IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 14, 2010
IN RE D.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
D.S., DEFENDANT AND APPELLANT.
(Alameda County Super. Ct. No. SJ08011161)
The opinion of the court was delivered by: Siggins, J.
In re D.S. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sixteen-year-old D.S. was made a ward of the court and placed on probation in a residential sex offender treatment program after he admitted to robbery, battery, and a lewd and lascivious act on a 13-year-old girl. After he was terminated from the sex offender program and could not be placed in another, the juvenile court revoked his probation and committed him to the Department of Juvenile Justice (DJJ, formerly the California Youth Authority) under Welfare and Institutions Code section 777.*fn1
D.S. appeals, contending (1) he received a probation violation notice that was inadequate to satisfy due process; (2) there was insufficient evidence that he violated the terms of his probation; (3) the court failed to provide a written statement of its reasons for revoking probation; (4) there was no evidence he would benefit from a DJJ commitment or that less restrictive placements were inappropriate; (5) the court failed to exercise its discretion in setting the maximum term of D.S.'s confinement; and (6) his trial counsel provided ineffective assistance by failing to argue for a lower maximum term of confinement than recommended by the district attorney. We remand to require the juvenile court to exercise its discretion to set the maximum term of confinement and otherwise affirm the court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
An Alameda County wardship petition filed in November 2008, alleged nine counts against D.S., including robbery, attempted robbery, rape, and lewd and lascivious acts on a child under the age of 14. At the time, D.S. was also the subject of a wardship petition in Contra Costa County. The Contra Costa County petition, alleging two counts of battery, was transferred to Alameda County and the two cases were consolidated.
Pursuant to a negotiated disposition, D.S. admitted one count of robbery and one count of nonforcible lewd and lascivious acts. The remaining Alameda County charges were dismissed. On the Contra Costa allegations, D.S. admitted one count of battery and the other count was dismissed.
D.S. was made a ward of the court, placed on probation, ordered "to cooperate . . . in any program of guidance, counseling or therapy," and released to his mother's home with electronic monitoring. After he repeatedly left the house without permission and violated electronic monitoring, D.S.'s mother returned him to juvenile hall, and said he was beyond her control. A few days later she changed her mind, and probation officers decided to give D.S. "one last opportunity" to remain at home.
Another section 602 petition was filed approximately two weeks after D.S. returned home that alleged he committed another robbery. D.S. admitted the charge and was placed in Gateway Residential Palm House, a facility with an intensive sex offender treatment program. Less than two months later, D.S. was terminated from the Gateway program for multiple acts of misconduct.
According to the department's request for an order of detention, D.S. was brought in for change of placement by Gateway staff on September 25, 2009. The report gave the following reason for his removal: "A peer of the minor in the group home disclosed to his therapist that [D.S.] had confided in him that he had a plan to rape the female overnight group home staff. The plan included turning the power off first. Staff recalled recent incidents where [D.S.] had been in the garage of the house and the power had mysteriously gone off. Taking into account the minor's sexual offense, and the safety o[f] the staff and fellow residents, a decision was made to terminate him from the program." According to the Gateway termination report, D.S. "did not put much effort forth on working on his sex offender treatment," and became "oppositional, belligerent and disrespectful" when staff reminded him to take care of responsibilities such as homework or chores. His behavior was also threatening at times to staff and peers, and "on occasion escalated to property destruction." "The final incident involved an alleged plot by [D.S.] to sexually assault the nighttime staff. It was Gateway's belief that this, along with the other safety concerns, warranted termination, for the safety of staff and residents."
While at Gateway, it was also reported that D.S. wrote a suicide note and tried to break into a locked drawer containing a knife, claiming he wanted to hurt himself. In both instances, "he was deescalated and safety precautions were put in place . . . ." D.S. was returned to juvenile hall, where his poor behavior continued. He often refused to return to his room, flooded his cell, would bang his head on the door or wall, was involved in several fights, was aggressive with the staff, and reportedly tied a sheet around his neck.
