People v. Javier A. (159 Cal. App. 3d 913, 1984)

Opinion

JOHNSON, J.

This case raises two issues. First, did the seizure of a

photograph belonging to a nondefendant taint subsequent evidence obtained with the assistance of the photograph. Secondly, may a juvenile be constitutionally denied a right to jury trial in a delinquency proceeding where his wardship and consequent loss of freedom depends upon proof beyond a reasonable doubt that he committed a specified felony.

We reluctantly affirm. Although we find the motion to suppress was properly refused, we also conclude appellant was denied his “inviolate” right to jury trial under article I, section 16 of the California Constitution. Only because of the compulsion of Auto Equity do we refrain from reversing and remanding for a new trial where Javier would enjoy the right to trial by jury. Instead we can only urge the Supreme Court to reconsider the 60-year-old decision which upheld the constitutionality of denying jury trials in juvenile proceedings.

I. Facts and Proceedings Below.

Certain facts are undisputed. Shortly before 9 p.m. on August 17, 1982, three members of the “40th Avenue” juvenile gang were walking near the intersection of Jefferson and 35th Street in Los Angeles. A yellow Ford Torino sped into view and halted a few feet from the three gang members. A rifle emerged from the driver’s side of the car. Three shots rang out. One of the gang members, Alberto “Smiley” Hermosillo, clutched his side and fell to the ground, wounded.

In dispute is the identity of the person who fired the shots. The investigation produced its first apparent breakthrough about an hour after the incident. Detective Lane heard about a young woman residing at a certain address who was the girlfriend of someone suspected in a recent shooting. Lane and other officers went to the address and learned the woman’s name was Sylvia Franco. She was not there but staying at another residence. While at the first location, however, they obtained consent to search an adjacent apartment. During this search they found a photo album belonging to Franco. Upon reviewing the album, they found a picture of Franco and the defendant, Javier A., “The Puppet.”

This photograph was given to Officer Randy Allen Garcia. He was assigned to CRASH, a police unit which monitors gang activities. Officer Garcia interviewed and obtained a signed statement from one of the victim’s companions, Mario Rocha. According to this statement Rocha identified the defendant, Javier A., from this snapshot as the person who shot at him and his friends from the yellow Torino.

Detective Lane interviewed Sylvia Franco. According to the detective’s version of what was said, Franco revealed she had been “jumped” a few weeks earlier by some members of the 40th Street Gang. Franco then reportedly said her boyfriend, Javier A., told her the day before the shooting he had been looking for the “guys from 40th Street” but had not seen them yet. (At the trial, Franco claimed she had been referring to her brother not the defendant during her conversation with Detective Lane.)

Not long after talking with Sylvia Franco, Detective Lane also interviewed Blanca Orozco. He showed her the photograph from the album. She identified herself, Franco, and Javier in the picture. According to Detective Lane’s version, Orozco told him Franco said her boyfriend “Puppet” had shot “Smiley.” Purportedly Orozco also said Franco had warned her if either of them talked to the police they would be considered “rats” among the “A1 Capone Gang.” (At the trial, both Franco and Orozco denied Franco had told Orozco the defendant Javier was the one who shot “Smiley.” However, Orozco backed away from this denial somewhat during cross-examination.)

On August 26, 1982, slightly over a week after the attempted murder, Detective Lane arrested Javier. After his arrest Javier signed a written statement and gave a tape recorded statement to the police. In these statements, Javier admitted he and some of his friends had driven into the “40th Street” neighborhood in his father’s yellow Ford Torino. They were armed with a .22 caliber rifle Javier had obtained. The purpose was to avenge his girlfriend who had been beaten up in an attempted rape by members of the “40th Street” gang. Javier recognized “Smiley from 40th Street” among a group of people walking down Jefferson Boulevard. According to his statement to the police, Javier said, “Stop the car so I can shoot them.” He then pointed the rifle out of the car window at “Smiley” and fired approximately four shots.

The People filed a petition under Welfare and Institutions Code section 602 charging Javier, then age 15, with three counts of attempted murder. (Pen. Code, §§ 187, 664.) It was further alleged he used a firearm (Pen. Code, § 12022.5) and intentionally inflicted great bodily injury. (Pen. Code, § 12022.7.) Javier moved to suppress evidence under Welfare and Institutions Code section 700.1. This motion was denied. Javier also requested a jury trial. This request likewise was denied.

After a nonjury trial the court found the petition true as charged except for the great bodily injury allegation. The court then declared Javier a ward of the court and committed him to the California Youth Authority for a maximum of 15 years and 8 months.

II. Appellant’s Motion to Suppress Evidence Under Welfare and Institutions Code Section 700.1 Was Properly Denied.

Appellant argues his statement to the police should have been excluded as the fruit of an illegal search and seizure. We disagree. We conclude the trial court did not err in denying the appellant’s motion to suppress, because (1) there was no illegal search and seizure of the photograph album under either the constitutional standard as made applicable to the states in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933] or under California’s vicarious exclusionary rule and (2) furthermore even if the photograph album were illegally obtained, any fruits thereof were admissible under the “doctrine of inevitable discovery.”

Preliminarily, in resolving whether the motion to suppress was properly denied, the reviewing court may “[o]nly [consider] the evidence before the trial court when it was called upon to rule on the motion . . . .” (People v. Gibbs (1971) 16 Cal.App.3d 758, 761 [94 Cal.Rptr. 458].) The parties stipulated to what amounted to a distilled version of the testimony presented at the Dennis H. hearing, not the actual testimony. Therefore, the analysis of the merits of appellant’s arguments must be limited to the evidence presented at the motion to suppress. These stipulated facts are:

(1) The investigating officers received information a young woman at a specified address was an associate of a person suspected in a recent shooting; (2) at that location the officers determined the young woman was staying with a friend or relative by marriage; (3) the officers made a consensual search of an adjacent apartment; (4) during the search the officers found a photo album; (5) the officers were informed the album did not belong to the person who consented to the search, but in fact belonged to the young woman; (6) the young woman never consented to the search and removal from the apartment of her photo album; (7) the contents of the photo album were subsequently reviewed and shown to witnesses; (8) Javier was identified from the photo album as the boyfriend of the young woman, Sylvia Franco; (9) Sylvia told detectives Javier was her ex-boyfriend and he had told her a couple days before that he had been looking for dudes from the 40th Street Gang so he could get even with them for assaulting her sometime earlier and (10) this was the first time officers learned Javier’s true and correct name. Based on these facts, the trial court ruled that under Proposition 8 enacted in June 1982 appellant had no standing to assert a third party’s Fourth Amendment rights against an unreasonable search and seizure and the doctrine of inevitable discovery was applicable.

