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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT El Dorado


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 argument justifying a different approach to the dispositional hearing in a delinquency case.

The minor takes the juvenile court's statement out of context. Just before making the alleged erroneous statement, the juvenile court gave its reasons for committing the minor to the DJJ. The juvenile court first indicated that punishment is part of rehabilitation in delinquency cases, and it was very disturbed by the progression of violence in the minor's behavior. The juvenile court then said it would be inappropriate to send the minor to a group home, as it would not let the minor "impact any more lives the way you have the victim in this case."

The juvenile court next addressed rehabilitation. It found that "based on the information that has been provided, that the Department of Juvenile Justice has the facilities and the counseling and the treatment programs necessary for rehabilitation. And so I hope you will utilize the facilities and the programs that are made available to you to rehabilitate yourself so that when you come out of this, and you will, you will come out of this, at the other end that you have learned and been--utilized and given the tools that are necessary for you to become a productive member of society." The passage defendant alleges to be error followed immediately after this last statement.

It is clear the juvenile court did not rely on testimony from another case in making the commitment order. The probation report stated that a commitment to the DJJ would provide the minor with a minimum of a two-year sex offender treatment program, along with other counseling services. If necessary, the minor could be placed in a sex offender group home upon completion of his commitment to ease his transition back into the community. The juvenile court relied on this information when it determined that a commitment to the DJJ served the minor's rehabilitative needs. Viewed in this context, the juvenile court's statement regarding testimony at another hearing was not meant as supportive reasons for its ruling, but rather to reassure the minor that he would get the treatment he needed at DJJ.

The authority cited by the minor is inapposite. People v. Webster (1983) 143 Cal.App.3d 679 involved a criminal prosecution where the sentencing court imposed an eight-year term on defendant after calling the youth authority and being told the defendant would serve about 18 months if committed there instead of prison. (Id. at pp. 680, 683-684.) The Court of Appeal determined the defendant had a constitutional right to respond to adverse sentencing information. (Id. at p. 685.) The Webster court vacated the sentence and remanded for a new sentencing hearing to determine whether the ex parte information was reliable. (Id. at p. 686.)

As we have already pointed out, the juvenile court did not rely on the ex parte conversation in deciding to commit the minor to the DJJ. Presuming that Webster, a criminal case, applies to delinquency cases, it is distinguished on its facts. The juvenile court's dispositional order was supported by substantial, appropriately taken evidence, and was not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P.J. NICHOLSON ,J.

20110405

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