Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV25221
McAdams, J.
Appellant E.M. (E.) challenges the juvenile court’s order in a Welfare and Institutions Code section 777 proceeding that the minor be committed to the California Department of Correction and Rehabilitation (CDCR). In 2002, the juvenile court sustained a section 602 petition, after the minor admitted two counts of lewd and lascivious conduct with a child under the age of 14 and one count of attempting to dissuade a witness. In 2005, the court sustained the allegations of a section 777 petition after the minor admitted he had violated the terms of his probation by having inappropriate sexual contact with three boys. In a contested proceeding in 2006, the court sustained the allegations of a second section 777 petition, which alleged that E. had violated probation when he propositioned and exposed himself to other wards in a group home where he had been placed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The minor contends his counsel was ineffective at the jurisdictional hearing in 2006 when she failed to object to unreliable hearsay testimony and failed to move to suppress an essay E. wrote relating to one of the incidents at the group home. He asserts the court violated his constitutional and statutory rights to be present at a hearing before the court and that his counsel was ineffective when she waived his presence at that hearing. We find no prejudicial error and affirm the court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
I. Original Offenses
E. lived with his mother in Loveland, Colorado. During the summer of 2002, while visiting his father in San Jose, California, the minor, who was 13 years old, had inappropriate sexual contact with a six-year-old girl and a 10-year-old boy. The victims were the children of E.’s father’s live-in girlfriend. According to a probation officer’s report, E. admitted touching the girl’s vagina 14 to 16 times, orally copulating her five to seven times, and engaging in one act of intercourse with her. E. also admitted touching the boy’s penis seven or eight times and orally copulating him four or five times.
II. Allegations of 602 Petition
In August 2002, the district attorney filed a section 602 petition alleging that E. had committed two counts of lewd or lascivious conduct against a child under the age of 14 (Pen. Code, § 288, subd. (a), one count against each victim); one count of rape by force, violence, duress, menace or fear (Pen. Code, § 261, subd. (a)(2)) against the six-year old girl; two counts of oral copulation by force, violence, duress, menace or fear (Pen. Code, § 288a, subd. (c)(2), one count against each victim), and one count of dissuading or attempting to dissuade a witness, the 10-year old boy (Pen. Code, § 136.1, subd. (b)(1)). E. admitted the two lewd and lascivious conduct charges and the dissuading a witness charge.
The court ordered a psychological evaluation. The psychologist, Dr. Brian Abbott, concluded that E. had a sexual interest in young children and “signs of obsessive sexual interest in female children.” Dr. Abbott concluded that “E. presents a high degree of risk for sexual reoffending, especially if he lives in a home with young females,” which included the homes of his mother and father. He recommended E. be placed with a relative as long as there are no young children in the home and the relative can be trusted to prevent E. from having access to young girls. Dr. Abbott also recommended outpatient sexual-offense-specific treatment.
E. had a nine-year-old sister.
III. Original Disposition and Relevant Conditions of Probation
In October 2002, after being detained in juvenile hall, E. was declared a ward of the court and placed on probation on a commitment that carried a maximum term of confinement of 10 years and eight months. As a condition of his probation, he was ordered to complete a 120-day program at the Harold Holden Boys Ranch, which included sexual offender counseling. E. made positive progress in the ranch program. In February 2003, E. returned to Colorado to live with his maternal grandmother. He received 12 weekly group counseling sessions in Colorado.
In July 2003, E. became the subject of a police investigation in Loveland, Colorado. It was alleged that he played a game with four boys on the playground at his mother’s apartment complex in which he dared the boys to show him their penises. The boys, who were four and five years old, complied; no physical contact was reported. E. was granted a deferred prosecution. The case did not proceed because the victims, who were not residents of Loveland, could not be located.
IV. Violations of Probation and First Section 777 Petition
In November 2004, E. violated his probation by having contact with two minors in Loveland. One of E.’s neighbors saw him with two nine-year old boys sitting on his lap. The boys reported that E. touched their private parts and asked them to touch him in the same way. One of the boys alleged that he felt E.’s erect penis against his back after E. tackled him. A third boy, age seven, came forward and accused E. of similar conduct.
E. was charged in a section 777 proceeding with violating the conditions of his probation that required: (1) that he not to be within “arm’s reach of any minor 12 years of age or under in any non-public place unless he was under competent adult supervision, and was within the sight or hearing range of that adult”; (2) that he not “have contact (even accidental)” with children from whom he is restricted; (3) that he immediately remove himself from any such situation “in a safe and responsible manner,” and (3) that he notify his Probation Officer and therapist within 48 hours of the alleged contact.