A. There Was No Unreasonable Search and Seizure of Ms. Franco’s Photo Album.

The Fourth Amendment of the United States Constitution and article I, section 13 of the California Constitution both guarantee the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. To effectuate these fundamental constitutional guarantees, the Supreme Court has held that “evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States [1914] 232 U.S. 383.” (Wong Sun v. United States (1963) 371 U.S. 471, 484 [9 L.Ed.2d 441, 452-453, 83 S.Ct. 407], italics added; Mapp v. Ohio, supra, 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933].) The United States Supreme Court only excludes evidence unlawfully obtained from the defendant himself not that resulting from a search of another person. (Rakas v. Illinois (1978) 439 U.S. 128 [58 L.Ed.2d 387, 99 S.Ct. 421].) However, in People v. Martin (1955) 45 Cal.2d 755 [290 P.2d 855], the California Supreme Court adopted the so-called vicarious exclusionary rule. This allows a defendant to attack the search and seizure of the person or property of a third party. The rationale for expanding the exclusionary rule beyond the scope mandated by the United States Supreme Court was to enhance the deterrent effect of the exclusionary rule by preventing law enforcement officers from violating the rights of third parties and thereby evading the exclusionary rule. (People v. Martin, supra, 45 Cal.2d 755, 760.)

The continuation of California’s vicarious exclusionary rule as well as other independent state grounds which permit suppression of evidence otherwise permitted in federal court is under challenge by the constitutional mandate of Proposition 8. Proposition 8 resulted in the addition to the California Constitution of article I, section 28, subdivision (d), which provides that “relevant evidence shall not be excluded in any criminal proceeding.” Because of the uncertainty of the impact of this constitutional provision, we shall consider the applicability of both California law prior to the enactment of Proposition 8 and the constitutional standard which would be applicable should article I, section 28, subdivision (d) of the California Constitution be adjudged applicable. We conclude that regardless of which standard is applied the trial court did not err in denying the appellant’s motion.

1. Analysis under California law prior to the enactment of Proposition 8.

As the vicarious exclusionary rule would allow Javier to challenge the reasonableness of the search and seizure of Ms. Franco’s photo album, we now consider the results of such a challenge. The issue presented is whether Ms. Franco’s legitimate expectation of privacy was violated by the search of her album left in Mr. Macedo’s apartment. The proper standard of review on appeal is to uphold “ ‘the trial court’s findings . . . whether express or implied, ... if they are supported by substantial evidence.’” And meet “ ‘the constitutional standard of reasonableness.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].)

The record discloses Mr. Macedo advised the police Ms. Franco was residing “upstairs . . . temporarily for a week or two until [she] could find a place to live.” However, there was no testimony which clearly delineated the relationship between Sylvia and Mr. Macedo or the degree of control which Mr. Macedo had over the album.

The court’s analysis of the situation in which there is joint ownership and control of property is analogous to the instant case in which there is a bailment. In United States v. Matlock (1974) 415 U.S. 164 [39 L.Ed.2d 242, 94 S.Ct. 988], the court considered whether consent given by the occupant of a house to search a room occupied by herself and the defendant “legally sufficient to render the seized materials admissible in evidence at the respondent’s criminal trial.” (Id. at p. 166 [39 L.Ed.2d at p. 246].) The court held “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Id. at p. 171 [39 L.Ed.2d at pp. 249-250].) The effectiveness of the consent depends upon whether there is “mutual use of the property by persons generally having joint access or control for most purposes . . . and that the others have assumed the risk that one of their number might permit the common area to be searched.” (Id. at p. 171, fn. 7 [39 L.Ed.2d at p. 250].)

In Frazier v. Cupp (1969) 394 U.S. 731, 740 [22 L.Ed.2d 684, 693-694, 89 S.Ct. 1420], the defendant challenged the admissibility of evidence found during a search of a duffel bag left at his cousin’s house which he and his cousin used and which his cousin consented to be searched. In holding the joint use of the duffel bag gave his cousin the authority to consent to the search, the court was unwilling to engage in the “metaphysical subtleties” raised by the defendant’s claim that his cousin only had permission to use one compartment within the bag. Because the defendant had allowed his cousin to use the bag, and had left it in his house, the defendant assumed the risk his cousin would let someone else examine it.

Therefore, in bailment, whether the bailee, who does not own the property but has lawful possession of it, can consent to a police search of the property which is effective against the bailor depends upon whether the nature of the bailment is such that the bailor has assumed the risk. (Frazier v. Cupp, supra, 394 U.S. 731, 740 [22 L.Ed.2d 684, 693-694].) Crucial factors are the extent to which the bailor has surrendered control and the length of the bailment. In the case at bench, there is no testimony or stipulation as to the extent of Mr. Macedo’s control over the album or how long he had held it. The album was in plain sight on a dresser in Mr. Macedo’s one-room apartment. The album was not locked. We too do not wish to engage in “metaphysical subtleties” that Macedo only had authority to allow certain persons to view Ms. Franco’s photographs. Rather, we believe the trial court might have reasonably inferred from Mr. Macedo’s action of showing the officers Ms. Franco’s picture that he had the requisite degree of control over it.

