Filed 5/10/16 In re D.M. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re D.M., a Person Coming Under the B260515
Juvenile Court Law. (Los Angeles County
Super. Ct. No. KJ30447)
THE PEOPLE,
Plaintiff and Respondent,
v.
D.M.,
Defendant and Appellant.
APPEAL from an order of the Juvenile Court of Los Angeles County,
Phyllis Shibata, Juvenile Court Referee. Affirmed.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
D.M. appeals from the juvenile court’s order finding him in violation of the
conditions of his probation and from a disposition order committing him to the Division
of Juvenile Justice. D.M. argues that the court deprived him of due process by amending
a notice of probation violation to add a ground not included in the original notice, and
then finding a violation on that ground. D.M. also argues that the court abused its
discretion and violated D.M.’s right to confront adverse witnesses at the probation
violation hearing when the court admitted and relied on hearsay evidence to find a
violation. D.M. further argues that his attorney provided ineffective assistance by failing
to object to the introduction of this hearsay evidence. We conclude that the court did not
violate D.M.’s due process rights because D.M. had sufficient notice of and an
opportunity to respond to the factual allegations of the probation violation, and that D.M.
did not receive ineffective assistance of counsel because any deficiency in his attorney’s
performance did not cause any prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Terms of D.M.’s Probation
When he was 14 years old, D.M. admitted to committing a forcible lewd act on
another child under the age of 14 (Pen. Code, § 288, subd. (a)), and on April 14, 2011 the
juvenile court declared him a ward of the court under Welfare and Institutions Code
section 602.1 The court placed D.M. home on probation subject to a number of
conditions, including cooperating with a treatment plan that included sex offender
counseling. Condition 1 of D.M.’s probation required him to “[o]bey all laws” and
“[o]bey all orders of the Probation Officer and of any court.” Condition 9 stated:
“Attend a school program approved by the Probation Officer. Maintain satisfactory
1 All undesignated statutory references are to the Welfare and Institutions Code.
2
grades and attendance, and citizenship. Promptly notify Probation Officer of every
absence.” Condition 26 required D.M. to “[c]ooperate in a plan for psychiatric,
psychological testing or treatment . . . to include sexual offender counseling.” The court
subsequently placed D.M. in a group home in Apple Valley, California.
In October 2012 D.M. admitted to molesting a child (Pen. Code, § 647.6, subd.
(a)(1)), and the court ordered continued placement in the same group home. In December
2013 D.M.’s probation officer recommended moving D.M. to a facility in Iowa that
offered a sexual offender program, after similar facilities in Southern California had
rejected him because of his mental health issues. D.M. moved to the Iowa facility on
December 17, 2013.
B. The Notices of Probation Violation
On June 11, 2014 the Probation Department filed a notice of violation pursuant to
section 777 alleging that D.M. had violated conditions 1 and 26 of his conditions of
probation, although the notice did not provide the text of those conditions. The notice
alleged three violations, including that D.M. “was reported to have been caught
‘grooming’ another resident . . . by brushing his foot against the other resident[’]s leg.”
D.M. returned to a juvenile facility in California pending a hearing on September 30,
2014. Probation Officer Miriam Lopez, a probation officer assigned to D.M., filed a
Probation Officer’s Report.
On September 30, 2014, before the hearing started, the Department filed another
section 777 notice alleging that D.M. had further violated conditions 9 and 26 of his
conditions of probation while in the juvenile facility in California. Like the June 11,
2014 notice, the September 30, 2014 notice did not provide the text of the conditions the
Probation Department alleged D.M. had violated. The September 30, 2014 notice alleged
in count 1 that on July 9, 2014 a search of D.M.’s room at the juvenile facility in
California revealed “pornographic material,” including “sexually explicit drawings of
anatomically correct women with genitals exposed as well as other drawings of animals
with female secondary sexual body parts engaging in sexually explicit acts.” Count 2
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alleged that D.M. had made threats during class on July 11, 2014 and was subsequently
“kicked out.”
C. The Hearing on the September 30, 2014 Notice of Violation
At the continued probation violation hearing on October 22, 2014, the court first
heard evidence regarding the September 30, 2014 notice. The detention service officer
who had searched D.M.’s room at the California juvenile facility testified that she
searched D.M.’s sleeping area and found “inappropriate” drawings of women and
animals displaying “secondary sexual characteristics of a woman,” including breasts and
vaginal areas, and cutouts of magazines of women in bathing suits. The officer testified
that minors were not allowed to possess such pictures or drawings.
