Opinion
D075758
08-11-2020
In re J.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.P., Defendant and Appellant.
Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Susan E. Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCM238878) APPEAL from an order of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed. Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Susan E. Miller, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant J.P. appeals from the juvenile court's dispositional order committing him to the Youth Offender Unit (the Y.O.U.), following sustained allegations that J.P. violated the terms of his probation, which were imposed after J.P. admitted to committing three counts of misdemeanor vandalism and the court adjudged him a ward of the court pursuant to Welfare and Institutions Code section 602.
On appeal, J.P. contends that his trial counsel provided ineffective assistance by failing to correct the court with respect to errors in probation reports filed during the proceedings. The reports described J.P.'s underlying offenses as felonies when in fact, they were misdemeanors. The final of those reports also referred to one of J.P.'s current adult convictions as a felony when the offense at issue was a misdemeanor. J.P. further contends that his counsel provided ineffective assistance when she referred to his underlying juvenile offenses as felonies during argument regarding the appropriate disposition.
We conclude that although trial counsel's performance was deficient, J.P. cannot demonstrate that he was prejudiced as a result of that deficient performance. He thus cannot prevail on his claim of ineffective assistance of counsel. We therefore affirm the dispositional order of the trial court.
II.
GENERAL BACKGROUND
On June 28, 2016, the San Diego County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, alleging that J.P. had committed seven counts of misdemeanor vandalism (Pen. Code, § 594, subds. (a), (b)(2)(A)).
On February 14, 2017, J.P. admitted the allegations pertaining to three of the counts, and the court dismissed the other four counts with a Harvey waiver. Specifically, J.P. admitted that on November 5, 2015, December 21, 2015, and January 30, 2016, he "unlawfully and maliciously defaced with graffiti . . . property belonging to the City of Escondido," and caused damages valued at under $400 per incident. In March 2017, the court adjudged J.P. a ward of the court pursuant to Welfare and Institutions Code section 602, ordered him to serve 30 days of in-home supervision, and placed him on juvenile probation.
People v. Harvey (1979) 25 Cal.3d 754, 758.
On May 12, 2017, December 6, 2017, August 21, 2018, September 11, 2018, and November 1, 2018, J.P. admitted having violated the terms of his probation. After each admission, the court continued J.P. as a ward of the court and placed him in various programs, which included Breaking Cycles Camp Barrett and outpatient drug treatment programs. After J.P. turned 18, the court ordered him to enroll in an adult residential treatment program. After J.P.'s November 1, 2018 admission that he had violated the terms of his probation, the trial court imposed a Y.O.U. commitment, but stayed that commitment in order to provide J.P. with one final opportunity to succeed in a residential treatment program and complete probation without further criminality.
In March 2019, J.P. was once again alleged to have violated probation, this time by failing to successfully complete an adult residential treatment program, failing to report to probation, failing to comply with all federal, state, county, and city laws, and knowingly using controlled substances. In April 2019, J.P. admitted to all of the violations alleged. At that point in time, the trial court committed J.P. to the Y.O.U.
J.P. filed a timely notice of appeal from the court's dispositional order on April 29, 2019.
III.
DISCUSSION
J.P. argues that his trial counsel rendered ineffective assistance by failing to correct factual errors in the probation reports that referred to J.P.'s underlying vandalism offenses and to a current adult offense as felonies rather than misdemeanors, and also by referring to the underlying vandalism offenses as felonies during argument before the trial court. J.P. asserts that it is reasonably likely that he would have obtained a more favorable result if counsel had brought to the court's attention that J.P.'s underlying offenses were in fact nonviolent misdemeanors, rather than felonies. A. Additional relevant background
The Welfare and Institutions Code section 602 petition in this case was filed on June 28, 2016. It alleged that J.P. had committed seven counts of misdemeanor vandalism (Pen. Code, § 594, subds. (a), (b)(2)(A)). After J.P. admitted to three of the misdemeanor counts and the remaining four counts were dismissed, the court adjudged him to be a ward and placed on probation.
