OFFICE OF THE PUBLIC DEFENDER
CITY AND COUNTY OF SAN FRANCISCO
RESEARCH UNIT
555 SEVENTH STREET
SAN FRANCISCO, CALIFORNIA 94103
(415) 553-9734 (direct voice line)
JEFF ADACHI
Public Defender
TERESA CAFFESE
Chief
Attorney
(415) 553-1671 (office voice line)
(415) 553-9810 (FAX)
CHRISTOPHER GAUGER
Managing Attorney, Research Unit
chris_gauger@ci.sf.ca.us
TO:
FROM:
DATE:
RE:
Memorandum
Jan Lecklikner
Chris Gauger
May 8, 2006
Welf. & Inst. Code, ' 777a and detentions hearings
Question:
Minor detained when 777a proceeding initiated. A probable cause hearing with the right to
call the preparer of the report was requested ( Dennis H. hearing). Can the court rule that minor has
no right to a Dennis H. hearing on a probation violation?
Short Answer:
Before 2000 and Proposition 21 all juvenile detention statutes and law applied to supplemental
petitions under Welf. & Inst. Code, '777a. Post-Proposition 21, I have found no case law on
point. Though proposition 21 changed 777a considerably, the continuing survival of subsection (d)
C requiring detention under 625 et. seq. C is plain language that the minor should be entitled to a
detention hearing when a 777a is brought; and shows an intent not to change those procedures.
That and the strong limits the courts and Legislature have placed on detention in juvenile cases
argues for a detention hearing under the same rules as 625 et seq. Dennis H. is merely an
extension of these statutes and the policy against detention of minors.
1
Analysis:
1. Before Proposition 21, detention law applied because a 777a was a Apetition.@
The Court of Appeal in both Angel M. and Daniel M. applied all the laws of detention to the
777a petitions before 2000 (and passage of Proposition 21). Angel asked for a ADennis H.
hearing; the minor has a right, at least on a new petition, to a detention rehearing where the court
must find whether there is a reasonable probability that a crime occurred and that the minor
committed it.1 This hearing is not as extensive as is often argued at rehearing.
Only the preparers of the report must be made available to the minor for cross-examination.2
And there is no right to the hearing if the prepares are present at the first hearing. Nonetheless,
this rehearing seems a settled right until 2001.
Angel M. challenged the juvenile court's denial of her request for release from juvenile hall.
She contended that she was not brought to court the day after her probation officer filed a
supplemental petition under section 777a in violation of Welfare and Institutions Code section 632
and California Rules of Court, rule 1471(b)(3). She also requested a Dennis H. hearing. In 1997,
the Court of Appeal agreed and reversed, concluding that the juvenile court erred in failing to
release the minor.3
Daniel M. sought to set aside the juvenile court's detention order, which was issued on the
grounds that the detention was warranted by the probation department=s three-count supplemental
petition for alleged probation violations. Daniel claimed that the probation department's failure to
file the supplemental petition within 48 hours of his arrest entitled him to immediate release under
Rules of Court 1470 and 1431(d). In 1996 the Court of Appeal agreed with Daniel and reversed his
case.4
1
2
In re Dennis H. (1971) 19 Cal. App. 3d 350, 354-355.
In re Luis M. (1986) 180 Cal. App. 3d 1090, 1094.
3
In re Angel M (1997) 58 Cal. App. 4th 1498, 1499-1500.
4
In re Daniel M. (1996) 47 Cal. App. 4th 1151.
2
The rulings were based on statutes and Court Rules that referred to supplemental petitions; but
also to the Legislature=s intent to limit juvenile detention. Proposition 21 has changed many
procedures and the state Supreme Court has found them constitutional: allowing proof by a
preponderance of evidence, admitting reliable hearsay5, and allowing revocation based on new
charges.6
Indeed the current California Juvenile Courts Practice and Procedure still cites Daniel M. as
controlling,7 at least for the 48 hour rule.
Before 2000 and Prop 21, the filing of a supplemental petition was required to change of
placement under 777a: AAuthority shall be made only after noticed hearing upon a supplemental
petition.@8 The code=s plain language in dealing with detention referred to Afiling a petition.@
The prosecution may argue that Prop 21's deletion of the requirement that a Apetition@ be filed
makes Dennis H. inapplicable. Moreover, it will argue that the changes make a juvenile revocation
comparable to an adult revocation procedure which allows detention without any Dennis H. rights.
