Opinion
D075080
01-31-2020
In re DEVIN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DEVIN C., Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J241503) APPEAL from an order of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
In August 2018, the People filed an amended petition under Welfare and Institutions Code section 602 alleging Devin C. committed the felony of unlawfully possessing a knife on school grounds (Pen. Code, § 626.10, subd. (a)(1); count 1) and the misdemeanor of unlawfully brandishing the knife, a deadly weapon, in a rude, angry and threatening manner (Pen. Code, § 417, subd. (a)(1); count 2).
In October 2018, the juvenile court sustained the allegation as to count 1 only, finding that "the People have proven beyond a reasonable doubt that [Devin C.] was indeed in possession of a knife on school grounds without the permission of school authorities. . . . I should note that that particular count carries with it, it is a felony, it does carry with it a maximum period of confinement of three years." (Emphasis added.) The minute order states: "After considering evidence and testimony, the petition is sustained and the minor is in violation of Count 1, [Penal Code] section 626.10 [, subdivision] (a)(1), a felony." (Emphasis added.)
The probation report identified the Penal Code section 626.10 (a)(1) true finding as "a felony," and stated the maximum aggregate confinement time was three years. It recommended that Devin serve probation without wardship. At the disposition hearing, the court rejected that recommendation and instead adjudged Devin a ward of the state under the supervision of the probation officer.
DISCUSSION
Devin does not challenge the sufficiency of the evidence to support the court's rulings; therefore we need not set forth the facts regarding the underlying charge. The probation department's report issued after the hearing and the court's true finding states: "The instant offense occurred on [March 1, 2018,] when Devin displayed a knife toward three female students during an argument on [a high school campus]. . . . Devin maintains his innocence and denied committing the transgression."
Devin contends the juvenile court failed to properly exercise its discretion under Welfare and Institutions Code section 702 and California Rules of Court, rule 5.780, (e)(5) in determining whether the wobbler offense of possessing a knife on school grounds was punishable as a felony or misdemeanor. Devin therefore urges us to remand the matter for the court to make that determination. He alternatively argues that even if we conclude "the juvenile court did not err in failing to make the requisite determinations regarding the nature of the offense as a misdemeanor or felony," we should still reverse the order because his counsel was ineffective for not requesting the court to reduce his offense to a misdemeanor. We affirm the order on grounds the court declared the offense was a felony.
Devin also contends that probation condition No. 5 violates his federal constitutional right to due process, as it is impermissibly vague and overbroad. However, in supplementary briefing, the People informed this court that as of June 2019, he is no longer on probation, his case was closed, and the record sealed. Thus, we regard this contention as moot. (In re Charles G. (2004) 115 Cal.App.4th 608, 611 [termination of probation mooted complaints regarding probation conditions].) --------
Welfare and Institutions Code section 702 provides that, in a juvenile proceeding, "[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." In interpreting that statute, the California Supreme Court has explained: "[T]he requirement that the juvenile court declare whether a so-called 'wobbler' offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702." (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.)
California Rules of Court, rule 5.780 (e)(5) provides that if the court in a Welfare and Institutions Code section 602 matter determines by proof beyond a reasonable doubt that the petition's allegations are true, the court must make findings on "the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony." Here, the juvenile court complied with the above law by orally pronouncing that the crime was a felony, and by expressly stating so in its minute order.
We reject Devin's ineffective assistance of counsel claim. To establish that claim, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant must establish by a reasonable probability that if counsel's performance was not deficient, he would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.)
Here, the record does not indicate the basis for defense counsel's decision not to request the trial court reduce Devin's offense to a misdemeanor. The California 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.) Nothing in the record shows defense counsel was asked for an explanation and failed to provide one. Moreover, a satisfactory explanation for defense counsel's decision is that because the prosecutor had charged the crime as a felony, the court had designated it a felony and it had rejected the probation's department recommendation for a more lenient resolution of this matter, counsel could have reasonably concluded that it would be counterproductive to press the court for a misdemeanor ruling at that time. Defense counsel could have elected to revisit the issue in six months, when he could make a stronger case based on Devin's expected compliance with probation.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.