Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW123289-00, Jon E. Stuebbe, Judge.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Michael A. Canzoneri, for Plaintiff and Respondent.
OPINION
Franson, J.
Appellant Roman R. appeals from the juvenile court’s true finding of an allegation of receiving or concealing stolen property. (Pen. Code, § 496, subd. (a).) He contends the juvenile court misheard testimony concerning the events surrounding the offense and erroneously based its credibility determination on its misunderstanding of the testimony. He further asserts the juvenile court denied him effective assistance of counsel and equal protection when it failed to provide a transcript of the jurisdictional hearing in connection with preparing a motion for a new jurisdictional hearing, despite the court having already granted appellant’s transcript request. For reasons discussed below, we conclude the court understood the trial testimony and that substantial evidence supports the court’s true finding. We also conclude that denial of the transcript request, although previously ordered by the court, was harmless error beyond a reasonable doubt and affirm the judgment
FACTUAL AND PROCEDURAL BACKGROUND
Jacob S. and several friends were playing basketball at a local park as they usually did on Sunday nights. Appellant and his friends were also playing basketball at the park. Both groups had seen each other at the park playing basketball in the past, but had no prior relationship. Jacob S. and appellant owned the same type of phone, an iPhone. Jacob S. had put his phone down nearby while he was playing basketball, but was periodically checking on it between games. Appellant had his phone with him, keeping it in his jacket pocket while he played basketball, and taking it out periodically while he was at the park.
Appellant and his friends finished up their game and began leaving the park. Jacob S. noticed that his phone was missing from its location and contacted appellant and his friends in the course of his search for his phone. Witness accounts differ as to what happened next.
Jacob S. testified at the jurisdictional hearing that his friend, Sebastian S., called Jacob S.’s phone, and Jacob S. heard his phone ringing in appellant’s pocket. He then saw appellant walk away from the group, place something on a nearby guardrail, and then return to the group. Jacob S. testified he went to where appellant had walked to, and found his phone on the guardrail. It was undamaged and showed missed calls from his friends.
Appellant and one of his friends present that night, Christopher D., both testified at the jurisdictional hearing they had heard no phone ringing in appellant’s pocket, and they had not seen Jacob S. locate his phone. Appellant testified he saw Sebastian S. make a phone call, but no phone rang in his pocket as a result.
The juvenile court based its ruling at the jurisdictional hearing on a credibility determination as between Jacob S.’s version of the events leading up to the return of his phone, and appellant and Christopher D.’s version. The juvenile court found Christopher D.’s testimony suspect, resolved the credibility determination in favor of Jacob S., and found the allegation of receiving or concealing stolen property true against appellant, but found a second allegation of grand theft not true.
Defense counsel then petitioned the court for a copy of the transcript of the jurisdictional hearing, for purposes related to filing a motion for a new hearing, by filing his request with the clerk’s office using a form cover sheet with a memorandum of points and authorities attached. The juvenile court granted the petition without a hearing. Prior to the dispositional hearing, however, someone from the court staff notified defense counsel that funds were not available to pay for the transcript, so one was not prepared or provided. Defense counsel attempted to have the public defender’s office pay for the transcript, but was unsuccessful. He noted his attempts to obtain the transcript in a footnote to his motion for a new jurisdictional hearing.
Appellant’s motion for a new hearing directly challenged the juvenile court’s finding that Christopher D.’s testimony was not credible, because he denied hearing Jacob S.’s cell phone ringing in appellant’s pocket before being asked about it at trial. Based on this discrepancy, appellant argued that the court thus concluded that Christopher D. and appellant had colluded in creating their story and therefore dismissed their testimony. Appellant suggested there could be other unstated reasons for Christopher D. to know beforehand that the ringing cell phone was an important issue. Therefore, the court was too quick to dismiss Christopher D.’s testimony.
At the hearing on the motion, the matter was submitted without argument and the juvenile court denied the motion for a new hearing without stating its reasons. The court then granted defense counsel’s motion to reduce the offense from a felony to a misdemeanor, and placed appellant on probation for a maximum term of six months.
DISCUSSION
I. THE JUVENILE COURT PROPERLY UNDERSTOOD THE TESTIMONY OF CHRISTOPHER D. AND SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S TRUE FINDING.
In this appeal, the fundamental dispute between appellant and respondent lies in their differing interpretations of the juvenile court’s focus on the testimony of Christopher D. The juvenile court relied on Christopher D.’s testimony to resolve the central credibility dispute against appellant and thus found true the stolen property allegation. This is essentially the same issue raised by appellant in his motion for a new hearing, without the benefit of a hearing transcript.
