In re K.H., A120449 (Cal. App. 9/23/2008)

• Decision Date: 23 September 2008
• Docket Number: A120449
• Parties: In re K.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.H., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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In re K.H., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. K.H., Defendant and Appellant.

A120449

Court of Appeals of California, First Appellate District, Division One

September 23, 2008

Not to be Published

Appeal from the Alameda County, Super. Ct. No. SJ07-008014.

SWAGER, J.

At a jurisdictional hearing defendant admitted that he committed the offense of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), with an associated enhancement for infliction of great bodily injury on the victim (Pen. Code, § 12022.7), as charged in a petition filed pursuant to Welfare and Institutions Code section 602.¹ Following a subsequent dispositional hearing the appointed temporary juvenile court referee declared defendant a ward of the court and committed him to the Division of Juvenile Facilities (DJF) for a maximum term of four years, less custody credits.

This appeal comes before us following denial of defendant's application for rehearing of the referee's findings (§ 252) by the juvenile court. Defendant complains that the court did not properly examine the entire record of the proceedings before the referee, and reviewed the referee's disposition pursuant to an erroneous standard. We conclude that the record before the juvenile court was complete, and the court did not apply an incorrect standard of review. We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY²

Defendant's application for rehearing challenged his placement in the DJF by the referee. The application asserted that "the most restrictive placement was ordered" by the referee although this was his "first finding" of a section "602 offense."

At the hearing on the application for rehearing on January 9, 2008, defense counsel acknowledged the seriousness of the offense, but pointed out "it was the first finding." Counsel argued that placement of defendant in "something a little less restrictive" than DJF that "would have kept him in the area," in proximity to his family, and offered a "counseling program," was more appropriate. The juvenile court responded that a review of the transcript of the dispositional hearing transcript indicated the referee was concerned with the lack of needed counseling programs available to defendant in a local placement at Santa Rita, and thus "did not believe that was an appropriate option." The court repeated several times that "there is a reference to other options that were discussed" for placement of defendant at the dispositional hearing, but the transcript did not state anything about "what those other options were other than a consideration of Santa Rita."

Defense counsel proceeded to explain to the court the alternative placements and counseling programs that were discussed off the record at the dispositional hearing. The juvenile court recognized that the disposition hearing transcript specified "that there had been some off-the-record discussions" of the placement options for the minor and the referee's apparent consideration of "what those other options were." The court then stated: "So now I understand that perhaps the off-the-record discussions included what the other options were for the minor." The court again reviewed the factors considered by the referee in arriving at a disposition that DJF placement was in the "best interest of the minor," primarily the seriousness of the offense and the absence of any counseling programs available to defendant at Santa Rita. The court concluded: "So accordingly, I do not believe that the commissioner [erred] or in any way abused his discretion, and I am going to deny the request for rehearing."

DISCUSSION

I. The Juvenile Court's Examination of the Record of the Dispositional Hearing.

Defendant argues that the juvenile court failed to "properly examine the record before the referee" in resolving his application for rehearing of the referee's disposition in the case. Defendant submits that the transcript reveals "important aspects of the record that the referee relied upon were not available for the reviewing judge." He thus complains that without "full access to the evidence before the referee," the juvenile court did not "fully weigh the evidence" as required in a proceeding to review an application for rehearing of a referee's decision.

We agree with defendant that he was entitled to a full and complete record to review his application for rehearing of the findings of the referee. As in all criminal cases, the law entitles a juvenile defendant to a record adequate to permit meaningful review. (See People v. Catlin (2001) 26 Cal.4th 81, 166; In re Steven B. (1979) 25 Cal.3d 1, 8.) And in juvenile proceedings, due to the constitutional mandate that referees are restricted to performing subordinate judicial duties, section 249 "provides that `[n]o order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court.' [Citation.]" (In re Clifford C. (1997) 15 Cal.4th 1085, 1089.) The referee's initial findings and orders are "only advisory and their rendition constitutes no more than a subordinate judicial duty." (In re Edgar M. (1975) 14 Cal.3d 727, 736.) " `No order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court.' [Citation.]" (In re Courtney H. (1995) 38 Cal.App.4th 1221, 1225.) "Section 252, in turn, provides that `[a]t any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his parent or guardian may apply to the juvenile court for a rehearing. . . .' " (In re Clifford C., supra, at p. 1090.)

