Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. JU21483
McAdams, J.
Following a contested hearing, the juvenile court sustained a petition filed under Welfare and Institutions Code section 602 alleging that the minor, I.R., had violated his probation by associating with gang members. On appeal, the minor challenges the sufficiency of the evidence to support the juvenile court’s finding. He also argues that the juvenile court violated his due process rights by basing its decision on circumstances that were not alleged in the probation violation notice. Finally, he argues that his counsel rendered ineffective assistance of counsel by failing to object to the due process violation. We find no error and will affirm.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
STATEMENT OF THE CASE
On October 10, 2008, the Santa Cruz County District Attorney filed a juvenile wardship petition to modify, change or set aside previous orders of the juvenile court on the grounds that the minor had violated his probation on October 7, 2008, by associating with Adrian Leon Sandoval, Adrian Sanchez, Johnny Suarez, Eudoro Moya and Cesar Rosales, who were known gang members, per Watsonville Police Department report 08W-06967. He was arraigned on the petition on October 14, 2008, at 8:30 a.m. A jurisdictional hearing on the probation violation was set for October 29, 2008.
Thereafter, an amended petition was filed alleging that on October 14, 2008, the minor again associated with two individuals who were known gang members, Adrian Sanchez and V.V., a minor. On October 29, 2008, a contested probation violation hearing was held at which Probation Officer Sornberger testified. The court found that defendant had violated his probation and set a disposition hearing. On November 17, 2008, the juvenile court continued the minor as a ward, returned him to the custody of his mother, and reinstated probation.
STATEMENT OF THE FACTS
Santa Cruz County Probation Officer Mel Sornberger testified that he supervised the minor on probation and had discussed the terms of the minor’s probation with him. On October 7, 2008, in response to a call from the minor’s mother, Officer Sornberger and Watsonville Police Officer Fulgani went to the minor’s family home in Watsonville. A cloud of what smelled to him like marijuana smoke greeted the officer when he opened the garage door. He found a marijuana pipe. The minor was in the garage with six other individuals. Sornberger recognized some of the individuals from previous supervisions.
Some of these individuals were known to Sornberger as gang affiliates. In particular, he had had contact with Johnny Suarez as both a juvenile and an adult and knew that Suarez was on probation and “had adult terms.” He also knew that Duro Moya, whom he had supervised, had gang terms as a juvenile probationer and was currently on another probation officer’s caseload. He also knew that Adrian Sandoval, who Sornberger had supervised as a juvenile, was not presently on probation but had had gang terms when he was on probation. He noticed that the minor was wearing shoes that were predominantly red in color. He also noticed some other clothing items worn by him and some of his visitors were associated with gang colors and styles. Officer Sornberger filed a probation violation based on his observations.
On October 14, 2008, Sornberger returned to the minor’s house at the request of the Watsonville police. On this occasion, he saw a number of juveniles outside the garage dressed in gang clothing. He recognized at least one of the juveniles, V.V., as an individual who was presently on probation and with whom he had had contact one week prior. He recognized at least one person, Adrian Sanchez, who had been in the garage on October 7. Once again, the garage smelled strongly of marijuana; marijuana was found in a pipe.
Prior to October 7, Officer Sornberger had not told the minor that he could not “hang out” with any of the six individuals who were present in the garage on October 7. Specifically, he did not tell defendant not to associate with Adrian Sanchez before October 7. Adrian Sanchez was not on probation on October 7 or 14, but he had been on probation in 2007 and at that time he had gang terms. The court took judicial notice of the fact that one of the terms of the minor’s probation is that he not associate with known gang members.
After hearing argument, the juvenile court found “a violation clearly at least on the 14th if not for sure on the 7th – well, on the 7th definitely because of the marijuana use, and on the 14th because who is there and what has been going on.”
DISCUSSION
Insufficient Evidence
The minor argues that the evidence adduced at trial is insufficient to support the court’s finding that he violated his probation for the following reasons: (1) the prosecution did not establish the existence of a gang; (2) Sornberger’s testimony regarding the clothing worn by the minor’s visitors on October 14 lacked reliability; (3) the prosecution did not establish that Sanchez or V.V. were gang members; (4) the prosecution did not establish that the minor knew he could not associate with Sanchez or V.V.; (5) the court erroneously reasoned that the minor’s appearance at arraignment on the probation violation gave him knowledge that he should not associate with the persons who visited him on October 7, because “[t]he prosecutor argued that I.R. learned who he could not associate with during his October 14 arraignment on the October 10 notice.... [b]ut... neither presented evidence of anything said to I.R. during the October 14 arraignment, nor requested that the court take judicial notice of anything said to him.”
He also argues that the prosecution failed to prove a probation violation based on his participation in, or consent to, marijuana use on October 7, because no evidence was presented that he used or was under the influence of marijuana on that day, the pipe found by Officer Sornberger was not produced at the hearing, and Sornberger did not testify where he found it or which of the six people in the garage had possession of it. We reject the minor’s contentions.
In juvenile court, as in adult proceedings, “[t]he facts alleged in the notice [of a probation violation] shall be established by a preponderance of the evidence at a hearing to change, modify or set aside a previous order.” (§ 777, subd. (c); In re Eddie M. (2003) 31 Cal.4th 480, 501; People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Further, probation revocation proceedings in juvenile court under section 777 parallel those in adult court under Penal Code section 1203.2 in all important respects. (In re Eddie M.,at pp. 501-509.) “[Penal Code] Section 1203.2(a) states that a ‘court may revoke... probation if the court, in its judgment, has reason to believe that the [probationer] has violated any of the conditions of... probation... or has subsequently committed other offenses....” (Italics added.) It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395,400... [‘... only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation’]; People v. Martin (1943) 58 Cal.App.2d 677, 683-684 [137 P.2d 468] (‘[N]o particular source, manner or degree of proof is required by statute’].)” (People v. Rodriguez,at p. 443.) “All that is required for the revocation of probation is enough evidence to satisfy the... judge that the conduct of the petitioner has not met the conditions of probation.” (Id. at p. 442, internal quotations marks omitted.)
