Supreme Court of California Justia
Docket No. S109902
In re Eddie M.

Filed 8/7/03 Note to Publishers: Publish this opinion immediately preceding the companion opinion, In re
Emiliano M., S107904, also filed 8/7/03


In re EDDIE M., a Person Coming Under )
the Juvenile Court Law. )
Plaintiff and Respondent,
Ct.App. 2/7 B151521
Los Angeles County
Super. Ct. No. VJ22837

Defendant and Appellant.

At the March 7, 2000, Primary Election, California voters approved
Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998
(Proposition 21). Proposition 21 operated, among other things, to amend juvenile
court procedures, including Welfare and Institutions Code section 777.1 As
configured since 1986, section 777 allowed a more restrictive disposition for a
person who, while already on juvenile probation for a criminal offense adjudicated
under section 602, violates that probation by committing new misconduct.
As pertinent here, Proposition 21 revised section 777 in two respects. First,
before Proposition 21, the prosecutor could “allege[ ] a violation of a condition of
probation amounting to a crime,” and either the probation officer or the prosecutor

All unlabeled statutory references are to the Welfare and Institutions Code.

could “allege[ ] a violation of a condition of probation not amounting to a crime.”
(§ 777, former subd. (a)(2), as amended by Stats. 1986, ch. 757, § 5, p. 2478
(former section 777(a)(2)), italics added.) Proposition 21 deleted the initial
unitalicized phrase from section 777, subdivision (a)(2) (section 777(a)(2)).
Second, before Proposition 21, the reasonable doubt standard governed all
section 777(a)(2) proceedings, whether or not a crime was charged therein. (See
In re Arthur N. (1976) 16 Cal.3d 226, 240 (Arthur N.); Cal. Rules of Court, former
rule 1392(d)(1), adopted eff. July 1, 1977, relettered subd. (e)(1) eff. Jan. 1, 1987,
and repealed eff. July 1, 1989.)2 The current statute, which only covers probation
violations “not amounting to . . . crime[s]” (§ 777(a)(2), italics added), allows
proof “by a preponderance of the evidence” (id., subd. (c)).
Here, the new version of section 777 was used to place Eddie M.
(petitioner), then on juvenile probation for a prior criminal adjudication, in a more
restrictive setting. The section 777 motion claimed, and the juvenile court found,
several probation violations. No breach of any penal law was averred or sustained
in the section 777 proceeding. No request or ruling was made to confine petitioner
beyond the maximum term for his prior section 602 offense (see §§ 726, 731).
Relying on In re Marcus A. (2001) 91 Cal.App.4th 423 (Marcus A.),
petitioner contends that the “not amounting to a crime” language in current section
777(a)(2) limits that section to probation violations objectively lacking the
elements of crimes. He claims that to the extent his probation violations could be
charged as crimes, Proposition 21 bars section 777’s use, and relegates
modification of his dispositional status to either a new section 602 proceeding or
an adult criminal prosecution — each requiring proof beyond a reasonable doubt.

All unlabeled rule references are to the California Rules of Court.

Petitioner also contends the preponderance standard of proof authorized by section
777, subdivision (c) (section 777(c)) offends federal due process guarantees.
The Court of Appeal correctly rejected petitioner’s approach. In our view,
the statute’s language and long history make clear that an “allege[d]” probation
violation “not amounting to a crime” covers any act alleged only as a probation
violation. (§ 777(a)(2).) By limiting the statute to probation violations not
amounting to crimes, Proposition 21 simply ended prosecutorial use of section
777(a)(2) to seek new criminal adjudications against criminal juvenile
probationers. Proposition 21 also relaxed certain procedures attending this prior
practice. The new streamlined statute follows adult probation revocation
procedures (see Pen. Code, § 1203.2) by preserving executive discretion to seek a
dispositional change for a criminal juvenile probationer who violates probation,
regardless of the actual criminal nature of the violation alleged, without proving
any crime beyond a reasonable doubt, so long as any resulting physical
confinement does not exceed the maximum term of adult confinement tied to the
original offense. The juvenile court also retains authority under section 777 to
enforce its orders, including orders barring new crimes, against criminal
probationers. Moreover, because both juvenile and adult probation violation
proceedings differ from criminal prosecutions in purpose, operation, and effect,
juvenile probation violations, like their adult counterparts, can constitutionally be
proven under section 777(c) by a preponderance standard insufficient for
conviction of a charged crime. Hence, we affirm the Court of Appeal’s judgment.
Section 602 extends juvenile court jurisdiction to persons who are under 18
years of age when they violate any law “defining crime.” (Id., subd. (a); cf. § 601
[incorrigible youths].) A person found to satisfy section 602 comes under the
dispositional jurisdiction of the court. (Id., subd. (a).) Such jurisdiction often ends

when the ward attains age 21, but a higher age limit sometimes applies. (§ 607.)3
Probation officials investigate and refer juvenile criminal offenders to the
prosecuting attorney. (E.g., §§ 652, 653.5.) No section 602 case begins until the
prosecutor files a petition under that statute on the People’s behalf. (§§ 650, subd.
(c), 681, subd. (a).) The petition states which penal laws were violated and
whether the offenses are felonies or misdemeanors. (§§ 656, subd. (f), 656.1.)
The hearing is “bifurcated.” (In re Gladys R. (1970) 1 Cal.3d 855, 859.)
At the jurisdictional phase, the juvenile court decides whether the petition
concerns a person described in section 602. The Evidence Code applies. (§ 701.)
Under section 701, the petition cannot be sustained absent “[p]roof beyond a
reasonable doubt supported by evidence [ ] legally admissible in the trial of
criminal cases.” The court must declare whether the offense is a felony or
misdemeanor. (§ 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204.)
Section 701’s high standard of proof at the jurisdictional phase was added
in response to In re Winship (1970) 397 U.S. 358 (Winship). (In re Manuel L.
(1994) 7 Cal.4th 229, 235, citing Stats. 1971, ch. 934, § 1, p. 1833.) The high
court held that federal due process requires proof beyond a reasonable doubt when
juveniles are charged with crimes. (Winship, supra, 397 U.S. at p. 368.) This rule
applies at the jurisdictional stage of a criminal delinquency proceeding. (Ibid.)
Less exacting rules govern disposition. No statute expressly subjects this
phase to the Evidence Code. In addition to other relevant evidence (e.g., §§ 656.2,

Of course, not all section 602 offenders are fit for juvenile court treatment.
Proposition 21 broadened the circumstances under which some violent and serious
juvenile crimes are prosecuted in adult court without a prior finding of unfitness in
juvenile court. (E.g.,§§ 602, subd. (b) [minors who “shall” be charged in criminal
court], 707, subd. (d)(1)-(3) [minors who “may” be charged in criminal court]; see
Manduley v. Superior Court (2002) 27 Cal.4th 537, 549-550 (Manduley).

subd. (a), 725.5), the court must consider the probation officer’s report. (§ 706; In
re Gladys R., supra, 1 Cal.3d 855, 859; see In re Romeo C. (1995) 33 Cal.App.4th
1838, 1843-1845 [holding § 706 implicitly incorporates Evid. Code, § 352].)
One outcome in section 602 cases is probation, which involves various
forms of community release. (In re Kazuo G. (1994) 22 Cal.App.4th 1, 8.) Like
other juvenile sanctions, probation guides reform, promotes accountability, and
protects the public. (§ 202, subds. (b) & (e)(3).) Some conditions are dictated by
statute. (E.g., §§ 729-729.3.) Others are discretionary. (See § 730, subd. (b).)
Persons placed on juvenile probation for a criminal offense adjudicated
under section 602 may, or may not, also be made wards of the court. A wardship
declaration is required if a section 602 criminal probationer is removed from the
physical custody of a parent or guardian. (See §§ 725, 726, 727, 730.)
For section 602 wards, an “additional alternative” to probation is
commitment to a county home, ranch, or camp. (§ 730, subd. (a).) The most
restrictive placement is the California Youth Authority (CYA). (See §§ 731, 734.)
The court must find that CYA would likely benefit the ward (§ 734), and
that it otherwise serves the statutory aims. (In re Ricky H. (1981) 30 Cal.3d 176,
184 (Ricky H.).) Nothing bars CYA for section 602 wards who have received no
other placement. (Id. at p. 183; see In re John H. (1978) 21 Cal.3d 18, 27.)
However, any order removing a section 602 ward from the custody of a
parent or guardian must state, among other things, that “physical confinement”
cannot exceed “the maximum term of imprisonment which could be imposed upon
an adult convicted of the [same] offense or offenses.” (§ 726, subd. (c), 1st par.;
see § 731, 2d par.) This rule took effect January 1, 1977. (Stats. 1976, ch. 1071,
§ 29, p. 4827; see id., § 30, p. 4829.) It seeks to prevent any unconstitutional
disparity between the maximum confinements of juveniles and adults for both a
first offense (see People v. Olivas (1976) 17 Cal.3d 236, 242-243, 257) and any

