In re H.W.

Filed 1/26/09 In re H.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Miriam Morton, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

A juvenile court found true the allegation that defendant H.W. (minor) committed the offense of criminal threats. (Pen. Code,^[1] 422.) Minor had been previously declared a ward of the court and placed on probation, so the court ordered that he remain a ward on probation, in the custody of his parents. On appeal, minor contends that five of his probation conditions must be stricken because the juvenile court did not verbally impose them at the disposition hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Minor was originally declared a ward of the court on November 13, 2006, for sustained allegations of resisting a peace officer ( 148, subd. (a)(1)) and vandalism over $400 ( 594, subd. (b)(1)). The court placed minor on probation under 33 conditions (also referred to herein as terms), as listed in the probation officers report dated October 12, 2006.

On October 16, 2007, Officer Lisa Guerra went to minors home to investigate a possible crime involving his mother. While the officer was speaking with minors mother, minor came out of the bedroom, cursing and yelling because he thought the officer was going to arrest his mother. Due to minors size^[2]and the fact that there were several people at the location, Officer Guerra was in fear for her safety and called for a backup unit. Additional officers and an explorer (a volunteer in training), Antonio S., responded to the scene. Minor recognized Antonio S. from having had prior contact with him. Minor threatened to physically harm him, and Antonio S. took the threat seriously, fearing for his safety.

Subsequently, on October 18, 2007, the San Bernardino County District Attorney filed a new Welfare and Institutions Code section 602 petition alleging that minor committed the offense of criminal threats. ( 422) At a jurisdictional hearing on November 9, 2007, the juvenile court found the allegation to be true. The court then informed the parties that the disposition hearing would be on November 27, 2007, and that a probation report would be submitted prior to that date. The court was going to decide the disposition on November 27 after considering the probation memo.

The probation officer submitted a report stating that minor had been unsuccessful during his probation, in that he had been unable to separate himself from criminal activity and had a disregard for the law and authority figures. The probation officer thus recommended that minor be continued a ward of the court in the custody of his parents on the probation terms dated October 12, 2006, with the following added terms:

34. Not associate or communicate with the victim, Antonio [S.], or be within one hundred (100) feet of his property. . . .

35. Do not be outside the premises of your home between the hours of 6:00 p.m. and 6:00 a.m. unless accompanied and in the immediate presence of your parent or guardian or with the permission of a parent and prior approval of the probation officer. . . .

36. Attend school daily and abide by all school rules. If you are absent from school, you or your parent must notify the probation officer before 10:00 a.m. on the date of absence. If you are suspended from school or receive any other type of behavioral referral, you must notify the probation officer immediately. . . .

37. Do not stay the night at a home other than your own without permission from your parents and providing notification to the probation officer prior to staying the night. . . .

38. Not attack, strike, threaten, harass, stalk, or sexually abuse the victim, Antonio [S.]. . . .

At the hearing on November 27, 2007, minor was present and represented by counsel. The court stated: The recommendation is continue probation with new terms. Additional terms. Minors counsel replied: Were submitting, your Honor, and then requested an appearance review to be set on minors 18th birthday, which was August 11, 2008. The court said okay and then addressed the prosecutor, who stated: People submit on probations recommendation. The court immediately declared: The court continues the minor a ward of the court, placed in the custody of parents, maintained in the home of parents on terms and conditions of probation dated October 12, 2006. The court proceeded to set the requested appearance review for August 11, which prompted the prosecutor to state: And probations recommendation is intensive supervision. Are we setting an appearance review? The court responded in the affirmative and scheduled a hearing 90 days from then, or February 25, 2008. The court then vacated the August 11 hearing date and said it would reassess the matter at the time of the 90-day appearance review.

The minute order of the disposition hearing reflects that the court ordered that minor be maintained [in his] parents home on terms of probation dated 10-16-07^[[3]] with terms 34-38 added.

