Opinion
A147438
03-16-2017
In re J.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 82782)
I.
INTRODUCTION
Appellant J.R. appeals from the juvenile court's finding that he violated the terms and conditions of his juvenile probation by not following the rules and regulations of the Youth Services Center (Center), and imposing an increase of one year to his custodial time in the Center. He contends: (1) the condition allegedly breached was not proven to have been imposed as a condition of his probation; (2) even if imposed, there was not substantial evidence that he violated that condition; (3) the condition of probation did not include "attempts" to violate that condition; (4) the condition he allegedly violated was unconstitutionally vague; and (5) the court abused its discretion in extending his custodial time by an additional year. Further, appellant asserts that his due process rights were violated because the probation violation notice did not advise him that the prosecution would seek to increase his custodial time as a result of the alleged violations.
An additional due process contention that the juvenile court failed to make an express finding that the previous order of probation had been rehabilitatively ineffective was withdrawn by appellant's counsel in a letter to this court dated August 24, 2016.
We reject these contentions and affirm the trial court's dispositional order.
II.
PROCEDURAL BACKGROUND
The record on appeal shows that appellant first became a juvenile ward of the court in February 2013, when he was placed on probation following a sustained petition for possessing a weapon on school grounds. The violations occurred after appellant became involved in a verbal and physical altercation with another student. The next day, appellant brought a switchblade knife to school.
Later that year, in November 2013, appellant was continued as a ward following sustained allegations that he committed misdemeanor theft and felony sales of marijuana. Appellant was placed on electronic monitoring following 25 days of therapeutic detention at the Center.
On April 14, 2014, appellant was continued as a ward following a new petition alleging that he was found in possession of a "billy club." The discovery resulted from a police response to a middle school the previous month where there had been a report of individuals gathering for a possible fight. Police detained appellant, who was uncooperative and denied being on probation. Police searched appellant and found in his possession a large, heavy, "police style" metal Maglite flashlight. At the dispositional hearing for this sustained offense, the juvenile court again placed appellant on 60 days of electronic monitoring following a period of therapeutic detention at the Center.
The juvenile petition underlying this proceeding was filed on April 27, 2015, and alleged that appellant violated Penal Code sections 245, subdivision (a)(1) (assault with a deadly weapon), 243, subdivision (d) (battery with serious bodily injury), 241, subdivision (c) (assault on a police officer), and 148, subdivision (a)(1) (resisting arrest). The petition also alleged that each of these crimes was committed in the furtherance of a criminal street gang, within the meaning of section 186.22, subdivision (a). The allegations were sustained on May 19, 2015.
These offenses stemmed from an incident in which appellant stabbed another minor during a group attack and then ran from the police when they arrived on scene. One of the officers identified appellant as a Cypress Parks Loco (CPL) Norteño gang member. After sustaining these allegations on June 8, 2015, the juvenile court ordered that appellant be placed on continued probation and detained in the Center for a period of 365 days.
As material conditions of continued probation, the juvenile court ordered that appellant "shall obey all rules and regulations of the [Center] and shall not leave or be absent from the facility without prior authorization of the Court." Appellant also was ordered to "follow the reasonable and proper directives and instructions of the [Center] staff and the probation officer."
On November 13, 2015, the county probation department filed a notice of violation of probation under Welfare and Institutions Code section 777, subdivision (a). The notice alleged that appellant violated his probation by failing to obey all rules and regulations of the Center when he attempted to attack another person while in custody.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
A detention report accompanied the notice, which stated that appellant was then 16 years old and in the ninth grade. The incident which led to the notice was described as an attack by appellant and six other Norteño gang members on two youths who were suspected to be Sureño gang members. The attack occurred on November 2, 2015 (the November 2 incident) at the main track and field area of the Center. The report noted further that this was the third fighting incident in which appellant had been involved during his year of custody, two of which involved "gang[] issues."
