Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 1CEJ601509-5. Dale Ikeda, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J, and Dawson, J.
Appellant Marcos O. admitted allegations contained in a juvenile wardship petition filed pursuant to Welfare and Institutions Code section 602 that he committed two misdemeanors: aggravated trespass (Pen. Code, § 602.5, subd. (b)) and battery (Pen. Code, § 242). Following the subsequent disposition hearing, the court ordered appellant committed to the California Youth Authority (CYA) and declared the maximum period of physical confinement to be 6 years 10 months, by aggregating the terms for the instant offenses and offenses adjudicated in prior wardship proceedings.
Effective July 1, 2005, the California Youth Authority was renamed the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). (Gov. Code, § 12838, subd. (a).)
On appeal, appellant contends this court should (1) order the probation department to prepare a new dispositional social study report (DSS) to correct certain errors contained in two previous reports, and (2) issue related orders. Alternatively, he argues that if his challenge to those errors is deemed waived by the failure to object below, he was denied his right to effective assistance of counsel. We will affirm.
BACKGROUND
At a jurisdiction hearing in November 2002, the court found true allegations appellant committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), a felony, and brandishing a weapon (§ 417, subd. (a)), a misdemeanor.
The DSS prepared in advance of the disposition hearing in that case, in summarizing the facts of the offenses, stated, inter alia, as follows: appellant told the victim, “You’re gonna get it now motherfucker”; appellant “slashed at the victim several times with the knife stating in English, ‘Give me your money motherfucker’”; and “The victim looked back and saw co-offender [V.] lift the hatch and take a plastic bag from the rear of his van containing approximately $200.00 in cash.”
In December 2002, at the disposition hearing, defense counsel objected to these statements on the grounds that each was “not consistent with the testimony at [the jurisdiction hearing].” The court ordered each statement stricken from the DSS.
In a subsequent wardship proceeding instituted in August 2003, appellant suffered adjudications of two counts of resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). The DSS prepared in advance of the disposition hearing in that case, in the section summarizing the facts of the 2002 proceeding, contained the matters the court had previously ordered stricken. In December 2003, at the disposition hearing in that proceeding, the court ordered appellant committed to CYA. Appellant was released on parole in April 2005.
The wardship petition in the instant case was filed in July 2005, and the disposition hearing was conducted in September 2005. The DSS prepared in advance of that hearing and considered by the court also contains the matters ordered stricken in the 2002 proceeding. However, appellant did not object at the disposition hearing to the inclusion of this material in the DSS.
A document identified as appellant’s “Individual Change Plan” (ICP), prepared by the DCRJJ personnel and submitted to the juvenile court in advance of the 2005 disposition hearing, in a section summarizing appellant’s 2002 offenses, also contains the stricken matters. In addition, the “SOCIAL HISTORY” section of the ICP, under the heading “RISK ASSESSMENT (Suicide/Escape/Violence),” states that appellant’s “violence potential while in [DCRJJ] is considered average to above average based upon his prior history.”
On September 29, 2006, appellant filed a notice of appeal. On November 2, 2006, this court deemed the notice to be timely filed.
DISCUSSION
“In the juvenile justice area it is the duty of the probation officer to prepare a social study of the minor for every disposition hearing after the juvenile court has found the minor to be a ward of the court pursuant to section 602. [Citations.] The social study shall contain ‘such matters as may be relevant to a proper disposition of the case’ and a ‘recommendation for the disposition of the case.’ [Citation.] The juvenile court shall receive the social study into evidence at the disposition hearing [citation], and ‘In any order of disposition the court shall state that the social study has been read and considered by the court.’ [Citation.] [¶] ... [¶] The information contained in a properly prepared social study report is central to the juvenile court’s dispositional decision.” (In re L. S. (1990) 220 Cal.App.3d 1100, 1103-1104, fn. omitted.)