On cross-examination, the officer testified that she found the pictures and
drawings “on [D.M.’s] bed and under his bed area, underneath the mat.” In response to
questioning by counsel for D.M. about the details of the pictures and “who tells the
minors that they’re not allowed to have such materials,” the detention officer stated that
the minors receive an orientation when they arrive at the facility and “they’re told certain
items that they can and cannot have. Throughout the course of their detainment, they’re
reminded of what they can and cannot have.” After counsel for D.M. asked a few more
questions, the court excused the witness and the People rested on that count. D.M. did
not present any evidence on the September 30, 2014 notice.
The court asked for argument on whether the evidence presented regarding the
September 30, 2014 notice proved D.M. had violated the terms of his probation. Counsel
for D.M. said she did not know if conditions 9 and 26 were “the most updated
number[s],” to which the court stated it “assum[ed], because [D.M.] had conditions of
probation that pre-dated the changeover to that other list, that [the numbers] would be
something else.” The court suggested that condition 9, which used to be “going to
school,” was now condition 2, but neither the court nor the parties identified the then-
current conditions of D.M.’s probation.
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Counsel for D.M. argued that the People had not presented evidence that D.M.
violated the conditions of probation alleged in the September 30, 2014 notice because
they did not show that he was not going to school (condition 9) or that he was not
cooperating with his treatment (condition 26). The People responded that part of D.M.’s
treatment was “to avoid and not possess pornographic material,” and that its possession
conflicted with “what he is allowed to do, both by probation or by order of the court.”
With respect to count 1, the court said, “I think the issue here is that you’ve picked
the wrong violations in terms of conditions. . . . I would think that the condition he is in
violation of is the condition that he follow the rules of probation, and I’ve heard
testimony that a probation representative told [D.M.] and other minors, ‘You’re not to
have these things,’ and that minors are reminded of this. So it’s not that what he did
doesn’t constitute a violation of some term of probation, the defense argument is that it
doesn’t constitute a violation of 9 and 26. And if you read what 9 and 26 are, it’s not the
current version, but what actually applied to [D.M.], I believe. They are going to school,
which would make sense for count 2, which you haven’t proven, and 26 is ‘cooperate in a
plan for counseling,’ which is very broad. [¶] So had you alleged [condition] 1, ‘Obey
all orders of probation,’ then it would seem that he would be in violation for not obeying
probation rules at the institution. So then the issue becomes whether the failure to specify
what conditions of probation he violated is defective and, therefore, he is not to be found
in violation of anything. So that is what I take the defense position to be.” The court
then asked if either party had any authority regarding whether the court could find D.M.
had violated the conditions of his probation by violating condition 1, and the court
continued the hearing to October 24, 2014. The People did not introduce any evidence
on count 2 of the September 30, 2014 notice regarding an incident that allegedly led to
D.M.’s dismissal from a classroom, and the court did not sustain that count.
When the hearing resumed on October 24, 2014, the People argued that D.M.
“was aware of the facts upon which the People were relying upon to allege the violation
of probation” in count 1 and that “the facts have not changed one bit.” Counsel for D.M.,
citing In re Johnny R. (1995) 33 Cal.App.4th 1579 (Johnny R.), argued that the People
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cannot “midway through proceedings, amend a petition and add additional counts.”
“There is a big difference between not following the school rules and violating a term of
the rules of juvenile hall. I don’t know what the terms of juvenile hall are. . . . Those
rules [were] not presented, so there was no way to have a defense to that. . . . So I still
don’t know what, exactly, was violated. . . . I never questioned the witness about the
rules, what was said to him, and it wasn’t even presented during the hearing.” The court
stated, “[Q]uite frankly, I don’t think anybody knew or paid attention to what those
conditions were until the end of the hearing, because if these were conditions that the
People and the defense knew of, then there probably wouldn’t be that question, ‘Well,
what’s condition 9? What’s condition 26?’ Both sides would have known what they
were as it applies to this minor.”
