Botka v. R. C.

RATTIGAN, J.

I dissent.

Appellant has been subjected to wardship of the juvenile court upon its factual determination, reached on the basis of uncorroborated accomplice testimony only, that he had “violate[d] . . . [a] . . . law of this state” (Welf. & Inst. Code, § 602) in that he had committed the crime of arson proscribed by Penal Code section 447a.

*898I agree with the majority that the adjudication did not operate to deprive appellant of due process of law, as guaranteed him under the Fourteenth Amendment, by reason of its having been based upon such testimony alone. (See Lisenba v. California (1941) 314 U.S. 219, 226-227 [86 L.Ed. 166, 174-175, 62 S.Ct. 280]; In re M. (1970) 34 App.Div.2d 761 [310 N.Y.S.2d 399, 401-402] [concurring opinion].) I do not agree with the full import of the majority’s statements (1) that “[t]he different purposes of the juvenile system may . . . justify reasonable differences in procedure so long as due process standards are met,” or (2) that “[t]he purposes and structure of the juvenile system are different from the adult criminal justice system. Hence when due process has been satisfied reasonable differences in procedures are not unconstitutional.” In my view, the justification of such “differences,” upon the sole basis that “due process standards are met” or that “due process has been satisfied,” ignores the affected juvenile’s constitutional right to equal protection of the laws, as distinguished from his right to due process but as also guaranteed him by the Fourteenth Amendment. (See, e.g., Douglas v. California (1963) 372 U.S. 353, 356-358 [9 L.Ed.2d 811, 814-815, 83 S.Ct. 814].)

Appellant has invoked his right to equal protection on the ground that the uncorroborated accomplice testimony, upon which the adjudication of his wardship is based, would have been insufficient to support the conviction of an adult of the same crime (arson, in violation of Pen. Code, § 447a) by reason of the provisions of Penal Code section 1111.1

The decisions cited by the majority, in which comparable equal protection claims by juveniles have been denied, rest upon one or both of the alternative premises that the disparity of treatment accorded to juveniles is justified (1) because a contrary holding would subvert the essential difference between juvenile and adult prosecutions by equating them as adversary proceedings (see, e.g., McKeiver v. Pennsylvania (1971) 403 U.S. 528, 550-551 [29 L.Ed.2d 647, 663-664, 91 S.Ct. 1976] [trial by jury]); or (2) because the specific, disparate treatment in question otherwise operated to serve the best interests of the affected juvenile or of the system of juvenile justice generally. (See, e.g., T. N. G. v. Superior Court *899(1971) 4 Cal.3d 767, 783 [94 Cal.Rptr. 813, 484 P.2d 981]; In re S. A. (1970) 6 Cal.App.3d 241, 246 [85 Cal.Rptr. 775].)2

I am not persuaded that corroboration of accomplice testimony, if exacted in a juvenile proceeding pursuant to Penal Code section 1111, would escalate such proceeding to the adversary dimensions which attend the prosecution of an adult (compare McKeiver v. Pennsylvania, supra, 403 U.S. 528 at pp. 550-551 [29 L.Ed.2d 647 at pp. 663-664]), nor that withholding the statute’s benefits in such proceeding has the effect of serving the interests of the affected juvenile or of the system of juvenile justice generally. (Compare T. N. G. v. Superior Court, supra, 4 Cal.3d 767 at p. 783; In re S. A., supra, 6 Cal.App.3d 241 at p. 246.)

I am unable to find any other rational basis for the differentiated treatment which was accorded appellant in terms of Penal Code section 1111. It therefore appears to me that he falls squarely within the meaning of the United States Supreme Court’s declaration (quoted by the majority) that judicial intervention in a juvenile’s conduct “cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.” (In re Winship (1970) 397 U.S. 358, 367 [25 L.Ed.2d 368, 377, 90 S.Ct. 1068] [italics added].)

I conclude that the adjudication of appellant’s wardship, upon the basis of uncorroborated accomplice testimony which would have been insufficient to convict an adult of the crime with which he (appellant) was essentially charged, operated to deny him equal protection of the laws under the Fourteenth Amendment. I would therefore reverse the juvenile court’s order accordingly.

A petition for a rehearing was denied July 11, 1974. Rattigan, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied August 28, 1974.

“1111. A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hergby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

The first decision here cited dealt with equal protection and due process alike (T. N. G. v. Superior Court, supra, at pp. 782-785); the second, with due process only. (In re S. A., supra, at pp. 246-247.)