Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J41199
RUSHING, P.J.
J.N. appeals a dispositional order committing him to the Division of Juvenile Justice (DJJ). On appeal, he asserts he received ineffective assistance of counsel, and that the trial court abused its discretion in committing him to the DJJ.
Statement of the Facts and Case
In October 2007, J.N., who was 16-years old at the time, and another person approached a 12-year-old boy after asking him if he was a “scrap.” The two started to punch the boy in the back of the head. When the boy tried to run away, the two tripped him, and continued to punch him in the head and face. The boy suffered a one and half inch cut to his head, and received 10 staples to close the wound to the back of his head. A witness identified J.N. as one of the assailants, and he was later arrested at his mother’s apartment. At J.N.’s mother’s apartment, underneath a sofa where J.N. slept, police officers found a.38 Smith & Wesson revolver.
In November 2007, a juvenile delinquency petition was filed alleging J.N. was in possession of an illegal firearm (Pen. Code, §§12101, subs. (a)(1), 12091 - counts I & II); participated in a criminal street gang (Pen. Code, § 186.22, subd. (a) - count III); committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) - count IV). The petition also alleged the crimes were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). (Welf. & Inst. Code, § 602, subd. (a).)
In January 2008, J.N. admitted counts III and IV with an agreement that he would not be committed to the DJJ. J.N. entered a Harvey stipulation that counts I, II, and the gang enhancement could be considered for the purpose of the disposition order.
People v. Harvey (1979) 25 Cal.3d 754, 758-759.
As a result of J.N.’s admission to the allegations in the delinquency petition, the court declared J.N. a ward of the court, and placed J.N. on probation. One of the conditions of J.N.’s probation was as follows: “[No. 16] You are to grow and keep the hair on your head (including the sides and top) at least one inch in length.” The court also ordered that J.N. be removed from his home and placed in the Monterey County Probation Department Youth Center (Youth Center) for 390 days, with 25 days of custody credit.
In July 2008, the probation department filed a notice of probation violation due to disciplinary incidents that occurred at the Youth Center. (Welf. & Inst. Code, § 777.) In particular, J.N. was defiant and verbally challenging to staff during a physical training session. After J.N. was informed he was being placed on disciplinary status for his verbal defiance, he became angry and continued to ignore staff instructions, at which point he was removed from the Youth Center and taken to juvenile hall. J.N. admitted the alleged probation violations, and was continued on probation at the Youth Center for 259 days.
In December 2008, the probation department filed a second notice of a probation violation. (Welf. & Inst. Code, § 777.) It was alleged that during a 12-hour home pass on November 30, 2008, J.N. cut his hair to a length shorter than one inch in violation of his probation conditions.
J.N. admitted the probation violation, and the court committed him to the DJJ for a maximum period of four years eight months, with 318 days custody credit.
Discussion
On appeal, J.N. asserts he received ineffective assistance of counsel, because his attorney did not move to dismiss the allegation that he violated probation for failing to keep his hair at a certain length. In addition, J.N. asserts the trial court abused its discretion in committing him to the DJJ in the disposition order.
Ineffective Assistance of Counsel
When J.N. was placed on probation following his admission to the allegations in the delinquency petition, the court included as a condition of his probation that J.N. keep the hair on his head at least one inch in length. While on a 12-hour pass from the Youth Center in November 2008, J.N. received a haircut, returning to the Center with hair that was shorter that one inch. The probation department alleged that J.N. violated a term of his probation by having his hair cut.
J.N. asserts on appeal that his attorney was ineffective for not moving to dismiss the allegation that he violated his probation for not keeping his hair longer than one inch, because the allegation of violation of the probation condition needed to be willful.
“To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687....) To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s failings, the result of the proceeding would have been more favorable to the defendant. [Citation.]” (People v. Seaton (2001) 26 Cal.4th 598, 666.)
The basis for J.N.’s claim that he received ineffective assistance of counsel is because his counsel did not move to dismiss the allegation of a probation violation, because the violation needed to be willful. On the record we have before us, J.N.’s claim of ineffective assistance lacks merit.
