Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 510162, Linda A. McFadden, Judge.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Levy, J. and Hill, J.
INTRODUCTION
Appellant, E.A., contends the juvenile court failed to refer him for an assessment to determine whether he should have been treated as a dependent, rather than a ward, of the court. We will affirm the judgment.
PROCEEDINGS
On November 14, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant committed misdemeanor petty theft (Pen. Code, § 484, subd. (a), count one), and misdemeanor battery (Pen. Code, § 242, count two). On December 26, 2008, a second petition was filed with new allegations that appellant committed misdemeanor battery (count one), misdemeanor possession of cigarettes (Pen. Code, § 308, subd. (b), count two), and felony possession of a dirk (Pen. Code, § 12020, subd. (a), count three). !(
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On January 21, 2009, appellant waived his rights and as to the first petition admitted he committed misdemeanor battery. As to the second petition, appellant admitted possession of cigarettes and misdemeanor possession of a dirk. The remaining allegations were dismissed. At the disposition hearing on February 10, 2009, the court found appellant to be a ward of the court, placed him on probation, and released him to the custody of placement personnel. Appellant was to be detained in juvenile hall pending placement.
On September 23, 2008, a Modesto police officer assigned to the Petersen Alternative Education Center saw appellant punch another student in the face with his right fist.
On December 5, 2008, two police officers saw a group of males, including appellant who were on probation. Appellant admitted he was on probation. The officers verified appellant’s probation status. When asked if he had any weapons, appellant admitted he was carrying a knife. The knife had buttons that triggered a two and one-half inch blade. On December 9, 2008, officers investigating a fight near the high school saw appellant in possession of cigarettes.
The court noted that appellant’s parent or guardian was not able to provide proper maintenance and support for him. The court found continuance in appellant’s family home was contrary to his welfare. The court ordered temporary custody with the probation department. The court ordered that placement priority should begin with relatives, if none were suitable, then to foster care. If no foster care was available, appellant could be placed in group care and then to residential treatment.
The probation officer’s report noted that appellant’s mother has a lengthy criminal record. In August 2007, the mother’s probation was revoked and she was sentenced to prison for 16 months. In August, the mother was also convicted of felony petty theft. In November 2007, appellant’s mother was convicted of felony grand theft. In February 2008, appellant’s mother was convicted again of felony petty theft and sentenced to prison. Appellant’s mother was released on parole in October 2008. The mother’s parole was suspended and was, at the time of the preparation of appellant’s probation report, an at-large parolee.
Appellant’s father’s whereabouts were unknown. Appellant believed his father resided in Colima, Mexico. Appellant had seen his mother a few times since her release on parole. Appellant had been residing with his aunt, D.R., for the previous two years.
Appellant had previously resided with his adult sister, E.R. In August 2007, appellant had been placed with E.R., but had to leave when E.R.’s landlord threatened to evict her. Appellant then resided with D.R., who was attempting to obtain a guardianship of appellant. E.R. could not care for appellant. D.R., who apparently had a temporary guardianship for appellant, could also no longer care for him.
The probation officer’s report noted that a referral to Child Protective Services was considered, but found to be inappropriate under the present circumstances. The probation officer recommended that appellant be removed from the custody of his parents and guardian and be ordered into suitable out-of-home placement. A transitional independent living plan was prepared for appellant by the probation department.
DISCUSSION
Appellant contends the juvenile court erroneously disposed of this case as a delinquency proceeding without considering the fact he was potentially a dual status minor under both sections 300 and 602. He asserts the failure to make the analysis required by section 241.1 requires reversal of the juvenile court’s orders. We disagree because appellant failed to object in the juvenile court to proceeding without a section 241.1 report, thus, the issue is deemed waived.
Section 241.1 provides, in relevant part:
A minor who is a section 300 dependent converts himself or herself into a minor alleged to come within section 602 by acting in a criminal manner. When the potential for dual jurisdiction arises, the juvenile court presented with the second petition shall make the necessary determination as to whether to proceed under section 300 or section 602. (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 320, 324-325 (Los Angeles County Dept. of Children & Fam. Services.).) The court in which the first petition was filed is not empowered to make this determination under the statute. (In re Marcus G. (1999) 73 Cal.App.4th 1008, 1012-1013 (Marcus G.).) There is nothing in section 241.1, or cases interpreting this section, to indicate that a juvenile court is deprived of jurisdiction until a section 241.1 assessment is prepared. On the contrary, the cases expressly note that under circumstances which would invoke section 241.1, juvenile courts have dual jurisdiction.
Further, both the court and defense counsel were well aware of appellant’s status. For the first time on appeal, appellant asserts the dispositional order was erroneous because in cases of dual status, a juvenile is statutorily entitled to the filing of an assessment report prepared by dependency social workers as well as reports filed by probation officers.