Section 252 adds: "If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of those proceedings, grant or deny the application. If proceedings before the referee have not been taken down by an official reporter, the application shall be granted as of right."³ (See also In re Robert V. (1982) 132 Cal.App.3d 815, 822.) "[A] juvenile is entitled to a complete reporter's transcript. Failure to provide a reporter's transcript is error [citations]." (In re Ray O. (1979) 97 Cal.App.3d 136, 138.) "A rehearing must be granted as a matter of right if the proceedings before the referee were not transcribed. If the proceedings were transcribed, a juvenile court judge can deny the application for rehearing only after reading the transcript of the proceedings held before the referee." (In re Larissa W. (1991) 227 Cal.App.3d 124, 131; see also In re Edgar M., supra, 14 Cal.3d 727, 737; In re Robert V., supra, at p. 822; In re Gregory M. (1977) 68 Cal.App.3d 1085, 1092-1093.)

Here, as we read the record the juvenile court was provided with and reviewed the entire transcript of the proceedings before the referee. The lack of "full access to the evidence before the referee" was not due to the omission of a transcribed record, but rather to the fact that discussions between counsel and the court occurred off the record. While the transcripts do not provide insight into the precise nature or genesis of the off-the-record proceedings at the dispositional hearing, nothing indicates that the failure to transcribe these proceedings was opposed by defendant.

Constitutional and statutory law demands an adequate record and complete transcript of the proceedings held before the referee, but there is no requirement that all portions of the proceedings be transcribed. (See People v. Howard (1992) 1 Cal.4th 1132, 1166.) Section 252 mandates that the application for rehearing must be granted as a matter of right, "[i]f proceedings before the referee have not been taken down by an official reporter . . . ." The statute does not require the presence of a court reporter and the transcription of proceedings conducted in chambers with the attorneys.⁴ The official reporter transcribed and provided to the juvenile court for review the entirety of the in-court proceedings at the dispositional hearing before the referee pursuant to section 252. Only the off-the-record discussions in chambers were unreported. We perceive that neither the adequacy of the record nor the fairness of the proceedings was affected by the failure to report bench and chambers conferences. (See People v. Cummings (1993) 4 Cal.4th 1233, 1333, fn. 70; People v. Pinholster (1992) 1 Cal.4th 865, 919-923.)

Further, parties may waive the right to have a matter or proceeding transcribed, and while no explicit waiver by defendant is indicated, we presume he did so absent a record on appeal that proves otherwise. (See People v. Hinton (2006) 37 Cal.4th 839, 919; People v. Samayoa (1997) 15 Cal.4th 795, 820-821; People v. Cummings, supra, 4 Cal.4th 1233, 1333, fn. 70; People v. Gaston (1978) 20 Cal.3d 476, 485.) Defendant may not complain of the incompleteness of the record due to unreported portions of in-camera proceedings where nothing indicates that he objected to those off-the-record discussions below.⁵ (See People v. Rogers (2006) 39 Cal.4th 826, 857-858; People v. Pinholster, supra, 1 Cal.4th 865, 931; People v. Mickey (1991) 54 Cal.3d 612, 667.) Finally, at the hearing on the application for rehearing, the attorneys thoroughly advised the court of the off-the-record discussions, thereby satisfying the purpose of section 252 to permit meaningful examination of the evidence and argument before the referee and adequate review of the decision. (See People v. Holt (1997) 15 Cal.4th 619, 708.) We therefore conclude that no violation of section 252 occurred, and defendant was not denied the right to review of the record of the proceedings before the referee.

II. The Standard of Review used by the Juvenile Court to Review the Referee's Decision.

We turn to defendant's complaint that the juvenile court "applied an incorrect...