Opinion
NOT TO BE PUBLISHED
Received for filing 4/27/10
APPEAL from a judgment of the Superior Court of Fresno County No. 07CEJ601449-IV. David C. Kalemkarian, Judge.
Michael E. Mitchell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
The court committed appellant, A.D., to the Division of Juvenile Justice (DJJ) after it found true allegations in a supplemental petition (Welf. & Inst. Code, § 777) charging him with possession of live ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)), possession of live ammunition by a person prohibited from possessing a firearm (Pen. Code, § 12316, subd. (b)(1)), and possession of less than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (b)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, appellant contends: 1) the evidence is insufficient to sustain the court’s finding that he possessed marijuana; the court’s consideration of certain information in his probation report violated his right to confront and cross-examine witnesses; and 3) the court abused its discretion when it committed him to the DJJ. We will affirm.
FACTS
On September 10, 2007, appellant and some friends confronted other males in a park in Fresno. During an ensuing fight, appellant slammed one victim’s head on the sidewalk and punched two others in the face while wearing metal knuckles. One victim required staples to close a wound in his head, another required stitches to his lip and the third victim suffered a broken orbit in one eye.
On September 12, 2007, appellant admitted one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and possession of brass knuckles (Pen. Code, § 12020, subd. (a)).
On October 5, 2007, the court committed appellant to the Elkhorn Correctional Facility Boot Camp Program where he served 154 days in that program and 45 days in the Forward Academy Bound Aftercare Program.
On April 7, 2008, appellant was arrested for violating his probation after he was found associating with known gang members. On April 11, 2008, he was remanded to the boot camp program for three days.
On August 7, 2008, officers responded to a report of shots being fired in the vicinity of appellant’s residence. A witness told the officers that appellant became embroiled in an argument with a neighbor, retrieved a shotgun from his residence, and fired it in the direction of the people he was arguing with. Appellant was not charged with discharging the weapon because the reporting witness disappeared and the officers were unable to locate a weapon. However, appellant’s probation was violated because he was found to be in possession of gang paraphernalia.
On September 26, 2008, appellant was remanded to the boot camp program for three days.
On February 18, 2009, appellant was arrested after officers conducted a probation search and found live ammunition in his bedroom. During a post-arrest search an officer found a small amount of marijuana on appellant.
On March 2, 2009, appellant provided a urine sample that tested positive for marijuana.
On March 5, 2009, the probation department filed the instant supplemental petition.
On April 1, 2009, during a hearing on the petition, Fresno Police Officer Justin Bell testified that on February 18, 2009, he went to appellant’s residence to conduct a probation search and contacted his sister, Estrella D. Estrella called out for appellant and he soon emerged from a back bedroom. Officer Bell and the other officers searched appellant’s room and found a sandwich bag containing 12 live.22 caliber bullets on top of a television stand. Officer Bell arrested appellant and walked him to the patrol car. He asked appellant if he had anything illegal on him and appellant replied that he did not. Officer Bell searched appellant and found a small amount of leafy substance that he believed was marijuana.
Officer Bell did not perform any presumptive tests on the leafy substance he took from appellant because as a matter of policy, no presumptive testing is performed on suspected marijuana and no other tests were performed on the substance to determine its nature. However, he was familiar with the smell, texture, and leaf shape of marijuana because in one police academy class he was shown marijuana and allowed to smell it. In addition, during the four years he had been an officer he made numerous narcotics arrests. Officer Bell recognized the material taken from appellant as marijuana from its smell and the shape of its leaves. Additionally, appellant told him that he “paid $10 for weed.”
At the conclusion of the hearing, the court found appellant violated his probation by possessing ammunition and a small amount of marijuana.
Appellant’s probation report indicates that appellant was approximately 17 years and 6 months old when he was arrested in February 2009 for violating his probation. In a probation department interview, appellant denied he was gang member but admitted affiliating with members of the Norteño 14 gang. He also admitted drinking a 40 ounce beer twice a month, using marijuana twice a week, and that he last used marijuana in March 2009.
