In re D.A.

Filed 10/16/07 In re D.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, John Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed in part and remanded.

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, Jason C. Tran and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

D.A. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed a second degree robbery on victim Alvaro H. (Pen. Code,  211), assault by means likely to produce great bodily injury also on victim Alvaro H. (Pen. Code,  245, subd. (a)(1)), and simple battery on victim Jorge Z. (Pen. Code, 242/243, subd. (a).)[1]Appellant was placed in a camp community placement program for six months and he contends the inadequacy of the record on appeal requires reversal of the order of wardship.[2] Additionally he claims the juvenile court erred by failing to declare on the record whether the assault offense was a felony or a misdemeanor and that the juvenile court should have stayed the assault offense pursuant to Penal Code section 654. For reasons stated in the opinion we affirm the order of wardship and remand the matter for the juvenile court to exercise its discretion to declare the previously sustained assault offense a felony or misdemeanor.

FACTUAL AND PROCEDURAL SUMMARY[3]

On September 27, 2005 at approximately 1:10 p.m., 12-year-old Alvaro H. was in the area of Obispo and 11th Street in Long Beach when he was approached from behind by a group of kids and told to stop. One member of the group told him if he tried to run they would get him. H. was then surrounded by the group, two people in front of him, one person next to him and two people behind him. He could not see the two people behind him. Appellant, who was the person standing next to H., told H. to go to the alley across the street. H. did not notice anything peculiar about appellants speech. H. was frightened and did not want to comply but rode his bike there because he was unable to get away. The same five individuals who had stopped him went to the alley. One of the individuals took the pizza H. was carrying. This individual also grabbed H.s bike and put it next to appellant. Appellant did not say anything and did not take the bike. The individual who grabbed the pizza and the bike went behind H. and hit H. on the back of the head, causing him to fall to the ground. While on the ground, appellant and the others kicked H. H. saw appellant kick him in the forehead. H. testified he was kicked in the face more than once or twice but could not say how many times. He suffered injuries to his upper lip, which was open and bleeding. There was blood on his face and shirt and he received five stitches from a doctor. As he testified, his mouth still hurt. When an unknown kid told the group to stop, all of the attackers ran away. H.s bike was taken from the alley, but H. could not say who had taken it.

H. observed that some of the attackers, including appellant, wore white shirts and khaki pants, which is a uniform for Wilson High School. H. identified appellant from a Wilson High School yearbook as one of the individuals who participated in the attack. Appellant had braids in his yearbook picture but not at the hearing.

On that same day at approximately 1:40 p.m., Jorge Z. was at Redondo and 7th Street in Long Beach, approximately two blocks from Obispo and 11th, when a boy approached him and asked him if he wanted to fight. Z. said no and continued walking towards the Pizza Hut. At the corner, Z. was confronted by a total of five boys. Two pulled in front of him on bikes. Appellant was one of the boys and was on foot. One of the boys asked Z. if he had an iPod and then punched him. Z. punched back. Appellant rushed Z. from the left side and hit Z. on the left side of the face. Z. felt several blows and covered up and then blacked out from all of the blows. An old man chased away the attackers. Z. was injured in the back of his head. His face was swollen and bruised and he was bleeding from his mouth. He did not get any stitches and his injuries hurt for about a half an hour.

H.s father learned of the attack on his son at approximately 1:40 p.m. and left the pizza parlor where he worked. On his way home, he saw appellant riding his sons small black bike and demanded that appellant give it back. Appellant threw the bike down and ran away. H.s father recalled that appellants hair was in braids.

In defense, appellants mother testified that on the date of the incident appellants hair was short and he did not have braids. Additionally, appellant stutters when he speaks. A witness called by a co-minor testified he was involved in the fight with the boy on the bike and that appellant was not present.

DISCUSSION

I

Appellant contends that inadequacy of the record on appeal deprives him of due process, his right to counsel and to confrontation and, therefore, reversal is required. Appellant argues that no reporters transcript exists for the two-day jurisdictional hearing and that while the juvenile court supplied a written narrative account of the testimony of all witnesses, the account does not contain crucial information regarding objections of counsel, court rulings, motions raised and arguments. Appellant also asserts the courts narrative contains critical holes.[4] Appellant relies heavily on the case of In re Steven B. (1979) 25 Cal.3d 1, in his claim that a reversal is required.

