Fare v. Danny T.

[920]

Opinion

BIRD, C. J.

Danny T. appeals from orders of the juvenile court adjudging him a ward and committing him to the California Youth Authority. He contends that his petition for a hearing de novo before a juvenile court judge should have been deemed granted. This court agrees.

A petition was filed in juvenile court alleging that appellant, a minor, had brandished a hoe at a man whom he mistakenly thought was a “narc.”

1

After a contested jurisdictional hearing before a referee, at which witnesses’ testimony was conflicting, appellant was found to have violated Penal Code section 417.

2

He was declared a ward and on September 16, 1976, was ordered committed to the California Youth Authority.

Timely application for a rehearing was made on September 27. The transcripts of the jurisdictional and dispositional hearings were not filed until October 14 and 15. On October 20, 1976, 23 days after the filing of the petition for rehearing, it was denied. No order extending time was ever filed.

Welfare and Institutions Code section 252 (formerly § 558), providing that a minor may seek a hearing de novo before á juvenile court judge of a referee’s decision, states: “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 . . . .” In

In re Edgar M.

(1976) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406], the juvenile court purported to deny a petition for rehearing well after 45 days had elapsed since its filing. This court held that if section 252 were applied literally, a referee’s adjudication of wardship and order for removal from the home would become acts of the court upon automatic denial of the petition for rehearing after 20 days. This result would conflict with the constitutional mandate that referees perform only “subordinate judicial duties.” (Cal. Const., art. VI, § 22.) Accordingly, an application for