In re Kevin L.

Filed 8/29/07 In re Kevin L. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Kevin L. appeals from a juvenile court dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF).[1] He challenges on various grounds the finding of probation violations and the commitment to DJF. He also asserts a claim of ineffective assistance of counsel on direct appeal and by petition for writ of habeas corpus.[2] He further contends the July 10, 2006 written dispositional order and the commitment order do not accurately reflect the courts ruling regarding his maximum term of confinement. While the juvenile court must correct its written dispositional and commitment orders, we otherwise affirm those orders and summarily deny the petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after his birth in June 1988, and again at the age of four, appellant was removed from his mothers care[3] and declared a dependent of the court under section 300 of the Welfare and Institutions Code.[4] After placement with a legal guardian was terminated, 11-year-old appellant was again declared a dependent of the court, his mothers parental rights were terminated, and appellant was placed in a group home.

In January 2001, following two physical altercations between appellant and another youth at the group home, the Alameda County District Attorney filed a petition under section 602. Twelve-year-old appellant was adjudged a ward of the court after he admitted brandishing a deadly weapon (a fork), a misdemeanor offense (Pen. Code,  417, subd. (a)(1)). The probation department recommended that despite appellants behavior, he should continue to be a dependent of the court and placed in an appropriate facility. The court agreed, and appellant was continued as a dependent of the court.

For the next four years, appellant was placed without success in various group homes. He received psychotropic medication, intensive individual psychological services and other counseling services to address emotional problems resulting from his chaotic life. Appellant failed to modify his behavior, which included inappropriate sexual behavior with other residents, refusing to follow group home rules, and leaving group homes without permission. Appellants mother, however, made substantial progress in resolving her own problems and sought to reunify with him. In July of 2004, 16-year-old appellant was returned to his mothers care under a family maintenance plan, with continued intensive counseling for appellant and his mother.

Nine months later, on April 8, 2005, appellant was arrested for molesting an eight-year-old boy on several occasions between July 2004 and January 2005. The molestation took place when the victim was at appellants home, where his mother babysat the child. The Alameda County District Attorney filed a new petition under section 602, alleging that appellant committed eight sexual offenses against the victim. At a jurisdictional hearing, appellant admitted to committing an act constituting the offense of forcible sodomy, a felony offense (Pen. Code,  286, subd. (c)(2)), and the remaining allegations were dismissed.

Before the dispositional hearing, appellant was sent to DJF for a 90-day period of observation and diagnosis. In October 2005, DJF submitted its report (2005 DJF evaluation). The interdisciplinary team recommended that appellant be committed to a program in the community that could help with his emotional problems, as well as provide sex offender treatment. According to a DJF staff psychologist, appellant needed a treatment program that could deal with his psychological problems as well as his sex-offending behavior and attitudes. This program must be able to address his tendency to avoid discussing his committing offense and his similar prior behaviors. His risk of re-offending with another sex offense is moderate to high. His risk is further elevated by his use of drugs and alcohol. If an appropriate program cannot be found in the community, or if Kevin cannot make use of such a program, he will need to be committed to the [DJF.] The probation department also recommended that appellant be placed in a sex offender treatment program available through the delinquency system.

At the dispositional hearing on October 28, 2005, the court adopted the recommendations of the probation department and DJF. The section 300 dependency proceeding was dismissed, and appellant was declared a ward of the court under section 602. Appellant was to be placed in a facility that would address his sexual behavior issues. He was directed to cooperate with the probation officer in any program of guidance, counseling or therapy. As conditions of his probation, appellant was also to be of good conduct, obey all laws, obey all rules and regulations of the placement/facility, and not leave the placement/facility without prior permission of the staff.

On November 15, 2005, appellant was placed at the Trinity Sacramento group home, which offered juvenile sex offender treatment, group and individual therapy, and a nonpublic school. Less than three weeks after his placement, Trinity Sacramento staff requested appellants removal because he was unable to participate in the facilitys treatment program. The staff had discovered appellant cutting his arms and he refused to sign a contract promising to stop doing so and to show staff his legs where he was believed to be cutting himself. It had been necessary to place him on suicide watch, which meant close staff supervision and use of the restroom/shower with an open door. On December 7, 2005, appellant was detained at juvenile hall until another treatment program could be located. On January 27, 2006, appellant was placed at a facility operated by Silverlake Youth Services, which offered juvenile sex offender treatment, behavior modification, group and individual therapy, and a nonpublic school.