When he was terminated from Gateway, D.S. had already been rejected for placement at two other high level sex offender treatment programs and the probation department was "running out of options." Following his termination, efforts to place him in another treatment facility continued over several months.
In the permanency selection hearing report prepared for a December 2009 hearing, the department stated: "Efforts to place him have been unsuccessful, and at this time, the Probation Department will be filing the necessary paperwork to seek an escalation of his current order to a commitment to the [DJJ]." These factors led the department to initially seek modification of D.S.'s placement under section 778. His lawyer objected and argued that the department was required to proceed under section 777.
The department did just that and filed a section 777 petition with a hearing scheduled for the date set by the court for D.S.'s next placement review. The petition stated that D.S.'s prior placement was ineffective because he was terminated from Gateway. An attached offense report signed by the probation officer stated D.S. "was terminated from the court ordered placement, Gateway Residential . . . after several incidents of defiant and threatening behavior. It was also disclosed by his room mate that the minor had a plan to rape the female staff. [¶] As the minor has failed placement and has 3 very serious offenses, he is no longer amenable for placement." A modification report filed by the probation department approximately two weeks earlier, in connection with the section 778 application, provided more detailed information regarding D.S.'s placement failures and continuing misconduct, identified the numerous group homes that had rejected D.S. for placement, and recommended his commitment to the DJJ.
At the section 777 hearing, D.S.'s probation officer testified she visited Gateway while D.S. was there to meet each month with the minors she supervised, their therapists, and the executive director of the program. D.S. was not engaged in treatment, and had "several incidents of aggressive behavior, defiant behavior, . . . failing to follow the rules, being out of control of the staff."*fn2 The probation officer also testified about a termination report she received from Gateway in September 2009.*fn3
At the request of the public defender, the probation officer referred D.S. to "every group home that provides sex offender treatment that Alameda County Probation currently uses [and] several programs that [the department did] not actually currently use." None of the programs accepted D.S. She did not refer D.S. to programs outside California because the out-of-state programs the department used had criteria that excluded D.S. from consideration. When she was cross-examined, the probation officer agreed there were "probably a few" untried programs outside California, but the department did not have enough officers to make the required monthly visits to every possible out-of-state placement.
Based on the probation officer's testimony, "as well as all files and information provided to the court in this case," the court found D.S. violated probation. The probation department's dispositional report recommended D.S.'s commitment to the DJJ based on his behavior while at Gateway, his termination from the program and his history of serious offenses. It stated: "[D.S.] was terminated from the [Gateway] program on 9/25/09, after [his] roommate disclosed that the minor had informed him that he had a plan to rape a female staff member. He was also consistently defiant, disrespectful, postured on a regular basis, failed to follow rules, and made threats. He made no progress in sexual offender treatment while at the program. The fact that he was terminated from the program, his history of serious offenses, and his behavior while at the program, make him inappropriate for further placement." The report further explained: "[D.S.] has been referred to a total of 10 residential programs, and all have rejected the minor based on the seriousness of his history and the risk he presents in the community. The Probation Department has no other resources for placement in residential sexual offender treatment."
Counsel for D.S. objected to the recommendation for commitment to the DJJ, claimed there were other placement options the probation officer did not investigate, and asked the court to follow the suggestion of D.S.'s mother to retain him in custody at juvenile hall until his 18th birthday, then less than six months away. The court adopted the probation department's recommendation, and found it probable D.S. would benefit from a commitment to the DJJ. The court set his maximum term of confinement at 10 years, and awarded him 427 days of custody credits. D.S. timely appealed.