In January 2005, E. admitted the violations of probation. The court ordered a further mental health evaluation with Dr. Abbott. Dr. Abbott concluded that E.’s interest in prepubescent females had receded and that he had “developed a sexual interest toward prepubescent males.” He concluded E. presented a high potential to engage in further sexual behavior toward young children and recommended the court place E. in a residential treatment program for adolescent sexual offenders for two years. Dr. Abbott stated, “Should the minor fail[] in residential treatment or reoffend sexually, the examiner would recommend that the Court commit him to the California Youth Authority.” After E.’s father objected to the report, the court ordered a second psychological evaluation. The second psychologist concurred with Dr. Abbott’s recommendations.
In May 2005, the court continued E. as a ward of the court and ordered him to participate in a residential rehabilitation program. He was placed at Trinity Youth Services (Trinity) in Sacramento, California. As a condition of his probation, he was ordered to “obey all rules and regulations of the facility….”
V. Progress at Group Home
In March 2006, Trinity reported that E. had not been doing his work in the sexual offender treatment program and remained on “Orientation” status after nine months in the program. The clinical coordinator opined that his progress was superficial and that he may “not be able to graduate [from] the program with a low risk to reoffend.” E. seemed reluctant to “process” his offense pattern in therapy. He isolated himself from his peers and behaved inappropriately with them.
On June 9, 2006, Trinity reported that although E. had been with Trinity for a year, he was “still acting out sexually by discussing sex with peers and grooming them. E. masks his predatory attitude with courteous, respectful behavior.” The program coordinator was concerned that E. been demoted to the orientation phase of the program and had only 11 months to complete all four phases of the program, which usually takes 18 to 24 months. The coordinator reported: “Considering that E. still will not talk about his family in therapy and has difficulty staying focused …, it is highly unlikely he will graduate from [the sexual offender therapy program]. E. has tried to complete everything in the program except his accountability as a sexual predator. He appears to have no concept of the suffering of his many victims. E. is good at approaching his difficulties mentally, yet his emotions appear closed off to him and to others. At this point, E. is a program failure. He remains at high risk to reoffend.”
VI. Violations of Probation and Second Section 777 Petition
On June 26, 2006, the probation department filed a second section 777 petition alleging that E. had violated his probation by sexually propositioning and exposing himself to other wards at Trinity in violation of program rules and regulations. E. was removed from Trinity on June 23, 2006. E. denied the allegations of the petition.
The court ordered a further evaluation by Dr. Abbott. In July 2006, Dr. Abbott concluded that E. suffers from Pedophilia. He also reported what E. had to say about his sexual behavior at Trinity.
VII. Jurisdictional Hearing
In December 2006, the court held a jurisdictional hearing regarding the allegations of the second section 777 petition. The only witness was Dixie McCabe, the program coordinator at Trinity. She testified that, upon his arrival at Trinity, E. was advised of the program’s rules regarding interactions with the other residents, which included no sexual activity, no acting out sexually, and no “horseplay.” Residents are expected to deal with one another at arm’s length. The residents are told these rules when they arrive and repeat the rules in an oath at their weekly group sexual offender therapy sessions.
McCabe testified regarding three incidents that led to E.’s termination from Trinity. Each incident involved a different male resident. In the first incident, E. asked a resident whether he had pubic hair. In the second incident, he asked a resident whether he was circumcised and a virgin and touched the other boy’s genitals in the pool. In the third incident, E. and another resident discussed the sizes of their penises and E. exposed himself to the resident. Each of these incidents violated program rules and regulations.
After each incident, McCabe spoke with E., the other residents involved, and the program counselors regarding the incidents. In each case, E. admitted he had engaged in the conduct set forth above and acknowledged that he was breaking the rules. He admitted “setting up the situation” with the boy in the pool. After each incident, E. was required to discuss the incident in his sexual offender group meeting, write an essay about how he should have handled the situation, stay out of trouble for 24 hours, and do extra chores. He was also dropped down in status, which affected his freedom and privileges. After the second incident, E. was given a “Resident Termination Intervention,” also known as a “30 Day Contract,” in which restrictions were placed on his behavior. He was told to stop acting out sexually, stop grooming his peers, and to participate in his therapy. He was also told that another incident of a sexual nature would result in his termination from the program. McCabe testified that E. also violated program rules when he developed a relationship with a girl at school.
