Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. JD2800 Thomas S. Burr, Juvenile Court Commissioner; C. Logan McKechnie, Judge Pro Tem.
Kelly Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
On November 5, 2008, a Welfare and Institutions Code section 602 petition was filed alleging that appellant I.B. and codefendant D.B. committed a second-degree robbery; a street gang enhancement allegation was attached to this offense (the petition). (Pen. Code, §§ 211, 186.22, subd. (b)(1)(A).) After a contested jurisdictional hearing, the court found both of the allegations to be true. Appellant was adjudged to be a ward of the court and ordered to complete the Bear Creek Academy Long Term Program.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant challenges the sufficiency of the evidence supporting the gang enhancement. Also, he argues that his right to conflict-free counsel was infringed. Neither contention is persuasive; we will affirm.
FACTS
I. Prosecution evidence
On November 3, 2008, G.A. was riding his bicycle in Los Banos when he noticed a group of four juvenile males standing on the sidewalk across the street. Three of them were subsequently identified as appellant, D.B., and S.; the fourth male was not identified. The four males crossed the street and stopped G.A. Appellant stood on the left side of the group. S. asked G.A if he “bang[ed], ” which G.A. understood to be a query whether he was in a gang. G.A. replied in the negative. S. and the unidentified male hit G.B., giving him a bloody nose and lip. D.B. took G.A.’s bicycle. The four males left together. G.A. walked to his girlfriend’s house and she called the police.
Los Banos Police Officer A.T. responded to the call. He interviewed G.A., who described appellant and the other three males to him. The officer ascertained that G.A. had been in the area of “the 200, 300 block of West J” Street when he was assaulted and robbed. Police officers are frequently in this location “due to active West Block Norteño gang members in the area.” Based on the descriptions G.A. provided to him, he “was almost a hundred percent sure” that appellant was one of the four males involved in the assault and robbery. The officer had contacted appellant “close to a hundred times at least” and appellant “usually is in [the] area of town where [the] incident occurred.” Victims of other crimes committed in this area intimated to this officer that appellant was one of the perpetrators but the victims were not willing to press charges.
The officer drove to appellant’s house, where he spoke with appellant’s mother. The officer told appellant’s mother about the crime and stated that he needed to talk to appellant.
Later, the officer was dispatched to the residence of G.A.’s girlfriend because appellant and his mother were causing a disturbance; D.B. was sitting in a vehicle parked across the street. After G.A. positively identified appellant and D.B. as two of the perpetrators, they were arrested.
Los Banos Police Detective J.P. gave expert gang testimony. He opined that appellant is a member and active participant in the West Block Nortenos, which is a criminal street gang. Appellant met five of the 10 established criteria for determining gang membership: (1) he self-admitted gang membership; (2) he was observed associating with validated Nortenos in gang territory; (3) he was observed wearing Norteno-related clothing; (4) he was depicted in photographs with validated Nortenos who were making gang-related hand signs; and (5) he was arrested for a gang-related crime with D.B., who is a validated Norteno.
Three photographs were admitted into evidence; they all depicted a group of young males. The gang expert testified that he took the photographs. The people in them are Norteno gang members and some of them were making hand signs signifying their allegiance to the West Block Nortenos. Appellant is in all three of the photographs; he is wearing red articles of clothing in two of them.
The gang expert testified that the West Block Nortenos has approximately 40 members, mostly juveniles between the ages of 12 and 17. The West Block Nortenos are members of the Norteno criminal street gang and the particular territory they belong to is the 100 to 300 blocks of West J Street and certain pockets surrounding this area. The West Block Nortenos is a subset of the larger Norteno gang. Members of the West Block Nortenos gang wear the color red because they are “affiliated with the Nuestra Familia who adopted the color red.” The expert explained:
“In the prison system there’s a prison gang known as the Nuestra Familia. It was enacted in 1968 at Folsom State Prison consist[ing] of Hispanic inmates that formed this gang to protect themselves from other races. And they control the activity of their foot soldiers, the Norteños on the street and the Nuestra Familia, the NF adopted the color red which is why the Norteños also wear red.”