The probation report noted that appellant’s original offense involved great violence, great bodily injury to at least two victims, and that appellant personally used a weapon in committing that offense. It concluded that appellant’s possession of ammunition indicated that he posed “a lethal risk to the community” and recommended a maximum term of confinement of four years.
The report also noted that the DJJ intake officer had informed the probation department that appellant would be classified as a category 4 offender and would be eligible for parole in two years. He would also be able to attend an accredited high school, receive vocational training and substance abuse treatment, and participate in programs that addressed victim awareness, gang awareness, decision making, and anger management. The authoring probation officer considered other local programs but concluded they were insufficient to hold appellant accountable for his continued delinquent behavior.
On May 4, 2009, the court committed appellant to the DJJ for a maximum term of confinement of four years.
DISCUSSION
The Sufficiency of Evidence Issue
Appellant contends Officer Bell lacked sufficient experience and training for the court to rely on his opinion to find that the leafy material recovered from appellant was marijuana. We disagree.
When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it contains substantial evidence - i.e., evidence that is credible and of solid value - from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The burden of proof at a probation violation hearing and at a hearing pursuant to section 777 to modify a minor’s commitment, is proof by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447; § 777, subd. (c).) Further, the qualifications of an expert witness are for the trial court and any question as to the degree of his knowledge goes to the weight of his testimony rather than to its admissibility. (People v. Chrisman (1967) 256 Cal.App.2d 425, 433.)
Here, Officer Bell testified that in one class at the police academy he had the opportunity to see and smell marijuana. Additionally, during the four years he had been an officer, he made numerous arrests for narcotics and recognized the smell and texture of marijuana and the shape of its leaves. Further, Officer Bell examined the leafy material he took from appellant, touched it, and concluded from its smell and the shape of its leaves that it was marijuana. His conclusion was corroborated by appellant’s statement to him that he had bought “weed” for $10 and by appellant’s false statement to Officer Bell that he did not have anything illegal on him.
Although the officer was not asked specifically whether any of the arrests involved marijuana, it can be inferred from the context of the question and his answer that he was referring to arrests involving marijuana as well as other narcotics.
Appellant relies on In re Waylon M. (1982) 129 Cal.App.3d 950 (Waylon M.) and People v. Oliver (1944) 66 Cal.App.2d 431 (Oliver), to contend that Officer Bell’s testimony was insufficient to sustain the court’s finding that he possessed marijuana. In Waylon M., the only evidence that a substance found on the defendant was hashish was the defendant’s statement that the substance was hashish he had bought earlier that day and an officer’s testimony that the substance looked like hashish. In holding that this was insufficient to establish that the substance was hashish, the court stated, “The identification of narcotics as such requires the opinion of an expert. [Citation.] Identification by the user is permitted only where there is evidence showing the user knows the nature of the drugs due to his past use and testimony as to the reactions he experiences while under the influence. [Citations.]” (Waylon M., supra, 129 Cal.App.3d at p. 952.)
In Oliver, the court relied on an officer’s background in chemistry and his microscopic examination of a substance to reject the defendant’s claim that the officer was not qualified as an expert to testify whether the substance was marijuana. (Oliver, supra, 44 Cal.App.2d at p. 435.)
Neither of these cases is controlling because they involved criminal proceedings where the standard of proof was beyond a reasonable doubt in contrast to the preponderance of the evidence standard that is utilized for probation violation and Welfare and Institutions Code section 777 hearings. Waylon M. is also distinguishable because unlike the officer there, Officer Bell provided foundational testimony establishing the basis for his ability to identify marijuana. Further, his opinion that the leafy material taken from appellant was marijuana was corroborated by the circumstances noted earlier.
In Oliver, the court cited the officer’s background as a chemist and his forensic examination of a marijuana cigarette in finding that the officer’s education and experience qualified the officer to testify as a marijuana expert. (Oliver, supra, 66 Cal.App.2d at p. 435.) It did not, however, purport to hold that the nature of a controlled substance must always be proven through some testing of the substance and, in fact, there is no such requirement. (People v. Chrisman (1967) 256 Cal.App.2d 425, 431-432 [corpus delecti of drug offense may be proved by circumstantial evidence].) Accordingly, we conclude that Officer Bell’s testimony, appellant’s admission, and his false statement were sufficient to sustain the court’s finding that the leafy substance recovered from appellant was marijuana.
