Botka v. Randy R.

[43]

Opinion

SCOTT, J.

Randy R., a minor, was found to come within the provisions of Welfare and Institutions Code section 602, in that he had committed violations of Penal Code section 459 (burglary), and Penal Code section 245, subdivision (b) (assault with a deadly weapon upon a peace officer). The minor was committed to the California Youth Authority.

Both jurisdictional and dispositional hearings were held before a juvenile court referee, which were reported and transcribed by a court reporter. Within the time specified in Welfare and Institutions Code section 558, the minor requested a rehearing before a judge, which application was denied. This appeal challenges the standard of review used by the juvenile court judge in denial of the rehearing, and further challenges the propriety of the CYA commitment.

The reason specified by the minor in his application for rehearing was that the referee’s decision was not supported by the evidence. The juvenile court judge, in ruling on the application, stated that he had read the transcript of the proceedings; that he viewed his function as that of an appellate court, which was to determine if there was substantial evidence to support the referee’s findings; that there was sufficient evidence to support the findings; therefore, the application was denied.

Welfare and Institutions Code section 558 provides in relevant part that “the judge of the juvenile court may, after reading the transcript of such proceedings, grant or deny such application” for rehearing. “A juvenile court judge who reviews on application for rehearing a referee’s findings must base a decision to adopt those findings on data ‘sufficient for forming a judgment independent from that of the referee. Under these circumstances the referee’s initial findings and orders become only advisory and their rendition constitutes no more than a subordinate judicial duty.’ ”

(In re Damon C.

(1976) 16 Cal.3d 493, 496 [128 Cal.Rptr. 172, 546 P.2d 676];

In re Edgar M.

(1975) 14 Cal.3d 727, 736 [122 Cal.Rptr. 574, 537 P.2d 406].)