Opinion
A145725
11-06-2017
In re Sean S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SEAN S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J13-00366)
After appellant Sean S. admitted violations of juvenile probation, the juvenile court issued an order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On appeal from that dispositional order, appellant contends reversal is required because the juvenile court violated his due process rights by alleging in the notice of probation violation relatively minor conduct, while basing its disposition on unreliable hearsay information alleging more serious conduct. Appellant contends the juvenile court abused its discretion by ordering DJJ commitment and failed to exercise its discretion in setting the maximum term of confinement. Appellant also contends his trial counsel rendered ineffective assistance in failing to advocate for a lower maximum term of confinement. We reject these contentions and affirm.
I. BACKGROUND
A. Underlying Offense
As described in the probation report, on the evening of March 21, 2013, appellant was driving a Dodge Charger with three passengers when they pulled up next to an adult male who was walking down the street. The car stopped and front seat passenger J.M. got out of the car, followed by H.B., J.W., and appellant. J.M. pointed a gun at the victim and demanded money, while appellant and the other two minors took the victim's cell phone and backpack. During the struggle to hold onto his property, the victim attempted to defend himself by hitting the gun away from his face. When he did so, the victim could feel that the gun was plastic. Appellant and the other three minors fled the scene in the same car and were later apprehended during a traffic stop. Before stopping the car, the responding officers saw one of the occupants throw a backpack out of the car; the backpack was later identified as belonging to the victim. The victim identified appellant and his three passengers as the people who robbed him. During a search of the car, the officers found a black BB gun with an attached nine-millimeter handgun magazine containing live nine-millimeter rounds.
On March 25, 2013, the Contra Costa County District Attorney's Office filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging appellant had committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)).
All further undesignated statutory references will be to the Welfare and Institutions Code.
On May 1, 2013, following a contested jurisdictional hearing, the trial court adjudged appellant a ward of the court, placed him in the Orin Allen Youth Rehabilitation Facility (OAYRF) for a 12-month program, and imposed various conditions of probation. The probation conditions required, inter alia, that appellant obey all laws, attend school, report to his probation officer as directed, maintain a curfew, refrain from using any illegal drugs, and submit to drug testing. Appellant graduated early from OAYRF and was released on parole on January 17, 2014. B. First Probation Violation
At appellant's parole review hearing on April 18, 2014, the probation department informed the juvenile court that appellant had been performing well in some respects. He had been testing negative for drugs, meeting with probation, and abiding by his curfew "for the most part." However, there were issues between appellant and his mother regarding appellant's failure to get a job in order to help support the family. In addition, appellant had tried to excuse himself from school on two occasions. Appellant had been improving in school, but he missed class on April 10, 2014 and violated his curfew that same evening.
When he appeared in court for his April 18, 2014 parole review hearing, appellant tested positive for marijuana. The juvenile court detained appellant in the county jail and ordered that a notice of probation violation be filed.
On April 21, 2014, the probation officer filed a probation violation notice (§ 777) alleging that appellant violated the no illegal drug condition of his probation by testing positive for THC. In the accompanying report, the probation officer acknowledged that appellant's actions were deserving of consequences, but did not believe that his behavior required additional time in custody. Rather, the probation officer recommended appellant be placed on home supervision for 60 days, which would hold him accountable for his behavior and allow him to continue attending high school. The probation officer also believed that the home supervision program would allow appellant to attend outpatient substance abuse counseling and assist probation in monitoring his behavior in the community.
At the April 22, 2014 probation violation hearing, appellant admitted the violation. The juvenile court sustained the petition and ordered appellant to serve 90 days on home supervision and complete an outpatient substance abuse program. Appellant's OAYRF parole was terminated as unsuccessful. C. Second Probation Violation and DJJ Commitment
On October 31, 2014, the probation officer filed a second notice of probation violation, alleging that appellant had violated the terms of his probation by: (1) failing to attend school on October 24, 2014 and October 27, 2014; (2) failing to keep appointments with his probation officer on August 22, 2014 and October 24, 2014; and (3) leaving home without permission on October 23, 2014. The notice further stated that appellant's whereabouts were unknown. A bench warrant was issued.
Almost seven months later, on May 17, 2015, appellant was apprehended by the Alameda County Sheriff's Department as he was driving into a motel parking lot in San Leandro. Appellant was arrested on the outstanding no bail warrant from Contra Costa County.
At the May 29, 2015 probation violation hearing, appellant acknowledged he understood all of his rights in connection with the probation violation notice and admitted the violations alleged in the notice. The juvenile court determined that appellant had freely made his admission and that, based on the stipulation of counsel, there was a factual basis for the admission. At this point, appellant's counsel asked that appellant be released on his own recognizance. Counsel argued that "[a]lthough he did just admit a violation of probation, he's not been accused of any additional crimes." Both the People and the probation officer opposed release and requested that appellant remain detained in light of the fact that he had absconded from supervision for seven months. The juvenile court stated it wanted more information about the details of appellant's arrest. The court further advised that "given the nature of the allegation that led to his being a ward of the court, he is looking at a potential commitment to DJJ. It's a very serious offense."