A. D.S. Received Adequate Notice of the Probation Violation
Although the department initially attempted to proceed under section 778, "section 777 is the exclusive statutory mechanism for a juvenile court to modify a prior placement order by committing a ward of the court to the [DJJ]." (In re Brent F. (2005) 130 Cal.App.4th 1124, 1127.) Section 777 provides in relevant part: "An order changing or modifying a previous order by . . . directing commitment to the [DJJ] shall be made only after a noticed hearing. [¶] (a) The notice shall be made as follows: [¶] . . . [¶] (2) By the probation officer or the prosecuting attorney if the minor is a . . . probationer under Section 602 in the original matter and the notice alleges a violation of a condition of probation not amounting to a crime. The notice shall contain a concise statement of facts sufficient to support this conclusion."
D.S. contends the notice of the proceedings was insufficient to satisfy section 777 or due process, citing to Black v. Romano (1985) 471 U.S. 606, 612 [due process requires that probationers receive written notice of the alleged probation violations, disclosure of the evidence against them, and an opportunity to respond to the charges]. D.S. is correct that the petition for a more restrictive placement stated the basis for modification of his custody in the most summary terms, but it does not follow that the notice was insufficient to satisfy section 777 or due process.
The section 777 petition was but one chapter in a lengthy process that culminated in D.S.'s placement in the DJJ. Since his removal from the Gateway residential program in September 2009, D.S. was informed of the reasons why he was terminated from Gateway and being considered for revocation. He also had notice that the probation department was "running out of options" for his custody. When the department announced its intention to file a section 778 petition for modification in December 2009, it stated it was doing so to "escalate the minor's order to a DJJ commitment." Thus, D.S. was aware of the department's intended disposition and the reason it was seeking it. In evaluating D.S.'s claim that he received insufficient notice of his probation revocation proceeding, we are not required to pretend the lengthy process that led up to revocation did not exist or that he was unaware of it.
In these circumstances, there is no reason to conclude any deficiency in notice provided within the four corners of the section 777 petition was prejudicial. (See In re Ernest R. (1998) 65 Cal.App.4th 443, 449-450.) The cases D.S. relies upon do not convince us otherwise. In each of them, the court concluded the probationer violated a condition of probation that was different from the condition specified in the notice of hearing. (See People v. Mosley (1988) 198 Cal.App.3d 1167, 1170, 1174; People v. Self (1991) 233 Cal.App.3d 414, 416, 419; In re Babak S. (1993) 18 Cal.App.4th 1077, 1082-1083, 1086.) Here, the notice specified D.S.'s potential escalation in custody was due to his termination from Gateway due to misconduct, and the allegation was supported in all the documentation provided to D.S. leading up to the department's decision to seek revocation. D.S. received adequate notice of his alleged probation violation to satisfy the requirements of section 777 and due process.
B. Substantial Evidence Supported the Finding of a Probation Violation
Authorities seeking to prove that a juvenile has violated probation are required to prove the factual allegations by a preponderance of the evidence, and may rely on reliable hearsay in meeting that burden. (§ 777, subd. (c); see also Cal. Rules of Court, rule 5.580.) "In general, the court will find hearsay evidence trustworthy when there are sufficient 'indicia of reliability.' [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
D.S. challenges the probation officer's testimony that he violated the terms of his probation because she had no personal knowledge of his conduct at Gateway. He argues the Gateway termination report was not introduced in evidence, and that it constituted inadmissible hearsay. In context, we conclude that D.S.'s hearsay challenge is without merit.
While the juvenile court took judicial notice of the termination and placement review reports in the court's file, the factual recitations in those documents are not central to the court's ruling that D.S. violated the terms of his probation. The material fact supporting revocation was D.S.'s exclusion from the Gateway program due to his overall behavior and lack of participation in the program. This information was supplied to the probation officer who learned of D.S.'s behavior from Gateway staff during her visits to the facility, when she received a phone call informing her of his expulsion from the program, and in the termination report. When D.S.'s counsel objected to the probation officer's testimony about the information she learned from the termination report, the objection was overruled on the basis that the probation officer was testifying about information she learned from official records she had received and what she had done in response. Counsel was also invited to cross-examine the probation officer on the basis for the information she relied upon in her testimony.