subsequent offense (see Arthur N., supra, 16 Cal.3d 226, 238-239).
In late 1977, a ward’s “maximum” confinement on a single count was
defined as the upper term prescribed under the Determinate Sentencing Act (DSA)
(see Pen. Code, § 1170), plus enhancements. (§ 726, subd. (c), 2d par., added by
Stats. 1977, ch. 1238, § 1, p. 4158, eff. Oct. 1, 1977.)4 The same 1977 law
allowed courts to “aggregate” terms of confinement for multiple section 602
counts or petitions, including previously sustained petitions. (§ 726, subd. (c), 3rd
par.) Aggregation follows the DSA formula for consecutive sentences, including
enhancements. (See In re Jovan B. (1993) 6 Cal.4th 801, 810, 812, 818.)
Section 777 — the statute at issue here — has long allowed the juvenile
court to modify disposition by ordering a more restrictive placement for a person
previously found to have committed a criminal offense under section 602. (In re
Ronald E. (1977) 19 Cal.3d 315, 326.) Between section 777’s enactment in 1961,
and Proposition 21’s approval in 2000, the statute contemplated a “supplemental
petition” alleging that the prior disposition was not “effective” in reforming or
protecting the section 602 ward or probationer. (Former § 777(a)(2).)
The section 777 “supplemental petition” came to be used in a wide range of
situations against persons who were already section 602 wards and probationers.

The maximum period of confinement is statutorily defined as “the longest
of the three time periods set forth in paragraph (2) of subdivision (a) of Section
1170 of the Penal Code.” (§ 726, subd. (c), 2d par., italics added.) However, long
after it appeared in section 726, the italicized DSA provision was redesignated
subdivision (a)(3) of Penal Code section 1170. (Stats. 1995, ch. 49, § 1, p. 124.)
No conforming change was made in section 726 — an oversight the Legislature
may now wish to address. If a section 602 ward is found to have committed “a
misdemeanor or a felony not included within the scope of [the DSA under]
Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the
longest term of imprisonment prescribed by law.” (§ 726, subd. (c), 4th par.)

In some cases, the section 777 petition simply alleged a probation violation or
other state of facts warranting a change in the disposition currently in effect for the
prior offense. In other cases, new crimes were charged as such, producing
consequences similar to those attending a new section 602 petition.
In 1976, Arthur N. held that where section 777 was used to allege a new
crime against a section 602 ward or probationer, the due process rule in Winship,
supra, 397 U.S. 358, applied, and the supplemental petition must be sustained
beyond a reasonable doubt. (Arthur N., supra, 16 Cal.3d 226, 239-240.)
Arthur N. (id. at pp. 235-239), declined to analogize section 777 “new crime”
proceedings to adult probation revocation proceedings involving a lower standard
of proof. Finding no distinction between original (§ 602) and supplemental
(§ 777) petitions alleging new crimes, Arthur N., supra, 16 Cal.3d at page 240,
further held that “the bifurcated hearing procedure” established for section 602
proceedings applied in section 777 “new crime” proceedings as well.
Effective July 1, 1977, the Judicial Council adopted new Juvenile Court
Rules, including former rule 1392(d)(1). This provision subjected all section 777
jurisdictional hearings to the same procedures as section 602 jurisdictional
hearings, including section 701’s requirement of proof beyond a reasonable doubt
supported by evidence admissible in criminal trials. The Advisory Committee
comment explained that former rule 1392(d)(1) “extend[ed]” the reasonable doubt
requirement to supplemental petitions which did not “charge[ ] new and different
crim[es],” and for which such a standard was not strictly “required” by Arthur N.,
supra, 16 Cal.3d 226. (Advisory Com. com., Deerings Ann. Codes, Rules (1980
ed.) foll. rule 1392, p. 423; see In re Antonio A. (1990) 225 Cal.App.3d 700, 705

[applying same hearsay rules at section 602 and 777 jurisdictional phases].)5
A few years later, this court clarified in In re Michael B. (1980) 28 Cal.3d
548, that section 777 was not the sole means of charging new crimes against
persons already under section 602 jurisdiction. The alternatives were to file either
a new section 602 petition or a “unitary” petition under both sections 602 and 777.
(In re Michael B., supra, 28 Cal.3d at pp. 553, 554.) In re Michael B. held,
however, that due process required notice of any intent to rely on previously
sustained petitions, or, by charging new crimes, to aggregate and extend the
maximum term of confinement. (Ibid.)
Against this backdrop, the Legislature enacted the California Juvenile
Probation Revocation Procedural Act of 1986 (the 1986 Act). (Stats. 1986, ch.
757, §§ 1, 5, pp. 2476, 2478.) This measure amended section 777(a)(2) to indicate
that, with respect to section 602 wards and probationers, supplemental petitions
applied to “[probation] violations,” and it also ended prosecutorial control over
supplemental proceedings in such cases. (See § 777, former subd. (a), as amended
by Stats. 1977, ch. 1241, § 9, p. 4184.) The 1986 Act gave prosecutors authority

The comment to former rule 1392(d)(1) provided, in part, as follows: “[A]s
now required in certain instances [under Arthur N., supra, 16 Cal.3d 226],
subdivision (d) prescribes that a two-part hearing be held on the supplemental
petition, analogous to the jurisdiction and disposition hearings held on the original
petition. This is required by [Arthur N.] in those cases where the supplementary
petition charges new and different criminal acts not included in the original
. . . . This rule would extend ‘the same panoply of . . . protections’ to all
hearings on supplemental petitions
. . . . [R]equirements relating to the
appointment of counsel [citations], the rules of evidence [citations] and the burden
of proof
[citations] are made applicable to hearings on a supplemental petition.”
(Advisory Com. com., Deerings Ann. Codes, Rules, supra, p. 423, italics added.)
The apparent purpose of this expansive approach was to promote uniformity and
clarify the applicable standard of proof. (See rule 1400(b).)

to file any supplemental petition “alleg[ing]” a probation violation “amounting to
a crime.” (Former § 777(a)(2).) The 1986 Act also allowed either the probation
officer or the prosecutor to file a supplemental petition “alleg[ing]” a probation
violation “not amounting to a crime.” (Ibid., italics added.)6
In 2000, Proposition 21 changed the scope of section 777 in section 602
cases. As pertinent here, voters deleted the provision allowing prosecutors to
allege probation violations amounting to crimes. Now, for wards or probationers
under section 602, section 777 applies in only one instance traceable to the 1986
Act — a probation violation “not amounting to a crime.” (§ 777(a)(2).)
With respect to procedural changes, Proposition 21 replaced the
supplemental petition with a “notice” provision. (§ 777, subds. (a)(2) & (b).) A
“preponderance of the evidence” standard now applies. (§ 777(c).) Other new

The version of section 777 in effect when Proposition 21 became law
provided, in part, as follows: “An order changing or modifying a previous order
by removing a minor from the physical custody of a parent, guardian, relative, or
friend and directing placement in a foster home, or commitment to a private
institution or commitment to a county institution, or an order changing or
modifying a previous order by directing commitment to the Youth Authority shall
be made only after noticed hearing upon a supplemental petition. [¶] (a) The
supplemental petition shall be filed as follows: [¶] . . . [¶] (2) By the probation
officer or the prosecuting attorney, after consulting with the probation officer, if
the minor is a court ward or probationer under Section 602 in the original matter
and the supplemental petition alleges a violation of a condition of probation not
amounting to a crime. The petition shall contain a concise statement of facts
sufficient to support the conclusion that the previous disposition has not been
effective in the rehabilitation or protection of the minor. The petition shall be filed
by the prosecuting attorney, after consulting with the probation officer, if a minor
has been declared a ward or probationer under Section 602 in the original matter
and the petition alleges a violation of a condition of probation amounting to a
crime. The petition shall contain a concise statement of facts sufficient to support
the conclusion that the previous disposition has not been effective in the
rehabilitation or protection of the minor.” (Stats. 1989, ch. 1117, § 18, p. 4127.)

