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Filed 6/19/06 In re Curtis C. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re CURTIS C., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. CURTIS C., Defendant and Appellant.

A108977, A111709 (Contra Costa County Super. Ct. No. J97-00278)

In re CURTIS C., on Habeas Corpus.

Curtis C. appeals from a dispositional order committing him to the California

Youth Authority (CYA).1 Pursuant to a plea agreement, appellant pled no contest to one

count of vehicle theft (Veh. Code, § 10851, subd. (a)) and one count of misdemeanor

vehicular evasion from a peace officer (Veh. Code, § 2800.2). Appellant admitted

allegations supporting a great bodily injury enhancement associated with the vehicle theft

count (Pen. Code, § 12022.7, subd. (a)).

Appellant contends the juvenile court erred by imposing consecutive terms for the

two substantive offenses instead of staying the misdemeanor vehicular evasion offense,

1 The California Youth Authority was renamed, effective July 1, 2005, the division of Juvenile Justice of the Department of Corrections and Rehabilitation. (Gov. Code §§ 12838, subd. (a), 12838.3.) However, we will retain the designation CYA for simplicity.

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by failing to exercise its discretion in setting the maximum term of confinement, and by

making erroneous entries on the order committing him to the CYA. He also asserts that

the juvenile court abused its discretion in committing him to the CYA and that his trial

counsel was ineffective for failing to investigate a juvenile hall incident that the court

relied upon in committing appellant to the CYA.

We agree that the juvenile court failed to exercise its discretion in setting

appellant’s maximum term of confinement pursuant to Welfare and Institutions Code

section 731, subdivision (b), and that the commitment form contains errors that must be

corrected upon remand. Accordingly, we reverse the dispositional order in part and

direct the juvenile court upon remand to correct certain errors on the CYA commitment

form and to exercise its discretion in setting appellant’s maximum term of confinement.

In all other respects, the dispositional order is affirmed.

PROCEDURAL BACKGROUND

A sixth supplemental juvenile wardship petition filed on August 5, 2004,

described appellant Curtis C., then 17 years old, as falling within the provisions of

Welfare and Institutions Code section 602. The petition alleged three counts. Count one

charged appellant with auto theft (Veh. Code, § 10851, subd. (a)) and alleged an

enhancement for personal infliction of great bodily injury on a non-accomplice (Pen.

Code, § 12022.7, subd. (a)). Count two charged appellant with evading a peace officer

causing serious bodily injury (Veh. Code, § 2800.3), and count three charged appellant

with driving without a license (Veh. Code, § 12500, subd. (a)).

The petition also alleged two prior felonies and three prior misdemeanors for

purposes of aggregating appellant’s commitment time, including two felony violations of

Penal Code sections 459 and 460, subdivision (a) (burglary), misdemeanor violations of

Penal Code sections 242 and 243, subdivision (a) (battery), a misdemeanor violation of

Penal Code section 496, subdivision (a) (receiving stolen property), and a misdemeanor

violation of Penal Code section 602.5 (trespassing).

At the initial hearing on August 26, 2004, appellant was released on home

supervision. When he failed to report, the court terminated home supervision and

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ordered appellant’s arrest. Appellant was detained pending arraignment. Appellant

denied the charges in the wardship petition at a hearing on September 8, 2004.

The jurisdictional hearing commenced on November 3, 2004. After the auto theft

victim testified, defense counsel informed the court that the parties had agreed to a

resolution of the matter. No further testimony was taken. Appellant entered a plea of no

contest to the vehicle theft count and admitted the great bodily injury enhancement. On

oral motion of the District Attorney, count two alleging a violation of Vehicle Code

section 2800.3 (vehicular evasion resulting in serious bodily injury) was amended and

reduced to a misdemeanor violation of Vehicle Code section 2800.2 (evading a peace

officer), to which appellant pled no contest. Count three (driving without a license) was

dismissed. The court informed appellant that the maximum period for which he could be

confined under the terms of the agreement was six years and four months.

At the disposition hearing on December 21, 2004, the court committed appellant to

the CYA and imposed a maximum period of confinement of six years four months, with

credit for time already served. Appellant filed a timely notice of appeal from the

dispositional order.

FACTS

Because the jurisdictional hearing was interrupted when the parties agreed to

resolve the matter, the facts are taken from the disposition report. The matter arises out

of a car theft, a police chase, and a resulting auto accident. At 2:00 a.m. on June 17,

2004, sheriff’s deputies saw appellant driving a Honda at about 45 miles per hour in a

residential area in Richmond. Because that was considered a high rate of speed for that

area, the deputies began following appellant and activated their lights and siren in order

to effect a traffic stop. Instead of stopping, appellant accelerated to approximately 50 to

55 miles per hour before losing control of the vehicle and crashing into a tree. Appellant

and his passenger, Demario N., left the vehicle and lay down on the ground. Demario,

appellant’s cousin, was badly injured. Both were taken to a hospital where appellant was

cited and released to his mother. Demario was treated for serious injuries, including

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internal bleeding. Although the hospital bill for treating Demario totaled over $15,000,

his mother did not seek restitution from appellant because he is a relative.