In a proceeding in juvenile court to declare a minor a dependent or ward of the court, the minor is entitled to have the proceedings transcribed. Pursuant to Welfare and Institutions Code section 677, an official court reporter shall take down the oral proceedings before a juvenile court judge. The reporter must transcribe the proceedings upon the request of the court, the minor, or the minors parent or attorney. In addition, if a minor is unable to afford counsel on appeal, the minor shall be provided a free copy of the transcript. [Citations.] (In re Steven B., supra, 25 Cal. 3d 1, 4, fn. omitted.) The court observed, [i]n a criminal case, the trial or reviewing court is expressly authorized to grant a new trial when a substantial portion of the reporters notes are lost or destroyed. [Citations.] In addition, an appellant may move for permission to prepare a settled statement when a portion of the reporters transcription cannot be obtained. [Citation.] However, no statute, rule or case holds that a settled statement is appropriate in a juvenile court appeal when a complete transcript is unavailable. (Id. at p. 6.)

Appellant acknowledges, however, that In re Steven B. was decided before the promulgation of California Rules of Court, rule 37.1(d). Effective January 1, 2005, California Rules of Court, rule 37.1, provided that a juvenile appeal may proceed by agreed or settled statement if rules 32.2 and 32.3 are followed.[5]

In the instant case, appellant requested, pursuant to California Rules of Court, rule 33.3 (a), permission to prepare a settled statement of the proceedings. The juvenile court granted the request and proceeded to comply with the relevant provisions regarding the preparation of a settled statement. Appellants trial counsel, thereafter, declared she was unable to prepare an accurate proposed settled statement because her memory was not sufficiently clear. Appellate counsel filed a declaration stating that because of trial counsels lack of recollection she also was unable to assist in the preparation of a proposed settled statement.

On November 3, 2006, the juvenile court conducted a settled statement hearing and provided its proposed settled statement. Appellants trial counsel, Nina Law, appellate counsel, Mary Bernstein, a co-minors attorney who had been present during the adjudication, John Schmocker, and Deputy District Attorney Andrea Bouas[6]were present. The court stated Ms. Law and Mr. Schmocker had filed declarations indicating a lack of memory of specifics and that the court did not know whether its proposed settled statement had refreshed their memory or not.

Mr. Schmocker stated the document refreshed his recollection and was satisfied that it stated the testimony. Ms. Law stated, Its a remarkably thorough document. It did help to refresh some of what happened and appears to be accurate in every respect. The court then asked appellate attorney Ms. Bernstein if she wanted to establish anything further beyond what we have here? The court asked counsel to state what would be helpful for the appellate process and we will see if any of us have a recollection that can satisfy that.

Ms. Bernstein indicated she wanted to know whether there was opening argument[,] whether there were any objections and how much testimony there was. The court estimated there was approximately three hours of testimony and Ms. Law and the court agreed there probably was no opening statement. While neither trial counsel nor the court could recall what objections were made and the rulings on the objection, the court stated the notes it worked off of in preparing this settled statement would contain only what was, in fact, admitted, so whether objections were made and sustained, then anything to a sustained objection would not be contained in here. [] Obviously, if an objection was made and overruled, then the evidence came in, but there is no recollection by the court as to any specific objection made by any counsel. Ms. Law could not recall what she said during her closing argument. There was no recollection whether there was argument accompanying appellants motion to dismiss the petition pursuant to Welfare and Institutions Code section 701.1 and no recollection of a motion to sever an identification issue on third person. Ms. Law could not recall if there were objections to any exhibits. While her notes indicated the 12 year old [sic] prosecution witness was never qualified, the court stated it had no recollection whether or not there was a specific examination for what might be referred to as qualifying questions.

The loss, destruction, or absence of a portion of the reporters notes does not per se require a new trial. [Citation.] The burden is on the appellant to show that the omissions are substantial and consequential [citations], and that the omissions prevent meaningful appellate review. [Citation.] The burden is on the appellant to show prejudicial error. [Citation.] (People v. Bills (1995) 38 Cal.App.4th 953, 959.)

While appellant argues the juvenile courts settled statement does not contain crucial information regarding objections of counsel, court rulings, motions and arguments and contains critical holes, appellant has failed to demonstrate the omissions prevent meaningful appellate review. Appellants trial counsel indicated the statement was a remarkably thorough document which helped to refresh some of what happened and appears to be accurate in every respect. Co-minors trial counsel indicated the document refreshed his recollection and was satisfied that it stated the testimony. Appellants suggestion that possibly there were erroneous evidentiary rulings does not meet the requisite standard that appellant show the omissions were substantial and consequential. Similarly, appellants recital of several minor inconsistencies in the evidence does not demonstrate how the current state of the record prevents him from meaningful appellate review.