language allows “reliable hearsay evidence” insofar as it would be “admissible in
an adult probation revocation hearing [under] People v. Brown [(1989) 215
Cal.App.3d 452 (Brown)] and any other relevant provision of law.” (§ 777(c).)7
On October 18, 2000, petitioner was arrested for being under the influence
of narcotics in public. He admitted ingesting methamphetamine, and the drug was
found on his person. Petitioner, who turned age 18 on October 30, 2000, was a
juvenile court ward, and was home on probation for a prior section 602 offense.
On October 19, 2000, the district attorney filed a new section 602 petition
alleging that petitioner possessed a controlled substance, a felony (Health & Saf.
Code, § 11377, subd. (a)), and was under the influence of a controlled substance, a
misdemeanor (id., § 11550, subd. (a)). At the jurisdictional hearing on November
14, 2000, petitioner admitted both offenses, and the court sustained the petition.
The dispositional hearing occurred immediately thereafter. Based on the

Section 777 as amended by Proposition 21 provides, in part, as follows:
“An order changing or modifying a previous order by removing a minor from the
physical custody of a parent, guardian, relative, or friend and directing placement
in a foster home, or commitment to a private institution or commitment to a
county institution, or an order changing or modifying a previous order by directing
commitment to the Youth Authority shall be made only after a noticed hearing.
[¶] (a) The notice shall be made as follows: [¶] . . . [¶] (2) By the probation
officer or the prosecuting attorney if the minor is a court ward or probationer
under Section 602 in the original matter and the notice alleges a violation of a
condition of probation not amounting to a crime. The notice shall contain a
concise statement of facts sufficient to support this conclusion. [¶] . . . [¶] (c)
The facts alleged in the notice shall be established by a preponderance of the
evidence at a hearing to change, modify, or set aside a previous order. The court
may admit and consider reliable hearsay evidence at the hearing to the same extent
that such evidence would be admissible in an adult probation revocation hearing,
pursuant to the decision in [Brown, supra, 215 Cal.App.3d 452] and any other
relevant provision of law.”

probation report, the court knew about petitioner’s gang affiliation, his prior
juvenile crimes starting at age 12 (e.g., battery, grand theft, giving false
information to police), and his two prior camp community placements. However,
the court rejected the recommendation of CYA.
The court continued petitioner’s wardship under section 602, removed him
from parental custody, and ordered him committed to a camp community program
for one year. The court continued petitioner’s probation under conditions named
and numbered in its order. Petitioner’s maximum term of confinement for the two
drug offenses was three years four months.
On May 3, 2001, five months after petitioner arrived at Camp Resnick, the
probation department moved under section 777 to terminate the placement and to
commit petitioner to CYA. The motion, which bore the same docket number as
the section 602 drug case, alleged that petitioner had violated probation on six
different occasions. All six counts involved both condition number 1 (obey all
laws), and condition number 2 (follow staff instructions). Count 5 also implicated
condition number 7 (do not leave camp without permission).
The section 777 hearing occurred June 20, 2001. At the jurisdictional
phase, counts 1 and 4 were dismissed at the People’s request. Camp employees
and petitioner testified about the four other matters, as follows:
Count 2 occurred December 23, 2000. Petitioner disrupted shower time by
refusing to exchange his dirty county sweatshirt for a clean one, claiming it was
his own property. Staff retrieved the item and sent petitioner to the Special
Housing Unit (SHU) as discipline. Petitioner said he viewed staff’s request as
equivocal. He felt he did not need a new sweatshirt.
Count 3 occurred March 23, 2001, when petitioner caused a disturbance by
refusing to stop reading at bedtime. He was sent to SHU. Petitioner said he meant
no harm because others were still awake and he was not sleepy.

Count 5 occurred April 21, 2001, after family visitation in the camp gym.
Violating staff instructions, petitioner left the supervised setting of the gym and
escorted his family to the exit gate. He was stopped and sent to SHU. Petitioner
denied any intent to defy orders or leave camp.
Count 6 occurred April 26, 2001. Petitioner initially refused to shave, as
camp rules required. Once petitioner started shaving, he stopped midway and
asked to see family pictures mailed to him at camp. After a one-hour stand-off,
staff sent petitioner to SHU. On the way, he entered a restricted area and opened
staff’s mailbox in order to retrieve the pictures. A staff member confronted
petitioner. When petitioner refused to move or leave, several employees carried
him away. Petitioner claimed that shaving harmed his skin, and that he thought he
was allowed to enter the restricted area.8
The People argued that petitioner’s misconduct, though seemingly
innocuous, disrupted camp routines, encouraged peer disobedience, and threatened
staff control. Invoking section 777 as amended by Proposition 21, the People
claimed all four counts were supported by a preponderance of the evidence. The
juvenile court agreed and sustained the allegations.
At disposition, a camp probation officer testified that petitioner defied
authority in order to assert his manhood, and that other wards, most of whom were

Here, as on appeal, though he declines to admit any misconduct, petitioner
artfully suggests that the above described acts, if they occurred as found in the
section 777 proceeding, constitute crimes in the following respects: Count 2
involves theft of a sweatshirt under Penal Code section 484, subdivision (a); count
5 involves attempted escape under Welfare and Institutions Code section 871,
subdivision (a); and count 6 involves resisting a peace officer and/or an executive
officer in violation of Penal Code section 148, subdivision (a)(1) and section 69,
respectively. Petitioner does not claim that the conduct alleged and found in count
3 violates any penal law.

younger, viewed him as a leader. The witness opined that only CYA, which
offered more structure and better counseling, could control petitioner.
Over counsel’s objection, the juvenile court found that petitioner would
likely benefit from CYA, rejected all other alternatives, and otherwise adopted the
recommended disposition. The court noted that despite his desire to be treated as
an adult, petitioner misbehaved at camp and committed crimes on probation at
home. Petitioner was committed to CYA for the three-year four-month maximum
term of confinement attending his section 602 drug offenses, less certain credits.
Petitioner appealed, urging that because several of his probation violations
were criminal in nature, they could not be treated under section 777, and, in any
event, they had to be proved beyond a reasonable doubt. For this proposition, he
cited Marcus A., supra, 91 Cal.App.4th 423.
A divided Court of Appeal disagreed with Marcus A., supra, 91
Cal.App.4th 423, and held that, as a general rule, Proposition 21 does not exclude
inherently criminal acts under section 777(a)(2), provided they are alleged only as
probation violations.9 The Court of Appeal majority determined that Proposition
21 sought to harmonize section 777 with adult probation revocation proceedings,
and “thereby complet[ed] the process begun by the Legislature in 1986.” The

Without providing any supporting analysis, the Court of Appeal majority
qualified its holding by inserting the following sentence in a footnote: “If the only
condition of probation that the juvenile has violated is that he or she ‘obey all
laws,’ a new petition under section 602, not notice of a section 777 hearing, must
be used to seek a more restrictive placement based on the subsequent misconduct
amounting to a crime.” As we shall explain, there is no statutory support for such
an exception to the general rule otherwise affirmed here. Both before and after
Proposition 21, an “allege[d]” probation violation “not amounting to a crime”
means any act alleged under section 777(a)(2) as a mere probation violation,
including criminal conduct that violates a requirement to obey all laws.


majority also determined that because no new criminal charge or longer term of
confinement is involved, section 777, like the adult scheme, is not unconstitutional
insofar as it employs a preponderance standard of proof. In a separate concurring
opinion, one justice accepted petitioner’s claim of statutory error, but opined that
the requisite facts had been proven beyond a reasonable doubt in any event.10
Petitioner sought review, challenging the Court of Appeal’s decision on
both statutory and constitutional grounds. We address both issues.
A. Meaning of Section 777.
Like the court in Marcus A., supra, 91 Cal.App.4th 423, petitioner insists
that section 777(a)(2) has always concerned the nature of the underlying conduct
(criminal versus noncriminal) rather than the manner in which the state alleges and
treats it (new crime versus probation violation). Under this view, section
777(a)(2)’s limited application to probation violations “not amounting to . . .
crime[s]” excludes acts that constitute crimes, even though they may also violate
probation. Petitioner repeats his appellate claim that, except for the bedtime
reading incident in count 3, his probation violations involved criminal conduct and
thus cannot be used to modify his placement under section 777.11

