioner relies particularly on Breed v. Jones (1975) 421 U.S. 519 [44 L.Ed.2d 346, 95 S.Ct. 1775]. Pursuant to provisions of our Juvenile Court Law at issue in that case, a minor who had been found by a juvenile court to have committed alleged acts of misconduct and thus to have come within the jurisdiction of that court, could nevertheless be tried on criminal charges arising out of the same misconduct. The minor in Breed was criminally convicted after the juvenile court had adjudged him to be a ward who was unfit for treatment within the facilities of that court. (See Bryan v. Superior Court (1972) 7 Cal.3d 575 [102 Cal.Rptr. 831, 498 P.2d 1079].) The Supreme Court held that jeopardy first attached at the adjudicatory or jurisdictional hearing in the juvenile court, remarking that “it is simply too late in the day to conclude . . . that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.” (Breed v. Jones, supra, 421 U.S. 519, 529, fn. omitted [44 L.Ed.2d 346, 355].) The court next held that the jeopardy to which the juvenile was exposed in criminal court proceedings was a new and different jeopardy, and that the criminal conviction was thus obtained contraiy to the constitutional prohibition.

It is thus established that double jeopardy prohibitions apply in juvenile proceedings. (See also Richard M. v. Superior Court (1971) 4 Cal.3d 370 [93 Cal.Rptr. 752, 482 P.2d 664].) Jeopardy attached in petitioner’s case when the jurisdictional hearing was “entered upon.” (Id., at p. 376.) A conclusion that jeopardy has attached, however, “ ‘begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.’ ” (Serfass v. United States (1975) 420 U.S. 377, 390 [43 L.Ed.2d 265, 275, 95 S.Ct. 1055].) The dispute in this case concerns the proper characterization of juvenile court proceedings had after the point in time at which jeopardy first attached. We accordingly proceed to examine the nature of such proceedings.

We had occasion to examine a juvenile court referee’s function and authority in In re Edgar M. (1975) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406]. We held that a referee is constitutionally limited to the performance of only “subordinate judicial duties” (see Cal. Const., art. VI, § 22) and noted that “referee’s determinations . . . are not binding until adopted by the court itself.” (Id., at p. 734.) Although a referee may be assigned by a presiding juvenile court judge to hear and determine issues (former § 554, now § 248), such determinations are subject to procedures for review by a judge. “It is clear that without the availability of any review procedures the contested adjudication and disposition of a minor as a ward of the juvenile court by a referee acting without the parties’ consent would violate the constitutional limitation upon his functions to ‘subordinate judicial duties’ (art. VI, § 22).” (Id., at p. 735.)

In view of the foregoing it is manifest we have limited a referee’s subordinate judicial duties in such a way that, unless a minor waives his right to judicial redeterminations, a referee’s findings and orders are advisory only.² A referee’s findings or orders may appear to have the effect of a judicial determination when a minor’s application for rehearing is denied by the juvenile court. But this is so only because the court, exercising an independent judgment, approves the referee’s advisory determinations. (See former § 558, now § 252.) We stated in Edgar M. that “[A] judge’s decision to deny the application and hence adopt the referee’s determinations as those of the court is based on data amply sufficient for forming a.judgment independent from that of the referee. Under these circumstances the referee’s initial findings and orders become only advisory and their rendition constitutes no more than a subordinate judicial duty.” (In re Edgar M., supra, 14 Cal.3d 727, 735-736.)

The People contend that because a referee’s function is merely to advise and assist the juvenile court in making judicial determinations affecting a minor, it cannot be said that a minor’s exposure to jeopardy in proceedings before the referee constitutes an exposure separate and apart from that occurring when the juvenile court finally adjudicates the matter within the meaning of Breed v. Jones, supra, 421 U.S. 519. This contention has merit when in fact the juvenile court acts in review of advisory determinations made by a referee. In such instance there is but one continuing proceeding leading to but a single adjudication. But this is not the instant case. Here the juvenile court does not purport to act in review of a recommended determination. It has ordered a de novo rehearing pursuant to sections 559 and 560. A rehearing de novo “is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held.” (Collier & Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205 [70 P.2d 171].) The question thus becomes whether there is a second exposure to jeopardy after an initial exposure in proceedings before the referee, the referee’s determinations are abandoned rather than reviewed, and another, independent proceeding is commenced before a juvenile court judge.

