IN RE: LUCKY M.

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Court of Appeal, Third District, California.

IN RE: LUCKY M., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. LUCKY M., Defendant and Appellant.

Civ. 20539.

Decided: June 29, 1982

Gerald W. Nash, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and James Ching, Deputy Attys. Gen., for plaintiff and respondent.

Lucky M., a minor, appeals from the judgment and order of disposition which continued him as a ward of the juvenile court within section 602 of the Welfare and Institutions Code and committed him to California Youth Authority (CYA).

The minor was first adjudged a ward of the court on July 20, 1978, after the allegations of a petition alleging violation of Penal Code section 487.1 (misdemeanor theft) were admitted.   He served time in juvenile hall and was placed outside the family home.   A series of some four placements in foster and group homes was terminated as placement failures because of the minor's disobedient, violent, disruptive, assaultive and defiant conduct.

On October 10, 1979, the minor was continued as a ward of the court after admitting the allegations of a petition charging violation of Penal Code section 594 (vandalism).   He was detained in juvenile hall pending placement in a group home.

On July 24, 1980, he was continued as a ward of the court after the sustaining of a petition alleging violation of Penal Code section 242 (battery) and violation of probation.   He was detained in juvenile hall pending outside placement.   These events all occurred in Stanislaus County.   Shortly thereafter, the minor's parents moved to Yuba County and a transfer of the minor's wardship was effected to that County.   He was placed in his parents' home and the efforts by the Yuba County Probation Office to reestablish the minor in a community school program were unsuccessful because of the minor's continuing behavioral problems.

The judgment and order from which this appeal was taken were entered in a proceeding in Stanislaus County wherein a petition was filed alleging violation of Penal Code section 499b (temporary taking of a vehicle).   The minor apparently had left his parents' home in Yuba County without permission and was staying with distant relatives in Stanislaus County.   There was an outstanding warrant for his arrest from Yuba County.   The vehicle he “temporarily took” was that of his benefactors.   At the detention hearing before a referee, the minor admitted the allegations of the petition and the action was transferred back to Yuba County for disposition.   No court reporter was present at this detention hearing at which the minor's current admission was taken.

At the dispositional hearing before the Yuba County Juvenile Court on February 26, 1981, the minor was committed to CYA on the basis of the current petition and the past cumulative petitions, either admitted or sustained.

The minor asserts section 677 of the Welfare and Institutions Code requires a court reporter at all juvenile court hearings and failure to have a reporter at the proceedings in Stanislaus County is reversible error.

The People in turn contend (1) section 677 (Welf. & Inst.Code) does not require the presence of a court reporter when a minor admits the allegations of a petition in a hearing before a referee and (2) this court is without jurisdiction to hear this appeal as the minor failed to obtain certificate of probable cause as required by Penal Code section 1237.5.

We address initially the issue of jurisdiction.

The minor contends section 1237.5 by its own terms applies only to a “defendant” appealing from a “judgment of conviction” upon a “plea of guilty” and not to a minor's appeal from an order adjudging him a ward of the court after an admission of the allegations of the petition in support thereof.   He urges that had the Legislature intended section 1237.5 to apply to appeals from the juvenile court, section 800 of the Welfare and Institutions Code would have so provided.  Section 800 of the Welfare and Institutions Code provides, in pertinent part:  “A judgment in a proceeding under Section 601 or 602, or the denial of a motion made pursuant to Section 262, may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment.   Pending appeal of the order or judgment, the granting or refusal to order release shall rest in the discretion of the juvenile court.   The appeal shall have precedence over all other cases in the court to which the appeal is taken.  [¶] A ruling on a motion to suppress pursuant to Section 700.1 shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition or even if the judgment is a dismissal of the petition or any court or courts thereof;  however, no appeal by the people shall lie as to any count which, if the people are successful, will be the basis for further proceedings subjecting any person to double jeopardy in violation of the state or federal Constitution.  [¶] A judgment or subsequent order entered by a referee shall become appealable whenever proceedings pursuant to Section 252, 253, or 254 have become completed or, if proceedings pursuant to Section 252, 253, or 254 are not initiated, when the time for initiating the proceedings has expired.   [¶] An appellant unable to afford counsel shall be provided a free copy of the transcript.  [¶] All appeals shall be initiated by the filing of notice of appeal in conformity with the requirements of Section 1240.1 of the Penal Code.”

