THOMPSON (Homer B.), J.* I concur in the decision rendered, and respectfully conclude that its effect upon the juvenile court system warrants additional elaboration.
[900]We are confronted with a single question: Whether a rehearing, granted by a juvenile court judge on the judge’s own motion, of a determination by a referee that a juvenile had not committed the criminal offense charged in a petition, constituted a violation of the constitutional prohibition against double jeopardy.
I agree that the constitutional prohibition against double jeopardy is here violated; a determination which I find consistent with considerations of basic fairness.
This conclusion is reached with reluctance. Our decision will have a substantial impact upon the juvenile court system. Recently this court went to considerable length to preserve referee adjudication against a different kind of constitutional attack. (In re Edgar M. (1975) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406].) By authority of that case (id., at p. 734), juvenile referees are constitutionally limited to the performance of only “subordinate judicial duties.” (Cal. Const., art. VI, § 22.) Since referee jurisdictional determinations are hereunder held no longer subject to rehearing, under the double jeopardy prohibition, such referee decisions become final adjudications and their rendition fails to meet the test of “subordinate judicial duties” laid down as a constitutional requirement in Edgar M. They become determinative; hence invalid under Edgar M. Thus, the effect of this decision is to hereafter prohibit referee jurisdictional hearings.
In the case at bar we are dealing with what is termed a referee jurisdictional or adjudicative hearing; in familiar language, a trial, hence the double jeopardy issue. The effect of this holding upon non-jurisdictional referee determinations (for example, detention hearings, fitness hearings, and annual reviews) is left to subsequent determination by this court.
Returning to the question presented, let us: (1) examine the nature and scope of double jeopardy protection; (2) consider its application to the juvenile court system; and (3) review other considerations of basic fairness.
Double Jeopardy Protection
Blackstone recorded: “. . . no man is to be brought into jeopardy of his life more than once for the same offence.” (4 Blackstone’s Commentaries 335.) Early on; the Supreme Court observed that the “. . . common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.” (Ex parte Lange (1874) 85 U.S. (18 [901]Wall.) 163, 169 [21 L.Ed. 872, 876]; and see U.S. v. Ball (1896) 163 U.S. 662, 669 [41 L.Ed. 300, 302, 16 S.Ct. 1192]; Kepner v. United States (1904) 195 U.S. 100, 130 [49 L.Ed. 114, 124-125, 24 S.Ct. 797]; Price v. Georgia (1970) 398 U.S. 323, 326 [26 L.Ed.2d 300, 303-304, 90 S.Ct. 1757].)
The basic rationale, one firmly embedded in our jurisprudence, is that the state with all of its power and resources should not be permitted to make repeated attempts to convict a person for an alleged offense, thereby “. . . subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.” (Green v. United States (1957) 355 U.S. 184, 187 [2 L.Ed.2d 199, 204, 78 S.Ct. 221, 61 A.L.R.2d 1119]; see also, 1 Wharton, Criminal Law and Procedure § 136, pp. 299, 301.)
Double jeopardy is expressly prohibited by the federal Constitution and the California Constitution. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The double jeopardy provision of the Fifth Amendment applies to the states through the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784 [23 L.Ed.2d 707, 89 S.Ct. 2056]; see also, Simpson v. Florida (1971) 403 U.S. 384 [29 L.Ed.2d 549, 91 S.Ct. 1801].)
Applied To The Juvenile Court
In Richard M. v. Superior Court (1971) 4 Cal.3d 370, at page 375 [93 Cal.Rptr. 752, 482 P.2d 664], this court, by unanimous decision, held that in proceedings before the juvenile court “. . . juveniles are entitled to constitutional protections against twice being placed in jeopardy for the same offense.” There the allegations of a petition were found not true and the petition dismissed, only to be followed by the filing of a new petition for the same offense, a procedure held violative of the constitutional prohibition. (See also, In re James M. (1973) 9 Cal.3d 517, 520 [108 Cal.Rptr. 89, 510 P.2d 33].)
Juvenile jurisdictional hearings are nonjury trials. In nonjury trials jeopardy attaches upon the swearing of the first witness. (Richard M. v. Superior Court, supra, 4 Cal.3d 370, 376; People v. Sturdy (1965) 235 Cal.App.2d 306, 314 [45 Cal.Rptr. 203]; see also, Breed v. Jones (1975) 421 U.S. 519, 531 [44 L.Ed.2d 346, 356, 95 S.Ct. 1775].)
