Opinion
A153444
03-23-2020
In re D.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.H., Defendant and Appellant.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] BY THE COURT:
It is ordered that the nonpublished opinion filed herein on March 23, 2020, be modified as follows:
The last full sentence on page 21 of the opinion should be modified to read: "Experts throughout these proceedings have concluded that D.H. would benefit from sex offender treatment, including the court appointed expert, Dr. Rokop."
This modification does not change the judgment.
The petition for rehearing is denied. Dated:
/s/_________
Humes, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J0106)
In this lengthy and heavily litigated action brought pursuant to Welfare and Institutions Code section 602, D.H. appeals from the juvenile court's most recent probation violation finding and resulting dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). We are familiar with this delinquency proceeding, having previously issued two unpublished opinions in which we reviewed and largely rejected numerous claims of error with respect to prior juvenile court decisions in the matter. In this appeal, D.H. again raises numerous challenges and seeks to reverse the juvenile court's commitment determination. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
On our own motion, we take judicial notice of our unpublished opinions. (In re D.H. (Nov. 30, 2011, A130577) [nonpub. opn.], review den. Feb. 22, 2012, S199303 (D.H. I); In re D.H. (Nov. 16, 2016, A145521) [nonpub. opn.], review den. Mar. 1, 2017, S239200 (D.H. II).) (See Evid. Code, §§ 452, subd. (a), 459, subd. (a).) We additionally grant D.H.'s request, joined by the Attorney General, that we take judicial notice of the records in those two cases, DH I and DH II, as well as of the records in several additional related proceedings, In re D.H., A132319 (pet. for writ of habeas corpus den. Nov. 30, 2011, review den. Feb. 22, 2012, S19302), People v. D.H., A148429 (dism. Aug. 18, 2017), and People v. D. H., A150909 (dism. Aug. 18, 2017). (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We deny D.H.'s April 2019 motion for judicial notice of certain extra-record material as unnecessary to our decision.
I. BACKGROUND
We previously summarized the genesis of these proceedings as follows: "In the summer of 2009, appellant, then 12 years old, molested his eight-year-old half brother. The younger child disclosed the molestation to his mother nine months later. In April 2010, the Solano County District Attorney initially filed a wardship petition (§ 602) alleging one count of forcible sodomy, but later amended the petition to add one count of lewd act on a child (Pen. Code, § 288, subd. (a)). Following a contested jurisdictional hearing in September 2010, the court sustained the petition on the lewd act count, but not the sodomy count." At disposition in October 2010, the juvenile court adjudged D.H. a ward of the court, placed him on probation in his mother's home, and referred him to the sex offender intensive supervision unit. Maximum confinement time was set at eight years. On appeal, we affirmed the juvenile court's orders. (D.H. II, supra, A145521.)
Over the next four years, the probation department (Probation) filed 10 probation violations against D.H. pursuant to section 777. "D.H. admitted all of them. Most of the alleged misconduct involved use of marijuana, disobedience to staff orders, disruptive behavior, bad language and subsequent failure in different placements." Given these multiple placement disruptions, D.H. never completed a sex offender treatment program. In December 2014, while disposition with respect to D.H.'s 10th probation violation was pending, the juvenile court appointed Dr. Rokop to evaluate D.H. Dr. Rokop recommended placement of D.H. with his mother in Utah, so long as he engaged in sex offender and substance abuse treatment. Probation recommended DJJ, which had a " 'cutting edge' " sex offender treatment program. At the conclusion of the contested dispositional hearing, the juvenile court committed D.H. to DJJ in February 2015. He was placed at DJJ in June 2015. His maximum term of confinement was set by the juvenile court at five years. D.H. appealed. (D.H. II, supra, A145521.)
In November 2016, we found that the juvenile court had not abused its discretion "in concluding appellant would derive a probable benefit from treatment at DJJ, and that public safety would also be better served." However, we also determined that, when D.H. admitted his 10th probation violation, he was not properly advised his commitment to DJJ could lead to a requirement that he register as a sex offender. (See People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481 ["Failure to advise of the sex registration requirement is error."].) Although D.H. failed to show prejudice on direct appeal, we issued an order to show cause in D.H.'s related habeas corpus proceeding, returnable in the juvenile court. (D.H. II, supra, A145521.)
The juvenile court found that D.H. was entitled to relief under his habeas corpus petition and could withdraw his admission to the 2014 probation violation. After D.H. withdrew his admission, the juvenile court vacated the dispositional order committing him to DJJ and continued the matter for a contested hearing on the probation violation. While the hearing was pending, D.H. filed a motion to dismiss under section 782.
A combined hearing on the probation violation and on D.H.'s motion to dismiss was held on October 12 and 13, 2017. At the conclusion of the hearing, the court sustained the probation violation allegation and denied D.H.'s motion to dismiss. While disposition on the probation violation was pending, the juvenile court denied without prejudice D.H.'s ex parte motion for the appointment of a psychological expert. At the contested dispositional hearing on December 4, 2017, D.H.'s attorney orally requested to continue the matter so that her renewed request for an expert could be granted. The court denied the continuance request and then denied the motion for appointment of an expert as moot. The juvenile court committed D.H. to DJJ for a maximum term of six years, with custody credits of 1,818 days. D.H. appealed and the matter is again before us for review.
II. DISCUSSION
A . Probation Violation Hearing
1. Additional facts
At the contested probation violation hearing, D.H.'s probation officer, Shannon West, testified about his September 2014 termination from his group home. D.H. had been placed at the Teen Triumph group home (Teen Triumph), a juvenile sex offender program, in 2013. D.H. had several previous probation violations at Teen Triumph. After his violation in May 2014, he was placed back at Teen Triumph in a different house. After another violation in June, the program wanted to terminate him but agreed to take him back. D.H. returned to Teen Triumph on July 11, 2014.
For approximately five weeks after D.H.'s return, West received "glowing reports" about his motivation and participation. The expectation was, if he continued his good behavior and completed the last of his sex offender treatment assignments, he would be ready for discharge by September 30, 2014, and could be transitioned to Utah to live with his mother. Toward the end of August, however, West began receiving reports from the group home about escalating defiance by D.H., including refusals to cooperate with staff and complete his clinical work. When West spoke with D.H. about these negative encounters, he stated that he had done the work before and was looking forward to joining his mother. He told her he would turn things around. Modifications were made to the program to give D.H. more opportunities to complete assignments and his house was changed to help with behavioral issues. Nevertheless, D.H.'s defiant behaviors continued, and Teen Triumph submitted a termination notice for him on September 11, 2014.