In a part of the majority analysis with which the concurrence tacitly agreed,
the Court of Appeal held that the juvenile court miscalculated the maximum term
of confinement for the section 602 drug offenses (and thus the maximum term for
which petitioner could be confined at CYA for his probation violations) by
including consecutive terms for the felony and misdemeanor offenses, and by not
staying sentence on the latter count. Neither party criticizes the Court of Appeal
for modifying the disposition by subtracting four months from the maximum term
of confinement. The issue is not reviewed here.
Apparently, because no appellate decision had yet addressed the issue,
petitioner did not argue in the juvenile court that Proposition 21 excluded criminal
conduct from section 777. Nor did the Attorney General initially claim that

(footnote continued on next page)

Contrary to what petitioner claims, the plain meaning of the statute does not
support his approach. (See People v. Birkett (1999) 21 Cal.4th 226, 231 [plain
meaning controls].) No literal reference to behavior — criminal or noncriminal —
has ever appeared in section 777(a)(2).
Indeed, in 1986, when section 777(a)(2) was first amended to describe
probation violations based on whether they amounted to crimes, lawmakers knew
how to define “acts” and the “commission” or “perpetration” of conduct as
criminal or not. (E.g., Pen. Code, §§ 15 [defining “crime” as an “act committed or
omitted” in violation of penal law], 136, subd. (3) [defining “victim” as person
against whom crime is “perpetrated”].) Then, as now, the Legislature used similar
language to characterize section 602 in neighboring sections of the Welfare and
Institutions Code. (E.g., §§ 656.2, subd. (a), 676.5, subd. (a) [§ 602 involves
“commission” of criminal offenses].)
By contrast, when the Legislature amended section 777(a)(2) in 1986, it
made no direct reference to the “commission” or “perpetration” of “acts” or
“conduct” that violated a criminal law. Instead, the 1986 Act emphasized the
phrase “[probation] violation,” then simply qualified that term based on whether
the violationamount[ed] to a crime” (Former § 777(a)(2), italics added.)

(footnote continued from previous page)

petitioner’s silence waived the issue on appeal. After soliciting supplemental
briefs from the parties, the Court of Appeal concluded that the statutory and
constitutional issues raised by petitioner should be decided notwithstanding any
procedural bar that might otherwise apply. Under the circumstances, we agree.
Review was granted in this case to decide the meaning and validity of section 777
in countless section 602 cases involving probation violations covered by
Proposition 21. The lower courts are divided on the issue. As the Attorney
General seems to concede, a decision on the merits here is necessary to resolve the
conflict as soon as possible.

Because the Legislature presumably knew how to draft statutes that targeted
criminal acts or conduct, as such (see People v. Harrison (1989) 48 Cal.3d 321,
329), we can reasonably infer that its failure to include such language in former
section 777(a)(2) was intentional. (See, e.g., People v. Martinez (1995) 11 Cal.4th
434, 451.) Thus, the phrase “not amounting to a crime,” as used in the 1986 Act,
evidently involved something other than the inherent criminal nature of the
probation violation that triggered a request for a dispositional modification.
Under the same settled rules of construction, voters who approved
Proposition 21 in 2000 also knew that section 777(a)(2) was not phrased in the
manner petitioner suggests when they amended that section. If Proposition 21 had
intended section 777(a)(2) to apply to the “commission” of “conduct” or the
“perpetration” of “acts” that are inherently criminal, such language, modeled on
similar neighboring statutes, could have been included in the initiative measure.
Moreover, petitioner’s reading of the current version of section 777(a)(2)
would treat as mere surplusage other language that the 1986 Act added and that
Proposition 21 retained. (See People v. Hicks (1993) 6 Cal.4th 784, 794.) Under
that language, the modification request must “allege[ ]” a probation violation “not
amounting to a crime.” (§ 777(a)(2), italics added.) According to both legal and
nonlegal dictionaries, the verb “allege” means to “plead” or “charge” matters
having legal significance, or to “accuse” or “indict” someone in court. (E.g.,
Roget’s Internat. Thesaurus (6th ed. 2001) p. 440, col. 2; American Heritage Dict.
(4th ed. 2000) p. 46, col. 1; 1 Oxford English Dict. (2d ed. 1989) p. 331, col. 3;
West’s Legal Thesaurus/Dict. (special deluxe ed. 1986) p. 42; Ballentine’s Law
Dict. (3d ed. 1969) p. 61, col. 2; Webster’s 3d New Internat. Dict. (1965) p. 55,
col. 2; see Burton, Legal Thesaurus (2d ed. 1992) p. 21, col. 2 [“alleged” means
“asserted formally”].) This feature alone suggests that lawmakers and voters
focused on how the authorities choose to treat — i.e., to “allege[ ]” — new

misconduct, rather than on the inherent criminal nature of those acts.
By further stating that what must be “allege[d]” is a “violation of a
condition of probation not amounting to a crime,” the Legislature and voters
emphasized the nature of the legal pleadings and court proceedings. (§ 777(a)(2),
italics added.) Again, this language suggests that whether the statute applies rests
on official discretion to plead new misconduct, even if inherently criminal, as a
mere probation violation, and to forgo treating the act as a new crime.
Decisional law and practice guides shed little light on the “not amounting to
a crime” concept. Between 1986 and 2000, the courts largely assumed that
because section 777(a)(2) embraced any alleged probation violation whether or not
it was inherently criminal, no misconduct escaped the statute’s reach. (E.g., In re
Marco A. (1996) 50 Cal.App.4th 1516, 1521 [probation violation for being AWOL
from county facility amounts to crime depending on how alleged]; see 1 Waxman,
Cal. Juvenile Court Practice (Cont.Ed.Bar 1998 supp.) § 11.41, pp. 234-235.)
Serious debate over the meaning of section 777(a)(2) arose only after
Proposition 21 deleted the reference to alleged probation violations “amounting to
. . . crime[s].” In Marcus A., supra, 91 Cal.App.4th 423, 427, the court summarily
concluded that this change removed all criminal acts from section 777, and that the
minor’s illegal possession of cigarettes had been wrongly pled as a probation
violation. However, the instant Court of Appeal basically rejected this approach
and viewed the statute as excluding criminal counts, not criminal conduct.
Much like the present Court of Appeal, we do not read current section
777(a)(2) in the manner petitioner suggests. Absent any express limitation on the
nature of the underlying act, and given the allusion to official charging discretion,
the statute seems to cover any probation violation alleged in the section 777
notice, whether or not that act could otherwise be pled as a crime. Nevertheless, to

confirm this view, we examine petitioner’s arguments in light of the statute’s long
history. (See People v. Wutzke (2002) 28 Cal.4th 923, 935.)
Notably, petitioner avoids discussing the 1986 Act, which added the
disputed language to section 777. But as indicated above, we assume voters were
aware of the meaning and purpose of this amendment. The history of the 1986
Act shows that the phrase “not amounting to a crime” allows probation violation
proceedings even where the acts could otherwise be charged as crimes.
At the 1985-1986 Regular Session, Assemblywoman Mojonnier introduced
Assembly Bill No. 3769 which, as amended, revised section 777.12 As pertinent
here, the bill originally divided authority to file section 777(a)(2) supplemental
petitions between the prosecuting attorney and the probation officer, respectively,
based on whether the section 602 ward or probationer was, or was not, “in
custody.” (Assem. Bill No. 3769 (1985-1986 Reg. Sess.) as introduced Feb. 21,
1986.) The same version of the bill also proposed amending section 653.5 to
require the prosecutor to decide within five days of referral whether to invoke
section 602 or section 777 in out-of-custody cases — steps that only prosecutors
could take under then-existing law. (Assem. Bill No. 3769 (1985-1986 Reg.
Sess.) as introduced Feb. 21, 1986.)
The original bill arose from legislative concerns that prosecutors were
overburdened with case referrals involving persons who were already under