Since this constitutional protection applies to juvenile court proceedings, and since jeopardy attached upon commencement of the referee hearing, resolution of the question presented depends upon whether the rehearing granted by the judge constituted a new or second jeopardy. Petitioner asserts that under the authority of the Breed case, a rehearing [902]would expose petitioner to double jeopardy. (Id.) Breed involved two trials for the same offense, hence double jeopardy. (See also, Aldridge v. Dean (D.Md. 1975) 395 F.Supp. 1161.)
Certainly procedurally, the case before us also involves two separate and distinct trials, one before the referee, the second before a judge. To illustrate, if one were to observe a referee trial in progress, then subsequently observe a judge trial in progress, it would be difficult to tell them apart. Barring individual idiosyncrasies of the hearing officers, both trials are commenced and conducted according to identical procedures.
The Juvenile Court Law provides: “A referee shall hear such cases as are assigned to him by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court.” (Welf. & Inst. Code, former § 554, now § 248.) The new juvenile court rules adopted by the Judicial Council, effective July 1, 1977, make special provision, as to referees, regarding the use of court reporters and advising participants that referee orders may be reheard by a judge. (Cal. Rules of Court, rule 1317.) However, in all other respects the rule provides . . proceedings heard by a referee shall be conducted in the same manner as juvenile court proceedings heard by a judge.” (Id.) Although certain dispositional orders by a referee require express approval by a judge, the referee has available the same range of dispositional orders as are available to a judge. (Id., rule 1318.) It is interesting to note that the adjudicative hearing in juvenile court in the Breed case was actually conducted by a referee rather than a judge.
In the instant case, the referee commenced the jurisdictional hearing, both the People and the juvenile called witnesses who were examined and cross-examined, and after argument the petition was dismissed. As in Breed, the referee hearing was, in a true sense, a trial.
Let us next consider the nature of the rehearing ordered by the judge in the case before us. Is such a rehearing a trial? The Juvenile Court Law provides: “All rehearings of matters heard before a referee shall be before a judge of the juvenile court and shall be conducted de novo.” (Welf. & Inst. Code, former § 560, now § 254; Cal. Rules of Court, rule 1319(e).) What is a hearing “de novo”? As this court has observed, it “... literally means a new hearing, or a hearing the second time. [Citation omitted.] Such a hearing contemplates an entire trial of the controversial matter in the same manner in which the same was originally heard. It is in no sense a review of the hearing previously held, but is a complete trial of [903]the controversy, the same as if no previous hearing had ever been held.” (Italics added, Collier & Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205 [70 P.2d 171]; Buchwald v. Katz (1972) 8 Cal.3d 493, 502 [105 Cal.Rptr. 368, 503 P.2d 1376].)
Thus, a rehearing in the juvenile court is a retrial, a second trial. It is therefore clear that the case before this court, as was true in Breed, consists of two separate, distinct trials for the same offense, elements classically associated with double jeopardy.
Let us next examine the attempt by the People to distinguish Breed. First the People describe the proceedings in the instant case as differing from Breed in that here they were “ongoing”; the referee making findings and orders “preliminaiy in nature,” “advisory determinations,” which are subject to “independent judicial resolution.”
Are these assertions borne out by the facts presented in the case before us? Certainly the juvenile proceedings in this case were not “ongoing.” The referee dismissed the petition. There is no provision in the statute or rules of court for application for rehearing by the people. (Welf. & Inst. Code, formerly §§ 553-560, now §§ 247-254; Cal. Rules of Court, rules 1316-1319.) When, as in this case, a referee dismisses a petition, that concludes the matter. Neither the statute nor rules provide for any type of review. If such adjudicative determination is ever reviewed by a juvenile court judge, such review is a matter of purely local and discretionaiy practice. The fact that the judge in this case ordered a rehearing on his own motion (Welf. & Inst. Code, former § 559, now § 253; Cal. Rules of Court, rule 1319(d)) was due to circumstances peculiar to this case and no part of a regular or “ongoing” procedure for review. In fact, the letter from the district attorney to the judge precipitating the order for rehearing in this case was action which has been criticized by this court and conduct which we have stated to be of “doubtful constitutionality.” (Donald L. v. Superior Court (1972) 7 Cal.3d 592, 598-599 [102 Cal.Rptr. 850, 498 P.2d 1098].)
