IN RE: STEVE R.

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Court of Appeal, Second District, California.

IN RE: STEVE R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. STEVE R., Defendant and Appellant. Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.

B225542

Decided: February 24, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

Steve R., a minor, appeals from the May 24, 2010 adjudicatory order (Welf. & Inst.Code, § 602) 1 and the June 29, 2010 disposition order.   No appeal lies from the May 24, 2010 order;  rather, this interim order is properly reviewed only on appeal from the final disposition order.  (In re William C. (1977) 70 Cal.App.3d 570, 577 [“review errors in the adjudication proceeding on appeal from the” disposition order].)   The June 29, 2010 disposition order of the referee, however, which was vacated by the juvenile court, is not a final order.   We deem the notice of appeal filed June 29, 2010, to be a premature notice of appeal of the juvenile court's August 26, 2010 disposition order, which is a final order.

This conclusion makes moot the minor's contention that, because the parties did not stipulate in writing to the referee, the June 29, 2010 disposition order is void.   We find unsuccessful minor's remaining contention that the juvenile court's adjudicatory order is not supported by the evidence.

BACKGROUND

On October 27, 2009, at approximately 2:30 p.m., during class, the minor and codefendant K.T. approached the desk of their English teacher.   K.T. picked up the teacher's car keys, looked at the minor and said, “we should crash the car,” and the minor “smiled.”   K.T. then put back the keys.   When class ended, K.T. again picked up the keys and tossed them to the minor who threw the keys back to K.T. After K.T. put the keys in his pocket, he and the minor exited the classroom together.

The teacher searched the classroom unsuccessfully for her keys.   A few days later, she asked several students, including the minor, about her keys' whereabouts.   The minor claimed he had “no knowledge.”   At first, S.H., whose seat was directly next to the teacher's desk, stated that she saw the keys on the desk but did not know what happened to them.   Later S.H. wrote the teacher a note indicating that K.T. and the minor were involved in the keys' disappearance.   The keys were never found.

At the adjudicatory hearing, the minor denied ever seeing K.T. take a teacher's key or ever heard him make any statement about a teacher's key.   He denied ever coming into contact with the teacher's keys.   He also denied seeing K.T. pick up the keys and toss them to him.

On January 12, 2010, the district attorney filed a section 602 petition alleging that on or about October 27, 2009, the minor committed the crimes of petty theft (Pen.Code, § 484, subd. (a);  count 1), a misdemeanor, and receiving stolen property (Pen.Code, § 496, subd. (a);  count 2), a felony.

On May 24, 2010, at the hearing on the petition, the juvenile court (Hon. Benny C. Osorio) sustained the petition as to count 1, declared the offense to be a misdemeanor, and dismissed count 2 on the motion of minor's counsel (§ 701.1).   The court ordered the disposition to be heard on June 24, 2010, in Department 286.

On June 24, 2010, Referee Robin R. Kesler in Department 286 continued the disposition hearing to June 29, 2010.   On June 29, 2010, over the minor's objection, Referee Kesler conducted a disposition hearing.   He declared the minor a ward of the court (§ 602), removed custody of the minor from his parents and placed him in the custody of the probation officer.   The terms and conditions of probation, however, placed the minor in his parents' home.

On the same date, the subject appeal was filed.

On August 26, 2010, at minor's request, Judge Osorio conducted a de novo rehearing on disposition.2  He reaffirmed his earlier order sustaining count 1 of the § 602 petition and finding the offense to be a misdemeanor, vacated the previous orders made by the referee and issued his own disposition order.3  Petitioner did not appeal from this order.

DISCUSSION

1. The Order on Appeal

The parties did not stipulate to Referee Kesler as a temporary judge and at the outset of the disposition hearing the minor's attorney expressly objected to the referee acting in such capacity.  “In general, a juvenile court referee is constitutionally limited to the performance of subordinate judicial duties.  (Cal. Const., art.   VI, § 22;  In re Edgar M. (1975) 14 Cal.3d 727, 732.)   Consequently, absent a stipulation conferring judicial power, a juvenile court referee does not have authority under the California Constitution to conduct a jurisdictional or dispositional hearing.  (In re Perrone C. (1979) 26 Cal.3d 49, 57;  In re Edgar M.[, supra,] 14 Cal.3d at p. 735.)”  (In re P.I. (1989) 207 Cal.App.3d 316, 321.)

