Opinion
G032456.
7-11-2003
In re HECTOR R. on Habeas Corpus.
Deborah A. Kwast, Interim Public Defender, Kevin Phillips, Assistant Public Defender, and Allyn Jaffrey, Deputy Public Defender, for Petitioner. Tony Rackauckas, District Attorney, and Stephan Sauer, Deputy District Attorney, for Respondent.
Hector R. was certified to superior court after the juvenile court determined he was not a fit and proper subject to be dealt with in juvenile court. He contends he received ineffective assistance of counsel at the fitness hearing based on counsels failure to present evidence to rebut the five criteria in Welfare and Institutions Code section 707, subdivision (c). The district attorney concedes a new fitness hearing should be conducted and we agree. Petition granted.
Hector, 14 years old and a known gang member, was arrested and charged with attempted murder, shooting at an inhabited dwelling, carrying a firearm when an active participant in criminal street gang activity, and street terrorism. The juvenile petition also alleged enhancements that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang, and that Hector personally discharged a firearm during the commission of the offenses. According to the probation report prepared for the fitness hearing, Hector was involved in a fight with the victims brother over a pack of cigarettes. When the victim tried to break up the fight, Hector pulled a gun out of his pocket and fired three shots at the victim, missing him all three times. The petition also alleged Hector was not a fit and proper subject to be dealt with in juvenile court.
After the public defenders office declared a conflict, the court appointed counsel from Juvenile Defenders to represent Hector, and the matter was set for a fitness hearing pursuant to section 707, subdivision (c). The only evidence introduced at the fitness hearing was the fitness report prepared by the probation officer which concluded Hector was fit under two criteria (prior delinquent history and success of previous attempts to rehabilitate minor) and not fit with respect to the remaining three criteria listed in section 707, subdivision (c). At the fitness hearing, counsel presented no evidence or testimony and argued Hector was a fit and proper subject to be dealt with under juvenile court law. At the conclusion of the hearing, the court found Hector fit regarding his previous delinquent history and unfit under the four remaining criteria. As a result of this finding, the court ordered the People to file a criminal complaint against Hector as an adult in superior court.
Hector was arraigned in superior court on a complaint alleging the same offenses and enhancements as the juvenile petition. The public defender was appointed to represent Hector. Hector alleges he received ineffective assistance of appointed counsel in juvenile court based on counsels failure to conduct any investigation and prepare for the fitness hearing to rebut the presumptions of the criteria in section 707, subdivision (c).
When a minor is charged with an offense listed in section 707, subdivision (b), (which in this case includes attempted murder and any felony offense in which the minor personally used a weapon listed in subdivision (a) of Penal Code section 12022.5), there is a rebuttable presumption that the minor is not fit to be dealt with in the juvenile court system. "In a fitness hearing under [] 707(c), the child is presumed to be unfit, and the burden of rebutting the presumption shall be on the child, by a preponderance of the evidence." (Cal. Rules of Court, rule 1483.) The five criteria the court considers at a fitness hearing are: "(1) the degree of criminal sophistication exhibited by the minor[;] (2) whether the minor can be rehabilitated prior to the expiration of the juvenile courts jurisdiction[;] (3) the minors previous delinquent history[;] (4) success of previous attempts by the juvenile court to rehabilitate the minor[;] [and] (5) the circumstances and gravity of the offenses alleged in the petition to have been committed by the minor." (Welf. & Inst. Code § 707, subd. (c) and Cal. Rules of Court, rule 1483.) Section 707, subdivision (c) also states a minor is not fit to be dealt with in juvenile court unless the court makes a determination that the minor is fit under each of the five criteria. The court may also take into consideration extenuating or mitigating circumstances when evaluating each of the criteria. (Welf. & Inst. Code § 707, subd. (c).)
"The right to counsel includes the right to effective assistance of a reasonably competent attorney during the pretrial stage of a proceeding. [Citation.]" (People v. Coleman (1988) 46 Cal.3d. 749, 773, 251 Cal. Rptr. 83, 759 P.2d 1260.) "To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 239.) Under the performance prong, the "court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy. [Citation.]" (Strickland v. Washington (1984) 466 U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) "A defendant alleging ineffective assistance based on counsels failure to obtain favorable evidence must . . . demonstrate the evidence which would have been obtained and, to the extent possible, its effect. [Citation.]" (People v. Geddes (1991) 1 Cal.App.4th 448, 449.)
