Bailey

I concur, under the compulsion of In re Dennis M., 70 Cal.2d 444 [ 75 Cal.Rptr. 1 , 450 P.2d 296 ], which recognizes the standard of proof by a preponderance of evidence, rather than proof beyond a reasonable doubt, in juvenile cases instituted pursuant to Welfare and Institutions Code. (§701.)

The juvenile, here, presented the affidavits of two bus drivers, which would have tended to place him on a bus at the time the telephone call was made. The court said these would add nothing to the defense because if someone else had made the call and defendant followed up by going to the scene he would have been guilty as a conspirator. This categorical statement is far too broad, for had defendant not been told of the call until after it was made and decided to keep the *612 rendezvous with the teacher in the place of the caller, he would not. have conspired to make the lewd call, and this was the charge against him.

However, even if the affidavits are considered as offers of proof and it be conceded that they are correct, still the judgment would stand under the preponderance of evidence standard. This is so because defendant made no offer of proof that anyone told him of the call and,…

The minor, aged 15 years at the time of his hearing in the juvenile court, appeals from the judgment finding him to he a ward of that court by reason of his breach of the law in making lewd telephone calls to one of his teachers. The petition filed February 7, 1968, states that he comes within the provisions of section 602 of the Juvenile Court Law in that “said minor, Preston Junior [B.] on or about the 23rd day of January, 1968, with intent to annoy did make a lewd telephone call to Mrs. Eileen Risley, thereby violating section 653m of the Penal Code of California.” The petition names the parents of the minor. He was represented at all stages of the hearing by Fresno attorney, Annette La Rue, who also acts for him on the appeal.

There is no question but that some minor made the lewd telephone calls to Mrs. Eileen Risley, a teacher at the Washington Union High School. The essential subject of conflict between the affirmative findings of the court and the negative testimony of Preston Junior B. is the identity of the telephone caller. The experienced trial judge, who heard the testimony in detail, was of the opinion that Preston Junior B. was *609 the male adolescent who made the…