Nonetheless, a referee may exercise the same judicial authority “as a judge of the juvenile court, except that the referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity as a temporary judge.” (§ 248;  see In re Jesse W. (2001) 93 Cal.App.4th 349, 357 [“in delinquency proceedings ( ․ § 602), ․ failure to secure a stipulation does not divest a referee of jurisdiction to act;  rather, the stipulation is only necessary to give his or her acts finality].)   When sitting as a temporary judge, the referee's orders become final in the same manner as orders made by a judge. (§ 250.)   But when a party refuses to stipulate to the referee as a temporary judge, a party may request a rehearing, which shall be de novo (§ 254), before the juvenile court. (§§ 250, 252.)

Because petitioner did not stipulate to the referee, the referee's findings, conclusions, and disposition order were advisory in nature only and the order of the juvenile court made after rehearing on August 26, 2010 is the final order in the case.   We consider the notice of appeal as a premature appeal of that order.  (See In re Edgar M., supra, 14 Cal.3d 727, 740.)

2. Substantial Evidence

The minor contends the evidence is insufficient to support the juvenile court's finding that he committed petty theft, because the evidence presented failed to demonstrate minor had “the necessary intent to deprive [the teacher] of her keys.”   We find the evidence to be substantial.

“Our function is to determine whether the record contains any substantial evidence tending to support the finding of the [juvenile] court.  [Citations.]  Consonant with this principle is the rule that when two or more inferences reasonably can be deduced from the evidence the reviewing court cannot substitute its own inferences for those of the trial court.  [Citations.]”  (In re Corey (1964) 230 Cal.App.2d 813, 823-824.)   Substantial evidence “ ‘clearly implies that such evidence must be of ponderable legal significance.   Obviously the word cannot be deemed synonymous with “any” evidence.   It must be reasonable in nature, credible, and of solid value;  it must actually be “substantial” proof of the essentials which the law requires in a particular case.’  [Citations.]  The principle of substantial evidence is applicable in juvenile court proceedings as in other matters.  [Citation.]  Accordingly, the findings of the juvenile court judge will not be disturbed on appeal where there is substantial evidence to support them.  [Citations.]”  (Id. at p. 824.)  “This standard applies whether direct or circumstantial evidence is involved.”  (People v. Catlin (2001) 26 Cal.4th 81, 139.)   Accordingly, “ ‘ “ ‘If the circumstances reasonably justify the trier of fact's findings, the

“It is solely the function of the trier of fact to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw factual inferences.   On appeal all presumptions favor the exercise of that power, and the trial court's findings, whether express or implied, must be upheld if they are supported by substantial evidence.  [Citations.]”  (In re William C., supra, 70 Cal.App.3d 570, 579.)

The court's finding that the minor entertained the requisite intent to steal the keys finds substantial support in the testimony of S.H. that the minor “smiled” in response to K.T.'s statement to him that “we should crash the car” and that the minor and K.T. left the classroom together after K.T. pocketed the keys, which were never found.   The minor's act of tossing back the keys to K.T. might lead to an inference that the minor was signaling he wanted nothing to do with taking the keys.   However, an inference also could be drawn that the minor was signaling that he wanted K.T. to be the driver when they crashed the car together, which inference is consistent with the juvenile court's determination that the minor committed petty theft.  (People v. Lodge (1963) 212 Cal.App.2d 410, 413[defendant's presence with the actual thief “at the time the television set was taken and carried away is a circumstance to be considered in determining whether or not he was guilty of aiding and abetting.   The juvenile court was entitled to disbelieve the minor's self-serving testimony that he never saw K.T. take the keys or pick up the keys and toss them to the minor;  the minor's denial about hearing K.T. make a statement concerning the teacher's keys;  and the minor's denial that he ever touched the keys.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further section references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further section references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. On September 21, 2010, this court granted the minor's motion to augment the record with a copy of the August 26, 2010 minute order regarding the disposition rehearing held at the minor's request..  FN2. On September 21, 2010, this court granted the minor's motion to augment the record with a copy of the August 26, 2010 minute order regarding the disposition rehearing held at the minor's request.

FN3. In its disposition order, the juvenile court declared the minor a ward of the court;  took custody of the minor from his parents and placed custody with the probation officer;  and placed him home on probation under all the same terms and conditions as the referee imposed..  FN3. In its disposition order, the juvenile court declared the minor a ward of the court;  took custody of the minor from his parents and placed custody with the probation officer;  and placed him home on probation under all the same terms and conditions as the referee imposed.

CHANEY, J. JOHNSON, J.