After formally denying the allegations, the matter was continued several times and a jurisdictional hearing was held on January 28, 2016. A "Behavioral Summary" was submitted for the hearing by the probation department reporting on appellant's behavior at the Center between December 4, 2015, and January 27, 2016. That summary placed appellant in the "average" category for all behavioral areas assessed. A narrative accompanied the summary form and noted: "[Appellant] has maintained an average stay on the Elm[]6 unit. He responds well to all staff and counseling when needed. He gets along well with other youth and participates in most activities offered to him on the unit. [Appellant's] attitude and behavior [are] acceptable. [Appellant] is enrolled at Hillcrest school where he is doing well."
The January 28, 2016 contested jurisdictional hearing on the allegation that appellant violated his probation centered around the testimony of Michael Davis, a group supervisor at the Elm 7 building at the Center. Part of his job was to inform the minors at the Center of the rules and regulations of the facility. This included that they were not to engage in fighting while there. If a fight occurred, the minors were to get down on the ground and keep their heads down. The minors were told the purpose of this rule was so the staff who respond to a fighting report could distinguish between who was and was not involved when they arrive. It was also a safety issue because if a minor in the area of a fight did not follow directions to get down, the staff would not know if they were a threat to staff members.
Davis testified that on the afternoon of November 2, 2015, there were about 28 youths in the area outside Elm 7 participating in fitness activities, including football and walking around the track. Some of them were sitting on the stairs with other group supervisors. Davis then saw two youths who he identified running from the field towards two of the youths who were walking on the track. The running youths were known gang members, and the two walkers were known to be rival gang members. The four began fighting. As Davis approached, he told the youths who were fighting to get down on the ground, and a directive was issued for other youths also in the area to do the same. The four continued fighting.
When Davis got closer to the fighters, he saw appellant approaching the area and "attempt[] to go after an unidentified youth." Davis then approached appellant, who began "backpedal[ling]" in the opposite direction. Davis assisted appellant to the ground and placed him in a handheld restraint. At that point appellant had gotten to within about 10-12 feet of the fighters.
Davis believed that appellant was planning to attack another youth. He reached this conclusion based on his knowledge that appellant had a number of past incidents at the facility, and that he was involved in gang activity. Davis concluded that the incident that day was a gang-related fight, and that is why he decided to stop appellant from approaching any closer. No other youths ran over to watch the fight.
After hearing Davis's testimony and the arguments of counsel, the court began making its findings by first noting it was clear from the testimony that appellant wanted to join this gang-related "fray." The court concluded that the fight was gang-related, not only based on appellant's prior gang-related incidents, but also based on the circumstances surrounding the event. The court also observed that this incident was similar to another incident that had occurred inside the Center's gym in July, when appellant had to be restrained and removed by another supervisor.
After finding that appellant was in violation of his probation, the juvenile court heard from counsel as to their respective views on an appropriate dispositional order. Appellant's counsel argued for "minimal hall time," while the district attorney suggested an "additional 120 days above and beyond the sentence that he already is serving."
The court then ordered that appellant's wardship be continued, and that he serve 365 days in the Center consecutive to his current term, with credit for any good time credit he earned. In doing so, the court stated:
"This is an extremely dangerous situation made worse by your participation.
"We have a lot of gang issues in the hall, and I know that the group supervisors discuss the safety features with everyone.
"The fact that you have a prior for the same thing, as well as a [Penal Code section] 245 felony; a battery with serious bodily injury; you have resisted arrest; and then that other battery in the hall, all of that entitles you to a severe sanction for this violation."
No objections were interposed by appellant's counsel, either to the court's determination that a probation violation had been proven, or to the additional custodial time imposed. The maximum period of confinement for the underlying offenses sustained on May 19, 2015, was five years six months.
III.
DISCUSSION
A. The Probation Condition Was Properly Imposed, and Supported by Substantial Evidence
As part of the June 8, 2015 order continuing appellant's probation, the juvenile court ordered that appellant "shall obey all rules and regulations of the [Center] . . ." as one of the conditions of probation.
Davis testified at the dispositional hearing that the minors housed at the Center were informed about the Center's rules and regulations, which included that there was to be no fighting between or among the residents. This is the condition the juvenile court found was violated by appellant during the November 2 incident.
Appellant contends that even if this condition of probation was imposed, there was insufficient evidence presented at the dispositional hearing that he violated it. In considering a sufficiency of the evidence claim in juvenile delinquency proceedings, this court applies the same standard of review that is applicable in criminal cases. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.) Thus, this "court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813-814.)