II

Appellant contends the juvenile court erred by failing to declare on the record whether appellants assault offense was a felony or a misdemeanor. A violation of Penal Code section 245, subdivision (a)(1) is a wobbler that is punishable by imprisonment in state prison for two, three or four years or in a county jail for a period not exceeding one year. (Pen. Code,  245, subd. (a)(1).) As the parties acknowledge, the disposition hearing occurred on November 9, 2005, and the reporters transcript for this date has been lost. The settled statement does not include a declaration that the offense is either a misdemeanor or felony.[7]

Welfare and Institutions Code section 702 provides in pertinent part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.] [] The requirement is obligatory: [Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. [Citations.] (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) The requirement serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. (Id. at p. 1207.) Failure to make the mandatory express declaration invalidates the governmental action to which the procedural requirement relates and therefore requires remand for strict compliance with Welfare and Institutions Code section 702. (Id. at pp. 1204-1205.)

Welfare and Institutions Code section 702 also serves the collateral administrative purpose of providing a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications. (In re Manzy W., supra, 14 Cal.4th at p. 1205.)

In Manzy W., the Court determined, however, that where a juvenile court fails to make such a designation, the matter need not be remanded where the record shows that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. [Citations.] (In re Eduardo D. (2000) 81 Cal.App.4th 545, 549 (disapproved on other grounds in In re Jesus O. (2007) 40 Cal.4th 859, 867.)

In the present case, the record provided this court by way of a settled statement does not include a recitation by the juvenile court designating the offense a misdemeanor or a felony. Additionally, there is no indication the juvenile court understood its discretion to make such a determination. The fact that the minute order describes the offense as a felony does not meet the requirements of Welfare and Institutions Code section 702, and the matter must be remanded to the juvenile court for the required designation. (In re Manzy W., supra, 14 Cal. 4th at pp. 1207-1208.)

III

Appellant contends in determining the maximum period of confinement, the juvenile court should have stayed the assault offense pursuant to Penal Code section 654. Penal Code section 654 provides in pertinent part that [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .

The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of [Penal Code] section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate. (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.)

The record establishes H. was approached by a group of youths and forced to go to a nearby alley. One of the individuals grabbed his bike and put it next to appellant. After the bike had been taken from H., H. was hit in the back of the head, causing him to fall to the ground. While H. was on the ground and not resisting, appellant and his companions kicked H. in the head and face. The youths stopped the attack and left with the bike when an unknown individual told them to stop. Substantial evidence supports the finding that H. was the unresisting victim of gratuitous violence after his bike had been taken from him and that the assault was not incidental to the robbery.

DISPOSITION

The matter is remanded to the juvenile court to determine under Welfare and Institutions Code section 702 whether the assault offense is a felony or misdemeanor and in all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] A second petition alleging appellant had committed an unlawful alteration of an imitation firearm, a misdemeanor (Pen. Code, 12553), was dismissed.

[2] Gina McDowell, Official Court Reporter for Transcript Services for the Superior Court, signed an affidavit to the effect that she checked her stenographic notes which were on computer disk for the proceedings on November 8 and 9, 2005, and could not access the disk. Additionally, she spoke on the telephone with a software technician at Stenocat Company who attempted to help her retrieve her notes and they were unsuccessful. Further, she searched for the paper stenographic notes and was unable to locate them. For these reasons, a transcript of the subject proceedings could not be prepared.

[3] The factual summary is taken from the settled statement prepared by the juvenile court.

[4] On December 19, 2006, appellant filed in this court a motion to vacate the juvenile courts true findings and order a new jurisdictional hearing. On January 4, 2007, this court denied the motion stating that in reviewing the appeal, this court would not invoke the forfeiture rule with respect to evidentiary rulings on objections or with respect to any claim of a motion to dismiss based on insufficiency of evidence.

On April 5, 2007, this court granted in part and denied in part appellants second request for judicial notice, taking judicial notice of the juvenile courts minute orders of November 9, 2005 and June 1, 2006 and the address of Wilson High School at 4400 East 10th Street, Long Beach, California 90804.

[5] Effective January 1, 2007, rule 37.1 has been renumbered and amended as rule 8.404. Rules 32.2 and 32.3 have been renumbered as 8.344 and 8.346, respectively.

[6] The deputy district attorney who tried the case had left the district attorneys office and moved out of the state. The deputy in court had not been present during the adjudication.

[7] Item 30 of the minute order of November 9, 2005 has boxes checked and blanks filled indicating that counts 1 and 2 were felonies and that count 3 was a misdemeanor. In the space for item 38, there is the notation, Ct. 2-245(a)(1) PC F= 1 yr. indicating the offense to be a felony and setting a felony term of one year or one-third the midterm of three years.