The court found that the allegations of the section 777 petition were true and set the matter for a dispositional hearing.
VII. Dispositional Hearing
E. graduated from high school in a ceremony at juvenile hall on January 24, 2007. Judge Kenneth Barnum, who had presided over the contested jurisdictional hearing, attended the graduation ceremony at defense counsel’s invitation. When he realized the case was still before him for disposition, Judge Barnum recused himself. Another judge conducted the dispositional hearing and committed E. to the CDCR for five years.
DISCUSSION
I. Ineffective Assistance of Counsel
E. claims his counsel was ineffective at the jurisdictional hearing when she failed to object to unreliable and inadmissible hearsay testimony by McCabe and failed to move to suppress an essay E. wrote after the second incident at Trinity.
A. General Rules Governing Claims of Ineffective Assistance of Counsel
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624 (Hart).) Case law recognizes that “counsel’s omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client.” (People v. Lucas (1995) 12 Cal.4th 415, 443.) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (Hart, at p. 624.)
B. Failure to Object to McCabe’s Testimony
The minor argues that his counsel should have objected to McCabe’s testimony because she “merely relied” on documentary hearsay evidence in Trinity’s records, “which in turn merely reflect the hearsay statements made by the children with whom E. interacted.” Citing Evidence Code section 1271, the minor acknowledges that evidence of a business record is admissible if, among other things, the “ ‘sources of information and method and time of preparation were such as to indicate its trustworthiness.’ ” However, he asserts the source of the information, “other children in the sex offender rehabilitation program for minors,” was not trustworthy. He also argues the evidence was unreliable because McCabe did not testify regarding the circumstances under which the information was collected from the children. The minor also contends that “because Ms. McCabe testified in lieu of the children, [he] had no opportunity to cross-examine the children, and the court had no opportunity to observe the demeanor of the children, who were E.’s true adverse witnesses” and that “no justification was offered for the children’s absence.”
Section 777 permits a court to modify its disposition and order a more restrictive placement for a minor who, while already on juvenile probation for a criminal offense adjudicated under section 602, violates that probation by committing new misconduct. (In re Eddie M. (2003) 31 Cal.4th 480, 485, 489 (Eddie M.).) Section 777 proceedings are subject to a preponderance of the evidence standard of proof. (Id. at pp. 488, 506; § 777, subd. (c).)
“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.” (§ 777, subd. (c).) In People v. Brown, the court stated: “As long as hearsay testimony bears a substantial degree of trust-worthiness it may legitimately be used at a probation revocation proceeding. [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient ‘indicia of reliability.’ [Citation.] Such a determination rests within the discretion of the trial court….” (People v. Brown, at pp. 454-455.)
With regard to the question whether counsel was ineffective for failing to object to hearsay evidence at the section 777 hearing, “[g]enerally, failure to make objections is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] … ‘It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively. … Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’ ” (People v. Lanphear (1980) 26 Cal.3d 814, 828-829, disapproved on another point in People v. Balderas (1985) 41 Cal.3d 144, 188.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) “[C]ompetent counsel may often choose to forgo even a valid objection.” (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
McCabe testified that all of the documents in Trinity’s file are required to be kept by the facility to maintain its license as an approved care placement facility through Community Care Licensing (CCL). The Special Incident Reports are used to report matters to juvenile probation or CCL and are generated in compliance with rules and regulations governing the home. The “30 day” reports are required to be generated and kept on file for the facility’s certification with the state and Trinity’s quarterly report forms are kept in the normal course of business for the group home. In our view, this testimony was sufficient to bring Trinity’s file within the business records exception to the hearsay rule.
McCabe also testified from memory. She testified that after each of the incidents at issue, she spoke with E., the other residents, and the counselors to hear all sides of the story. Each time, she spoke directly with E. Each time, he admitted the conduct that his peers had alleged. McCabe and E. discussed the fact that the incidents were rules violations and E. acknowledged that he was breaking the rules. McCabe’s testimony that E. corroborated his peers’ reports of inappropriate sexual contact was admissible as a party admission, an exception to the hearsay rule. (Evid. Code, § 1220.)
Based on this evidence, there is no merit to E.’s contentions that McCabe merely relied on the records, that McCabe’s testimony was based on unreliable hearsay, or that the evidence was unreliable because McCabe did not testify regarding the circumstances under which the information was collected from the other residents of the home. We therefore conclude that counsel’s performance was not deficient for failing to object to McCabe’s testimony regarding the incidents at Trinity.
