IN RE: STEVEN B.

Reset A A Font size: Print

Court of Appeal, Third District, California.

IN RE: STEVEN B., a person coming under the juvenile court law. The PEOPLE of the State of California, Plaintiff and Respondent, v. STEVEN B., Defendant and Appellant.

Civ. 17515.

Decided: January 26, 1979

Maxim N. Bach, Oroville, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., W. Scott Thorpe and Nancy L. Sweet, Deputy Attys. Gen., for plaintiff and respondent.

The juvenile court sustained a petition alleging the minor had failed to stop his vehicle and render assistance after being involved in an accident resulting in personal injury. (Veh.Code, ss 20001, 20003.) The minor appeals.

Christie Craig, Fred Krein and Suzanne Ruff were riding their bicycles on a city street in Chico. A van driven by the minor passed by. The side mirror of the van struck Craig, causing her to hit the side of the van and fall to the pavement; she suffered a severely bruised hip and a concussion as well as other bruises and scratches. After striking Craig, the van accelerated, “screeching” its tires; it was pursued by another vehicle which later returned to the scene of the accident.

The minor was apprehended the following day. He admitted to Officer Lambrix that he saw the three bicyclists and heard a noise on the right hand side of his van as he passed them; he thought the noise was made by one of the cyclists hitting the van with her hand; he saw a vehicle behind him and accelerated because he was afraid; he was frightened because he thought the person in the following vehicle intended to harm him; he had been a police informant and had previously been beaten up and his vehicle shot at; he did not know that his vehicle had struck the bicycle until the next day.

At the jurisdictional hearing on October 6, 1977, the victim and her two companions were witnesses. Krein and Ruff testified that immediately after witnessing the event, an unidentified motorist stated in reference to the involved vehicle, “I'm going after him” and “I will get him.” That testimony was received conditionally, subject to the minor's motion to strike as inadmissible hearsay. No ruling thereon was made on October 6 and the jurisdictional hearing was continued to October 27.

The minutes of the continued hearing show that only one witness, the minor's father, was sworn and testified; the minor's motion “to acquit” was denied and a motion to strike was granted. The minor did not testify at the jurisdictional hearing. The court found the allegations of the petition true and that the minor came within section 602 of the Welfare and Institutions Code. The matter was set for disposition hearing on December 1, 1977.

The reporter's transcript of the proceedings of October 27 was not included in the record on appeal filed with this court on March 10, 1978. On April 3, 1978, the official court reporter filed his declaration that he had reported the proceedings of October 27, 1977. The declaration continued, “all of my stenographic notes for this jurisdictional hearing on October 27, 1977 had been destroyed, or lost. These notes were inadvertently thrown out by the janitor at the end of November; and as a consequence the jurisdictional hearing on October 27, 1977 cannot be transcribed.”

On May 5, 1978, the minor, citing Code of Civil Procedure section 914, moved this court to vacate the judgment and order a new trial.[FN1] No request was made to extend time to file the opening brief. On May 25, before the motion was decided the minor filed his opening brief. On June 8, 1978, we denied the motion for new trial and remanded the cause to the trial court to attempt completion of the reporter's transcript by way of settled statement, citing rule 4(e), California Rules of Court.

A settled statement has not been prepared. Respondent's brief was filed August 25, 1978; no closing brief has been filed. No showing has been made in this court or to our knowledge in the trial court what efforts, if any, were undertaken to settle the record or the reasons why it was not done.

On appeal the minor contends that inability to secure a complete reporter's transcript requires reversal. He relies upon two recent Court of Appeal decisions. In re David T. (1976) 55 Cal.App.3d 798, 127 Cal.Rptr. 729, is a case in which the juvenile court directed a shorthand reporter who was not an official reporter (as defined in Gov.Code, s 69942) to record the oral proceedings. The Court of Appeal held that alternate means of creating a verbatim record were not available because lack of an authorized record was due to the fault of the trial court in failing to abide by Welfare and Institutions Code section 677 which requires appointment of an official reporter.

In In re Andrew M. (1977) 74 Cal.App.3d 295, 141 Cal.Rptr. 350, the official reporter erroneously omitted to report the oral arguments of counsel in a juvenile court hearing. On the minor's motion under Code of Civil Procedure section 914, the Court of Appeal vacated the judgment and remanded for new trial, holding that the intervening death of the minor's trial attorney so compounded the error of the court reporter that an adequate substitute record court not be prepared. The court assumed without deciding that a fair substitute record might otherwise be appropriate in juvenile court proceedings.