Both the original and amended versions of the bill, and the bill digest, were
drafted by the State Coalition of Probation Organizations (SCOPO). Legislative
reports prepared in conjunction with Assembly Bill No. 3769 both allude and
adhere to SCOPO documents explaining the measure. Indeed, there is virtually no
substantive difference between legislative and SCOPO summaries of the bill.
State archive materials for Assembly Bill No. 3769 include the SCOPO

juvenile court jurisdiction as the result of prior section 602 adjudications, but were
not in custody, and who committed new misconduct. Delays in charging new
crimes and probation violations, it was believed, impaired juvenile court treatment
and threatened public safety. By requiring prosecutors to quickly decide in such
cases whether to file a new section 602 petition, or instead a supplemental petition
under section 777, and by otherwise allowing probation officials to initiate section
777 proceedings, lawmakers sought to expedite the processing of section 777
matters involving “further law or probation violations.” (Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 3769 (1985-1986 Reg. Sess.) as introduced
Feb. 21, 1986, p. 1.) In this regard, the bill was explicitly modeled on Penal Code
section 1203.2, which allows probation officers to initiate revocation proceedings
against adults for any probation violation, including the commission of new
crimes. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 3769 (1985-
1986 Reg. Sess.) as amended Apr. 8, 1986, p. 3.)13
Without repudiating these aims, the Legislature revised Assembly Bill No.
3769 only once, in the Assembly, to delete language allocating section 777 filing
authority based on the offender’s custodial status. Under the amended bill, which

Penal Code section 1203.2 remains largely unchanged since it appeared in
materials related to Assembly Bill No. 3769 and the 1986 Act. Penal Code section
1203.2, subdivision (a) states, in part: “[T]he court may revoke and terminate . . .
probation if the interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation officer or otherwise that the
person has violated any of the conditions of his or her probation, has become
abandoned to improper associates or a vicious life, or has subsequently committed
other offenses, regardless whether he or she has been prosecuted for such
.” (Italics added.) Subdivision (b) of Penal Code section 1203.2 states, in
part: “Upon its own motion or upon the petition of the . . . probation officer or the
district attorney
. . ., the court may modify, revoke, or terminate the probation of
the probationer pursuant to this subdivision.” (Italics added.)

later became the 1986 Act, section 777 could be invoked by either probation
officers or prosecutors when the petition “allege[d]” a probation violation “not
amounting to a crime,” but only by prosecutors when the petition “allege[d]” a
violation “amounting to a crime.” (Assem. Bill No. 3769 (1985-1986 Reg. Sess.)
as amended Apr. 8, 1986.)
The final version of Assembly Bill No. 3769 resulted from concerns that
the prior draft had inadvertently limited prosecutorial discretion to allege new
criminal offenses under section 777. It became clear that if the bill did not grant
prosecutors express authority to file supplemental petitions involving probation
violations alleged as new crimes, probation officers would control “all out of
custody 777 petitions, including those 777 petitions that state that the violation of
the court order is a law violation.” (SCOPO, letter to Assemblywoman
Mojonnier, Mar. 28, 1986, italics added.) To prevent encroachment onto the
People’s exclusive authority to “state” (or allege) a “law violation” (or crime), the
“not amounting to a crime” language was used to describe the section 777
petitions that both probation officers and prosecutors could file. Lawmakers
assumed such matters would often involve noncriminal conduct. However,
consistent with the express intent to follow the adult model, no such legal
requirement was imposed. (See Sen. Com. on Judiciary, Analysis of Assem. Bill
No. 3769 (1985-1986 Reg. Sess.) as amended Apr. 8, 1986, pp. 2-5; Assem. Com.
on Public Safety, Analysis of Assem. Bill No. 3769 (1985-1986 Reg. Sess.) as
amended Apr. 8, 1986, pp. 1-3.)
Thus, insofar as the 1986 Act gave both probation officers and prosecutors
authority to “allege[ ]” probation violations “not amounting to . . . crime[s],”
section 777(a)(2) — like Penal Code section 1203.2 — covers both criminal and
noncriminal acts. Only by allowing officials to initiate and expedite section 777
proceedings in the widest range of cases could juvenile “standards of

accountability [follow] those in existence for adult probationers.” (Legis.
Counsel’s Dig., Assem. Bill No. 3769 (1985-1986 Reg. Sess.) 2 Stats. 1986,
p. 2476.)
To defeat this view, petitioner invokes portions of Proposition 21 itself that
do not directly address section 777. He observes that in these other sections, the
initiative both permits and requires the People to file certain criminal charges in
adult court without a prior judicial finding of unfitness in juvenile court.
Petitioner also observes that the initiative enhances the punishment of certain
juvenile crimes. We are therefore asked to infer that the voters, in amending
section 777(a)(2) to omit probation violations alleged as crimes, intended all new
crimes committed by persons already under section 602 jurisdiction to trigger the
maximum punishment, and to limit the prosecutor’s discretion to treat such
conduct as mere probation violations affecting only the nature of the juvenile
placement for the original crime. Under this view, new criminal conduct must be
treated either as a section 602 offense (which can lengthen the maximum term of
juvenile confinement), or as an adult crime (which can trigger a state prison term).
Since petitioner was over the age of 18 when he violated probation, he implies that
only the latter option is available here. (See § 602, subd. (a).)
We reject this analysis. Whatever limits Proposition 21 places on
prosecutorial discretion to allege juvenile criminal conduct in a particular forum or
proceeding, the initiative measure does so only with respect to certain violent and
serious felonies, and felonies committed under certain aggravating circumstances.
(E.g., §§ 602, subd. (b), 707, subd. (d); see Manduley, supra, 27 Cal.4th 537, 549-
550.) As petitioner suggests, no statute added or revised by Proposition 21
requires all criminal acts to be charged as substantive crimes in either juvenile or
adult court, or otherwise alters the People’s traditional role in deciding how to
treat most offenses. Nor, as we have seen, does section 777(a)(2) expressly or

implicitly ban criminal acts as probation violations. If Proposition 21 had made
such a “drastic” change in section 777, and had excluded all section 602 wards
and probationers who criminally reoffend, voters “would have expressed this
intent more clearly in the statute itself.” (Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 572.)
In a related vein, petitioner insists that his approach honors certain
declarations in the ballot pamphlet. He notes that Proposition 21 protects the
public from “the most violent juvenile criminals and gang offenders,” such as
“RAPISTS AND MURDERERS.” (Ballot Pamp., Primary Elec. (Mar. 7, 2000)
argument in favor of Prop. 21, p. 48.) Insofar as voters viewed the juvenile law as
“DANGEROUSLY LENIENT” for some criminal acts, petitioner implies the
initiative withdraws section 777 in all such cases. (Ibid.)
Petitioner oversimplifies the express purpose of Proposition 21, particularly
with respect to statutory amendments affecting juvenile court procedures like
section 777. Notwithstanding the clear intent to impose the full range of adult
penalties on juveniles who commit the worst crimes, voters disclaimed any intent
to “incarcerate kids for minor offenses.” (Ballot Pamp., supra, arguments in favor
of Prop. 21, p. 48.) The measure itself explained that “less serious offenders”
remain eligible for treatment under the juvenile scheme, including “burglars, car
thieves, and first time non-violent felons who have potential for rehabilitation.”
(Ballot Pamp., supra, text of Prop. 21, p. 119.) Overall, changes to the Welfare
and Institutions Code reportedly stressed “rehabilitative protocols over
incarceration” and greater “accountability” for all juvenile offenders. (Ibid.)
Applying these principles, we start from the premise that many probation
violations, including those that could be charged as crimes, do not involve violent
or serious felonies of the kind targeted for adult treatment and harsh punishment
under Proposition 21. As petitioner concedes in his briefs in this court, there is no