The trial court’s ruling may also be sustained under the “apparent authority doctrine” set forth in People v. Gorg (1955) 45 Cal.2d 776 [291 P.2d 469]. The defendant in Gorg challenged the admissibility of evidence discovered during a search of the room he occupied in the home of a third person. The third person consented to the search, not the defendant. The court found the defendant’s consent unnecessary because where the third party reasonably appeared to the police to have the authority to consent, there could be no unreasonable police search.

In the instant case, the doctrine’s applicability is arguably diminished because Mr. Macedo initially stated the album belonged to Ms. Franco and only showed the officers her picture at their request. It might have been inferred the police were on notice from Mr. Macedo’s initial remarks he had no apparent authority to show the album to them. However, the trial court also could reasonably infer Mr. Macedo’s exercise of control over the album in response to the police officers’ remarks estopped him from denying he had control over it and created an apparent authority upon which the police could reasonably rely.

We conclude, therefore, that there was sufficient evidence before the trial court from which it could reasonably infer the search and seizure of Ms. Franco’s photo album was reasonable and we decline to disturb its ruling.

2. Analysis under the constitutional standard applicable if Proposition 8 abrogates California’s vicarious exclusionary rule.

The Supreme Court has consistently interpreted the mandate of the framers to mean “ ‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’” (Rakas v. Illinois, supra, 439 U.S. 128, 133-134 [58 L.Ed.2d 387, 394]; see Brown v. United States (1973) 411 U.S. 223, 230 [36 L.Ed.2d 208, 214-215, 93 S.Ct. 1565]; Simmons v. United States (1968) 390 U.S. 377, 389 [19 L.Ed.2d 1247, 1251, 88 S.Ct. 967]; Wong Sun v. United States, supra, 371 U.S. 471, 492 [9 L.Ed.2d 441, 458]; cf. Silverman v. United States (1961) 365 U.S. 505, 511 [5 L.Ed.2d 734, 738-739, 81 S.Ct. 679, 97 A.L.R.2d 1277]; Gouled v. United States (1921) 255 U.S. 298, 304 [65 L.Ed. 647, 650, 41 S.Ct. 261].) In ascertaining whether Javier had a legitimate expectation of privacy in Sylvia Franco’s photograph album, the scope of our analysis may encompass the “totality of the circumstances.” (Rawlings v. Kentucky (1980) 448 U.S. 98, 104 [65 L.Ed.2d 633, 641, 100 S.Ct. 2556].)

Applying these criteria to the instant case, we note first the status of the relationship between Javier and Sylvia Franco is unclear. She is either his girlfriend or ex-girlfriend. Further, there is no indication of any relationship between Javier and Mr. Macedo, the occupant of the apartment in which Ms. Franco’s album was found. Secondly, no evidence was put forth Javier had any arrangement with either Franco or Macedo to prevent persons from entering Mr. Macedo’s apartment or from viewing the photographs. Thus the album in which Javier claims a privacy interest was in an apartment which it can be inferred he neither had access to nor ability to exclude others from. Moreover, the album itself was stipulated to be the property of Ms. Franco not the defendant.

The defendant had no reasonable expectation of privacy in the premises searched, Mr. Macedo’s apartment. He likewise had no reasonable expectation of privacy in the personal property seized, Ms. Franco’s album. Accordingly if the federal rule applies, the defendant is without standing to challenge admission of any evidence derived from this search and seizure.

B. Javier’s Statements to the Police Are Admissible Under the Doctrine of Inevitable Discovery.

An alternative ground for the admissibility of Javier’s statements to the police is the doctrine of inevitable discovery. In determining whether evidence is the “fruit of the poisonous tree” and therefore inadmissible, the correct inquiry is “ ‘ “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ ” (Krauss v. Superior Court (1971) 5 Cal.3d 418, 422 [96 Cal.Rptr. 455, 487 P.2d 1023]; Wong Sun v. United States, supra, 371 U.S. 471, 488 [9 L.Ed.2d 441, 455], quoting Maguire, Evidence of Guilt (1959) p. 221.)

Assuming arguendo the photograph album was illegally seized, there are three recognized methods by which evidence that is the “fruit of the poisonous tree” may be admissible despite its illegal origins: (1) if there was an independent source for the evidence, (2) if it would have been available due to inevitable discovery, (3) or if the connection between the source and the evidence has been sufficiently attenuated. (See 3 LaFave, Search and Seizure (1978) § 11.4, pp. 612-680.) The inevitable discovery rule is “a variation upon the ‘ “independent source” ’ theory, ‘but it differs in that the question is not whether the police did in fact acquire certain evidence by reliance upon an untainted source but instead whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully.’ [Citation.]” (People v. Saam (1980) 106 Cal.App.3d 789, 797 [165 Cal.Rptr. 256].) The rationale of the doctrine is “ ‘to prevent unjustly granting crimináis immunity from prosecution.’” (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673 [145 Cal.Rptr. 795].) The People may meet their burden of proof by establishing “that the infermation obtained illegally would have been discovered anyway by the police during the normal course of a lawfully conducted investigation. [Citations.]” (People v. Farley (1979) 90 Cal.App.3d 851, 866 [153 Cal.Rptr. 695]; Nix v. Williams (1984) — U.S. — [81 L.Ed.2d 377, 104 S.Ct. 2501].)

We find no exploitation of the alleged illegal search and seizure in the instant case. Prior to the discovery of the photograph album, the officers had “received information that a young woman at a specified address was an associate of the person suspected of a recent shooting.” The officers then “proceeded to the specified address and at that location determined that the young woman was staying with a friend or relative by marriage.” It may be inferred the police had a certain person in mind who was closely associated with the suspect and had obtained sufficient information to locate this individual prior to discovering the album. Therefore, regardless of whether the officers found her picture in an album, Ms. Franco would have been investigated and interviewed.

