In re Elizabeth G.

Filed 6/19/08 In re Elizabeth G. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A. Diaz, Judge. Affirmed.

Nancy K. Undem, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

Elizabeth G. appeals from the order of wardship (Welf. & Inst. Code,  602)^[1]entered following the juvenile courts finding she committed misdemeanor battery (Pen. Code, 242/243, subd. (a)). She was placed at home on probation. We affirm the juvenile courts order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

At a hearing held on February 20, 2007, Maria B., the mother of 16-year-old Elizabeth G., testified that, at approximately 7:30 p.m. on May 14, 2006, she and Elizabeth G. were at their home on West 8th Street in Los Angeles. Elizabeth G. and B. were arguing. Elizabeth G. had spoken to her sister in Fresno and wished to go visit her. B., who did not want Elizabeth G. to go, stood in the doorway, blocking Elizabeth G.s path. According to B., when Elizabeth G. tried to get past her, B. pushed Elizabeth G. back. Elizabeth G. then hit her mother twice on the arm with her hand. B. did not remember telling a police officer that, after Elizabeth G. hit her, she grabbed a small metal table and threw it at B.

2. Procedural history.

a. The petition, probation reports and subsequent rulings by the juvenile court.

On May 16, 2006, a section 602 petition was filed against Elizabeth G. alleging she committed misdemeanor battery on B. On May 17, 2006, the juvenile court granted Elizabeth G. Community Detention.

In a probation report filed July 26, 2006, the probation officer recommended that Elizabeth G. be allowed to continue under a grant of informal probation. The report indicated Elizabeth G. is not a typical criminal, that tension at the minors residence is high . . . considering that there are six individuals living in a single space, and that Elizabeth G.s academic performance [had been] satisfactory, [although] there remain[ed] room for improvement.

At proceedings held on July 25, 2006, the juvenile court ordered Elizabeth G. placed on probation for a period of six months pursuant to Section 654.^[2]

In a report filed October 17, 2006, the probation officer indicated that Elizabeth G.s progress in counseling was unknown as the counselor could not be reached. In general, however, Elizabeth G. was complying with her conditions of probation. The report continued, She is attending school counseling[] and community service. She is also involved in a positive after school program (soccer team). Her behavior at home is reported as good. Accordingly, the probation officer recommended that all previous court orders remain in full force and effect.

At proceedings held on October 17, 2006, the juvenile court directed that the previous order for probation under section 654 remain in full force and effect.

In a probation officers report dated January 12, 2007, it was reported that on her last report card, dated November 17, 2006, Elizabeth G. received five Ds and was failing her sixth class. In any event, the probation officer concluded Elizabeth G. had essentially complied with the conditions of her probation in that she was attending school and counseling, had completed her community service, her behavior at home had been reported as good, and she had stated she has learned from her experience and that she will listen to her mother from now on. In addition, after the probation officer discussed with Elizabeth G. the importance of education, Elizabeth G. indicated she would attend tutoring to help her improve her grades. The probation officer recommended that [Elizabeth G.s] case be dismissed.

At proceedings held on January 16, 2007, the juvenile court terminated Elizabeth G.s section 654 probationary status and continued the matter to February 20, 2007 for a hearing.

b. The February 20, 2007 hearing.

At the February 20, 2007 hearing, the juvenile court initially asked whether all of Elizabeth G.s grades were Cs or better. When Elizabeth G.s counsel provided the juvenile court with letters from Elizabeth G.s teachers, the court commented, Are all her grades Cs or better? They dont answer my question. What about the other ones? The following then occurred, [Counsel]: What other ones? [] The Court: The other classes that she had Fs and Ds in. [] [Counsel]: Shes going to summer school to make up any classes. [] The Court: All right. Im not going to do it. Im not going to reinstate 654. Is that what youre asking me to do? I gave her a chance, counsel. She has been on 654 for more than six months. I dont intend to reinstate 654. [] [Counsel]: The court notes shes also doing counseling. [] The Court: Shes been what? [] [Counsel]: The court has El Centro del Pueblo report. [] The Court: I dont have it. I dont need it. Were set for trial today. [] [Counsel]: The other request I have of the court is to consider -- [] The Court: Im not going to reinstate 654. [] [Counsel]: -- is to consider 725.[^[3]] [] The Court: Cant do that. Already been on informal probation. I now have the report card. [] [Counsel]: There would be no objection from the People, my understanding [sic], as well, on this. [] The Court: I dont think its the right thing to do, counsel. Shes been given an opportunity to cooperate. She didnt do it. I gave her more than one opportunity. [] [Counsel]: The family is present. They dont want to go to trial. [] The Court: She had three opportunities. After counsel again indicated that the People would have no objection, the trial court stated, Are we going to go over and over the same things? Counsel responded, I think the court is being unnecessarily harsh with this particular minor when she made every effort to comply. The juvenile court stated, You are not going to stop, are you? . . . You want to go to trial? What do you want to do? Counsel then consulted with Elizabeth G. and, shortly thereafter, the juvenile court called the matter for trial.

