Opinion
For Opinion on Hearing, see 150 Cal.Rptr. 916, 587 P.2d 712.
Opinions on pages 428-452 omitted.
[139 Cal.Rptr. 459]Paul Halvonik, State Public Defender, and Charles M. Sevilla, Chief Asst. State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb II and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.
POTTER, Associate Justice.
Danny T., a minor, appeals from the order of wardship (Welf. & Inst.Code, § 602) and commitment to the California Youth Authority after a finding that he violated Penal Code section 417. He contends: 'I. There was insufficient evidence to sustain the charge that Danny violated Penal Code section 417. II. The timely filed application for a de novo hearing, unacted upon for twenty days, mandates such a rehearing automatically before a superior court judge. III. The judge of the superior court improperly denied the minor's application for a rehearing de novo on the issues contested at the minor's adjudication hearing before the referee. IV. The juvenile court erred in committing Danny to the Youth Authority.'
Penal Code section 417 provides: 'Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, or any other deadly weapon whatsoever, in a rude, angry or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor.'
We view the evidence in the light most favorable to the express finding that appellant exhibited a deadly weapon in a rude, angry or threatening manner as is required by the familiar rule governing appellate review. (In re Dennis B., 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514; In re Roderick P., 7 Cal.3d 801, 808-809, 103 Cal.Rptr. 425, 500 P.2d 1.) On July 31, 1976, Michael Grim, an inspector for the BFI Trash Collection Service, was inspecting a trash route near where appellant lived. Appellant mistook Grim for a narcotics police officer and repeatedly challenged him to a fight by saying, 'You narcos ain't shit.' Grim repeatedly told appellant that he was a trash man and not a 'narco.' Appellant then obtained a sixfoot garden hoe, a portion of the metal end of which was broken, and swung the hoe at Mr. Grim while exclaiming, 'I am going to kill you mother fucker.' Meanwhile, Andy Andrews, a trash collector employed by BFI, approached appellant and Grim. Appellant challenged Andrews to a fight and actually engaged in a physical altercation with him. Grim ran to his truck and, using his radio, requested that the police be summoned.
Appellant testified in his own behalf that he was under the erroneous impression that Andrews was a 'narc' and that Andrews challenged appellant to a fight. Appellant accepted the challenge and the fight ensued. Thereafter, Andrews ran when appellant's mother appeared; appellant grabbed a hoe, started to chase him but was unable to swing the hoe at him because his mother took it away.
Appellant's first contention is without merit. When tested by the familiar rule governing appellate review, the evidence is sufficient to support the finding that appellant exhibited a deadly weapon in a rude, angry or threatening manner. Such evidence 'reasonably inspires confidence' and is 'of solid value.' (People v. Reyes, 12 Cal.3d 486, 497, 116 Cal.Rptr. 217, 526 P.2d 225; People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777). Contrary to appellant's assertion, the evidence here credited by the trier of fact is not "so [139 Cal.Rptr. 460] improbable or false as to be incredible." There is nothing physically impossible, patently ently false, or even justifiably suspicious about such evidence. (People v. Mayberry, 15 Cal.3d 143, 150, 125 Cal.Rptr. 745, 542 P.2d 1337; People v. Thornton, 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267.)
Appellant's second contention is premised on the following chronology of events: Appellant was adjudged to be a ward of the court after a jurisdiction hearing on September 2, 1976. He was committed to the California Youth Authority at his disposition hearing on September 16, 1976. He filed an application for rehearing accompanied by his 'Statements of Reasons for Rehearing' (Welf. & Inst.Code, § 558), on September 27, 1976. The transcripts of the jurisdiction and disposition hearings were ordered transcribed on September 27, 1976, and transcripts were filed on October 14 and 15, 1976, respectively. The Petition for Rehearing was denied by a judge of the superior court on October 20, 1976.