Proceedings Leading to DJF Commitment

Within two months of his placement at Silverlake, appellant was detained at juvenile hall after Silverlake staff requested his removal. The probation department sought court approval to detain appellant until another placement could be found. The detention request included examples of appellants suicidal writings and a March 14, 2006 letter from Silverlake signed by his social worker and therapist and its clinical director. The letter indicated the following documented behavioral choices made by appellant since his placement: physical altercation with another resident (2/03/06), self-inflicted cuts to forearms (2/16/06), self-inflicted cuts to both forearms and AWOL after self-inflicted cuts (3/01/06), and several lacerations to both forearms with razor blade causing immediate hospitalization (3/11/06). It was reported that Kevin repeatedly cut his forearms as a coping mechanism and made no effort to improve his coping skills. Given his significant mental health challenges and proven behavioral record showing [an] intent not to adjust to our treatment program, it was the opinion of Silverlake staff that he clearly shows that hes not willing to do his part within the treatment program. Given the marked concerns, Kevin . . . clearly shows that he . . . has no intention of adjusting to the . . . treatment program, and that Kevin was choosing to move beyond [the] level of care that could be offered by Silverlake. The court approved appellants detention on March 23, 2006.

On April 4, 2006, the probation department filed a petition pursuant to section 777, seeking a change in the dispositional order because the minor has violated the standard terms and conditions of probation to obey all laws and be of good conduct in that: On March 21, 200[6], the minor was returned to Juvenile Hall as he failed placement at Silverlake Youth Services. The probation officer attached to the petition: (a) an offense summary report, in which it was noted that appellant had failed Silverlake Youth Services as he continued to cut himself in efforts of committing suicide & he refused psychiatric treatment, and (b) the March 14, 2006 Silverlake letter. In determining an appropriate disposition, the probation department asked the court to consider appellants previous history, including his commission of an offense in violation of Penal Code section 286, subdivision (c)(2).

On April 7, 2006, appellant, represented by Darryl Billups, waived time for a hearing on the section 777 petition. Without objection, the court continued the matter to May 5 so that the guidance clinic could prepare a mental health evaluation report. On May 5, 2006, the guidance clinic submitted a written evaluation of appellants psychological condition (2006 Guidance Clinic report), prepared by a psychiatric social worker and lead clinician at the countys Adolescent Sexual Offenders Treatment Program.

The jurisdictional hearing was continued several times. On May 16, appellant was present and represented by Billups. Without objection, the court noted it was not going to make jurisdictional findings. Instead, the court directed the probation department to submit a placement update report comprehensively addressing the issues the minor is facing, including those that have led to the allegation that he failed in his most recent placement. On May 30, appellant was not present, but he was represented by Billups. Without objection, the court directed the probation department to prepare a report on dispositional alternatives at this stage in light of the 777 that was filed on April 4, 2006.

In response to the courts requests, the probation officer filed a report on June 13, 2006, entitled Memorandum to the Court Re: Disposition Alternatives, briefly detailing the circumstances leading to the filing of the section 777 petition. The probation officer attached (1) a placement failure summary prepared by appellants therapist at Silverlake; (2) the 2005 DJF evaluation, and (3) the 2006 Guidance Clinic report.

