People v. Adolphus T. , 158 Cal. Rptr. 186 ( 1979 )

Opinion

PARAS, J.

A minor asks us to set aside the judgment committing him to the California Youth Authority and to grant new jurisdictional and dispositional hearings.

The 17-year-old (born Dec. 11, 1961) minor was taken into custody on June 27, 1978; a petition to declare him a ward of the court (Welf. & Inst. Code, § 602) was filed on June 29. Three counts of armed robbery (Pen. Code, § 211a) were alleged. A detention hearing was continued from June 30 to July 11, at which time the minor, represented by private counsel, with his mother and stepfather present, denied the allegations in the petition; a contested jurisdictional hearing was set for July 24 before a referee of the juvenile court. On that day the minor appeared with his counsel, admitted count II of the petition, and obtained a dismissal of counts I and III. The mother did not appear for the hearing. She came later and was given a copy of the completed court form showing the admission and other proceedings and setting a dispositional hearing date. On August 31, the dispositional hearing was held before a juvenile court judge.

I

The record does not show any advice pursuant to section 248 (formerly § 554) of the Welfare and Institutions Code and California Rules of Court, rule 1317, of the right to seek review by a juvenile court judge of a referee’s order; it is claimed that the admission is therefore void.

The section 248 requirement is necessary to avoid basic unfairness and unlawful discrimination, and is mandatory. (In re Drexel F. (1976) 58 Cal.App.3d 801, 804-805 [130 Cal.Rptr. 253].) However, the right relates to review of a referee’s order, and the only orders of the referee (1) dismissed counts I and III and (2) continued the case for dispositional hearing. There is nothing in these to be reviewed; and the simple acceptance of the admission by the referee was not an “order” within the purview of the statute and rule.¹ There being nothing to review, section 248 and rule 1317 are not applicable to a proceeding in which the only subject is the admission of charges; there is no basic unfairness or unlawful discrimination to be served by review in such a case.

II

The minor further claims that the waiver and admission must be vacated because the referee (a) did not adequately inform him of his rights against self-incrimination, (b) did not ascertain whether the minor had consulted with his parents prior to the admission, (c) did not ascertain whether the minor’s parents consented to the admission, and (d) did not ascertain whether the minor’s counsel consented.

We append hereto in its entirety the pertinent portion of the admission proceedings; it demonstrates the lack of merit in these contentions. (See post, p. 650.) The minor was fully advised (per In re Michael M. (1970) 11 Cal.App.3d 741, 743-744 [96 Cal.Rptr. 887]; Boykin v. Alabama (1969) 395 U.S. 238, 243, etc. [23 L.Ed.2d 274, 279-280, 89 S.Ct. 1709]), but was not specifically told that anything he said could be used against him. This is technical error (see Cal. Rules of Court, rule 1354(a)), but not of constitutional import, and in light of the entire proceedings undeniably harmless. The minor’s counsel obviously consented to the admission, as indeed did his mother who according to the record voiced no objection between July 24 when she learned of the jurisdictional proceedings and at least August 31 when the dispositional order was made. And it is clear from rule 1354(c)(2), that the referee had no duty to seek or obtain the consent of the minor’s parents.²

III

The next contention is that a new dispositional hearing should be granted because the juvenile judge committed the minor pursuant to Welfare and Institutions Code section 1737. In re Tony S. (1978) 87 Cal.App.3d 429, 433 [151 Cal.Rptr. 84], states: “We hold that section 1737 does not apply to Youth Authority commitments from juvenile court. If the juvenile court desires a diagnostic study of a ward, it should proceed according to the provisions of Section 704.”

We agree with the In re Tony S. holding. But as that case further holds, an erroneous invocation of section 1737 does not invalidate the dispositional hearing if the record demonstrates the court’s intention to commit the minor unconditionally to the Youth Authority and not merely to order a diagnostic referral. (In re Tony S., supra, 87 Cal.App.3d at p. 434.) Such was the case here, as the following portion of the commitment proceedings shows:

“I intend to have a commitment to the Youth Authority under Section 1737 where the Youth Authority will have an opportunity to test and evaluate Adolphus and if they feel that there is any possible alternative other than Youth Authority, they would advise the Court and the Court might consider that, depending on the report that’s received from the Youth Authority.

“So the Court feels that Adolphus has been tried on probation; he’s utterly failed. He’s before the Court on a veiy serious offense of armed robbery and the Court at this time will follow the recommendation of the probation department; however, it will make the commitment under the provisions of Section 1373 [sic] of the Welfare and Institutions Code, Adolphus. This means that within a period of four months, [compare the 90 days of § 704], the Youth Authority individuals will present a written report to the Court which will be furnished to your attorney and the district attorney and the probation department. And they will review the matter concerning your commitment to the Youth Authority and your background and will try to evaluate the potential of you to try to start helping yourself.

“So the Court will make the following disposition in this matter.

“That Adolphus will be continued as a ward of the Juvenile Court of San Joaquin County.

“The Court finds that the welfare of Adolphus requires that his custody be taken from his parents.

“The Court finds that the mental and physical conditions of Adolphus are such as to render it probable that he will be benefited by the treatment program of the California Youth Authority. Custody of Adolphus will be taken from his parents and he’ll be committed to the California Youth Authority for a period of discipline and training. This commitment will be under Section 17347 [sic] of the Welfare and Institutions Code and will be reviewed by the Court upon the report submitted after a period of four months.” (Italics added.)

It is abundantly clear that the court did not have in mind a mere 90-day diagnostic referral. As in In re Tony S., supra, 87 Cal.App.3d at page 434, the erroneous reference to section 1737 did not invalidate the “otherwise appropriate order of commitment.” Moreover on our own motion, we augmented the record on appeal to add a letter of the same juvenile court judge to the Youth Authority dated February 26, 1979; it shows that a report of the authority, sent “pursuant to Section 1737,” was reviewed and considered by the judge, along with comments from the minor and his counsel, with a resulting decision to leave intact the earlier Youth Authority commitment. The matter is thus rendered moot, since the minor in any event received the benefit of a diagnostic study and recommendation.

IV

The final contentions of the minor bear on the question of his commitment to the Youth Authority. Numerous arguments are made as to why such a disposition was contrary to law.

Upon due consideration we have found all these claims to be entirely without merit. They deserve no detailed discussion.

The judgment is affirmed.

Regan, Acting P. J., concurred.

1 At the July 24 hearing the minor’s detention in juvenile hall was continued in effect pending the dispositional hearing. This arguably is also an “order.” However the original detention order was made on June 30 (and continued on July 11) and no claim of invalidity of that proceeding is asserted. Moreover it is not the detention which the minor attacks, but the jurisdictional result; the continued detention followed automatically on the admission, without any discussion or dispute.

2 It is noteworthy that five weeks elapsed between the jurisdictional hearing and the dispositional hearing, during which the minor, his parents, and his counsel (no claim of incompetence of counsel is raised) all were doubtless fully aware of the alleged deficiencies in the jurisdictional hearing. Not a word of objection was uttered until after the dispositional hearing.