IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
December 1, 2010
IN RE R.D., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
R.D., DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Raye,j.
In re R.D.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a contested jurisdiction hearing, the San Joaquin County Juvenile Court found that minor R.D. came within the provisions of Welfare and Institutions Code section 602 in that he committed robbery (Pen. Code § 211; further undesignated statutory references are to the Penal Code).
On appeal, the minor contends the juvenile court committed prejudicial error when it took judicial notice of his previously sustained petition at the jurisdictional hearing. We disagree and will affirm the judgment.
In September 2007 the minor, then 13 years old, was placed on six months of informal probation pursuant to Welfare and Institutions Code section 654.2 after the juvenile court sustained a petition alleging he committed sexual battery by restraint (Pen. Code, § 243.4, subd. (a)).
The minor successfully completed the probationary period, and on March 24, 2008, the petition was dismissed on the recommendation of the district attorney.
Between February 18, 2009, and March 5, 2009, the district attorney filed three separate petitions against the minor. The February 18, 2009, petition alleged the minor committed robbery (§ 211--count 1), conspiracy to commit robbery (§ 182, subd. (a)(1)--counts 2, 4 & 7), attempted robbery (§§ 664, 211--counts 3 & 6), and infliction of an injury upon an elder adult (§ 368, subd. (b)--count 5). The February 26, 2009, petition alleged the minor committed attempted robbery. (§§ 664, 211.) The March 5, 2009, petition alleged he committed robbery (§ 211--count 1) and grand theft (§ 487, subd. (c)--count 2).
On March 10, 2009, the court granted the district attorney's motion to amend count 6 of the February 18, 2009, petition to allege attempted grand theft. (§§ 664, 487, subd. c.) The minor admitted count 6 of the February 18, 2009, petition, as amended, in exchange for dismissal of all remaining allegations in all three pending petitions.
On April 13, 2009, the juvenile court adjudged the minor a ward of the juvenile court and committed him to the care and custody of the probation department for suitable placement. The minor was placed in a residential treatment center for assessment and, on September 8, 2009, was accepted into the Family Visions In-Home Wraparound Program.
On October 19, 2009, the district attorney filed a petition alleging the minor committed robbery (Pen. Code, § 211--count 1) and conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)--count 2). The petition also contained a notice of intent to increase the maximum term of confinement by aggregating the term from the minor's previously sustained petition for attempted grand theft pursuant to Welfare and Institutions Code section 726. The district attorney also filed a notice of violation of probation based on the allegations in the petition.
A contested jurisdictional hearing for both the minor and his co-defendant began on November 10, 2009.*fn2 The court heard testimony from the victim, the arresting officers, the minor, the minor's co-defendant, and the minor's mother, as well as argument from counsel. Prior to the district attorney's rebuttal argument, the following colloquy took place between the district attorney and the court:
"[THE DISTRICT ATTORNEY]: . . . First of all, I would ask the Court to take judicial notice of [the minor's] criminal history in his file. He's had a previous attempted robbery; which was sustained on March 10th of this year. That actually resolved as an attempted [section] 487[, subdivision] (c). ¶ In addition to that
"THE COURT: Hang on, let me do this first. Let me just look. [¶] I show there is aggregation charged as to [the minor]. It shows a sustained date of 3-10-09. Let me confirm with the file. [¶] Yes, 3-10-09, an attempted [section] 211 was reduced to a [section] 487[, subdivision] (c) felony, that was Count 6. As amended, [the minor] admitted. Then it was put over for disposition, including contested disposition, which occurred on 4-13-09 and he was ordered into placement, with 58 days hall, 58 days credit. [¶] That is what you want me to take judicial notice of?
"[THE DISTRICT ATTORNEY]: Yes, thank you.
"THE COURT: Court will take judicial notice of its own file.
"[THE DISTRICT ATTORNEY]: Let me just speak to why we know that [the minor] was involved in these crimes." The district attorney then went on to make his rebuttal argument.
The court found the robbery allegation true beyond a reasonable doubt but dismissed the charge of conspiracy to commit robbery for insufficient evidence. Finding the allegation of the previously sustained petition true, the court determined the aggregated maximum term of confinement to be five years four months. The district attorney discharged the probation violation.
At the disposition hearing on February 10, 2010, the court continued the minor as a ward of the juvenile court and ordered him confined to the Division of Juvenile Justice for a maximum confinement time of two years four months, minus 198 days of predisposition credit.
The minor filed a timely notice of appeal.
The minor contends the juvenile court committed reversible error when it took judicial notice of the previously sustained petition at the jurisdiction hearing because the petition was irrelevant to the issue of jurisdiction and was therefore inadmissible. He urges that, under In re Gladys R. (1970) 1 Cal.3d 855 (Gladys R.), his counsel's failure to object at the jurisdictional hearing does not forfeit the issue on appeal, and in the event an objection was required, the failure to object was the result of ineffective assistance of counsel.