Moreover, defense counsel may have had tactical reasons for not objecting to the admission of Trinity’s records or McCabe’s testimony about the records. Defense counsel relied on the records when cross-examining McCabe and the records contained information that was helpful to the minor, documenting his good grades in school; his role on the student council; his participation in daily group-centered leadership meetings, therapeutic recreational activities, and community service; his attendance at the sexual offender therapy sessions; and the fact that he was polite and kept his room clean. In closing argument, defense counsel argued that the minor was outstanding in a variety of ways and that this case involved a placement failure, not a probation violation.
For all these reasons, we conclude defense counsel was not ineffective for failing to object to McCabe’s testimony.
C. Failure to File Motion to Suppress
The minor contends his counsel was ineffective for failing to move to suppress an essay he wrote about one of the incidents at Trinity because use of the essay violated his Fifth Amendment right against self-incrimination.
McCabe testified that after each incident involving inappropriate sexual contact, E. was required to write an essay “explaining what happened before, during, and after the situation that occurred, and how [he was] going to change that behavior in the future.” According to a form setting forth the assignment, the essays were to “briefly” describe the “negative behavior, how [E.] could have handled the situation differently and how [he] will handle the situation in the future.”
The essays were not part of the Trinity file that was admitted into evidence at the jurisdictional hearing. Three days after the jurisdictional hearing, the probation officer submitted a copy of one of the essays and three other forms to the court. In a minute order, the court noted that it had read and considered the material and had admitted it into evidence.
The copy of the essay in the record appears to be incomplete, with at least one page missing.
In the essay, E. stated he was attracted to one of his peers, fantasized about him, thought of him in a “sexual manner,” and looked for times to be alone with him. He stated he asked the peer inappropriate questions and took advantage of a football game in the pool to grope the peer.
In their briefs, the parties debate whether the minor has met his burden of showing, as a threshold issue, that the alleged violation of his Fifth Amendment right against self-incrimination was the result of state action. (Lugar v. Edmondson Oil Co., Inc. (1982) 457 U.S. 922, 937 [sets forth two-pronged test for determining whether state action is involved in deprivation of a federal right].) The minor argues that the state was involved in Trinity’s “compulsive action requiring E. to write this incriminating essay.” He contends state action is shown here because Trinity gets funding from the state and the state uses the information Trinity supplies to the probation department. The Attorney General contends the record does not demonstrate that the staff at Trinity, “a private non-profit institution, acted as agents of the government.” The parties also debate whether E. can demonstrate that the penalty he would have suffered by refusing to write the essay amounted to compulsion, one of the requirements for establishing a Fifth Amendment claim. (Minnesota v. Murphy (1984) 465 U.S. 420, 435-436, fn. 7.)
We need not resolve these issues or determine whether the admission of the essay violated the minor’s right against self-incrimination to address E.’s ineffective assistance of counsel claim, since it appears counsel made a tactical decision to not object to the admission of the essay. In closing argument at the section 777 hearing, counsel argued that the minor was outstanding in a variety of ways and that this case involved a placement failure, not a probation violation. Counsel’s goal was to obtain another residential treatment placement or outpatient treatment and avoid confinement at the CDCR. In her statement in opposition to commitment in the CDCR, the minor’s counsel argued that sex offender programs at the CDCR are substandard and fail to adequately rehabilitate youth, that commitment to the CDCR would be detrimental to E.’s safety and well-being, and that confinement at the CDCR would constitute cruel and unusual punishment. The probation officer reported that E. had said that once he was back in custody at juvenile hall, a “ ‘light bulb’ ” went on and he realized he had to change his behaviors. He hoped to get another opportunity at a sex offender treatment program and said that next time he would be honest with his therapist. The probation officer reported that E. had asked his father, “ ‘Dad, have you ever finally got it but it was too late?’ ” The essay contained statements that were consistent with these themes. E. discussed some “red flags” he had failed to heed, mistakes he made, and the need to open up to his therapist and to talk to staff every time he has inappropriate sexual thoughts. The essay showed insight, a willingness to work on his therapy, and a desire to stop offending. Moreover, the incriminating statements in the essay were cumulative of other evidence of the probation violations. The minor’s counsel may have decided not to object to admission of the essay, since it supported her contention that E. would benefit from further treatment outside the CDCR. We therefore conclude that counsel was not ineffective for failing to object to the admission of the essay.