The Silverlake placement failure summary noted the following placement failure incident(s): After several attempts to contract with Kevin regarding his self-mutilation, he began cutting onto his forearms deeper with each incident. Attempts were made to counsel him regarding his cutting, yet he chose to continue his cutting incidents approximately every 2-3 days. His self-mutilation became a concern to Silverlake Youth Services when he carved 666 and die now into his forearm. He was admitted to the hospital at that time, and determined to need a higher level of care. The Therapist Statement read: Kevin presented as a highly intelligent 17-year-old male. He did not appear motivated to work on the various issues in therapy, stating that he was only interested in learning more about his self-mutilating behaviors that began two years prior. Within King Facility, he had difficulty getting along with other residents and often would spend his time in his room reading or journaling. When Kevin was hospitalized, King Staff discovered a journal with several detailed suicide letters. With the discovery of these letters and the severity of the final self-mutilation, this therapist recommends that Kevin . . . be placed in a higher level of care to work with the underlying issues that brought on his cutting behaviors. Also, it is important that Kevin continue working in a sexual perpetrator program, working on his history of perpetration, as he has difficulty acknowledging his past offenses. The Administration Statement read: When Kevin was last hospitalized, the severity of his self-mutilation and suicide journal was discussed with [Silverlakes] Clinical Director. Due to the increased severity of each incident, Kevin did not respond to attempts to counsel . . . . Kevin does not appear to be amenable to treatment at this time. Multiple attempts have been made to assist Kevin in his treatment concerns at [Silverlake], and they appear to have been ineffective due to his lack of commitment. [Silverlake] has worked hard to do [its] part within the treatment program. Unfortunately, Kevin has shown in his behavior that he is not willing to do his part.

In the 2006 Guidance Clinic report, the psychiatric social worker noted that since he had last evaluated appellant one year previously, appellant had not improved and seemed to have become worse, being a year further into his emotional disturbance. Appellant used self-mutilation as a means to channel his self-destructive impulses, and he had resisted attempts by mental health professionals to intervene and disrupt his dangerous pattern of behavior. Appellant admitted he never took the court and probation departments threats too seriously because he thought he was smarter than everyone and he could manipulate and wiggle his way out of having to be responsible for his behavior. This is another example of Kevins delusional thinking. Now he finds he has run out of wiggle room and the possibility of further incarceration is imminent. . . . Kevin now realizes his offers and attempts to reform are futile because he has run out of options and his pleas for one more chance are falling on deaf ears. Appellant had not been involved in any significant psychotherapy, had not responded to efforts to help him develop safer, less harmful ways to deal with his trauma and pain, and he continued to be defiant and oppositional. Appellant was becoming more emotionally disturbed but was not currently psychotic, and had been kept from harm by the external structure provided in a residential or juvenile hall environment. His delinquent behavior was attributable to severe emotional disturbance, and he was developing features of an anti-social personality disorder. The psychiatric social worker recommended that appellant be placed in a  highly skilled sex offender residential treatment facility that has experienced staff and clinical expertise to work with very emotionally disturbed teenagers that have serious sex abused problems. . . . [] However, this clinician is aware of the lack of programs that meet the criteria for Kevin. . . . Kevin has been given opportunities but has not made good use of them. [] This clinician recalls that during the last evaluation Kevin stated he was serious about not wanting to go to prison or [DJF] and he knew the possible consequences if he failed to take full advantage of the therapy offered to him. Unfortunately for Kevin he failed. Therapy for Kevin is still vital. It is hoped that if he goes to [DJF] he is included in their mental health and sexual offender programs. [] This clinicians first and foremost recommendation is for residential treatment for Kevin. However, if a residential program is not available and [DJF] is the only other alternative then Kevin should be placed into a treatment program there that will focus and address his mental health needs. . . . [] At this time it seems he is in need of a much higher level of containment and care. (Italics and underscoring omitted.)

The probation officer reported that appellant had been referred to all the sex offender programs available to the probation department. He was denied acceptance by most of them due to his mental health issues combined with his need for sexual offender[] counseling. Appellant could not be placed in level 13/14 facilities because of his age, history of sexual aggressiveness, and safety of other minors. Silverlake finally accepted appellant but he was terminated from that placement for the following reasons: he cut himself several times in attempts of committing suicide. He was hospitalized twice and refused to take his medication. The minor exhibited violent behavior and was very disrespectful towards staff. The probation officer concluded, The minor will be 18 years old on 6-30-06. Due to his age, severity of his offense, and his mental health needs, there are no placements that will consent to providing treatment to the minor. Therefore, the Probation Department intends to recommend that the minor be committed to [DJF] based on his 90-day diagnostic evaluation and his failure to respond to a residential treatment program.