A probation violation report alleging that J.P. had violated the terms of his probation by using cocaine, marijuana, and alcohol and not attending school on a regular basis was filed on May 11, 2017. The probation report prepared for the hearing on the petition identified J.P.'s initial charges as misdemeanor vandalism charges. J.P. admitted the truth of the probation violation allegations, and the court committed him to a program called Breaking Cycles Camp Barrett for a period not to exceed 150 days.
In November 2017, another probation violation report was filed. The report alleged that J.P. had violated probation by possessing and using methamphetamine, marijuana, and alcohol, leaving his court-ordered placement without permission, and failing to report to court-ordered hearings as directed by the probation officer. The probation report prepared for the adjudication hearing on the probation violations identified J.P.'s initial charges as misdemeanor vandalism charges. After J.P. admitted the truth of the probation violations, the court committed J.P. to the Breaking Cycles Camp Barrett program for a period not to exceed 365 days.
Another probation violation report was filed in August 2018, alleging that J.P. had violated probation by failing to report for a review hearing. The probation violation report identified J.P.'s original charges as misdemeanor vandalism charges. However, in a section of a probation report filed on August 16, 2018 titled "Probation Adjustment" (underscore, boldface and some capitalization omitted), the probation officer stated that J.P. had incurred true findings as to three "felony" counts of vandalism. J.P. admitted the probation violation. The court ordered J.P. placed at home, and ordered that he submit to electronic surveillance and enroll in and successfully complete an outpatient drug treatment program.
On September 10, 2018, a probation violation report was filed alleging that J.P. had violated probation by failing to meet with his probation officer, failing to attend adult outpatient drug treatment, failing to abide by the conditions of home supervision, and consuming alcohol and smoking marijuana. J.P. admitted the truth of the allegations. The court committed J.P. to the Breaking Cycles Camp Barrett program again, and ordered that upon completion of that program, J.P. enroll in an adult outpatient drug treatment program.
Another probation violation report was filed on October 31, 2018, alleging that J.P. had violated probation by failing to enroll in an adult outpatient drug treatment program, failing to abide by the conditions of home supervision, failing to submit to properly identifying himself as being on probation, and smoking and being in possession of marijuana. The probation report prepared for the adjudication hearing with respect to this petition identified the original true findings as involving misdemeanor vandalism charges. J.P. admitted the truth of the probation violation allegations. At the dispositional hearing, the trial court granted J.P.'s request to participate in a residential treatment program. The court imposed, but stayed a Y.O.U. commitment, pending J.P.'s successful completion of an adult residential treatment program. The court told J.P. at this hearing: "Well, here's what I will do. I'm going to impose the YOU program but I'm going to stay it. I'm going to stay it, meaning -- what that means is I'm going to order the [residential treatment program], okay, so we will have you participate in a residential treatment program, but if you walk away from that program, if you leave that program, then you are going to do the YOU program. Do you understand?" J.P. responded, "Yeah, I understand." The court then said, "You won't be able to come in here and say, you know, 'I --," at which point, J.P. interrupted and stated, "Yes, I know. I just want to, like, finish my high school credits here while I wait for them to pick me up."
The probation violation report that led to J.P.'s ultimate commitment to the Y.O.U. was filed on March 18, 2019. That report alleged that J.P. had violated probation by failing to complete his residential treatment program, failing to report to probation, failing to obey all laws, and using and possessing drugs. The report included information regarding J.P.'s initial offenses, including the fact that they were misdemeanor offenses. However, in setting forth the circumstances of the instant offenses underlying the violation proceedings, the report described J.P. as having been arrested for "felony" possession of a controlled substance, misdemeanor possession of drug paraphernalia, and misdemeanor false identification to a peace officer. In fact, J.P. had not been arrested on any felony charges. When a complaint was filed against J.P. in the adult criminal court the following day, it alleged only that J.P. had committed three misdemeanor offenses.
