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In Re A.S., A Person Coming Under the Juvenile Court Law. v. A.S

April 5, 2011

IN RE A.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
A.S., DEFENDANT AND APPELLANT.



Super. Ct. No. PDL20090225

The opinion of the court was delivered by: Hull ,j.

In re A.S. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In October 2009, K.S. reported that her 16-year-old son A.S. (the minor) and her husband were molesting her 13-year-old adopted daughter, M.S. M.S. said the minor started touching her inappropriately when she was seven, and they started lying together naked on the bed about five years ago. The minor raped her 10 different times after February 2008. Once, he entered her room, pointed a screwdriver at her, and said "We are going to 'do it' tonight." M.S. allowed the minor to sexually assault her as she was afraid for her life. Another time, the minor placed a large steak knife at her throat when she resisted his advances; after sexually assaulting her, the minor threatened to kill M.S. if she told anyone.

The juvenile court sustained a delinquency petition (Welf. & Inst. Code, § 602) after the minor admitted having committed two counts of a forcible lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)) and one count of a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). The juvenile court committed the minor to the Department of Juvenile Justice (DJJ) with a maximum term of 12 years.

The minor contends the dispositional order violated his constitutional rights to counsel, confrontation, and fair notice, as the juvenile court improperly relied on ex parte witness statements. We affirm the judgment.

FACTS AND PROCEEDINGS

The juvenile court made the following statement before announcing its dispositional order: "And I know that DJJ has a reputation of, you know, being a problem and being a terrible place to go and everything, but Mr. Nuygen in another proceeding came in and testified, at the behest of your counsel by the way, that that is no longer the case. They have revamped their system and so now it is a place where you're not just warehoused and where you're not--well to describe it in the vernacular, sent into a hellhole. It is a place where you can obtain rehabilitative services. And so, therefore, the Court is going to follow the recommendation of probation."

The minor contends the juvenile court's order relied on ex parte testimony in violation of his federal and state constitutional rights to counsel, fair notice, an opportunity to be heard, to be present, and to respond to evidence which may deprive him of liberty.

The minor never objected to the juvenile court's statement and never claimed that it improperly relied on ex parte testimony. The People respond that the minor has forfeited his claim by failing to make a timely and specific objection on this ground in the juvenile court. (Evid. Code, § 353; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Alvarez (1996) 14 Cal.4th 155, 186.) We agree. In any event, the minor's claim fails on the merits.

"A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.] '"We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them."' [Citation.]" (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)

"[Welfare and Institutions Code] sections 706 and 725.5 of our juvenile court law expressly authorize the juvenile court to receive and consider otherwise inadmissible evidence at the disposition hearing so long as it is relevant and material to the disposition issue." (In re Michael V. (1986) 178 Cal.App.3d 159, 170, fn. omitted.) In criminal cases, the sentencing court may consider hearsay statements contained in a probation officer's report because the report, having been prepared by a government employee in furtherance of his or her official duties, is inherently reliable. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755; People v. Cain (2000) 82 Cal.App.4th 81, 87.)

A criminal defendant has no right to cross-examine witnesses at a sentencing hearing. (People v. Lamb (1999) 76 Cal.App.4th 664, 683.) "A sentencing judge may consider responsible unsworn or out-of-court statements concerning the convicted person's life and characteristics. [Citations.]" (Ibid.) The minor presents no authority or ...


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