At the June 19, 2006 hearing, another attorney appeared on behalf of appellants counsel, Darryl Billups. The court noted that since the last hearing it had had the benefit of an extensive evaluation of Kevin prepared and filed by the [DJF] as well as by the guidance clinic. Although the court was prepared to make depositional findings, it granted appellants request to continue the matter so that Billups could be present.

At the July 10, 2006 hearing, appellant was present and represented by Billups. The court indicated the case was on calendar for continued consideration of dispositional alternatives, noting the matter had been under consideration for quite a while. In explaining its dilemma regarding appellant, the court stated: Kevin has appeared on two dates prior to this and on those dates as well as todays date, I have reviewed the extensive documentation having to do with [his] problems, issues. Probation failures, placement failures, mental health challenges, et cetera. [] Most recently, I have reviewed the memorandum prepared by the probation officer indicating that there are no placement alternatives that the probation officer feels it can impose other than commitment to the [DJF] and it is essentially that possibility that I am contemplating and . . . the court is presented with the problem because of placement failures involving Kevins psychological problems, failure or refusal to take medication for those problems, suicidal ideation and behavior, which resulted in one or more placements finding him unsuitable and rejecting him. [] The minor makes the argument through counsel that because of the circumstances of the placement failures that there is not and should not be a finding made that [appellant] has violated the terms of his probation under section 777 . . . [] [e]ssentially . . . because the behavior that led to the placement failures was either involuntary or the product of mental and emotional illness for which the minor should not have to bear responsibility.

Billups concurred with the courts characterization of his argument: Basically the court has summarized what my position is. . . . I dont feel that a violation of probation has been made out given Kevins emotional and mental condition. Counsel objected to the court finding a violation and finding the violation based on the reports that have been submitted. The probation departments counsel submitted the matter without argument.

The court found, The evidence before me convinces me that section 777 . . . has been violated by the circumstances that Kevin has been placed at Trinity Sacramento, failed there in December of 2005, placed at Silver Lake, failed there in February 06, and accordingly, I make the finding that he has violated the terms of his probation. [] I have considered the dispositional report, including the one most recently prepared by the probation department, and conclude reluctantly that there are no meaningful dispositional alternatives that are consistent with Kevins welfare and rehabilitation other than commitment to the [DJF]. In response to a query from appellants counsel, the court indicated it had considered the 2005 DJF evaluation. The court stated, That is one of the many puzzling aspects of the case because the record should reflect, as the reports reflect, that Kevin has been in [DJF] on a 90-day diagnostic evaluative placement and that the [DJF] itself has concluded pursuant to that evaluation that he is unsuitable for placement or commitment to the [DJF]. One of the very many perplexing aspects of the case is that very finding. [] If I had any other place to send this child that would be safe for him and for the community, I would send him there, but I am constrained to make the [DJF] commitment in the face of the diagnostic evaluation that I have before me, and the record should clearly reflect that I am doing that and that I feel compelled to do that for the minors safety and the safety of the community. . . . The court stated [e]ach and every other one of the necessary findings to commit appellant to the DJF was made as the courts order.

On July 24, 2006, the court modified its earlier findings, as follows: The matter is on for disposition. I have read and considered the probation officers report. The minor has admitted to certain violations of the law and, as well, I find that the minor has failed on probation at the local level and based on the minors mental and physical condition, it is probable that he will benefit from the reformatory, educational, or other treatment resources provided by the [DJF]. [] Pursuant to section 726 . . . , I find that the minors parent or guardian isnt capable of providing or has failed to or neglected to provide proper maintenance, training, and education for the minor. As well, he has been tried on probation in the custody of the parents and has failed to reform. [] Welfare of the minor requires that custody be taken from the minors parent or guardian. Continuance in the home of the parent would be contrary to the childs welfare. [] Reasonable efforts have been made to prevent removal. [] Minor is continued as a ward of the court and committed to the [DJF] for a period not to exceed three years. [] I find that the minor does not have special educational needs. This timely appeal ensued.

DISCUSSION

I. Sufficiency of Evidence

Appellant argues that the procedures used by the court in resolving the section 777 petition violated his due process right to a fair hearing. Specifically, he contends the court abused its discretion: (1) by relying on inadmissible hearsay in the probation report, the Silverlake placement failure summary, the 2005 DJF evaluation, and the 2006 Guidance Clinic report; (2) by failing to conduct a good cause hearing to determine the admissibility of the testimonial hearsay in the documents; and (3) by reviewing the 2005 DJF evaluation and the 2006 Guidance Clinic report before the July 10, 2006, hearing, thereby predetermining the dispositional issue before making its finding that he had violated probation.