The court concluded that D.M. had notice “of what the violation was factually, and
then it appears that everyone didn’t give much thought to how that would constitute a
violation of some probation counts. And whether it was 9 or 26 or 1 or something else, I
think it was adequately described as to give the defense the notice as to the date, the
allegations that were supposed to have occurred, plus the factual foundation for what the
offense was.” The court ruled that Johnny R. was distinguishable because, unlike that
case, the People in this case had not added any additional counts or charges. The court
sustained count one, finding by a preponderance of evidence that D.M. had violated the
conditions of his probation by possessing sexually-explicit drawings after he had been
told “not to have this kind of material.”
D. The Hearing on the June 11, 2014 Notice of Violation
The court also conducted the hearing on the June 11, 2014 notice on October 24,
2014. Probation Officer Miriam Lopez testified that during a March 2014 visit to the
Iowa facility, she was “informed that [D.M.] was grooming other minors,” which meant
“trying to become friends with other kids . . . to . . . have sexually-related . . . interactions
with them.” Counsel for D.M. made a foundation objection regarding the definition of
“grooming other minors,” but she did not make a hearsay objection. The court admitted
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the testimony subject to a motion to strike, and the prosecutor asked Lopez what
“grooming” meant. Lopez explained that she became familiar with the term more than
nine years ago and that “grooming” is “a very known term in . . . sexual offender
programs.” The court then overruled counsel for D.M.’s renewed foundation objection.
The People elicited further testimony from Lopez on the reported grooming
incidents in Iowa without objection. Lopez testified that she “was informed that [D.M.]
was sitting down and began to brush his foot against the leg of another minor who was 14
at the time.” Lopez referred to another grooming incident that occurred before March
2014. She testified that D.M. knew he was not permitted to engage in activities like
grooming because she had instructed him “not to do anything of a sexual nature.”
Counsel for D.M. did not ask Lopez any questions on cross-examination about the
grooming incident. Instead, she focused her questions on D.M.’s progress in therapy, his
willingness to open up about his sexual behaviors and past abuse, and his positive
interactions and experiences with the Iowa facility’s staff and residents. During her
cross-examination, counsel for D.M. asked Lopez a number of questions about the Iowa
facility’s 180-day progress report, which was part of Lopez’s Probation Officer’s Report,
which had been filed on June 11, 2014. On re-direct examination, the prosecutor asked
Lopez a series of questions about her report and the progress report from the Iowa
facility. The court received Lopez’s report, including the Iowa progress report, without
objection by counsel for D.M.
On October 29, 2014 the court found true the allegation that D.M. engaged in
impermissible sexual conduct by grooming another resident. The court found not true the
remaining allegations in the June 11, 2014 notice.
E. The Disposition Hearing
At the disposition hearing on November 25, 2014 the People argued that the court
should commit D.M. to a more restrictive setting with the Department of Juvenile Justice.
D.M. argued that the court should return him to the Iowa facility to continue his treatment
there. The court agreed with the People, finding that “[n]ow that [D.M.] is 18 . . . the best
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program for [him]” was the Department of Juvenile Justice facility in Stockton,
California. The court discussed the factors it had weighed in reaching this conclusion,
including “public safety, other minors, other people versus rehabilitative opportunity for
[D.M.] and the likelihood of rehabilitation in this placement setting.” The court also
acknowledged that it would be easier for D.M.’s father to visit him in Stockton than in
Iowa. The court set the maximum term of confinement at eight years and eight months,
and awarded 625 days of credit. D.M. timely filed a notice of appeal.
DISCUSSION
A. Standard of Review and Section 777
The juvenile court has discretion to modify disposition orders that have not
succeeded in rehabilitating the minor. (§§ 775, 777; In re Eddie M. (2003) 31 Cal.4th
480, 489.) Section 777 allows the court to modify a placement order when the court finds
that the minor has violated a condition of his or her probation not amounting to a crime.
(§ 777, subd. (c).)2 “[T]he determination whether to revoke probation is committed to
the sound discretion of the court.” (In re Kevin F. (2015) 239 Cal.App.4th 351, 362.)
Section 777 requires a probation officer or prosecutor to provide notice of an
alleged violation of a condition of probation containing “a concise statement of facts
sufficient to support this conclusion.” (§ 777, subd. (a)(2); see In re Greg F. (2012) 55
Cal.4th 393, 405 [“a probation violation procedure is initiated under section 777 by the
filing of a notice”].) “The facts alleged in the notice shall be established by a
2 Section 777 provides in relevant part: “An order changing or modifying a
previous order by removing a minor from the physical custody of a parent, guardian,
relative, or friend and directing placement in a foster home, or commitment to a private
institution or commitment to a county institution, or an order changing or modifying a
previous order by directing commitment to the Youth Authority shall be made only after
a noticed hearing.” The Youth Authority is also referred to as the Division of Juvenile
Facilities (§ 1703, subds. (c), (d)), and the Director of the Youth Authority is now the
Director of the Division of Juvenile Justice. (§ 1711.)
