In re Donte H

Filed 2/17/06 In re Donte H. CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order made after a judgment of the Superior Court of Los Angeles County, H. Kirkland Jones, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, vacated in part, and remanded with directions.

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, a minor, appeals from the order continuing wardship (Welf. & Inst. Code, § 602)[1] entered following revocation of probation previously granted upon his admission that he committed second degree robbery (Pen. Code, § 211). The court ordered appellant committed to the California Youth Authority for a maximum term of physical confinement of six years four months.

In this case, we hold appellant received adequate notice for purposes of due process that the People would seek revocation of his probation in section 777 proceedings based on misconduct he committed on June 16 and July 14, 2004. Although the section 777 notice alleged three counts of misconduct, and the two incidents of misconduct on June 16 and July 14, 2004, were not alleged as counts, the notice described documents discussing categories of appellant's misconduct; the two incidents involved misconduct in those categories; the two incidents were specifically discussed in a small number of documents attached to the notice; there is no dispute appellant had a copy of said notice and documents; and he conducted cross-examination concerning their contents.

We hold that a supervising probation officer's testimony concerning the above five incidents of appellant's misconduct was admissible at the probation revocation hearing since reliable hearsay is admissible at such a hearing, and the testimony was based on reliable oral hearsay from probation officers and teachers at appellant's camp and on events as to which the testifying probation officer was a percipient witness.

Finally, we hold the trial court erroneously failed to exercise its discretion when setting the maximum term of physical confinement. The record demonstrates the trial court was unaware of the discretion granted to the court under a recent amendment to section 731, subdivision (b). That amendment permits a trial court to exercise its discretion to set, for juvenile offenses, a maximum term of physical confinement less than the maximum period of imprisonment which could be imposed upon an adult convicted of those offenses. Moreover, even after the court was fully apprised at the dispositional hearing about appellant's past and present misbehavior, the court indicated its willingness to hear argument on whether it had said discretion; therefore remand is appropriate to permit the trial court to exercise said discretion. We express no opinion as to how the trial court should exercise its discretion.

CONTENTIONS

Appellant contends: (1) the section 777 notice failed to provide adequate notice as to two incidents not alleged as counts, (2) the court erroneously revoked appellant's probation because the probation officer's testimony as to the five alleged incidents of appellant's misconduct contained unreliable hearsay, and (3) the court erroneously failed to exercise its discretion, granted under section 731, subdivision (b), as amended, when setting appellant's maximum term of physical confinement.

DISCUSSION

1. Appellant Received Adequate Notice That the People Would Seek Probation Revocation Based on the June 16 and July 14, 2004 Incidents.

a. Pertinent Facts.

(1) Counts I, II, and III.

Appellant admitted a petition's allegations that he committed second degree robbery.[2] As a result, in November 2003, the court entered an order continuing wardship under section 602 and, inter alia, ordered appellant committed to the California Youth Authority (CYA), stayed execution of the commitment, ordered him committed to camp, and placed him on probation. On July 20, 2004, the probation department filed a section 777 notice of violation and probation report (hereafter, notice).[3] The notice alleged in three counts that appellant violated various conditions of his probation during incidents occurring in January, April, and May 2004 (counts I through III, respectively).

The notice also stated as â€