During cross-examination, the prosecutor and Christopher D. had the following exchange:
“[Prosecutor:] And were you there when one of the other individuals from the other group…approach [sic] you guys and make [sic] a phone call and Roman’s phone ringing? [sic]
“[Christopher D.:] No. That really never even happened.
“[Prosecutor:] So that whole situation never happened?
“[Christopher D.:] No. I never heard the phone ringing in Roman’s pocket.” (Italics added.)
In making its finding on the stolen property allegation, the juvenile court explained its thought process in evaluating the evidence and resolving the conflicting testimony and arguments of each side:
“Obviously I listened very carefully to all the witnesses. Really the critical factor in my mind is the issue of the ringing phone in the pocket. [Jacob S.] testified that that exchange happened, and both [appellant] and [Christopher D.] testified it didn’t. But the really interesting fact is that [Christopher D.] knew to deny that before anybody asked him a question about it. He brought that up in one of his answers that was not responsive to any question. Nobody brought it up in his questioning. And he wasn’t in here to hear [Jacob S.’s] testimony or the officer’s. I found that very interesting that not having talked with this young man, he knew that one fact that he needed to deny on his own question, on his own bringing it up, was that there was no ringing phone in [appellant’s ] pocket. It convinces me there was. And the ringing phone in the pocket is really the issue.” (Italics added.)
Appellant asserts the juvenile court based its credibility determination on an erroneous belief that Christopher D. brought up the topic of the ringing phone spontaneously while testifying, without prompting from either counsel. Appellant suggests the juvenile court failed to hear the prosecution’s previous questions to Christopher D. that prompted his denial of the phone ringing in appellant’s pocket. Moreover, appellant argues the ringing phone testimony was the crucial factor in the juvenile court’s decision-making process.
Respondent contends the juvenile court based its credibility determination on the portion of Christopher D.’s testimony that was not raised by the prosecution’s questions on cross-examination or any question or evidence offered on direct examination --namely that the phone did not ring “in Roman’s pocket.” We agree with respondent. The juvenile court specifically stated it had listened to the witnesses very carefully. The actual transcript of the hearing confirms the importance the juvenile court placed on the ringing phone testimony and that its recitation of that testimony was accurate. The prosecution’s question referred to the ringing phone situation generally, without mentioning that the location of the ringing phone was alleged by Jacob S. to be in appellant’s pocket. Since Christopher D. was excluded from the courtroom while Jacob S. testified and thus would not have known that Jacob S. pinpointed the ringing to appellant’s pocket, the juvenile court could reasonably conclude that Christopher D. was not truthful in his testimony since Christopher D. raised the specific alleged location of the ringing phone on his own, with no prompting.
Appellant posits Christopher D.’s denial the phone rang in appellant’s pocket was based on a reasonable assumption that Jacob S.’s phone would have been in appellant’s pocket since that was where he kept his own phone and he had no other place to put it. We are not persuaded. Moreover, having concluded the juvenile court made no mistake in its recitation of Christopher D.’s testimony at the conclusion of the jurisdictional hearing, based on our review of the relevant testimony, we are obliged to presume in favor of the juvenile court’s finding the existence of every fact that could have been reasonably deduced and will not overrule the court’s finding if substantial evidence supports it. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) Determinations of credibility are the exclusive province of the trial judge or jury. (Id. at p. 357.) Christopher D. testified that the entire situation involving Sebastian S. calling Jacob S.’s phone had not occurred. Appellant, however, testified Sebastian S. had called the phone, but the phone had not rung in his pocket. The juvenile court could have also reasonably inferred this contradiction in testimony further weighed in favor of Jacob S.’s version of the events. The hearing transcript clearly supports the conclusion that substantial evidence supports the juvenile court’s true finding.
II. DEFENSE COUNSEL WAS IMPROPERLY DENIED A TRANSCRIPT OF THE JURISDICTIONAL HEARING. HOWEVER, SUCH ERROR WAS HARMLESS.
A. Factual and Procedural Background
After the jurisdictional hearing, as noted above, defense counsel requested a copy of the hearing transcript. As his reasoning for requesting the transcript, counsel explained, “[f]or counsel to determine the necessity of the motion for new trial, a review of the transcript is required.” The juvenile court granted the request, but court staff later declined to prepare the transcript due to funding restrictions.