1. Dispositional Report
The probation department's June 11, 2015 dispositional report, authored by Deputy Probation Officer Amy Decker, noted that appellant's mother reported that appellant had left home on October 23, 2014, and that she had not seen or heard from him since that time. Appellant's mother said that, shortly after appellant left home, she received a text from an "unknown person" with a photograph of appellant holding up a lot of money; the photograph appeared to be a copy of a Facebook post. Appellant's mother reported that, although she was concerned about his behavior, she did not want his poor decisions to continue impacting her home or her young daughter.
Neither a digital image nor hard copy of the photo was presented below; the record on appeal contains only a description of the photo.
Decker provided additional details about appellant's May 2015 arrest. Appellant had provided a false name to the Alameda County Sheriff's Deputy when he was pulled over in the motel parking lot. When questioned by the deputy, appellant apologized and gave his real name. Appellant reportedly was driving his girlfriend's car, despite having no driver's license or insurance.
Decker interviewed appellant at the county jail, where appellant admitted he did not report to probation as directed because he knew he would "test dirty." Appellant explained he had been smoking marijuana and, as a result, he did not want to report or drug test, so he left home and stopped attending school. He also said that he wanted to be done with probation and "start fresh."
Decker asked appellant what he had been doing for the past six months and how he had been living on his own without having a job. Appellant reported he been staying in Oakland with his grandmother, his "auntie," or his girlfriend. When Decker expressed concern about the circumstances under which appellant had been arrested and her suspicion that appellant's girlfriend may be involved in human trafficking, appellant responded, "No, I would never do that. At least not while she's pregnant."
Appellant admitted to smoking marijuana daily over the past six months, sometimes twice a day. He thought the Deciding, Educating, Understanding, Counseling and Evaluation (DEUCE) program at the county jail could help him with his marijuana use. Appellant, however, insisted he could function well and observed he had made the honor roll at his high school in October 2014 despite his marijuana use. Appellant reported that he had completed 200 high school credits and that he was told he would need only 190 credits to get a high school diploma while in the county jail.
Decker opined that, in light of the fact that appellant was 19 years old, did not want to receive further services through probation, and desired to continue smoking marijuana, it did not appear that appellant was amenable to further juvenile probation services. Decker also noted that appellant was expecting a child and needed to get a job and/or continue with his education. She added that appellant must reconsider his daily marijuana use and behavior in the community if he wanted to be able to raise his child and be a supportive father and role model.
In her disposition report, Decker recommended that appellant remain a ward of the court and that he remain in custody in the county jail, where he could participate in and complete the DEUCE drug treatment program and parenting classes.
2. Dispositional Hearings
At the start of the June 11, 2015 dispositional hearing, the juvenile court stated that it had read and considered the probation officer's report and recommendation. The court advised the parties as follows: "I have to tell you, I think this recommendation wholly misses the mark, and I'm wondering why this should not be a commitment to DJJ. So I wanted to give you that information at the forefront of this hearing, Counsel, in case you wanted to set this for a contested hearing." Appellant's counsel indicated that he'd seek a contested hearing if that was the court's inclination. The court responded, " I have to say, it is the Court's inclination because I believe the conduct that this minor has engaged in—well, he has absconded supervision of probation. And this Court looked back at the original offense that brought him before the Court, which was very serious: It's armed robbery with a gun." The matter was then continued to July 1, 2015, for a contested hearing.
At the July 1, 2015 contested dispositional hearing, appellant called Decker to testify that she recommended appellant remain detained at the county jail, attain his diploma, and attend the DEUCE and parenting programs. Decker testified her recommendation was partially based on appellant's age; the probation department has very few resources for a 19-year-old on juvenile probation.
When asked why she did not recommend DJJ commitment, Decker explained she looked at the case in its entirety. She acknowledged the seriousness of the underlying offense—a robbery in concert with others and with the use of a gun, albeit a BB gun—but noted it had occurred over two years ago. She also reported appellant "had been doing okay on probation. He had been going to school every day. He was on the honor roll . . . [and] was on track to graduate . . . . [T]hen he fell off and stopped reporting to probation. His whereabouts were unknown for a period of six months." Despite appellant's probation violations, probation did not recommend a DJJ commitment at that time.
The fact that appellant was expecting a child, although part of the overall picture, was not the reason probation recommended against a DJJ commitment. Decker disagreed with the suggestion that probation did not think DJJ commitment was "a good option." Rather, Decker explained, "I think it is an option. It is just not probation's position at this time."
