In Re CEM

13 Cal.App.3d 75 (1970) 91 Cal. Rptr. 382 In re C.E.M., a Person Coming Under the Juvenile Court Law.

WARREN E. THORNTON, as Chief Probation Officer, etc., Plaintiff and Respondent,

v.

C.E.M., Defendant and Appellant.

Docket No. 5500. Court of Appeals of California, Third District.

November 24, 1970. [76] COUNSEL

Douglas C. Busath, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas C. Lynch, Attorney General, Edsel W. Haws and Elliott D. McCarty, Deputy Attorneys General, for Plaintiff and Respondent.

[77] OPINION

PIERCE, P.J.

C.E.M. appeals from an order of the juvenile court entered June 26, 1969, declaring him the ward of the juvenile court and committing him to the California Youth Authority. Count I of the petition filed against C.E.M. was for assault with a deadly weapon with intent to kill. The juvenile court sustained the charge of a lesser offense, assault with a deadly weapon. Count II for willful and malicious discharge of a firearm at an inhabited dwelling house was dismissed.

The following two contentions will be considered on appeal: 1. Denial of appellant's constitutional right to a trial by jury; 2. Denial of his constitutional rights to equal protection and to due process by virtue of the use of the "preponderance of the evidence" standard rather than the "beyond a reasonable doubt" standard of proof now required in juvenile court proceedings. (Re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 378, 90 S.Ct. 1068].)

The first contention is without merit and will be summarily treated. Appellant's second contention, which involves the retroactivity of the rules enunciated in Winship, must be sustained.