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preponderance of the evidence at a hearing to change, modify, or set aside a previous
order.” (§ 777, subd. (c); see In re Eddie M., supra, 31 Cal.4th at p. 485; In re D.J.
(2010) 185 Cal.App.4th 278, 284.)
B. The Court Did Not Violate D.M.’s Due Process Rights by Finding a
Violation Based on the September 30, 2014 Notice
D.M. argues that the juvenile court deprived him of his rights to due process and
to present a defense by “permitt[ing] the prosecution to amend the September 30, 2014,
section 777 notice to add a probation term not initially listed on the notice as one [D.M.]
had violated.” He argues that the “amendment foreclosed [his] ability to defend himself
in the contested probation revocation hearing, because he was deprived of notice of the
charge made against him.”
The provisions in the Code of Civil Procedure relating to variance and amendment
of pleadings in civil actions apply to juvenile proceedings and petitions, so long as those
provisions comport with due process. (§ 678; see In re Man J. (1983) 149 Cal.App.3d
475, 480-481; Cal. Rules of Court, rule 5.524(d); see also In re Andrew L. (2011) 192
Cal.App.4th 683, 688-689 (Andrew L.) [applying the provisions in the Code of Civil
Procedure governing the amendment of pleadings to conform to proof to dependency
proceedings under § 348)].)3 “[T]he essence of due process is actual notice and a
‘meaningful opportunity’ to be heard.” (In re Brian K. (2002) 103 Cal.App.4th 39, 42;
see In re Donnell L. (1989) 212 Cal.App.3d 185, 192 [“the purpose of the requirement of
notice as prescribed in section 777 is to protect the minor’s constitutional right to due
process”].)
3 Section 348, which addresses hearings in dependency cases, uses language
identical to the language of section 678. It provides that “provisions of . . . the Code of
Civil Procedure relating to variance and amendment of pleadings in civil actions shall
apply to petitions and proceedings under this chapter, to the same extent and with the
same effect as if proceedings under this chapter were civil actions.”
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Two sections of the Code of Civil Procedure authorize a court to amend or permit
amendments to pleadings. First, Code of Civil Procedure section 473, subdivision (a)(1),
provides that a court may allow an amendment to a pleading to correct a mistake. (See
Andrew L., supra, 192 Cal.App.4th at p. 689.) Code of Civil Procedure section 473,
subdivision (a)(1), provides, in relevant part: “The court may . . . in its discretion, after
notice to the adverse party, allow, upon any terms as may be just, an amendment to any
pleading . . . .” Second, Code of Civil Procedure section 469 liberally allows
amendments to pleadings to conform to proof unless they are “material.”4 (Code Civ.
Proc., § 469; see Andrew L., at p. 689.) A material variance is one that actually misled
the adverse party to his or her prejudice in maintaining his or her action or defense on the
merits. (Code Civ. Proc., § 469; see Duchrow v. Forrest (2013) 215 Cal.App.4th 1359,
1378 (Duchrow).) “The basic rule from civil law . . . is that amendments to conform to
proof are favored, and should not be denied unless the pleading as drafted prior to the
proposed amendment would have misled the adversarial party to its prejudice.” (In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1042.) A court should refuse an amendment to
conform to proof if the variance between the pleading and proof is so great that it would
violate due process to allow the amendment. (Andrew L., at p. 689; In re Jessica C., at
pp. 1041-1042.)
In deciding whether to allow an amendment during trial, courts are guided by two
general principles: “‘“(1) whether facts or legal theories are being changed and (2)
whether the opposing party will be prejudiced by the proposed amendment. Frequently,
each principle represents a different side of the same coin: If new facts are being alleged,
prejudice may easily result because of the inability of the other party to investigate the
validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If
the same set of facts supports merely a different theory . . . no prejudice can result.”’”
4 The court may even allow “material” amendments “upon such terms as may be
just.” (Code Civ. Proc., § 469.)