Appellant next argues that because Ms. Franco was a “friend” of the suspect, it is not inevitable she would have made a statement implicating him in a crime. “Sometimes the judgment as to whether discovery of the challenged evidence was inevitable requires a determination not of what law enforcement agents would otherwise have done with what results, but instead what some other person would have done. This is typically the case when the question is whether a crime victim’s testimony may be admitted where that victim was located by reliance upon illegally procured evidence. Where the circumstances of the case are such that it may fairly be said that the victim could be expected to come forward ‘without being prodded into doing so as might conceivably be necessary in the case of a recalcitrant witness who is not a victim of the crime,’ the testimony is properly admitted on an ‘inevitable discovery’ theory. Such a result is unlikely to be justified ‘where the witness is a friend of the accused.’ [Citation.]” (3 LaFave, Search and Seizure (1978) A Treatise on the Fourth Amendment, § 11.4, p. 627.)

In the instant case, however, Ms. Franco need not have voluntarily come forward, because police were aware of her identity. In addition, there was no indication she would have been uncooperative to the police. Furthermore, the stipulation does not state Ms. Franco made any identification of Javier from the photograph or that the photo influenced her statements in any way. The parties stipulated Ms. Franco said that Javier A. had told her a couple days before that he had been looking for dudes from the 40th Street Gang so he could get even with them for assaulting her sometime earlier and that this was the first time that the officers had learned the minor’s true and correct name. Javier’s name and association to the crime therefore were not gleaned from the use of the photograph. Instead they were derived from an interview with a witness who would have been found in the normal course of the investigation anyway. It is not necessary that the People show that the police would have certainly discovered the tainted evidence, rather, it is only necessary to show a reasonably strong probability that they would have. (People v. Superior Court (Tunch), supra, 80 Cal.App.3d 665, 681.)

III. Minors Charged With Felony Offenses in Juvenile Court Are Entitled to Trial by Jury But Auto Equity Does Not Permit This Court to Reverse the Judgment Against Javier.

The California juvenile’s claim to a right to jury trial need not depend on the due process grounds rejected by the United States Supreme Court. Instead in this state it can rest squarely on a separate provision of the California Constitution, a part of the Declaration of Rights, which guarantees trial by jury to all Californians. (Cal. Const., art. I, § 16.)

One does not have to be an adult to enjoy this right. Minors have access to trial by jury the same as any adult in nearly every legal proceeding. If injured in an automobile accident, for instance, a child’s right to recover will be decided in an action where jury trial is available. Similarly, if a juvenile is declared “unfit” and finds himself in criminal court, he has the same opportunity to demand a jury as any adult defendant.

On the other hand, in certain types of proceedings—dissolutions and most equitable actions, for example—neither juveniles nor adults are entitled to trial by jury. If juvenile delinquency cases were deemed to be criminal proceedings, the juvenile accused clearly would be constitutionally guaranteed a right to jury trial. (Duncan v. Louisiana (1968) 391 U.S. 145 [20 L.Ed.2d 491, 88 S.Ct. 1444].) But the present California Juvenile Court Law purports to be something else. In this court, juveniles are not convicted of crime and on that basis sentenced as criminals. Instead they are found to have committed criminal acts and on that basis declared to be wards of the court. Wardship actions, in turn, are deemed to be part of the equity jurisdiction of the court where ordinarily there is no right to jury trial.

This raises two issues under article I, section 16 of the California Constitution: First, may a wardship be declared on the basis of the minor’s commission of a felony without a trial by jury or is this a type of proceeding where jury trial must be afforded? Secondly, assuming jury trial could be denied in a true wardship action, have California juvenile delinquency actions metamorphized into criminal proceedings where the juvenile accused clearly must be given the opportunity for a jury trial? We conclude a juvenile delinquent cannot be declared a ward of the court for alleged felonious conduct unless and until he is found to have engaged in that conduct at a hearing where he enjoys the right to jury trial. Alternatively, as an independent and sufficient constitutional ground for our opinion, we further conclude juvenile delinquency actions indeed have become “ criminal prosecutions” thus entitling juvenile delinquents charged with felonious acts to a trial by jury. With respect to both these grounds, we consider whether stare decisis nonetheless requires we follow a 60-year-old California Supreme Court decision which held alleged delinquents did not have a right to jury trial in juvenile court proceedings.

A. California Juveniles Are Entitled to Trial by Jury in Delinquency Proceedings Because in 1850 England Juveniles Could Not Be Declared Wards of the Court on the Basis of Their Commission of Felonies Without a Trial by Jury.

We begin with the uncompromising language of the California Constitution: “Trial by jury is an inviolate right and shall be secured to all.” (Art. I, § 16, formerly art. I, § 7 of the original Constitution, italics added.) These words admit of no exceptions. The absolute guarantee is part of the Declaration of Rights and thus available to everyone appearing in California courts. It is the individual’s personal right to be exercised—or waived— solely by that person.

1. The right to jury trial extends to all categories of cases where that right existed in England as of 1850.

One hundred and one years after enactment of the Constitution the California Supreme Court pulled together the strands of several lines of authority which had sought to define various facets of the jury trial guarantee. The result is the most authoritative, comprehensive statement defining the categories of cases where litigants are entitled to trial by jury to be found in California law. In the leading case of People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283 [231 P.2d 832], the court articulated that test to be whether the type of case at issue was identical to—or similar to—those categories of cases in which litigants enjoyed the right to jury trial under the English common law as of the time California became a state in 1850. While justifying a right to jury trial in forfeiture proceedings of vehicles used in narcotics trafficking, the Supreme Court presented a complete exposition of the test: “ ‘The right to trial by jury guaranteed by the Constitution is the right as it existed at common law at the time the Constitution was adopted. [Citation omitted.] The common law at the time the Constitution was adopted includes not only the lex non scripta but also the written statutes enacted by Parliament. [Citation omitted.] ... It is necessary, therefore, to ascertain what was the rule of the English common law upon this subject in 1850.’” (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 286-287, second italics added.)

People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283 not only established the English common law as it stood in 1850 defines the right to jury trial which remains “inviolate” in California, it held the status of the English common law at that time was a matter of “historical fact.”

“ ‘It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact. The right is the historical right enjoyed at the time it was guaranteed by the Constitution.'’” (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 287, italics added.)