Appellant's jurisdiction and disposition hearings were held before a referee of the juvenile court. 'The Juvenile Court Law directs referees to hear cases assigned by the presiding juvenile court judge 'with the same powers as a judge of the juvenile court' [Welf. & Inst. Code] (§ 554) [now § 248] but subjects the referee's findings and orders resulting from such hearings to procedures for their review by a regular judge.' (In re Edgar M., 14 Cal.3d 727, 735, 122 Cal.Rptr. 574, 580, 537 P.2d 406, 412.)
Welfare and Institutions Code section 558, now section 252, provides as follows: 'At any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his parent or guardian may apply to the juvenile court for a rehearing. Such application may be directed to all or to any specified part of the order or findings, and shall contain a statement of the reasons such rehearing is requested. If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of such proceedings grant or deny such application. If proceedings before the referee have not been taken down by an official reporter, such application shall be granted as of right. If an application for rehearing is not granted within 20 days following the date of its receipt, it shall be deemed denied. However, the court, for good cause, may extend such period beyond 20 days, but not in any event beyond 45 days, following the date of receipt of the application, at which time the application for rehearing shall be deemed denied unless it is granted within such period.' (Emphasis added.)
Relying upon In re Edgar M., supra, 14 Cal.3d 727, 122 Cal.Rptr. 574, 537 P.2d 406, appellant urges that the passage of 20 days from the filing of his petition for rehearing without judicial action automatically constituted the grant of a rehearing and that the purported order denying a rehearing 26 days after the filing of the petition was 'completely void.' For the following reasons, we reject this contention.
In In re Edgar M., supra, the minor was adjudged to be a ward of the juvenile court at a May 31 hearing and was committed to 'camp' at a July 27 disposition hearing by a juvenile court referee. On August 3, the minor timely petitioned for a rehearing which was purportedly denied three months later on December 14, 1973. Our supreme court held this constituted the granting of a rehearing, saying (id. at pp. 730, 731-732, 122 Cal.Rptr. at p. 576, 537 P.2d at p. 408):
'We conclude that actual review of and action upon the application by the judge within the time prescribed was necessary to (1) prevent the referee's acts from exceeding the constitutional limitations restricting such acts to subordinate judicial duties and (2) effectuate the legislative intent to limit the period during which an application for rehearing can remain pending and unresolved. Since the Constitution precludes the operation of section 558's provision for automatic denial of an application not acted upon before the deadline, we are of the opinion that the statutory purpose can best be effectuated by treating such application in accordance with the section's provisions in cases in which the proceedings were not taken down by an official reporter. In those cases the application for rehearing is 'granted as of right,' and we conclude by analogy that the expiration of the time for action on the minor's application should cause it to be automatically granted even though the proceedings [139 Cal.Rptr. 461] in his case were in fact taken down by a reporter.
'. . .
'. . . A judge denied the application on December 14, 1973. However, the order of denial came three months too late to have any effect under the statutory scheme because the period within which section 558 declares that the application must be granted or else be 'deemed denied' had already expired. 3 The normal length of such period is 20 days after the court receives the application, and the court can extend the period up to 45 days after such receipt. No indication of any extension appears in the record, but even assuming maximum exercise of the court's extension power, the automatic denial prescribed by section 558 occurred no later than September 17, 1973.
Code of Civil Procedure section 659a provides as follows:
'3 A substantial part of the time between the filing of the application on August 3d and its denial on December 14th was consumed in preparing the transcripts which section 558 required the judge to read before making his ruling. Notations on the application in the record show the transcripts were ordered on September 6th and were 'due' September 21st and that the transcripts of the adjudication hearing (held May 31st) and disposition hearing (held July 27th) were filed on October 23d and October 10th respectively.