Thus, even though counsel did not extensively cross-examine the officer about D.S.'s conduct and termination from the Gateway program, he could have. Instead, cross-examination focused only on the officer's admitted lack of firsthand knowledge of the information in the reports and her attempts to secure another program willing to accept D.S. There was no attempt to dispute the factual premise for the probation officer's conclusion that D.S. was terminated for his failure to cooperate in the program. One of the conditions of D.S.'s probation was that he "cooperate . . . in any program of guidance, counseling or therapy." On this record, we have no concern that the court relied upon unreliable hearsay in reaching its conclusion that D.S. violated the terms of his probation. His termination from Gateway led to the probation officer's unsuccessful search for a suitable placement other than the DJJ.
We are untroubled by the hearsay source of the probation officer's testimony or any reliance on factual allegations in the reports in the court's file, and this case is more like those where hearsay was considered reliable to support a finding of a probation violation than those where it was not. (Compare People v. O'Connell (2003) 107 Cal.App.4th 1062; People v. Abrams (2007) 158 Cal.App.4th 396; and People v. Gomez (2010) 181 Cal.App.4th 1028; with People v. Arreola (1994) 7 Cal.4th 1144 and In re Kentron D. (2002) 101 Cal.App.4th 1381.)
Our reasoning in People v. Shepherd (2007) 151 Cal.App.4th 1193 does not compel a different result. In Shepherd, a probation officer was permitted to testify about a conversation he had with a caseworker that informed him the probationer had been ordered to leave a treatment program, and another with a program administrator who told him the probationer tested positive for alcohol consumption. (Id. at p. 1197.) The probationer denied the allegation of alcohol consumption, and "no other evidence supported [the program administrator's] alleged out-of-court statements that appellant consumed alcohol in violation of his probation." (Id. at p. 1198.) This court determined the program administrator's hearsay testimony was inadmissible absent a showing of good cause for the declarant's absence, citing the Supreme Court's observation in Arreola that " 'the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor.' " (People v. Shepherd, supra, at pp. 1201-1202.)
We thus distinguish the situation confronted here from Shepherd where a witness was testifying about conversations with others. (People v. Shepherd, supra, 151 Cal.App.4th at pp. 1201, 1203.) Here, the court took judicial notice of the documentary reports, and the probation officer testified regarding her experience in taking D.S. back from the program and trying to find him a new one.
Unlike in Shepherd, the finding that D.S. violated probation was not based solely on oral out-of-court statements by a witness whose credibility was at issue and whose demeanor could have provided important information at the hearing. Instead, the evidence that D.S. was terminated from the Gateway program was provided by the probation officer's testimony, and corroborated in the written reports. The probation officer received the call from Gateway informing her that D.S. was terminated and that he was being returned to juvenile hall. She also met with Gateway staff and reviewed the termination report that summarized D.S.'s failure to follow program rules at Gateway "from the first day of placement."
There was no evidence that contradicted the reports or suggested that D.S. was not terminated from the Gateway program due to his failure to abide by the rules and cooperate in his treatment. D.S.'s speculative assertion that the reports were unreliable is insufficient, without more, to preclude the court from relying on the probation officer's testimony and considering the reports in these circumstances. (See People v. O'Connell, supra, 107 Cal.App.4th at p. 1067.)
To the extent D.S. argues that the reliance upon hearsay deprived him of due process because he was denied the right to confront his accusers, in a probation revocation context confrontation rights "are not absolute, and where appropriate, witnesses may give evidence by ' "affidavits, depositions, and documentary evidence." ' " (People v. Abrams, supra, 158 Cal.App.4th at pp. 400, 401-405 [probation officer permissibly testified regarding colleague's report and probation department records that showed defendant failed to contact the probation office]; see also People v. Maki (1985) 39 Cal.3d 707, 715-717 [documentary evidence sufficient to prove defendant left state without probation officer's permission]; cf. People v. Arreola, supra, 7 Cal.4th at p. 1159 [requiring good cause before a preliminary hearing transcript may be admitted at a probation revocation hearing].)
