In re MITCHELL P., a Person Coming Under the Juvenile Court Law. STEWART C. SMITH, as Chief Probation Officer, etc., Plaintiff and Respondent, v. MITCHELL P., Defendant and Appellant, 22 Cal. 3d 946

Opinion CLARK, J. Appeal by Mitchell P., a minor, from juvenile court judgment finding him to come within provisions of Welfare and Institutions Code

section 602, and adjudging him a ward of that court. Appellant contends that because the only evidence received at the jurisdictional or adjudicatory hearing was uncorroborated testimony of an accomplice to the alleged misconduct, the judgment must be reversed. (See Pen. Code, § 1111.) We disagree and affirm judgment. Appellant and other juveniles entered a jewelry store at night through a broken window, removing jewelry valued at $13,000. In a petition filed pursuant to

section 602, appellant was alleged to have committed acts constituting burglary (Pen. Code, § 459), grand theft (Pen. Code, § 487) and receiving stolen property (Pen. Code, § 496). At the jurisdictional hearing one of the juveniles entering the store with appellant was granted immunity from further proceedings against him and testified he had witnessed appellant participate in the affair. The juvenile court judge found the allegations relating to Penal Code

section 496 to be true, those relating to Penal Code sections 459 and 487 to be untrue. Appellant was declared a ward of the court and returned to the custody of his parents. It is undisputed the only evidence of appellant’s misconduct is the accomplice testimony. Had appellant been criminally charged and convicted based solely on the accomplice’s uncorroborated testimony, Penal Code

section 1111 would require reversal of the conviction. That

section provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by other such evidence as shall tend to connect the defendant with the commission of the offense . . . .” However, a finding of wardship pursuant to

section 602 does not constitute a “conviction” within the meaning of Penal Code

section 1111 (see § 203 [“An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose . . . .”]), and our courts have uniformly held Penal Code

section 1111 has no application in juvenile court proceedings. (In re R. C. (1974) 39 Cal.App.3d 887 [114 Cal.Rptr. 735]; In re D. L. (1975) 46 Cal.App.3d 65, 73 [120 Cal.Rptr. 276]; In re Eugene M. (1976) 55 Cal.App.3d 650, 657 [127 Cal.Rptr. 851].) Appellant contends the juvenile court’s refusal to allow him to assert the accomplice testimony rule violates his constitutional rights. The accomplice testimony rule is not constitutionally based. Rather it was court created in the first instance. (People v.

Eckert (1860) 16 Cal. 110, 112.) Eckert reached its holding not on constitutional grounds but on English common law (see 7 Wigmore, Evidence, § 2056, fn. 5) and today’s legislative codification of the rule may be modified or repealed without infringing constitutional rights. The rule does not exist in many states and where it does exist it is normally of statutory origin. (7 Wigmore, Evidence, § 2056, p. 319.) Federal courts have rejected the rule, holding “a conviction may be based on the uncorroborated testimony of an accomplice . . . .” (United States v.

Turner (9th Cir. 1975) 528 F.2d 143, 161; see also United States v. Daniel (9th Cir. 1972) 459 F.2d 1029.) Therefore, due process does not require the rule be adopted in either criminal or juvenile proceedings. A more difficult constitutional issue is presented by appellant’s contention that, because the state deems uncorroborated accomplice testimony insufficient to support a criminal conviction, equal protection requires the same quality of proof in support of a juvenile jurisdictional finding.

The Supreme Court in In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068] held that a minor cannot be subjected to “institutional confinement on proof insufficient to convict him were he an adult.” (Id., at p. 367 [25 L.Ed.2d at p. 377].) At issue in Winship was the degree of factual proof of charged misconduct.

In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428] established that, while due process does not require an adjudicatory hearing conform to all requirements of a criminal trial, it nevertheless requires “ ‘the essentials of due process and fair treatment’ ” at such a hearing (id., at p. 30 [18 L.Ed.2d at p. 548]). One such essential in juvenile proceedings is that the minor be adjudicated by proof beyond a reasonable doubt—a due process rather than an equal protection compulsion according to Winship.