In this case, the petition includes a letter from Thomas Blay, a California Youth Authority intake officer, which states Hector "would be an appropriate referral" from juvenile court. According to Blay, after reviewing the police reports, the probation officers fitness report and Hectors prior juvenile adjudicated offenses, he concluded that "in comparing Hectors delinquent history, his current age, prior court ordered interventions, and the seriousness of the current offense to other referrals, his would be typical to many of the referrals [] currently received from Juvenile Court. In Calendar Year 2000, 49 % of all referrals [] were for violent felonies. Most of those referrals were for individuals that had 3 or more previously sustained petitions and had two or more previous local placements."
The significance of Blays statement is that it rebuts the second, fourth and fifth criteria and also directly contradicts the probation officers opinion that Hector cannot be rehabilitated prior to the expiration of the courts jurisdiction. Since the ultimate issue to be decided at a fit and proper hearing is whether the minor is amenable to treatment in the event he is adjudged a ward of the court, Blays statement that almost half of the referrals to the California Youth Authority were for violent felonies also challenges the probation officers claim that the gravity of the offense is of the type which is beyond the rehabilitative efforts of the juvenile court. In addition, Blays observation that most of the violent felony referrals had three or more previously sustained petitions or local placements indicates that despite Hectors prior adjudicated petitions, he is still an appropriate referral from juvenile court.
After Hector was arraigned in superior court, counsel ordered a psychological evaluation which was conducted by forensic psychologist and psychoanalyst Dr. Lettieri. After testing Hector, consulting with his mother, and reviewing the police and fitness reports, Dr. Lettieri concluded that Hectors 77 IQ places him in the sixth percentile of his peers and he is "within the Borderline Range of intellectual functioning." According to Dr. Lettieri, Hectors "lack of sophistication and his emotional immaturity are manifested in his limited capacity to think and reflect before he acts, his lack of consequential thinking, [and] his defensive and immature way of managing his feelings . . ." Evidence of Hectors intellectual, psychological and emotional makeup would have been valuable at the fitness hearing because it rebuts the first and second criteria regarding the degree of criminal sophistication and rehabilitation, in addition to providing the court with a mitigating factor to take into consideration.
Based on the preparation and investigation by counsel in superior court, Hector contends juvenile counsel should have presented this same relevant information to contest the fitness hearing, and if she had, he would have received a more favorable outcome. According to deputy public defender Charles E. Hasses declaration prepared under penalty of perjury, he spoke to Hectors counsel from Juvenile Defenders and learned that she did not conduct any investigation into the case, did not obtain a psychological evaluation, did not look into Hectors background, home environment or schooling, and did not interview or cross-examine the probation officer who wrote the fitness report. According to Hasse, counsel explained the reason she did not prepare or conduct an investigation was because in her opinion, it would not have made a difference because she believed the court had already made up its mind to find Hector unfit. According to Hasse, he asked counsel to include her opinions in a declaration, but she was advised by her supervising attorney not to write a declaration.
The District Attorney concedes the matter should be returned to the juvenile court to conduct a new fitness hearing and we agree. Hectors age should have prompted counsel to contact juvenile placement and detention facilities to inquire about his amenability to treatment and rehabilitation prior to the expiration of the juvenile courts jurisdiction. Likewise, the fitness report should have alerted counsel to order a psychological evaluation of Hector. The reference in the fitness report that Hectors intermediate school described him as a "slow learner" suggests the need for a psychological evaluation to gain insight into Hectors intellectual, psychological and emotional makeup in relation to the charged offenses. Although the fitness report indicates Hector had not been diagnosed with a learning disability, it does not preclude the possibility that Hector does in fact have a learning disability which at the very least may be considered a mitigating factor.
Based on the undisputed facts in the petition, Hector has established a prima facie case that counsels conduct fell below the objective standard of reasonableness when she failed to obtain and present relevant evidence at the fitness hearing. We also find that but for counsels deficient representation, there is a reasonable probability that had the evidence been presented at the fitness hearing, the result of the hearing would have been more favorable to Hector. We also find the reasons expressed in Hasses declaration explaining counsels reasons for failing to adequately prepare for the fitness hearing cannot be considered sound trial strategy, and thus undermines confidence in the outcome of the hearing.
The petition for a writ of habeas corpus is granted. The superior court is ordered to remand case number 02CF3037 to the juvenile court with directions to set aside its order certifying petitioner to the superior court, appoint new counsel for petitioner, and conduct a new fitness hearing pursuant to section 707, subdivision (c). --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.