Section 800 (Welf. & Inst.Code) does not specifically exempt minors from obtaining a certificate of probable cause;  and a recent amendment to section 800 (Stats.1980, ch. 1095, § 3, pp. 3736–3737) suggests a legislative intent to restrict the right of appeal from a judgment predicated upon an admission of the allegations of the petition.   The amendment in question provides:  “A ruling on a motion to suppress pursuant to Section 700.1 [i.e. suppression of evidence resulting from unlawful search or seizure] shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition ․”  (Ibid.;   emphasis added.)   The Attorney General urges the application of the rule of statutory construction, expressio unius est exclusio alterius, that “ ‘ “where a statute enumerates things upon which it is to operate it is to be construed as excluding from its effect all those not expressly mentioned” ’ ”  (People v. Mancha (1974) 39 Cal.App.3d 703, 713, 114 Cal.Rptr. 390),1 and reasons that because the Legislature found it necessary to specifically create a right of appeal for a suppression motion even if a judgment is predicated upon an admission of the allegations of the petition, it follows by necessary implication that there is otherwise no statutory basis for direct appeal of any other issue, if the judgment is predicated upon an admission.

Without adopting the expansive implication which the Attorney General derives from the cited amendatory language, we nevertheless discern from the rules of court on intent that the procedure for appeals by minors from judgments under section 601 or 602 (Welf. & Inst.Code) parallels the procedure for appeals by adults from judgments of conviction.

Rule 39(a) 2 provides:  “The rules governing appeals from superior court in criminal cases are applicable to all appeals from the juvenile court except where otherwise expressly provided by this rule, or where application of a particular rule would be clearly impracticable or inappropriate.”   Thus, rule 39 directs juvenile appellants to follow the procedure prescribed for appeals from criminal convictions.

The pertinent rule governing appeals in criminal cases is rule 31, which incorporates the procedural requirement of Penal Code section 1237.5 and provides:  “(d) In cases in which a judgment of conviction was entered upon a plea of guilty or nolo contendere, the defendant shall file the statement required by Section 1237.5 of the Penal Code, which shall serve as a notice of appeal, within 60 days after the rendition of judgment, but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section.   Within 20 days after the defendant files his statement the trial court shall execute and file either a certificate of probable cause or an order denying such a certificate and shall forthwith notify the parties of the granting or denial of such certificate.  [¶] If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of such plea which do not challenge the validity of the plea or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code, the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal state [sic] that it is based upon such grounds.  [¶] The time for preparing, certifying and filing the record on appeal or for filing an agreed statement shall commence to run when the appeal becomes operative.”

Penal Code section 1237.5 provides:  “No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, ․ except where:  [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings;  and [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”

Although the terminology of Penal Code section 1237.5 refers to adult offenders in criminal cases, that section describes aspects of criminal procedure which are functionally equivalent to corresponding aspects of juvenile procedure.   A judgment of conviction upon a plea of guilty is functionally equivalent to an adjudication under section 602 of the Welfare and Institutions Code upon admission by the minor that he violated the law as alleged in the petition.   It has been recognized, “in terms of potential consequences, there is little to distinguish an adjudicatory hearing [in California's juvenile court system] from traditional criminal prosecution.”   (Breed v. Jones (1975) 421 U.S. 519, 530, 95 S.Ct. 1779, 1786 [44 L.Ed.2d 346, 356].)