On September 23, 2019, J.P. filed an unopposed request that this court take judicial notice of three documents filed in the adult criminal proceeding that formed the basis of J.P.'s probation violation and led to the dispositional order from which J.P. now appeals. Specifically, J.P. seeks to have this court judicially notice the complaint filed in his related adult criminal matter, as well as two minute orders that reflect the status of proceedings in J.P.'s adult criminal matter at the time of the juvenile dispositional order that is the subject of this appeal. This court may take judicial notice of the "[r]ecords of . . . any court of this state" pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a). We agree with J.P. that these documents are relevant for the purpose of demonstrating that an error was indeed included in the probation report filed for the purpose of the dispositional hearing at issue on appeal, at least with respect to that report's description of one of J.P.'s recent offenses as a felony rather than a misdemeanor. We therefore grant J.P.'s unopposed request for judicial notice, and rely on these documents to confirm that J.P. was charged as an adult with misdemeanor offenses only on March 19, 2019. --------
On March 20, 2019, J.P. appeared in juvenile court and entered a denial as to the probation violation allegations. That day, the court denied J.P.'s request to be released with GPS monitoring, and instead ordered that he remain in custody pending adjudication and disposition on the probation violation allegations. At that hearing, the court indicated that it was "highly unlikely" that the court would not commit J.P. to the Y.O.U. at the dispositional hearing, given that the court had already ordered commitment to the Y.O.U. but stayed execution of the commitment to provide J.P. with one final opportunity to succeed in a residential treatment program
J.P. next appeared in juvenile court on April 4, 2019. In preparation for that hearing, the probation department filed a predispositional report in which it recommended that J.P. be released and admitted into an inpatient drug treatment program rather than committed to the Y.O.U. In describing the history of J.P.'s case, the probation report referred to the original underlying true findings as consisting of "three felony counts" of vandalism. The probation report also described J.P.'s recent adult charges as including a charge for "felony" possession of a controlled substance.
At the April 4th hearing, J.P. admitted the truth of the probation violation allegations. During arguments before the court regarding the appropriate disposition, defense counsel offered the following argument:
"This is still a juvenile matter. Rehabilitation should be and must be our primary goal. And when I hear the program that he potentially is going into say that placing him there -- [¶] I mean, the underlying offense in this case is a felony vandalism [offense]. Placing [J.P.] with this population [at Y.O.U.] does seem concerning. It's certainly concerning and seems not to fit the rehabilitative goals of this proceeding, so I would ask the court to take that to heart in fashioning the disposition today. [¶] I do understand that the recommendation is that he follow the treatment program that was imposed by the adult court. [¶] I think an alternative, if the court were to not agree with that, would be to allow him to [be placed in] a residential treatment program, but I think that Y.O.U. is not an appropriate rehabilitative step for [J.P.] at this point. (Italics added.)
The People disagreed with the recommendation from the probation department and with defense counsel's request, and instead sought to have the court execute the Y.O.U. commitment that it had previously imposed, but stayed, arguing that this would be J.P.'s "last chance for rehabilitation in the Y.O.U. program to get what he needs to get done[,] to get educated, get skills, to, number one, kick this horrible habit," given that J.P. was no longer a juvenile.
The trial court ultimately concluded that a commitment to the Y.O.U. was appropriate, stating:
"Yes, I do have to admit as well that I was shocked by [the] Probation[ ] [Department's] approach, more or less criticizing their own program. There certainly are youth that are in the program that are gang entrenched, but the program itself is touted by Probation to be state of the art and has substance abuse treatment and other counseling, job training, all the things that [J.P.] could really utilize. He does have a problem with methamphetamine and marijuana.
"We had a good conversation -- this is now back several months, but back in -- I think it was November, you know, he said, 'Judge, I just want a chance. Just give me a chance. I will show you that I'm going to focus on my sobriety.'
"He literally was at the program for hours before he just left, which was shocking to me and disturbing when I had him in my courtroom and he says he's really committed. And I don't -- I always like to give an opportunity, but I also --
"And hopefully, [J.P.], you remember this, but when I said to you, 'Look, I'm going to believe in you. I'm going to give you this opportunity, but I want you to understand that if you don't really commit yourself to this, then I'll be left with Y.O.U. I'll have no alternative.'