II. Minor’s Absence from January 2007 Hearing
E. contends the court violated his constitutional and statutory right to be present at a hearing on January 30, 2007, when Judge Barnum recused himself. E. also contends his counsel was ineffective when she waived his presence at the hearing, since after the court admonished her for being dishonest, he had grounds to remove her for having a conflict of interest.
Two matters were before the court on January 30, 2007: a permanency planning hearing on E.’s first section 777 petition and a disposition hearing on his second section 777 petition. E. was not present for the hearing and his counsel waived his appearance. Judge Barnum told the parties that he was going to recuse himself and have the matter reassigned to another judge because he had attended E.’s graduation ceremony at juvenile hall, unaware that the case was before him for disposition. Judge Barnum stated the minor’s counsel had come to his courtroom and stated that a minor was graduating. She did not mention the minor’s name or that the minor’s case was before Judge Barnum. The judge assumed the minor’s case had been adjudicated and gone through disposition. Judge Barnum attended the ceremony, which involved several minors. Afterward, he told E.’s counsel, “[I]t was very nice. It was very touching. That would really influence a judge.” At that time, counsel told Judge Barum E. was “before [him] for a CYA commitment.”
E.’s counsel told the court she had stated, “My client is graduating, but I don’t believe that you are going to want to come because he is pending dispo[sition].” She apologized and said she did not intend to mislead the court. The judge responded, “I disagree. I don’t think you are being honest on this regard. I was never told.”
The minor asserts his absence from this hearing was prejudicial because if he had attended he would have known of counsel’s alleged dishonesty, which created a conflict of interest, and could have moved to substitute counsel.
“Article I, section 15, of the California Constitution states in pertinent part: ‘The defendant in a criminal case has the right ... to have the assistance of counsel for the defendant’s defense, to be personally present with counsel.’ The statutory implementation (§§ 977, 1043) and decisional authorities on the right of presence are summarized in People v. Jackson (1980) 28 Cal.3d 264 [overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3] …, where the defendant was absent at a chambers hearing on motion for mistrial: ‘The cases which have interpreted … sections [§§ 977 and 1043] uniformly have held that the accused is not entitled to be personally present either in chambers or at bench discussions which occur outside of the jury’s presence on questions of law or other matters in which defendant’s presence does not bear a “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” [Citations.] Stated in another way, “[W]hen the presence of the defendant will be useful, or of benefit to him and his counsel, the lack of his presence becomes a denial of due process of law.” [Citations.] The burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.’ ” (People v. Bloyd (1987) 43 Cal.3d 333, 359-360, fn. omitted.)
We find no basis for concluding that E.’s absence on January 30, 2007 “prejudiced his case or denied him a fair and impartial trial” at the disposition phase. The judge who conducted the disposition hearing had the complete record before him, including the quarterly reports and discharge report from Trinity; Dr. Abbott’s report; the probation department reports, which included the permanency planning evaluations, E.’s case plans, and reports from E.’s school. The record before the court thoroughly explored E.’s placement options. The court had the minor’s statement in opposition to commitment to the CDCR. Attached thereto was a copy of the consent decree in Farrell v. Allen (Alameda County Superior Court case No. RG 03079344) relating to conditions at the CDCR, as well as legislative committee, consultant, and special masters reports regarding issues that need to be addressed there. The probation officer advised the court that E. had graduated from high school on January 24, 2007, and was no longer eligible for placement services past his 18th birthday. The probation officer reported that six residential treatment facilities had rejected E. and provided letters from two facilities that had rejected E. based on his age, reasoning that he was too old to complete an 18- to 24-month program before his 18th birthday. The court heard testimony from a group counselor at juvenile hall regarding E.’s progress there and from a counselor at the CDCR regarding the services available to E. and the progress the institution has made in addressing its goals for improvement.
There was no discussion of Judge Barnum’s recusal. There is no showing that Judge Barnum’s comments regarding counsel’s veracity had any bearing on her representation of E. at the disposition hearing. The court thoroughly explored the options and issues related to the disposition on the second section 777 petition. E. makes no showing that his absence from the January 30, 2007 hearing prejudiced his case or denied him a fair trial. We therefore conclude the court did not err in proceeding in his absence.
Our conclusion that E. was not prejudiced by his absence from the January 30, 2007 hearing also disposes of his ineffective assistance of counsel claim based on his counsel’s waiver of his presence at the hearing. “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of alleged deficiencies. … If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, …, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
DISPOSITION
The juvenile court’s order is affirmed.
I CONCUR: Mihara, Acting P.J.
I CONCUR IN THE JUDGMENT ONLY: Duffy, J.