In re Emilio A.

Filed 7/16/07 In re Emilio A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda McFadden, Judge.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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The court readjudged appellant, Emilio A., a ward of the court (Welf. & Inst.,  602) after Emilio admitted allegations charging him with vehicle theft (Veh. Code,  10851, subd. (a)). On appeal, Emilio contends: 1) the probation department prepared an inadequate social study report and 2) the court abused its discretion when it committed him to the Department of Corrections and Rehabilitation, Juvenile Justice (DJJ). We will affirm.

FACTS

On August 26, 2006, 15-year-old Emilio was driving a stolen car with two passengers when he ran two red lights and two stop signs while fleeing from police. After Emilios car hit a dip and blew out a tire, Emilio and his passengers fled. Emilio attempted to hide in a residence but was eventually arrested there.

On August 29, 2006, the district attorney filed a subsequent petition charging Emilio with vehicle theft, receiving a stolen vehicle, and evading a police officer.

On September 8, 2006, Emilio admitted the vehicle theft offense in exchange for the dismissal of the remaining charges.

Emilios social study report indicated that he had not attended school outside of juvenile hall in approximately a year due to his frequent arrests and incarcerations and that he appeared to be doing well in school at the hall. The report also indicated that Emilio admitted being a gang member. Emilios mother told the probation department that when Emilio is not in custody he does not attend school. His mother also stated that Emilio behaves well with her when she is around, but she has to leave Emilio and his siblings unsupervised when she works.

The report disclosed that Emilios delinquent history began on April 23, 2004, when he was cited for vandalism and subsequently referred to diversion services which he failed to complete.

On October 17, 2004, Emilio, two siblings, and Ramon Rodriguez broke into a neighbors house. Modesto police officers subsequently found the neighbors property at Emilios house. Emilio was charged with residential burglary and possession of stolen property.

On November 17, 2004, Emilio failed to appear at a court hearing and a warrant issued for his arrest.

On June 10, 2005, Emilio was arrested on the warrant. Following his adjudication for possession of stolen property the court ordered Emilio to serve 45 days in juvenile hall with 10 days to be served in the Home Commitment Program.

On August 4, 2005, Emilio was arrested for petty theft after he was captured on video stealing surveillance cameras from Modesto High School.

On August 15, 2005, following his adjudication for grand theft, Emilio was ordered to serve 60 days in juvenile hall with 25 days on the electronic monitor.

On October 6, 2005, a police officer questioning Emilio and other males regarding vehicle burglaries found a screwdriver on Emilio. Emilio was arrested and released that same day on a charge of possession of burglary tools.

On October 11, 2005, a police officer saw Emilio and Manuel C. breaking into vehicles. When the officer attempted to contact them they fled on bicycles and then on foot but were eventually apprehended. Following his adjudication for second degree burglary and possession of burglary tools, the court ordered Emilio to serve 90 days in juvenile hall.

On January 27, 2006, Emilio and four other minors were arrested after Emilio was stopped while driving a stolen car whose interior had been vandalized with gang graffiti. Following his adjudication for vandalism and a gang enhancement the court ordered him to serve 180 days in juvenile hall.

On June 5, 2006, Emilio was ordered to serve 60 days in juvenile hall after he was adjudicated of violating his probation by participating in a gang related fight at the hall, tagging gang related graffiti in his room, and possessing a marking pen.

On July 17, 2006, Emilio tested positive for marijuana.

On August 21, 2006, Emilio tested positive for marijuana and methamphetamine. Also on that date he was directed to attend the Juvenile Justice Mental Health Orientation Program but never did.

On November 16, 2006, at the start of Emilios disposition hearing the parties stipulated that if called as a witness Emilios mother would testify that when Emilios father lived in the home he would beat his mother on a weekly basis with fists and open hands and leave her with bruises on her body and black eyes.^[1] On more than one occasion Emilio stepped in between them. Thereafter, defense counsel argued that the court should try Emilio in placement because he had never been tried there before and the prosecutor argued for a DJJ commitment. During discussions with the parties the court stated that it was concerned that if it sent Emilio to an unlocked setting when he had not been able to follow the rules in a secure setting, someone might get hurt. Thus it concluded that it would be much safer for Emilio to continue in a secure environment. The court also stated that it would have thought juvenile hall would have been a good placement choice for Emilio if not for his involvement in incidents there and his failure to take advantage of programs at the hall. Thus the court committed Emilio to the DJJ after concluding that taking all things into consideration, a DJJ commitment would be better for Emilio.

DISCUSSION

The Social Study Report

Emilio contends that his commitment to the DJJ must be reversed because his social study report was not complete or thorough because it did not: 1) detail Emilios psychological problems resulting from his troubled family history; 2) document any programs at DJJ that might assist Emilio in rehabilitation or adjustment; or 3) explore any other placements at all. Alternatively, Emilio contends that he was denied the effective assistance of counsel if he waived this issue on appeal by his defense counsels failure to object to the adequacy of his social study report. We will reject these contentions.