It was determined that the car belonged to Lucas Tovar. Mr. Tovar’s Honda had

been taken from in front of his home while he was sleeping. Mr. Tovar testified at the

jurisdictional hearing that he did not give anyone permission to take his car.

Appellant told authorities he did not steal the car and did not know it was stolen.

He claimed to have “rented the car from a Mexican dude for $25.”

DISCUSSION

1. The juvenile court did not err in imposing consecutive sentences.

Relying on Penal Code section 654, appellant contends his sentence for

misdemeanor vehicular evasion of a police officer must be stayed because the vehicle

theft and the flight from police constituted a single course of conduct. We disagree.

At the disposition hearing, appellant’s counsel objected to the length of

confinement and argued that the misdemeanor evading charge should run concurrent to

the principal offense, citing Penal Code section 654. In response, the juvenile court

stated: “[The] Court doesn’t agree that 654 applies in juvenile cases. But even if it does,

I don’t believe Count 2 [vehicular evasion] is duplicative of Count 1 [vehicle theft].”2

Penal Code section 654, subdivision (a), provides in pertinent part that “[a]n act or

omission that is punishable in different ways by different provisions of law shall be

punished under the provision that provides for the longest potential term of

imprisonment, but in no case shall the act or omission be punished under more than one

provision.” “ ‘The purpose of [Penal Code] section 654 is to prevent multiple

punishments for a single act or omission, even though that act or omission violates more

than one statute and thus constitutes more than one crime. Although the distinct crimes

may be charged in separate counts and may result in multiple verdicts of guilt, the trial

2 The juvenile court was incorrect in its assumption that Penal Code section 654 does not apply to juvenile wardship proceedings. (In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3.) This erroneous assumption was of no consequence, however, because the court proceeded to consider whether section 654 applied to the two offenses of which petitioner was convicted.

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court may impose sentence for only one offense . . . .’ [Citation.]” (People v. Solis

(2001) 90 Cal.App.4th 1002, 1021.) “However, multiple punishment is proper if the

defendant entertained multiple criminal objectives which were independent of each other.

[Citation.]” (Ibid.)

“Whether [Penal Code] section 654 applies in a given case is a question of fact for

the trial court, which is vested with broad latitude in making its determination.

[Citations.] Its findings will not be reversed on appeal if there is any substantial evidence

to support them. [Citations.] We review the trial court’s determination in the light most

favorable to the respondent and presume the existence of every fact the trial court could

reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103

Cal.App.4th 1139, 1143.)

In support of his argument that the vehicle theft and the flight from a pursuing

officer comprised a single course of conduct, appellant refers this court to a “Mapquest”

printout showing the distance between the location of his arrest and the location where

the car was stolen.3 The printout indicates that the travel time between the two points,

which are less than one-half mile apart, is one minute. According to appellant, the

evidence, including the printout, reveals that the offenses were incidental to one another

because they must have occurred at about the same time and on the same day with no

substantial passage of time between the offenses. We are not persuaded.

There is no indication the juvenile court had before it the documentation appellant

has brought to our attention indicating that appellant was arrested in close proximity to

the site of the vehicle theft. In any event, the fact police arrested appellant less than one

mile from the location of the vehicle theft does not prove he stole the car immediately

before the police pursuit began. At most, the proximity of the arrest location and the site

3 Appellant requests that we take judicial notice of a number of items, including the first page of the police report addressing appellant’s arrest as well as a map and driving directions generated by Mapquest. Appellant seeks judicial notice of these documents for purposes of demonstrating that the location of the vehicle theft is near the location of appellant’s arrest. The Attorney General does not oppose the request. Accordingly, we grant the request as to the police report and the Mapquest printout. We address the remaining items for which judicial notice is sought in section 4 of the discussion below.

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of the theft supports an inference that appellant fled from the police shortly after the theft.

But it is also plausible that appellant’s flight from police did not occur immediately after

the theft; appellant may have simply remained in or returned to the area where he stole

the car. The owner of the vehicle testified he first learned his car had been stolen when

he was awakened by police. It was not established when the owner last saw his car,

although he testified he left it in front of his house the day before. Thus, the evidence

does not confirm that appellant stole the car only a minute before the police chase began

or that he was in the process of stealing the car during the police pursuit.