Decker explained that her concerns about potential pimping and human trafficking arose because appellant was arrested in a "tough area" at 10:30 p.m., pulling into a motel in his pregnant girlfriend's car. Based on her experience, Decker found these circumstances-the time of night, the tough area, and the motel—raised "a red flag that there were other things going on here" with appellant. Decker also took note of appellant's response that he " 'would never do that [have his girlfriend participate in human trafficking], at least not while she's pregnant[.]' " Decker did not question appellant regarding "any possible new law violations or committing criminal acts." Instead, she discussed with appellant the severe consequences for getting involved in human trafficking and pimping, explaining that this type of activity resulted in "a lot of time in custody and in [state] prison."
Decker added that, in the event the court was still inclined to order DJJ commitment, she had screened appellant with DJJ that morning. Appellant was eligible for DJJ. He would be rated a category two and would serve two years before being eligible for release. Decker stated appellant could participate in some of the same programs in DJJ as he could in the county jail, such as substance abuse treatment and parenting. Decker added that DJJ offered victim awareness and empathy, and gang awareness; she said she knew that appellant "ha[d] been and/or may continue to be involved in gangs in the city of Antioch." At DJJ, appellant would also be able to complete high school and take community college classes.
3. Dispositional Ruling by the Juvenile Court
In making its determination to commit appellant to DJJ, the juvenile court looked at a wide range of factors, starting with the seriousness of the underlying offense. The court noted appellant, at age 17, was part of a group of young men who robbed the victim with a gun pointed at the victim's head. Although the gun turned out to be a BB gun, it had been loaded with a magazine full of live nine-millimeter rounds.
The court next looked at what appellant had done to reform himself. The court noted on the positive side that appellant had earned an early release from OAYRF and returned to school for a while. But then he started to use marijuana, which caused his return to court on a probation violation and his being placed under home supervision. In short order, appellant disappeared for seven months. The court noted there was no evidence appellant had been doing anything to address the issues that brought him before the court. Rather, the court commented, the available information would lead someone to "reasonably believe he was engaged in very non[-]productive and arguably very criminal behavior if he's flashing loads of cash for a photograph and he's unemployed . . . . He's arrested driving in a car into a motel parking lot, lying about who he is, which shows a consciousness of guilt, whether that was to evade apprehension or he was engaged in other conduct, I don't know."
The juvenile court stressed that the important factor in making its determination was that appellant had done little to reform himself in the two years he had been a ward of the court. Other than the time he spent at OAYRF, it did not appear to the court that appellant had engaged in anything "to ensure that he goes on to lead a successful, law-abiding life and be a good member of his community." The court stated that the services offered through the DEUCE program were "not nearly sufficient to assist [appellant] . . . ." Only DJJ offered appellant the full array of options of "[a]ttending community college, getting his high school diploma, participating in gang counseling and victim awareness with a parenting class." A DJJ commitment would give appellant the amount of time he needed to turn his life around, while protecting the community. To ensure that appellant was on the right path to success and also to ensure the safety of the community, the court concluded, a commitment to DJJ with all of its services was the best option. The juvenile court did not believe this was an "over reaction[,]" adding "I think DJJ would have been just as appropriate disposition originally as [OAYRF], although the Court opted to try to give [appellant] a chance and to go a . . . less restrictive route to see if [appellant could] make it. But rather than make it, he fled his mother's, absconded from probation and his whereabouts unknown for months."
The juvenile court found by clear and convincing evidence that allowing appellant to remain in the care and custody of his mother would be detrimental to his welfare and that his welfare required removal from her custody. (§ 726, subd. (a)(3).) The court considered all of the less restrictive programs available locally: "Given his age . . . the only less restrictive program might arguably be county jail. And for the reasons that I've stated I don't find the services offered through county jail come even close to meeting [appellant's] needs to help him be successful in the community. Therefore, I find DEUCE to be an inappropriate disposition. I find releasing him or terminating probation unsuccessfully would certainly be inappropriate, given the risk I believe he continues to pose to his community." The juvenile court found that appellant's mental and physical condition would "render it probable that he will be benefitted by the reformatory educational discipline and other treatment programs provided by DJJ . . . ."
The juvenile court ordered appellant to be committed to the DJJ for a maximum term of 3 years 286 days or until his 21st birthday, whichever occurred first. This timely appeal followed.
The juvenile court initially ordered that appellant be committed for a term of 4 years 6 days or until his 23rd birthday, whichever came first. However, by supplemental minute order dated July 13, 2015, the maximum term of commitment was reduced to 3 years 286 days or until his 21st birthday, whichever occurs first. The commitment order reflects the maximum period of confinement as "3 years and 286 days." Appellant, born February 3, 1996, turned 21 years old on February 3, 2017.