Gina Foppiano was employed at Teen Triumph as a social worker and counseled D.H. from October 2013 until his termination from the program in September 2014. Foppiano prepared the termination report and testified that D.H. was terminated because "[h]e was exhibiting a history of running away, non-compliance regarding program rules, smoking marijuana on the premises and bringing it into the home. And overall non-compliance with program expectations."
In making its probation violation finding, the juvenile court took judicial notice of D.H.'s entire file. D.H.'s termination paperwork disclosed that he was suspended from school after getting into a fight on September 5, 2014. In addition, "[i]ncident reports attached to the termination notice indicated that between August 13 and September 6, 2014, D.H. refused to follow instructions from staff to get off the roof, cursed nonstop and acted out one entire day, called a peer a 'faggot' and threw an apple at him the next day, got high on marijuana and refused to drug test, and tested positive the next day." (D.H. II, supra, A145521.)
On cross-examination, Foppiano testified that, while D.H. was progressing through his sex offender treatment, she did not believe he would complete it because he was unable to comply with the behavioral rules and expectations of the program. Foppiano vaguely recalled that D.H. had an individualized education program (IEP), but she did not use IEPs in treatment. Rather, after building rapport with a resident, she determined their capacity by seeing what they were able to accomplish and process. Foppiano also testified that D.H. had a medication change in which two prior medications for ADHD were discontinued in May 2014 and replaced in July with medications for depression and mood stabilization. There was no indication in his file that he failed to take his prescribed medications. West testified that she relied on the doctor's decision regarding the appropriate medication for D.H.
After argument from counsel, the juvenile court first addressed the motion to dismiss. After noting its familiarity with the case, the court asserted that dismissal was "[a]bsolutely not" appropriate as it was "not in the interests of justice or his welfare or the welfare of the community or anybody's welfare." It rejected procedural objections and concluded that "it is in [D.H.'s] best interests that the juvenile court jurisdiction continue over him. In all of these years, he has failed to complete a sex offender treatment program. That is in his best interests. That is in the best interests of society."
Addressing the alleged probation violation, the juvenile court rejected D.H.'s argument that his conduct was not willful because he was improperly medicated. It noted that the medication change was made by a medical doctor and there was no evidence presented, other than a possible inference based on timing, that D.H.'s behavioral issues were caused by the change. The court also rejected the argument that service providers were not doing everything they should have, finding that the placement was meeting D.H.'s needs. It concluded: "It was [D.H.'s] behavior that was the issue. And his behavior, in my opinion, was clearly willful, although the finding is by a preponderance of the evidence." The court indicated it had "plenty of evidence" of the probation violation and found by a preponderance of the evidence that D.H. violated his probation.
2. The Probation Violation Notice Was Not Defective
The notice of probation violation at issue in these proceedings stated that D.H. was a juvenile court ward in violation of a condition of probation. The supporting facts elaborated: "Said minor is in violation of his juvenile court orders in that the minor was unsuccessfully terminated from his juvenile sex offender group home program on September 11, 2014." D.H. argues that the notice was fatally defective under section 777 because it failed to identify the specific probation condition he purportedly violated and failed to allege enough facts to support his willful violation of that condition. We are not persuaded.
Section 777 provides that an order changing or modifying a previous order by directing commitment to DJJ may be made only after a noticed hearing. Where the minor has been declared a ward of the court under section 602, notice may be filed by the probation officer or the prosecuting attorney alleging "a violation of a condition of probation" and must "contain a concise statement of facts sufficient to support this conclusion." (§ 777, subd. (a)(2).) At the time of the noticed violation, D.H.'s applicable court order contained two express conditions of probation. First, he was under a mandatory order to attend sex offender counseling. Second, he was required to abstain from alcohol and drugs, including marijuana, and to submit to related testing. In a different section of the court order under the heading "Findings and Orders re: Placement," D.H. was ordered as follows: "Minor shall remain in placement and obey all reasonable directives of the placement staff and Probation Officer. Minor is not to leave placement until approved by the Probation Officer or Court."
Without citation to any authority, the Attorney General asserts that, since 2000, section 777 no longer distinguishes between placement failures and probation violations and thus an allegation of placement failure is sufficient for purposes of the statute. We need not address this contention, however, because even if the notice must identify the specific probation condition violated, the instant probation violation notice passes muster. One of the minor's two express probation conditions was a mandatory order that he attend sex offender counseling. Since the notice stated that D.H. had been "unsuccessfully terminated" from his juvenile sex offender group home program, a fortiori, he could no longer attend his mandated sex offender counseling and was therefore in violation of this condition. Moreover, notice of his "unsuccessful" termination gave D.H. adequate warning that his removal from the group home was due to some misconduct on his part. We conclude that D.H. was afforded adequate notice of the circumstances underlying the alleged violation of his probation as required by section 777.
3. There Was No Violation of Due Process
D.H. also claims that various deficiencies in the probation violation procedure were so significant that they infringed his due process rights. Due process entitles a probationer to "written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation." (Black v. Romano (1985) 471 U.S. 606, 612; see People v. Malabag (1997) 51 Cal.App.4th 1419, 1422; see also In re Alberto S. (1991) 226 Cal.App.3d 1459, 1464 ["Juvenile court proceedings are controlled by the same concerns and rules as adult criminal proceedings with respect to the due process right to notice of specific charges or factual allegations."].) In California, it is settled that "a reporter's transcript of a court's oral statement of reasons for revoking probation satisfies the due process requirement of a written statement as to the evidence relied on and the reasons for revocation." (People v. Moss (1989) 213 Cal.App.3d 532, 533 (Moss); see People v. Scott (1973) 34 Cal.App.3d 702, 708.)
D.H. contends that the juvenile court's statement regarding the evidence relied upon and the reasons for revoking probation in this case was too generalized to satisfy due process. Specifically, he asserts that the juvenile court's ruling was constitutionally infirm because the court indicated it was taking judicial notice of the entire file without identifying any particular evidence it considered, stated that there was "plenty of evidence" to support the probation violation without identifying the exact probation condition at issue, and found his behavior willful without identifying any particular allegation of misconduct as being true.