Such terminological variation between adult and juvenile court procedures is inevitable where juvenile court law adopts by incorporation certain procedural rules applicable in criminal cases.3  Just as we necessarily “look to the consequences of the proceedings rather than the formal labels to determine what rights are appropriately applied to juvenile proceedings” (In re Gladys R. (1970) 1 Cal.3d 855, 866, fn. 21, 83 Cal.Rptr. 671, 464 P.2d 127), one looks to the substance and consequences of the proceedings rather than the formal labels to implement the requirements with which a juvenile must comply under rule 39.   Obviously rule 39 contemplated such cross-reference to corresponding criminal proceedings and classifications despite the necessary and implicit terminological variances.   A contrary conclusion would as a practical matter debilitate rule 39 and leave juvenile appellants with little guidance concerning procedural requirements for perfecting appeals.   As the Advisory Committee Comment to rule 39 states:  “Neither the statutes nor the California Rules of Court presently provide guidance as to the handling of juvenile court matters on appeal.   As a result, practices vary from county to county and from one appellate district to another.   In most jurisdictions, the clerk's offices have applied the rules governing civil appeals to dependency proceedings and have attempted to apply the rules governing criminal appeals to section 602 cases, at least insofar as the costs and preparation of transcripts and the appointment of counsel are concerned.   In section 601 proceedings, there has been a wide disparity of practices.  [¶] Subdivision (a) provides generally that the rules governing appeals from the superior court in criminal cases (Cal.Rules of Court, rules 30–38) apply to all appeals from the juvenile court․  Although proceedings in juvenile court are not criminal proceedings (Welf. & Inst.Code § 203) but ‘essentially civil’ [citation], the application of the general rules relating to criminal appeals to all juvenile appeals would better enable the appellate courts to implement the legislative policy that juvenile court matters be handled expeditiously at the appellate as well as at the trial court level (see Welf. & Inst.Code §§ 395, 800; ․).  The general criminal rules would not apply, however, where express provision is made to the contrary in this rule ․ or where the application of a particular rule would be clearly impracticable or inappropriate ․”  (See also In re Eugene R. (1980) 107 Cal.App.3d 605, 612–613, 166 Cal.Rptr. 219.)

Application of rule 31 to appeals by minors is not “clearly impracticable or inappropriate.”   It promotes the legislative policy that juvenile court matters be handled expeditiously at the appellate as well as the trial court level.   The reasons for applying the procedural requirements of section 1237.5 in criminal appeals pertain as well to appeals from juvenile court.   Section 1237.5 “merely establishes a procedure for screening out frivolous claims among ․ issues which have not been waived.”  (People v. Kaanehe (1977) 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028;  People v. Ribero (1971) 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308.)

 Section 203 of the Welfare and Institutions Code does not conflict with rules 39 and 31 where those rules incorporate the procedural requirements of Penal Code section 1237.5.  Section 203 (Welf. & Inst.Code) provides:  “An order adjudging a minor to be a ward of the juvenile court shall not be deemed of conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”   In the present context we do not deem an order adjudging a minor a ward of the juvenile court (Welf. & Inst.Code, § 602) to be a conviction nor do we deem a proceeding in the juvenile court to be a criminal proceeding.   Rather, we view them as functional equivalents for purposes of perfecting an appeal in accordance with the California Rules of Court.   Compliance with the procedure set forth in rule 39 and Penal Code section 1237.5 as incorporated therein does not contravene the underlying purpose of section 203 of the Welfare and Institutions Code.

We conclude the minor's failure to obtain a certificate of probable cause precludes appellate review of the issue raised.   If in fact, the minor's counsel, by lack of competence, deprived the minor of a meritorious defense, the minor may seek relief by writ of habeas corpus.  (See, In re Arthur N. (1974) 36 Cal.App.3d 935, 112 Cal.Rptr. 89).

Having established the proper appellate procedure following an admission of the allegations of the petition by a juvenile in a proceeding pursuant to section 602, Welfare and Institutions Code, we deem it appropriate, in the interest of judicial economy, to address the merits of the minor's contention on appeal.

 The People correctly assert section 677 does not require the presence of a court reporter when a minor admits the allegations of a petition in a hearing before a referee.  Section 677 provides:  “At any juvenile court hearing conducted by a juvenile court judge, an official court reporter shall, and at any such hearing conducted by a juvenile court referee, the official reporter, as directed by the court, may take down in shorthand all the testimony and all of the statements and remarks of the judge and all persons appearing at the hearing;  and, if directed by the judge, or requested by the person on whose behalf the petition was brought, or by his parent or legal guardian, or the attorneys of such persons, he must, within such reasonable time after the hearing of the petition as the court may designate, write out the same or such specific portions thereof as may be requested in plain and legible longhand or by typewriter or other printing machine and certify to the same as being correctly reported and transcribed, and when directed by the court, file the same with the clerk of the court.   Unless otherwise directed by the judge, the costs of writing out and transcribing all or any portion of the reporter's shorthand notes shall be paid in advance at the rates fixed for transcriptions in a civil action by the person requesting the same.”  (Emphasis added.)  Section 677 specifically distinguishes between hearings conducted by a juvenile court judge and those conducted by a juvenile court referee.   With respect to the former, a reporter “shall” take notes, and with respect to the latter a reporter “may” take notes.4

