Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08JT02778
HULL, J.Following a contested trial, the minor was found to have violated the City of Elk Grove’s curfew ordinance (Elk Grove Mun. Code, § 9.05.020) and was ordered to perform six hours of community service. He appeals, contending (1) the juvenile court erred in failing to provide a court reporter for the trial, and (2) there is insufficient evidence to support the judgment. We conclude the juvenile court’s determination is not appealable and dismiss the appeal.
Facts and Proceedings
Elk Grove Municipal Code section 9.05.020 reads: “It is unlawful for any minor to be in any public place or establishment within the City during curfew hours [10:00 p.m. until daylight], except as provided under [Elk Grove Municipal Code] Section 9.05.030.” Elk Grove Municipal Code section 9.05.030 provides various exceptions to the curfew ordinance.
On June 20, 2008, beginning at 10:00 p.m., several officers of the Elk Grove Police Department conducted a citywide curfew sweep. In all, they picked up and cited 27 juveniles, including M.R. The minor was cited for violating Elk Grove Municipal Code section 9.05.020 and released to his parents. On September 8, 2008, he pleaded not guilty and the matter was set for trial on October 7. On October 7, the matter was tried in the juvenile court and the charge was found true.
Discussion
The minor raises two contentions on appeal: (1) the trial court erred in failing to provide an official court reporter at trial; and (2) there is insufficient evidence to support the finding of a curfew violation.
The parties argue resolution of the first issue turns on the status of the hearing officer who presided at trial. The minor argues the hearing officer was the Honorable Raoul Thorbourne, a judge of the superior court sitting as a juvenile court judge. He further argues California Rules of Court, rule 5.532(a) requires that a trial before a juvenile court judge be recorded.
The People initially agreed with the minor. However, in a supplemental brief filed with leave of this court, the People argue Judge Thorbourne was not sitting at trial as a juvenile court judge, but as a juvenile hearing officer. Therefore, they argue, California Rules of Court, rule 5.532(a) does not apply. The People further argue that, because Judge Thorbourne was sitting as a juvenile hearing officer, his findings and order on the curfew violation are not appealable to this court.
The minor disagrees that Judge Thorbourne was sitting as a juvenile hearing officer. He further argues the judgment reached in this matter is appealable in any event under Welfare and Institutions Code sections 800 and 245. (Further undesignated section references are to the Welfare and Institutions Code.)
“[I]t is well settled ‘that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute. [Citations.] The orders, judgments and decrees of a juvenile court which are appealable are restricted to those enumerated in [Welfare & Institutions Code] section 800....’ (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 33-34 [164 Cal.Rptr. 1, 609 P.2d 468].)” (In re K.S. (2003) 112 Cal.App.4th 118, 120-121.)
Section 800, subdivision (a), reads: “A judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment.... [¶]... [¶] 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.” Sections 252, 253, and 254 address the right to seek de novo rehearing of a referee’s decision by a juvenile court judge.
The present matter is not a proceeding under section 601 or 602. The minor contends the matter nevertheless falls within that portion of section 800 dealing with judgments entered by a juvenile court referee. He argues that, because proceedings pursuant to sections 252, 253, and 254 were never initiated, the judgment became final and appealable when the time for initiating such proceedings expired.
The short answer to the minor’s argument is that the matter from which he purports to appeal was not decided by a juvenile court referee. The minor himself argues the judgment was entered by Judge Thorbourne, sitting as a juvenile court judge. The People argue Judge Thorbourne was not sitting as a judge but as a juvenile hearing officer. However, as we shall explain, the status of Judge Thorbourne does not determine whether the judgment below is appealable. The determining factor is the nature of the offense.
Section 255 provides for the appointment of judicial hearing officers and provides that, when a juvenile hearing officer is presiding, the court shall be known as the Informal Juvenile and Traffic Court. Section 256 sets forth the types of cases over which a juvenile hearing officer may preside, including “a violation of any provision of state or local law relating to traffic offenses, loitering or curfew, or evasion of fares on a public transportation system.” (§ 256, subd. (5).)
Under section 257, with consent of the minor, the case may be conducted upon an exact legible copy of the citation or other violation notice. (§ 257, subd. (a)(1).) Upon a hearing conducted in accordance with section 257, the juvenile hearing officer may, among other things, “[o]rder that the minor perform community service work....” (§ 258, subd. (a)(8).) All such orders shall become effective immediately. (§ 261.) However, “[u]pon motion of the minor or his or her parent or guardian for good cause, or upon his or her own motion, a judge of the juvenile court may set aside or modify any order of a juvenile hearing officer, or may order or himself or herself conduct a rehearing....” (§ 262.)
In In re Conley (1966) 244 Cal.App.2d 755, a traffic hearing officer found the minor committed a traffic violation, and the juvenile court ordered a rehearing pursuant to former section 567, the predecessor of section 262. The court ultimately sustained the findings of the traffic hearing officer, and the minor’s father appealed. (Id. at p. 757-758.) At the time, section 800 authorized appeals of any judgment under sections 601 and 602 and any order “denying a motion made pursuant to Section 567.” (Stats. 1963, ch. 917, § 12, pp. 1268-1269.)