In short, they will posit that the prior rulings (Angel M. and Daniel M.) are overruled by new
statute. But this argument does not lie because: 1) 777(d) survived (requiring detention under
Article 15); and, 2) the policy against juvenile detentions was not changed by statue or by intent.
2. Though Post- Prop 21 juvenile revocation hearings do more resemble adult probation
proceedings, the survival of subsection Ad,@ and lack of any legislative intent to alter its
policy against juvenile detention, support the conclusion that Dennis H. still applies to
juvenile revocation hearings.
Though Post- Prop 21 juvenile revocation hearings do more resemble adult probation
proceedings than before, the survival of subsection "d" C requiring detention under Article 15C
and lack of any legislative intent to alter its policy intent against juvenile detention, support the
conclusion that Dennis H. applies to juvenile revocation hearings.
5
In re Eddie M. (2003) 31 Cal. 4th 480; John L. v. Superior Court (2004) 33 Cal. 4th
6
In re Emiliano M. (2003) 31 Cal. 4th 510.
158.
1-3 California Juvenile Courts Practice and Procedure ' 3.34; Matthew-Bender
February 2006.
7
8
Pen. Code, '777 pre-2000.
3
A. No case on point
No appellate case has dealt directly with detention and the post Proposition 21 revocation
hearings. Only three Supreme Court cases have dealt with the post -Prop 21 statute, generally
finding its procedures, lower burden of proof and evidentiary standard, constitutional.9
In re Eddie M., and In re Emiliano M., held that revocation hearings were not limited to
probation violations only but could include new crimes proved by the lesser standard.10 John L.
held these procedures could apply to those minors who committed their crimes that made them
wards before the statute passage.11
B. Hearing procedures now resemble adult revocation hearings.
Of interest here is In re Eddie M.. In analyzing the changes under Proposition 21, it notes that
the statute now copies the procedures under adult probation as to: standard of proof, use of a new
offense, and reliability of evidence (Pen. Code, '1203.2).12
The court noted that the original bill arose:
9
John L. v. Superior Court (2004) 33 Cal. 4th 158 (no ex post facto violation); In re
Eddie M. (2003) 31 Cal. 4th 480 (no due process violations); In re Emiliano M. (2003) 31
Cal. 4th 510 ( same); tangentially In re Brent F. (2005, Cal App 3rd Dist) __ Cal App__; 2005
Cal App LEXIS 1042 notes that 777 is the only way to revoke probation to Youth Authority, not
via section 778.
10
In re Eddie M., supra ; In re Emiliano M., supra.
11
John L. v. Superior Court, supra.
12
In re Eddie M., supra.
4
Afrom legislative concerns that prosecutors were overburdened
with case referrals involving persons who were already under
juvenile court jurisdiction as the result of prior section 602
adjudications, but were not in custody, and who committed new
misconduct. Delays in charging new crimes and probation
violations, it was believed, impaired juvenile court treatment and
threatened public safety. By requiring prosecutors to quickly decide
in such cases whether to file a new section 602 petition, or instead a
supplemental petition under section 777, and by otherwise allowing
probation officials to initiate section 777 proceedings, lawmakers
sought to expedite the processing of section 777 matters involving
"further law or probation violations.=@13
According to the Court the bill (1985-1986 Reg. Sess. Ch. 757) was explicitly modeled on
Penal Code section 1203.2, which allows probation officers to initiate revocation proceedings
against adults for any probation violation, including the commission of new crimes. 14
The state might ague that the deletion of Apetition@ from 777a would make Dennis H. and the
other detention statutes that specifically mention petitions in Article 15 inapplicable; but section
Ad@ explicitly requires detention under Article 15.
C. But Section 777(d) specifically points to the detention procedures in Article 15 (in
contrast to the short-form detention allowed under adult probation).