'4 From 1963 to 1971 the last sentence of section 558 was as follows: 'If an application for rehearing is not granted within 20 days following the date of its receipt, it shall be deemed denied.' This sentence was construed in In re J. R. (1970) 5 Cal.App.3d 597, 85 Cal.Rptr. 396 to refer to a 20-day period following the court's receipt of the transcript. In the face of this construction, the Legislature in 1971 added this sentence to section 558: 'However, the court, for good cause, may extend such period beyond 20 days, but not in any event beyond 45 days, following the date of receipt of the application, at which time the application for rehearing shall be deemed denied unless it is granted within such period.' (Italics supplied.) The 1971 amendment indicates a legislative intent to measure both the 20-day limit and the 45-day limit on the granting of a rehearing from the date of receipt of the application.'
The ultimate conclusion of the court in Edgar M. was stated as follows (id. at p. 737, 122 Cal.Rptr. at p. 581, 537 P.2d at p. 413):
'. . .. If the proceedings have been taken down by a reporter but the judge does not in fact read the transcripts and act on the application within the required period, the proceedings should be treated as a practical matter as if they had been unreported. . . .'
The court referred to its holding in Edgar M. in the decision in In re Damon C., 16 Cal.3d 493, 497, 128 Cal.Rptr. 172, 174, 546 P.2d 676, 678, saying:
'. . .. Edgar M. held that the judge must read the transcript of all the challenged proceedings and act on the application for rehearing within the time limits of section 558 or that a rehearing would be granted as a matter of right. [14 Cal.3d at pp. 735-736, 122 Cal.Rptr. 574, 537 P.2d 406.]'
The facts in Edgar M. differ in one significant respect from those in the case at bench. In Edgar M., no action was taken on the petition for hearing within the period of time the court was empowered to act, 'assuming maximum exercise of the court's extension power.' (14 Cal.3d at p. 732, 122 Cal.Rptr. at p. 578, 537 P.2d at p. 410.) In the case at bench, the ruling was made within six days of the initial 20-day period for acting and well within the 45-day maximum period. No formal order extending the time to act appears in the record; however, the action of the judge in reading and considering the matter on October 20 constituted an implied extension of the time to that date. The fact that the extension was not made prior to the expiration of the initial 20-day period is not determinative. Under comparable circumstances, such extensions of time have been held properly made retroactively at any time within the maximum period allowable. In Pollock v. Standard Oil Co., 256 Cal.App.2d 307, 310, 64 Cal.Rptr. 66, 69, the court was held properly to have extended the time within which to file affidavits in support of a motion for new trial despite expiration of the 10-day period permitted by Code of Civil Procedure section 659a 4 by simply receiving [139 Cal.Rptr. 462] the affidavits prior to the 30th day. In upholding this action, the court said (ibid.):
'. . .. Although declarations supporting motion for new trial must be filed within 10 days after service of the notice of intention, the court may extend that time for not to exceed 20 days (Code Civ.Proc., § 659a), and the court can relieve from default to the same extent it could have granted extension in advance (Boynton v. McKales, 139 Cal.App.2d 777, 782, 294 P.2d 733). The clear import of the court's actions here was to grant such relief and permit filing on the 30th day.' (Emphasis added.)
The 'clear import' of the action of the trial court in this case in considering the petition for rehearing as soon as possible after the filing of the reporter's transcripts was comparable of that of the court's action in Pollock. It would be exalting form over substance to have the validity of the court's action depend upon the entry of a formal order extending the time.
The policy considerations behind our supreme court's decision in Edgar M. are not violated by this holding. As that court stated (referring to the latest amendments to section 558 of the Welfare and Institutions Code, restoring time limitations upon the court's action): 'The salutary purpose of these amendments was to prevent indefinite prolongation of uncertainty concerning the status of a referee's order as the order of the court.' (14 Cal.3d at p. 737, 122 Cal.Rptr. at p. 581, 537 P.2d at p. 413.) No such 'indefinite prolongation' results from our holding in this case since the 45-day limitation constitutes a definite terminal date the Legislature has found reasonable in light of the difficulty of obtaining transcriptions of the reported proceedings within the 20-day period.