guarantee that the People can prove beyond a reasonable doubt — in either a
section 602 proceeding or an adult criminal prosecution — all or even most
conduct that violates both the criminal law and juvenile probation. (See § 701;
Pen. Code, § 1096.) Here, the prosecutor implied at the section 777 hearing that
petitioner’s outbursts at camp could realistically be treated only as probation
violations warranting a new juvenile placement. Petitioner agrees, noting that
“[n]one of these offenses were [sic] so grave that it cannot be said that [criminal]
prosecution might have been rejected.”
Under such circumstances, if the prosecutor concludes in the lawful
exercise of his discretion to forgo criminal charges in juvenile or adult court, and
if section 777 is unavailable as a matter of law, reoffense by a section 602 ward
and probationer would entail no specific statutory sanction. Such a potentially
wide gap in the law would impair the ability of both the executive and judicial
branches to guide youthful reform and to ensure accountability for all offenders
properly within the juvenile court’s jurisdiction. Here, petitioner seeks to
eliminate section 777 as a sanction for his most serious probation violations (those
involving criminal acts), which he committed between age 18 (when probation
was last ordered) and age 21 (when juvenile court jurisdiction likely ends), even
though adult criminal prosecution is infeasible, and, indeed, a new section 602
criminal adjudication in juvenile court is prohibited. Voters could not have meant
to reward criminal juvenile probation violations in this manner.
Finally, a comparison of the juvenile and adult schemes after Proposition
21 amended section 777 shows that the voters knew criminal acts would no longer
be formally alleged as crimes under section 777(a)(2). As suggested by the Court
of Appeal, the voters made additional changes in order to further harmonize
juvenile and adult probation violation procedures.

First, voters removed the “amounting to a crime” language that was tied,
under the 1986 Act, to the prosecution’s exclusive crime-charging function. By
withdrawing section 777 as a means of pleading and proving substantive crimes
committed on probation, Proposition 21 requires prosecutors to use another statute
for this purpose, namely, section 602. The same dichotomy exists in adult court,
where probation can be revoked for criminal acts. (See Pen. Code, §§ 681-685
[criminal actions], 1203.2 [probation revocation proceedings].)
Second, section 777(c) now contains the same preponderance of the
evidence standard used to prove probation violations in adult revocation
proceedings, including those based on criminal acts. (See Pen. Code, § 1203.2,
subd. (a) (Penal Code section 1203.2(a)); People v. Rodriguez (1990) 51 Cal.3d
437, 439 (Rodriguez).) As we discuss further below, crimes alleged in both
juvenile and adult court must be proven beyond a reasonable doubt. (Winship,
supra, 397 U.S. 358, 364, 368.) Proposition 21’s more relaxed standard of proof
belies any intent to continue using section 777 to allege criminal conduct in the
form of substantive crimes as opposed to probation violations.
Third, voters explicitly adopted special hearsay rules applicable in “adult
probation revocation hearing[s]” and alluded to a line of decisions addressing the
issue. (§ 777(c), citing Brown, supra, 215 Cal.App.3d 452.) Under this approach,
hearsay evidence that is inadmissible to prove guilt in a criminal trial may be
admissible to prove an adult probation violation under certain circumstances.
(Morrissey v. Brewer (1972) 408 U.S. 471, 489 (Morrissey); Brown, supra, 215
Cal.App.3d 452, 454-455; see, e.g., People v. Maki (1985) 39 Cal.3d 707, 714-717
[allowing admission of reliable records not subject to established hearsay
exception]; People v. Arreola (1994) 7 Cal.4th 1144, 1156-1159 [disallowing
admission of court transcript absent good cause to forgo live testimony].) As with
the standard of proof, Proposition 21’s new hearsay rule departs from Evidence

Code requirements for proving crimes alleged as such in section 602 jurisdictional
hearings and criminal trials. Voters obviously intended that the treatment of a
juvenile probationer’s new misconduct, even if inherently criminal, as a mere
probation violation under section 777 should parallel the treatment of similar new
misconduct under the adult probationary scheme.
In sum, by limiting section 777(a)(2) to matters “not amounting to . . .
crime[s],” Proposition 21 only affected the manner in which such violations are
officially treated under the statute. Section 777(a)(2) covers all probation
violations alleged as such, including those that are criminal in fact. The Court of
Appeal therefore did not err in affirming the order modifying petitioner’s
disposition based on the probation violations alleged and sustained in juvenile
court. We disapprove Marcus A, supra, 91 Cal.App.4th 423, to the extent it
reaches a contrary result.14
B. Validity of Section 777.
Petitioner argues here, as below, that Proposition 21 violates federal and
state due process guarantees by allowing probation violations to be proven by a
preponderance of the evidence. (§ 777(c).) Even though substantive crimes can
no longer be alleged as such under section 777, petitioner finds such proceedings
indistinguishable from section 602 proceedings in juvenile court and from criminal
trials in adult court. Petitioner claims that because probation violations may

Of course, nothing we say here is intended to preclude use of the same
conduct, if actually criminal, as the basis for both a section 777 probation violation
proceeding, and either a section 602 proceeding or an adult criminal prosecution,
or to suggest that prosecuting authorities must make an election between probation
revocation and a new criminal adjudication in such cases. (Cf. Pen. Code,
§ 1203.2(a) [allowing revocation of adult probation “regardless whether [the
person] has been prosecuted for such offenses”].) That question is not raised or
decided in the present case.

involve criminal conduct, and because section 777 inflicts punishment, the facts
must be proven beyond a reasonable doubt. Much like the Court of Appeal, we
reject the claim.
No United States Supreme Court case, including Winship, supra, 397 U.S.
358, compels or supports the result petitioner seeks. In Winship, officials invoked
New York’s juvenile delinquency scheme against a 12-year-old boy. The relevant
statute literally covered any act that would constitute a “ ‘crime’ ” if done by an
adult. (Id. at p. 359.) The petition alleged that the minor had committed “ ‘the
crime or crimes of Larceny’ ” by entering a locker and stealing cash from
someone’s purse. (Id. at p. 360.) At the jurisdictional phase, the juvenile court
sustained the theft charge under a state statute allowing proof by a preponderance
of the evidence. The court also rejected the minor’s claim that only the reasonable
doubt standard could constitutionally apply. At the dispositional phase, the minor
was committed to a training school for 18 months, subject to annual extensions
until age 18. The judgment was affirmed on appeal in state court. (Ibid.)
The high court reversed in a two-part decision that accepted the minor’s
federal constitutional claim. First, Winship reaffirmed that “the Due Process
Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” (Winship, supra, 397 U.S. 358, 364.) According to the court, unique
and invaluable interests are at stake when someone is formally charged with a
crime. Defendants stand to lose their liberty if convicted, and to suffer the social
stigma that only criminal conviction can bring. (Id. at p. 363.) The reasonable
doubt standard, like the presumption of innocence, was essential in the court’s
view to protect innocent persons from erroneous findings of guilt. (Ibid.) By
reducing the risk of such factual error, Winship also sought to buttress community
confidence in the “moral force of the criminal law.” (Id. at p. 364.)

Second, Winship determined that the same interests apply, and the same
need for accurate fact-finding exists, where a juvenile is accused of a crime in
juvenile court. The high court invoked In re Gault (1967) 387 U.S. 1, which
adopted other due process safeguards in criminal delinquency cases, and which
rejected any notion that they differed “ ‘in seriousness’ ” from adult criminal
prosecutions. (Winship, supra, 397 U.S. 358, 366.) Winship observed that, like a
defendant convicted in criminal court, a juvenile offender is subject to “the stigma
of a finding that he violated a criminal law and to the possibility of institutional
confinement” as the result of such finding. (Id. at p. 367, fn. omitted.) Hence, the
court held that the reasonable doubt standard is as essential at the adjudicatory
stage of a criminal delinquency proceeding as the other safeguards applied in In re
Gault, supra, 387 U.S. at pages 31-57 — notice of the charges, the right to
counsel, the rights of confrontation and examination, and the privilege against
self-incrimination. (Winship, supra, 397 U.S. 358, 368.)
Winship thus stands for the seminal proposition that juveniles, like adults,
are entitled to proof beyond a reasonable doubt of all the elements of an alleged
crime. This due process rule applies at the adjudicatory stage of a delinquency
proceeding in which the state “charge[s]” the juvenile with an act that would result
in criminal conviction “if committed by an adult.” (Winship, supra, 397 U.S. 358,
359, fn. omitted.) Nothing in Winship extends the same rarified standard of proof
to either juvenile or adult proceedings involving allegations, interests, and
consequences different from those at stake when a crime is alleged as such.
Indeed, it is well settled in the adult context that an alleged probation
violation — even one involving criminal conduct in fact — does not trigger the
reasonable doubt standard where the state seeks to use the violation only to modify
or terminate probation or parole for a prior criminal conviction. The United States
Supreme Court established this principle shortly after Winship, supra, 397 U.S.