Any statutory entitlement to another social study, which appellant clearly could have sought in the juvenile court, has now been waived. With respect to adult offenders, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. (People v. Welch (1993) 5 Cal.4th 228, 234-238; People v. Scott (1994) 9 Cal.4th 331, 353-355; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1685, fn. 8.) Sentencing waiver principles are fully applicable to juvenile dispositional hearings. (In re Josue S. (1999) 72 Cal.App.4th 168, 172-173; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 536-537; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971.)
Numerous courts have applied the waiver rule in instances where there has been a failure to object to the adequacy of, or lack of, various assessment reports in juvenile proceedings. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain assessment report required by § 366.26, subd. (b)]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request bonding study]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to adequacy of assessment].)
Appellant contends Marcus G., supra, 73 Cal.App.4th 1008 and Los Angeles County Dept. of Children and Fam. Services, supra, 87 Cal.App.4th 320 compel a different result. Although Marcus G. is authority for the requirement of an assessment, the case does not address the need for a proper and timely objection to preserve the issue for appeal. In our view, the failure to object at the dispositional hearing waives a claim of error relating to section 241.1.
Neither does Los Angeles County Dept. of Children and Fam. Services compel a different result. In that case, a section 241.1 report was submitted to the juvenile court, yet that court continued the proceedings countless times over a period of 21 months for further input prior to making a determination as to whether to proceed under section 300 or section 602. The appellate court granted the petition for writ of mandate to require the juvenile court to make an expeditious determination of status and proceed to disposition. (Los Angeles Dept. of Children and Fam. Services, supra, 87 Cal.App.4th at p. 326.) There, unlike the instant action, the issue had not been waived but was actively pursued by the parties.
Appellant also cites to the recent case of D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1123-1129. That case, however, did not present the issue of waiver procedurally present in the instant action.
Appellant’s counsel was well aware of appellant’s domestic status, which was explained in the probation officer’s report. Counsel nevertheless failed or declined to interpose any timely objection to the absence of the social services department’s recommendation under section 241.1. Thus, to the extent a section 241.1 report was required, we deem this issued waived on appeal.
Appellant argues the facts presented in the probation officer’s report and a social worker’s letter suggest he would have been more fairly treated as a dependent child, which should have triggered the duty of the court under section 241.1 to order a joint assessment. We reject the contention that section 241.1 creates a sua sponte duty in the juvenile court to initiate or to order a section 241.1 report.
In light of our ruling, we do not reach respondent’s argument that failure to prepare a section 241.1 report was harmless error.
DISPOSITION
The judgment of the juvenile court is affirmed.
“(a) Whenever a minor appears to come within the description of both Section 300 and Section 601 or 602, the county probation department and the child welfare services department shall, pursuant to a jointly developed written protocol described in subdivision (b), initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor. Any other juvenile court having jurisdiction over the minor shall receive notice from the court, within five calendar days, of the presentation of the recommendations of the departments. The notice shall include the name of the judge to whom, or the courtroom to which, the recommendations were presented.
“(b) The probation department and the child welfare services department in each county shall jointly develop a written protocol to ensure appropriate local coordination in the assessment of a minor described in subdivision (a), and the development of recommendations by these departments for consideration by the juvenile court. These protocols shall require, which requirements shall not be limited to, consideration of the nature of the referral, the age of the minor, the prior record of the minor's parents for child abuse, the prior record of the minor for out-of-control or delinquent behavior, the parents' cooperation with the minor's school, the minor's functioning at school, the nature of the minor's home environment, and the records of other agencies that have been involved with the minor and his or her family. The protocols also shall contain provisions for resolution of disagreements between the probation and child welfare services departments regarding the need for dependency or ward status and provisions for determining the circumstances under which a new petition should be filed to change the minor's status.
“(c) Whenever a minor who is under the jurisdiction of the juvenile court of a county pursuant to Section 300, 601, or 602 is alleged to come within the description of Section 300, 601, or 602 by another county, the county probation department or child welfare services department in the county that has jurisdiction under Section 300, 601, or 602 and the county probation department or child welfare services department of the county alleging the minor to be within one of those sections shall initially determine which status will best serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court in which the petition is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor. In making their recommendation to the juvenile court, the departments shall conduct an assessment consistent with the requirements of subdivision (b). Any other juvenile court having jurisdiction over the minor shall receive notice from the court in which the petition is filed within five calendar days of the presentation of the recommendations of the departments. The notice shall include the name of the judge to whom, or the courtroom to which, the recommendations were presented.
“(d) Except as provided in subdivision (e), nothing in this section shall be construed to authorize the filing of a petition or petitions, or the entry of an order by the juvenile court, to make a minor simultaneously both a dependent child and a ward of the court.”