Members of the various Norteno subsets associate with each other but not with Surenos. The expert explained:
“In the prison system there is [a] prison gang called Mexican Mafia and they do not get along with Nuestra Familia and there are two rival Hispanic prison gangs. Those are the head gangs and the Norteños show their allegiance to the Nuestra Familia and the Sureños show their allegiance to the Mexican Mafia. They don’t get along in prison. They don’t get along on the street.”
The gang expert has been a police officer for six years. Police officers frequently have contacts with West Block Nortenos. Their territory on West J Street is “a hot spot for gang activity. We have numerous gang fights and incidents involving gang members and I spend the majority of my time on patrol in that area.” He has spoken to victims of and witnesses to crimes committed by West Block Nortenos; he has read police reports regarding crimes committed by West Block Nortenos.
The West Block Nortenos protect their territory by “posting up, ” which essentially is “walking up and down the street almost as if they’re patrolling the area to make sure other rival gang members don’t come in.” They “stop people going through their territory.” They “approach a citizen, they’ll ask him, what do you bang, where are you from, things of that nature to see if they’re rival gang members.”
R.E. is a validated Norteno who lives in the 200 block of West J Street. In January 2006, R.E. accepted a negotiated plea agreement and pled guilty to one count of carrying a concealed weapon in a vehicle and one count of felony failure to appear. (§§ 12031, subd. (a)(2)(F) &1320.5). When R.E. was arrested in February 2005, he had gang-related tattoos and his girlfriend admitted she was a Nortena. The court took judicial notice of the records of these convictions.
M.L. is a validated Norteno gang member who lives in the 300 block of West J Street. In November 2008, M.L. was convicted of transporting methamphetamine for purposes of sale. (Health & Saf. Code, § 11379). The court took judicial notice of the record of this conviction.
B.J. is a validated Norteno who was found, in a juvenile proceeding, to have committed a burglary. A.O. is a validated Norteno who was found, in a juvenile proceeding, to have committed an assault.
The People filed a written request for judicial notice of court documents establishing that in December 2007 the juvenile court found true the allegation that A.O. committed an assault, and the probation report mentioning his gang ties. The People also asked the court to take notice of court documents establishing that in November 2007 and November 2008 the juvenile court found true the allegation that B.J. committed a burglary and other offenses, and the probation report indicating his gang ties. There is no indication in the record that the court ruled on this request for judicial notice.
In response to a hypothetical based on the facts of this case, the expert opined that the assault and the robbery were committed to benefit the gang. Even if a gang member was standing by and not personally assaulting the victim, his presence “may serve multiple purposes.” When victims are approached by a group of people as opposed to a single perpetrator, the victim is intimidated and less likely to fight back. The people who are standing by may act a as lookouts for law enforcement. Also, they can intervene if a rival gang member attempts to come to the victim’s aid. A stolen bicycle can be used by fellow gang members for transportation or be sold to obtain funds for the gang’s use. The prosecutor asked, “Do they also take things from people just to defend their territory and let people know they can’t come into it?” The gang expert replied, “Yes. They’re attempting to establish fear and intimidate residents.”
II. Defense evidence
I.B.’s mother denied that appellant was in a gang. Appellant owns a bike and has no need to steal one. She has been convicted of giving false information to a police officer.
D.B. denied involvement in the assault or the robbery. He also denied being in a gang.
DISCUSSION
I. The gang enhancement has adequate evidentiary support.
A. The substantial evidence standard of review applies.
When reviewing a challenge to the sufficiency of the evidence, we assess the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “This standard applies to a claim of insufficiency of the evidence to support a gang enhancement.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]” (People v. Vasquez (2009) 178 Cal.App.4th 347, 352.)