We conclude D.H. has failed to state a cognizable due process violation. He cites no authority for the proposition that due process requires a specific itemization of D.H.'s behaviors to support the court's revocation determination, and one would have been unnecessary in the context of the hearing below. The evidence was largely undisputed that D.H. was terminated unsuccessfully from his group home based on his refusal to engage in sex offender clinical treatment, cooperate with staff, and abide by the group home requirements such as refraining from drug use. The main focus of the proceedings below was on the willfulness of his misbehavior, not whether these incidents had occurred. Thus, when the court stated that "plenty of evidence" supported finding a violation of probation, or that there were "numerous . . . basises [sic]" for that alleged violation, it is clear the court was referring to the multiple, and essentially unchallenged, allegations of misconduct that led to D.H.'s termination from his sex offender treatment program and exit from the group home. We find the court's statement of evidence and reasons sufficient to permit our full appellate review as to the propriety of the revocation. (Moss, supra, 213 Cal.App.3d at p. 534.)
Moreover, D.H. was given adequate opportunity to confront the evidence against him, testify on his own behalf, and marshal his own witnesses and documentary evidence. He had access to all the underlying evidence detailing the alleged misconduct that resulted in his 2014 separation from the group home and termination of his mandated sex offender treatment. Foppiano brought a number of documents to refresh her recollection during the probation violation hearing—including assessments, the termination report, and some e-mails—and D.H.'s attorney acknowledged that she either possessed or had reviewed all of the documents. D.H.'s counsel was clearly aware of the termination report as she referenced it several times during her closing argument and asked that the attached incident reports be stricken as hearsay. Since D.H. received adequate written notice of the claimed probation violation, had access to the evidence against him and an opportunity to be heard, and received an adequate statement from the juvenile court as to the basis for the juvenile court's revocation decision, it cannot reasonably be argued that D.H. was deprived of due process.
4. Substantial Evidence Supports the Probation Violation Finding
We next address D.H.'s claim that the juvenile court's probation violation finding must be reversed because there was insufficient evidence to support the court's findings that he willfully violated the terms of his probation and that Teen Triumph was providing reasonable accommodations for his needs. D.H. further suggests that the juvenile court abused its discretion by violating his probation at a time when he was essentially done with his treatment. We conclude that the juvenile court's probation violation finding was amply supported by the evidence and see no abuse of discretion on this record.
Trial courts have "very broad discretion" in determining whether a probationer has violated probation and thus " 'only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.' " (People v. Rodriquez (1990) 51 Cal.3d 437, 443.) When a finding of a probation violation is challenged based upon sufficiency of the evidence, the reviewing court's role is to decide "whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.) Moreover, an allegation of probation violation under section 777 need only be proven by a preponderance of the evidence. (§ 777, subd. (c).)
Probation may not be revoked, however, unless the evidence shows the probationer's conduct constituted a willful violation of the terms and conditions of his or her probation. (People v. Galvan (2007) 155 Cal.App.4th 978, 983.) "The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (Pen. Code, § 7, subd. (1).) Thus, " '[w]illfully implies no evil intent; " 'it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.' " ' " (People v. Atkins (2001) 25 Cal.4th 76, 85.) "Stated another way, the term 'willful' requires only that the prohibited act occur intentionally." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.)
Here, the juvenile court expressly found by a preponderance of the evidence that D.H.'s misconduct leading to the violation of his probation was willful. D.H. was ordered to engage in mandatory sex offender treatment and was sent to Teen Triumph to do so. He was also ordered to follow the directives of placement staff. There is no indication in the record that he was unaware of program or court expectations. Rather, the evidence showed that when motivated to do so, D.H. was capable of meeting program expectations. In August 2014, however, he ceased cooperating with staff and "flat-out sa[id] that he wasn't going to do the work." When his probation officer questioned him about his behavior, he did not indicate that he was incapable of successfully participating in the program. Rather, he stated only that he had done it before and was looking forward to moving to Utah. The evidence permits the reasonable inference that D.H. was aware he was required to engage in mandatory sex offender treatment and other program requirements and chose to disregard them. Ultimately, he was terminated from Teen Triumph because of his noncompliance. The record thus amply supports the juvenile court's determination that D.H. willfully violated the terms of his probation by engaging in a pattern of misconduct which led to his termination from the group home, and thus, mandatory sex offender treatment.
D.H. challenges the court's preponderance of the evidence finding on several grounds, all unconvincing. He argues that the juvenile court was not qualified to opine on his willfulness and contends that the prosecution had to produce a psychologist who could opine on DH.'s ability to conform to group home requirements to establish willful misconduct. He also maintains that the evidence was insufficient to support the juvenile court's finding of willfulness because the prosecutor failed to prove that his conduct was truly intentional rather than an uncontrolled symptom of his ADHD.
We reject the notion that the juvenile court was not equipped to evaluate the willfulness of D.H.'s behavior. The court was not rendering an expert opinion. It was making a finding based on the evidence before it, a task routinely and competently undertaken by all courts. Nor was the prosecution required to introduce an expert to establish the purposefulness of D.H.'s actions. Such a rule would require expert testimony in virtually every criminal and juvenile proceeding to establish that apparently intentional behavior was, in fact, what it appeared to be. We conclude instead that, once the prosecution adduces evidence that the individual acted or failed to act in a prescribed manner, it is up to the defense to produce evidence negating willfulness. (See People v. Sorden (2005) 36 Cal.4th 65, 68-69, 72 (Sorden) [willful failure to register as sex offender may not be negated by evidence that the defendant " 'just forgot' " but evidence of an involuntary mental condition may, in certain circumstances, be presented by a defendant to negate the People's showing of willfulness]; see also In re R.V. (2015) 61 Cal.4th 181, 193 (R.V.) [in delinquency proceedings minors are presumed competent and the party asserting the minor's incompetency bears the burden of proof].)