Even if the two crimes occurred close together in time, that fact alone would not

render the offenses a single act for purposes of Penal Code section 654. If a “defendant

had multiple or simultaneous objectives, independent of and not merely incidental to each

other, the defendant may be punished for each violation committed in pursuit of each

objective even though the violations share common acts or were parts of an otherwise

indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th

263, 267-268.) In People v. Butler (1986) 184 Cal.App.3d 469, the court considered a

somewhat analogous situation in which the defendant was convicted of vehicular

manslaughter and leaving the scene of an accident. The court ruled the two crimes were

independent and separate criminal acts, reasoning there was a divisible course of conduct

based on the intent and objective of the defendant. (Id. at p. 473.) “In the act of

vehicular manslaughter defendant was acting with general intent; he negligently drove a

motor vehicle while under the influence of alcohol and caused a fatal accident.” (Id. at

p. 474.) The intent and objective of leaving the scene, by contrast, “was to flee in an

attempt to conceal his identity and his state of inebriation.” (Ibid.)

Here, appellant stole the car before the high speed pursuit began. Appellant first

had an intent and objective to steal a vehicle. When the police began their pursuit after

seeing appellant driving at a high rate of speed, appellant’s intent and objective was to

evade the police. There is no evidence to suggest the theft was done with the objective of

evading the police, a purpose that arose only after the police pursuit began. Thus, the two

illegal acts were motivated by different objectives and were divisible actions.

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Punishment for both offenses is particularly appropriate in light of the purpose of Penal

Code section 654, which is to insure that a defendant’s punishment is commensurate with

his criminal liability. (See Neal v. State of California (1960) 55 Cal.2d 11, 20.)

Appellant’s decision to lead police on a high speed chase through residential streets

rendered him more culpable than a mere car thief. Accordingly, we conclude that

substantial evidence supports the juvenile court’s decision to impose consecutive terms

for the two substantive offenses.

2. The juvenile court failed to exercise its discretion in setting appellant’s sentence.

Appellant contends the juvenile court failed to exercise its discretion under

Welfare and Institutions Code section 731, subdivision (b), in setting his term of

confinement. The Attorney General concedes that the juvenile court failed to exercise its

discretion and agrees that the matter must be remanded.

Welfare and Institutions Code section 731, subdivision (b), provides in relevant

part that “[a] minor committed to the Department of the Youth Authority . . . may not be

held in physical confinement for a period of time in excess of the maximum term of

physical confinement set by the court based upon the facts and circumstances of the

matter or matters which brought or continued the minor under the jurisdiction of the

juvenile court . . . .” The Legislature added the quoted language to the statute by an

amendment operative on January 1, 2004, nearly one year before the December 21, 2004

disposition hearing in this case. (See 2 Stats. 2003 (2003-2004 Reg. Sess.), ch. 4, § 1,

pp. 158-159, eff. Apr. 8, 2003, operative Jan. 1, 2004.) As interpreted by the decisions in

In re Sean W. (2005) 127 Cal.App.4th 1177, 1185, and In re Carlos E. (2005) 127

Cal.App.4th 1529, 1542, both of which were issued after the disposition hearing in this

case, the amendments to Welfare and Institutions Code section 731 afford the juvenile

court discretion to fix the maximum term of confinement at something less than the

maximum in an adult case. “[Welfare and Institutions Code] section 731 [as amended]

unmistakably requires the trial court to set a maximum term of physical confinement in

CYA based upon the facts and circumstances of the matter. The court must set the term

in all cases where it is committing a minor to CYA and it must exercise its discretion in

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making the determination of what that term will be.” (In re Carlos E., supra, 127

Cal.App.4th at p. 1543, italics added.)

At the disposition hearing on December 21, 2004, defense counsel argued for a

term less than the maximum possible. The juvenile court responded that it “decline[d] to

find a defined term. It will be as indicated six years, four months.” The probation officer

subsequently informed the juvenile court that it had several options to choose from in

setting appellant’s maximum term of confinement, including declining to aggregate the

offenses, reducing the maximum term pursuant to Welfare and Institutions Code

section 731, subdivision (b), or finding that the parties had agreed to a maximum term of

six years and four months. At a review hearing on January 18, 2005, the juvenile court

chose the third option, reasoning that “based on the original plea . . . it was everybody’s

understanding that the maximum custodial time for consideration is six years, four

months, period.”

The record supports the conclusion the juvenile court was unaware it had the

discretion under Welfare and Institutions Code section 731, subdivision (b), to set the

maximum term of confinement at less than the maximum theoretically possible. Instead,

the court erroneously adopted the position that appellant had agreed to a maximum term

of six years and four months. Appellant did not agree to such a term but merely

acknowledged he faced a possible maximum term of six years and four months.