Contrary to appellants contention, none of the procedural issues he now raises has been preserved for our review. (See Evid. Code,  353, subd. (a); People v. Partida (2005) 37 Cal.4th 428, 434-435.) Unlike the situation in Partida, appellants due process claim that he was denied a fair hearing does not  merely restate[], under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.  (Id. at p. 436, quoting People v. Yeoman (2003) 31 Cal.4th 93, 117.) At no point during the course of the proceedings in the juvenile court did appellant question the courts reliance on the documents before it or suggest there was any need to receive confirming testimony from the authors of the respective reports.

Appellant asserts that justice requires that we exercise our inherent authority to reach the merits of his arguments even though not preserved for review. We disagree. Appellant was given notice of the reasons and the evidence that warranted a change in the dispositional order, an opportunity to be heard in person and through counsel and to present witnesses and documentary evidence, a neutral hearing officer, and a statement by the juvenile court as to the evidence relied on and the reasons for changing the dispositional order. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 786.) The probation department report, the Silverlake placement failure summary, the 2005 DJF evaluation, and the 2006 Guidance Clinic report were akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1066 [termination report from manager of drug rehabilitation program properly admitted over probationers objection]; see  777, subd. (c) [court may admit and consider reliable hearsay evidence]; Cal. Rules of Court, rule 5.580(e) [court must consider the report prepared by the probation officer and other relevant and material evidence offered by the parties to the proceeding, and may admit and consider reliable hearsay evidence as defined by section 777(c)].) It is not reasonably likely a hearsay objection would have prevented findings that appellant had violated a condition of his probation or that commitment to DJF was appropriate. There is no suggestion that appellant was not in fact rejected from his prior placements for the reasons stated in the various reports. Appellant does not dispute that the persons who prepared the reports, if called as witnesses, would be competent to testify regarding the information in the reports. Had those witnesses testified, it is not reasonably likely their testimony would have differed in any material respect from what is stated in the reports or provided any reason to discount the content of the reports. [T]he witnesss demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of the testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action. (People v. Arreola (1994) 7 Cal.4th 1144, 1157.)

Appellants substantive argument that the evidence contained in the reports does not support the finding that he violated a condition of his probation also fails. Among the conditions of appellants probation was the requirement that he obey the rules of his placement facility. Yet, among other things, at Silverlake the reports relate that he persistently disregarded the directive to desist from self-mutilation. While this behavior may well reflect underlying psychological issues requiring attention, it nonetheless supports the courts finding that appellant violated the conditions of his probation.

To the extent appellant challenges the sufficiency of the section 777 petition, no objection was raised below. In any event, nothing in the record indicates that either appellant or his attorney was unfamiliar with the basis for the section 777 petition. Appellant concedes that a section 777 petition can be resolved at a consolidated hearing pertaining to both the violation of a condition of probation and the change in a prior dispositional order. (In re Emiliano M. (2003) 31 Cal.4th 510, 513-514; see  777, subd. (c) [facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order].) The probation report prepared for the July 10, 2006 hearing, which included the Silverlake placement failure summary, the 2005 DJF evaluation, and the 2006 Guidance Clinic report, addressed matters relevant both to whether appellant had violated a condition of probation by failing his placement at Silverlake and to the probation departments request to change the prior dispositional order. Unlike the situation in proceedings under section 601 and 602 to which appellant refers, in which the court is prohibited from reading or considering the probation report before or during a contested jurisdictional hearing (Cal. Rules of Court, rule 5.780(c); In re Gladys R. (1970) 1 Cal.3d 855, 860), the court is required to consider the probation report in a hearing on a violation of probation under section 777 (Cal. Rules of Court, rule 5.580(d), (e)).

