In re Devonne W.

Filed 7/31/07 In re Devonne W. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Devonne W. admitted one count of residential robbery in concert (Pen. Code, 211, 212.5, subd. (a), 213, subd. (a)(1)(A)) and one allegation that a perpetrator was armed with a firearm (id., 12022, subd. (a)(1)). The court set appellants maximum time of physical confinement at seven years six months.

On appeal, he contends that the negotiated disposition (1) improperly influenced the juvenile courts dispositional decision, and (2) was illegal because it deprived him of effective assistance of counsel. We affirm the dispositional order.

I. FACTUAL BACKGROUND

A. Prior Petitions

Appellants history as a juvenile offender is extensive.

In March 2002, the Alameda County District Attorney filed a petition pursuant to Welfare and Institutions Code^[1]section 602 alleging that appellant committed misdemeanor sexual battery and battery. Thereafter a count of petty theft was added. Appellant admitted the battery and petty theft counts. The juvenile court dismissed the sexual battery count and continued him in the custody of his mother.

That December the district attorney filed a (1) subsequent petition alleging that appellant had committed a residential burglary and (2) a section 777 notice of probation violation. In February 2003, appellant admitted to trespass and the court dismissed the section 777 notice.

In April 2003, the probation department notified the court that appellant had been truant for multiple days and had been out of range of his electronic monitoring equipment. Appellant was arrested and returned home on probation.

In December 2003, the probation department filed a supplemental petition alleging that appellants whereabouts were unknown and that his mother reported he was under the influence of marijuana and heroin. Appellant admitted he had violated probation. The court ordered out-of-home placement. On February 25, 2004, the probation department filed another supplemental petition alleging that appellant violated the terms of his probation by running away from his group home.

B. Committing Petition

On August 16, 2005, a subsequent petition was brought against appellant alleging a residential robbery in concert. (Pen. Code, 211, 212.5, subd. (a), 213, subd. (a)(1)(A); counts 1-3.) The petition further alleged that he had been armed with a firearm and personally used a firearm. (Id., 12022, subd. (a)(1), 12022.53, subd. (b).) That same day the district attorney filed a section 707 motion requesting that the court find appellant unfit for juvenile court treatment.

On December 19, 2005, the parties agreed that the prosecutor would not pursue the fitness motion; appellant would admit count one (residential robbery) and an armed enhancement; and he would be committed to the Division of Juvenile Justice (DJJ).^[2] Appellant admitted count one and its firearm clause. The court dismissed the remaining counts and enhancing allegations. At the disposition hearing, the court committed appellant to DJJ and in its discretion, set appellants maximum time of physical confinement at seven years six months.

C. Committing Offenses

Appellant and two accomplices robbed a single-family residence in Hayward. Appellant pointed a loaded .22-caliber revolver at one of the children and asked who else was in the house. One of appellants accomplices went upstairs and entered the bedroom of the homes owners, pointed a gun at them and yelled Give me your money. The wife started to scream and the assailant punched her in the forehead. The assailant took money from the husband. He then opened up a jewelry box and took several items. Officers stopped a Buick nearby and found another assailant driving and appellant in the rear passenger seat. Officers found a loaded .22-caliber revolver under appellants seat. A narcotics kit was also found, as was the laptop taken from the house.

II. DISCUSSION

A. The Plea Agreement Did Not Influence the Courts Dispositional Decision

Appellant asserts that the negotiated disposition was illegal and improperly influenced the courts dispositional decision. His concern is that any consideration of the plea agreement would blur the separation between the jurisdictional and disposition phases of the juvenile proceeding. As explained in In re Gladys R. (1970) 1 Cal.3d 855, 859, [T]he Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring a wardship and thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. [Fn. omitted.] The rationale informing this legislative policy relates to the juvenile courts role in setting the appropriate disposition. This role involves considerations that are different from those bearing on the jurisdictional determination of whether a crime has been committed. It is error to prejudge the issue of disposition. (See In re J. L. P. (1972) 25 Cal.App.3d 86, 89-90: When minor first appeared, juvenile court gave him the option of being tried in adult or juvenile court, and, if he chose the latter and any count were sustained, he would be committed to the Youth Authority. Minor chose juvenile court, admitted some allegations, and was committed to the Youth Authority. The juvenile court refused to hear the minors evidence concerning disposition. Held: the court prejudged the issue of disposition and, by its predetermination of disposition and refusal to hear the proffered evidence, committed error.)

Appellant points to the appropriate considerations on disposition. Section 202, subdivision (b) provides that [m]inors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. Further, prior to committing a juvenile to DJJ the court must be 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 the Youth Authority. ( 734.)