II. DISCUSSION
A. The Juvenile Court Did Not Violate Appellant's Procedural Due Process Rights
Appellant contends his procedural due process rights were violated because he was "sent a notice which alleged probation violations that were not law violations, and were not particularly serious," and then was suddenly surprised at the dispositional hearing by inadmissible hearsay evidence regarding additional acts of criminality. The gist of appellant's claims is that he was charged with additional criminal conduct at the dispositional hearing, and that the juvenile court improperly relied on unreliable hearsay to commit him to the DJJ.
1. Adequacy of Notice
Section 777 provides that an order changing or modifying a previous order by removing a minor from the physical custody of a parent may be made only after a noticed hearing. (§ 777.) Where the minor has been declared a ward of the court under section 602, a notice may be filed by the probation officer or the prosecuting attorney alleging "a violation of a condition of probation not amounting to a crime" and must "contain a concise statement of facts sufficient to support this conclusion." (§ 777, subd. (a)(2).) As a matter of due process, a probationer is entitled to "written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation." (Black v. Romano (1985) 471 U.S. 606, 612.) "Juvenile court proceedings are controlled by the same concerns and rules as adult criminal proceedings with respect to the due process right to notice of specific charges or factual allegations. (In re Robert G. (1982) 31 Cal.3d 437, 441-443.)" (In re Alberto S. (1991) 226 Cal.App.3d 1459, 1464.) The section 777 notice must identify the specific probation violation the minor is alleged to have committed. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1086.)
Appellant's October 31, 2014 probation violation notice alleged as follows: "Said minor was adjudged a ward of the court on May 1, 2013, with conditions of probation which ordered him to obey parents and guardians, report to probation as directed and follow probation orders, attend school regularly and obey school authorities and be at legal residence between the hours of 7PM and 6AM, unless accompanied by parent/guardian. [¶] (1) On 10/24/14 and 10/27/14, said minor failed to attend school[.] (2) On 8/22/14 and 10/24/14, said minor failed to keep an appointment with the DPO. (3) On 10/23/14, said minor left home without permission. The minor's whereabouts is [sic] unknown." (Original capitalization omitted.)
Appellant argues the procedures employed by the court in connection with his probation violations deprived him of due process because the notice alleged relatively minor violations, but the information presented at the disposition hearing included more serious allegations.
Appellant did not raise a due process challenge in the trial court and cannot do so for the first time on appeal. (In re Brian K. (2002) 103 Cal.App.4th 39, 42.) " '[A]s a general rule, "the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal." [Citations]. This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.] [¶] The reasons for the rule are these: " 'In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.' " [Citation.]' (In re Seaton (2004) 34 Cal.4th 193, 198.)" (People v. McKinnon (2011) 52 Cal.4th 610, 638.) " '[W]here a defendant fails to object at trial to the adequacy of the notice he receives, any such objection is deemed waived. [Citation.]' (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056; accord, People v. Seaton [(2001)] 26 Cal.4th [598,] 641.)" (People v. Carroll (2007) 158 Cal.App.4th 503, 511.)
Appellant's hearsay objection to Decker's testimony regarding the circumstances of appellant's arrest in San Leandro did not preserve a due process argument. (People v. Raley (1992) 2 Cal.4th 870, 892.)
Appellant attempts to avoid this conclusion by arguing that the forfeiture rule is inapplicable because the question presents an issue of fundamental constitutional law. Even if the claim were properly before us, however, appellant would not prevail.
Appellant was given clear notice of the grounds on which the probation officer sought to revoke his probation. The challenged notice described appellant's specific conduct and identified the particular conditions of appellant's probation violated by that conduct. Appellant violated the condition that he attend school by failing to attend school on October 24 and 27, 2014. Appellant violated the condition that he report to probation as directed by failing to keep appointments with his probation officer on August 22 and October 24, 2017. Appellant violated his curfew by leaving home on October 23, 2014 and remaining at large as of October 31, 2014. The notice was clear, specific, and detailed. It gave appellant notice of exactly what he needed to defend against.
Moreover, appellant's probation was revoked on precisely the grounds—and only the grounds—alleged in this notice. On May 29, 2015, appellant's counsel advised the court that appellant wanted to admit the allegations in the violation of probation notice. After ascertaining that appellant understood his rights in connection with the notice of probation violation, the court advised appellant that it could impose a sentence up to 4 years 39 days of confinement or up to his 23rd birthday for the violations. The court then read each of the three alleged violations verbatim and appellant admitted each in turn. The court found appellant had violated the terms of his probation and set a disposition hearing for June 11, 2015.
The revocation procedures employed by the trial court are those mandated by the governing statutes and designed for the benefit and protection of the minor. Section 777, subdivision (a)(2) mandates that the probation officer provide a notice containing "a concise statement of facts" constituting the violation. Section 777, subdivision (c) requires that the violation be established by the preponderance of the evidence at a hearing. If the minor is found to have violated the terms of his probation, the disposition hearing is governed by section 706, at which the juvenile court is required to admit into evidence the probation officer's social study and any other material and relevant evidence. In the present case, the trial court followed this statutory framework precisely as required; the procedures were not "artificially fragmented" as appellant argues. The procedures the court followed protected, rather than violated, appellant's due process rights.