Sorden is instructive. The defendant was convicted of willfully failing to update his sex offender registration in violation of section 290 of the Penal Code. He asserted in his defense that he was suffering from depression and consequently forgot to register. (Sorden, supra, 36 Cal.4th at pp. 68-70.) Our high court concluded that "the willfulness element of the offense may be negated by evidence that an involuntary condition—physical or mental, temporary or permanent—deprived a defendant of actual knowledge of his or her duty to register." (Id. at p. 69, italics added.) However, the court stressed that "[o]nly the most disabling of conditions . . . would qualify" such as "[s]evere Alzheimer's disease" or "general amnesia induced by severe trauma." (Ibid.) In concluding that the defendant's claimed depression did not satisfy this standard (id. at p. 69), the court reasoned: "There is no question but that he knew of his duty to register. He simply claimed his depression made it more difficult for him to remember to register. However, life is difficult for everyone. . . . It is simply not enough for a defendant to assert a selective impairment that conveniently affects his memory as to registering, but otherwise leaves him largely functional." (Sorden, at p. 72.)
By a similar analysis, D.H's disabilities were insufficient to negate the evidence that he was aware of what was required of him by both Teen Triumph and the juvenile court and willfully chose to disregard his legal and programmatic obligations. That his disabilities or medication regime may have made compliance more difficult does not make his misconduct any less intentional. In effect, D.H. asks us to reweigh the evidence and find that his ADHD rendered his conduct involuntary and unknowing, despite substantial evidence to the contrary. This we may not do.
Other authorities cited by D.H. are inapt, as they all involved situations where it was physically impossible for a probationer to comply with the conditions of probation due to external circumstances beyond the probationer's control. (People v. Cervantes (2009) 175 Cal.Ap.4th 291, 293 [probationer's failure to appear not willful because he was in the custody of immigration authorities]; People v. Galvan (2007) 155 Cal.App.4th 978, 983 [failure to report to probation officer because probationer was deported not willful]; People v. Zaring (1992) 8 Cal.App.4th 362, 375 [last-minute childcare problem which caused the defendant to appear 22 minutes late for a mandated hearing not willful violation].)
D.H. finally asserts that the trial court abused its discretion in finding a probation violation on these facts because he had been in treatment for years and was "technically done" with his program at Teen Triumph. Mostly finished, however, is not the same as successfully completed. This is not, as D.H. suggests, a mere technical transgression. Success in sex offender treatment has been his primary obligation since the inception of this matter, required by the court to further his rehabilitation and protect the community. We cannot conclude that the juvenile court abused its discretion in determining that the misconduct which led to D.H.'s termination from his sex offender treatment program at Teen Triumph was sufficiently egregious to support the revocation of his probation.
We need not devote much attention to D.H.'s meritless assertion that probation could not be revoked because Teen Triumph failed to accommodate his special needs as described in his IEP. Statutes requiring a "manifestation determination" for special education students apply to school suspensions, not group home terminations. (See Ed. Code, § 48915.5; 20 U.S.C. § 1415(k); R.V., supra, 61 Cal.4th at p. 208.) Assembly Bill No. 388, also cited by D.H., has no bearing on this matter as it applies only to group home misconduct by dependent minors. (See Stats. 2014, ch. 760, § 1 (Assem. Bill No. 388) (2014-2014 Reg. Sess.); § 241.1, subd. (b)(3)(B).)
5. Denial of the Motion to Dismiss Was Not an Abuse of Discretion
D.H. moved unsuccessfully to dismiss the probation violation hearing under section 782, offering an assortment of reasons why dismissal was warranted in the interests of justice. On appeal, D.H. presses two claims: (1) due process required dismissal of the probation violation because the available witnesses lacked sufficient recall of the facts, and (2) there was no rehabilitative value to adjudicating the stale probation violation allegations.
Section 782 provides, in pertinent part, that "[a] judge of the juvenile court in which a petition was filed may dismiss the petition, or may set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation." In wielding its dismissal power, " 'the juvenile court is not only authorized, but obligated, in carrying out its duties under the Juvenile Court Law, to weigh and consider both the interests of the juvenile and the interests of society.' " (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 1464, overruled on other grounds in In re Greg F. (2012) 55 Cal.4th 393, 415.) A determination pursuant to section 782 is subject to review for abuse of discretion. (Greg F., at p. 413.)
D.H. contends that due process required dismissal of the probation violation because available witnesses lacked sufficient recall of the pertinent facts. We disagree. Cognizant of the passage of time, the juvenile court allowed the parties to elicit hearsay from available witnesses and indicated it would give the evidence the weight it saw fit. (See § 777, subd. (c) [juvenile court may admit and consider reliable hearsay to establish a probation violation].) The court also took judicial notice of D.H.'s file, which included a copy of Teen Triumph's contemporaneous termination report detailing the misconduct that gave rise to his exit from the sex offender treatment program. D.H.'s probation officer West and social worker Foppiano testified directly about the termination decision and were cross-examined by defense counsel, who highlighted their lack of recall as to certain matters and the passage of time as reasons to discount their testimony. On this record, we see no indication that D.H. was unable to receive a fair hearing on his probation violation.
D.H. also asserts that there was no rehabilitative value in proceeding on the stale probation violation allegations given his age, the fact that he had nearly completed treatment and already served almost all of his five-year term of maximum confinement, and the limited time left for juvenile court jurisdiction. We address these contentions elsewhere in this opinion, particularly in our discussion of the court's dispositional order, post. Suffice to say that we see no abuse in the juvenile court's determination that dismissal was "[a]bsolutely not" appropriate. B. Dispositional Order
1. Additional Facts
At the dispositional hearing on December 4, 2017, D.H.'s attorney orally moved for a continuance, arguing she needed an expert appointed to adequately defend against the recommendation that D.H. be returned to DJJ. The prosecutor opposed the motion as untimely. She suggested that the vacated 2015 dispositional order be reinstated, putting D.H. in the same position he occupied prior to withdrawing his guilty plea. Reinstating disposition would place D.H. back under county supervision and require him to register as a sex offender. (See Pen. Code, § 290.008, subd. (a) [requiring wards committed to DJJ for specified sex offenses to register as sex offenders following discharge].) D.H.'s counsel instead urged the court to terminate D.H.'s probation as unsuccessful.
The juvenile court acknowledged that underlying counsels' argument was whether D.H. should be required to register as a sex offender. It denied D.H.'s continuance request. In addition to being untimely and not properly noticed, the court concluded that "yet another psychological evaluation" would not help the court in resolving this "narrow, narrow question." The court then denied D.H.'s request for an expert as moot and proceeded to disposition.