Defense counsel proceeded with his motion for new jurisdictional hearing without the requested jurisdictional hearing transcript. In his motion, he asserted “[t]he court was too quick to dismiss the testimony of Christopher D[.]” (underlining omitted) and specifically addressed the court’s credibility determination based on the court’s belief Christopher D. brought up information about the phone ringing in appellant’s pocket without prompting. The motion suggested “numerous possible innocent explanations” existed to explain Christopher D.’s testimony, but elaborated only that it was “well known” the key piece of evidence was the ringing cell phone and that Christopher D.’s knowledge beforehand of the crux of the case did not suggest he was perjuring himself. Although appellant referred to Christopher D.’s testimony that he did not hear the cell phone ringing in appellant’s pocket, he obviously could not quote from the trial testimony since he did not have a transcript at that time.
The motion for new jurisdictional hearing stated in pertinent part: “the court stated that the testimony of Christopher D[.] was not credible because Christopher D[.] denied hearing the [cell phone] ring in Roman R[.]’s pocket, prior to being asked about it on the stand. The court made the inference that Christopher D[.] and Roman R[.] had colluded in creating a story and thus dismissed their testimony. [Fn. omitted.]”
At the hearing on the motion, the juvenile court summarized the motion for new trial as, “a motion as to insufficiency of the evidence based on a proposed additional interpretation of the evidence the Court heard.” The juvenile court denied appellant’s motion for a new jurisdictional hearing without specifying its reasons.
B. Analysis
Appellant asserts the juvenile court violated appellant’s right to effective assistance of counsel and equal protection when it denied appellant’s new trial motion without first providing him the trial transcript the court had previously ordered prepared for appellant. Respondent argues the transcript was unnecessary for effective preparation and suggests the transcript request should have been denied in the first instance.
Defendants are presumptively entitled to transcripts when preparing for retrial after a mistrial. (Huffman v. Superior Court (1990) 219 Cal.App.3d 1480, 1483.) Denial of a transcript request requires automatic reversal of the conviction in the second trial. (People v. Hosner (1975) 15 Cal.3d 60, 70.) However, we have held on two occasions in the past that a different standard applies where a transcript is requested in connection with preparation of a motion for new trial. An indigent defendant “is not entitled, as a matter of absolute right, to a full reporter’s transcript of his trial proceedings for his lawyer’s use in connection with a motion for a new trial; but, since a motion for a new trial is an integral part of the trial itself, a full reporter’s transcript must be furnished to all defendants … whenever necessary for effective representation by counsel at that important stage of the proceedings.” (People v. Lopez (1969) 1 Cal.App.3d 78, 83 (Lopez); People v. Bizieff (1991) 226 Cal.App.3d 1689, 1700 (Bizieff).) Appellant, however, must make a showing that the requested transcripts are necessary for effective representation (Lopez, supra, at p. 83; Bizieff, supra, at p. 1702), and only upon such showing is the state “obligated to provide an indigent defendant in a criminal case with a transcript of prior proceedings.” (Bizieff, supra, at p. 1699.) We concluded that both defendants failed to make an adequate showing of need for the transcripts and affirmed the trial courts’ denial of each defendant’s motion for transcripts. (Lopez, supra, at p. 83-84; Bizieff, supra, at p. 1704.)
Unlike in Lopez and Bizieff, where a denial of a transcript request was at issue, here the juvenile court initially granted the transcript request, so we must assume the juvenile court found that the transcript request met the required threshold of being “necessary for effective representation by counsel.” (Lopez, supra, 1 Cal.App.3d at p. 83; Bizieff, supra, 226 Cal.App.3d at p. 1700.) Based on this finding and order, the transcript should have been provided, but it was not. Based on the facts of this case, however, we find that this failure did not prejudice appellant and was therefore harmless. In this case, the same lawyer represented appellant at trial, prepared the motion for a new hearing, and appeared at the hearing on the motion. The same judge presided at each of the hearings. The jurisdiction hearing was held on April 14, 2010, the motion for new hearing was prepared on April 28 and the hearing on the motion held on April 29, when the hearing testimony was still fresh in everyone’s mind. (See Lopez, supra, at p. 82.) Essentially, the same arguments were made in the motion for a new hearing, without the benefit of a transcript and repeated in this appeal, with the benefit of a transcript. Also, appellant has not mentioned any new arguments that he would have made at the motion for a new hearing, if he had had a transcript. The sole issue he raised in his motion for a new hearing concerned the juvenile court’s recollection and interpretation of Christopher D.’s testimony, which we have discussed above.
Under the circumstances and the record in this case, however, even with the transcript, it is not reasonably probable that a result more favorable to appellant on his motion for new jurisdictional hearing would have been reached. The denial of the transcript failed to prejudice appellant in his motion for a new hearing and was therefore harmless error beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Detjen, J.