In support of his third contention, appellant argues that constitutional guarantees of due process and equal protection require the superior court judge who hears an application for rehearing to personally hear the witnesses where, as here, credibility is at issue. Such contention was recently resolved adversely to appellant in In re Jay J., 66 Cal.App.3d 631, 136 Cal.Rptr. 125; hearing denied March 31, 1977, where the court said, 'We conclude that the fact finding process prescribed by the juvenile court law is consistent with standards of due process, and that compelling authority validates the constitutionality of the application of a different method of fact finding to juveniles and adults charged with criminal conduct.' (Id. at p. 633, 136 Cal.Rptr. at p. 126.) We adhere to the views expressed therein.
There is no merit to appellant's claim based on Lawrence B.. Findings made by the referee in this case included a finding that 'Welfare of minor requires that custody [139 Cal.Rptr. 463] be taken from parents or guardians' and 'that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by the Youth Authority.' Lawrence B. held that like findings in the language of Welfare and Institutions Code sections 726 and 734 were insufficient to sustain a Youth Authority commitment. However, the precedential value of Lawrence B. is open to question. There was a strong dissent by Jefferson, J., which pointed out the lack of any prior case authority to support the majority position and argued that the clear statutory language and the history of associated legislation required a contrary conclusion. Such conclusion contrary to that of the majority had already been reached in In re Willy L., 56 Cal.App.3d 256, 128 Cal.Rptr. 592.
The conflict between these views is in the process of being resolved. In a subsequent unreported decision of Division Four, the majority reached the same result that was reached in In re Lawrence B. Jefferson, J., again dissented, enlarging upon the persuasive argument already made and pointed out the conflict within Willy L. As a result, or supreme court has granted a hearing.
It is, however, unnecessary to resolve this conflict of authority in order to decide the instant case. It is governed by the decision in In re Robert W., 68 Cal.App.3d 705, 137 Cal.Rptr. 558, in which Jefferson, J., wrote the majority opinion for Division Four. In Robert W., the probation report overwhelmingly demonstrated the existence of facts supporting the order taking the minor from the physical custody of the parent or guardian. The court said (68 Cal.App.3d at pp. 720-722, 137 Cal.Rptr. at p. 567):
'In the case at bench, it is not necessary for us to decide whether In re Lawrence B, should be followed rather than In re Willy L., or that the reverse should be true. Even if we were to take the view that Youth Authority commitment in the case at bench should be considered error because of the lack of findings more detailed than in the language of Welfare and Institutions Code sections 726 and 734, such an error does not automatically constitute prejudicial error to require a reversal. Application of the principle announced recently by the California Supreme Court in People v. Chi Ko Wong (1976) 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976 dictates that if there is error in the case at bench, it should be considered nonprejudicial and nonreversible error.
'. . .
'If the record in Chi Ko Wong was such that a failure to make the necessary statement of reasons to support a finding of unfitness constituted an error harmless beyond a reasonable doubt under the Chapman [Chapman v. Calif., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705] standard, a fortiori, the record in the case at bench as revealed by the probation officer's report, is such that the failure of the juvenile court to make the necessary findings to support a Youth Authority commitment constituted harmless error because it is not reasonably probable that a result more favorable to the minor would have been reached in the absence of such error under the Watson standard. (See People v. Duran (1976) 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322; People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)'
The record in this case likewise establishes that it is not reasonably probably that a result more favorable to the minor would have been reached in the absence of error (if any there was) in the form of the findings. The evidence considered by the court at the dispositional hearing included a full report by the probation officer was well as the testimony of the probation officer. Included in the probation officer's report was the record of prior adjudications dating back to 1973 when appellant was 13 years old. The first petition was sustained on a charge of trespassing when appellant was apprehended while attempting to enter a home. He was placed on one year's probation. The second adjudication also occurred when appellant was 13 years of age. This time the charge, which was sustained, was a [139 Cal.Rptr. 464] violation of section 417 of the Penal Code. Appellant was again placed on probation. The third petition, which was sustained, was filed when appellant was 15 years old. The charge was robbery. Upon sustaining the petition, the court ordered appellant 'to the California Youth Authority for a period not to exceed 90 days to the diagnostic and treatment center' and thereafter appellant was committed to 'Camp-Community placement.' The probation officer's report also disclosed that while in camp-community placement, appellant was involved in two separate fight incidents. Less than two months' time elapsed between appellant's release from camp and his arrest on the current charge.
