In re Oliver L.

Filed 3/23/07 In re Oliver L. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Oliver L. and some juvenile companions spray painted graffiti in San Bruno and Millbrae. Oliver was placed on juvenile probation after he pled no contest to allegations that he was a person coming under the provisions of Welfare and Institutions Code section 602 by virtue of his having committed four acts of vandalism under Penal Code section 594, subdivision (b)(1). On appeal, court-appointed counsel has briefed no issues, but has asked this court to independently review the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.

FACTS AND PROCEDURAL HISTORY[1]

On April 11, 2006, a San Bruno Police Department patrol officer saw Oliver, who was then almost fifteen years old, walking with three other minors down El Camino Real at about 12:55 a.m. The officer circled around on a side street in his car, and when he came back he saw Oliver and only one companion. He circled around again and did not see anyone when he returned to the location. The officer found Oliver and another minor crouching down against a building in a small walkway, and they fled when he ordered them to stop. Oliver escaped, but his companion was taken into custody and admitted that he and Oliver had written graffiti on property owned by a number of area businesses. According to the companion, Oliver always used the moniker HUSK or HK.

That evening, Oliver and his father went to the police station for questioning about vandalism in San Bruno and Millbrae. Oliver admitted that he and his companions had met for the purpose of tagging, and that he identified himself as HUSK or HK. Oliver identified photographs of graffiti in which HUSK appeared.

A petition to declare Oliver a ward of the court was filed on July 5, 2006, and alleged three felony counts of vandalism causing damage of $400 or more, one count of conspiracy and one count of obstructing an officer in the performance of his or her duties. (Pen. Code, 594, subd. (b)(1); 182, 148, subd. (a)(1).) After other graffiti was discovered, a second petition was filed alleging three counts of felony vandalism and thirteen counts of misdemeanor vandalism. (Pen. Code,  594, subd. (b)(1) & (b)(2).)

Oliver entered a no contest plea to two of the felony vandalism counts in the first petition and two of the felony vandalism counts in the second petition. The remaining counts were dismissed with a Harvey waiver.[2] Oliver was placed on probation with a number of conditions that included seven days of therapeutic detention, 100 hours of public service work, and payment of actual restitution to the victims as ordered plus a $250 fine to the restitution fund. The probation order forbade Oliver from associating with the other participants in the vandalism and from contacting two of the named victims. The court also ordered that Olivers ability to obtain his drivers license would be postponed four years until his 20th birthday.  

DISCUSSION

As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende brief raising no issues, that counsel and this court have advised Oliver of his right to file a supplemental brief, and that Oliver did not file such a brief. We have independently reviewed the entire record for potential error and, as discussed below, find none.

Before it accepted his admission to the four counts, the trial court properly advised Oliver of his right to a contested hearing before the court, his right to call witnesses and present a defense during that proceeding, his right to confront the witnesses against him, and his right to refuse to take the stand and incriminate himself. There is nothing in the record to suggest the admission was anything other than knowing and voluntary. (See People v. Allen (1999) 21 Cal.4th 424, 437.)

An attachment to the notice of appeal filed by Oliver states that the court and prosecution made unsubstantiated and arbitrary assessments of the cost of repairing the damage caused by his vandalism, which in turn affected whether the various counts were misdemeanors or felonies. Oliver admitted all of the elements essential to the vandalism charges when he entered his no contest plea, and he may not now challenge the sufficiency of the evidence regarding the amount of damage. (See In re Troy Z. (1992) 3 Cal.4th 1170, 1180-1181, and cases cited therein.)

Vandalism causing damage in excess of $400 is a wobbler offense that is alternatively punishable as a felony or misdemeanor in the courts discretion. (Pen. Code,  594, subd. (b)(1).) Welfare and Institutions Code section 702 provides that when a minor is found to have committed such an offense, the court shall declare the offense to be misdemeanor or felony. Section 702 is mandatory and requires an express declaration from the court; its purpose is to provide a record from which the maximum term of physical confinement can be calculated and to ensure the trial court is aware of and actually exercises its discretion. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.) The vandalism counts to which Oliver pled were charged as felonies and the court advised Oliver that they were felonies during the colloquy preceding his no contest plea. Though this alone would not be sufficient to satisfy Welfare and Institutions Code section 702, a signed Findings and Order by the court declared the offenses admitted to be felonies by describing them as 594(b)(1) PC F. This was adequate to comply with the letter and spirit of Welfare and Institutions Code section 702. (In re Robert V. (1982) 132 Cal.App.3d 815, 823.)

The conditions of Olivers probation included orders that he not associate with the other juveniles who participated in the vandalism. This restriction is reasonable. (See In re Kacy S. (1998) 68 Cal.App.4th 704, 713; In re Frank V. (1991) 233 Cal.App.3d 1232, 1241-1242.)

The court ordered that Oliver would not be eligible to obtain his drivers license until his 20th birthdaya one-year delay for each count to which he pled. Vehicle Code section 13202.6 restricts a juveniles ability to obtain a drivers license following a vandalism conviction (including a finding in a juvenile proceeding) under Penal Code section 594: If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for not less than one year nor more than three years subsequent to the time that person becomes legally eligible to drive. . . . For each successive offense, the court shall . . . delay the eligibility for those not in possession of a license at the time of their conviction for one additional year.

We are satisfied from our independent review that no arguable issues exist.

The judgment is affirmed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Pollak, J.

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[1] Because Oliver entered a no contest plea, no contested hearing was held to adjudicate his guilt. The facts are therefore derived primarily from the probation officers report.

[2] Under People v. Harvey (1979) 25 Cal.3d 754, 758, dismissed counts cannot be considered for sentencing purposes absent an agreement of the parties.