In re S.D.

Filed 4/02/07 In re S.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant and appellant S.D. appeals from the juvenile courts order committing him to the California Youth Authority. Appellants counsel has filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.

Factual & Procedural Background

Appellant was born in December 1988. Appellant was the subject of multiple wardship petitions filed pursuant to Welfare and Institutions Code section 602. The first of these wardship petitions was filed on May 12, 2005, alleging appellant was one of a group of youths who robbed a passenger on an AC Transit bus of his cell phone, gold chain and necklace, in violation of Penal Code section 211.[1] This petition was dismissed without prejudice after the district attorney moved to dismiss the case due to insufficient evidence at the jurisdictional hearing on June 6, 2005.

On July 7, 2005, the district attorney filed a wardship petition alleging appellant robbed a victim of her car keys and car, in violation of section 211. At the pre-trial hearing on July 15, 2005, the prosecution orally amended the petition to allege a single count of grand theft, in violation of section 487, subdivision (c). Appellant was advised of and waived his constitutional rights, and admitted to the allegation.

At a dispositional hearing held on January 10, 2006,[2] the juvenile court adjudged appellant a ward of court, allowed him to reside with his mother under supervision of the Probation Office, and imposed various conditions of probation, including a 9:00 p.m. curfew and 100 hours of community service. In a progress report for the continuance review filed on February 21, 2006, the probation officer noted appellant tested positive for THC, had made no payments on the restitution fine imposed of $100, and had completed only one weekend out of four ordered at the Weekend Training Academy.

On March 14, 2006, the district attorney filed a subsequent four-count petition alleging appellant: (1) took a vehicle without permission, a felony in violation of Vehicle Code section 10851; (2) received stolen property, a felony in violation of section 496, subd. (a); (3) drove a vehicle with disregard for public safety while fleeing a police officer, a felony in violation of Vehicle Code section 2800.2; and, (4) resisted a police officer, a misdemeanor in violation of section 148, subd. (a). At a detention hearing on March 15, 2006, appellant was advised of and waived his constitutional rights. Appellant admitted the allegations in counts 2 and 3 and the district attorney moved to dismiss counts 1 and 4. At a dispositional hearing on March 29, 2006, the juvenile court removed appellant from the custody of his parents as recommended in the probation officers dispositional report and approved his placement at Camp Wilmont Sweeney. Appellant was delivered to Camp Wilmont Sweeney on April 13, 2006.

On May 10, 2006, the district court filed a subsequent petition alleging appellant had escaped from Camp Wilmont Sweeney, a misdemeanor in violation of Welfare & Institutions Code 871, and requested a warrant issue for his arrest. The warrant of arrest issued on May 12, 2006.

On May 23, 2006, the district attorney filed another subsequent petition alleging in count 1 appellant robbed the victim of a crate of cherries, a felony in violation of section 211. In count 2, the petition alleged appellant falsely represented himself to a police officer to evade the process of the court, a misdemeanor in violation of 148.9. The petition stated appellant had been taken into custody on May 22, 2006. The intake report states the victim was selling boxes of cherries from the back of his truck. Appellant and two other males approached and demanded the victims money. Appellant punched the victim on his right ear. The victim ran off and appellant stole a box of cherries.

At a pre-trial hearing on June 2, 2006, appellant was advised of and waived his constitutional rights, and admitted the escape allegation in the May 10 petition. The juvenile court ordered appellant detained at Juvenile Hall and determined the maximum period of confinement to be 4 years, 8 months. At the pretrial hearing on June 8, 2006, regarding the two-count petition of May 23, the district attorney amended the petition by oral motion to allege a single count of assault with force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The district attorney also moved to dismiss the misdemeanor count of evading process. Appellant was advised the maximum term for the offense is six years. Appellant was also advised of his constitutional rights. Appellant waived his constitutional rights and admitted the single count in the amended petition.

In a dispositional report filed on June 19, 2006, the probation officer recommended appellant be returned to Camp Sweeney. At the dispositional hearing on June 22, 2006, the juvenile court refused defense counsels request to adopt the probation officers recommendation. The juvenile court stated: I dont know why the P.O. would recommend that, . . . he was at Camp Sweeney I believe for a week, left, and then . . . was charged as a robbery and ended up with a 245 felony. So . . . Im not going to send him back to camp. . . . [] . . . [] Ill find under 726(b) that youve been tried on probation in the custody of your parent and failed to reform. Reasonable efforts were made to prevent or eliminate the need for a removal, and remaining in the home is contrary to your welfare. That also includes the stay at Camp Sweeney. Ill find under 734 that your mental and physical condition and qualifications are such that would render it probable that youd benefit from the reformatory educational discipline and other programs provided by the Youth Authority. . . . Youre unwilling to stay where weve put you. You committed four felony crimes in the last year, and thats . . . Im sure youve committed more but thats what you ended up pleading to. So the only way that I feel you can be rehabilitated is through intensive intervention, and that would be at the Youth Authority. Weve tried a different placement, which was camp. Youre committed to the Youth Authority or to the Department of Juvenile Justice with county pay. The minute order reflects the courts pronouncement and states the maximum period of confinement is six years. Notice of appeal challenging the order of commitment was filed on August 15, 2006.

Discussion & Analysis

As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellants counsel has filed a Wende brief raising no arguable issue, counsel informed appellant of his right to file a supplemental brief, and appellant did not file such a brief. We have also independently reviewed the entire record for potential error.

A juvenile courts commitment decision is reviewed for abuse of discretion, indulging all reasonable inferences to support the decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) A CYA commitment will be upheld so long as there is substantial evidence in the record demonstrating (1) a probable benefit to the minor and (2) the inappropriateness or ineffectiveness of less restrictive alternatives. (Ibid.; In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Here, substantial record evidence supports the juvenile courts commitment decision, including appellants multiple petitions, his immediate escape when placed in the less restrictive environment at Camp Sweeney, his failure to abide by conditions of probation, and the escalating frequency of his criminal activities.

DISPOSITION

The juvenile courts order of commitment is affirmed.

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Parrilli, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Further statutory references are to the Penal Code unless otherwise noted.

[2] Before disposition of the July 2005 petition, appellant was arrested on August 25, 2005, for robbing a victim of a pack of cigarettes at a BART station. On August 29, 2005, the district attorney filed to reopen the July 2005 petition, alleging a single count of robbery in violation of section 211. At a jurisdictional hearing on September 19, 2005, the reopened wardship petition was dismissed without prejudice by oral motion of the district attorney after the complaining witness failed to appear.