“ ‘[A] ruling otherwise within the trial court’s power will nonetheless be set aside

where it appears from the record that in issuing the ruling the court failed to exercise the

discretion vested in it by law. [Citations.]’ [Citation.]” (People v. Downey (2000) 82

Cal.App.4th 899, 912.) Because the juvenile court failed to exercise the discretion

afforded it under Welfare and Institutions Code section 731, subdivision (b), the matter

must be remanded to the juvenile court to exercise its discretion and set a maximum term

of confinement based on the specific facts and circumstances that brought appellant

before the court.

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3. Errors in the order of commitment to the CYA must be corrected upon remand.

Appellant identifies a number of errors on his order of commitment to the CYA,

pointing out that his Vehicle Code violation is misidentified, that he was erroneously

found not to have exceptional educational needs, and that no finding was made

concerning whether he had been prescribed psychotropic medication. The Attorney

General agrees that the commitment form must be corrected to remedy these errors.

As part of a negotiated plea, the prosecutor agreed to reduce a felony charge of

evading a peace officer causing serious bodily injury (Veh. Code, § 2800.3) to a

misdemeanor count of evading a peace officer (Veh. Code, § 2800.2). The commitment

form erroneously states that appellant admitted a violation of Vehicle Code section

2800.3. The commitment form also states that appellant “has/has not been prescribed

psychotropic medication.” This is plainly error. Either appellant has or has not been

prescribed psychotropic medication. Finally, the form indicates that “[e]ducational

records do not indicate that a determination has been made regarding any exceptional

needs the youth may have.” This statement, too, is erroneous. The Attorney General

concedes that appellant has an individualized education plan (IEP) and therefore has been

found to have exceptional needs.

The court possesses the inherent power to correct clerical errors in its records. (In

re Candelario (1970) 3 Cal.3d 702, 705.) The commitment form must be corrected upon

remand to reflect that appellant admitted a violation of section 2800.2 and not section

2800.3 of the Vehicle Code.

Appellant contends the mistakes concerning psychotropic medication and his

exceptional educational needs are not clerical errors but instead constitute “judicial errors

in rendering judgment.” Although we agree that the errors must be corrected upon

remand, we disagree with appellant to the extent he suggests the juvenile court failed to

make findings supporting his commitment to the CYA. As reflected in rule 1494.5 of the

California Rules of Court, the purpose served by including information on the

commitment form concerning a youth’s exceptional educational needs and use of

psychotropic medication is to inform the CYA of the youth’s special medical and

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educational needs. Accordingly, while the incorrect statements should be corrected on

remand, we do not suggest the juvenile court must reconsider its disposition as a

consequence of correcting the statements intended to convey to the CYA pertinent

information about appellant’s special needs.

4. The juvenile court acted within its discretion in committing appellant to the CYA.

Appellant contends the court abused its discretion in committing him to the CYA

because there was no evidence of probable benefit. He further asserts he was denied his

Fourteenth Amendment due process right to education, mental health, and rehabilitative

treatment when he was committed to the CYA.

Appellant claims he is an individual with mental health problems and exceptional

educational needs that will not be treated adequately in the CYA. In support of these

contentions, appellant not only refers to evidence of his educational and mental health

needs, but he also asks the court to take judicial notice of a host of documents outside the

juvenile court record that purportedly demonstrate the CYA is ill-equipped to handle

wards with special educational and mental health needs. We first address the propriety of

considering such materials on appeal when assessing whether the trial court abused its

discretion in committing appellant to the CYA.

Appellant seeks judicial notice of a class action complaint filed in January 2003

against the CYA, a consent decree filed in the same lawsuit on November 19, 2004, a

December 2003 review of CYA education programs, and a December 2003 report on

mental health treatment services in the CYA. Appellant also requests judicial notice of a

January 2005 audit of the CYA, an August 2002 report prepared for a state legislative

committee concerning care in the CYA, and a July 20, 2005, newspaper article that

appeared in the San Francisco Chronicle addressing education at the CYA. Appellant

contends that the findings and contents of the proffered documents are “not reasonably

subject to dispute” and are therefore appropriate for judicial notice. Appellant asserts that

the documents are relevant because they purportedly reveal the “documented failures and

inadequacies” of the CYA and therefore bear on whether the juvenile court abused its

discretion in committing appellant to the CYA.

