In re Timothy C.

Filed 8/29/06 In re Timothy C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Timothy C. appeals after the juvenile court sustained a petition alleging that he comes within the provisions of section 602 of the Welfare and Institutions Code in that he committed assault (Pen. Code, § 245, subd. (a)(1)),^[1] and that the offense was enhanced by the infliction of great bodily injury on his victim (§ 12022.7, subd. (a)). Appellant’s court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

PROCEEDINGS BELOW

On September 30, 2005 (all dates are in that year), the district attorney filed a petition alleging, in count 1, that appellant assaulted Walter C. by means of force likely to produce great bodily injury, a felony (§ 245, subd. (a)(1)) and, in count 2, that he willfully, unlawfully and personally used force and violence upon the same victim, also a felony (§ 243, subd. (d)). The petition additionally alleged, in connection with both counts, that appellant inflicted great bodily injury (§ 12022.7, subd. (a)).

On October 11, appellant admitted the allegations of count 1, and count 2 was dismissed. On October 25, after the public defender recused herself due to a conflict of interest; new counsel obtained a psychological evaluation of appellant by Dr. Richard Delman. A psychological evaluation of the minor was also conducted by Dr. Norbert Ralph, who is employed by the San Francisco Juvenile Probation Department.

A contested dispositional hearing was conducted on November 7. The district attorney supported the probation department recommendation that appellant be placed at Log Cabin Ranch. Defense counsel urged that he instead be in his parents’ home with electronic monitoring and psychotherapy. The trial court disagreed with both, concluding that appellant needed 24-hour supervision, but this could best be accomplished by placing him in an out-of-home placement in the Bay Area other than Log Cabin Ranch and selected the Daytop Program in Redwood City.

On November 22, defense counsel moved (under section 1385 and Welfare and Institutions Code section 778) to dismiss the section 12022.7 enhancement on the ground that the psychological evaluation completed by Dr. Ralph (which was not available at the time appellant admitted allegations in the petition) indicated appellant, who was 16 at the time of the offense, possessed the problem-solving skills of a person half that age. Counsel pointed out that the bodily injury enhancement transformed the assault into a strike within the meaning of section 667, and argued that it would be “unconscionable” to so burden such a mentally-challenged minor.

At the December 22 hearing on the motion, defense counsel produced the declaration of the deputy public defender who represented appellant at the time he admitted the assault, which stated that had she then been aware of the results of the psychological evaluation, she would not have permitted him to enter an admission to a strike offense. The trial court denied the motion, stating: “I think the real broad social issue is whether there should be a different standard applied to people who have cognitive deficits and I don’t think there is support in the law for that proposition unless they’re deemed to be incompetent and I think this would become a very slippery slope if one started down that path.”

Appellant filed a timely notice of appeal from the dispositional order on November 18. A timely notice of appeal from denial of the motion to dismiss the great bodily injury enhancement was filed on February 22, 2006.

FACTS

The probation report states that appellant hit his victim, Wally C., in the head with a metal pipe causing severe injury. The conflict arose from a romantic triangle between Wally, appellant’s friend Raymond, and a girl named Delia. Raymond, appellant, and several others persuaded Delia to lure Wally to Mountain Lake Park where, after lying in wait and wearing ski masks, they confronted him verbally and then physically. At some point, appellant hit Wally in the head with a metal pipe, seriously injuring him. Appellant had known Wally for years, since they were in elementary school together.

The only indication in the record of a possible legal issue pertains to the motion to dismiss the section 12022.7 enhancement allegation. Specifically, whether the trial court’s statement that it did not think there was “support in the law” for dismissing a great bodily injury enhancement on the basis of a cognitive deficit arguably shows that the court erroneously believed it lacked discretion to grant the motion to dismiss, and whether the matter should therefore be remanded so that discretion may be exercised. We do not think the court’s statement can be interpreted in this manner.