Of course, both Angel M. and Daniel M. (decided in 1997 and 1996 respectively ) came after
the 1986 amendment to section 777 analyzed in Eddie M above. The reason why those cases were
correct then and remain correct C even after Proposition 21 C is that subsection (d) remains in the
statute: A An order for the detention of the minor pending adjudication of the alleged violation may
be made only after a hearing is conducted pursuant to Article 15 (commencing with Section 625)
of this chapter.@
Though the rest of the statute may be modeled on an adult motion to revoke, there is nothing
remotely similar for adults on release issues. The Legislature and Proposition 21 are specific in
directing the court to the procedure under Article 15; starting with 625. This includes the time
limits under Sections 631, 632; and the detention rules under 636. The inclusion of this
subsection evinces an intent to leave the detention procedure as it was under Angel M. and Daniel
13
Eddie M, supra 31 Cal. 4th at 497-498 quoting the Assem. Com. on Public Safety,
Analysis of Assem. Bill No. 3769 (1985-1986 Reg. Sess.) as introduced Feb. 21, 1986, p.
1.
14
Id. citing Assem. Com. on Public Safety, Analysis of Assem. Bill No. 3769
(1985-1986 Reg. Sess.) as amended Apr. 8, 1986, p. 3.
5
M..
D. The legislative policy against unsupported juvenile detention has not changed.
Finally, the general legislative policy against unnecessary juvenile detention was not affected
by Proposition 21, at least as enunciated in the AFindings and Declaration@ regarding
Proposition 21 (as published in the note following Pen. Code, ' 602 annotated Codes [Deerings]).
The Note cites statistics; gang violence, and rising juvenile crime rate; the need to ease
confidentiality restrictions; and the need to ensure accountability. There is no mention
specifically of the need for quicker detentions, or detention without Dennis H. proof.
AThe issue of postadjudication detention must be considered in light of the goals of juvenile
justice: >. . . to preserve and strengthen the minor's family ties whenever possible, removing the
minor from the custody of his or her parents only when necessary for his or her welfare or for the
safety and protection of the public.= (Welf. & Inst. Code, ' 202; In re Colar (1970) 9 Cal.App.3d
613, 615.)@15
As the Supreme Court pointed out in William M16 the intendments are all against detention and
it may not be ordered unless there is clear proof of the "urgent necessity" which sections 635 and
636 require.
The Court of Appeal in the 1995 In re Paul17 decision, pointed out the differences between an
adult and juvenile revocation proceedings relying heavily on Supreme Court precedent:
Our Supreme Court, in In re Arthur N. (1976) 16 Cal. 3d 226 , has
noted that a section 777 proceeding is not merely one to determine
whether a probation term has been violated and the original sentence
should be executed. The consequences are potentially far more
severe, and the proceeding is not the juvenile equivalent of an adult
probation revocation hearing. (In re Arthur N., supra, 16 Cal. 3d at
pp. 235-236.)
15
In re Talbott, supra, at 1294.
16
In re William M., supra, 3 Cal.3d 16, 25-31.
17
In re Paul R. (1996) 42 Cal App 4th 1582.
6
>Thus, while the adult whose probation is revoked may not be
subjected to any greater punishment than that provided for the
original offense, . . . a 602 ward adjudged so on the basis of a minor
offense, may be removed from the parents' home and subjected to
increasingly severe and restrictive custody which exceeds that
which would have been permissible initially, if he is later found on a
supplemental petition to have committed additional acts of
misconduct. . . .=
>Commitment to the Youth Authority in particular, brings about a drastic
change in the status of the ward which not only has penal overtones, including institutional
confinement with adult offenders, but also removes the ward from the direct supervision of
the juvenile court. . . .= (In re Arthur N., supra, 16 Cal. 3d at pp. 237-238, fn. omitted.)@18
Moreover, the idea that a new detention hearing with evidence of changed circumstances
should be held post-jurisdictional is the general proposition underlying the1988 Talbot case, in
which the Court of Appeal held that after a jurisdictional hearing C where the minor had been out
of custody C a minor is entitled to a detention hearing. The court also determined that when there
was no showing that the superior court was presented with any new or previously undiscovered
facts that would warrant detention, the minor should have continued in the custody of her mother
as previously ordered.19
3. Conclusion
Section D C requiring detention under Article 15 C should be the lynchpin argument showing
the difference between the juvenile revocation process and adult. Moreover, leaving D
unchanged evinced an intent to keep the previous detention procedure. There is no statement of
intent to the contrary. This argument read in context of the plethora of cases delineating the policy
against detention and the separation of child from parent should be telling in seeking Dennis H.
and other detention hearings.
end.
18
Id. at 1588-1589.
19
In re Talbott (1988) 206 Cal. App. 3d 1290, 1294.
7