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Because appellant did not bring the materials to the attention of the juvenile court

at or before the disposition hearing, we agree with the Attorney General that the proffered

documents are not properly the subject of judicial notice. “[A]s a general rule the

[reviewing] court should not take [judicial] notice if, upon examination of the entire

record, it appears that the matter has not been presented to and considered by the trial

court in the first instance.” (People v. Preslie (1977) 70 Cal.App.3d 486, 493.) “It has

long been the general rule and understanding that ‘an appeal reviews the correctness of a

judgment as of the time of its rendition, upon a record of matters which were before the

trial court for its consideration.’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

“This rule reflects an ‘essential distinction between the trial and appellate court . . . that it

is the province of the trial court to decide questions of fact and of the appellate court to

decide questions of law . . . .’ [Citation.]” (Ibid.) New evidence may not be added to the

record before a reviewing court in the guise of a request for judicial notice. (See, e.g.,

People v. Peevy (1998) 17 Cal.4th 1184, 1207 [appellate court did not err in denying

judicial notice request allegedly showing widespread police misconduct].)

Here, the juvenile court cannot be faulted for a failure to consider documents not

presented to it or otherwise discussed. Several documents for which judicial notice are

sought did not even come into existence until after the disposition hearing. There is a

further reason why judicial notice is improper. Appellant essentially asks this court to

accept the truth of the reports and pleadings for which judicial notice is sought. Although

the existence of statements in pleadings and other documents may be subject to judicial

notice under certain circumstances, the truth of such statements is generally not

appropriate for judicial notice. (Cf. Big Valley Band of Pomo Indians v. Superior Court

(2005) 133 Cal.App.4th 1185, 1192.) Accordingly, we deny the request for judicial

notice to the extent appellant attempts to introduce new evidence concerning the alleged

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inadequacies of the CYA.4 We proceed to consider whether the trial court abused its

discretion without regard to the documents for which judicial notice was sought.

“The appellate court reviews a commitment decision for abuse of discretion,

indulging all reasonable inferences to support the juvenile court’s decision. [Citations.]”

(In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) “An appellate court will not

lightly substitute its decision for that rendered by the juvenile court.” (In re Michael D.

(1987) 188 Cal.App.3d 1392, 1395.) We will not disturb the juvenile court’s findings

when they are supported by substantial evidence. (Ibid.) The record must demonstrate

both that a CYA commitment will result in a probable benefit to the minor and that a less

restrictive alternative is either inappropriate or ineffective. (In re Angela M., supra, 111

Cal.App.4th at p. 1396.) In arriving at a disposition, the court must consider and may

rely on the disposition report prepared by the probation department. (Welf. & Inst. Code,

§ 706; Cal. Rules of Court, rule 1492(b).) “The gravity of the offense is by statute a

proper consideration at disposition. [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th

1317, 1330; Welf. & Inst. Code, § 725.5.) A court does not necessarily abuse its

discretion by ordering commitment to the CYA before other less restrictive options have

been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.)

Two fundamental objectives of the Juvenile Court Law are (1) protection and

safety of the public, and (2) rehabilitation of the minor through care, treatment, and

guidance that is consistent with the minor’s best interests, holds him accountable for his

behavior, and is appropriate under the circumstances. (Welf. & Inst. Code, § 202,

subds. (a) & (b).) “This guidance may include punishment that is consistent with the

rehabilitative objectives” of the Juvenile Court Law. (Welf. & Inst. Code, § 202,

subd. (b).) Indeed, the rehabilitative value in a CYA commitment lies not only in the

programs offered but in the punishment inherent in such a commitment. (See In re

Michael D., supra, 188 Cal.App.3d at p. 1396.)

4 Judicial notice is therefore denied as to Exhibits C, D, E, F, G, H, and I of appellant’s request for judicial notice.

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In the initial probation report prepared for the disposition hearing scheduled for

November 17, 2004, the probation officer described appellant’s “lengthy delinquent

history” and previous placements. Appellant was first placed on probation for two

burglaries in 1997. In 1999, he was placed in electronic monitoring and diversion

programs for a battery offense. He violated his probation in 1999 after he threatened

another student, and he was placed in the Monarch group home. He ran away after four

days and was arrested two months later for receiving stolen property and trespassing. He

returned to the Monarch group home in May 2000 but was removed from the program

later that year for vandalism and spitting blood in a staff member’s face. In September

2001, he was placed at La Cheim group home but was terminated after getting into a fight

while on home leave. In December 2002, appellant was placed in Walden House but was

removed roughly one month later after he threatened staff and failed to follow rules. He

was allowed to live with his father in March 2003 but returned to his mother’s home

when he failed to get along with his father. In February 2004, appellant was placed in a

diversion program for the second time but failed referrals to the Sojourne program and

drug court.

The probation department screened appellant for placement at a county ranch

facility and for a CYA commitment. The ranch staff found appellant acceptable for a

nine-month program. In the report, the probation officer observed: “Short of trying the

minor at the ranch, CYA appears to be the only remaining option for attemting [sic] to

rehabilatate [sic] the minor while he is still relatively young, and while simultaneously

protecting the community.” In light of appellant’s extensive history of failed placements,

the probation officer concluded: “As the minor has not been tried at the ranch, if the

court is so inclined to exhaust this final local resource, a suspended CYA sentence would

provide ranch staff with additional leverage to encourage the minor’s cooperation.”