Defense counsel’s argument in support of the motion to dismiss the enhancement allegation was based on a single sentence in Dr. Ralph’s evaluation, stating that appellant had “problem-solving skills more consistent with an individual approximately half his age.” Emphasizing this statement, and interpreting it to mean that appellant had the mental skill of an eight-year-old, counsel argued that the Legislature did not intend “to hold youngsters with severely diminished problem-solving skills . . . to the same standard of criminal responsibility as their more experienced and sophisticated contemporaries . . . .”

The single sentence defense counsel seized upon appears in a 10-page single spaced evaluation that is extremely detailed and comprehensive. Considered in context, the sentence cannot reasonably be construed in the manner defense counsel urged. Dr. Ralph noted that appellant participated in a school program for youngsters with serious emotional problems, and that he had numerous disciplinary problems and learning disabilities, but also noted that a psychological assessment “showed good interpersonal skills,” that appellant had been making “adequate effort” to improve, and had no disciplinary problems during his last year at school, never had to repeat a grade, and that his grade point average had recently improved. Test results showed that he had deficits in “expressive language,” but his “scores on all rated scales were in the normal range.” Dr. Ralph’s “prognosis,” which appears near the end of the evaluation, indicates numerous “[p]ositive factors” (such as a stable family with involved parents, few prior contacts with the probation department, high reading and spelling skills, nonverbal skills in the average range, and “relatively few antisocial or psychiatrically disturbed themes”), but also some “[n]egative factors” (such as the seriousness of the present offense, the use of a weapon that caused serious injury, “significant past school problems with violence and weapons,” and “a history of serious behavior problems” that may indicate he is “emotionally disturbed”). Neither Dr. Ralph’s prognosis nor his recommendations refer to any extreme cognitive disability. In short, the single sentence in Dr. Ralph’s lengthy report that defense counsel relied upon, which is somewhat hyperbolic, does not establish that appellant suffers a cognitive deficit that materially diminishes his criminal responsibility.

Significantly, the evaluation of appellant by Dr. Delman, the psychologist chosen by defense counsel, makes no reference whatsoever to a “cognitive deficit.” In his view, “[m]uch of [appellant’s] problematic behavior is surely attention getting, expressing the pain and confusion of a boy who is falling way behind his peers even though he is trying to keep up. Some of it is Timothy calling attention to the possibility that his family will fall apart.”

Nor do the trial judge’s statements show he thought that, as a matter of law, he lacked discretion to grant the motion to dismiss on the basis of a cognitive deficit. The court indicated a belief that “whether there should be a different [criminal] standard applied to people who have cognitive deficits” presents “a broad social issue,” but nowhere does the court disclose a belief that appellant suffers a significant cognitive deficit or that the law deprived him of discretion to grant the motion to dismiss if he had drawn that conclusion.

The trial court’s statements indicated a belief that defense counsel’s claim that denial of the motion to dismiss the enhancement would unfairly place appellant at-risk under the three-strikes law was exaggerated. As the court stated, “if Timothy never gets into trouble again then the consequences of his plea [including admission of the enhancement allegation] . . . will certainly have no other implications for him in the criminal justice system. On the other hand, if this is the start of conduct where Timothy exercises atrocious judgment and or is so readily influenced by others that he commits a crime, then it would seem the consequences are more than appropriate.”

The record shows that the court understood that it had discretion to grant or deny the motion to dismiss the enhancement allegation and that denial of the motion constituted an exercise of discretion.

There can be no doubt that the evidence amply supports the judgment.

It does not appear that any evidence received by the court should have been excluded, or that evidence was excluded that should have been received.

The record shows no prosecutorial misconduct or that appellant received ineffective assistance of counsel.

Nor does the record show sentencing error. At the time appellant made the admissions upon which the judgment was based, appellant was adequately admonished by the court as to the rights he was giving up and the consequences of his admissions, and the record establishes that the admissions were made freely, voluntarily, and knowingly.

There are no legal issues that require further briefing.

DISPOSITION

The judgment sustaining the petition and the placement decision are affirmed.

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Kline, P.J.

We concur:

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Haerle, J.

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Lambden, J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.