In re
O.H.
Filed 6/20/12 In re O.H. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re O.H., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
O.H.,
Defendant and Appellant.
D058880
(Super. Ct.
No. J216347)
APPEAL from
a judgment of the Superior Court
of
County, Browder A. Willis III, Judge. Reversed and remanded, with directions.
In July
2007 the San Diego County District Attorney filed a
within the court's jurisdiction under Welfare and Institutions Code section 602
based upon his battery of a police officer causing injury (Pen. Code,
§ 243, subd. (c)(1) [all further undesignated statutory references are to
the Penal Code]) and resisting a police officer (§ 148, subd.
(a)(1)). The court made a true finding
on the battery count, dismissed the remaining count, and placed O.H. on
probation.
In October
2008 the San Diego County District Attorney filed a wardship petition against
O.H., alleging he wrote graffiti (§ 594, subds. (a) & (b)(2)(A)); that
he did it to promote, further, and assist criminal
conduct by gang members (§ 186.22, subd. (d)); and that he possessed
various tools with the intent to commit vandalism (§ 594.2, subd.
(a)). The court sustained a true finding
as to the vandalism charge as a misdemeanor.
In February
2010 the San Diego County District Attorney filed a wardship petition alleging
that O.H. committed two counts of lewd acts upon a child under the age of 14
(§ 288, subd. (a)). O.H. admitted
the first count, and the court dismissed the other count in the interest of
justice.
In
September 2010 the Riverside County District Attorney filed a petition alleging
that O.H. committed an assault by means of force likely to produce great bodily
injury (§ 245, subd.
(a)) and a battery causing serious bodily injury (§ 243, subd. (d)). O.H. admitted count 1, and the court
dismissed count 2 on the People's motion.
The matter was transferred to San Diego
County for disposition.
In December
2010, at the disposition hearing for his most current offense, the juvenile
court aggregated O.H.'s prior petitions with his current petition and committed
him to the California Department of
Corrections and Rehabilitation, Department of Juvenile Justice (DJJ), based
upon the four previously sustained petitions.
The court set the maximum term of confinement at 10 years.
On appeal,
O.H. asserts (1) his trial counsel rendered ineffective assistance of counsel
by failing to move the court not to aggregate his prior petition under section
288, subdivision (a) for committing a lewd act upon a child under the age of
14, because such failure resulted in a lifetime sex offender registration; and
(2) the court erred in failing to expressly find whether the 2007 finding he
violated section 243, subdivision (c)(1) constituted a misdemeanor or a felony.
We conclude
we must reverse and
remand to allow the trial court to exercise its discretion
whether to aggregate O.H.'s prior petition for violation of section 288,
subdivision (a) for the purposes of his DJJ commitment. We also order that the trial court designate the 2007
violation of section 243, subdivision (c)(1) as a felony.
RELEVANT
FACTUAL BACKGROUND
title="">[1]
A.
When O.H.
was 16 years old, he put his penis in his 5-year-old cousin's mouth and made
her orally copulate him.
A.
O.H. and
the victim, John Doe, were participating in an anger management course in a
group home when they began arguing. Both
stood up, and O.H. punched the victim.
The victim fell to the ground, unconscious. O.H. punched Doe in the face several more
times, until he was pulled off the victim.
Doe suffered several fractures to his face and a perforated ear drum.
DISCUSSION
I. Ineffective
Assistance of Counsel Claim
To
prevail on a claim of ineffective assistance of counsel, the defendant must
show that counsel's performance fell below a standard of reasonable competence
and that there is a reasonable probability the result would have been more
favorable to the defense in the absence of counsel's deficient
performance. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688.)
The defendant bears the burden of proving ineffective assistance of
counsel by a preponderance
of the evidence. (People v. Mincey (1992) 2 Cal.4th
408, 449.)
B.