Both David T. and Andrew M. are distinguishable from the case at bar. In neither case did there exist shorthand notes of an official reporter that could have been transcribed. In David T. the trial court was at fault; in Andrew M. the court reporter was at fault and his omission was compounded by the death of the minor's trial counsel. In the instant case, the loss of the reporter's notes cannot be ascribed to either party; furthermore, the minor is represented on appeal by the very same attorney who represented him in the trial court.

Thus we address the question expressly left open in In re Andrew M., supra (at pp. 298, 301, 141 Cal.Rptr. 350), Viz., whether the appellate court may resort to a substitute record which fairly permits it to perform its reviewing function, where the absence of a reporter's transcript in a juvenile court hearing is not due to the fault of either party.

In People v. Chessman (1950) 35 Cal.2d 455, 218 P.2d 769, a capital case, the reporter had died before he could complete transcription of his notes. The Supreme Court stated, “ ‘we know of no rule which permits us to presume that defendant did not have a fair trial because a portion of the record upon . . . appeal has been destroyed without fault of either party.’ ” (P. 462, 218 P.2d p. 773, quoting from People v. Botkin (1908) 9 Cal.App. 244, 249, 98 P. 861.) Rule 35(b) of the California Rules of Court, then as now, required that on the filing of notice of appeal the reporter shall prepare the reporter's transcript. The Supreme Court held that “where literal compliance with the rules has become impossible without fault of anyone, and we are confronted with a situation not expressly covered by the rules, we should inquire whether there is or can be made available a record on which this court can perform its function of reviewing the cause and determining whether there was error in the court below and, if so, whether such error requires reversal. If a record can be ‘prepared in such a manner as to enable the court to pass upon the questions sought to be raised’ (citation), then there is no rational likelihood or legally cognizable possibility of injustice to the appealing defendant even though a verbatim record certified by the official reporter cannot be supplied.” (Chessman, supra, 35 Cal.2d at p. 460, 218 P.2d at p. 773.)

The Chessman rule has been applied in People v. Fuentes (1955) 132 Cal.App.2d 484, 282 P.2d 524, and People v. Scott (1972) 23 Cal.App.3d 80, 100 Cal.Rptr. 34, in each of which part of the reporter's notes was lost and could not be transcribed; it was also applied in People v. Hulderman (1976) 64 Cal.App.3d 375, 134 Cal.Rptr. 223, where the oral proceedings at the time of judgment and sentence were not reported by an official reporter (cf. People v. Serrato (1965) 238 Cal.App.2d 112, 47 Cal.Rptr. 543).

There is a distinction between juvenile court cases and criminal prosecutions in relation to the question under consideration here. In the former case, an official reporter is required by statute to report all hearings conducted by the juvenile court (Welf. & Inst.Code, s 677); in the latter case the rules of court assume that felony criminal trials will be reported (see, e. g., Cal.Rules of Court, rules 33(a)(2), 33(b)(2), 35(b); Pen.Code, s 1246), but nowhere does it appear that the trial court is required to order the proceedings recorded (People v. Hulderman, supra, 64 Cal.App.3d at p. 381, fn. 2, 134 Cal.Rptr. 223) and the rules do provide acceptable alternatives to a reporter's transcript in certain circumstances (Cal.Rules of Court, rule 36(a), agreed statement; rule 36(b), settled statement).

We do not believe, however, that Welfare and Institutions Code section 677 was intended to preclude a reviewing court from utilizing on appeal a fair substitute for a reporter's transcript where the necessity therefor arises without fault of either party and it can be done consistent with the proper discharge of that court's function and without jeopardy to the appellant's right to meaningful appellate review. There is no more reason to assume error from lack of a proper record in a juvenile hearing than in a felony prosecution. Moreover, felony prosecutions no less than juvenile court hearings may result in deprivation of liberty. In the case of the former, the deprivation is likely to be for a more protracted period and, unlike a juvenile hearing, a felony prosecution may even result in deprivation of life itself (see People v. Chessman, supra, 35 Cal.2d 455, 218 P.2d 769). Furthermore, Code of Civil Procedure section 914, the remedial provision upon which the minor relies, does not in terms mandate the grant of a new trial in every case where a reporter's notes have been lost; rather it invests the trial and reviewing courts with that power, to be exercised, however, in their discretion as justice requires.

