Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 09CEJ601212-1, David A. Gottlieb, Judge.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
HILL, P.J.
Candice M. (minor) appeals from an order modifying her probation and ordering that she be committed to the substance abuse unit at the Department of Corrections and Rehabilitation, Juvenile Justice Campus. She asserts she was deprived of her due process rights because she was not afforded actual notice and a meaningful opportunity to be heard before her probation was modified, and the modification was supported only by inadmissible hearsay evidence. We conclude minor failed to object in the trial court, and thereby failed to preserve these issues for appeal. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the probation reports. On September 23, 2009, 15-year-old minor told her mother she was going to spend the evening at a friend’s house. She did not return until 1:30 a.m. While minor was in the kitchen making a burrito and using a butter knife, she and her mother began to argue. Her mother took the burrito and threw it against the wall in anger, and minor swung at her mother with the hand holding the butter knife. The knife hit her mother above the eye, leaving a small laceration. The mother called for her boyfriend, who held minor while her mother called the police. When the boyfriend released her, minor swung her fists at him, still holding the knife; she caused a small laceration to his face and a bruise to his chest. The mother wrestled with minor and took the butter knife from her. Minor shouted, “Kill me now, ” picked up a steak knife, and went to her room. She told officers she took the steak knife because she wanted to slit her wrists. The investigating officer noticed a small cut on each wrist. Minor admitted she had been drinking earlier. She stated she did not realize she had a knife in her hand when she hit her mother.
On September 24, 2009, a wardship petition was filed against minor alleging two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The People subsequently amended the petition to allege one felony count of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), and to dismiss the second count. Minor admitted the amended charge. Because the probation report indicated minor admitted to using marijuana, ecstasy, alcohol, tobacco, and prescription drugs, the juvenile court had her screened for the substance abuse unit (SAU) at the Juvenile Justice campus; she was rejected. On the recommendation of the probation officer, the court then ordered minor be referred to and complete the behavioral health court program.
After a few months of good behavior and negative drug tests, a March 2010 probation report reflected minor was not completing her school assignments and admitted texting a friend about “shrooms, ” although her drug test was still negative. In April, 2010, mother reported that minor had her nose pierced without permission, refused to remove the nose ring, although it was a violation of school rules, and defied her mother when mother told her not to wear shoes the mother described as looking like “hooker shoes.” Minor stayed out all night for two nights while the mother was away and the boyfriend was supervising her; he found an empty bottle of alcohol on the counter, but minor denied it was hers.
Minor was rescreened for the SAU and accepted. On May 11, 2010, after a hearing, the court modified minor’s probation and committed her to the SAU for 180 days. Minor appeals, challenging that disposition.
DISCUSSION
I. Notice and Opportunity to Be Heard
Minor contends she was deprived of due process under the Fourteenth Amendment to the United States Constitution because “she was not afforded actual notice and a meaningful opportunity to be heard” before the court ordered her to be committed to the SAU. She contends notice was not given in accordance with Welfare and Institutions Code section 777.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 777 provides, in pertinent part:
“An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an order changing or modifying a previous order by directing commitment to the Youth Authority shall be made only after a noticed hearing.
“(a) The notice shall be made as follows: [¶] … [¶]
“(2) By the probation officer or the prosecuting attorney if the minor is a court ward or probationer under Section 602 in the original matter and the notice alleges a violation of a condition of probation not amounting to a crime. The notice shall contain a concise statement of facts sufficient to support this conclusion.”
Minor did not object to or otherwise challenge any lack of notice or opportunity to be heard in the trial court. “‘“‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.’”’” (In re Josue S. (1999) 72 Cal.App.4th 168, 170-171 (Josue).) The error is deemed “waived” or “forfeited.” (In re Stier (2007) 152 Cal.App.4th 63, 74 (Stier).) “‘“[A] constitutional right, ” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590.) The purpose of the forfeiture rule “‘“is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.”’” (Josue, supra, at p. 171.) “‘The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court.’ [Citations.]” (Stier, supra, at p. 75.) “‘“‘[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” [Citation.]’” (Josue, supra, at p. 171.) Had minor raised the issues of notice and an opportunity to be heard in the trial court, the court could have remedied any defect by postponing the hearing to allow minor and her attorney adequate time to prepare and by affording them an adequate opportunity to address the court at the hearing. Minor did not object to any lack of notice of the hearing, nor did she ask for additional time to prepare or present evidence or argument.
An appellate court has discretion to review a claim that has been forfeited by failure to object in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) “The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right.” (Ibid.) We decline to consider the forfeited issues.
While minor asserts she did not have “the actual notice fundamental to constitutional due process, ” her arguments take issue with the lack of compliance with the statutory notice requirements. Minor does not contend she lacked actual notice of the date and time of the hearing, or the nature of the hearing and the issues to be addressed. At the prior review hearing, on April 29, 2010, the juvenile court had before it a probation report reflecting reports that minor had not come home two nights while her mother was away; that an empty alcohol bottle had been found in the home; that minor had refused to remove her “nose piercing” when asked by her mother and her school; and minor had defied her mother by wearing shoes her mother disapproved of and told her not to wear. It reflected that minor admitted to the probation officer the incidents involving not coming home for two days, the nose ring, and the shoes. The probation report also included a progress report by minor’s therapist, opining that minor “continues to resist treatment” and “does not appear to be engaging fully in treatment and denies that she has any issues to work on.” The prosecutor noted minor was wearing her nose ring in court that day.