The Court’s Consideration of Hearsay Evidence
Appellant’s probation report stated that the urine sample appellant provided on March 2, 2009, tested positive for marijuana. Appellant contends this statement was hearsay and that the court violated his right to confrontation when it considered this information in committing him to the DJJ. Appellant further contends that he was denied the effective assistance of counsel by his defense counsel’s failure to object to the court considering this hearsay information. We will reject these contentions.
“Penal Code [section] 1203 provides that: ‘The probation officer must … make an investigation of the circumstances surrounding the crime and of the prior record and history of the defendant, must make a written report to the court of the facts found upon such investigation, and must accompany said report with his written recommendations, including his recommendations as to the granting or withholding of probation to the defendant and as to the conditions of probation if it shall be granted.’ A probation officer could not make an investigation and report of the nature required by Penal Code, section 1203, if restricted to the rules of evidence. Much of the prior record and history of a defendant, as well as the circumstances surrounding the crime, are hearsay and can be investigated and reported upon only by the use of hearsay information. It is clear that Penal Code, section 1203, contemplates the inclusion of hearsay matter in the probation officer’s report. Had defendant thought the report insufficient or inadequate, he could have presented witnesses to counteract or correct any portion of the report. A defendant has the right to present evidence in mitigation of his punishment or to assist the court in the determination of defendant’s application for probation [citations].” (People v. Valdivia (1960) 182 Cal.App.2nd 145, 148.) Moreover, a sentencing court is authorized to consider a much broader range of material than that allowed at trial on the issue of guilt or innocence even if the evidence is not subject to cross examination. (People v. Lamb (1999) 76 Cal.App.4th 664, 683.)
Applying these principles to the instant case, we conclude the court properly considered the hearsay statement in appellant’s probation report that appellant tested positive for marijuana.
Furthermore, “[t]o establish ineffective assistance [of counsel], a defendant must show counsel’s conduct was both deficient and resulted in prejudice. [Citations.]” (People v. Neely (2009) 176 Cal.App.4th 787, 795-796.) Appellant has not shown that defense counsel could have introduced any evidence to contradict the probation report’s statement that he tested positive for marijuana. Consequently, appellant has failed to show that his representation by defense counsel was deficient.
Appellant’s positive test for marijuana merely showed that he used marijuana around the time of the test. The court could reasonably have inferred this fact from his possession of a small amount of marijuana when he was arrested and from his admission in his probation report that he used marijuana twice a week, with his last use occurring in March 2009. Thus, appellant has also failed to show how he was prejudiced by the inclusion of his positive test for marijuana in his probation report. We reject appellant’s ineffective assistance of counsel claim.
Appellant’s Commitment to DJJ
Appellant contends the court abused its discretion when it committed him to DJJ because it relied on improper evidence, the commitment was not in his best interest, and there were less restrictive alternatives the court did not seriously consider. We disagree.
“The decision of the juvenile court to commit a juvenile offender to CYA may be reversed on appeal only by a showing that the court abused its discretion. [Citation.] ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]
“As the court explained in [In re Michael D. (1987) 188 Cal.App.3d 1392, 1395, ] ‘[a]n appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citation.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.’
“The statutory declaration of the purposes of the juvenile court law is set forth in section 202. [Citation.] Before the 1984 amendment to section 202, California courts consistently held that ‘“[j]uvenile commitment proceedings are designed for the purposes of rehabilitation and treatment, not punishment”’ [Citations.] California courts treated a commitment to CYA as ‘the placement of last resort’ for juvenile offenders. [Citation.]
“However, ‘[i]n 1984, the Legislature replaced the provisions of section 202 with new language which emphasized different priorities for the juvenile system.’ [Citations.] Section 202, subdivision (b) (hereafter section 202(b)) now recognizes punishment as a rehabilitative tool. [Citation.] That subdivision provides in part: ‘Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public. Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.’ (§ 202(b), italics added.)