We conclude circumstantial evidence presented through Davis's testimony, including reasonable inferences from that evidence, supports the juvenile court's conclusion that appellant violated the rule of the Center that he not engage in fighting. Davis testified that as he approached to break up a fight involving four minors on November 2, he saw appellant jogging over in order to "go after" another unidentified youth. Appellant had ignored the previous order to get down on the ground, a direction familiar to all residents at the Center and one followed by other youths in the vicinity that day who were not involved in the questioned conduct. As Davis turned his attention to appellant and approached him, appellant stopped his advance and "backpedal[ed]" until Davis reached him and brought him to the ground. Davis concluded that appellant wanted to join in the fighting because he had been involved in a number of gang-related incidents at the facility, and that the altercation on November 2 similarly was a gang fight.
We refer to this additional rule not as an independent basis for sustaining the probation violation finding, but only as circumstantial evidence that appellant intended to engage in fighting but for the intervention of the supervisor.
We reject appellant's contention that, because he did not actually engage in a physical altercation, there was no violation of the condition of probation. The intervention of Davis, who forced appellant to the ground as he was backing away is the only reason appearing in the record for appellant not becoming fully engaged in a fight with another youth. We conclude that a reasonable understanding of the rule against fighting at the Center includes a prohibition against attempts to fight.
Appellant also argues that he could not have violated the condition of probation that required him to obey all rules of the Center where, at worst, he was attempting to violate a rule of the Center. Our determination that the rule of the Center which prohibited fighting is violated if one attempts to fight necessarily lead to our rejection of this assertion as well.
Similarly, we reject appellant's related claim that even if the Center's rule against engaging in fighting includes attempts to do so, the evidence was insufficient the support the court's conclusion that appellant was attempting to fight with another youth.
B. The Probation Condition That Appellant Obey All Rules and Regulations of the Youth Services Center Was Not Unconstitutionally Vague
Under section 730, subdivision (b), a juvenile court may impose "any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (§ 730, subd. (b).) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) The "underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.]" (Ibid.) "A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process." (People v. Freitas (2009) 179 Cal.App.4th 747, 750, disapproved on other grounds in People v. Hall (2017) 2 Cal.5th 494.)
Appellant contends that the probation condition he was alleged to have violated was unconstitutionally vague because it prohibited him from "attempting to attack" another youth, and that such a rule gives insufficient fair warning as to what conduct would violate the probation condition.
As an initial matter, we disagree with appellant that his challenge to a condition of probation has not been forfeited by his counsel's failure to object below. An appellant may challenge a probation condition as being unconstitutionally vague or overbroad on its face for the first time on appeal when the challenge presents a pure question of law that the appellate court can resolve without reference to the sentencing record. (Sheena K., supra, 40 Cal.4th at pp. 887-889; In re Kevin F. (2015) 239 Cal.App.4th 351, 357, disapproved on other grounds in People v. Hall, supra, 2 Cal.5th 494.) Here, appellant's challenge is not facial. It cannot be resolved as a matter of law without resort to the record. Accordingly, it has been forfeited.
Even if not forfeited, we would reject it on its merits. The language appellant claims is vague appears in the probation department's notice of violation, which describes the conduct constituting the violation as appellant's "attempt[] to attack another subject while in custody." While that may have been the act which constituted the violation, the condition of probation that he violated was that he obey the rules and regulations of the Center. As testified to by Davis, one of those rules violated by appellant was the one that prohibited fighting. In the context of this case, we find nothing vague about that condition. Therefore, even if not waived, we would affirm the dispositional order as not relying on a constitutionally vague term of probation.
C. The Juvenile Court Did Not Abuse Its Discretion by Imposing 365 Additional Days of Confinement as a Result of the Violation
As his next challenge to the dispositional order, appellant contends the juvenile court abused its discretion by imposing an additional year of confinement for the probation violation. He contends this term of confinement was "unreasonable, highly punitive, and disproportionate to the circumstances and gravity of the alleged violation." As we noted earlier, no objection was made by appellant's counsel to the imposition of this term.