Here, contrary to J.N.’s argument on appeal, the notice of the probation violation did allege J.N. committed a willful violation of the condition. Specifically, the notice included the following from the probation officer: “[t]his officer believes that both [J.N. and another ward] deliberately cut their hair less than one inch while on a home pass, and it was not due to an accident or barber miscue.” In addition, at the dispositional hearing, the court specifically found J.N. willfully violated the hair length condition by receiving a haircut while on home pass, rejecting J.N.’s claim that that is was the barber’s fault, not his own.
We find nothing in defense counsel’s conduct in this case was deficient under prevailing professional norms and prejudicial. (See Strickland v. Washington, supra, 466 U.S. at p. 687.) Both the notice of probation violation, as well as the court’s own findings demonstrate that J.N.’s conduct was willful and deliberate. J.N. did not receive ineffective assistance of counsel.
Commitment to the DJJ
J.N. asserts on appeal that the juvenile court abused its discretion when it committed him to the DJJ, because the facts underlying the Welfare and Institutions Code, section 777 petition do not show a failure of the prior placement so as to justify the DJJ commitment; and there was not a sufficient showing that a DJJ commitment would be of probable benefit to J.N.
All further statutory references are to the Welfare and Institutions Code.
On appeal, this court must review a DJJ commitment “only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court.” (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) In evaluating the evidence, we apply the substantial evidence test. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 579.) “The evidence, however, must demonstrate probable benefit to the minor from commitment to the [DJJ] and that less restrictive alternatives would be ineffective or inappropriate. [Citation.]” (In re George M. (1993) 14 Cal.App.4th 376, 379.)
In determining the appropriate disposition for a minor found to be a ward of the court, the court must focus on both the need for public protection and the best interests of the minor. (§ 202; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) It should consider, among other things, the age of the minor, the circumstances and gravity of the offense, and the minor’s previous delinquent history. (§ 725.5.) If the court decides that a commitment to DJJ is appropriate, it must be “fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” (§ 734.) Moreover, “[i]f two programs are found appropriate and one is found unavailable for whatever reasons, the court should not be hindered in view of the situation before it from choosing the perhaps less desirable program.” (In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.)
Here, J.N. asserts the act that constituted the violation of his probation, namely failing to keep his hair at a proscribed length, does not justify at DJJ commitment. Specifically, J.N. argues that the record in this case suggests that the court’s decision to commit him to the DJJ was not for the purpose of rehabilitation or concern for public safety, but rather, as a matter of retribution.
At the dispositional hearing, the court thoroughly reviewed J.N.’s record and conduct on probation. The court noted: “[p]rior discipline reports over the past three years indicated instances of defiance, disruptive behavior, fighting, gang behavior, property damage. Seven suspensions, 17 requests of parent-teacher conferences. When the Probation Officer asks him about the event, he smirks as he denied his gang membership.” The court further noted that J.N. should have been sent to the DJJ for the original crime because of its seriousness, and that he received an opportunity by being committed to the Youth Center, which he subsequently squandered. Finally, the court stated that at the DJJ, J. N. “would be able to participate in school, gang awareness, drug counseling, anger management, impact of crime on the victims. And it’s obvious to me that a more secure setting and more structure is needed for [J.N.], he’s not been successful at the Youth Center.”
J.N. asserts on appeal that the trial court failed to give reasons or a factual basis for the conclusion that less restrictive alternative placements have proven to be ineffective for J.N. However, our review of the record belies this point. The court made very specific factual findings that J.N. continually failed in the less restrictive placement at Youth Center, despite being given numerous opportunities to succeed.
The court’s consideration of numerous factors supports its decision to commit J.N. to the DJJ. Specifically, the court considered the seriousness of J.N.’s original offense, his complete lack of remorse for his conduct, and his continued attempts to keep his mother and his brother from cooperating with police as factors supporting a DJJ commitment. In addition, the court looked at J.N.’s performance while at the Youth Center, including his disrespect of Youth Center and juvenile hall staff, as well as his extremely poor educational record before placement in the Youth Center, and his subsequent marginal educational progress after placement. Finally, the court noted J.N.’s continued defiance of probation conditions with no remorse, and his mother’s enabling and uncooperative conduct as threats to community safety, and reasons supporting his DJJ commitment.
Based on these considerations, we find the court did not abuse its discretion in committing J.N. to DJJ. We do not believe the court’s decision was motivated by retribution; rather, we find the court considered J.N.’s history on probation when deciding that DJJ was the appropriate placement.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J. ELIA, J.