The court did not conduct appellant’s disposition hearing as scheduled on

November 17, 2004, instead continuing the matter to December 21, 2004. In a December

21, 2004 memorandum, appellant’s probation officer provided the court with an update

on appellant’s behavior in juvenile hall since the preparation of the initial probation

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report. The probation officer described at least eight incidents in which appellant had

misbehaved or been disruptive in the period from mid-November through early

December 2004. The report described the “most concerning” incident as follows: “It

was reported that on 12/05/04 during lunch the minor interrupted staff while giving

instructions to another resident. When the minor was instructed by staff to refrain from

talking during meal time, he announce[d] to the group of residents that when he saw the

staff ‘on the outs, I’m going to pow pow pow pow.’ While making this statement, the

minor had his right hand in the air and replicat[ed] the image of a handgun. The minor

initially refused to go to his room as instructed by staff, and only did so after staff

threatened to activate the alarm.”

At the disposition hearing on December 21, 2004, the juvenile court stated it was

“not in agreement with the recommendation” of the probation department, and it asked

for argument on whether appellant should be placed in a ranch program or committed to

the CYA. The court specifically asked the probation officer whether a commitment to

the ranch facility would be appropriate in light of the “pow, pow, pow” incident that had

occurred after the probation officer made her initial recommendation. The officer

responded that the recommendation had been prepared before the latest set of incidents at

juvenile hall, and that she had personally explained to appellant that his chances of going

to the ranch facility were slim and depended greatly on his continued behavior

improvement at juvenile hall. The officer then noted that the ranch recommendation

“does not appear appropriate at this time.” In response to the court’s request for a

commitment recommendation, the officer stated “at this point, your Honor, it would have

to be the Youth Authority.”

The court observed that it did not believe appellant’s continued denial of having

stolen the car. Then, referring to the lengthy discussion in the probation report of

appellant’s extensive criminal and placement history, the court noted that appellant’s

history of failed placements was “certainly sufficient by itself” to support commitment to

the CYA. The court observed that the ranch facility “is not appropriate under the

circumstances because it’s an unlocked facility.” The court concluded by pointing out

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that appellant’s most recent episode of misconduct was an important factor, stating: “I

think [appellant] sealed his faith [sic] by what he did at Juvenile Hall on December 5th.

To at least intimate that he’s willing when he goes on to the outside to shoot some staff

members is sufficient in the Court’s mind to indicate that public safety would not be

served by placement at the Boys’ Ranch or any other high level placement. Public safety

indicates that the only place that we can put him, because he’s run out of places to be put

in this county, is the California Youth Authority.”

A finding that a CYA commitment will be of probable benefit to a minor may be

based on a pattern of increasingly delinquent behavior, the recommendation of the

probation department, and the need for a secure facility. (In re Jose R. (1983) 148

Cal.App.3d 55, 61.) The record here discloses that the court considered the probable

benefit of a CYA commitment and the ineffectiveness of alternative placements.

Appellant displayed a pattern of increasingly more problematic behavior, and the

probation department revised its recommendation to support a CYA commitment. The

record also amply supports a finding that alternative placements had been ineffective.

Under these circumstances, the court did not abuse its discretion in committing appellant

to the CYA.5

5. The record does not support the claim that appellant’s trial counsel failed to investigate the juvenile hall incident to which the court referred when it committed appellant to the CYA.

Appellant contends that his defense counsel failed to investigate the incident that

occurred on December 5, 2004, in which appellant threatened to shoot juvenile hall staff

upon his release. Appellant argues the failure to investigate amounted to ineffective

assistance of counsel.

5 Appellant contends he was committed to the CYA without a finding that he had exceptional educational needs, despite evidence to the contrary. Indeed, although the juvenile court made a finding that appellant did not have exceptional educational needs, the court was subsequently informed by the probation department that he did have such needs. However, even though the probation department ultimately acknowledged appellant’s special educational needs, it still recommended that appellant be committed to the CYA and proposed a court finding that appellant would benefit from the educational resources provided by the CYA.

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In order to demonstrate ineffective assistance of counsel, a defendant must prove

by a preponderance of the evidence both (1) that counsel’s performance was deficient in

that it fell below an objective standard of reasonableness, and (2) that there is a

reasonable likelihood that, but for counsel’s unprofessional errors, the result would have

been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) A defendant

carries a heavy burden to show that defense counsel’s performance fell outside the range

of professional competence. (Id. at pp. 687-691; People v. Lucas (1995) 12 Cal.4th 415,

437.)

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel’s judgments.”

(Strickland v. Washington, supra, 466 U.S. at p 691.)