358, when it announced the minimum safeguards due upon revocation for both
adult parolees (Morrissey, supra, 408 U.S. 471), and probationers (Gagnon v.
Scarpelli (1973) 411 U.S. 778 (Scarpelli)). We summarize these two cases here.
The premise of Morrissey, supra, 408 U.S. 471, which was followed in
Scarpelli, supra, 411 U.S. 778, 782, is that criminal prosecutions and revocation
proceedings are constitutionally distinct. The high court observed that parole and
probation conditions pressure the person to reform and allow the supervising
officer to monitor compliance. (Morrissey, supra, 408 U.S. at p. 478.) The court
also recognized that parole and probation violations often involve the commission
of “another crime.” (Id. at p. 479.) The court made clear, however, that
revocation proceedings, in and of themselves, do not concern guilt of any criminal
charges, or risk any increase in the maximum terms of confinement to which
persons are exposed by virtue of their underlying convictions. (Morrissey, supra,
408 U.S. at p. 480; Scarpelli, supra, 411 U.S. at p. 781.) The narrow inquiry is
whether conditional release has been violated, and whether parole or probation
should be terminated as a result. (Morrissey, supra, 408 U.S. at pp. 479-480.)
Given these distinctions between criminal and revocation proceedings, the court
found no constitutional basis on which to afford parolees and probationers “the
full panoply of rights” available in criminal trials. (Morrissey, supra, 408 U.S. at
p. 480; accord, Scarpelli, supra, 411 U.S. at pp. 788-789.)
In deciding what lesser process is due at an adult revocation hearing, the
high court balanced the competing concerns. On the one hand, parolees and
probationers possess a liberty interest which — though diminished by the terms of
conditional release — deserves “some orderly process, however informal.”
(Morrissey, supra, 408 U.S. 471, 482.) On the other hand, because parole and
probation violators often pose a threat to the public, the state has an
“overwhelming interest” in imprisoning them “without the burden of a new

adversary criminal trial.” (Id. at p. 483.) Morrissey at pages 488-489, and
Scarpelli, supra, 411 U.S. 778, 790-791, specify the procedures that must be
followed when parole or probation is terminated. Absent from the list is any
requirement that the facts be proven either beyond a reasonable doubt or by any
other heightened standard of proof.15
This court followed suit in Rodriguez, supra, 51 Cal.3d 437. Specifically,
Rodriguez held that adult probation can be revoked under a standard of proof no
more demanding than that used in an ordinary civil case. We found no due
process basis for either a heightened reasonable doubt standard or an intermediate
clear and convincing-evidence standard. Thus, Rodriguez upheld Penal Code
section 1203.2(a) insofar as it permits revocation where a probation violation is
proved by a preponderance of the evidence. (51 Cal.3d at pp. 441-442.)
In reaching this result, Rodriguez, supra, 51 Cal.3d 437, 441, implicitly
distinguished Winship, supra, 397 U.S. 358, and followed Morrissey, supra, 408
U.S. 471, and Scarpelli, supra, 411 U.S. 778. We agreed with the latter cases that
revocation deprives an adult probationer “ ‘only of the conditional liberty properly

In Morrissey, supra, 408 U.S. 471, 489, the court held that parolees must
receive the following protections at revocation hearings: “(a) written notice of the
claimed violations of parole; (b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing confrontation); (e) a
‘neutral and detached’ hearing body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for revoking parole.”
Morrissey further noted that the parole board is entitled to consider “letters,
affidavits, and other material that would not be admissible in an adversary
criminal trial.” (Ibid.) In addition to the Morrissey requirements, Scarpelli, supra,
411 U.S. 778, 790, held that both parolees and probationers may be entitled at the
revocation hearing to appointed counsel on a limited “case-by-case” basis.

dependent on observance of special [ ] restrictions.’ ” (Rodriguez, supra, 51
Cal.3d at p. 442.) We also observed that proceedings under Penal Code section
1203.2 are not part of any “ ‘criminal prosecution.’ ” (Rodriguez, supra, 51
Cal.3d at p. 442.) In other words, revocation involves no criminal guilt, no
criminal punishment, and no collateral consequences of a “stigmatic, permanent,
or irreversible” nature. (Id. at p. 449 (conc. opn. of Lucas, C. J.).)
Moreover, nothing in Rodriguez, supra, 51 Cal.3d 437, suggested that the
preponderance standard was constitutionally suspect depending upon the nature of
either the offending conduct or the violated probationary term. Indeed, in
upholding Penal Code section 1203.2(a), and in recognizing no exceptions to its
reach, we observed that a higher standard of proof could force “overburdened trial
judges to give probationers virtually a second trial of their violations,” and could
cause “poor-risk convicted criminals [to] remain[ ] at large.” (Rodriguez, supra,
51 Cal.3d at p. 446.) In sum, we found that the preponderance standard was both
constitutional and supported by sound public policy.
No meaningful difference exists between section 777(c) and Penal Code
section 1203.2(a) in determining whether the preponderance standard satisfies due
process at a probation violation hearing. In each case, nothing akin to a criminal
prosecution is involved. We reject petitioner’s contrary claims, as follows:
Preliminarily, juvenile probation violations, like their adult counterparts, do
not involve criminal guilt. While section 777 continues to permit dispositional
change for probation violations involving criminal conduct, the “not amounting to
a crime” limitation precludes prosecutorial use of the statute to plead and prove
the violation as a crime. Thus, unlike criminal convictions or section 602
offenses, section 777 adjudications do not entail the “stigma of a finding that [the
juvenile] violated a criminal law.” (Winship, supra, 397 U.S. 358, 367, fn.
omitted.) Nor do such probation violations trigger other collateral consequences

associated with convictions or section 602 adjudications. (See, e.g., Pen. Code,
§ 667, subd. (d)(3) [subjecting certain violent or serious § 602 wardship
adjudications to “Three Strikes” law].) Because section 777 involves no formal
criminal charge, the reasonable doubt standard need not constitutionally apply.
In addition, section 777 does not inflict or increase criminal punishment by
any appreciable due process measure. A juvenile probation violation cannot
increase the maximum period of confinement for the crime previously adjudicated
under section 602, as calculated when the ward is “removed from the physical
custody of his or her parent or guardian as the result of [a section 602] order of
wardship.” (§ 726, subd. (c), 1st par.) This maximum period of confinement
equals the “maximum term of imprisonment which could be imposed” under the
DSA or other applicable sentencing provision “upon an adult convicted of the
[same] offense.” (Ibid.) As explained above, because section 777(a)(2) only
governs “[probation] violation[s]” that are not “allege[d]” as crimes, proceedings
under this section do not lead to a new criminal adjudication that might increase
the maximum period of confinement. Thus, as reflected by petitioner’s
disposition, section 777 follows the adult scheme insofar as probation violations
do not trigger a term of confinement any longer than the maximum term for the
underlying crime. (See Pen. Code, §§ 1203.2, subd. (c), 1203.1, subd. (a); People
v. Howard (1997) 16 Cal.4th 1081, 1087-1088.) By this measure, section 777
makes no unfavorable penal change, and the preponderance standard can apply.
Petitioner observes, however, that a new, more restrictive placement can be
ordered under section 777 while the juvenile is already confined for the maximum
term attributable to the prior section 602 offense. He contrasts the situation of an
adult probationer in which revocation involves the most restrictive form of
custody, state prison. He also asserts that the juvenile scheme, unlike its adult
counterpart, requires a gradual “ramping up” of placement alternatives, from least

to most restrictive, as justified by the person’s behavior at earlier levels. Thus,
according to petitioner, the “qualitative” dispositional changes ordered under
section 777 after a juvenile violates probation are primarily punitive, are
essentially mandatory, and are necessarily more restrictive than any placement the
court could properly order at any earlier point in time.
We disagree. Under section 202, juvenile proceedings are primarily
“rehabilitative” (id., subd. (b)), and punishment in the form of “retribution” is
disallowed (id., subd. (e)). Within these bounds, the court has broad discretion to
choose probation and/or various forms of custodial confinement in order to hold
juveniles accountable for their behavior, and to protect the public. (Id., subd. (e).)
The voters reaffirmed these basic principles when they approved Proposition 21,
including changes to section 777. (Ballot Pamp., supra, text of Prop. 21, p. 119.)
Given these aims, and absent any contrary provision, juvenile placements need not
follow any particular order under section 602 and section 777, including from the
least to the most restrictive. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396;
accord, In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576.) Nor does the court
necessarily abuse its discretion by ordering the most restrictive placement before
other options have been tried. (Ricky H., supra, 30 Cal.3d 176, 183; In re John H.,
supra, 21 Cal.3d 18, 27.) Thus, contrary to what petitioner claims, section 777
does not mandate more restrictive placements, or permit vindictive custodial