Keeping in mind that the juvenile court’s findings must be supported by a preponderance of the evidence, we examine the trial court’s express and implied findings to see if they are supported by substantial evidence, and we review the trial court’s decision to revoke probation for abuse of discretion. In reviewing the record for substantial evidence, we also keep the following tenets of appellate review in mind. “An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “An appellate court must accept logical inferences that the [trier of fact] might have drawn from... circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) We “ ‘accord due deference to the trier of fact and [do] not substitute our evaluation of a witness’s credibility for that of the fact finder.’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
These principles apply with equal force to appellate review of juvenile court findings. (In re Roderick P. (1972) 7 Cal.3d 801, 809; In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) We now apply them to the facts of this case.
From Officer Sornberger’s testimony, the trial court was entitled to draw certain inferences. The first inference the trial court was entitled to draw was that, based on Sornberger’s experience as a probation officer in Santa Cruz County, and specifically as the person who had previously supervised Suarez, Moya and Sandoval on probation, Sornberger knew of what he spoke when he testified that some of the persons in the garage with the minor on October 7 were indeed gang affiliates. The trial court was also entitled to infer that the minor’s red shoes, and some of the outfits worn by his visitors (“black and white with a red outline”) were at least suggestive of gang affiliation. This was not a criminal trial or jurisdictional hearing in which the minor was charged with substantive gang crimes or gang enhancements requiring the prosecution to prove the existence of a particular gang, its primary activities, or membership in the gang. The evidence adduced was sufficient to support an inference, by a preponderance of the evidence, that the people congregating in the minor’s garage were gang members.
The minor makes much of some potentially inconsistent testimony by Sornberger concerning Sandoval and Sanchez. However, he concedes that the officer’s testimony was susceptible of the inference that Sornberger “had supervised both Sandoval and Sanchez as juveniles, and that both probations had included gang terms.” Sornberger testified that Sanchez had been on probation with gang terms in 2007, one year earlier, although he was not currently on probation. The court could reasonably infer from this information, especially when considered in light of Sornberger’s testimony that he saw Sanchez in the minor’s garage in the company of other gang affiliates, that Sanchez remained affiliated with the gang himself.
Finally, the minor’s argument fails to appreciate the relevance of the information before the court that, on the morning of October 14, 2008, the minor was arraigned on the first probation violation petition. Regardless of what the minor said, or what was said to the minor, the fact of the minor’s appearance at that court hearing established that, as of the morning of October 14, he had been placed on notice that he was not permitted to associate with the persons named in the notice, including Sanchez, later that day. In our view, the evidence before the juvenile court was more than sufficient to support the court’s finding that, “at least on the 14th if not for sure on the 7th,” the minor had violated the condition of his probation that he not associate with known gang members, by associating with Sanchez.
We also reject the minor’s argument that the evidence was insufficient to show that he violated his probation by allowing his visitors to smoke marijuana in his garage. On two occasions, Officer Sornberger entered the minor’s garage and smelled or saw marijuana smoke. All probationers are required to obey the law. One such law prohibits maintaining a place where illegal drugs are used. (Health & Saf. Code, § 11366.) Even though the prosecution did not produce the pipes found in the garage, and Sornberger did not testify that he saw the minor smoking marijuana, substantial evidence supports the juvenile court’s finding that defendant violated his probation by permitting marijuana use in his garage on October 7 and 14.
We conclude that the juvenile court’s findings are supported by substantial evidence, and no abuse of discretion has been shown.
The minor next argues that his due process rights were violated because he did not have notice that the court would use the marijuana evidence to violate his probation. The minor did not make this argument to the trial court. His claim is therefore forfeited on appeal. (In re Brian K. (2002) 103 Cal.App.4th 39, 42.) Alternatively, the minor argues that counsel was ineffective for failing to object to the lack of notice. We disagree.
“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 440; People v. Anderson (2001) 25 Cal.4th 543, 569.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Anderson, at p. 569, internal quotation marks omitted; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.) Because counsel’s tactical decisions are entitled to great deference, ordinarily appellate courts do not determine claims of ineffective assistance of counsel without input from trial counsel. Our Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, we cannot say there could be no satisfactory explanation for a failure to object to lack of notice. Counsel’s failure to express surprise at any point, or to interpose an objection to Officer Sornberger’s testimony about marijuana, or to apprise the trial court of a notice problem when the court included marijuana use among its reasons for finding a probation violation, may well bespeak actual notice that the court would consider evidence of marijuana use if presented at the hearing. In any event, the minor cannot show prejudice from counsel’s inaction, since we have found that sufficient evidence was adduced at the hearing on the noticed ground of association with a known gang member. Ineffective assistance of counsel has not been demonstrated.
CONCLUSION
The juvenile court’s findings that the minor violated his probation by associating with known gang members and permitting marijuana to be used in his garage are supported by substantial evidence. No abuse of discretion has been shown. The minor has forfeited his due process objection to lack of notice that his probation could be violated for permitting marijuana use in his garage. The minor has not demonstrated that counsel was ineffective for failing to object to lack of notice.
DISPOSITION
The judgment of wardship is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.