Here, the record is devoid of evidence suggesting a failure to investigate. (See

People v. Millwee (1998) 18 Cal.4th 96, 147-149.) To the contrary, the record indicates

that counsel was aware of that incident and spoke to a juvenile hall officer about

appellant’s transfer from one unit to another after the December 5 incident. Counsel used

that information to argue to the juvenile court that appellant’s behavior at juvenile hall

had improved since the December 5 incident. We will not assume counsel failed to

investigate in the absence of any evidence supporting that assumption.

6. Appellant’s habeas corpus petition does not state a prima facie case for relief.

While this appeal was pending, appellant filed a petition for a writ of habeas

corpus raising two claims challenging his commitment to the CYA. First, appellant

claims he is not receiving appropriate educational or mental health services at the CYA in

violation of his Fourteenth Amendment due process right to rehabilitative treatment. He

also asserts that the failure to provide such services constitutes cruel and unusual

punishment under the federal and state constitutions. Second, appellant contends that the

ineffective assistance of his trial counsel in failing to investigate the December 5, 2004,

juvenile hall incident denied him a fair disposition hearing. We consolidated the habeas

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corpus petition with the appeal and requested an informal response from the Attorney

General. We address appellant’s contentions in turn, beginning with the ineffective

assistance claim.

a. Ineffective assistance of counsel.

Appellant contends his defense counsel was ineffective for failing to investigate

the December 5, 2004, incident that the juvenile court cited in support of its decision to

commit appellant to the CYA. Appellant supplements the record on direct appeal by

purporting to include evidence outside the record indicating that defense counsel failed to

investigate the incident and that such an investigation would have revealed the event was

not as serious as described in the probation officer’s memo to the juvenile court.

“Because a petition for a writ of habeas corpus seeks to collaterally attack a

presumptively final criminal judgment, the petitioner bears a heavy burden initially to

plead sufficient grounds for relief, and the later to prove them. ‘For purposes of

collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction

and sentence; defendant thus must undertake the burden of overturning them. Society’s

interest in the finality of criminal proceedings so demands, and due process is not thereby

offended.’ [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 474.) “The petition

should both (i) state fully and with particularity the facts on which relief is sought

[citations], as well as (ii) include copies of reasonably available documentary evidence

supporting the claim, including pertinent portions of trial transcripts and affidavits or

declarations. [Citation.]” (Ibid.) If a petitioner’s factual allegations when taken as true

fail to establish a prima facie case for relief, we may summarily deny the petition. (Id. at

p. 475.)

The only evidentiary support offered for appellant’s ineffective assistance claim is

a declaration by appellate counsel. In that declaration, counsel states she spoke with a

juvenile hall supervisor who agreed to review the probation officer’s report of the

December 5, 2004, incident. That supervisor was not present during the incident but

opined that it was “not considered serious.” He told appellate counsel that the new staff

member present during the incident did not have good control of the situation, and he

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believed the incident was a case of lack of staff control rather than a threatening situation

requiring serious disciplinary measures. Appellate counsel’s declaration also reflects she

spoke with appellant’s trial counsel, who purportedly told her that she did not investigate

the December 5 incident. Trial counsel told appellate counsel she would have

investigated the incident if she had known it was not the serious disciplinary incident

described by the probation department, and she opined that this evidence “might have

helped petitioner.” Trial counsel said she did not request a continuance to investigate

“because she believed that petitioner would get into more trouble at juvenile hall thereby

harming his chances of a commitment to the Boys Ranch.”

Appellate counsel’s declaration does not establish a prima facie case of ineffective

assistance of trial counsel. First, the statements regarding what trial counsel and a

juvenile hall supervisor said to appellate counsel are inadmissible hearsay. (People v.

Madaris (1981) 122 Cal.App.3d 234, 242, disapproved on other grounds in People v.

Barrick (1982) 33 Cal. 115, 127, superseded by statute as stated in People v. Collins

(1986) 42 Cal.3d 378, 393.) “It has long been the rule of California that factual

allegations on which a petition for habeas corpus are based must be ‘in such form that

perjury may be assigned upon the allegations if they are false.’ [Citation.] Here the

critical allegations were patently not in such form.” (People v. Madaris, supra, 122

Cal.App.3d at p. 242.)

Even if trial counsel’s out-of-court statements fell within an exception to the

hearsay rule, we would still conclude that appellant’s ineffective assistance claim fails.