Because the juvenile court judge did not deny the motion for rehearing under former section 567, but instead granted a rehearing, the Court of Appeal concluded the matter was not appealable and dismissed. (In re Conley, supra, 244 Cal.App.2d at p. 761.) The court explained: “It is abundantly clear that by its enactment in 1961 of sections 561 to 568, inclusive, the Legislature intended to provide for the handling of all but the most serious juvenile traffic violations in juvenile court and for the processing of such cases on the basis of citations rather than the filing of juvenile court petitions. To implement this objective these statutes provide for the appointment of traffic hearing officers exercising the powers of the juvenile court in much the same manner as referees. In the exercise of these powers the traffic hearing officers are authorized to hear and dispose of traffic cases and to make a final judgment therein subject to review by the juvenile court upon proper and timely application by the minor, his parent or guardian. [Citation.] Within the scope of such review, the juvenile court judge is not only empowered to set aside or modify the order of the hearing officer or to order a rehearing, but he is also invested with the jurisdiction to himself conduct a hearing de novo. It is apparent, therefore, that in providing a uniform and expeditious method of handling traffic cases in the juvenile court, consistent with the spirit and purpose of the Juvenile Court Law, the Legislature has deemed it adequate for the protection of the welfare of a juvenile offender that he be afforded a hearing before a traffic hearing officer subject to the right to have such determination reviewed by the judge of the juvenile court. Accordingly, since no statutory right of appeal lies from the determination by the juvenile court judge in such cases, it is manifest that the Legislature intended that such determination be final and that there be no further appeal to the higher courts of the state.” (Id. at p. 761.)
In In re K.S., supra, 112 Cal.App.4th 118, a juvenile hearing officer found a violation of a local curfew ordinance, and the minor appealed, challenging the constitutionality of the ordinance. (Id. at p. 120.) The Court of Appeal concluded the matter was not appealable and dismissed. (Id. at p. 122.) The court explained appeals from the juvenile court are limited to those judgments enumerated in section 800, and this was not a proceeding under sections 601 and 602 or a proceeding before a juvenile court referee under sections 252 through 254. Rather, it was a proceeding before a juvenile hearing officer subject to review by a juvenile court judge under section 262. The court further noted that, while section 800 previously allowed for appeals of the denial of de novo review under section 262, section 800 has since been amended to eliminate this appellate court jurisdiction. (In re K.S., at p. 121.)
The court explained: “[The minor] has not shown his proceeding before the juvenile hearing officer was conducted under sections 252 through 254, or 601/602, which would then give him the right to appeal to this court. Because the Legislature deleted the right to appeal to this court from a proceeding brought before a juvenile hearing officer under sections 255 through 262, section 800 provides no authority for [the minor’s] appeal. Rather, [the minor’s] remedy was to request a rehearing via a motion to set aside before a juvenile court judge. (§ 262.) That he did not do so does not now confer upon him a right to appeal to this court.” (In re K.S., supra, 112 Cal.App.4th at p. 121.) The court continued: “In sum, because the record reflects [the minor] appeared in the Informal Juvenile and Traffic Court on a citation for a violation of the ordinance, not on a petition under either section 601 or 602, or before a referee pursuant to sections 247 through 254, and was found guilty by a juvenile hearing officer of violating that citation and fined without being put on probation or made a ward of the court, section 800 does not provide [the minor] the right to appeal to this court.” (In re K.S., supra, 112 Cal.App.4th at p. 122.)
As noted above, the present matter is not a proceeding under sections 601 and 602 or a proceeding before a juvenile court referee. It was before a juvenile court judge. Whether that judge was sitting as such or as a juvenile hearing officer does not matter for purposes of the minor’s right to appeal. If Judge Thorbourne was sitting as a juvenile hearing officer, then the minor’s right of review was limited to de novo review before a juvenile court judge. (In re K.S., supra, 112 Cal.App.4th at pp. 121-122.) If instead Judge Thorbourne was sitting as a juvenile court judge, then the minor has in effect received his de novo review by a juvenile court judge, and he is entitled to no further review. (Accord In re Conley, supra, 244 Cal.App.2d at p. 761.) Either way, he is not entitled to review by this court.
The minor contends he has a right of appeal under section 245. It reads: “Each superior court shall exercise the jurisdiction conferred by this chapter, and while sitting in the exercise of such jurisdiction, shall be known and referred to as the juvenile court. Appealable orders and judgments of the juvenile court are subject to the appellate jurisdiction of the court of appeal.” (Italics added.) The minor argues that because the decision below is a judgment of the juvenile court, it is appealable under section 245.
We disagree. Section 245 does not specify what orders or judgments are appealable. Instead, it designates the court where appealable orders and judgments may be heard. The Law Revision Commission comment to the 1998 amendment to section 245, the amendment that added the italicized language quoted above (compare Stats. 1998, ch. 931, § 468 with Stats. 1976, ch. 1068, § 4, p. 4751), states: “Section 245 makes clear that the court of appeal is the proper appellate court to review appealable orders and judgments of the juvenile court. See Welf. & Inst. Code §§ 395, 800 (appealable orders and judgments of the juvenile court)....” (Cal. Law Revision Com. com., 73 West’s Ann. Welf. & Inst. (2008 ed.) foll. § 245, p. 164.) Sections 395 (dealing with child dependency cases under section 300 et seq.) and 800 specify what orders and judgments are appealable. Section 245 provides that those appealable orders and judgments are subject to the jurisdiction of the Court of Appeal.
Because the present matter does not fall within the terms of either section 395 or section 800, the minor has no right to appeal the finding and order of the juvenile court to this court. The appeal must therefore be dismissed.
Disposition
The appeal is dismissed.
We concur: SCOTLAND, P. J., NICHOLSON, J.