It has long been held that "procedural errors may not be raised at the appellate level if they were not raised in the trial court level." (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344 (Christopher S.).) "[E]ven constitutional rights, including those of a minor in the area of juvenile court procedure, will ordinarily be waived by silence, i.e., by their nonassertion." (In re James D. (1981) 116 Cal.App.3d 810, 817; see also People v. Hillery (1974) 10 Cal.3d 897, 899-900; § 1259.)
The minor urges us to apply Gladys R., supra, 1 Cal.3d 855 to find his lack of an objection does not bar consideration of his claim on appeal. We decline to do so. In Gladys R., the juvenile court reviewed a social study prior to the jurisdictional hearing. The social study discussed "matter not relevant to the jurisdiction of the court and therefore inadmissible at the hearing on that issue. (Welf. & Inst. Code, § 701[*fn3 ].)" (Gladys R., supra, 1 Cal.3d at pp. 858-859.) The minor's attorney did not object. Our state's highest court concluded that "the failure of the minor's attorney to object at the juvenile court hearing to the court's premature use of the social study does not bar the consideration of this issue on appeal; we cannot expect an attorney to anticipate that an appellate court will later interpret the controlling sections in a manner contrary to the apparently prevalent contemporaneous interpretation." (Gladys R., supra, 1 Cal.3d at p. 861.)
Gladys R. is fact-specific and does not apply here. "The only reason an objection was excused in In re Gladys R. was that it would have been unfair to require defense counsel to anticipate its holding, which was contrary to the prevailing interpretation of the law." (Christopher S., supra, 10 Cal.App.4th at p. 1345.) The Gladys R. rule does not extend to situations such as this where, instead of prematurely reading a social study (Gladys R., supra, 1 Cal.3d at p. 858) or a probation report (In re D.J.B. (1971) 18 Cal.App.3d 782, 784), the court merely takes judicial notice of a previously sustained petition. As such, an objection based on a request for judicial notice must be raised at the juvenile court to avoid forfeiture of a claim on appeal. The minor's failure to object forfeits his claim on appeal.
In any event, the claim fails on the merits. Welfare and Institutions Code section 726 expressly authorizes aggregation of the maximum term of confinement on the basis of prior sustained petitions. "[W]here 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. . . . Thus, . . . a petition under [Welfare and Institutions Code] section 602 must contain notice of the intent to rely upon previous sustained petitions under section 602, in order to aggregate the maximum period of confinement on the basis of those petitions." (In re Michael B. (1980) 28 Cal.3d 548, 553-554.) "Although the petition would include a reference to the minor's prior offenses, that disclosure violates no constitutional or statutory right." (Id. at p. 554.)
Here, as required, the petition included a statement of intent to aggregate the maximum confinement period based on the minor's prior sustained petition for attempted grand theft, thus notifying all parties and the court of the existence of a prior sustained petition, but not the specific facts and circumstances related thereto. It was not until all testimony was given and the district attorney and both the minor and his co-defendant rested their respective cases that the district attorney, prior to making rebuttal argument, requested that the court take judicial notice of the previously sustained petition. The court referenced an "aggregation charged as to [the minor]" and noted that "[i]t shows a sustained date of 3-10-09. Let me confirm with the file. [¶] Yes, 3-10-09, an attempted [section] 211 was reduced to a [section] 487[, subdivision] (c) felony, that was Count 6. As amended, [the minor] admitted. Then it was put over for disposition, including contested disposition, which occurred on 4-13-09 and he was ordered into placement, with 58 days hall, 58 days credit." In confirming it had the correct prior petition, the court referred to the basic identifying procedural aspects relevant to that determination and nothing more.
The minor repeatedly asserts that the court improperly considered the previously sustained petition in making its jurisdictional determination but offers no evidence to support that claim other than the court's statement that it "considered the testimony of the witnesses, their demeanor on the stand, [and] arguments of counsel as well" in deciding the question of jurisdiction. We are not persuaded. As previously discussed, the court identified the petition by noting several procedural points (e.g., the date the petition was sustained, the charge admitted by the minor, the date of the contested disposition hearing, the disposition) and, having confirmed it had the correct petition, took judicial notice of "its own file" without further review. There is nothing in the record to suggest the court considered the previously sustained petition, or that it relied on anything other than the testimony, evidence and argument presented at the jurisdictional hearing, in making its determination that appellant came within its jurisdiction.
Having considered the merits of the minor's claim and concluded the juvenile court did not err in taking judicial notice of the previously sustained petition, we need not address the minor's claim of ineffective assistance of counsel for failure to object at the jurisdictional hearing.
The judgment is affirmed.
NICHOLSON , Acting P. J.
BUTZ , J.