After B.testified regarding the May 14, 2006, incident, counsel for Elizabeth G. argued that Elizabeth G. had hit her mother in self-defense. The juvenile court disagreed, stating, A parent has an obligation to exercise reasonable control over her children. If anything, mom was acting in self-defense. Stood by the door. The following then occurred: The Court: . . . [] Are you amused [counsel]? [] [Counsel]: No, Im not amused. [] The Court: Why do you have that smile on your face? [] [Counsel]: Im sorry. Maybe the court cant see. I dont have a smile on my face. [] The Court: I saw a smile. [] Anyway, Im sustaining the petition. I find the minor was not acting in self-defense. The mom had an obligation to prevent her daughter from leaving the house. Exercise reasonable restraint. The daughter had no right to hit her. [] . . . I find the offense which was sustained is a misdemeanor. Find it true beyond a reasonable doubt. Carries maximum of six months detention. [] Find further Elizabeth is a person described under 602 . . . and declared a ward of the court.

The following colloquy then occurred: [Counsel]: Your Honor, if the court wishes to inquire, obviously, her mom does not think her daughter should be convicted or adjudicated in this fashion. [] The Court: What are you arguing at this time? I made a finding, counsel. [] [Counsel]: It seems like the court was not even listening to the witness. [] The Court: Of course, I was listening to the witness, counsel. [] To her credit, the minor has shown progress since first being placed on informal probation. Im going to keep her on probation. I dont think the fine has been paid. I dont believe shes completed her anger management and domestic violence counseling. [] Home on formal probation at this time. [] All right. Those conditions of probation which were ordered back on July 25, 06, remain in full force and effect. [] [Counsel]: I would ask the court to sentence her to 725. . . . [] The Court: Im not going to. [] [Counsel]: The reason Im asking for that -- [] The Court: She has been on informal probation and failed. [] [Counsel]: The reason I asked for, even the testimony the court heard today, this is not a very serious incident. [Elizabeth G.] is well behaved at home. [Elizabeth G.] and [her] mother get along well. [] The Court: She had a chance at informal probation. She had three chances at informal probation.

After putting the matter over to May for proof of compliance on her conditions of probation, the juvenile court stated, [Counsel], Im citing you for contempt. The following then occurred: [Counsel]: I want a hearing. [] The Court: Your hearing is right now. [] [Counsel]: I want representation. [] The Court: Youre not entitled to representation. [] [Counsel]: Yes, I am. [] The Court: You are cited. Grounds for citation, you accused the court of misconduct at the point where you said I was not listening to the evidence. That is misconduct on your part, accusing the court of misconduct. [] [Counsel]: I accused the court of not listening to the witness. [] The Court: Thats what you did. [] [Counsel]: I want a hearing right now. [] The Court: You have it right now. [] I dont like your tone, either. [] [Counsel]: Im not sure what it is the court does not like. Obviously, the court is making comments I would like to respond to. [] May I have a representative? [] The Court: You have somebody? [] [Counsel]: Yeah. [] The Court: Bring them in. You stay here. [] [Counsel]: Youre ordering me to stay here? [] The Court: Im ordering you to stay here. You are not going anywhere. [] [Counsel]: Okay. Could you get my supervisor. Tell her the judge is citing me for contempt.

Although the juvenile court initially insisted the contempt hearing would be held at 8:00 the following morning, after further discussion, the court agreed to give counsel more time to prepare. The juvenile court commented, All right. I think youre asking for too much. This is a pattern that began several months ago on the part of [counsel]. She has shown this court constant and substantial disrespect. This offense occurred, this act of misconduct occurred today during the trial of Elizabeth [G.] [Counsel] accused the court of . . . not listening to the evidence. I have a full page of notes here regarding her testimony.