In applying the substantial evidence standard of review, the appellate court adopts all reasonable inferences and presumes in support of the judgment the existence of every fact that a jury reasonably could have deduced from the evidence. The trier of fact makes credibility determinations and resolves factual disputes. An appellate court will not substitute its evaluation of a witness’s credibility for that of the fact finder. “It is the jury, not this court, that must be convinced beyond a reasonable doubt that the gang enhancement allegation is true. [Citation.]” (Vasquez, supra, 178 Cal.App.4th at p. 352.)
B. The People satisfied their burden of proof.
Appellant argues there is insufficient evidence proving that the West Block Nortenos is a criminal street gang. We disagree.
Section 186.22, subdivision (b)(1), provides for increased punishment for any person who is convicted of a felony that is “‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
The term “criminal street gang” is defined in subdivision (f) of section 186.22:
“As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
The term “pattern of criminal gang activity” is defined in subdivision (e) of section 186.22:
“As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [33 enumerated crimes], provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
At the outset, we reject appellant’s claim that “it is only those actions attributable to the West Block Norteños, and not Norteños as a whole, that should be considered.” In People v. Williams (2008) 167 Cal.App.4th 983 we explained, “Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization. [Citations.]” (Id. at p. 988.) And in People v. Ortega (2006) 145 Cal.App.4th 1344 the court concluded that the People were not required to prove which subset of the Nortenos committed the charged offenses:
“We reject defendant’s assertion that the prosecution had to prove precisely which subset was involved in the present case. No evidence indicated the goals and activities of a particular subset were not shared by the others. There was sufficient evidence that Norteño was a criminal street gang, that the murder was related to activity of that gang, and defendant actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here.” (People v. Ortega, supra, 145 Cal.App.4th at pp. 1356-1357; see also In re Jose P. (2003) 106 Cal.App.4th 458, 467-468.)
Here, the gang expert gave uncontradicted testimony that the West Block Nortenos are a subset of the Nortenos. The gang expert explained that the West Block Nortenos are merely a set in the Norteno street gang and not a separate gang. Members of the West Block Nortenos wear red to demonstrate their affiliation to the Nortenos. The various Norteno sets associate with each other. They all share a common enemy, the Surenos. The gang expert testified that the West Block Nortenos are members of the Norteno criminal street gang and the particular territory they belong to is the 100 to 300 blocks of West J Street. The gang expert explained that the Nuestra Familia gang was formed in prison and that leaders in the Nuestra Familia direct their street soldiers, who are the Nortenos. The Nortenos are divided into local sets such as the West Block Nortenos. To analogize, the West Block Nortenos are a cell in the Norteno organism, of which the Nuestra Familia is the brain.
Appellant argues this situation is analogous to the one presented in People v. Williams (2008) 167 Cal.App.4th 983, 987 (Williams). We are not convinced. In Williams, we explained, “Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization. [Citations.]” (Id. at p. 987.) However, “something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang.” (Ibid.) We concluded the People had presented inadequate proof that the Small Town Peckerwoods were a faction of the larger Peckerwood organization. We explained that “the term ‘Peckerwood’ has... an ideological or racial connotation in everyday parlance. [Citation.]” (Id. at p. 988.) Also, no more than general testimony about a shot-caller existing within the prison system had been offered by the gang expert.
Williams is factually distinguishable from the situation before us. Here, the word Norteno is uniquely associated with a criminal organization comprised primarily of Hispanic males. Unlike the term Peckerwood, the term Norteno does not have any ideological or racial connotation that is separate from its criminal connotation. Further, the gang expert in this case testified that the West Side Nortenos associate with members of other Norteno subsets and West Side Nortenos wear the color red, which is recognized to be a symbol identifying all Nortenos. Also, the expert gave substantially more detailed testimony about the structure of the Nortenos and their history and origins than was offered by the gang expert in Williams. Unlike Williams, the gang expert in this case gave adequate testimony from which the fact finder could reasonably infer the existence of “some sort of collaborative activities or collective organizational structure.” (Ibid.) Based on the entirety of the record, we conclude there exists substantial evidence from which a reasonable finder of fact could conclude beyond a reasonable doubt that the West Side Nortenos was affiliated with the larger Norteno entity and was not an independent criminal entity that simply happened to have the word Norteno in its name.
