In re Marc L.

Filed 4/2/07 In re Marc L. CA3

Opinion following rehearing

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

On December 20, 2005, the minor Marc L. admitted allegations that he was within Welfare and Institutions Code section 602 in that he willfully and unlawfully drove a vehicle upon a highway with willful and wanton disregard for the safety of persons or property and did cause bodily injury to another minor. (Veh. Code,  23104, subd. (a).) He was adjudged a ward, placed on probation with a 60-day commitment to juvenile hall, and ordered to complete 40 hours of community service.

We appointed counsel to represent the minor on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. The minor was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. The minor filed a supplemental brief. After considering the issues raised therein, we shall modify the juvenile courts findings and affirm the order.

BACKGROUND

The minor had a provisional drivers license which permitted him to drive only when under the immediate supervision of an appropriately licensed adult. Nonetheless, the minor was driving a car with the victim, a 16-year-old female, as the only passenger. The minor was driving along South Shingle Springs Road at a rate of approximately 100 miles per hour when he approached a curve and lost control of the car. He veered across two lanes and into a fence, at which point the car overturned several times. The minor did not report any injuries but his passenger was severely injured.

The minor had a previous referral to the probation department 17 months earlier, after the minor was issued a citation for possessing a knife on school grounds. The minor was expelled from school and the matter was later closed at the intake level by the probation officer. Thereafter, the minor was home schooled, passed the California High School Proficiency Examination, and enrolled in community college.

DISCUSSION

The minors supplemental brief raises several complaints. We shall address each in turn.

I

First, the minor indicates he would like a Marsden^[1]hearing for the purpose of requesting substitution of trial counsel. This, however, is not a reviewable issue, but rather a request the minor must make in the juvenile court. (See People v. Landers (1976) 59 Cal.App.3d 846, 850 [appellate review limited to record of trial court proceedings].)

Next, the minor states that his counsel did not inform him that he could plead no contest or no contest, with conditions, instead of pleading guilty. We cannot review the adequacy of counsels advice in this regard because the relevant conversation occurred outside the record. Matters affecting the adequacy of counsels representation which are outside the record, including discussions with appellant, cannot be reviewed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Mosqueda (1970) 5 Cal.App.3d 540, 546.)

The minor also claims there are purported factual errors in the probation report. Where, as here, a minor fails to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report [the minor] waives the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) Nor can we address the minors claim on appeal that he requested counsel raise certain points at the hearing relating to these purported factual errors and counsel failed to do so. Again, any such conversations or requests are matters affecting the adequacy of counsels representation which are outside the record and not reviewable on appeal. (People v. Pope, supra, 23 Cal.3d 412 at p. 426.)

The minor also states that he told his counsel he wished to speak to the court at sentencing and counsel did not so inform the court. Again, any such conversations or requests are matters affecting the adequacy of counsels representation which are outside the record and not reviewable on appeal. (People v. Pope, supra, 23 Cal.3d 412 at p. 426.)

Finally, the minor attached a letter to his brief that he purportedly wrote and sent to his trial counsel after the entry of judgment. The letter makes several requests including, inter alia, that the restitution hearing be deferred until after an insurance settlement is reached. Matters occurring after entry of judgment are ordinarily not reviewable. This appeal reviews the correctness of the judgment from which the appeal was taken as of the time of its rendition. (Peoples Home Sav. Bank v. Sadler (1905) 1 Cal.App. 189, 193; In re Randi D. (1989) 209 Cal.App.3d 624, 627.) Moreover, the minors requests concern matters outside of the appellate record and are, therefore, not reviewable. (People v. Brawley (1969) 1 Cal.3d 277, 294; People v. Stafford (1973) 29 Cal.App.3d 940, 944, fn. 4.)

II

The minor also asserts that certain findings adopted by the juvenile court in its disposition order are not supported by the record. Specifically, the minor objects to the following findings, set forth in the disposition order: (1) item 6 -- The minors welfare requires removal from the custody of his/her parent; (2) item 7 -- Continuance of the minor in the home of the parent or guardian would be contrary to the minors welfare; (3) item 8 -- Reasonable efforts have been made to prevent or eliminate the need for removal of the minor from the home and to make it possible for the minor to return home; and (4) item 9 -- Reasonable services have been provided which were designed to aid in alleviating the causes, which resulted in the minors removal from the home.

Upon rehearing and at our invitation, counsel filed supplemental briefs addressing the necessity of the juvenile courts findings and whether the findings were supported by substantial evidence. We conclude that some of the findings must be modified.