A third firm holding of People v. One 1941 Chevrolet Coupe likewise affects our excursion into English legal history. The Supreme Court made it clear in One 1941 Chevrolet Coupe the Legislature may not relabel cases which were heard at the common law in 1850 England as cases now to be heard in equity or in special proceedings and thereby deprive litigants of a right to jury trial. “ ‘The right to a trial by jury cannot be avoided by merely calling an action a special proceeding or equitable in nature. If that could be done, the Legislature, by providing new remedies and new judgments and decrees in form equitable, could in all cases dispense with jury trials, and thus entirely defeat the provision of the Constitution. The Legislature cannot convert a legal right into an equitable one so as to infringe upon the right of trial by jury. The provision of the Constitution does not permit the Legislature to confer on the courts the power of trying according to the course of chancery any question which has always been triable according to the course of the common law by a jury. [Fns. omitted.]’ ” (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 299, italics added.)

These three principles have been amplified in subsequent decisions. (See, e.g., Dorsey v. Barba (1952) 38 Cal.2d 350 [240 P.2d 604]; People v. Amor (1974) 12 Cal.3d 20 [114 Cal.Rptr. 765, 523 P.2d 1173]; People v. Collins (1976) 17 Cal.3d 687 [131 Cal.Rptr. 782, 552 P.2d 742]; McComb v. Commission on Judicial Performance (1977) 19 Cal.3d Spec. Trib. Supp. 1 [138 Cal.Rptr. 459, 564 P.2d 1]; C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1 [151 Cal.Rptr. 323, 587 P.2d 1136]; Ripling v. Superior Court (1952) 112 Cal.App.2d 399 [247 P.2d 117]; Tibbitts v. Fife (1958) 162 Cal.App.2d 568 [328 P.2d 212]; Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal.App.3d 433 [129 Cal.Rptr. 912].) But these three holdings of People v. One 1941 Chevrolet Coupe remain intact.

2. As of 1850, an English minor could not be declared a ward of the court—or be sent to a reform school or prison—on the basis of his commission of a felony unless he had been afforded a right to trial by jury.

The English placed a high value on trial by jury and vigorously resisted attempts to erode its coverage. Indeed in 1780 Blackstone eulogized the jury as the institution which separated the English government from the failed democracies of the past. “[T]rial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! . . . [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by unanimous consent of twelve of his neighbors. ... A [right] that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And therefore a celebrated French writer, who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury.

“It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity and himself, ... to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty.” (3 Blackstone, Commentaries on the Laws of England (1780) pp. 379, 381.)

Given the honored place the right to jury trial occupied among English legal philosophers and policy makers in the decades before 1850, it would surprise were we to find English law authorizing any court, including chancery, to take away a minor’s freedom because of alleged criminal offenses without a jury trial. And indeed we find no evidence it did and a great deal it did not.

Despite the parens patriae relationship between the English government and its minor citizens, those same minors enjoyed an unequivocal right to jury trial when accused of crime in the law courts. Blackstone, for instance, reminds us an English child could be convicted only if found not only to have committed the criminal act but to be “capable of guile” by a “court and jury.” (4 Blackstone, Commentaries on the Law of England, supra, p. 23, italics added; see also Platt, The Child Savers (2d ed. 1977).)

The California juvenile delinquency law purports not to be a criminal proceeding but rather a form of equitable proceeding, an action to declare a minor a “ward of the court” pursuant to equity’s parens patriae jurisdiction. Ordinarily the right to jury trial did not attach in equity under English common law. But the question remains whether this particular specie of wardship—finding a minor had committed a crime and on that basis making him a ward of the court—was tried “according to the course of chancery” in 1850 England. Or was it instead “triable according to the course of the common law by a jury.” Significantly, none of the English chancery cases relied upon in American decisions to uphold denial of jury trials in juvenile proceedings involved a juvenile offender. Nor did any of these English cases claim parens patriae empowered courts of equity to decide without a jury that a juvenile had committed a crime and then declare him a ward of the court. Instead these English cases were ordinary civil guardianship and custody cases. Nor does our own research or that of the parties point to any pre-1850 English case allowing English courts of equity to determine a child had committed an offense and on that basis declare him a ward of the court. As we shall soon see, in 1850 England the decision whether a minor had committed a crime first had to be made through a trial by jury in the law courts. Only then could the equity courts determine whether he should be made a ward of the court.

Indeed there is much which happened in the decades preceding 1850 to support the conclusion English law granted juveniles a right to jury trial before the state could restrict their liberty for any longer than three months because of criminal acts they were alleged to have committed. Moreover, English law would not allow this right to yield to generous aspirations or promises of beneficial treatment for juvenile offenders. As it turns out those decades witnessed proposals and discussions specifically addressed to this very question.

a. As of 1850, English common law had specifically rejected attempts to deprive juvenile offenders of their right to jury trial in return for the purported benefits of separate juvenile courts, “Fatherly Treatment” and “Reform Schools. ”

In 1815 the Select Committee on the State of the Police of the Metropolis heard testimony from Francis Hobler, a magistrate, who proposed a separate court for offenders under 14, at least those who only committed acts of thievery. As proposed, this court would have had most of the attributes of a present day juvenile court including trial by judge rather than jury. “I think if the magistrates were entrusted with the sort of parental authority to whip them a little and keep them upon bread and water and if the child had parents ... to send him back to them it would prove highly advantageous; and I can see that the magistrate being a gentleman of years and experience could not be supposed to be capable of abusing an authority of this sort for as men and as parents they must feel for the situation of such characters. ” (Report of the Select Committee on the State of the Police of the Metropolis, 1815, quoted in Parsloe, Juvenile Justice in Britain and the United States (1979) p. 112.)

In 1827 another magistrate, Sir John E. Eardley Wilmot, circulated letters among his fellow magistrates urging a similar separate court with an equally generous motive. “The remedy therefore that I would propose is . . . the immediate and summary cognizance of offenses committed by the youthful depredator; to be heard before an intermediate tribunal where petty offences may be instantly proceeded against and punished, without sending the offender to undergo the stigma and contamination of a public prison, the publicity of trial, and all those evils which infallibly result from early imprisonment. ... I would empower [this variety of juvenile court] to punish the young culprit by whipping, confining him in an asylum set apart for this purpose, or by discharging him without punishment at all. . . .

