In re C.R.

Filed 11/14/08 In re C.R. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

C.R. appeals from a judgment granting him probation after he admitted misdemeanor battery (Pen. Code,  242, 243, subd. (a)) as charged in count one of an original wardship petition (Welf. & Inst. Code,  602, subd. (a)). His appellate counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. C.R. was informed of his right to file a supplemental brief, but he elected not do so.

C.R. was 17 years old at the time of this March 29, 2008, offense and all ensuing court proceedings.^[1] The incident also fueled a count for misdemeanor obstruction of an officer (Pen. Code,  148, subd (a)(1)) that was ultimately dismissed in a negotiated disposition. C.R. had no prior record. The incident occurred at a Bay Point home he shared with his mother, stepfather, 18-year-old brother, and three-year-old half sister.

That afternoon, officers were dispatched to the home on a domestic disturbance report and arrived to find C.R. sitting atop his brother, punching him as the stepfather tried to pull him off. C.R. complied when ordered by an officer to stop but then pulled away when taken by the arm, and was thereafter detained in handcuffs. The brother told the officer that he was sleeping when he heard C.R. arguing with their mother. Knowing that C.R. had violent tendencies, the brother called the police to report the altercation, and C.R., seeing that he had called, began punching him in the face. C.R. admitted punching and kicking his brother in anger over the call. He was cited for misdemeanor battery, booked into juvenile hall and, assisted by counsel at a detention hearing on April 3, denied the charges and was released to his mother on home supervision.

On April 29, C.R. admitted as true the count one battery in exchange for dismissal of the second count, his counsel stipulating to a factual basis. The court accepted C.R.s admission as voluntary, knowing and intelligent, after advisement and waivers of his constitutional rights against self-incrimination, to trial, to present evidence and witnesses, and to confront and cross-examine witnesses. The court also advised C.R. that he would be subjecting himself to potential confinement for six months, victim restitution, and a code prohibition against owning or possessing firearms until age 30. Count two was dismissed, and the court granted, over the Peoples opposition, a defense request to terminate home supervision pending disposition. Progress reports showed that C.R. had been drug-free and attending school, and C.R.s mother confirmed for the court that she felt comfortable about the termination, and that the brothers had been getting along. C.R. stated that he and his brother never really fight, except for the incident. The court warned C.R. that he could not possess weapons, had to have only peaceful contact with his brother and others, and would have to follow other terms of probation. C.R. waived time, and the disposition hearing was set for June 3.

The report prepared for disposition recommended wardship with probation and release to the mothers home. C.R. was a sophomore at a high school where he was earning mostly As and Bs, having brought his grades up from Ds and Fs since transferring from another school. He had no disciplinary record at either school, played on the football team, hoped to gain a college football scholarship, and had dramatically improved his attendance and tardiness record since being released from juvenile hall. In an interview with probation, he explained that, on the afternoon of the fight, he had argued with his mother because she could not pick him up from a friends house after he returned from a trip. He said he fought with his brother all the time but usually not physically, and this was the first time the police had been involved. He and his brother were over it now, and they got along well. He reported great relationships with his mother and stepfather, attending church, working at a Banana Republic store over the Christmas holiday, and now trying to get a summer job. He denied trouble managing his anger yet conceded past problems controlling his temper and, when younger, punch[ing] holes in the wall. Now, when angry, he preferred to keep to himself and not talk to anyone. He conceded using marijuana and alcohol since the ninth grade and thrice‑monthly use of marijuana until the week before this incident. He denied having an alcohol problem but conceded drinking every month or two (typically a 40 oz. beer), and having thrown up twice (but never blacked out) from drinking.

C.R.s mother, when asked how probation could help her son, said that being on home supervision had helped him improve his behavior and that she hoped it would continue. C.R. said that home supervision kept him from doing anything stupid and helped him improve his attendance at school.

The June 3 hearing, a Tuesday, began in the morning with public deputy public defender Breese Maxwell requesting on behalf of assigned attorney Michael Lepie that the case be set for a contested dispo. Maxwell had not represented C.R. before and could not say how Lepie came to be assigned, but he said he thought the issue was non‑wardship probation versus indefinite wardship and was unsure why this case didnt resolve with informal probation to begin with. The court remarked that there was nothing about informal probation in the report and that, with C.R.s admitted use of alcohol and drugs, the court could hardly imagine ordering probation without wardship. Nevertheless, the court continued the matter to the afternoon and ordered that Lepie be there.

Lepie appeared that afternoon and explained that he had been assigned the case but was on family leave, thus accounting for his lack of participation so far. He conceded having received the report the Thursday before and, in the end, did not offer corrections to it. He argued, however, that wardship should not be declared based on the facts before the court, adding that C.R. had made the honor role, and suggesting that the mother might describe his home life. The deputy district attorney countered that wardship was appropriate due to the substance abuse and violence, noting that, the minor was still atop his brother, punching him, when police arrived. When the court asked if the matter was submitted, Lepie added, Well, . . . if the court is inclined to declare him a ward, I would like the opportunity to present additional evidence and have [him] evaluated by a defense expert on juvenile delinquency.

The court invited an offer of proof, saying, maybe we can just accept [and consider] the offer, but Lepie said he had no witness lined up and could not make a specific offer. He offered that a probation officer or some such witness might do a risk, family, or delinquency assessment and make a recommendation on wardship, but the court replied: Im denying your request. I believe I have sufficient information. The court invited a further and specific offer of proof but said it had enough information in the report, and then recited that information on the record, adding: I dont need an expert talking to me about general issues regarding delinquency. I have specific information here on this minor. I think the wardship is more than justified.

The court once more invited specific offers of proof but, receiving none, denied the request to delay disposition. It did, however, invite Lepie to submit the matter for reconsideration if you come up with evidence, adding: So you may bring this back for reconsideration. Im proceeding. The court did proceed and said, in a closing remark to Lepie, And if you would like at some point to set a hearing, say within the next 30 days for the court to reconsider the declaration of wardship, you may do so.

The court adjudged C.R. a ward, continued him in the home, on supervised probation, declared a maximum commitment term of six months for the misdemeanor battery (Pen. Code,  243, subd. (a)) less seven days of credit for juvenile hall custody, and acknowledged his 25 days on home supervision. It also ordered the indicated firearm limitation until age 30 (id.,  12021, subds. (c)(1) & (e)) and, there being no claim of restitution from the victim brother, imposed only a $25 restitution fine recommended in the report. Nonstandard other conditions of probation included 30 hours of community service, curfews subject to modification for school activities, no possession of alcohol or illegal drugs, testing for those substances upon request, warrantless searches and seizures, family counseling, and only peaceful contact with the brother.

The court set an interim review for October 29, and Lepie filed notice of appeal for C.R. on June 10. Nothing in the record suggests that Lepie ever sought reconsideration.

Having reviewed the record and found no arguable issues, we affirm the judgment.

_________________________

Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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A121828, People v. C.R.

^[1]All further dates are in 2008.