Background
In the
probation department's social study for O.H. dated September 27, 2010, it was
recommended to the court that "[a]ll true findings during this wardship
have been aggregated pursuant to [Welfare & Institutions Code section] 726
and [Penal Code section] 1170.1[, subdivision] (a)" and noted that
"the most serious offense is [Penal Code section] 288[, subdivision] (a) a
category 2 offense."
At the
disposition hearing on December 15, 2010, O.H.'s counsel argued that the
hearing should be continued a month to allow an out-of-state group home option
that had accepted O.H.'s placement there to be certified by the State of
California. Counsel argued that
commitment to the DJJ was not appropriate because, among other things, it would
necessarily result in a lifetime sex offender registration. Specifically, counsel stated, "As the
court probably knows here, we're talking about a DJJ commit[tment which] would
render [O.H.] registering as a sex offender for the rest of his life. This is going to have lifetime consequences
should he be sent to DJJ." Later in
the hearing, counsel twice again reiterated that sex registration was mandatory
if the minor was committed to DJJ.
The
prosecution argued that the hearing should not be continued, O.H. should be
committed to DJJ, and that sex registration was simply a statutory consequence
required under section 290.
The
court commented that "[t]he fact that there is the factor of lifetime
registration is unfortunate. But there was
a 5-year-old victim, who was a victim of a sexual assault, and that is just
the legal consequences for the behavior that occurred. Whether or not that occurs again in the
future─and according to the professionals, not likely, because you're
not a predator. But it was an
impulsive crime of opportunity─a vulnerable victim. And that has to be part of the equation
also." (Italics added.)
During
the disposition hearing wherein O.H. admitted a violation of section 288,
subdivision (a), the court considered a report written by Dr. Alan Flitton, a
specialist in evaluating juvenile sexual offenders, that was included in the
probation officer's social study of the minor.
O.H.'s counsel and the court also referred to that report at the
December 15 disposition hearing.
Relevant
to this appeal, Dr. Flitton found "[t]he minor does not appear to be a
sexual predator," "has not reportedly engaged in inappropriate sexual
behavior with more than one person," and "no reports were made
suggesting that he used excessive coercion, force, or weapons." Dr. Flitton also found that the minor
"may not present a direct risk to the community regarding sexual offending
behavior and he does not appear to be a sexual predator (e.g., he would not
seek out a child or peer for the purposes of sexual assault). However, he is at
risk for future delinquent and conduct disordered behavior, substance
use/abuse, and gang involvement, despite the prohibitions against him having
contact with gang members."
However, Dr. Flitton also observed that O.H. "is likely to take
advantage of a situation to gratify his sexual impulse."
The
court committed O.H. to the DJJ and accepted the probation department's
recommendation that his prior petitions be aggregated. In ordering the commitment, the court noted
it had discretion with regard to setting the maximum term, but did not state
anything on the record regarding its discretion not to aggregate the prior
petitions.
C.
Analysis
Welfare
and Institutions Code section 726, subdivision (c) provides in part: "If the court elects to aggregate the
period of physical confinement on multiple counts or multiple petitions,
including previously sustained petitions adjudging the minor a ward within
[Welfare and Institutions Code] Section 602, the 'maximum term of imprisonment'
shall be the aggregate term of imprisonment specified in subdivision (a) of
Section 1170.1 of the Penal Code."
(Italics added.)
In In
re Alex N.
(2005) 132 Cal.App.4th 18, the
minor was found to have committed first degree burglary. (Id. at pp. 20-21.) In a prior case, the minor admitted
committing a lewd act with a minor and oral copulation with a minor, among
other crimes. (
In the burglary case, the minor requested the court not aggregate his
prior sex offense and commit him to DJJ based only upon his most recent
offense, in order for the minor to avoid having to register as a sex offender.
21-22.) The trial court concluded that
it did not have the authority to choose not to aggregate minor's previous crimes
under Welfare and Institutions Code section 726; however, the trial court
indicated that it might be inclined not to aggregate the minor's prior
sustained petitions, if it had the discretionary power to do so.
p. 22.)