C. The Court Adequately Stated its Reasons for Revoking Probation
D.S. also relies upon Black to argue the juvenile court violated his due process rights because he was not given a written statement of the reasons for its decision to revoke probation. (Black v. Romano, supra, 471 U.S. at pp. 611-612.) But Division Five of this court has held that a reporter's transcript of the court's oral statement of reasons for revoking probation satisfies Black's due process requirement. (People v. Moss (1989) 213 Cal.App.3d 532, 533.)
At the conclusion of the contested hearing on the section 777 petition, the juvenile court stated: "Based on the testimony [of the probation officer], the court finds that there was a violation with respect to section 777 based on the evidence presented to this court in consideration of the testimony, as well as all files and information provided to the court in this case." Thus, the reporter's transcript indicates the reason for revocation was D.S.'s termination from the court-ordered Gateway sexual offender residential treatment program, in accordance with the probation officer's testimony and the supporting documentary evidence, and the court's statement on the record was adequate. (See People v. Moss, supra, 213 Cal.App.3d at pp. 533-534.)
D.S. argues that we should not rely on Moss because our Supreme Court's decision in People v. Bonnetta (2009) 46 Cal.4th 143 casts doubt on its continued viability. But the statute construed in Bonnetta explicitly required that the reasons for the court's order "be set forth 'in an order entered upon the minutes.' " (Id. at pp. 145-146 & fn. 1, construing Pen. Code, § 1385, subd. (a) [authorizing dismissal of an action "in furtherance of justice"].) Section 777 imposes no such requirement. Bonnetta does not abrogate Moss. While we do not condone the trial court's generalized statement of reasons for revoking probation, the transcript here is not so bereft of detail that it violates due process.
D. Substantial Evidence Supported D.S.'s Commitment to the DJJ
D.S. contends the evidence was insufficient to support the court's finding that he would likely benefit from a DJJ commitment or that less restrictive alternatives were not appropriate. We disagree.
We review an order committing a juvenile to the DJJ for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) The record must demonstrate "both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives." (Ibid.) When the court determines the appropriate disposition, it must consider, "in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (§ 725.5.)
Section 734 provides that a minor may be committed to the DJJ when the court is "fully satisfied" that the minor's condition and circumstances "render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJJ]." A juvenile court may properly find that the DJJ, "with its specialized institutions and rehabilitative programs tailored to the delinquent's sophistication and need for security [citation], offer[s] the promise of probable rehabilitative benefit" to a minor with a history of repeated offenses who is unsuccessful in alternative placements. (See In re Tyrone O. (1989) 209 Cal.App.3d 145, 153.) "[I]t is not merely the programs at DJJ which provide a benefit to [a] minor, but the secure setting as well." (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.)
Here, the juvenile court found D.S. would probably benefit from a DJJ commitment, and adopted the recommendation of the probation department's dispositional report that described his history of offenses, his termination from the Gateway program, his misconduct following his return to juvenile hall, and his rejection by numerous other residential programs, "based on the seriousness of his history and the risk he presents in the community." Substantial evidence in the record supports the court's finding, and demonstrates the ineffectiveness and unavailability of less restrictive alternatives. Although counsel at oral argument suggested D.S. could simply have remained in juvenile hall instead of being committed to DJJ, juvenile hall was not a suitable alternative. There is nothing in this record that suggests D.S. could be controlled at juvenile hall or that he could be effectively rehabilitated in the six months he would have remained there before his 18th birthday.
D.S. also contends that the court failed to consider that he would not benefit from a DJJ commitment because he was at risk for suicide, and because the commitment would trigger a lifetime requirement that he register as a sex offender under Penal Code section 290. (See In re Bernardino S. (1992) 4 Cal.App.4th 613, 619.) But the record does not show that these concerns were expressed in the juvenile court. Moreover, D.S. cites no authority to support his inference that section 777 requires that these factors be explicitly addressed by the court or would necessarily preclude his DJJ commitment. D.S. has not shown the court abused its discretion when it ordered his commitment to the DJJ. (See In re Tyrone O., supra, 209 Cal.App.3d at pp. 153-154.)