In sum, the People presented sufficient evidence from which the fact finder could conclude beyond a reasonable doubt that the West Block Nortenos are a constituent part of the Norteno street gang. Therefore, the criminal activities of the Nortenos as a whole may be considered in determining whether the People proved the primary activities and predicate offense elements of the street gang enhancement.
Having assessed the entirety of the evidence, we conclude there is substantial evidence proving that one of the primary activities of the Nortenos is commission of the offenses enumerated in paragraphs (1) to (25) and (31) to (33) of section 186.22, subdivision (f). The primary activity element is a proper subject of expert opinion (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004-1005), and it can be satisfied by the gang expert’s testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 ; People v. Gardeley, supra, 14 Cal.4th at p. 620.) The primary activities of the gang also may be established by evidence that members of the gang in question consistently and repeatedly committed the enumerated offenses. (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, police officer A.T. testified that crimes are frequently committed in territory controlled by the West Block Nortenos and that victims are intimidated and do not want to press charges. The gang expert testified about offenses committed by four individuals who are validated Norteno gang members. These four males committed the crimes of transporting methamphetamine for purposes of sale, burglary, assault and carrying a concealed weapon in a vehicle. These crimes are all enumerated offenses. (§ 186.22, subd. (e)(1), (4), (11), (32).) Also, the gang expert testified that Los Banos police officers frequently have contacts with West Block Nortenos. Their territory on West J Street is “a hot spot for gang activity. We have numerous gang fights and incidents involving gang members and I spend the majority of my time on patrol in that area.” The gang expert has spoken to victims of and witnesses to crimes committed by West Block Nortenos and read police reports regarding crimes committed by West Block Nortenos. From the entirety of testimony proffered by the police officer and the gang expert, the fact finder reasonably could have concluded that one of the primary activities of the Nortenos was the commission of enumerated offenses. Therefore, this challenge to the sufficiency of the evidence fails.
The People also proved the Nortenos engaged in a pattern of gang activity. The current offense can be used as one of the two offenses necessary to satisfy this element. (People v. Louen (1997) 17 Cal.4th 1, 9-10.) The predicate offense need not be gang related. (People v. Gardeley, supra, 14 Cal.4th at p. 610.) The People are not required to prove that the person or persons who committed the predicate offense were gang members when they committed these crimes. (People v. Augborne (2002) 104 Cal.App.4th 362, 375-375.) In addition to the current offense, the People presented testimonial and documentary evidence proving that R.E and M.L. are validated Nortenos who live in the area claimed by West Block Nortenos as their territory. R.E. was convicted in 2006 of carrying a concealed firearm in a vehicle. M.L. was convicted in 2008 of transporting methamphetamine for purposes of sale. This evidence satisfied the pattern of gang activity element. Therefore, it is immaterial that the People failed to ensure evidence was admitted proving the specific dates on which the two juvenile Nortenos, B.J. and A.O., committed these offenses.
Having carefully assessed the entire record, we conclude there is substantial evidence proving the contested elements of the street gang enhancement. Therefore, we uphold the true finding on this special allegation.
II. Appellant was not prejudiced by the asserted conflict of interest.
A. Facts
The petition was filed on November 5, 2008. Appellant was being detained.
Henceforth, unless otherwise specified all dates refer to 2008.
On November 6, a detention hearing was held. The public defender’s office was appointed to represent appellant.
On November 13, the public defender’s office declared a conflict. The case was referred to Merced Defense Associates. Attorneys Angela Mayfield and Eric Chaudron are both affiliated with Merced Defense Associates.