Winship thus holds that due process compels only the reasonable doubt degree of proof for adjudicatory findings in either criminal or juvenile proceedings. As we have seen, due process simply does not compel the accomplice corroboration rule in either criminal or juvenile proceedings. Appellant’s equal protection contention cannot be rejected, of course, merely because it is not supported by Winship.

The state has created a classification—placing those persons charged with crimes and subject to criminal penalties in a category different from those treated as juveniles and subject to restrictions the state deems to be for their best interests and necessary for their rehabilitation. The issue is whether the state can require a lesser quality of evidence in juvenile proceedings. This is not to say degree of proof may be different in the two proceedings—Winship established proof beyond reasonable doubt shall apply to juvenile as well as criminal proceedings.

The issue is whether evidence deemed insufficient in a criminal proceeding—although standing alone it may constitute proof of criminal conduct beyond reasonable doubt—is sufficient in a juvenile proceeding, so long as the charged misconduct is established by proof beyond a reasonable doubt. Appellant appears to argue on equal protection grounds that all rules of evidence in criminal proceedings must extend to juvenile court proceedings because in both criminal and juvenile proceedings the person charged faces the possibility of loss of freedom.

However, disparities among classes are constitutionally permissible when reasonably related to proper purpose. In T.N.G. v. Superior Court (1971) 4 Cal.3d 767 [94 Cal.Rptr. 813, 484 P.2d 981] we upheld procedures permitting the court to retain in an unsealed condition juvenile court records of charged misconduct even though no adjudication followed.

While juveniles charged with—but not convicted of—criminal violations were entitled to immediate sealing of their records, no denial of equal protection resulted because retention was shown to relate to rehabilitation. (Id., at pp. 782-783.) “Such rehabilitative need for retaining arrest records does not pertain to the case of a minor who has been dealt with as an adult in the criminal courts. The adult criminal courts neither perform the special rehabilitative functions of the juvenile court nor provide the particular procedures for protective confidentiality of the juvenile court.

Thus, the Legislature has reasonably provided to minors who are treated as adults in criminal courts the immediate sealing of any arrest record . . . .” (Id., at pp. 783-784.) The critical question is whether the purpose served by the accomplice corroboration rule permits, as in the case of record sealing, disparate treatment between persons charged with crime and persons charged with juvenile misconduct. We examine the differing effects of the rule when applied in different procedures.

Accomplice testimony is generally suspect because it may have been proffered in the hope of leniency or immunity, and thus greater weight may be accorded such testimony than is warranted. (See People v. Wallin (1948) 32 Cal.2d 803, 808 [197 P.2d 734].) However, when a judge rather than a jury is trier of fact it is not unreasonable to assume he is more critical of accomplice testimony and more likely to accord it appropriate weight.

Although juries are generally required upon demand by defendant in a criminal proceeding, the state is not constitutionally compelled to provide a jury in juvenile proceedings (see McKeiver v. Pennsylvania (1971) 403 U.S. 528 [29 L.Ed.2d 647, 91 S.Ct. 1976]), the juvenile court judge or referee being the trier of fact. (Cf. People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271 [124 Cal.Rptr. 47, 539 P.2d 807].) It thus follows there is less reason for application of the arbitrary accomplice corroboration rule in juvenile court proceedings. (See, In re R.

C., supra, 39 Cal.App.3d 887, 895.) While adjudication of a juvenile offender may well result in an incarceration which is not unlike that in the case of persons convicted of crimes, it must be acknowledged that a person convicted of a serious crime is generally exposed to a greater and more onerous term of confinement than a juvenile ward charged with the same misconduct.

In providing for the kind of evidence which can constitute proof of charged misconduct, it is not unreasonable that our Legislature has placed more severe limitations on evidence which may be used to prove the criminal violation, bearing in mind of course that the degree of proof calls for the same reasonable doubt standard in each instance.

Although the rehabilitative purpose of the juvenile court may not warrant a lesser degree of proof of the charged misconduct, the Legislature may well consider that judicial intervention in the interest of rehabilitating an impressionable minor outweighs policies against the use of particular kinds of testimony not otherwise constitutionally proscribed. It is the Legislature’s prerogative, acting within constitutional guidelines, to strike a proper balance between these competing interests.

