Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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. 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.
Pursuant to the negotiated disposition the remaining charges against defendant were dismissed. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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 HISTORY
In light of the admissions by defendant and the issues raised in this appeal we need not recite the facts pertinent to the underlying offense and enhancement. We will focus on the hearing on defendant’s application for rehearing, which is at issue in this appeal.
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.” (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.)
In its entirety section 252 reads: “At 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 or her parent or guardian or, in cases brought pursuant to Section 300, the county welfare department may apply to the juvenile court for a rehearing. That application may be directed to all or to any specified part of the order or findings, and shall contain a statement of the reasons the rehearing is requested. 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. If an application for rehearing is not granted, denied, or extended within 20 days following the date of its receipt, it shall be deemed granted. However, the court, for good cause, may extend the period beyond 20 days, but not in any event beyond 45 days, following the date of receipt of the application, at which time the application for rehearing shall be deemed granted unless it is denied within that period. All decisions to grant or deny the application, or to extend the period, shall be expressly made in a written minute order with copies provided to the minor or his or her parent or guardian, and to the attorneys of record.”
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. 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.)
In contrast, a statutory provision that specifically prohibits off-the-record proceedings in capital cases is recognized under Penal Code section 190.9, subdivision (a), which in part declares: “In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present.” (See also People v. Freeman (1994) 8 Cal.4th 450, 509.) “Although section 190.9 is mandatory, a violation of its provisions does not require reversal of a conviction unless the defendant can show that ‘the appellate record is not adequate to permit meaningful appellate review.’ [Citation.] Conversely, if the record does permit the reviewing court to pass on the questions raised on appeal, the defendant has not been prejudiced by an incomplete record.” (People v. Frye (1998) 18 Cal.4th 894, 941.)
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. (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.
We observe that defendant did not complain of the “brief discussion with counsel off the record” at the dispositional hearing before the referee, nor did he present an objection to the unreported off-the-record discussions at the hearing on his application for rehearing before the juvenile court judge.
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 abuse of discretion standard rather than exercising its own independent judgment in determining the appropriate placement for the minor.” He maintains that the court “placed undue reliance on the referee’s findings,” in adhering to “an abuse of discretion standard,” whereas the law demands an independent review of the referee’s findings.
Again, we agree with the basic premise articulated by defendant that the findings and order of a referee “are subject to de novo review by a juvenile court judge (§ 254) . . . .” (In re Jesse W. (2001) 93 Cal.App.4th 349, 357, italics added; see also In re Roderick U. (1993) 14 Cal.App.4th 1543, 1551.) “ ‘An application for rehearing requires a reexamination of the entire record by the juvenile court judge; it is necessary that the judge examine the complete transcript of the proceedings before the referee in order to exercise an informed independent judgment. [Citations.]’ [Citation.]” (In re Anthony H. (1980) 108 Cal.App.3d 494, 500, italics added.) “ ‘A juvenile court judge who reviews an application for rehearing a referee’s findings must base a decision to adopt those findings on data “sufficient for forming a judgment independent from that of the referee. . . .” [Citation.]’ ” (In re Larissa W., supra, 227 Cal.App.3d 124, 131, quoting In re Damon C. (1976) 16 Cal.3d 493, 496.) The “minor is entitled to a hearing de novo before a judge and to the exercise of judicial duties by that judge. [Citation.] The referee’s decision is not raised to the level of a judicial decision, but is rather disregarded in favor of an independent judicial determination by a person empowered to perform such functions.” (In re Darrell P. (1981) 121 Cal.App.3d 916, 924.)
Defendant has focused on the juvenile court’s statement that the referee did not “abuse[] his discretion.” However, when we examine the record in its entirety we conclude that the required de novo examination and exercise of independent judgment was undertaken by the juvenile court. The juvenile court expressed that the issue in the case was “whether or not the [referee] did [err] in sending the minor to [DJF] for his first offense.” The court’s finding was not limited to an abuse of discretion standard. To the determination that the referee did not abuse its discretion, the juvenile court added the finding that the referee did not err. Use of the disjunctive language “or” in the context of the articulated issue and the juvenile court’s ruling indicates that the court found in the alternative: neither an abuse of discretion nor other error was committed by the referee. (See E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 473; Houge v. Ford (1955) 44 Cal.2d 706, 712; Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1528.)
The record also demonstrates that the juvenile court carefully contemplated and independently concurred with the referee’s reasoning. The court observed that the referee properly considered the seriousness of the offense, mentioned the alternative placements available for defendant, remarked on the age of the minor which limited placement alternatives, expressed concern with the lack of counseling programs or transitional programs in placements other than the DJF, and finally determined placement based on the “best interest of the minor.” In the course of noting the “options” considered and the placement ordered by the referee, the court also stated: “I agree.” Upon our examination of the totality of the record we conclude that the juvenile court conducted a de novo review and exercised its independent judgment in ruling upon the application for rehearing.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.