Here, at the time of taking appellants admission, the court ordered a guidance case report and continued the matter for disposition with the understanding that the minor has been informed of the likely consequence of that hearing will be a commitment to the [DJJ] and has agreed to that. Upon receiving the evaluation and the dispositional report, the court put the case over to consider both documents, indicating: The issue is essentially whether the [DJJ] is appropriate here. I am aware that the minor and the District Attorney agreed that that would be an appropriate disposition. I wish to consider the matter, given the agreement thats been reached, and make a determination myself whether thats the best thing for thisminor. (Italics added.) Thereafter the court again continued the disposition for further consideration of whether the [DJJ] is in this minors best interest or whether . . . there is some other dispositional alternative that makes more sense. Finally, at the dispositional hearing the court explained that it had reviewed the pertinent matters and thought further about the appropriate disposition here and have concluded that the commitment to the [DJJ] is the sound, appropriate way to proceed . . . despite the recommendation [of] the Guidance Clinic^[[3]] . . . . [] It is clearly one contemplated by the minors counsel and the petitioner in the course of their discussions of the case. The agreement reached is reflected in the record and although I have previously indicated that I wouldnt consider that agreement binding in the exercise of my duty to make dispositional orders that are in the best interest of the minor and I dont consider that agreement binding on me, I do conclude . . . that . . . the commitment is the alternative that is best suited to the minors rehabilitation.

Appellant contends that the juvenile courts statement that a DJJ commitment would be the likely consequence of the dispositional hearing proves that it was influenced by the negotiated disposition. We are not persuaded. It is clear from the above recitation of the juvenile courts deliberations that it did not impermissibly prejudge the disposition.

Moreover, we will reverse a juvenile courts commitment order only upon a showing of abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) In this case, there is ample evidence that commitment to DJJ was the appropriate and only suitable placement for appellant. The fitness report assembled by the probation officer recommended that the court find appellant unfit for treatment in the juvenile court system under four of the five statutory factors: degree of sophistication, prior delinquent history, previous rehabilitative attempts, and gravity of the offenses. The reporting officer also stated that [t]he only possible disposition available to the Juvenile Court would be for a commitment to [DJJ]. Additionally, the probation officers dispositional report indicated that appellant was ineligible for placement in Camp Sweeney due to the severity of the offense and firearm use. The Rites of Passage program had also rejected appellant. Further, appellant was a habitual marijuana user and admitted that he was high on both marijuana and ecstasy at the time of the committing offense. His criminal history was extensive and the current offense, involving multiple victims, threats and a gun, were very serious. The probation officer recommended DJJ placement.

We conclude from the entire record that the juvenile court properly analyzed appellants criminal, rehabilitative, and social history; considered the probation officers report and recommendation for DJJ placement as well as the fitness and guidance center reports; and rendered an appropriate dispositional order. Appellant was running out of placement options. Given appellants tendency to run away, including going AWOL from a group home, the court did not abuse its discretion in concluding that DJJ was most appropriate.

B. Acceptance of the Plea Deal Did Not Restrain Appellants Lawyer in the Performance of Her Duties

Appellant asserts that the negotiated disposition accepted by him restrained his attorney in the performance of her duty to oppose a DJJ commitment and advocate for a more lenient disposition. We disagree.

To prevail on a claim ofineffective assistance of counsel, a defendant must show that counsels performance was deficient because his or her representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The defendant must also show prejudice flowing from counsels act or omission. Prejudice is found if the defendant demonstrates a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (People v. Gurule (2002) 28 Cal.4th 557, 610.)

Appellant had a criminal record spanning five years involving crimes that were becoming more serious. Additionally, previous custodial placements had failed due to appellants truancy from his court-assigned placements. The probation officer first pursued a fitness hearing. Appellant faced adult penal exposure of 19 years on one of the three counts plus subordinate consecutive terms on the remaining counts and enhancements. Once the fitness hearing was off the table, the probation officer recommended DJJ as the only suitable placement.

Appellant failed to show that his attorneys actions fell below a standard of reasonableness. The record provides no information as to why counsel did not advocate for a more lenient disposition. However, from the record we can posit that counsel may well have concluded that such advocacy would have been futile. Counsel may also have believed a DJJ placement was in appellants best interest given the prospect that her client may have been removed to criminal court.

III. DISPOSITION

The dispositional order is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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^[1]Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

^[2]As of July 1, 2005, what was formerly known as the California Youth Authority became the Division of Juvenile Justice within the Department of Corrections and Rehabilitation. ( 1710, subd. (a); Gov. Code, 12838, 12838.5.)

^[3]The guidance center report diagnosed appellant with substance abuse dependence. The evaluator believed he was experiencing depression and needed [i]ntense psychological treatment and a high level of supervision. The evaluator recommended placement in a residential treatment facility geared to dual-diagnosis patients, and that he receive individual, group and substance abuse counseling.