The court determined it could not reinstate its previous dispositional order and had to enter a new order. The court emphasized, however, that it was not proceeding in a vacuum. It took judicial notice of the entire file, including the testimony from the previous dispositional hearing and information regarding D.H.'s circumstances "between then and now," such as "what he has and hasn't done" at DJJ. The court explained its chosen disposition as follows:
"Now, this case is really quite simple. It really is. The reason—the primary reason that I previously ordered that he be sent to the Department of Juvenile Justice is because they have a state-of-the-art sex offender treatment program. And over all of the years that he's been on probation, he has not completed a sex offender treatment program. And I felt that this was his opportunity, if he could just complete that program, that he could get successfully terminated. But that hasn't happened.
"Now, the Appellate Court heard all about the last dispositional hearing, okay, and, well, all of that was upheld. The only reason it came back here was because at the time he made his admission, he was not advised that he would potentially have to register as a sex offender if he were sent to the Department of Juvenile Justice. Nothing else has changed other than that. Over the approximately year-and-a-half, a sex offender treatment program still has not been completed.
"My intention is that if—well, if he—if he's not going to complete a sex offender treatment program, if he has not done that, then I think it's appropriate that he register as a sex offender in order to protect the public.The court then continued D.H. as a ward of the juvenile court and committed him to DJJ for a maximum term of six years, one year longer than the maximum term it had imposed at the 2015 dispositional hearing, with credit for 1,818 days. The court opined that the "mental and physical condition and qualifications of [D.H.] are such as to render it probable that he will benefit from the reformatory, educational, discipline, and other treatment provided by the Department of Juvenile Facilities."
Now, I can't control what DJJ does or doesn't do in this situation, but I'm going to do what I believe is appropriate. And if that doesn't happen for whatever reason, for whatever practical reasons that DJJ might have or not have, I'm going to do what I can do."
2. The Court's DJJ Commitment Was Not an Abuse of Discretion
At dispositional hearings in wardship proceedings, the juvenile court is statutorily mandated to consider, "in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (§ 725.5; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329 (Robert H.) [juvenile courts must take into account " 'the broadest range of information' " when crafting its dispositional order.) The juvenile court expressly did so in this case, indicating it was considering D.H.'s entire file, including the evidence presented at the prior dispositional hearing and the former minor's circumstances since that time.
A decision committing a ward to DJJ may only be reversed on appeal upon a showing that the juvenile court abused its discretion. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Thus, "[a]n appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." (Ibid.) Given our deferential standard of review, we are not persuaded that an abuse of discretion occurred here.
We begin with the observation that, after previously reviewing the record in this matter in some detail, we determined that the juvenile court did not abuse its discretion when it committed D.H. to DJJ in 2015. (See D.H. II, supra, A145521.) In doing so, we rejected many of the arguments D.H. raises a second time here as to the propriety of a DJJ commitment. (Ibid.) In the intervening years since his first disposition, D.H. did not avail himself of sex offender treatment. DJJ discharge reports describe D.H. as an "inactive participant," reaching only step two of the seven-step program, despite the fact that he is "capable of completing a treatment program." Probation agreed that D.H. is capable of successfully completing a sex offender program but he has been unwilling to do so. D.H. "openly admitted that the programs were not difficult, they were all the same, and he had an understanding of what was expected of him." Probation remained "very much concerned" that D.H. had never completed a sex offender treatment program despite being given multiple opportunities to do so. It saw completion of such a program as "critical" to D.H.'s rehabilitation and for community safety. It thus believed it was "important" for D.H. to be required to register as a sex offender if he failed to complete treatment. The record thus amply supports the juvenile court's decision to return D.H. to DJJ so that he could either complete treatment or be required to register as a sex offender.
D.H.'s claims that there was no substantial evidence of probable benefit to him from a second commitment and that the commitment was "overwhelmingly punitive" are difficult to square with his longstanding intransigence to court-ordered treatment. Wards "under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of [the juvenile court law]." (§ 202, subd. (b); see id., subd. (d) ["[j]uvenile courts . . . charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor in all deliberations"].) As our high court has explained, "the delinquency system enforces accountability for the child's own wrongdoing, both to rehabilitate the child and to protect the public." (In re W.B. (2012) 55 Cal.4th 30, 46.)
Here, the juvenile court expressly found that this second commitment to DJJ was of probable benefit to D.H., and substantial evidence supports this finding. The primary reason for sending D.H. to DJJ in the first place was so that he could benefit from its state-of-the-art sex offender treatment program. Experts throughout these proceedings have uniformly concluded that D.H. would benefit from sex offender treatment, including the court appointed expert, Dr. Rokop. The order to attend such treatment thus serves a rehabilitative purpose, even if D.H. stubbornly opposed it. By requiring registration should D.H. fail to complete treatment, the juvenile court was also holding him accountable and protecting the public. As we previously found, less restrictive alternatives had been "tried and tried again," without success. (D.H. II, supra, A145521.) D.H. has failed to establish an abuse of discretion.
D.H. argues his commitment should be reversed because his IEP was not attached to the commitment order as required by section 1742. We need not address this contention, however, as we have since been informed that D.H.'s commitment to DJJ ended in August 2018, and his probation was successfully terminated in December 2019. Thus, any error in this regard is now moot. (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Cucamongans).)
3. Denial of Requests for a Continuance and for a Defense Expert
On November 9, 2017, D.H.'s attorney filed an ex parte application for appointment of a psychological expert to conduct an evaluation of D.H. for use at the disposition hearing scheduled for December 4. D.H.'s counsel asserted that a current psychological evaluation was necessary to show that DJJ was not an appropriate placement for D.H. and to determine whether he was at risk to reoffend and whether he would benefit from a second commitment. The court expressed concern about the amount of money requested, the need for such an evaluation, and the timeframe for preparing it. The court denied the ex parte request, stating that an adequate justification had not been presented, and it stressed that any continuance request would require a noticed motion. That same day, counsel filed an amended request for appointment of an expert which suggested two potential experts. Neither expert, however, would be able to complete the evaluation before the December 4 hearing. No motion for a continuance was filed.
As noted above, D.H.'s counsel made an oral request for a continuance at the December 4 hearing so that an expert could be retained. The court denied the continuance request and then rejected the request to appoint an expert as moot. D.H. now claims that these two decisions were error, depriving him of his constitutional rights to effective counsel and to present a defense. We disagree.