Nothing in the declaration contradicts or even contests the basic facts of the incident—

that appellant threatened to shoot staff and gestured to that effect by forming his hand

into the shape of a gun. Rather, the declaration contests only the seriousness of

appellant’s behavior through the opinion of an individual who was not even a percipient

witness to the event. Moreover, trial counsel’s hearsay statements to appellate counsel

reveal that she had a valid, tactical purpose for not requesting a continuance to investigate

the incident. She was concerned that appellant would commit further acts of misbehavior

in juvenile hall if the disposition hearing were continued to a later date. It was a

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reasonable decision to focus on the improvement in appellant’s behavior since the

disputed incident rather than challenge the seriousness of one incident of misconduct out

of many.

Furthermore, appellant has failed to demonstrate any prejudice suffered as a

consequence of trial counsel’s failure to investigate. The probation officer’s report to the

court prior to the disposition hearing reported at least seven other incidents of

misbehavior. Besides relying on the record of appellant’s numerous acts of misconduct

in custody, the juvenile court relied on appellant’s denial of having stolen the car, his

lengthy criminal and placement history, and the fact that a ranch placement would be

inappropriate because it was an unlocked facility. Even if trial counsel had argued to the

court that a juvenile hall supervisor characterized the incident as less serious than

reported in the probation officer’s report, we fail to see how the supervisor’s

characterization would have changed the outcome of the disposition hearing. The

juvenile court could judge for itself the gravity of the undisputed fact that appellant

threatened juvenile hall staff. There is not a reasonable probability that, but for any

alleged unprofessional errors, the result of the proceeding would have been any different.

b. Alleged violations of Eighth and Fourteenth Amendments.

Appellant contends that his commitment to the CYA constitutes a violation of his

Fourteenth Amendment right as an incarcerated juvenile to receive rehabilitative

treatment. He also asserts that his commitment amounts to cruel and unusual punishment

in violation of the Eighth Amendment of the United States Constitution and article I,

section 17 of the California Constitution.

In support of his claims, appellant proffers the declaration of his appellate counsel,

who relates conversations with appellant, appellant’s parole agent, the principal of the

CYA school appellant attends, and the director of security operations at the CYA facility

where petitioner is housed. Appellant also supplies this court with the declaration of an

educational therapist who reviewed appellant’s educational records. The declarations

allegedly establish that the CYA facility in which appellant is housed is not providing

appellant with appropriate educational resources or mental health services. Appellant

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also cites the reports and pleadings purporting to demonstrate the CYA’s failings that

were the subject of judicial notice in the direct appeal.

Appellant relies on the principle that incarcerated juveniles have a constitutional

right to rehabilitative treatment and individualized care. (See Nelson v. Heyne (7th Cir.

1974) 491 F.2d 352, 359-360.) A “minimally adequate level” of programming is

constitutionally required. (Alexander S. v. Boyd (D.S.C. 1995) 876 F.Supp. 773, 790.)

Appellant also contends that his treatment constitutes cruel and unusual punishment,

which exists if the punishment “shocks the conscience and offends fundamental notions

of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)

The evidence offered by appellant does not establish violations of constitutional

magnitude. The various statements related by appellate counsel in her declaration are

inadmissible hearsay and as such do not supply factual support for appellant’s habeas

corpus petition. (People v. Madaris, supra, 122 Cal.App.3d at p. 242.) As for the

educational therapist’s declaration, she professes no expertise in or personal knowledge

of conditions at the CYA or any other correctional institution, nor did she interview

appellant himself. Her opinion is based on a review of documents that appellate counsel

supplied, some of which are more than five years old and have nothing to do with the

CYA’s programs or services. Her opinion is insufficient to provide factual support for

appellant’s claims. The one CYA document included with appellant’s petition—an

“Individual Change Plan” prepared in April 2005—indicates he is receiving

individualized care and treatment. That document describes individual “treatment issues”

and identifies resources available to address those issues.

Appellant’s allegations also fail to establish he is suffering cruel and unusual

punishment at the CYA. Hearsay statements that CYA staff “antagonize” juveniles and

that appellant is sometimes fearful of going to school out of a concern he will get into a

fight simply do not rise to the level of allegations that shock the conscience or offend

traditional notions of human dignity. Accordingly, we conclude that appellant has failed

to establish a prima facie case that his constitutional rights have been violated as a

consequence of his commitment to the CYA.

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DISPOSITION

The dispositional order of the juvenile court is reversed in part. On remand, the

juvenile court is directed to correct the CYA commitment form to reflect appellant’s

misdemeanor violation of Vehicle Code section 2800.2, to indicate that appellant has

exceptional educational needs, and to reflect whether appellant has been prescribed

psychotropic medication. The juvenile court shall also exercise its discretion pursuant to

Welfare and Institutions Code section 731, subdivision (b), in setting appellant’s

maximum term of confinement. In all other respects, the dispositional order is affirmed.

The petition for a writ of habeas corpus is denied.

_________________________ McGuiness, P.J. We concur: _________________________ Parrilli, J. _________________________ Pollak, J.