At the April 29, 2010, hearing the court terminated minor from the behavioral health court program on the ground she “display[ed] a lack of participation or compliance with the program.” The juvenile court stated: “I’m going to schedule you for a modification hearing on May the 11th, 2010. I’m also going to order that you be screened for the SAU program.… We’ll give you paperwork where you need to go in order to do that screening, and then the court will determine on the 11th where we go next.” In response to minor’s question, the court explained that the SAU program is “geared … toward kids who have problems with addiction and controlled substances.” It added that her probation officer or her attorney could provide additional information prior to the next hearing.
Minor does not contend she lacked notice of the time and place of the hearing; she was present at the May 11, 2010, modification hearing with her mother and her attorney. Both parties treat the probation report prepared for the May 11, 2010, hearing as the written notice of that hearing, and minor complains that the report was not sufficiently “concise” to satisfy section 777; she does not identify any adverse effect the more inclusive document might have had on her understanding of the nature or purpose of the hearing. The May 11, 2010, probation report contained substantially the same factual information regarding alleged probation violations as the April 29, 2010, report.
Minor claims she was denied actual notice that a custodial disposition was the likely result of the modification hearing, because she was not advised that the SAU program was a custodial program. The May 11, 2010, probation report, however, recommended that the court find minor had been tried on formal probation in the custody of her mother and had failed to reform, it would be contrary to minor’s welfare to return her to her mother’s custody, and minor’s welfare required that custody be taken from her mother. It recommended minor be temporarily removed from her mother’s custody and committed to the SAU for 180 days. Further, minor does not assert that her attorney lacked knowledge of the nature of the program, or that her attorney and her probation officer both failed to advise her prior to the May 11, 2010, hearing that the program involved a custodial commitment.
Minor also contends she was denied a meaningful opportunity to be heard. The juvenile court held a hearing prior to removing minor from her mother’s custody. It permitted both, minor and her mother, to speak at the May 11, 2010, hearing. Minor denied certain facts contained in the probation report. The mother questioned the court’s decision to remove minor from her custody, and expressed her disagreement with committing minor to the SAU. Minor does not suggest that she had other information to present or argument to make that the court prevented her from presenting.
Under the circumstances of this case, we decline to exercise our discretion to consider the issues raised, which minor failed to preserve by objection in the trial court.
II. Inadmissible Hearsay
Section 777, subdivision (c), provides:
“The facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order. The court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown, 215 Cal.App.3d (1989) and any other relevant provision of law.”
Minor contends the court’s determination that she failed to comply with the conditions of her probation was based solely on inadmissible hearsay evidence, and not on the “reliable hearsay evidence” permitted by this section. Minor has forfeited that claim by failing to object to any such evidence in the trial court. The appellate court is barred from reaching an issue that has not been preserved by the party for review on appeal, when the issue involves the admission or exclusion of evidence. (Evid. Code, §§ 353, 354; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Thus, in the absence of an objection in the trial court, this court cannot review the propriety of the admission of the challenged hearsay evidence.
III. Ineffective Assistance of Counsel
Minor contends her trial counsel’s failure to object to the lack of notice complying with section 777, the lack of an opportunity to be heard at the hearing, and the reliance on inadmissible hearsay as the basis of the court’s order constituted ineffective assistance of counsel, and the deficiencies in counsel’s representation should not preclude minor from raising those issues on appeal.
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has a right to the effective assistance of counsel; that is, he has a right to “‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’” (In re Gay (1998) 19 Cal.4th 771, 790.) This right extends to minors in juvenile delinquency proceedings. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857.) The burden of demonstrating that counsel’s performance was inadequate is on the defendant or juvenile. (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
“‘“In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness … under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.]”’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).)
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (Lucas, supra, 12 Cal.4th at pp. 436-437.) “‘If the record “sheds no light on why counsel acted or failed to act in the manner challenged, ” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’” (Lopez, supra, 42 Cal.4th at p. 966.)
Minor’s trial counsel was not asked for, and did not give, any explanation for her failure to object to the purported lack of notice or opportunity to be heard, or to the admission of hearsay evidence against minor. Minor asserts there could be no satisfactory explanation for these omissions. Counsel may have declined to object to the notice because she had actual notice of the hearing from the court’s statements at the April 29, 2010, hearing and the probation report, understood the issues involved and the possible consequences to minor, and was prepared for the May 11, 2010, hearing. She might not have believed her client was denied an opportunity to be heard because minor and her mother were permitted to speak to the court at the hearing. Much of the hearsay information contained in the probation report that showed minor violated her probation conditions had its source in the mother or her boyfriend. If minor’s attorney had objected to the admission of hearsay evidence contained in the probation report, the prosecutor would likely have called the mother, who was present in court, as a witness against minor. Minor’s counsel may have had valid reasons for wishing to avoid that result. She may have feared the mother would provide additional information, more harmful to minor. Alternatively, counsel may have been attempting to preserve the relationship between minor and her mother, by not requiring the mother to testify adversely to minor in court.
The record sheds no light on why counsel failed to raise these issues in the trial court and this is not a case where “‘“there simply could be no satisfactory explanation.”’” (Lopez, supra, 42 Cal.4th at p. 966.)
DISPOSITION
The order modifying minor’s probation is affirmed.
WE CONCUR: WISEMAN, J., DETJEN, J.