Appellants arguments pertaining to the finding that he also failed at Trinity Sacramento are similarly unavailing. While appellant correctly notes that his failure at Trinity Sacramento was not listed as a reason for filing the section 777 petition, appellants conduct and failure at the Silverlake placement fully supports the courts decision. There is no reason to believe that if an objection had been made to consideration of the Trinity Sacramento failure, the juvenile courts disposition of the section 777 petition would have been any different.

II. Commitment to DJF

Appellant argues his commitment to DJF was inappropriate for various reasons, none of which warrants a new dispositional hearing.

We review a commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Section 734 mandates that, No ward of the juvenile court shall be committed to the [DJF] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJF]. A reviewing court will not conclude the juvenile court has abused its discretion in committing a minor to DJF if the record demonstrates  probable benefit to the minor from commitment to the [DJF] and that less restrictive alternatives would be ineffective or inappropriate.  (In Pedro M. (2000) 81 Cal.App.4th 550, 555-556.)

Under section 202, juvenile proceedings are primarily rehabilitative (id., subd. (b)), and punishment in the form of retribution is disallowed (id., subd. (e)). (In re Eddie M. (2003) 31 Cal.4th 480, 507.) But, [w]ithin these bounds, the court has broad discretion to chose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. ([ 202,] subd. (e).) (In re Eddie M., supra, at p. 507.) Appellants reliance on In re Aline D. (1975) 14 Cal.3d 557, In re Todd W. (1979) 96 Cal.App.3d 408, 418-419, and In re Carrie W. (1979) 89 Cal.App.3d 642, is misplaced. Aline D.,Carrie W., and Todd W. predate the amendment of former . . . section 502 (now  202) regarding the purposes of the Juvenile Court Law. In 1984, the Legislature amended the statement of purposes found in section 202 . . . . It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. (Stats. 1984, ch. 756,  1, 2.) The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. Such was not the case before 1984. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58, fn. omitted.)

In this case, the juvenile court did not commit [appellant] to [DJF] solely because alternative placements were unavailable. . . . [It merely] expressed its understandable dismay that there were no alternative long-term local facilities. A court should not be precluded from expressions of regret or concern when explaining its chosen disposition to the minor. (In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.) Appellant notes that after committing him to DJF, the court commented that the 2005 DJF evaluation had concluded appellant was unsuitable for DJF commitment based apparently on a comment in the 2006 Guidance Clinic report that purports to summarize the 2005 DJF evaluation. In the 2006 Guidance Clinic report, the psychiatric social worker reported, The [DJF] evaluators determined Kevin was not suitable for [DJF] and recommended placement in a treatment program that can deal with his psychological problems as well as his sex-offending behavior and attitudes.  (Italics in original.) However, neither the 2005 DJF evaluation nor the 2006 Guidance Clinic report concluded that DJF was unsuitable in that it could not provide appellant with necessary treatment or that appellant would not probably benefit from such treatment. Both reports opine that a different type of program would be preferable. But [i]f two programs are found appropriate and one is found unavailable for whatever reasons, the court should not be hindered in view of the situation before it from choosing the perhaps less desirable program. (In re Gerardo B., supra, at p. 1258.)

Although the court commented that it was compelled to commit appellant to DJF for the safety and protection of others and because there was no other appropriate community-based placement available to treat him, we are satisfied from the entire record that the court properly focused on the dual concerns of the best interests of the minor and public protection. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The record reflects the courts sympathetic and careful consideration of the seriousness of appellants conduct that led to the section 602 petition, appellants age, his failures at therapy and the ineffectiveness of alternative community-based placements, and the recommendations of the probation officer and various health professionals who had evaluated appellant. Given the unfortunate realities of the situation and the alternatives before it, the juvenile court found that appellant would benefit from a commitment to DJF. We cannot say that the court abused its discretion or that the commitment was improper. (In re James S. (1978) 81 Cal.App.3d 198, 201; see also In re Gerardo B., supra, 207 Cal.App.3d at p. 1258.)

III. Effectiveness of Counsel

The record on direct appeal does not indicate why counsel did not object to the hearsay nature of the reports submitted by the probation department, but appellant has also filed a petition for writ of habeas corpus based on the claim that his counsel was ineffective. In a supporting declaration, Billups states that at the July 10, 2006 hearing, he did not make an explicit hearsay objection because he thought his challenge to the sufficiency of the reports was sufficient to encompass such an objection. According to appellant, had counsel made a hearsay objection, it is reasonably probable the court would not have found a violation of probation or placed him at DJF because there would have been no evidence to support those rulings.