An indigent defendant has a right to ancillary services necessary to present a defense, such as expert witnesses. (Ake v. Oklahoma (1985) 470 U.S. 68, 76-77; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) The defendant bears the burden of showing that such services are reasonably necessary. (Corenevsky, at p. 320.) We review a trial court's denial of funding for abuse of discretion. (Id. at p. 321.) A request for a continuance in a juvenile wardship proceeding may only be granted upon a showing of good cause and its denial is similarly reviewed for abuse of discretion. (§ 682; In re Ernesto H. (2004) 125 Cal.App.4th 298, 315; see People v. Peoples (2016) 62 Cal.4th 718, 749 [" 'an order denying a continuance is seldom successfully attacked' "].)
We find no abuse of discretion in the denial of the unnoticed motion for a continuance or the denial of the request to appoint an expert. The juvenile court explained that yet another psychological evaluation was unnecessary to aid in its decision whether to commit the minor to DJJ a second time. The court had previously received extensive evidence regarding D.H.'s psychological needs and risk to reoffend and nevertheless concluded that commitment to DJJ was the best choice both for his rehabilitation and for the public welfare. The court was well informed with respect to D.H.'s circumstances while at DJJ under his first commitment, including his failure to engage meaningfully in sex offender treatment. It appears that the juvenile court's approach to disposition boiled down to giving D.H. one last chance to complete treatment at DJJ. Should he fail to do so he would be held accountable and the public would be protected by the requirement that he register as a sex offender upon discharge. The court thus determined that appointing an expert was not necessary and would unjustifiably delay the proceedings. We cannot say that the court's reasoning amounted to an abuse of discretion.
4. No Error in Increase of Maximum Term of Confinement
At the dispositional hearing, the juvenile court committed D.H. to DJJ for a maximum term of six years, an increase of one year from the maximum term ordered in the court's vacated 2015 dispositional order. D.H. argues this determination constitutes reversible error on grounds of double jeopardy and judicial vindictiveness.
"The 'protection against double jeopardy applies to juvenile offenders as well as to adults.' [Citation.] Jeopardy attaches in a juvenile delinquency proceeding 'when the first witness is sworn at the adjudicatory phase of the jurisdictional hearing.' " (In re Pedro C. (1989) 215 Cal.App.3d 174, 180; see In re Abdul Y. (1982) 130 Cal.App.3d 847, 856 [adjudicatory hearing is " 'one at which a minor is exposed to a finding of truth of allegations contained in a petition filed pursuant to [§ 602]' "].) However, "[m]odification of a dispositional order in the exercise of the court's continuing jurisdiction over a ward does not constitute double jeopardy." (In re Glen J. (1979) 97 Cal.App.3d 981, 987; see In re Steven S. (1999) 76 Cal.App.4th 349, 353; Pedro C., at p. 181.) Thus, no double jeopardy violation appears on this record.
D.H. nevertheless suggests that we apply a line of state constitutional precedent to reach a contrary result. It is well established at the federal level that a defendant may be subjected to increased punishment on retrial without raising double jeopardy concerns. (North Carolina v. Pearce (1969) 395 U.S. 711, 720-721 (Pearce).) However, " '[t]he rule . . . protecting defendants from receiving a greater sentence if reconvicted after a successful appeal [citations] is one instance where we have interpreted the state double jeopardy clause more broadly than the federal clause.' " (People v. Hanson (2000) 23 Cal.4th 355, 364 (Hanson); see People v. Henderson (1963) 60 Cal.2d 482, 496-497.) Moreover, our high court has suggested that this rule is also enforceable on state due process grounds. (Hanson, at p. 366.) Stated succinctly, Henderson and Hanson stand for the proposition that "the right of appeal from an erroneous judgment after trial is unreasonably impaired when a defendant is required to risk a harsher penalty to invoke that right." (People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 259 (Garcia), italics omitted.) D.H. argues that this rule should be applied to protect him from receiving a greater maximum term of confinement at his 2017 dispositional hearing than the one he received in his 2015 disposition.
It is not at all clear that the Henderson/Hanson line of authority is applicable to modifications of juvenile dispositions, given that "the purposes of adult imprisonment and juvenile confinement are entirely different." (In re A.G. (2011) 193 Cal.App.4th 791, 804.) Unlike adult criminal proceedings, the juvenile justice system is not concerned with deterrence or retribution. (Id. at p. 805.) Rather, juvenile court dispositional orders are designed " 'to serve the "best interests" of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward' " and to " 'provide for the protection and safety of the public.' " (Id. at pp. 804-805.) Such modifications are, if anything, more analogous to criminal orders revoking, modifying, or extending a probationary term, which are clearly permissible upon a finding of changed circumstances. (People v. Cookson (1991) 54 Cal.3d 1091, 1095 (Cookson); see, e.g., People v. Minor (2010) 189 Cal.App.4th 1, 11 [failure to complete sex offender treatment could constitute changed circumstances justifying extension of probation].)
Even if we were to find the Henderson/Hanson rule relevant to modifications of juvenile court dispositions, we would find it inapplicable on these facts. Hanson itself recognized that the rule "is otherwise when a defendant seeks to withdraw a guilty plea." (Hanson, supra, 23 Cal.4th at p. 360, fn. 2; see People v. Sutherland (1972) 6 Cal.3d 666, 667, 671-672 [where a conviction based upon a negotiated guilty plea is permitted to be withdrawn because of the trial court's failure to obtain constitutionally required waivers, "the ends of justice require that the status quo ante be restored"]; Garcia, supra, 131 Cal.App.3d at p. 258 ["[f]amiliar and basic principles of law reinforced by simple justice require that when an accused withdraws his guilty plea the status quo ante must be restored"].) Thus, the state constitutional concerns at play in Henderson and Hanson are not implicated by the challenged dispositional order in this case, which was a consequence of D.H.'s decision to withdraw his admission to the probation violation and have his first contested hearing on the matter.
We also reject D.H.'s contention that the increase in his DJJ maximum commitment term was impermissible judicial vindictiveness, meant to penalize him for his successful habeas corpus petition. Under federal law, "[a] trial judge is not constitutionally precluded . . . from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.' " (Pearce, supra, 395 U.S. at p. 723.) But due process requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." (Id. at p. 725.) Thus, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." (Id. at p. 726.) The stated reasons "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." (Ibid.) A presumption of vindictiveness is only applicable when there is "a 'reasonable likelihood' [citation] that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." (Alabama v. Smith (1989) 490 U.S. 794, 799.)