The probation report further referred to the fact that appellant 'admitted that he has used drugs extensively,' that the minor had stated that if sent to camp he would run away, and that the result of the CYA diagnostic study was a recommendation that appellant be committed to CYA in connection with the robbery adjudication. Another fact pointed out in the report was that appellant 'had to be subdued by three men' at the time of the predetention hearing.
Based upon the above showing and the recommendation of the probation officer, the court concluded that a Youth Authority commitment was 'the best place for him at this time.' No written findings in addition to those above quoted were made. However, the court made a lengthy statement of appellant's need to learn self-control and his belief that the Youth Authority had the program most likely to aid him in that respect. Under the circumstances, we are perfectly satisfied that any error in the brevity of the findings was harmless beyond a reasonable doubt.
Finally, the inclusion in the probation report of three 'police contacts' which did not result in adjudications did not deprive appellant of 'fundamental fairness' demanded by due process. In People v. Chi Ko Wong, 18 Cal.3d 698, 719, 135 Cal.Rptr. 392, 406, our supreme court found improper the inclusion of 'evidence of police contacts not leading to arrest or conviction . . . without supporting information.' Further content to this comment was given in footnote 17 (18 Cal.3d at pp. 719-720, 135 Cal.Rptr. at p. 406):
"The practice of including raw arrest data in a probation report is condemned by the American Bar Association's Standards for Criminal Justice. '. . . the Advisory Committee means to include only those charges which have resulted in a conviction. Arrests juvenile dispositions short of an adjudication, and the like, can be extremely misleading and damaging if presented to the court as part of a section of the report which deals with past convictions. If such items should be included at all--and the Advisory Committee would not provide for their inclusion--at the very least a detailed effort should be undertaken to assure that the reader of the report cannot possibly mistake an arrest for a conviction.' (Standards Relating to Probation (Tent. Draft 1970) p. 37.)' (People v. Calloway, supra, 37 Cal.App.3d 905, 908, 112 Cal.Rptr. 745, 747; italics added.)'
The reports of incidents which did not result in adjudications included in the probation report in the case at bench did not offend these standards; they did not, in any event, prejudice appellant. The report in each instance specifically stated how the proceeding terminated--in one instance by the referee; in another by motion pursuant to '1118 Penal Code'; and in yet another on petitioner's motion 'pursuant to 1385 Penal Code.' There was, moreover, substantial supporting information detailing the allegations on which the dismissed charges were based. More significantly, however, the referee repeatedly indicated his appreciation of the fact that the nonadjudicated matters did not support the probation officer's recommendation. There is, therefore, no grounds for a belief that the disposition order was in any respect based upon such reports, especially in view of the abundance of relevant material demonstrating that despite a succession of adjudications resulting in appellant being placed [139 Cal.Rptr. 465] home on probation and being subjected to camp/community placement, appellant had made no progress toward rehabilitation.
The orders appealed from are affirmed.
FORD, P. J., and ALLPORT, J., concur.
'Within ten (10) days after serving the notice, the moving party shall serve upon all other parties and file any affidavits intended to be used upon such motion. Such other parties shall have ten (10) days after such service within which to serve upon the moving party and file counter-affidavits. The time herein specified may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period of not exceeding twenty (20) days.'
"The Court finds that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by the Youth Authority. The Court finds that the minor comes under the provisions of Sec. 726, a & c W/C Code." ( In re Lawrence B., id. at p. 673, 132 Cal.Rptr. at p. 601.)