"And you sat there and you said, 'Judge, I understand. You know, this just means a lot to me. This means a lot to me, and I'd like to get the treatment.'
"And you didn't take it seriously, and then you're out and admitting you engaged in -- [¶] . . . [¶] . . . -- further criminality. You picked up an adult offense, so I think we're going to need to -- despite Probation's criticism of their own program, I'm afraid I think that is an appropriate program. It's going to give you a chance to really work on yourself and improve yourself while in a more structured environment."
The court ordered that the stay of J.P.'s commitment to the Y.O.U. be lifted and that J.P. be transferred to juvenile hall in order to begin his commitment in the Y.O.U. program. B. Analysis
In order to establish a claim for ineffective assistance of counsel, a party must show not only that counsel's performance was deficient and fell below an objective standard of reasonableness, but also that it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Without a showing of prejudice, a claim of ineffective assistance of counsel fails. (People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)
We agree with J.P. that his trial counsel's performance fell below an objective standard of reasonableness. "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, "[w]hen the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 675.) Here, we can conceive of no tactical purpose for an attorney not to correct factually inaccurate probation reports that refer to the client's prior misdemeanor offenses as "felonies." There can be no reasonable strategy that would benefit from allowing the court to be misdirected as to the nature and seriousness of the offenses committed by a client. Counsel not only failed to correct the inaccuracies in the most recent probation reports, but compounded the effect of the errors in those reports by referring to J.P.'s misdemeanor vandalism offenses as "felonies," herself, in her argument to the court regarding the appropriate disposition. Again, we can conceive of no tactical purpose for repeating to the court misinformation concerning the nature of the underlying offenses, particularly when such misinformation improperly suggested to the court that J.P. had committed more serious offenses than he actually had.
The People nevertheless argue that defense counsel's failure to inform the court about the errors in the probation reports and counsel's repetition of at least one of these errors in arguments before the court did not amount to "deficient performance" because counsel "could have inferred that the court knew that the reference in the later March 2019 probation report referring to the original charges as felonies was a mistake," apparently because the same judge presided over many of the proceedings. We reject this argument. Even if counsel could have "inferred" that the court would remember that the original charges were misdemeanors and not felonies, such an inference would not relieve counsel of the obligation to ensure that the court was operating with accurate information regarding the nature of the client's prior offenses. There could have been no tactical purpose for failing to confirm that the court knew and understood that J.P. had not in fact incurred true findings or been convicted of any felony offense, even if counsel had believed that the trial court was aware that the offenses were misdemeanors.
However, we do not agree with J.P.'s contention that absent his trial counsel's failures, the trial court would not have committed J.P. to the Y.O.U. To obtain relief, J.P. must demonstrate " 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (In re Gay (2020) 8 Cal.5th 1059, 1086-1087.) We conclude that it is not reasonably probable that the court would have committed appellant to a less restrictive placement than the Y.O.U. if defense counsel had reminded the court that the original vandalism counts and the current charge for possession of a controlled substance were misdemeanors.
The record demonstrates that the trial court was concerned about J.P.'s drug use, and the court understood that the Y.O.U. had programs intended to help J.P. Further, the court had imposed, but stayed, a Y.O.U commitment at the previous detention hearing, well before the final probation reports incorrectly identified J.P.'s underlying offenses and his current offense as felonies, and well before defense counsel referred to the underlying vandalism offenses as felonies. The trial court informed J.P. at that time, and after having received a probation report that accurately identified his underlying offenses as misdemeanors, that if he violated probation again, the court would have " 'no alternative' " but to impose the Y.O.U. commitment. Indeed, when J.P. violated probation after the court's warning about the Y.O.U. commitment, the court very clearly told J.P. that it intended to impose the Y.O.U commitment, given J.P.'s failure to succeed after having been given one final opportunity. Again, the court said to J.P.:
"And you sat there and you said, 'Judge, I understand. You know, this just means a lot to me. This means a lot to me, and I'd like to get the treatment.' [¶] And you didn't take it seriously, and then you're out and admitting you engaged in -- [¶] . . . [¶] . . . -- further criminality. You picked up an adult offense, so I think we're going to need to -- despite probation's criticism of their own program, I'm afraid I think that is an appropriate program. It's going to give you a chance to really work on yourself and improve yourself while in a more structured environment."