We conclude there is no reasonable likelihood that the juvenile court's disposition order was the product of actual vindictiveness. The juvenile court was clear in its reasons for committing D.H. to DJJ for an additional year. The court determined it was in D.H.'s best interest to complete a sex offender treatment program at DJJ. D.H.'s current commitment was scheduled to end one week after the dispositional hearing, and the additional year would allow D.H. more time to complete treatment. If D.H. refused to comply with the mandatory program, it was appropriate that he register as a sex offender as a matter of public safety. The court's decision was grounded in objective information from the record concerning D.H.'s pattern of behavior since the 2015 disposition, including his continuing failure to complete the sex offender treatment program despite multiple opportunities extended to him. Vindictiveness played no role in the juvenile court's disposition.
5. The Court Was Authorized to Enter Its Dispositional Order
D.H. claims that the juvenile court had no authority to increase his maximum term of confinement from the one originally imposed in 2015 because, under section 731, his sentence was required to be based on the facts and circumstances existing at the time of the original violation. We reject his interpretation of the statute. Subdivision (c) of section 731 provides that a juvenile court must set a maximum term of confinement when committing a ward to DJJ that does not exceed "the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense." The provision further states that the court must set the maximum term at or below this ceiling "based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (Ibid.) This broad language does not limit the juvenile court to consideration of only the facts and circumstances surrounding the specific probation violation at issue but encompasses all of the facts and circumstances of the section 602 "matter" as a whole. (See §§ 706, 725.5 [juvenile court shall consider "relevant and material evidence" at 602 disposition]; Robert H., supra, 96 Cal.App.4th at p. 1329 [juvenile court required to consider " 'the broadest range of information' " when crafting a dispositional order].) Thus, it was well within the juvenile court's discretion to consider D.H.'s current circumstances, including his previous commitment history at DJJ, when setting his maximum term of confinement at his 2017 dispositional hearing.
Since the juvenile court was not making its 2017 dispositional order based on the "same facts" as its vacated 2015 disposition, D.H.'s citation to Cookson, supra, 54 Cal.3d 1091, is inapposite. (See id. at p. 1095 [holding that a change in circumstances is required before a court has jurisdiction to extend a probationary term].)
D.H.'s additional argument—that after the juvenile court purportedly placed D.H. back on probation at the December 2017 dispositional hearing it lost jurisdiction to commit him to DJJ absent the filing of another noticed proceeding under section 777—is no more successful. At the conclusion of the dispositional hearing, the juvenile court misspoke, making several probation-related orders in addition to the orders committing D.H. to DJJ. However, what is abundantly clear from the record is that the juvenile court intended to recommit D.H. to DJJ at the dispositional hearing and did, in fact, do so. We do not believe these extraneous misstatements by the juvenile court somehow deprived it of fundamental jurisdiction to make its DJJ commitment order. (See § 775 [any order made by the juvenile court may be set aside at any time "as the judge deems meet and proper"].) Normally, we would strike the extraneous probation orders. (See In re Travis J. (2013) 222 Cal.App.4th 187, 202 ["[c]ommitment to DJJ deprives the juvenile court of any authority to directly supervise the juvenile's rehabilitation" and striking probation conditions].) However, as stated above, we are aware that D.H. is no longer subject to the juvenile court's December 2017 commitment order and was successfully terminated from probation in December 2019. We therefore disregard the error as moot. (Cucamongans, supra, 82 Cal.App.4th at p. 479.) C. Other Issues
1. The Court Did Not Err by Taking Judicial Notice of D.H.'s File
D.H. argues that the juvenile court violated his constitutional rights by taking judicial notice of matters not properly subject to such notice at the October 2017 combined probation violation hearing and hearing on D.H.'s motion to dismiss, and the dispositional hearing in December 2017. He asserts that the error was structural, requiring automatic reversal. We see no error, much less structural error.
Generally speaking, " 'courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.' " (In re Vicks (2013) 56 Cal.4th 274, 314.) However, special hearsay rules apply to juvenile wardship proceedings. The juvenile court may admit and consider reliable hearsay evidence at a probation violation hearing. (§777, subd. (c).) In addition, in making a dispositional order, the juvenile court is entitled to consider all evidence that is "relevant and material," including hearsay. (§§ 706, 725.5.) Thus, much of the juvenile court's file in this case was likely admissible in the various proceedings. Nevertheless, citing In re David C. (1984) 152 Cal.App.3d 1189, 1205 and In re Amber D. (1991) 235 Cal.App.3d 718, 724 (Amber D.), D.H. claims that taking judicial notice of his entire juvenile file was improper in and of itself. David C. and Amber D., however, stand for the proposition that, while a court may take judicial notice of the existence of each document in a court file, its ability to take judicial notice of the truth of facts asserted in those documents may be limited. (Amber D., at p. 724; David C., at pp. 1204-1205.)
The juvenile court was entitled to take judicial notice of the existence of the documents comprising D.H.'s entire file. There is no indication on this record, however, that the court noticed any particular fact contained in the file for its truth when it was not otherwise permitted to do so. To the contrary, the juvenile court was clearly aware of applicable law as it indicated it was authorized to consider reliable hearsay at the probation violation hearing and to give it the weight it saw fit. "On appeal, we presume the trial court performed its duties in a regular and correct manner absent a clear showing to the contrary." (Amber D., supra, 235 Cal.App.3d at p. 724; see People v. Crittenden (1994) 9 Cal.4th 83, 151-152 [a reviewing court assumes the trial court was not improperly influenced by inadmissible material, absent evidence in the record to the contrary].)
2. The Court Was Not Materially Misinformed
D.H. next contends that the juvenile court made numerous misstatements, invariably to his detriment. He claims that the court's misinformed views amounted to a due process violation because it failed to exercise informed discretion in finding the probation violation and making its dispositional order. It is true that " '[j]udicial discretion must be informed, so that its exercise does not amount to a shot in the dark.' " (People v. Filson (1994) 22 Cal.App.4th 1841, 1849, disapproved on another ground in People v. Martinez (1995), 11 Cal.4th 434, 452.) Our review of D.H.'s claims of error, however, does not persuade us that any alleged misstatement by the juvenile court was material or otherwise deprived the court of the ability to exercise informed discretion in this case. We certainly see no constitutional violation.