When the juvenile court determines a minor is a ward of the court under Welfare and Institutions Code section 602, it has a variety of dispositional options. Should the court decide to place the minor on probation, [t]he juvenile court has broad discretion in formulating conditions of probation. [Citations.] (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (Nov. 30, 2006) 2006 Cal. LEXIS 14082 (S135263).) However, if the court removes the minor from the care and custody of his parent, the court must make at least one of the findings under Welfare and Institutions Code section 726 (section 726).

Section 726, subdivision (a), provides in relevant part: In all cases in which a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over the ward or dependent child by any parent or guardian and shall in its order, clearly and specifically set forth all those limitations, but no ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts:

(1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor.

(2) That the minor has been tried on probation while in custody and has failed to reform.

(3) That the welfare of the minor requires that custody be taken from the minors parent or guardian.

The juvenile court need not use the precise language of section 726, as long as the substance of the finding appears in the reporters transcript. (In re John S. (1978)83 Cal.App.3d 285, 291-293.) We review the juvenile courts findings upon which disposition is based for abuse of discretion and will not disturb such findings when there is substantial evidence to support them. (In re Clarence B. (1974) 37 Cal.App.3d 676, 682.)

Here, the juvenile court placed the minor on probation and ordered the minor, as a condition of probation, to serve 60 days in juvenile hall. Ordering time in juvenile hall as a condition of probation is an order removing the minor from the care and custody of the parent. Therefore, the court was required to make one of the findings under Welfare and Institutions Code section 726, subdivision (a). (In re John S., supra, 83 Cal.App.3d at pp. 290-291; In re Ricardo M. (1975) 52 Cal.App.3d 744, 749-750.)

Item 6 (the minors welfare requires removal from the custody of his/her parent) and item 7 (continuance of the minor in the home of the parent or guardian would be contrary to the minors welfare) in the disposition order were appropriately entered and also, contrary to the minors contention, supported by substantial evidence in the record. The findings of the juvenile court substantively satisfy the finding in section 726, subdivision (a)(3) that the welfare of the minor requires that custody be taken from the minors parent or guardian. The record here supports the courts finding.

The minors current offense demonstrated a disregard of the law and of the safety of others. He drove without a proper license at an extremely excessive speed and severely injured his 16-year-old passenger. The minor also had been previously expelled from school for possessing a knife on school grounds. According to his mother, there had also been an occasion when the minor had consumed an excessive amount of alcohol at a party.

In making its findings, the juvenile court emphasized the severity and repercussions of the minors offense: And to go 100 miles an hour in a [] 30-mile zone and reach a curve and then your car gets flipped over, end over end, youre both -- it is a miracle you are both still alive. [] And it is one thing when you risk your own life, and it is an entirely different thing when you risk someone elses life, which you have no right to do. And there are consequences for when people do horrible and irresponsible things. [] And I intend to follow the recommendation [of 60 days in juvenile hall] here.

In making these comments, the court indicated its opinion that the welfare of the minor required he be temporarily taken from his home so the minor would appreciate the severity of his actions and the serious consequences of continued delinquent behavior. This approach seeks to avoid the unkind leniency which all too often leads the juvenile to further and more aggravated violations of law and consequently to a continuum of more severe treatment through camp and youth authority commitment to a sentence of state prison by a felony court. (In re Ricardo M., supra, 52 Cal.App.3d at p. 749.) Based on the record, the juvenile courts finding that the welfare of the minor requires that custody be temporarily taken from the minors parent while he spends 60 days in juvenile hall was not an abuse of discretion and is supported by substantial evidence.

Conversely, item 8 (reasonable efforts have been made to prevent or eliminate the need for removal of the minor from the home and to make it possible for the minor to return home) and item 9 (reasonable services have been provided which were designed to aid in alleviating the causes, which resulted in the minors removal from the home), were unnecessary findings, in that they are not required by section 726. Moreover, such findings are not supported by the record.^[2] The record does not reflect the minor had been provided any services through the court, probation department or childrens services prior to the juvenile courts findings and order of probation. Thus, those findings shall be stricken. However, since the juvenile courts order is supported by section 726, subdivision (a), findings in items 6 and 7, the disposition order is affirmed.

DISPOSITION

The findings in the disposition order labeled item No. 8 (Reasonable efforts have been made to prevent or eliminate the need for removal of the minor from the home and to make it possible for the minor to return home) and item No. 9 (Reasonable services have been provided which were designed to aid in alleviating the causes, which resulted in the minors removal from the home) are stricken. In all other respects, the findings and orders of the juvenile court are affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1]People v. Marsden (1970) 2 Cal.3d 118.

^[2] We also note that the court did not make these findings in open court on the record.