Opinion
C089575
08-12-2020
In re R.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJC-JV-DE-2018-0001748)
The minor, R.H., appeals from a judgment following the juvenile court's determination that he committed assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), which the court reduced to a misdemeanor (§ 17, subd. (b)). The minor was adjudged a ward of the court and placed on probation. He now challenges the condition of probation requiring him to submit to random drug testing, arguing it is unreasonable under People v. Lent (1975) 15 Cal.3d 481. We will affirm judgment.
Undesignated statutory references are to the Penal Code.
We will not address the minor's argument concerning the substance abuse treatment program more generally, which was solely raised in his reply brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) --------
BACKGROUND
The People's March 29, 2019 wardship petition alleged the 15-year-old minor had committed assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). Following a contested jurisdictional hearing, the court found the allegation true. The minor attacked the victim in an apparent attempt at retribution for the victim's accusing the minor's cousin of cell phone theft. The minor punched the victim between 10 and 20 times, causing a black eye and two bruises to the back of his head.
According to the probation report, the minor was in the 10th grade with grades ranging from A's to C's. He had no prior record and denied involvement with gangs. While the minor denied drug use, he admitted having "tasted" alcohol. The report recommended the minor complete anger management, abstain from using drugs or alcohol, abide by a curfew, and "participate in a program of substance abuse detection and treatment at the direction of the Probation Officer."
At the disposition hearing, the minor objected to probation's recommendation of anger management, the People's request for 40 hours of community service, and to his curfew because they would interfere with his participation in football. Ultimately, the court imposed the complained-of conditions, but over the People's objection reduced the charge to a misdemeanor pursuant to section 17, subdivision (b).
The court also imposed drug- and alcohol-related conditions, stating: "He is ordered to participate in a program of substance abuse and detection. [¶] That means, [you], as a condition of your probation, you can be drug tested at any time by the probation department. If you are to test positive, that could be a violation of your probation. [¶] You're not to knowingly use or possess any drug, narcotic, marijuana or alcohol or associate with people that you know illegally use or possess those substances." The minor did not object to these conditions and indicated he had no questions for the court. The minor timely appealed.
DISCUSSION
The minor challenges the juvenile court's imposition of a condition of probation requiring him to submit to random drug testing, arguing it is unreasonable under People v. Lent, supra, 15 Cal.3d 481. Recognizing this issue has been forfeited by virtue of his non-objection in the trial court (People v. Welch (1993) 5 Cal.4th 228, 237), he argues this court should exercise its discretion to reach the issue and that his counsel was ineffective for failing to object. We disagree.
As the California Supreme Court has explained: "A criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"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. It is particularly difficult to prevail on an appellate claim of ineffective assistance." (People v. Mai, supra, 57 Cal.4th at p. 1009.) " ' "[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.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The minor has failed to demonstrate that his counsel could have no tactical reason for failing to object to the drug testing condition. On the contrary, the minor's counsel selectively objected to the requests for community service and anger management because he thought they would interfere with his participation in football. The court rejected his objections, but sua sponte reduced the minor's felony adjudication to a misdemeanor. Having received such a generous disposition from the court, it is entirely probable that the minor's counsel actively chose not to object to a testing condition intended to ensure the minor abstain for substance use already forbidden in light of his status as a minor.
Nor do we think such a condition was unreasonable in this matter. While denying drug use, the minor admitted to previously trying alcohol. Alcohol consumption by the minor is illegal (Cal. Const., art. XX, § 22) and can be a gateway to more serious criminality. (In re Kacy S. (1998) 68 Cal.App.4th 704, 710.) As such, monitoring the minor for use of alcohol and other illicit substances was reasonably related to future criminality. (Ibid.) Thus, the minor has failed to establish he was prejudiced by his counsel's failure to object to the imposition of the random drug testing term authorized by Welfare and Institutions Code section 729.3.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
MURRAY, J.