3. Counsel Was Not Ineffective
Finally, D.H. asserts several instances in the proceedings below in which he claims his counsel was prejudicially ineffective. The legal standard to show ineffective assistance of counsel is well established. D.H. must show both that counsel's performance was deficient and that the performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re M.V. (2014) 225 Cal.App.4th 1495, 1528 (M.V.) ["The due process right to effective assistance of counsel extends to minors in juvenile delinquency proceedings."]; see generally In re Kevin S. (2003) 113 Cal.App.4th 97.) " ' " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because [counsel's] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, [the defendant] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " ' " (People v. Vines (2011) 51 Cal.4th 830, 875-876, overruled on another point by People v. Hardy (2018) 5 Cal.5th 56, 104.)
There is a " 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation]. Defendant's burden is difficult to carry on direct appeal, as we have observed: ' "Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437; see People v. Weaver (2001) 26 Cal.4th 876, 926 [generally, "where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions"].)
D.H. first contends that his trial counsel was ineffective for failing to file a motion to continue the dispositional hearing and to press for a ruling on her application for an expert. We agree with appellate counsel that there appears to be no conceivable reason why trial counsel failed to file a written continuance motion, especially given the juvenile court's express instruction that one would be required. Thus, trial counsel's representation in this regard was deficient, falling below an objective standard of reasonableness. For the reasons discussed above, however, we do not find the error prejudicial. Although the juvenile court noted counsel's failure to file a noticed motion, the court concluded it would not grant the continuance because appointment of an expert would cause undue delay and was unnecessary for its resolution of the disposition. We are confident that, even if trial counsel had filed a written continuance motion or pressed for a ruling on her application for an expert, there is no reasonable probability that the result of the proceeding would have been any different.
D.H. also argues that his trial counsel was ineffective for failing to request funding for a psychological expert in connection with the probation violation hearing to assist her in arguing that his mental health issues created a defense to the alleged violation. It is true that, once D.H. withdrew his admission in August 2017, trial counsel initially indicated that she needed a defense expert to explore whether appellant's conduct was a symptom of his disability and therefore not willful. Although it expressed skepticism, the juvenile court requested briefing on the willfulness issue. While trial counsel provided some briefing on the IEP/manifestation hearing aspect of the willfulness question, she did not request funding for an expert or brief the question whether D.H.'s conduct in general was willful. As we discussed at length above, understanding the psychological underpinnings for certain behaviors is a far cry from concluding that D.H.'s disability deprived him of actual knowledge of his duty to attend sex offender treatment and comply with program expectations and therefore rendered his actions involuntary. Counsel may have tactically determined not to press for an expert on this issue because she recognized its dubious merit.
D.H.'s next assertion, that counsel was prejudicially ineffective for failing to object when the juvenile court indicated it was taking judicial notice of his entire file, must also be rejected. " '[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' " (People v. Lopez (2008) 42 Cal.4th 960, 972.) There are several tactical reasons why trial counsel might have failed to object on this basis. She might have believed that, overall, the material in the file was more helpful to her client than harmful. Or, realizing that much of the file was arguably admissible, especially at disposition, counsel may have concluded that any such objection was futile. Whatever the truth of the matter, since there are conceivable reasons for trial counsel's decision not to object, D.H.'s ineffective assistance claim fails.
Similarly without merit is D.H.'s argument that his trial counsel was ineffective for failing to seek reconsideration of the juvenile court's dispositional order once DJJ actually decided to accept D.H. back under the court's new order of commitment. According to D.H., DJJ's decision constituted a "changed circumstance" for purposes of section 778. We disagree. Much of the argument at disposition focused on the problem of attempting to return D.H. to DJJ given the lack of time left on his previously imposed maximum term of confinement of five years. The juvenile court resolved this issue by increasing the maximum confinement term by one year. Thus, while the court acknowledged it had no control over what DJJ might do, it fashioned a dispositional commitment order that it hoped would achieve its desired result—a DJJ commitment which would lead either to D.H.'s completion of sex offender treatment or to the requirement that he register as a sex offender. Filing a petition based on "changed circumstances" that coincided with the court's expectations would plainly have been an exercise in futility. (See People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile."].)
Finally, D.H. contends that his trial counsel was ineffective because she failed to devote sufficient time and resources to his case or move to substitute counsel who could do so. While there is ample evidence in the record that D.H.'s trial counsel was very busy—as are many attorneys in similar circumstances—trial counsel never stated that she was unable to defend D.H. based on time constraints and the record belies appellate counsel's contention that her representation was deficient. As the Attorney General points out, trial counsel filed numerous motions, including a motion to dismiss "presenting every imaginable legal theory," effectively cross-examined the witnesses at the probation violation hearing, and passionately argued against a true finding and in favor of dismissal. At the dispositional hearing, trial counsel successfully argued that the juvenile court could not simply reinstate its previous dispositional order. That she was unsuccessful in her request for an expert and a continuance does not make her incompetent.
Nor do we accept appellate counsel's assertion that, as her many arguments on appeal establish, "there was much that a properly prepared attorney could have argued on appellant's behalf." "[L]ack of merit provides a more than satisfactory explanation" as to why counsel did not press many of these arguments in the court below. (See M.V., supra, 225 Cal.App.4th at p. 1528.) It is clear that counsel—both trial and appellate—strongly believe that an injustice has been done to their client in this matter. And we share in counsel's dismay that much of what transpired to D.H. could have been avoided had he completed sex offender treatment in 2014. But however passionately they disagree with the trial court's determination, that does not make it error.
Section 781 provides a process for sealing juvenile court records when, after petition, the court determines that "rehabilitation has been attained to the satisfaction of the court." (§ 781, subd. (a)(1)(A).) The statute further provides that if a ward is subject to a sex registration requirement, an order sealing juvenile court records relieves the ward of his requirement to register. (Id., subd. (a)(1)(C).) We understand that D.H.'s juvenile court counsel has indicated that a motion pursuant to section 781 to relieve D.H. from the registration requirement may be forthcoming. This appears to be the appropriate forum for counsel to raise many of the arguments advanced here, unconstrained by our standard of review.
Since, after extensive consideration of this matter, we have found only a single nonprejudicial error in the proceedings below, there is obviously no error here to cumulate. (See People v. Ghobrial (2018) 5 Cal.5th 250, 293 [finding "no errors to cumulate and thus no possible cumulative prejudice that would have denied defendant a fair trial"].)
III. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P.J. /s/_________
Margulies, J.