It is also evident from the facts that the referee’s determination was not “preliminaiy in nature” or “advisoiy.” Rather, it was determinative of the first trial. The fact that the rehearing by the judge is a hearing “de novo” (i.e., a new trial and not a review), as demonstrated in the earlier discussion, contradicts the assertion that the referee’s order was “preliminary” or “advisoiy.” Had rehearing not been granted, the matter would have stood concluded. It is true that the judge does, upon [904]conducting a hearing “de novo,” make an “independent judicial resolution” of the matter. However, that follows from the fact that the rehearing by the judge is a second and separate trial.
Secondly, the People describe the proceedings in the instant case as differing from Breed in that the transition from a referee to a judge in the juvenile court does not impose the same “harsh” burden as that imposed in a transfer from juvenile to criminal court. In this regard, it should be noted that a trial in criminal court has its compensations. It carries the right to trial by jury and the right to bail in most cases. Furthermore, a trial is a trial—the constitutional doctrine of double jeopardy does not distinguish between juvenile and criminal trials. To a juvenile acquitted by a referee, a second exposure to jeopardy before a judge of the juvenile court may seem every bit as onerous as a trial in criminal court after a conviction in juvenile court before a referee.
The People, by repeated referrals to “on-going” juvenile proceedings and single jeopardy, seem to be relying upon a “continuing jeopardy” or “run their full course” concept. However, these arguments were advanced and rejected in Breed. (Id., at p. 534 [44 L.Ed.2d at p. 358]; see also, United States v. Jenkins (1975) 420 U.S. 358, 369 [43 L.Ed.2d 250, 258-259, 95 S.Ct. 1006].)
Lastly, it should be noted that In re Edgar M. (1975) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406], and the instant case involve separate and distinct constitutional provisions. Resolving the double jeopardy issue by prohibiting a rehearing “de novo” merely shifts the constitutional violation to the Edgar M. limitation. Thus, in the case before us the referee conducted an adjudicative hearing, found for the juvenile, and dismissed the petition. Whether such action meets the Edgar M. test depends upon whether such action was determinative. Since the judge could, prior to the instant decision, on the judge’s own motion set aside the referee decision and conduct a hearing “de novo,” the constitutional requirements of Edgar M. were met.
However, since the hearing “de novo” before the judge constitutes a second trial for the same offense charged in the referee determination, the retrial results in double jeopardy. Elimination of rehearings “de novo” in order to meet the double jeopardy violation makes referee hearings determinative and hence violative of the Edgar M. rule.
[905]Basic Fairness
The conclusion here reached is consistent with considerations of fair play. Assume that a juvenile is brought before a referee for an adjudicative hearing. Should the juvenile testify? If the juvenile does not testify, he may be foiind to have committed the offense. If he does testify, and a rehearing is granted, as in this case, he has revealed his defense strategy; a revelation that may well be used against him in a subsequent trial before a judge.
Consider a further problem. Should the juvenile in a referee hearing call all defense witnesses? If the juvenile does call all his witnesses and a rehearing is granted, then the people are prepared to meet the full defense before the judge. If the juvenile holds back, is found to have committed the offense, and the judge does not grant a rehearing, then the juvenile has lost the chance to present that portion of the defense. At the very least, the juvenile reveals the thrust of his defense at the referee hearing.
It has been asserted that the referee system actually permits prosecutorial discoveiy, which is not otherwise available under normal discovery procedures. There are no specific statutory discoveiy provisions provided for the juvenile court. Iri this sense, a referee hearing may be to the People what a preliminary hearing is to the defense in criminal court. Although the new juvenile court rules do provide discoveiy procedures which attempt to reflect statutory and judicially developed rules of criminal discovery in the adult court, prosecutorial discovery is limited in the juvenile court in the same way it is limited in adult court. (Cal. Rules of Court, rule 1341.)
Lastly, it seems apparent that the more trials for the samé offense, the greater the likelihood that a conviction of an innocent accused will be achieved.
For all these reasons, I concur that the constitutional prohibition against double jeopardy is here violated, a conclusion consistent with considerations of basic fairness. The writ of prohibition should be issued.
Bird, C. J., and Tobriner, J., concurred.
A petition for a rehearing was denied May 30, 1978, and the opinion was modified to read as printed above.
Assigned by the Chairperson of the Judicial Council.