Welfare and Institutions Code section 726 the juvenile court does have the
authority not to aggregate previously sustained petitions, as well as the
authority "to modify
for a previously
sustained petition and
impose any appropriate
disposition." (In re Alex N., supra, 132 Cal.App.4th
at p. 25.) Accordingly, the appellate court "remand[
to exercise its
discretion to not
aggregate."
Here, the record shows, based upon
comments made by defense counsel, the court, and the prosecution, that defense
counsel and the court did not consider the fact the court had the discretion
not to aggregate the prior section 288 petition, thereby requiring a lifetime
registration for O.H. as a sex offender.
Further, there could be no conceivable tactical reason not to raise that
issue with the court, and therefore defense counsel's performance was
deficient. Lifetime sex offender
registration is a grave consequence that imposes a "substantial" and
"onerous" burden. (
1185, 1197; In re Birch (1973) 10
Cal.3d 314, 322.)
Indeed, the People do not contend that
defense counsel's representation in this regard was not deficient. Rather, the People argue that, "[b]ased
on the age and vulnerability of [O.H.'s] victim, there is no reason to believe
that the trial court would have reached a different result even if trial
counsel had made an appropriate objection"; i.e., that O.H. cannot show
that he was prejudiced by counsel's deficient performance. However, this contention is belied by the
facts.
To demonstrate prejudice, O.H. must
demonstrate that there is a reasonable probability that, but for counsel's
errors, he would have received a more favorable result. (In re
Ross (1995) 10 Cal.4th 184, 201.)
Here, the court characterized the lifetime registration as
"unfortunate," noted that he was unlikely to commit another sexual
crime, and that he was not a sexual predator.
It is likely the court, had it been apprised of its discretion not to
aggregate the prior petition to avoid the lifetime registration, would have
given serious thought to such a disposition.
One of the primary purposes of sex offender registration is to allow the
monitoring of individuals likely to commit sex crimes. (People
v. Hofsheier, supra, 37 Cal.4th at p. 1197.) Thus, the court's comments indicate that it
believed this was probably not an appropriate case for registration, but it was
constrained by what it believed the law to be.
Citing People v. Galvez (2011) 195 Cal.App.4th 1253, 1264, the People
assert that "'absent a showing to the contrary, the trial court is
presumed to have known and followed the applicable law and to have properly
exercised its discretion.'"
However, the record affirmatively shows that all parties─the
court, defense counsel, and the prosecution─did not consider the fact the
court had the discretion not to aggregate the prior petition sex offense
petition.
Because the record discloses that
defense counsel's performance was ineffective and O.H. was prejudiced thereby,
we reverse and remand to allow the court to exercise its discretion whether to
aggregate O.H.'s prior section 288, subdivision (a) petition.
II. COURT'S
FAILURE TO DESIGNATE FINDING AS FELONY OR MISDEMEANOR
O.H. contends, and the People agree,
that the court erred in failing to designate the prior true finding for
violation of section 243, subdivision (c)(1), as a felony or a
misdemeanor.
Here, on the petition for violation
of section 243, subdivision (c)(1), O.H. was charged with a felony, he admitted
that violation as a felony, and the minute order stated that it was a
felony. However, while the court
understood the offense should be treated as a felony, and O.H. admitted a
felony violation, the court never made an express finding on the record that
this violation constituted a felony.
Accordingly, we remand this matter
to the trial court and order that the court designate the 2007 violation of
section 243, subdivision (c)(1) as a felony.
DISPOSITION
We
reverse and remand to allow the court to exercise its discretion
whether to aggregate O.H.'s prior petition under section 288, subdivision (a)
for the purpose of his DJJ commitment.
We also order
that the court designate the 2007 violation of section 243, subdivision (c)(1)
as a felony.
NARES,
Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
name="_ftn1" title="">[1]
Because O.H. admitted the
relevant violations, we take the factual background from a detention hearing
report and a social study.
name="_ftn2" title="">[2]
We take no position on the issue
of, on remand, how the court should exercise its discretion.