2. Probation Officer's Disposition Report
Appellant's due process claim is grounded in his argument that the probation officer's dispositional report contained unreliable hearsay and the trial court's consideration of such hearsay deprived him of due process. Appellant relies on cases holding that certain types of hearsay are inadmissible in a probation revocation hearing. These cases, however, apply to the evidentiary portion of a revocation hearing to determine whether the minor violated the terms of his probation, not to a dispositional hearing. (E.g., In re Kentron D. (2002) 101 Cal.App.4th 1381, 1394.) He cites no case holding that hearsay—or any other relevant evidence—is inadmissible at a dispositional hearing.
Hearsay clearly is admissible at a disposition hearing. (In re Vincent G. (2008) 162 Cal.App.4th 238, 244.) Unlike the jurisdictional phase, where the Evidence Code applies (§ 701), "[n]o statute expressly subjects [the dispositional] phase to the Evidence Code." (In re Eddie M. (2003) 31 Cal.4th 480, 487.) " 'Rather, . . . section 706 provides: "After finding that a minor is a person described in [s]ection 601 or 602, the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer and [any] other relevant and material evidence [that] may be offered, . . . . [In] any judgment and order of disposition, [the court] shall state [that] the social study made by the probation officer has been read and considered by the court." ' " (In re Vincent G., at p. 244.)
Section 706 and other sections relating to dispositional hearings "reflect the strong public interest in imposing a proper disposition and make it essential that a juvenile court judge has broad access to relevant information concerning a minor found to have committed delinquent acts." (In re Michael V. (1986) 178 Cal.App.3d 159, 170 (Michael V.) [holding evidence suppressed in the jurisdictional phase of a juvenile adjudication is admissible at the dispositional phase].) Analogizing to adult sentencing, the court in Michael V. quoted the United States Supreme Court in Williams v. New York (1949) 337 U.S. 241, 247, as follows: " 'Highly relevant—if not essential—to [a trial judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.' " (Michael V., at p. 170, quoting Williams v. New York (1949) 337 U.S. 241, 247.)
Thus, probation department reports prepared for the dispositional phase of a juvenile delinquency case are similar to reports that are prepared for adult sentencing proceedings. In the latter proceedings, it is "contemplate[d] that police reports will be used as a source of information for summarizing the crime in the presentence report." (People v. Otto (2001) 26 Cal.4th 200, 207 (Otto).) Also, "courts routinely rely [on] hearsay statements contained in probation reports to make factual findings concerning the details of the crime. These findings, in turn, guide the court's sentencing decision—a decision which has a great impact on the defendant's liberty interest." (Id. at pp. 212-213; see In re Vincent G., supra, 162 Cal.App.4th at p. 244 [hearsay evidence admissible in dispositional phase of juvenile delinquency case]; see also People v. Valdivia (1960) 182 Cal.App.2d 145, 148 ["[a] probation officer could not make an investigation and report . . . if restricted to the rules of evidence. Much of the prior record and history of a defendant, as well as the circumstances surrounding the crime, are hearsay and can be investigated and reported [on] only by the use of hearsay information."].) By mandating in section 706 that the probation officer's social study and any other relevant and material evidence be admitted without restriction at the juvenile dispositional hearing, we conclude, as did the Supreme Court in relation to adult probation reports in Otto, that "the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." (Otto, at p. 208.)
Here, the challenged evidence was part of the information made available to the court, but was not the basis of the court's disposition. As required by statute, the court stated that it had read and considered the dispositional report. Decker testified she prepared the report after speaking with appellant's mother and appellant. In her dispositional report, Decker noted that appellant's mother was concerned about receiving a photo of an unemployed appellant holding a wad of cash. Decker also noted that she had met with appellant and discussed her concerns that he might be involved in pimping or human trafficking given the circumstances of his arrest. Appellant's mother, the probation officer, and the court were understandably concerned that appellant, despite being unemployed and on the run from probation, may have had access to large amounts of cash. The probation officer did not question appellant about prostituting his girlfriend or accuse him of committing this crime; she warned appellant about the seriousness of such conduct. The probation officer, in her testimony, observed that the availability of gang training in DJJ would be beneficial because appellant had been involved with gangs in the past. This information was relevant to an appropriate disposition and, although hearsay, admissible at the disposition phase of a delinquency proceeding. (In re Vincent G., supra, 162 Cal.App.4th at pp. 243-244.) We trust the trial court can sift through evidence of varying degrees of reliability and apply the weight it deems appropriate to hearsay evidence.