“[T]he youthful delinquent . . . will find already appointed as the legal guardians of his infancy, those who by judicious restraint and by well-timed instruction will supply the place of his own relatives. It will be an ‘act for appointing guardians for the deserted and friendless’, rather than an addition to our Criminal Code; and instead of being a law of punishment, will be the dispenser of blessings.” (Sir John E. Eardley Wilmot, A Letter to the Magistrates of England, p. 15, quoted in Parsloe, Juvenile Justice in Britain and the United States, supra, pp. 112-113.)

In 1836 a Royal Commission was appointed “to consider whether it was advisable ‘to make any distinction in the mode of trial between adult and juvenile offenders, and if not, whether any class of offenders can be made subject to a more summary proceeding than trial by jury.’ The Commission reported that a distinction in the mode of trial would not be advisable, except by increasing the summary jurisdiction of Magistrates.” (Rep. of 1927 Departmental Committee on the Treatment of Young Offenders (1938) p. 11, italics added.) Nonetheless, this and similar agitation resulted in a legislative proposal in 1840. In that year the same Sir John E. Eardley Wilmot who had circulated the 1827 proposal managed to introduce a bill to create a separate court for children under the age of 16 who were charged with committing minor offenses. (A Bill to Authorize the Summary Conviction of Juvenile Offenders in Certain Cases of Larceny and Misdemeanor, and to Provide Places for Holding Petty Sessions of the Peace. British Sessional Papers—House of Commons 1840 (5 Feb. 1840—3 Victoria) (48) II, p. 687.)

Trials would have been before a judge without jury. The juvenile offenders in turn would have been granted a boon. Instead of the years in prison an adult would suffer for the same offenses, the minors would be dealt with by magistrates who were enjoined to treat them as would a: “. . . father over his son—a moral authority, which could enable them to bring juvenile offenders under a course of moral training and discipline which should have the effect of reclaiming them to the paths of honesty and industry. The bill was a merciful bill, its object being to provide for those who were without natural parents and guardians, national parents and guardians, in order to save them from being sent to gaols to be contaminated and ruined.” (52 Parliamentary Debates, Series 3 (Feb. 7—Mar. 23, 1840) pp. 652-653.)

This bill actually passed the House of Commons. But it did not become law. It was defeated by the House of Lords which found it “unconstitutional.” As one historian reports: “The bill denied to children the right of jury trial. General Johnson said: ‘[Tjhere would be no end to juvenile offences, juvenile gaols, juvenile courts and all that, without the benefit to the prisoners of trial by jury. The principle of the bill was unconstitutional because it conferred a power upon two magistrates to become judge, jury and executioner at once.’” (Parsloe, supra, p. 114.)

In 1847 a more limited juvenile olfender bill not only was introduced but actually passed both houses of Parliament. Titled “An Act for the More Speedy Trial and Punishment of Juvenile Offenders” (1847) 10 and 11 Victoria 638, it became law on July 22, 1847. However, for several reasons this act supplies no support for the denial of jury trial to California juveniles charged with felonies.

First, it authorized summary nonjury trials only for what the bill’s supporters characterized as “trivial crimes.” These were defined as “Simple Larceny, or punishable as Simple Larceny . . . .” This category represented a far narrower range of offenses than contemplated by the rejected 1840 proposal. Sir J. Pakington, chief sponsor of the 1847 legislation, emphasized the 1840 juvenile offender bill had been “a stronger bill—it placed no limit whatever as to the amount of the property stolen, it merely dealt with the age of the parties—so that all cases of larceny, where the accused was under the prescribed age, might be dealt with summarily before a magistrate.” (Parliamentary Intelligence—House of Commons, The Times, Thursday, April 29, 1847, at p. 3.)

Secondly, the maximum loss of liberty the court could impose was three months. The original 1847 bill would have allowed magistrates to sentence guilty juveniles to six months imprisonment. However, the Select Committee of the House of Lords heard testimony “the Amount of Punishment is excessive for a Magistrate to have the Power of inflicting . . . .” (British Parliamentary Papers (1970) vol. 1, 1847 p. 444.) The committee’s recommendation to reduce the maximum loss of liberty to three months was accepted by the House of Commons (Hansard’s Parliamentary Debates, supra, vol. XCIII, p. 3.)

Finally, the 1847 act met the objection which had evidently doomed the 1840 proposal—the denial of the right to jury trial. The act specifically protected this right by giving the accused juvenile the option of demanding trial through the regular process where he, of course, enjoyed the right to jury trial. “[I]f the Person charged shall, upon being called upon to answer the Charge, object to the Case being summarily disposed of under the Provisions of this Act, such Justices shall, instead of summarily adjudicating thereupon, deal with the Case in all respects as if this Act had not been passed.” (An Act for the More Speedy Trial and Punishment of Juvenile Offenders, supra, 10 and 11 Victoria at p. 639.)

In contrast to England’s limited 1847 Juvenile Offender Act the present California juvenile delinquency process sanctions nonjury trials of any offense. This includes felonies, even those as serious as murder and attempted murder. The California law authorizes a loss of liberty which may amount to five or ten years, or more, where the offense indeed is a felony not a misdemeanor. Furthermore, it does not allow the minor to elect trial by jury in either the juvenile or adult court should he prefer that to summary adjudication.

In 1850, Parliament again considered a bill creating a juvenile justice system akin to the present American system. (A Bill for The Correction and Reformation of Juvenile Offenders and the Prevention of Juvenile Offences. British Sessional Papers—House of Commons 1850 III (6 Mar. 1850) p. 465.) This bill applied to juveniles charged with a broader range of minor crimes than the 1847 act. It sanctioned summary trial of the charges without a jury. It also called for the creation of “industrial schools of reform.” The proposal empowered courts to commit second offenders to these industrial schools for one to three years in addition to or in lieu of ten weeks in a regular prison. Third offenders could be sent to an industrial school until they reached twenty-one years of age in addition to as much as seven years in prison.