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(Duchrow, supra, 215 Cal.App.4th at p. 1378; see Garcia v. Roberts (2009) 173
Cal.App.4th 900, 910.) “‘“The basic rule applicable to amendments to conform to proof
is that the amended pleading must be based upon the same general set of facts as those
upon which the cause of action or defense as originally pleaded was grounded.”’”
(Duchrow, at p. 1378; Garcia, at p. 910.)
The September 30, 2014 notice alleged that D.M. violated certain terms of his
probation by possessing “sexually explicit drawings of anatomically correct women with
genitals exposed as well as other drawings of animals with female secondary sexual body
parts engaging in sexually explicit acts.” In finding this allegation true, the court did not
amend the notice to add any facts beyond the scope of those included in the original
notice. The court only identified the correct condition D.M. violated by possessing the
contraband materials.
D.M. was not prejudiced by the amendment because he had a full opportunity to
challenge the Department’s factual allegations. Counsel for D.M. questioned the
probation officer who conducted the search of D.M.’s room and found the pictures and
drawings, and asked the officer where she found the items and how D.M. would know he
was not allowed to have them. D.M. also had the opportunity to present evidence
regarding the September 30, 2014 notice, although he chose not to do so.
D.M. argues he was misled by the variance between the original and amended
notices because he would have prepared his defense differently had the original petition
referenced condition 1 instead of condition 26. As the juvenile court observed, however,
during the hearing neither side paid much attention to the specific conditions identified in
the September 30, 2014 notice. Instead, counsel for D.M. and the prosecutor attempted
to prove or disprove the factual allegations in the notice. There is nothing in the record to
suggest that D.M. would have prepared his defense differently had the original notice
referenced condition 1. Under these circumstances, D.M. did not suffer any prejudice
when the court effectively amended the September 30, 2014 notice to reference condition
1 instead of condition 26. (See Urke, supra, 197 Cal.App.4th at p. 775 [no prejudice
where defendant had notice of the factual basis for probation revocation]; In re
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Jessica C., supra, 93 Cal.App.4th at p. 1042 [no prejudice where “basic allegation” was
included in original petition]; In re Man J., supra, 149 Cal.App.3d at p. 481 [no prejudice
where section 602 petition was amended but the “nature of the charge remain[ed]
unchanged”].)
Citing In re Babak S. (1993) 18 Cal.App.4th 1077 (Babak), D.M. argues that a
section 777 notice must “identify the specific probation violation the minor is alleged to
have committed.” The court in Babak, however, held only that a court’s order sustaining
an allegation in a section 777 notice must be based on “the theory articulated by the
People” in the notice. (Babak, supra, 18 Cal.App.4th at p. 1086.) The September 30,
2014 notice specifically alleged that D.M. had violated his probation by possessing
sexually-explicit materials, which was the “theory” the People proved. (See Urke, supra,
197 Cal.App.4th at p. 775 [distinguishing Babak because the original petition specifically
alleged the factual basis for the probation violation proven in court].)
D.M.’s reliance on Johnny R., supra, 33 Cal.App.4th 1579, is also misplaced. In
that case, the court held that amending a section 602 petition to add a count of possession
of a dirk or dagger after completion of direct examination of the prosecution’s principal
witness violated the juvenile’s right to due process. (Id. at pp. 1584-1585.) The court
reasoned that “the minor had never been put on notice of a need to defend against the
weapons charge.” (Id. at p. 1584.) Here, D.M. was on notice that he needed to defend
against a charge of possessing sexually-explicit materials.
Moreover, Johnny R. concerned criminal charges alleged in a petition under
section 602, not allegations of non-criminal probation violations under section 777.
Amending a section 602 petition during a contested hearing is appropriate only if a new
criminal offense is “‘necessarily included’” in the offense actually charged or is a lesser
included offense pleaded in the charging allegations. (In re A.L. (2015) 233 Cal.App.4th
496, 500; see In re Robert G. (1982) 31 Cal.3d 437, 445.) D.M. has not cited any
authority for the proposition that this heightened standard for amendments of section 602
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petitions applies to amendments of a section 777 notice.5 In addition, unlike the minor in
Johnny R., D.M. has not carried his burden of showing how the amended notice
prejudiced him. (See Johnny R., supra, 33 Cal.App.4th at pp. 1584-1585 [observing that
the defense strategy may have been different had the original section 602 petition
included the additional charge ultimately sustained by the court].) As the juvenile court
here noted, neither side’s arguments hinged on the language of the probation conditions
identified in the notice, and D.M. never disputed that he possessed sexually-explicit
materials or that the terms and conditions of his probation precluded him from possessing
such materials.