A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. (In re Visciotti (1996) 14 Cal.4th 325, 351.) If the petitioner does not state a prima facie case for relief, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an order to show cause. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) To establish ineffective assistance of counsel, appellant must establish either (1) As a result of counsels performance, the prosecutions case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsels unprofessional errors and/or omissions, the [hearing] would have resulted in a more favorable outcome. (In re Visciotti, supra, 14 Cal.4th at pp. 351-352.) The rule of per se reversal in cases where counsel fails to subject the prosecutions case to adversarial testing is narrowly applied. Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage. (Id. at p. 353.) Appellant does not contend this case meets that strict standard, and we fully agree it does not.

Appellant claims that a more favorable outcome was reasonably probable had his counsel performed effectively by objecting to the hearsay nature of the reports. [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 . . . that course should be followed. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

Assuming, without deciding, that Billups had no sufficient reason for failing to object to the hearsay nature of the reports, we cannot conclude that this failure resulted in any prejudice. In determining whether counsels failure was prejudicial, we evaluate the entire record, not the single error in isolation. The reports relied upon by the court are typically requested and used by courts in section 777 proceedings. (People v.OConnell, supra, 107 Cal.App.4th at pp. 1066-1067; see  777, subd. (c); Cal. Rules of Court, rule 5.580(d), (e).) To the extent counsel might have required the prosecutor to produce as witnesses the probation officer and staff members of Silverlake, DJF and the Guidance Clinic, his failure does not  undermine [our] confidence in the outcome.  (People v. Riel (2000) 22 Cal.4th 1153, 1175, quoting Strickland v. Washington, supra, 466 U.S. at p. 694.) Appellant has offered no reason to believe that their testimony would have differed from the content of their reports or that their presence in the courtroom would in any way have affected the outcome of the proceedings. Counsels approach to challenge the violation of probation and the appropriateness of the DJF commitment on the ground that the placement failures were a consequence of appellants emotional and mental conditions for which he should not be held responsible was not dependent on impeaching the content of the reports on which the court relied. To the contrary, the reasonable arguments that counsel advanced on appellants behalf were dependent on those reports. On this record, we cannot say the courts rulings were rendered unreliable by a breakdown in the adversary procedure caused by deficiencies in counsels assistance. (Strickland v. Washington, supra, at p. 700.) Appellant has not established a prima facie case for relief.

IV. Remand Necessary To Correct Dispositional and Commitment Orders

At the July 10, 2006 hearing, the juvenile court set appellants maximum term of confinement at three years, which is accurately reflected in the written dispositional order of that date and on page two of the commitment order. However, the written July 10, 2006 dispositional order includes the erroneous statement that the maximum period of confinement is eight years, which term also appears on page one of the commitment order. We agree with the parties that the orders must be corrected.

DISPOSITION

The matter is remanded with directions to the juvenile court (1) to strike from the July 10, 2006 written depositional order the words, Maximum period of confinement is 8 years, and (2) to amend page one of the commitment order to reflect that the court ordered appellant to be committed for a maximum term of three years. The juvenile court shall send an amended commitment order to the Department of Corrections and

Rehabilitation, Division of Juvenile Facilities. The dispositional and commitment orders are otherwise affirmed. The petition for writ of habeas corpus is summarily denied.

_________________________

Pollak, Acting P. J.

We concur:

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Siggins, J.

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Horner, J.*

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[1] Since July 1, 2005, the Department of Youth Authority has been renamed the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. ([Welf. & Inst. Code,]  1703, subd. (c).) (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.)

[2] This court consolidated the direct appeal with appellants petition for writ of habeas corpus. A request for judicial notice and a determination of whether to issue an order to show cause were deferred. In his petition, appellant requests that we take judicial notice of the record and pleadings filed on his direct appeal. In the absence of opposition, we grant the request for judicial notice.

[3] The identity of appellants father is unknown.

[4] All further unspecified statutory references are to the Welfare and Institutions Code.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.