Minor asserts that his mother's statements about the " 'fist full of dollars' " photo was unreliable because she was "biased" and "angry" with him "for running away, and vindictively attempted to make trouble for him with law enforcement." There is nothing in the record to support this speculation. And, contrary to appellant's contention, the fact that the actual photo was not brought into court does not cast doubt on the reliability of Decker's dispositional report. (See Otto, supra, 26 Cal.4th at p. 208.)
The juvenile court in the present case did just that. The court did not make any finding that appellant had engaged in human trafficking or any other new crime. Nor did the trial court base its decision that DJJ was the appropriate disposition on the challenged hearsay information. As noted, at the May 29, 2015 violation hearing—long before the court had received any of the hearsay information from the probation officer's disposition report—the court had expressed its view that DJJ may be required in this case. In describing the information presented in the probation officer's disposition report, the court made it clear it was not assuming the truth of the challenged statements: "We have no evidence that he was doing anything to address the issues that brought him before the Court. And what we do have is information that would lead someone to reasonably believe he was engaged in very non productive and arguably very criminal behavior if he's flashing loads of cash for a photograph and he's unemployed. There is no evidence that he has a job. He's arrested driving in a car into a motel parking lot, lying about who he is, which shows a consciousness of guilt, whether that was to evade apprehension or he was engaged in other conduct, I don't know." (Italics added.)
The court based its decision to commit appellant to DJJ on the undisputed evidence that appellant had thoroughly violated every condition of his probation, not on the hearsay allegations. In expressing the reasons it concluded that DJJ was appropriate, the court emphasized: "what is important here is what [appellant] has done in the 2 years that he has been a ward of the Court." Other than the time he spent in the OAYRF program, appellant had done little to turn his life around. While under the supervision of the court for committing an armed robbery, appellant had violated his probation conditions twice, smoked marijuana daily, dropped out of school, left his mother's home, and absconded from probation supervision for seven months. The trial court considered the option of a sentence to county jail and the DEUCE program and found it woefully inadequate. By committing appellant to DJJ, the court found, appellant could also attend community college, participate in gang counseling, and take a victim awareness and empathy class, all of which were unavailable in county jail. As the court noted, a commitment to DJJ would also provide enough time for these services to work so appellant could turn his life around. The trial court's decision was based on appellant's undisputed conduct, not on hearsay allegations of new crimes.
Appellant claims "damning allegations [were] sprung upon defense counsel at the last minute" at the dispositional hearing. The record does not support this claim. The probation officer's disposition report was written on June 10, 2015 for the initially scheduled June 11, 2015 disposition hearing. On June 11, 2015, however, the trial court - realizing that appellant's counsel may not have anticipated that the court was inclined to commit appellant to DJJ—advised counsel of its inclination and offered to put the matter over for a contested disposition hearing. The court made this offer precisely to protect appellant's due process rights. At counsel's request, the court set the contested hearing for July 1, 2015. Appellant, therefore, had both notice that the court was inclined to impose a DJJ commitment and ample time—three weeks—to prepare for the hearing with all of the information from the probation officer's disposition report in hand.
Appellant argues he was charged with new crimes at the dispositional hearing. This simply is not true. No new charges were added or contemplated. Rather, the discussion of appellant's behavior was part of the narrative chronicling his whereabouts during the time he had absconded from supervision. Decker's testimony supports this conclusion. She expressly testified that she did not accuse appellant or "question him in regards to any possible new law violations or committing criminal acts." Instead, she discussed with appellant the severity of the consequences "if" he was involved in human trafficking and pimping.
In any event, any error in receiving the contested information would be harmless beyond a reasonable doubt. (See People v. Woodward (1992) 4 Cal.4th 376, 387.) As noted, the record reflects that the juvenile court, in deciding to commit appellant to DJJ, focused on the seriousness of the underlying offense, appellant's failure to rehabilitate himself in the two years since he had become a ward of the court, and his having absconded from probation supervision for seven months. These factors were unaffected by references to cash and human trafficking. B. Appellant's Commitment to DJJ Was Not an Abuse of Discretion
Appellant argues the juvenile court abused its discretion in committing him to DJJ because there was no substantial evidence that less restrictive placements would be ineffective or inappropriate, or that he would benefit from DJJ commitment. We disagree.
"Under section 202, juvenile proceedings are primarily 'rehabilitative' (id., subd. (b)), and punishment in the form of 'retribution' is disallowed (id., subd. (e))." (In re Eddie M., supra, 31 Cal.4th at p. 507; see In re Julian R. (2009) 47 Cal.4th 487, 496 (Julian R.).) Nevertheless, "[w]ithin these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. ([§ 202], subd. (e).)" (In re Eddie M., at p. 507.)
As an appellate court, we review "a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [DJJ] commitment may be considered, however, without previous resort to less restrictive placements." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Martin L. (1986) 187 Cal.App.3d 534, 544 ["[c]ircumstances in a particular case may well suggest the desirability of a [DJJ] commitment despite the availability of . . . alternative dispositions"].)