On November 14, Mayfield made a special appearance on behalf of Merced Defense Associates accepting appointment. The following colloquy occurred:
“THE COURT: … Are you going to be [appellant]’s attorney?
“MS. MAYFIELD: I’m not sure. We just received his paperwork this morning and we took it over to the firm.
“THE COURT: So no one has been designated yet?
“MS. MAYFIELD: But I know it will be myself or Eric [Chaudron] or Mr. Pfeiff.
“THE COURT: Okay. [I.B.] was referred to Merced Defense Associates to designate an attorney. None has yet been designated. Ms. Mayfield is making a special appearance for that as yet undesignated attorney.”
After the court ascertained that neither Mayfield nor the prosecutor had any specific information about this case, it ordered appellant to remain in detention. The court scheduled the pretrial and jurisdictional hearings. In response to the court’s statement that it was going to set the jurisdictional hearing for November 26, Mayfield said, “I won’t [be] here that day but it may not be my case. You can leave that date.” The court commented that appellant “should have had an attorney by now.” Mayfield explained, “… we just received the case this morning.” The court set the pretrial hearing on November 19 and the jurisdictional hearing on November 26.
Mayfield appeared for appellant on November 19. At the outset of the proceeding, the following colloquy occurred:
“THE COURT: … [I.B.] was arraigned on a petition that was filed November 5, 2008. Ms. Mayfield made a special appearance for the as yet undesignated conflict attorney. Are you that?
“MS. MAYFIELD: It was assigned to me.
“THE COURT: The Court will appoint Ms. Angela Mayfield to represent [I.B.]”
After ascertaining the case had not been resolved, the court continued the pretrial hearing to December 3. The minutes of the November 19 hearing reflect that Mayfield was appointed to represent appellant.
At the December 3 pretrial hearing, Chaudron represented appellant and Mayfield represented D.B. Neither the court nor the parties commented on the change in appellant’s counsel from Mayfield to Chaudron. The minutes of this proceeding reflect that Chaudron was appointed to represent appellant. The parties agreed to set the jurisdictional hearing for December 12.
The joint jurisdictional hearing began on December 12; it was presided over by the Honorable Thomas S. Burr. Chaudron represented appellant and Mayfield represented D.B. The People were represented by Kimberly Madayag.
On December 15, the court found both of the allegations in the petition to be true. When selecting a date for the dispositional hearing, Madayag said she would like to be present “to make it clear that I’m not recommending that they be sent to the Department of Juvenile Justice.” The court agreed with the prosecutor, saying: “… I feel very strong, extremely strongly that they should not be committed to the DJJ.” The court stated that it would not be presiding over the dispositional hearing. Therefore, “it would be a good thing if” Madayag was present at the dispositional hearing. The dispositional hearing was set for January 2, 2009; Madayag and Chaudron both stated they were available on this day.
On December 23, appellant “was found suitable and approved for the Bear Creek Academy Long Term Program.”
The probation report was filed on December 29. It reflected that appellant was represented by Chaudron. The report stated the current offense was appellant’s first appearance before the court and his third referral to the probation department. His prior referrals were for resisting an officer and disturbing the peace by fighting. Appellant admitted that he was affiliated with the Nortenos. Appellant’s mother had an outstanding misdemeanor bench warrant; the underlying offense was failing to send a child to school. Appellant’s father was incarcerated. Before his arrest, appellant attended Valley Community School. He had been enrolled for 56 days and had 30 unexcused absences and 10 discipline referrals. His grade point average was 1.79.
When analyzing the appropriate disposition, the probation officer wrote: “It is obvious … the minor has no regard for the life and well being of others as he is willing to commit a violent offense to prove himself to the Norteno criminal street gang.” Further, “if the minor is released without first receiving the appropriate counseling, he will pose a great threat to the community.” Therefore, the probation officer recommended appellant be adjudged a ward of the court and ordered to complete the Bear Creek Academy Long Term Program.