When counsel asked for a copy of the transcript of the hearing, the juvenile court responded, You love to play these games, [counsel]. [] . . . It wont be ready by Friday. You know that, too. [] Is that funny? Is that funny, [counsel]? Counsel responded, No, Your Honor, its not funny. I would ask the court to stop asking me questions such as that. [] . . . I dont think that the court can accurately see my face or read it based on the accusations.

Following an off the record discussion, the juvenile court agreed a transcript of the proceedings could be ready by the time of the contempt hearing.

CONTENTION

Elizabeth G. contends the juvenile courts bias against her trial counsel deprived her of a fair hearing, her right to due process of law and the effective assistance of counsel.

DISCUSSION

Elizabeth G. asserts the juvenile court exhibited bias against her counsel when, prior to the adjudication, the court was blatantly rude to defense counsel, cutting her off in mid-sentence and being antagonistic and, after the adjudication, when it indicated it was going to hold counsel in contempt for counsels statement she did not believe the court had listened to the witness. Elizabeth G. further argues the juvenile court showed bias by indicating it had had an ongoing problem with defense counsel in that counsel had constantly been disrespectful of the court for the previous several months. Elizabeth G. claims this bias on the part of the juvenile court denied her a fair hearing.

Initially, because counsel failed to object to . . . any of the instances of alleged judicial intemperance, the issue is waived on appeal. (People v. Snow (2003) 30 Cal.4th 43, 78; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 994 [[T]he party must bring to the trial courts attention all of the facts later cited on appeal in support of the judicial bias claim].) However, in any event, we conclude the contention is without merit.

We note that the trial court has both the duty and the discretion to control the conduct of the trial [citation], [however] the court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. [Citation.] Nevertheless, [i]t is well within [a trial courts] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the courts instructions, or otherwise engages in improper or delaying behavior. [Citation.] Indeed, [o]ur role . . . is not to determine whether the trial judges conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judges behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.] (People v. Snow, supra, 30 Cal.4th at p. 78; see People v. Guerra (2006) 37 Cal.4th 1067, 1112, disapproved in part on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)

Our review of the record fails to indicate the juvenile court was blatantly rude or cut off defense counsel prior to or during the adjudication. Although the court was somewhat brusque and interrupted counsel on one occasion, counsel was allowed to make all of her arguments. It was not until after the juvenile court had made its ruling on the matter that it indicated it was going to hold counsel in contempt. Moreover, a reading of the transcript of the February 20, 2007 hearing indicates that, although the juvenile court was not satisfied with Elizabeth G.s progress, its irritation was not with Elizabeth G., but with counsel. (See People v. Guerra, supra, 37 Cal.4th at p. 1112 [The judge made clear, moreover, that his irritation was with counsel and not defendant].)

We conclude, although the juvenile courts behavior was somewhat less than perfect, it did not deny Elizabeth G. a fair trial or the effective assistance of counsel. (See People v. Snow, supra, 30 Cal.4th at pp.77-82.)

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Section 654 provides in relevant part: In any case in which a probation officer, after investigation of an application for a petition or any other investigation he or she is authorized to make concludes that a minor is within the jurisdiction of the juvenile court or will probably soon be within that jurisdiction, the probation officer may, in lieu of filing a petition to declare a minor a dependent child of the court or a minor or a ward of the court under Section 601 or requesting that a petition be filed by the prosecuting attorney to declare a minor a ward of the court under subdivision (e) of Section 601.3 or Section 602 and with consent of the minor and the minors parent or guardian, delineate specific programs of supervision for the minor, for not to exceed six months, and attempt thereby to adjust the situation which brings the minor within the jurisdiction of the court or creates the probability that the minor will soon be within that jurisdiction. Nothing in this section shall be construed to prevent the probation officer from filing a petition or requesting the prosecuting attorney to file a petition at any time within the six-month period or a 90-day period thereafter. If the probation officer determines that the minor has not involved himself or herself in the specific programs within 60 days, the probation officer shall immediately file a petition or request that a petition be filed by the prosecuting attorney. However, when in the judgment of the probation officer the interest of the minor and the community can be protected, the probation officer shall make a diligent effort to proceed under this section.

^[3] Section 725 provides in relevant part: After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows: [] (a) If the court has found that the minor is a person described by Section 601 or [Section] 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months.