On appeal appellant argues because his defense counsel argued in favor of "minimal hall time" as an appropriate period of additional confinement, that suffices as an objection to the court's determination that a year was more appropriate. We disagree that such a statement by counsel as a point in argument is a sufficient objection to the sentence. --------
A challenge to sentencing terms for the failure to state sufficient reasons or when allegedly based on improper circumstances requires the imposition of an objection. (People v. Gonzalez (2003) 31 Cal.4th 745, 755-756 [failure to object to discretionary sentencing choices in trial court forfeits issue on appeal]; People v. Scott (1994) 9 Cal.4th 331, 355 [defendant's claim that reasons used for sentencing were "inapplicable, duplicative, and improperly weighed" was waived]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider mitigating factors].) The failure of appellant to object below thus allowing the trial court to address his concerns forfeits the issue from consideration for the first time on appeal.
Recognizing the potential significance of forfeiture, appellant asks that we adjudicate on appeal that his counsel's failure to object below constituted ineffective assistance of counsel. We decline to do so.
" 'When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) Claims of ineffective assistance of counsel should not be raised on direct appeal "except in those rare instances where there is no conceivable tactical purpose for counsel's actions." (People v. Lopez (2008) 42 Cal.4th 960, 972.) " '[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citations.]" (Ibid.)
Appellant's counsel argues that there was no conceivable reason for trial counsel's failure to object. Respondent suggests that minor's counsel may not have objected because, given appellant's rather extensive history of physical confrontations, the term was justified and an objection would have been futile. Alternatively, respondent proffers that counsel may have concluded that the additional time at the Center was in appellant's rehabilitative interest. We agree with respondent that appellant has not made a showing that there was no conceivable reason for counsel's failure to object. Accordingly, we will not decide the ineffective assistance of counsel claim in this appeal.
D. Due Process Does Not Require That the Notice of Probation Violation Filed Under Welfare and Institutions Code Section 777 State That Additional Custodial Time Was Being Sought in the Same Facility Where Appellant Was in Custody
Appellant contends it was a violation of his due process right for the notice of probation violation not to provide him with notice that his custody time might be increased by an additional year. He asserts such notice is required by Welfare and Institutions Code section 777 (Section 777), the section relied on for the petition because the petition resulted "in a greater intrusion on the minor's liberty." (In re Geronimo M. (1985) 166 Cal.App.3d 573, 584 (Geronimo M.).)
Once again, respondent argues this contention on appeal has been forfeited because no objection was made below to the proceeding on this ground. We disagree. In this instance, the due process issue raised simply requires application of a rule of law to the face of the petition. Thus, as to this issue, the claim has not been forfeited. (People v. Welch (1993) 5 Cal.4th 228, 235; In re DeJohn B. (2000) 84 Cal.App.4th 100, 109-110.)
The introductory paragraph of Section 777 currently provides: "An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an order changing or modifying a previous order by directing commitment to the Youth Authority shall be made only after a noticed hearing."
Therefore, the notice demanded by appellant is required under Section 777 only when it is contemplated that the violation of probation referenced in the petition may result in (1) a minor being removed from the physical custody of family or friends; or (2) a direct commitment to the Youth Authority. All the cases cited by appellant apply this notice requirement in this limited way. (Geronimo M., supra, 166 Cal.App.3d at pp. 584-585 [probation revoked and minor removed from custody of uncle and committed to Youth Authority]; In re Ruben A. (1981) 121 Cal.App.3d 671, 675 [removal from parents' home and committed to a more restrictive placement with no notice]; In re Glenn K. (1977) 74 Cal.App.3d 342 [same]; In re Michael B. (1980) 28 Cal.3d 548, 553 ["where the prior offenses are to be considered to aggregate the maximum term to extend it beyond that which could be imposed for the new offense, due process requires notice of the juvenile court's intention in order to provide the minor with a meaningful opportunity to rebut any derogatory material within its prior record"].) No authority has been cited holding it is a due process violation to extend probation, and require a period of additional custodial time be served where that additional time of confinement is within the maximum period of confinement for the underlying offense, and where there is no change in custody. Therefore, we reject this last claim of error.
IV.
DISPOSITION
The challenged dispositional order is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.