As indicated above, appellant contends the DSS prepared and submitted to the court in advance of the 2005 disposition hearing contains erroneous information that was previously stricken by the juvenile court. As result, he argues: (1) his “juvenile case file” (Welf. & Inst. Code, § 827) will contain erroneous information; (2) based on that erroneous information, the DCRJJ erroneously concluded, and stated in the ICP, that appellant had an “above average” potential for violence, and therefore it is “likely, or at least plausible,” that the DCRJJ incorrectly “assess[ed] appellant’s security level at [DCRJJ]”; and (3) there exists a “potential danger” that, should appellant “some day” be the subject of an adult criminal proceeding, those “erroneous facts … might … be used to enhance an adult criminal sentence.” To remedy these problems, appellant argues further, this court should order that: (1) a new, corrected DSS be prepared, (2) the new DSS be included in appellant’s juvenile case file and forwarded to the DCRJJ for inclusion in DCRJJ records; and (3) the previously stricken statements be stricken from the ICP and “any [other] reports in the possession of the [DCRJJ].”
Although it is not entirely clear, it appears that appellant also challenges the inclusion of the previously stricken material in the DSS prepared in connection with the 2003 wardship proceeding. However, the instant appeal is from the 2005 judgment. Since the 2003 DSS was considered by the court in the 2003 proceeding and the judgment in that case was entered in 2003, the time for an appellate challenge to the 2003 DSS has long since passed. (In re Mario C. (204) 124 Cal.App.4th 1303, 1307 [“the ‘judgment’ in a juvenile court proceeding is the order made after the trial court … conducted a hearing into the proper disposition to be made”]; Welf. & Inst. Code, § 800 [judgment in juvenile proceeding is an appealable order], Cal. Rules of Court, rule 5.585(a) & (f)) [minor appellant must file a notice of appeal within 60 days after the juvenile court issues an appealable order].) Therefore, appellant’s challenge to the 2003 DSS is not cognizable on appeal. (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219 [“[i]f a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal”]; accord, Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953).
Welfare and Institutions Code section 827 lists those who may inspect records contained in a juvenile case file (Welf. & Inst. Code, § 827, subd. (a)) and, in subdivision (e) of the statute, provides that “‘a juvenile case file’ means a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer.”
However, as appellant does not dispute, counsel in the instant case did not object to the contents of DSS. Therefore, he has waived his appellate challenge to the report’s contents. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1685, fn. 8 [appellate challenge to consideration of material in DSS waived by failure to object]; cf. People v. Welch (1993) 5 Cal.4th 228, 234 [in adult sentencing context, “failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal”].)
Anticipating this conclusion, appellant contends counsel’s failure to object to the DSS at the disposition hearing deprived him of his constitutional right to the effective assistance of counsel. We disagree.
“The burden of proving ineffective assistance of counsel is on the defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To meet this burden, “a defendant must show both that counsel’s performance was deficient--it fell below an objective standard of reasonableness--and that defendant was thereby prejudiced.” (People v. Cash (2002) 28 Cal.4th 703, 734.) However, “ ‘there is no reason for a court deciding an ineffective assistance claim to … address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ ” (People v. Cox (1991) 53 Cal.3d 618, 656.)
In order to establish prejudice, the defendant must show “‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.’” (People v. Freeman (1994) 8 Cal.4th 450, 484.) “‘“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding....” [Citations.]’” (People v. Cox, supra, 53 Cal.3d at p. 656.) The defendant “‘must carry his burden of proving prejudice as a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’” (People v. McPeters (1992) 2 Cal.4th 1148, 1177.)
We need not reach the merits of appellant’s ineffective-assistance-of-counsel claim. Appellant’s claims as to the purportedly prejudicial effects of the inclusion of the previously stricken material in the DSS are entirely speculative. He may never suffer an adult conviction; there is nothing in the record to indicate the “level of security” to which appellant is subject at DCRJJ, let alone whether the DCRJJ assessment of the level of security was affected by consideration of erroneous information; and even if appellant is the subject of future juvenile court proceedings and the erroneous information finds its way into his juvenile case file in such proceedings, there is nothing to prevent appellant from calling to the court’s attention in such proceedings the previous order striking that information. Thus, on this record, appellant has not demonstrated he was prejudiced by counsel’s failure to object below to the inclusion of the erroneous information in the DSS.
DISPOSITION
The judgment is affirmed.