Parliament did not pass this 1850 bill, however. Sir G. Strickland uttered perhaps the most telling objection during debate in the House of Commons. “He was surprised to see the name of [the bill’s chief proponent] at the back of a Bill which proposed to abolish trial by jury in two-thirds of all the cases of larceny that were tried in the country. Had the hon. and learned Gentleman read any of the great law writers of the country, who one and all maintained that trial by jury was one of the dearest rights of Englishmen? Had he studied the writings of the law reformers of our own days—the writings of Sir Samuel Romilly, of Lord Brougham, or of a still higher authority—the most learned and constitutional Minister that this country had ever possessed, the noble Lord at the head of the Government who said that to trial by jury the people owed whatever share they possessed in the government of the country; that to trial by jury the Government mainly owed the attachment of the people to the laws—a consideration which ought to make legislators cautious how they took away the right of trial by jury.” (3 Hansard’s Parliamentary Debates, (Apr. 24, 1850) vol. 110, pp. 779-780.)

Another member was kinder to the supporters of the bill thanking one “for the moral courage he had shown in supporting the Bill, notwithstanding the decided expression of opposition on the part of the house at large.” (Statement of Mr. Headlam, Hansard’s Parliamentary Debates, supra, at p. 781.) However, the bill could not even enlist the vote of the chief spokesman for the successful 1847 Juvenile Offender’s Act, Sir John Pakington, who “thought it right to state, as the Juvenile Offenders’ Act of 1847 had been frequently referred to in the course of the discussion, that he was no party to this Bill, and that as the measure now stood he could not give it his support.” (Statement of Sir J. Pakington, Hansard’s Parliamentary Debate, supra, at p. 782.) The opposition prevailed and the 1850 bill allowing juveniles to be committed to “industrial schools of reform” for substantial periods of time without the benefit of jury trial did not become law in that year. Consequently, as of the constitutionally relevant year—1850—Parliament had expressly rejected the notion the benefits of reform schools and the like justified denial of jury trial to juvenile offenders.

b. As of 1850, alleged juvenile offenders were entitled to trial by jury before being declared wards of the court.

The fate of this proposed juvenile court legislation is powerful evidence of the supreme value English law placed on a minor’s right to jury trial as of the critical year of 1850. It seems inconceivable at the same time in English legal history the Court of Chancery could have possessed a power, inherent or otherwise, to decide without a jury some youngster had committed a criminal offense and therefore was to be placed in the custody of an institution “in his own interests.” If that power existed, Sir John Earley Wilmot and his fellow magistrates would not have found it necessary to propose legislation to create a new court operating without juries to act in a fatherly manner toward minors charged with crimes. They merely would have referred alleged juvenile offenders to the Court of Chancery. Therefore, it is not surprising one searches in vain for any English chancery cases actually claiming to possess the power to act in these cases without a jury.

We first examined all the pre-1850 English cases cited in any American decision as supporting the notion the inherent parens patriae jurisdiction of English equity justified a declaration of wardship based on the minor’s commission of a felony without trial by jury. Our research only located five such cases. None of these decisions suggests English equity courts had power to shift custody from the parents to another individual or institution for any reason remotely resembling the minor’s involvement in criminal activity. Indeed in none was the court’s jurisdiction activated by any type of misbehavior on the part of the juvenile. To the contrary, in each case the focus was on the worthiness—and usually the misconduct—of the parent or potential nonparent guardian of the child.

In Eyre v. Shaftsbury (Countess of) (1722) 2 P. Wms. 103, 24 Eng. Rep. 659, the issue involved the mother’s conduct in arranging her son’s marriage without the consent of the deceased father’s duly appointed guardian. In ex parte Hopkins (1732) 24 Ch. D. 1009, a father had allowed his wealthy brother to raise his three daughters. When the brother died he willed substantial sums to the girls who remained in his house under the supervision of a cousin. Seeing an opportunity to lay claim to their legacies the father petitioned chancery to order return of his three daughters. The court held the father was not entitled automatically to custody of his children under these circumstances and it could only make the determination on the basis of a bill. Another cited decision, Shelley v. Westbrooke (1817) 37 Eng. Rptr. 17 Ch. Bk. 850, denied the poet Shelley custody of his children because of his irreligious and immoral beliefs and behavior. To like effect, the court in Wellesley v. Wellesley, supra, 2 Bligh N.S. 124, 4 Eng. Rep. 1078 awarded guardianship to the deceased mother’s sister because of the father’s misbehavior. He was living in adultery and had written letters to his children encouraging them to swear, chase women, and the like. When Wellesley reacted to this defeat by kidnaping his child, it led to the final case cited in the American juvenile court decisions, Wellesley v. The Duke of Beaufort (1828) 39 Eng. Rptr. 19 Ch. Bk. 538. The real issue here was whether Wellesley as a member of Parliament was subject to contempt.

The present California juvenile delinquency law does not base its declaration of wardship on a finding the parents misbehaved or were unworthy. Instead the California statute predicates wardship on the juvenile’s personal misbehavior—in this case proof beyond a reasonable doubt the juvenile committed a specific felonious act. Under English law as it existed in 1850, the equity court’s jurisdiction to declare a wardship based on misbehavior of the minor was derived solely from a statute enacted in 1840. However, that statute, to be described shortly, preserved the minor’s right to trial by jury in that phase of the proceeding which determined whether he indeed had committed the offense which warranted his becoming a ward of the equity courts.

In order to broaden our search for relevant authority, we sent a letter to the parties over a month prior to oral argument which inter alia asked, “As of 1850 was any English court empowered to determine without a jury that a minor had committed a felony and on that basis to declare him a ward of the court and place him in the custody of a reform school or similar institution? . . . Please be prepared to cite to the court and discuss the facts and holdings of any pre-1850 English cases which held the Court of Chancery or any other English court possessed this power?” At oral argument we inquired of the People whether they had been able to find any such cases. The People responded they had searched but had been unable to locate any decision of this nature. Our own research has been equally unsuccessful. This result is not surprising given the actual scope of equity’s parens patriae jurisdiction as reflected in the pre-1850 English cases described above.