Appellant's reliance upon In re Steven B. (1979) 25 Cal.3d 1, 8, 157 Cal.Rptr. 510, 598 P.2d 480, is misplaced.   In that case the Court addressed the issue of whether “the destruction of the stenographic notes of one of the two days of appellant's jurisdictional hearing in juvenile court entitle[s] him to vacation of the judgment against him and to a new hearing when his appeal is based on the sufficiency of the evidence.”  (Id., at p. 3, 157 Cal.Rptr. 510, 598 P.2d 480.)

In his notice of appeal and opening brief, the minor asserted he was not advised of the possible consequences of his admission, including commitment to CYA;  that the absence of a reporter's transcript to demonstrate this lack of advisement mandates reversal.   However, the record of the detention hearing at which the admission was taken contains a written finding by the court that the “Minor understands nature of conduct alleged in petition and possible consequences.”

  In his reply brief for the first time,5 the minor alleges reversible error for failure of the referee to serve upon the minor a written explanation of the minor's right to seek review by the juvenile court, as required by section 248, Welfare and Institutions Code.6  In re Drexel F. (1976) 58 Cal.App.3d 801, 130 Cal.Rptr. 253, is cited as controlling.   We observe that in In re Drexel F., supra, at issue were the jurisdictional and dispositional hearings held before a referee without the presence of a court reporter.   The record failed to show that the minor, his attorney, or his parents were served with the written explanation of the right to seek review of such orders.

However, in our factual setting, there was no jurisdictional hearing because an admission was taken and the dispositional hearing was conducted before a juvenile court judge.   This court in In re Adolphus T. (1979) 96 Cal.App.3d 642, 645, 158 Cal.Rptr. 186, held “the simple acceptance of the admission by the referee was not an ‘order’ within the purview of the statute and rule [1317].”  As the court observed in a footnote in Adolphus, arguably the detention finding was an “order” but there, as here, no claim of invalidity was asserted as to the detention, only the jurisdictional result.   We find no error.

The judgment is affirmed.

FOOTNOTES

1.   To the same effect, “legislative enumeration of certain exceptions by necessary implication excludes all other exceptions.”   (Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 320, 172 Cal.Rptr. 594.)

2.   References to rules are to the California Rules of Court.

3.   For example, the following pertinent events correspond:  where the adult violator of law is convicted, the juvenile is adjudged a ward of the court;  the adult offender pleads guilty to the charges, but the juvenile admits the allegations contained in the petition;  the adult is sentenced, but the juvenile is committed.

4.   Rule 1354(e) requires that a written record entered in the minutes of the court be made of the findings of the court of proper notice, the birthdate and county of residence of the minor, that the minor knowingly and intelligently waived his rights, that the minor understood the nature of the conduct alleged and the possible consequences of an admission, that the admission is freely and voluntarily made, that there is a factual basis for the admission, that the allegations are true and the minor is a person described by section 601 or 602 of the Welfare and Institutions Code.As used in the rules, “court” includes a referee of the juvenile court (rule 1302(a)(2)).Such a written record was entered in the minutes in this case.

5.   We remind counsel of the rule that new points not raised in the opening brief will not be considered in the absence of a showing of good reason for failure to so present.   However, motivated by our announced goal of judicial economy, we overcome yet another procedural hurdle and press forward to a decision on the merits.

6.   Rule 1317, California Rules of Court, mandates a similar explanation of the right of review of an order of a juvenile court referee.

 CARR, Associate Justice.

PUGLIA, P. J., and SPARKS, J., concur. Hearing Denied; BIRD, C.J., dissenting.