The dispositional hearing was held on January 2, 2009; it was presided over by the Honorable C. Logan McKechnie, Judge Pro Tem. At the outset of the proceeding, the court stated, “[I.B.] is present before the Court, Ms. Mayfield appearing for his attorney Mr. Chaudron.” The People were represented by Kristy Imel.
The court asked Mayfield for her comments. She stated: “I just briefly went over the [probation] report with [I.B.]. I am making a special appearance for Mr. Chaudron. [I.B.] understands the long term. We actually discussed it before today what the long-term Bear Creek Academy program is so I’ll just submit it on the report.”
Imel and the probation officer submitted without comment.
Appellant was adjudged to be a ward of court for placement in the home of his mother and ordered to successfully complete the Bear Creek Academy Long Term Program. He was confined to the Juvenile Justice Correctional Complex for 61 days, with 61 days’ credit for time served, and ordered to pay restitution.
B. The asserted conflict of interest was nonprejudicial.
Appellant argues Mayfield had a conflict of interest because she represented appellant and D.B. at various times during the proceedings. On November 19, Mayfield was appointed to represent appellant. Although Chaudron was never formally substituted as appellant’s counsel, he represented appellant at the jurisdictional hearing and Mayfield represented codefendant, D.B., at that hearing. Then Mayfield made a “special appearance” representing appellant at the dispositional hearing. Appellant contends that he was prejudiced by Mayfield’s representation at the dispositional hearing. He argues, “Rather than continue the dispositional hearing, so that I.B. could have his counsel, Ms. Mayfield stood in, and simply submitted on the recommendation. [Citation.] Consequently, the court, presided over by a different judge than the one that heard the jurisdictional hearing, sentenced I.B. to the long-term Bear Creek Academy. [Citation.]” This argument lacks merit.
In People v. Doolin (2009) 45 Cal.4th 390 (Doolin), our Supreme Court determined that conflict of interest claims under the California Constitution are to be analyzed under the standard for federal conflict of interest claims enunciated by the United States Supreme Court in Mickens v. Taylor (2002) 535 U.S. 162 (Mickens). (Doolin, supra, 45 Cal.4th at p. 421.)
“In [Mickens], the high court confirmed that claims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that, under Strickland, supra, 466 U.S. at page 694, generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceeding would have been different. [Citation.] In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest ‘that affected counsel’s performance -- as opposed to a mere theoretical division of loyalties.’ [Citations.]” (Doolin, supra, 45 Cal.4th at p. 417.)
Appellant faults Mayfield for submitting the matter for disposition on the probation report. However, appellant does not cite any factual inaccuracies in the probation report or suggest any alternative placement that would have been more appropriate in light of the circumstances of the offense and the offender. He fails to provide any legitimate argument supporting a disposition less severe than treatment in the Long Term Program Bear Creek Academy.
At the end of the jurisdictional hearing, the court stated that it did not think appellant should be committed to the Department of Juvenile Justice (DJJ). The prosecutor agreed with this recommendation. The probation report did not recommend a DJJ commitment. There is no indication in the record that the judge who presided over the jurisdictional hearing would not have followed the probation officer’s recommendation that appellant complete the Long Term Program Bear Creek Academy if he had conducted the dispositional hearing.
It is abundantly clear that appellant needs structure and guidance. Prior to his arrest, he was attending Valley Community School. He had 30 unexcused absences and 10 discipline referrals in the 56 days he was enrolled; his grade point average was a dismal 1.79. His mother had an outstanding bench warrant with the underlying offense of failing to send a child to school. His father was incarcerated. Appellant had two referrals to the probation depart prior to the current offense. Obviously appellant was in dire need of the structure, discipline and counseling provided by the Bear Creek Academy Long Term Program. Appellant does not suggest any alternative placements that would have met his needs.
Accordingly, we conclude appellant failed to demonstrate a reasonable probability of a different placement if Chaudron had represented him at the dispositional hearing. He was not prejudiced by the asserted conflict of interest.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, J., Dawson, J.