C. Any Error in the Admission of Hearsay During Lopez’s Testimony
Was Harmless, and the Failure by Counsel for D.M. To Object Was Not
Ineffective Assistance of Counsel
D.M. argues that the juvenile court erred by admitting Lopez’s testimony about
D.M. “grooming” another resident in the Iowa facility and that this error violated D.M.’s
due process right to confront witnesses. Because D.M. did not assert a hearsay objection
to the admission of Lopez’s testimony, however, he has forfeited the argument. (See
Evid. Code, § 353, subd. (a); People v. Stevens (2015) 62 Cal.4th 325, 334 [defendant
forfeited argument evidence was inadmissible hearsay by failing to object at trial]; People
v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeited federal confrontation clause
argument by failing to raise it at trial].)
Moreover, even though certain “reliable hearsay” is admissible in section 777
proceedings (§ 777, subd. (c); John L. v. Superior Court (2004) 33 Cal.4th 158, 165;
Cal. Rules of Court, rule 5.580(e)(1)), any error in admitting Lopez’s testimony about the
5 Unlike a section 602 petition, a notice under section 777 cannot allege a criminal
offense and does not “‘involve criminal guilt’” or “‘“stigma.”’” (In re J.L. (2008) 168
Cal.App.4th 43, 59; compare § 777, subd. (c) [preponderance standard applies to section
777 notices] with In re Greg F., supra, 55 Cal.4th at p. 404 [“[o]ffenses alleged in [a] 602
petition must be proven true ‘beyond a reasonable doubt’ and be ‘supported by
evidence[ ] legally admissible in the trial of criminal cases’”].)
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grooming incident was harmless because essentially the same facts came into evidence
when the court admitted Lopez’s Probation Officer’s Report without objection. As noted,
Lopez’s report included the progress report from the Iowa facility, which stated in several
places that D.M. had groomed other residents. (See People v. Bryant (2014) 60 Cal.4th
335, 414-415 [error in admitting hearsay statement was harmless because statements by
another witness that “conveyed the same information” were “properly admitted”]; People
v. Riccardi (2012) 54 Cal.4th 758, 804 [error in admitting hearsay evidence was
“substantially mitigated by other admissible evidence”].)
D.M. also argues that his attorney’s failure to object constituted ineffective
assistance of counsel. A minor’s right to due process in juvenile delinquency
proceedings includes the right to the effective assistance of counsel. (Elijah W. v.
Superior Court (2013) 216 Cal.App.4th 140, 150, fn. 5.) “‘In assessing claims of
ineffective assistance of trial counsel, we consider whether counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms and
whether the defendant suffered prejudice to a reasonable probability, that is, a probability
sufficient to undermine confidence in the outcome.’” (People v. Gamache (2010) 48
Cal.4th 347, 391.) An appellate court will reverse a conviction (or, as here, a probation
violation finding) on direct appeal only when the record demonstrates there could have
been no rational tactical purpose for counsel’s challenged act or omission. (Ibid.; see
People v. Anderson (2001) 25 Cal.4th 543, 569.) It is not necessary, however, to
determine “‘whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.’” (In re Fields (1990) 51
Cal.3d 1063, 1079; see People v. Carrasco (2014) 59 Cal.4th 924, 982; People v. Mesa
(2006) 144 Cal.App.4th 1000, 1008.) Prejudice results only where there is a reasonable
probability that, absent counsel’s alleged error, the defendant would have received a more
favorable result. (In re Champion (2014) 58 Cal.4th 965, 1007; Gamache, at p. 391.)
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D.M. argues that his attorney provided ineffective assistance by failing to object to
the admission of hearsay testimony by Lopez. Even if counsel’s performance was
deficient, however, it did not prejudice D.M. because the court admitted essentially the
same evidence when it admitted Lopez’s report, which, as noted, included the Iowa
facility’s progress report stating that D.M. had groomed other residents. Because D.M.
did not suffer prejudice as a result of his attorney’s failure to object to Lopez’s testimony,
his ineffective assistance of counsel argument fails, and we do not consider whether his
attorney’s decision was a reasonable tactical choice. (See In re Fields, supra, 51 Cal.3d
at p. 1079.)
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
ZELON, Acting P. J.
BLUMENFELD, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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