ANALYSIS

The Court Impliedly Imposed the Additional Terms

Minor argues that because the court did not verbally impose the additional probation conditions at the disposition hearing, he was deprived of the right to notice that the new conditions would be imposed and denied the opportunity to respond and object to the additional limitations on his daily life. He thus asserts that the new conditions must be stricken. We disagree.

[T]he essence of due process is actual notice and a meaningful opportunity to be heard. [Citation.] (In re Brian K. (2002) 103 Cal.App.4th 39, 42.) As to notice of the new probation conditions, it is unclear from the record whether counsel received a copy of the probation officers report prior to the hearing or at the hearing itself, as minor claims. However, it is reasonable to infer that minors counsel had sufficient notice of the proposed probation conditions. The record shows that the court informed the parties the disposition hearing would be held on November 27, 2007, and that a probation report would be submitted prior to that date. The court specifically reiterated: Well, the courts going to decide whats going to be the disposition in the case. But probation is going to submit a memo, and were going to hear and see that memo on November 27th. That probation report recommended all probation conditions that had been imposed on October 12, 2006, to remain in full force, along with five new conditions, enumerated as terms 34 through 38. These additional terms were specifically designed to apply to minors most recent case. Terms 34 and 38 explicitly named the victim in the instant case and prohibited minor from having any contact with him.

Furthermore, the court commenced the disposition hearing by stating: The recommendation is continue probation with new terms. Additional terms. (Italics added.) Minors counsel did not express surprise or object for lack of notice. Instead, she promptly responded by stating, Were submitting, your Honor. Thus, the record indicates that minor had notice of the proposed new terms and that the court gave him an opportunity to be heard and raise any challenges to them. Minor chose to submit on the probation officers recommendation, which was to add the five new terms.

Minor points out that the reporters and clerks transcripts are in conflict since the court did not verbally impose the additional probation conditions, but the minute order reflects that it did. He maintains that the inconsistency must necessarily be resolved in favor of the oral pronouncement. While we recognize that the court did not expressly impose the additional terms, we disagree with minors conclusion that the new terms must automatically be stricken.

It may be said . . . as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerks minutes should prevail as against contrary statements in the reporters transcript, must depend upon the circumstances of each particular case. [Citations.] (People v. Smith (1983) 33 Cal.3d 596, 599.)

In the instant case, it does not appear there is an irreconcilable conflict in the record. Considering the circumstances of the proceedings, it is clear the court intended to maintain minor on probation under the terms that were previously imposed on October 16, 2006, along with the additional terms recommended in the probation report. We infer from the record that the court inadvertently neglected to mention the additional terms when announcing the disposition, even though it had just stated that additional terms were recommended. Any other interpretation of the record would not make sense. The court had expressly informed the parties it was going to decide the disposition after seeing the probation departments recommendation. Accordingly, the court considered the recommended additional terms, which specifically addressed the current offense, offered the parties the chance to be heard, and then made its disposition order.

Minor also contends that this court does not have the authority to add new probation terms, and thus, the terms at issue must be stricken. He cites In re Pedro Q. (1989) 209 Cal.App.3d 1368; however, In rePedro Q. is factually inapposite. In that case, the juvenile court placed the minor on probation under certain conditions, and the probation officer subsequently added new probation conditions. (Id. at p. 1372.) The juvenile court was completely unaware of the new terms added to the minors probation conditions. (Id. at p. 1373.) The appellate court held that the juvenile court alone had the power to modify probation by adding new terms. (Ibid.) In the instant case, we are not adding new terms.

In sum, minor had notice of the additional terms, as recommended in the probation report, and the court provided him a full opportunity to raise any challenges to the additional terms. Thus, the court did not deny minor the opportunity to be heard, and he has not shown how the courts actions prejudicially impacted his procedural rights. Moreover, minor submitted on the probation departments recommendation. We conclude that the minute order accurately reflects the courts disposition, and the additional probation terms need not be stricken.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references will be to the Penal Code unless otherwise noted.

^[2] A probation officers report states that minor was six feet tall and weighed 343 pounds.

^[3] The previous probation terms were actually imposed on October 16, 2006, not 2007.