In this case, the juvenile court properly focused on "the dual concerns of the best interests of the minor and public protection." (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The record reflects the court's careful consideration of the appellant's age, the seriousness of appellant's conduct that led to his being a ward of the court, and appellant's prior delinquent behavior. (§ 725.5.) The court's finding that "the reformatory educational discipline and other treatment programs provided by DJJ" would provide appellant with the best setting to assist appellant in becoming a law-abiding productive member of his community is supported by substantial evidence. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 485.) Appellant, having committed a serious violent felony, had been given the benefit of the doubt and sent initially to OARYF rather than DJJ. Although he completed the program at OARYF and returned to school, appellant soon began violating the no-drug condition of his probation. He violated his probation, terminated unsuccessfully on parole, and placed on home detention. Appellant continued smoking marijuana, which led to his decision to drop out of school, leave his mother's home, and abscond from probation supervision. By committing appellant to DJJ, the court found, appellant could attend community college, participate in gang counseling, and take a victim awareness and empathy class—all of which were unavailable in county jail—in addition to substance abuse and parenting classes. A commitment to DJJ would also provide enough time for these services to work so appellant could turn his life around. And, upon release, the court noted, appellant would receive continued supervision to maximize his path to success.
Similarly, the court's finding that the less restrictive option of the county jail was not in the best interest of appellant or the public is supported by substantial evidence. The trial court specifically weighed the merits of the DEUCE program and found it was "not nearly sufficient" to address appellant's needs. County jail would not enable appellant to attend college classes, gang awareness classes, or victim awareness and empathy training. Again, the trial court's findings were supported by the circumstances of appellant's original crime, his repeatedly poor performance on probation, and his wholesale disregard of the court's prior efforts to encourage him to turn his life around with less restrictive sanctions.
Appellant asserts DJJ will not offer him a probable benefit because he wants to be involved in his child's life and a commitment would impede this parent-child relationship. DJJ, however, has a parenting program that will be available to appellant while he is committed to DJJ. Moreover, contrary to appellant's suggestion, nothing in the record supports the contention that the juvenile court used his paternity as an aggravating factor in selecting DJJ commitment, restrict visitation with his future child, or otherwise unnecessarily impeded his anticipated parent-child relationship.
We are not persuaded by appellant's argument that his "marijuana use, and resulting AWOL status, are not a good and sufficient reason[s] for incarcerating him at DJJ." Appellant's daily marijuana ingestion was a significant factor in his probation having been twice revoked. Despite that, appellant remained unable to appreciate that his marijuana use was impeding his progress on probation. Appellant all but refused to stop smoking marijuana and declined any further services from probation. In any event, this behavior was not the court's sole basis for committing appellant to DJJ. Rather, the court focused on appellant's failure to rehabilitate himself in the two years since the original wardship proceeding and his absconding for seven months, as well as the seriousness of the underlying offense.
Despite appellant's efforts to downplay the seriousness of his marijuana use, drug use—particularly by young people—remains a major societal problem. Further, we decline appellant's invitation to "write an opinion discouraging imposition of marijuana testing as a condition of juvenile probation because it: (1) pointlessly increases the failure rate of wards on probation, (2) discourages a relationship of trust between ward and probation officer, (3) demeans all concerned, and (4) squanders public funds."
Finally, appellant argues the commitment to DJJ will expose him to "peer contagion" from gang members housed in DJJ. Appellant does not explain how confinement in county jail with adult gang members is preferable to commitment to DJJ with other minors who may have gang affiliations.
The juvenile court stated its reasons for rejecting the recommendation for placement at the county jail and selecting DJJ commitment. As an appellate court, we have "no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The juvenile court fully satisfied itself that appellant " 'will be benefitted by the reformatory educational discipline and other treatment [programs] provided by [DJJ],' " as required under section 734. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151, 153.) The trial court did not abuse its discretion in so finding. (In re Jonathan T., supra, 166 Cal.App.4th, at p. 485.) C. Maximum Term or Confinement
Section 734 reads: "No ward of the juvenile court shall be committed to [DJJ] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by [DJJ]."
Finally, appellant insists the juvenile court failed to exercise its discretion to set a maximum term of confinement under section 731, subdivision (c). "When a minor within the jurisdiction of the juvenile court is committed to [DJJ], the juvenile court is required to indicate the maximum period of physical confinement. ([§ 726, subd. (d)(1)].) In setting that confinement period, which may be less than, but not more than, the prison sentence that could be imposed on an adult convicted of the same crime, the court must consider the 'facts and circumstances' of the crime. (§ 731, subd. (c).)" (Julian R., supra, 47 Cal.4th at pp. 491-492.)
Section 731, subdivision (c), provides in relevant part: "A ward committed to [DJJ] may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section." (Italics added.)