It bears emphasis that former section 502 — the predecessor to section 202
— stated an explicit preference for juvenile court treatment “in [the minor’s] own
home.” (Former section 502, repealed by Stats. 1976, ch. 1068, §§ 1.5, 14, pp.
4741, 4781; see In re Aline D. (1975) 14 Cal.3d 557, 562.) Given this priority,
which has since been removed from the statutory scheme, it was understood that
persons within the juvenile court’s jurisdiction under section 602 would receive

(footnote continued on next page)

Petitioner insists Arthur N., supra, 16 Cal.3d 226, compels us to invalidate
section 777(c) on due process grounds. He is mistaken.
In Arthur N., supra, 16 Cal.3d 226, 229-230, a section 602 ward and
probationer was placed in CYA for a robbery alleged and sustained under section
777 in its pre-1986 form. Arthur N. relied on Winship, supra, 397 U.S. 358, and
accepted the minor’s claim that the juvenile court violated his due process rights
by adjudicating the robbery under a standard of proof other than beyond a
reasonable doubt. (Arthur N., supra, 16 Cal.3d at pp. 239-240.) By the same
token, Arthur N. rejected the People’s claim that a juvenile probation violation
proceeding is similar for due process purposes to an adult probation revocation
hearing in which the reasonable doubt standard does not apply. (Id. at pp. 235-
236.) Based on the two schemes as they then existed, Arthur N. noted that, unlike
the sentence served when adult probation is revoked, confinement under section
777 is not “proportionate” to the crime that triggered the juvenile court’s
jurisdiction. (Arthur N., supra, 16 Cal.3d at p. 239.) Arthur N. also assumed that
any greater restraint ordered under section 777 “exceeds” what was “permissible
initially” for the prior section 602 offense. (Arthur N., supra, 16 Cal.3d at p. 237.)
Arthur N., supra, 16 Cal.3d 226, does not undermine the preponderance
standard set forth in current section 777(c). Arthur N. based its reasonable doubt
rule on the assumption that crimes could be pled and proven under section 777.

(footnote continued from previous page)

the most lenient disposition initially, and that more restrictive alternatives could be
imposed only incrementally after less restrictive options had each been tried. In
particular, CYA was considered a last resort, available “ ‘only after all else ha[d]
failed.’ ” (In re Aline D., supra, 14 Cal.3d at p. 564.) Under this inflexible view,
dispositional change was necessarily “ ‘punitive.’ ” (Ibid.)

However, Proposition 21 transformed section 777(a)(2) into a probation violation
procedure in which no criminal offense can be alleged. Nothing in Winship,
supra, 397 U.S. 358, compels a reasonable doubt standard under such
Other changes in the law over the last 27 years have undermined Arthur
N.’s distinction between juvenile and adult probation violation proceedings for
standard of proof purposes. The maximum period of confinement rule in section
726 was added and refined shortly after Arthur N. was decided, and long before
Proposition 21 amended section 777. Now, much like adult probation violations
triggering confinement for a term linked to the underlying conviction, section 777
determinations do not increase the maximum period of confinement for the
original section 602 offense. We also cannot assume that any new placement
ordered under section 777 “exceeds” what was “permissible initially.” (Arthur N.,
supra, 16 Cal.3d 226, 237.) The diverse priorities codified after Arthur N. was
decided (see § 202), and the juvenile court’s broad discretion in implementing
them, defeat such a rigid, wholly punitive view of section 777 as it now exists.
Accordingly, due process does not require application of the reasonable
doubt standard to proceedings alleging a probation violation “not amounting to a
crime” under section 777(a)(2). The Court of Appeal did not err in rejecting
petitioner’s constitutional challenge to section 777(c).

The judgment of the Court of Appeal is affirmed.



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Eddie M.

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 100 Cal.App.4th 1224
Rehearing Granted


Opinion No.

Date Filed: August 7, 2003


County: Los Angeles
Judge: Philip K. Mautino


Attorneys for Appellant:

Allen G. Weinberg, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Carl N. Henry, Juliet H.
Swoboda, Michael C. Keller, Jamie L. Fuster. Donald E. De Nicola and Corey J. Robins, Deputy Attorneys
General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Allen G. Weinberg
Law Offices of Allen G. Weinberg
9454 Wilshire Boulevard, Suite 600
Beverly Hills, CA 90212
(310) 550-7177

Corey J. Robins
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 576-1343


Opinion Information
Date:Docket Number:
Thu, 08/07/2003S109902

1M., E. (Defendant and Appellant)
Represented by Allen G. Weinberg
Law Offices Of Allen G. Weinberg
9454 Wilshire Blvd., Suite 600
Beverly HIlls, CA

2Eddie M. (Overview party)
Represented by California Appellate Project - La
520 South Grand Avenue, Suite 400
520 South Grand Avenue, Suite 400
Los Angeles, CA

3The People (Plaintiff and Respondent)
Represented by Corey J. Robins
Office of the Attorney General
300 S Spring St 5FL
Los Angeles, CA

Aug 7 2003Opinion: Affirmed

Sep 16 2002Petition for review filed
  counsel for appellant Eddie M.
Sep 16 2002Record requested
Sep 19 2002Received Court of Appeal record
  one doghouse
Oct 23 2002Petition for Review Granted (criminal case)
  George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Oct 23 2002Note:
  Grant letter processed 10/24/2004 -- Grant letter signed and mailed
Dec 5 2002Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Allen G. Weinberg is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Jan 6 2003Request for extension of time filed
  to file Brief on the Merits/Opening [asking to- February 4, 2003 ]
Jan 7 2003Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including February 3, 2003. No further extensions of time are contemplated.
Jan 31 2003Request for extension of time filed
  to file apppellant's brief on the merits/opening [asking to Feb 14th.] faxed to sf.
Jan 31 2003Received:
  (faxed) appellant's second request for an additional ten )10) days to file the opening brief/merits.
Jan 31 2003Note:
  Left voice mail message for Atty Weinberg re: request for extension of time. The court has granted an extension of time to file his AOB on the merits to and including 2/10/03 only. No further extensions will be granted.
Feb 3 2003Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including Monday, February 10, 2003. No further extensions of time will be granted.
Feb 11 2003Opening brief on the merits filed
  appellant EDDIE M. faxed to sf.
Mar 13 2003Received:
  [hard copy] of extension request from counsel for respondent. [re: to 4/12/03 ext. request]
Mar 13 2003Request for extension of time filed
  (Faxed Copy) by Respondent People asking for a 30-day extension to and including 4/12/2003, to file the Answer Brief on the Merits. (Hard Copies to be filed in the L.A. Office)
Mar 14 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to seve and file Respondent's Answer Brief on the Merits is extended to and including April 1, 2003. No further extensions of time will be granted.
Apr 1 2003Answer brief on the merits filed
  respondent's. [faxed to sf.]
Apr 9 2003Compensation awarded counsel
  Atty Weinberg
Apr 16 2003Reply brief filed (case fully briefed)
Apr 30 2003Case ordered on calendar
  5-29-03, 1:30pm, S.F.
May 29 2003Cause argued and submitted
Aug 7 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Baxter, J. -- Joined by George, C. J., Kennard, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 8 2003Remittitur issued (criminal case)
  Two certified copies sent to Second District, Division 7
Jan 22 2004Compensation awarded counsel
  Atty Weinberg

Feb 11 2003Opening brief on the merits filed
Apr 1 2003Answer brief on the merits filed
Apr 16 2003Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website