“‘Section 202 also shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express “protection and safety of the public” [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.]’ [Citation.] ‘Thus, it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.’ [Citation.] It is also clear, as the Court of Appeal recognized in In re Asean D. (1993) 14 Cal.App.4th 467, 473, … that a commitment to CYA ‘may be made in the first instance, without previous resort to less restrictive placements.’” (In re Carl N. (2008) 160 Cal.App.4th 423, 431-433.)
Appellant was originally adjudicated for assault with a deadly weapon and possession of metal knuckles as a result of a vicious attack by appellant on three victims during which he slammed one victim’s head on the sidewalk and punched two other victims in the face with metal knuckles. The attack resulted in two victims suffering lacerations requiring stitches or metal staples to close their wounds and the third victim suffering a broken eye orbital.
Notwithstanding that he received a commitment to the local boot camp program and served 153 days, on April 7, 2008, appellant violated his probation by associating with known gang members. On August 23, 2008, appellant got into an argument with some people near his residence and retrieved a shotgun, which he fired in their direction. Officers did not charge appellant with any weapons charge that day because the reporting witness left the scene and they did not find the firearm. However, they arrested appellant for violating his probation by possessing gang paraphernalia. Thereafter, on February 18, 2009, appellant was arrested in the instant matter for possessing ammunition and less than an ounce of marijuana.
The court could reasonably find from the above circumstances and appellant’s violation of the court’s orders that appellant posed a serious danger to the community and himself and that he needed to be placed in a secure setting. It could also reasonably find that appellant would benefit from the discipline and structure inherent in a DJJ commitment as well as the vocational, educational, counseling and other programs available there.
Additionally, the court could conclude from appellant’s gang affiliation, his violent conduct, his failure to reform, and his flouting of the court’s authority, that less restrictive placements would be inappropriate because appellant would pose a danger to minors in those placements and these placements were unlikely to help rehabilitate him. Moreover, the court’s commitment of appellant was consistent with the purposes of the Juvenile Court Law, which now recognizes the rehabilitative effect of punishment, and its emphasis on holding a juvenile accountable for his or her actions. Thus, the record also supports the juvenile court’s implicit conclusion that less restrictive commitments would be inappropriate or ineffective in rehabilitating appellant.
Appellant misplaces his reliance on In re Carl N. (2008) 160 Cal.App.4th 423 (Carl N.), to contend the court abused its discretion when it committed him to the DJJ because his conduct was not as egregious as the conduct of the juvenile who was committed to the DJJ in that case. In Carl N., from November 2001 through the date of his commitment to the DJJ on December 6, 2006, the juvenile in that case committed a series of offenses and probation violations involving mostly vandalism and, on one occasion, assault and battery, that resulted in the filing of five petitions against the minor. The assault and battery offenses occurred in August 2005. While committed to a camp program, the juvenile in Carl N. got into an unprovoked fight with another ward during which he punched the ward in the head and kicked him after the ward fell to the ground. This incident resulted in the filing of a fourth petition and the juvenile’s admission of an assault charge. None of the juvenile’s placements were effective in curbing his anti-social behavior, and ultimately he was committed to the DJJ. (Carl N., supra, 160 Cal.App.4th at pp. 426-430.)
Carl N. is not controlling because a DJJ commitment must be based on the individual consideration of the juvenile before the court. In any event, Carl N. is distinguishable because the record here shows that appellant posed a greater danger to the community than did the juvenile in Carl N. Although, both appellant and the Carl N. juvenile were gang affiliated, appellant’s assault offense was far more serious that the assault and battery offense committed by the Carl N. juvenile because appellant used a deadly weapon, assaulted multiple victims, and inflicted great bodily injury on at least two of them. Moreover, appellant committed his most vicious and violent offenses first, which limited his placement options because of the danger he posed to other wards. We conclude the court did not abuse its discretion when it committed appellant to the DJJ.
DISPOSITION
The judgment is affirmed.