Indeed specifically because equity lacked the power to declare wardship based on a minor’s personal misbehavior a bill was introduced in 1840 to confer such authority at least when the misbehavior rose to the level of a felony. Enacted in 1840 during the same session of Parliament which rejected a special nonjury court for juvenile offenders, this law was called “An Act For The Care And Education For Infants Who May Be Convicted Of Felony.” (3 & 4 Victoria, (1840) ch. 90, p. 527.) It authorized the Courts of Chancery to do some, but not all of the things an American juvenile court is empowered to do.

Under the Infant Felons Act of 1840 the Chancery Court could transfer custody of a child from his or her father to “any Person or Persons who may be willing to take charge of such infant, and to provide for his or her Maintenance and Education if such Court shall find that the same will be for the Benefit of such infant, . ...” As observed during debate in the House of Commons, “the object of this bill was, to transfer from the hands of parents to the care of a benevolent society, children who [had] been convicted of crime.” (55 Parliamentary Debates, Series 3 (June 23—Aug. 11, 1840), p. 1258.) The court also could regulate to some extent how the child was treated while in custody of the benevolent society or other third person and could terminate this guardianship arrangement at any time.

Nowhere in the parliamentary debate over the Infant Felons Act was it even hinted this statute merely codified powers already held by the Court of Chancery or any other English court. The chief spokesman for the bill, Lord Russell, took pains to stress that without this legislation chancery lacked jurisdiction to shift custody of juvenile offenders from their parents to others. “It had been attempted by many benevolent persons to remove such children [who had committed crimes] from the influence of their parents, but it had been found impossible as the law at present stood.” (Parliamentary Intelligence—House of Commons, London Times, Aug. 1, 1840, at p. 4, italics added.) Another member of the House of Commons opposed the bill specifically because he “objected to power being given to the Lord Chancellor, or any other authority, to deprive parents of the care of their children without their own consent.” (Statement of Mr. Estcourt, 55 Parliamentary Debates, supra, p. 1259, italics added.) A third member protested “this was a new principle, and one of a dangerous and peculiar character.” (Statement of Mr. Wakley, London Times, supra, Aug. 1, 1840, at p. 4, italics added.) Lord Somerset characterized this “to be the most extraordinary power that he had ever known conferred in any bill introduced without notice . . . .” (London Times, supra, Aug. 1, 1840, at p. 4, italics added.)

Significantly, however, the Infant Felons Act conferred this “most extraordinary power” on the Court of Chancery only after a juvenile had been convicted of an offense after a trial in the law courts during which he had enjoyed a right to jury trial. This provision of the law was highlighted during parliamentary debate, “[Bjefore this bill could come into operation, the civil rights of the infant must b& forfeited by a conviction, and the court might extend that forfeiture to parental control.” (55 Parliamentary Debates, supra, p. 1258, italics added.) The equity court itself was not empowered to assume jurisdiction over a minor accused of an offense or to decide without a jury whether the minor had committed the crime. That jurisdiction remained exclusively with the law courts. As we have seen, in the law courts minors retained the right to trial by jury except when they were only charged with the “trivial offenses” defined in the 1847 Juvenile Offender Act.

Thus as of 1850, Parliament had refused to enact an early form of juvenile court in large part because it denied juveniles charged with felonies of their constitutional right to jury trial. Summary jurisdiction was limited to minor crimes and a maximum three months loss of liberty. And to further dispute any notion the equity courts possessed any inherent power to make juvenile offenders wards of the court, Parliament found it necessary to enact a statute to confer this jurisdiction on the Court of Chancery. But in doing so it made Chancery’s jurisdiction depend upon a prior conviction in the law courts where the right to jury trial was preserved.

What happened in English legal history after 1850, of course, cannot directly control our determination of the scope of the right to jury trial in present day California. Nonetheless, subsequent developments can shed light on the status of the right to jury trial as of an earlier time. It is instructive to observe when England finally created a separate juvenile court, it did not place this court on the equity side. Nor did this juvenile court purport to derive its authority from the parens patriae doctrine or the inherent powers of the Courts of Chancery. Instead the juvenile court was located squarely on the law side. Moreover, and perhaps most revealing, even then the English Parliament deemed it essential to grant juvenile offenders the option of trial by jury in the regular courts should they prefer that to a nonjury trial before the juvenile court.

This act was passed fully 58 years after the House of Lords had failed to create a special jurisdiction for juvenile delinquents on grounds it violated the unwritten constitutional guarantee of a right to jury trial for all Englishmen. By 1908 Parliament was willing to compromise this right somewhat by denying trial by jury in the juvenile court itself. Even then the English legislative body felt England’s unwritten constitution required juvenile offenders retain the option to demand their rights to jury trial in the regular courts. Nor was Parliament willing to alter the constitution enough to justify juvenile courts as part of Chancery jurisdiction. Instead as one English commentator observed “the 1908 act decided that juvenile justice should be dispensed by courts and that these courts should be part of the general system of criminal justice. . . . They did not have Chancery jurisdiction, which in Britain had always been restricted to the high court, but they were given by statute responsibility for the welfare of juveniles, as well as for the protection of the community.” (Parsloe, Juvenile Justice in Britain and the United States, supra, p. 135.)

English commentators have seriously questioned the accuracy of the American belief that English equity’s parens patriae jurisdiction supports denial of jury trial in this country’s juvenile court jurisdiction over alleged delinquents. In a recent comparative study of English and American juvenile court systems, a British scholar concludes:

“The early [American] writers claimed that the [American] juvenile courts acquired the duties and responsibilities of parens patriae as part of their equitable jurisdiction.[] This jurisdiction derived from the English Court of Chancery, and for this reason we have to turn to English history to explore the meaning of this claim. This question is discussed in this chapter . . . because only [American juvenile courts] claim such jurisdictio