"The courts construe . . . section 731, subdivision (c) to confer on the court the discretion not only to impose a theoretical maximum term of physical confinement equal to an adult's maximum period of imprisonment . . . for the identical offense . . . but also to impose a shorter theoretical maximum term of physical confinement on the basis of the facts and circumstances of the case." (In re Alex U. (2007) 158 Cal.App.4th 259, 264, fn. omitted.) The record need not affirmatively show the juvenile court considered imposition of a confinement period shorter than the adult maximum. On a silent record, the reviewing court will presume the juvenile court performed its statutory duty to consider the " 'facts and circumstances' " of the juvenile's offense. (Julian R., supra, 47 Cal.4th at p. 492; Evid. Code, § 664.)
The People assert that appellant forfeited this argument by failing to urge the juvenile court to exercise its discretion to impose a confinement term shorter than the adult maximum term. (See In re Travis J. (2013) 222 Cal.App.4th 187, 201 (Travis J.) ["[i]n juvenile court, as in an adult criminal proceeding, a claim that the court failed to make or articulate a discretionary sentencing choice must be raised by objection in the trial court in order to preserve the claim for appeal."].) In anticipation of such an argument, appellant contends his defense counsel was ineffective. We need not resolve the forfeiture issue, however, because appellant's argument fails on the merits.
Likewise, we need not address appellant's assertion his defense counsel was ineffective in failing to urge an exercise of discretion under section 731, subdivision (c). Because we presume the trial court was aware of its discretion to set a lower maximum period of confinement and elected not to exercise that discretion, any failure by trial counsel to request that the court do so was not prejudicial to appellant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-694 [to prevail on an ineffective assistance of counsel claim, appellant must show both: (1) that his attorney's performance fell below an objective standard of reasonableness; and (2) that he suffered prejudice; i.e., that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different].)
Appellant maintains the juvenile court's failure to check a box on Judicial Council form JV-732 (hereafter Form JV-732) is evidence that the court failed to exercise its discretion under section 731. Two boxes appear under the heading of "Confinement period" in the Form JV-732. The first box (No. 8.a) of Form JV-732 was checked, and it reflected a "maximum period of confinement" of "3 years and 286 days[.]" The second box (No. 8.b)—which states, "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement"—was not checked on Form JV-732.
In Travis J., supra, 222 Cal.App.4th 187, our colleagues in Division Five rejected a similar argument that a juvenile court committed reversible error when it failed to check box No. 8.b on Form JV-732. (Id. at p. 201.) The court explained: "As here, the minor [in Julian R., supra, 47 Cal.4th 487] argued that 'a reviewing court must presume from the record's silence that the juvenile court was either unaware of, or failed to perform, its statutory duty to consider that the "facts and circumstances" might warrant a confinement period shorter than the adult maximum term.' (Julian R., at p. 498.) Rejecting that argument, the court observed that applying such a presumption would ' "ignore a cardinal principle of appellate review": [that a] " ' "judgment or order of the lower court is presumed correct" ' " ' and ' " 'that a trial court is presumed to have been aware of and followed the applicable law.' " . . . [T]hus when "a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order." ' (Id. at pp. 498-499, citations omitted.)" (Travis J., at p. 201.)
In Travis J., the record was not silent because defense counsel had repeatedly reminded the juvenile court of its obligation to make an independent finding on the appropriate DJJ term, specifically referencing section 731, subdivision (c). The court also gave a detailed statement of reasons supporting its decision to select a three-year maximum term. (Travis J., supra, 222 Cal.App.4th at pp. 201-202.) Although the juvenile court did not expressly reference section 731, subdivision (c) in doing so, the appellate court presumed "the juvenile court 'exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant "facts and circumstances" [citation] . . . .' (Julian R., supra, 47 Cal.4th at p. 499, fn. omitted.)" (Travis J., at p. 202.)
Here, as in Travis J., the unchecked box No. 8.b on appellant's Form JV-732 is not dispositive. Based on Julian R., we presume, absent evidence to the contrary, that the court was aware of its discretion under section 731, subdivision (c) to set an earlier maximum release date, but nonetheless decided to impose the longer period of confinement. The record does not affirmatively support appellant's contention the juvenile court failed to exercise its discretion. (Compare Julian R., supra, 47 Cal.4th at pp. 499; and Travis J., supra, 222 Cal.App.4th at pp. 201-202; with In re R.O. (2009) 176 Cal.App.4th 1493, 1497-1498 [court erred by concluding it "lacked discretion" to impose a term less than the indeterminate term applicable to an adult].)
Moreover, the record here is not entirely silent. The trial court expressly considered the facts and circumstances of the case in articulating its reasons for committing appellant to DJJ. These facts and circumstances support the trial court's selection of the maximum term of confinement as well.
III. DISPOSITION
The order committing appellant to DJJ is affirmed.
/s/_________
KENNEDY, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------