In the absence of direct constitutional prohibition or compulsion, equal protection has not been held in any instance to compel in juvenile proceedings evidentiary determinations identical to those in criminal courts. In McKeiver v. Pennsylvania, supra, 403 U.S. 528, the Supreme Court stated the broad issue to be whether there was a “ ‘constitutional right to a jury trial in juvenile court’ ” (id., at p. 535 [29 L.Ed.2d at p. 655]), but purported to dispose of that issue on a due process analysis. However, it recognized the equal protection issue, summarily disposing of it.

In holding that a juvenile is not entitled to a juiy determination of a jurisdictional issue, the Supreme Court noted that the purpose served by juvenile court proceedings—a purpose different from that served by criminal prosecutions—could not be accomplished if those proceedings were burdened by the full panoply of rights accorded criminal defendants. “If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.” (Id., at p. 550 [29 L.Ed.2d at p. 663].) Surely, if there are sufficient distinctions between criminal and juvenile proceedings to justify granting the constitutional right to a jury to the former and denying it to the latter, those same distinctions must also apply to the quality of evidence—providing that in both proceedings charged misconduct is established by proof beyond a reasonable doubt.

We conclude that when due process and other constitutional demands have been satisfied, reasonable differences in criminal and juvenile evidentiary procedures are constitutionally permissible. The judgment is affirmed. Tobriner, J., Mosk, J., Richardson, J., and Manuel, J., concurred. Unless otherwise specified, all statutory references are to provisions of the Welfare and Institutions Code.

Section 602 provides in pertinent part: “Any person who is under the age of 18 years when he violates any law of this state . . . defining crime ... is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” This case does not present the issue of admissibility of accomplice testimony. Appellant is not aided by the provisions of

section 701 requiring an adjudication to be “supported by evidence, legally admissible in the trial of criminal cases.” Penal Code

section 1111 does not render uncorroborated accomplice testimony inadmissible. (See People v. Bowley (1963) 59 Cal.2d 855, 858 [31 Cal.Rptr. 471, 382 P.2d 591; 96 A.L.R.2d 1178]; People v. Santos (1933) 134 Cal.App. 736, 746 [26 P.2d 522].) There is no basis herein for application of the “strict scrutiny” as opposed to the “rationality” test in measuring permissible classifications. (See People v. Olivas (1976) 17 Cal.3d 236 [131 Cal.Rptr. 55, 551 P.2d 375].) We do not here make' a-classification directly affecting a fundamental interest as in Olivas.

There the deprivation of liberty for a misdemeanant committed to the Youth Authority for a term in excess of the terms of confinement had he been committed to jail, was held to require the strict scrutiny analysis and to be unconstitutional on equal protection grounds. Here, there is no classification based on a deprivation of liberty or any other fundamental right. The classification affects only the kind—but not the degree—of otherwise proper evidence which may support a finding of misconduct. As the evidence must otherwise conform to constitutional demands, no fundamental right is affected.

Another instance in which equal protection has been held not to foreclose disparate treatment between juveniles and criminal defendants is the unavailability in juvenile court of dismissal of a charge following successful completion of probation. (In re S. A. (1970) 6 Cal.App.3d 241 [85 Cal.Rptr. 775].) The purpose of the juvenile court system is “guidance and treatment for the juvenile.” (T.N.G. v.

Superior Court, supra, 4 Cal.3d 767, 775.) As a matter of due process or the right against self-incrimination, juveniles are entitled to the exclusion of illegally seized evidence, unconstitutional pretrial identification, judicial admissions not preceded by an explicit waiver of rights, and statements obtained without constitutional admonishments. (See, In re R. C., supra, 39 Cal.App.3d 887, 897.) They are also protected against multiple prosecutions (In re Benny G. (1972) 24 Cal.App.3d 371, 373 [101 Cal.Rptr. 28]) and from being twice placed in jeopardy in juvenile court proceedings (Richard M. v.

Superior Court (1971) 4 Cal.3d 370 [93 Cal.Rptr. 752, 482 P.2d 664]). The Supreme Court stated: “Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding—or at least the adjudicative phase of it—with the criminal trial. Whether they should be so equated is our issue.

Concern about the inapplicability of exclusionary and other rules of evidence . . . chooses to ignore, it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates. [¶] If the formalities of the criminal adjudicate process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.” (Id., at pp. 550-551 [29 L.Ed.2d at p. 664].)