E. The Juvenile Court Failed to Exercise its Discretion under Section 731, Subdivision (c)
"When a minor within the jurisdiction of the juvenile court is committed to [the DJJ], the juvenile court is required to indicate the maximum period of physical confinement. [Citation.] 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).)[*fn4 ]" (In re Julian R. (2009) 47 Cal.4th 487, 492 [fn. omitted]; see also In re H.D. (2009) 174 Cal.App.4th 768, 777 ["the court should endeavor to tailor the disposition to the offender and the offense, rather than attempt to shoehorn the punishment into a one-size-fits-all sentencing scheme"].)
The court is not required to orally pronounce the maximum period of confinement, and, when the record is silent, the reviewing court will presume the court performed its statutory duty. (In re Julian R., supra, 47 Cal.4th at p. 487.) But here, the reporter's transcript suggests that the court adopted, as D.S.'s period of confinement, the prosecutor's computation of the maximum term that could be imposed on an adult convicted of the same crimes.
At the close of the jurisdictional hearing, after the clerk asked the prosecutor, "What is the maximum exposure?," the prosecutor stated, "Your Honor, . . . the maximum is ten years." The court responded, "That is what it is, based on the record." During the dispositional hearing, when the clerk again inquired, "Maximum term of confinement?," the prosecutor again responded, "Ten years." At the conclusion of the continued dispositional hearing, when the clerk asked, "Your Honor, what is the court setting the maximum at?," the prosecutor responded, "I believe the maximum is ten years." The clerk then stated, "That's what it says on the minute order, but the court usually sets it at the time of sentencing to DJJ." The court then inquired of counsel, "Based on the records, do the parties have any position with respect to what would be the maximum?," and the prosecutor replied, "Your Honor, I am asking the court fix it at ten years; eight years on the 288, and one third on the mid term on each of the 211's, which would be one year [each] for a total of ten," to which the court responded, "That is what we have already said. All right. It will be ten years."
While the Attorney General contends this colloquy demonstrates that the court exercised its discretion to set the maximum term of confinement, we conclude the record is ambiguous at best, given the absence of any clear acknowledgement by the court, counsel, or the probation department that the court was exercising its discretion to set the maximum term of D.S.'s confinement. (See In re Sean W., supra, 127 Cal.App.4th at p. 1182.) Our conclusion is reinforced by the court's failure to complete the revised Judicial Council commitment form JV-732, to make it clear that it had "considered the individual facts and circumstances of the case in determining the maximum period of confinement." (Cf. In re Julian R., 47 Cal.4th at p. 498 [the revised form "requires the juvenile court both to state the duration of the maximum period of confinement and to [acknowledge exercise of its discretion under § 731, subd. (c)]"].)
We are thus unable to determine on this record whether the court exercised its discretion to consider the facts and circumstances of the case, as required by section 731, subdivision (c). (In re Julian R., supra, 47 Cal.4th at p. 499, fn. 4 [because revised form JV-732 "requir[es] the juvenile court to acknowledge its consideration of the crime's facts and circumstances [citation], in the future a court's exercise of its discretion will be evident"]; In re Sean W., supra, 127 Cal.App.4th at p. 1182 [record disclosed no awareness of court discretion in setting the maximum term of confinement].) We therefore remand to permit the juvenile court to exercise its statutory discretion in setting D.S.'s maximum term of commitment in light of the facts and circumstances that brought D.S. before the court.*fn5 (See id. at pp. 1179, 1189; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542-1543.)
The matter is remanded to the juvenile court with directions to exercise its discretion in setting D.S.'s maximum term of confinement pursuant to section 731, subdivision (c). In all other respects, the court's orders are affirmed.