We therefore hold that an appeal in a juvenile court proceeding may be determined on a substitute record where, through the fault of neither party, the required record cannot be perfected, but a record nonetheless can be “prepared in such a manner as to enable the court to pass upon the questions sought to be raised” (People v. Chessman, supra, 35 Cal.2d at p. 460, 218 P.2d at p. 773). We further hold that a settled statement (rule 4(e), Cal.Rules of Court) may in appropriate cases provide such a record. (Cf. In re Andrew M., supra, 74 Cal.App.3d 295, 141 Cal.Rptr. 350.)

As we have indicated, we remanded this matter to the trial court for preparation of a settled statement. No such statement has been prepared and we are not advised what, if anything, was done in furtherance of our order. Rather, the parties proceeded to brief the appeal on the record before us, the minor asserting the lack of a complete record as ground for reversal. In conjunction with that contention, counsel in his opening brief states merely that he “is unable to recall what motion to strike was granted on October 27, 1977.”

Where, without fault of either party, a verbatim transcript cannot be prepared, “It is not sufficient . . . to state in a general way” that a transcript is essential to meaningful review. Counsel “must show in a reasonably particularized presentation the reasons why (he) cannot inform the reviewing court by a settled statement of the claimed inadequacies and errors.” (Magezis v. Municipal Court (1970) 3 Cal.3d 54, 58, 88 Cal.Rptr. 713, 714, 473 P.2d 353, 354.) Here, as in Grimes v. Municipal Court (1971) 5 Cal.3d 643, 97 Cal.Rptr. 9, 488 P.2d 169, counsel has not shown that a settled statement would be inadequate; he has not advised us whether he has contacted the trial judge and the district attorney to attempt to settle the record, and if he did not do so, he has not explained why. It is the burden of the appealing party, here the minor, to take the initiative to attempt together with the other trial participants in good faith to prepare a settled statement which will permit the court to pass upon the contentions raised, and if such is not reasonably possible, to demonstrate to this court with particularity why not. (Grimes v. Municipal Court, supra, at pp. 646-647, 97 Cal.Rptr. 9, 488 P.2d 169.)

Moreover, the minor has failed to demonstrate that he is prejudiced by the condition of the record. He contends that his motion to strike the alleged hearsay testimony of Krein and Ruff was improperly denied and that these statements formed the basis for the court's finding that the minor fled the scene of the accident. The record before us, however, shows that the only motion to strike was that directed to the testimony of Krein and Ruff that an unidentified motorist said, “I'm going after him” and “I will get him.” The clerk's transcript shows that a motion to strike was granted on October 27. It is a reasonable inference that the ruling referred to the minor's motion on October 6 to strike the aforementioned testimony.

Quite apart from the ruling on the motion to strike, the admission of the testimony to which it was directed would not constitute error since it was not offered for the truth of the matter asserted. Nor was the testimony offered to show that the minor left the scene (see Evid.Code, s 1200), a matter which in any event was undisputed. Under the circumstances, the lack of a complete reporter's transcript due to neither party's fault does not prejudice the minor and does not require the vacation of the juvenile court's order (People v. Fuentes, supra, 132 Cal.App.2d at pp. 487-488, 282 P.2d 524; cf. In re Andrew M., supra, 74 Cal.App.3d at pp. 297-301, 141 Cal.Rptr. 350).

We reject the contention that the evidence is insufficient to support the judgment. Viewing the evidence in the light most favorable to the judgment (In re Roderick P. (1972) 7 Cal.3d 801, 809-810, 103 Cal.Rptr. 425, 500 P.2d 1), we find that there is substantial evidence to support the juvenile court's finding that the minor had knowledge that he had caused injury to a person while driving his van and failed to stop (see In re Dennis B. (1976) 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514). The rapid acceleration immediately after impact evidenced by a screeching of tires was sufficient to justify the court's conclusion that the minor knew he had caused an injury. (People v. Holford (1965) 63 Cal.2d 74, 79-80, 45 Cal.Rptr. 167, 403 P.2d 423; People v. Wolf (1978) 78 Cal.App.3d 735, 740, 144 Cal.Rptr. 344; People v. Roche (1942) 49 Cal.App.2d 459, 461, 121 P.2d 865.)

The judgment is affirmed.

FOOTNOTES

1.  Code of Civil Procedure section 914 provides: “When the right to a phonographic report has not been waived and when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule, because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.” (Cf. Pen.Code, s 1181, subd. 9.)

PUGLIA, Presiding Justice.

PARAS and EVANS, JJ., concur.