The Supreme Court emphasizes in Breed that the constitutional prohibition against a second exposure to jeopardy is a prohibition against multiple trials—not the threat of multiple punishment.³ In that case a juvenile prosecution was deemed to be the equivalent of a criminal prosecution within the meaning of “jeopardy” and, after the juvenile proceedings had been prosecuted to a conclusion, there was a criminal prosecution for the same offense. Here juvenile proceedings . before a referee have been prosecuted to a conclusion and petitioner is threatened with a second prosecution for the same offense. Although the threatened prosecution is for a juvenile adjudication—not a criminal proceeding—“there is little to distinguish an adjudicatory hearing . . . from a traditional criminal prosecution.” (Breed v. Jones, supra, 421 U.S. 519, 530 [44 L.Ed.2d 346, 356].) Moreover, we held a second exposure to jeopardy to exist when, after allegations of a first petition were found to be not true, a juvenile is charged with the same offense in a second petition. (Richard M. v. Superior Court, supra, 4 Cal.3d 370; see also In re James M. (1973) 9 Cal.3d 517, 520 [108 Cal.Rptr. 89, 510 P.2d 33].)

We can distinguish Richard M. and James M. only on the ground that the first exposure to jeopardy in those cases occurred in hearings before a juvenile court judge, rather than before a referee as in the instant case. But because jeopardy attaches when proceedings are entered upon before either a juvenile court judge or a referee, the distinction is one which must be deemed to be without meaning. In both instances the. juvenile is exposed to jeopardy when the hearing is entered upon. If that hearing is terminated and the juvenile is subjected again to a de novo hearing—not a review of the first hearing and determinations therein—he would necessarily be exposed to jeopardy a second time within the meaning of Breed v. Jones, supra, 421 U.S. 519.⁴ (See Aldridge v. Dean (D.Md. 1975) 395 F.Supp. 1161 [holding procedures under Maryland’s juvenile court law, substantively similar to pertinent provisions of our law, to expose a juvenile to a second jeopardy].)

We conclude petitioner would be exposed to jeopardy a second time contrary to Fifth Amendment prohibitions if subjected to a redetermination of his status as a ward of the juvenile court in the circumstances of this case.

Let a peremptory writ of prohibition issue as prayed for.⁵

Mosk, J., Richardson, J., and Manuel, J., concurred.

1 At the time here pertinent, section 559 provided: “A judge of the juvenile court may, on his own motion, order a rehearing of any matter heard before a referee,” Section 559 has been repealed (Stats. 1976, ch. 1068, § 17), and section 253 now provides for a rehearing on the court’s own motion.

At the time here pertinent section 560 (repealed, Stats. 1976, ch. 1068, § 17) provided: “All rehearings of matters heard before a referee shall be before a judge of the juvenile court and shall be conducted de novo.” (See, currently, § 254.)

2 We consider here only those instances in which the parties have not stipulated that a referee may make judicial determinations when otherwise qualified to do so. (See Cal. Const., art. VI, § 21; In re Edgar M., supra, 14 Cal.3d 727, 732.) When a minor as a party litigant has so stipulated, a referee’s determinations would then be accorded full judicial effect.

3 The statutory proceedings in the circumstances of the instant case do not pose a threat that a juvenile will be punished twice—once as the result of a referee’s determination and again as the result of a juvenile court determination. The lack of such a threat, however, does not answer the constitutional claim. The court in Breed stated it has “pointed out that ‘the Double Jeopardy Clause ... is written in terms of potential risk of trial and conviction, not punishment.’ (Price v. Georgia, 398 U.S., at 329. . . .)” (Breed v. Jones, supra, 421 U.S. 519, 532 [44 L.Ed.2d 346, 357].)

4 The constitutional prohibition against a second exposure to jeopardy is operative because of the prior exposure. Although the allegations of the petition were found to be not true in the prior proceedings before the referee, such a finding is not a condition to the right to invoke the constitutional prohibition.

5 Because a referee’s determination favorable to a juvenile cannot be reheard, it is not merely a subordinate judicial act and is constitutionally proscribed. (See In re Edgar M., supra, 14 Cal.3d 727.) While neither that constitutional proscription nor jeopardy limitations would foreclose referee jurisdictional recommendations adverse to a juvenile and subject to petition for rehearing by the juvenile, it is nevertheless apparent a referee’s usefulness in hearing the jurisdictional issue will be severely limited. We do not purport to define those limits. However, juvenile court referees may continue to hear and to make advisory recommendations as to detention, fitness, dispositional and perhaps other matters without offending constitutional limitations.