In the juvenile justice area it is the duty of the probation officer to prepare a social study of the minor for every disposition hearing after the juvenile court has found the minor to be a ward of the court pursuant to section 602. [Citations.] The social study shall contain such matters as may be relevant to a proper disposition of the case and a recommendation for the disposition of the case. [Citation.] The juvenile court shall receive the social study into evidence at the disposition hearing [citation], and In any order of disposition the court shall state that the social study has been read and considered by the court. [Citation.] [][]

The information contained in a properly prepared social study report is central to the juvenile courts dispositional decision. While there are no precise requirements outlined in the code or case law as to the contents of the social study, drawing an analogy from what the juvenile court must consider in making a disposition, the probation officers report should address, in addition to other relevant and material evidence, the age of the minor, his social, personal and behavioral history, the circumstances and gravity of the offense committed by the minor, and the minors previously delinquent history. [Citation.] The social study should also include an exploration of and recommendation to the wide range of alternative facilities potentially available to rehabilitate the minor. [Citation.] Implicit in this requirement appears to be some insight into the minors problems in order for the probation officer to make a recommendation with rehabilitation in mind. [Citation.] (In re L. S. (1990)220 Cal.App.3d 1100, 1103-1105, fn. omitted.)

However, the failure to object to the adequacy of a social study report waives the error on appeal. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1038.) Accordingly, we find that Emilio waived this issue by his failure to object in the trial court to the adequacy of his social study report. Further, we also reject Emilios contention that he was denied the effective assistance of counsel by his defense counsels failure to object to the adequacy of the report.

To demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.] (In re Alvernaz (1992) 2 Cal.4th 924, 936-937.) Moreover, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

However, a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.) Here, Emilio simply states without any discussion or evidentiary support, that [h]ad the probation officer thoroughly investigated the available alternative dispositions and the benefit they could have provided to [the] minor, there is a high probability the court would not have committed [the] minor to DJJ. Thus, in accord with Freeman we reject this claim without discussing it further. It follows that we also reject Emilios ineffective assistance of counsel claim because he has failed to show how defense counsels performance prejudiced him.

The DJJ Commitment

Emilio contends that the court was hobbled and unable to perform its duty because the probation department did not investigate or present any placement alternatives to the court and suitable placement was cursorily discussed at Emilios disposition hearing and rejected for reasons unsupported by the evidence. He further contends that his DJJ commitment was unsupported by any evidence of probable benefit. We will reject these contentions.

The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile courts decision. [Citations.] Nonetheless, theremust be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A CYA commitment may be considered, however, without previous resort to less restrictive placements. [Citations.] (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

Here, despite serving numerous commitments to juvenile hall totaling 323 days, Emilio continued to flaunt the courts authority and the directives of the probation department by failing to complete programs, violating his probation, committing more offenses while on probation, and continuing his gang activity. The court could also reasonably conclude from Emilios impulsive behavior and his demonstrated lack of respect for authority that he posed a high risk of running away from an unsecure placement. Further, the court could properly consider the effect of punishment as a rehabilitative tool and the protection of the public in making its commitment order (Welf. & Inst. Code,  202) and that if placed in an unsecure facility Emilios delinquent conduct and gang activity would pose a danger to other wards and to the public. Accordingly, we conclude that the record supports the courts finding that less restrictive alternatives than a DJJ commitment would be ineffective or inappropriate.

Moreover, it is clear from the record that Emilio was deeply entrenched in the gang lifestyle, he had psychological problems arising, in part, from witnessing his mother being physically abused by his father, and he had experimented with methamphetamine, alcohol, and marijuana. The record also disclosed that Emilio did well in school while incarcerated. The court could reasonably find from these circumstances that Emilio would benefit from the educational, vocational and counseling programs available at the DJJ. (Cf. In re Tyrone O. (1989) 209 Cal.App.3d 145, 153 [trial court properly found that the DJJ, with its specialized institutions and rehabilitative programs tailored to the delinquents sophistication and need for security probably would benefit minor].) Thus, the record supports the courts implicit conclusion that Emilio would benefit from a DJJ commitment. Further, in view of the foregoing, we reject Emilios contentions that the record is devoid of evidence that he would benefit from a DJJ commitment, that the record does not support the courts reasons for finding a less restrictive alternative ineffective or inappropriate, and that the court was hobbled in making its commitment order because less restrictive alternatives were not discussed in the probation report. The court did not abuse its discretion when it committed Emilio to the DJJ.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Wiseman, J. and Gomes, J.

^[1] Emilios social study report indicated that his mother and father separated in 2000 and that on September 13, 2003, Emilios father was convicted of felony spousal abuse.