It is clear that the trial court did not decide to commit J.P. to the Y.O.U. program based on an incorrect belief that J.P.'s underlying offenses were felonies rather than misdemeanors or that one of his recent adult offenses was a felony rather than misdemeanor. The court's comments demonstrate that the court merely ordered that the commitment to Y.O.U. that the court had previously imposed, but stayed, be executed. The court determined that the Y.O.U. program would provide J.P. with the appropriate level of rehabilitation, given his continued criminality while on probation. We thus conclude that defense counsel's failure to correct the errors in certain probation reports filed during these proceedings, combined with defense counsel's oral reference to the underlying vandalism offenses as felonies, did not result in prejudice to J.P. At the time the trial court decided that J.P. would be given one final opportunity to avoid a Y.O.U. commitment by imposing, but staying, the commitment, the court had been provided a probation report that accurately described J.P.'s original, underlying offenses as misdemeanor offenses. Once J.P. committed yet another probation violation, after having been told that he would be given no further opportunities to avoid a Y.O.U. commitment, the trial court committed J.P. to the Y.O.U. Given this record, we are confident that defense counsel's failure to bring to the court's attention that the final probation report erroneously described the underlying offenses and a recent adult conviction as felonies rather than misdemeanors, and defense counsel's oral reference to the underlying offense as felonies, did not affect the trial court's decision to order J.P. committed to the Y.O.U.
J.P. argues that People v. Romero (1977) 68 Cal.App.3d 543, 550-552, supports his contention that counsel's failure to correct misinformation in the probation reports and counsel's repeating some of the same misinformation during oral argument "likely led to the juvenile court's ultimate decision" to commit him to the Y.O.U. Romero does not alter our view of the lack of prejudice in this case. Romero involved a defendant who had been convicted of aiding and abetting the sale of a balloon of heroin. (Id. at p. 552.) The defendant requested commitment to the California Rehabilitation Center, but the trial court denied the request, citing the defendant's " 'excessive criminality' " and " 'lengthy record.' " (Id. at p. 549.) What had been included in the probation report was the defendant's " 'arrest record,' " and that " 'arrest record' " included 31 entries, 15 of which had resulted in " 'No Disposition' " or "dismiss[als]." (Id. at p. 550.) The appellate court concluded that the trial court had relied at least in part on mere " 'police contacts' " in concluding that the defendant had engaged in " 'excessive criminality,' " (id. at p. 549) and agreed with People v. Calloway (1974) 37 Cal.App.3d 905, 908-909, that the inclusion in probation reports of mere police contacts, in the absence of "additional facts . . . which indicate the applicant was involved in the listed offenses despite the fact he was not arrested, charged or convicted of them" (id. at p. 909), can result in prejudice to the defendant. (Romero, at pp. 549-550.)
Unlike Romero, where it was clear that the trial court had relied on prejudicial information contained in the probation report regarding the defendant's contacts with police that had not resulted in actual convictions, in this case it is clear that the trial court arrived at its decision that a Y.O.U. commitment would best serve J.P.'s interests at a hearing that took place after the trial court was provided with correct information about the nature of J.P.'s underlying offenses, and before the final probation reports that inaccurately identified his underlying offenses and one of his current adult offenses as felonies. When the court committed J.P. to the Y.O.U., the court was following through with its earlier determination that a Y.O.U. commitment would be the appropriate disposition if J.P. were unable to refrain from committing further probation violations.
IV.
DISPOSITION
The order of the trial court is affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. DATO, J.