In re James J
Filed 3/28/06 In re James J. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| In re JAMES J., a Person Coming Under the Juvenile Court Law. | |
| THE PEOPLE, Plaintiff and Respondent, v. JAMES J., Defendant and Appellant. |
F048397
(Super. Ct. No. 05CEJ600391-1)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Tim Kams, Judge.
Dale J. Blea, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
On April 3, 2004, the Merced County Probation Department filed a juvenile wardship petition (Welf. & Inst. Code, § 777) in superior court alleging appellant violated the terms of his probation by testing positive for marijuana use.
On May 18, 2004, the Merced County District Attorney filed a first amended subsequent petition alleging minor committed the following offenses:
Count 1--misdemeanor resisting of a peace officer (Pen. Code, § 148);
Count 2--misdemeanor loitering (Atwater Mun. Code, § 9.28.010);
Count 3--elder abuse (Pen. Code, § 368, subd. (b)(1)) with great bodily injury (Pen. Code, §§ 368, subd. (b)(2)(A), 12022.7), committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)); Count 4--battery (Pen. Code, § 243, subd. (d)) committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)) with great bodily injury (Pen. Code, §§ 368, subd. (b)(2)(A), 12022.7); and
Counts 5 through 9--violation of various conditions of juvenile probation.
On June 23, 2004, the district attorney filed a second amended subsequent petition alleging minor committed the following offenses:
Count 1--elder abuse (Pen. Code, § 368, subd. (b)(1)) with great bodily injury (Pen. Code, §§ 368, subd. (b)(2)(A), 12022.7), committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A));
Count 2--battery (Pen. Code, § 243, subd. (d)) committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)) with great bodily injury (Pen. Code, § 12022.7, subd. (a));
Counts 3 and 4--misdemeanor resisting of a peace officer (Pen. Code, § 148, subd. (a));
Count 5--unlawful purchase of tobacco products or paraphernalia by a minor, an infraction (Pen. Code, § 308, subd. (b));
Count 6--violation of a condition of juvenile probation by committing criminal offenses;
Count 7--violation of a condition of juvenile probation by violating curfew;
Count 8--violation of a condition of juvenile probation by failing to attend school;
Count 9--violation of a condition of juvenile probation by possession of a controlled substance; and
Count 10--violation of a condition of juvenile probation by association with known wards of the juvenile court.
On February 23, 2005, the juvenile court ordered the detention of appellant.
On March 15, 2005, the date set for a contested jurisdictional hearing, appellant pleaded nolo contendere to counts 1 (elder abuse) and 3 (resisting a peace officer). Appellant admitted infliction of great bodily injury as to count 1 and each alleged violation of the conditions of probation with the exception of the violation relating to commission of offenses alleged in the petition. The court found true the allegation that appellant violated his probation by committing the offenses alleged in counts 1 and 3. Appellant also admitted testing positive for marijuana use, as alleged in the April 3, 2004, wardship petition. On motion of the district attorney, the juvenile court struck the remaining enhancement allegations and dismissed counts 2, 4, and 5. The court further found that appellant was a resident of Fresno County and ordered the petition and appellant's wardship proceeding be transferred to that county.
On May 18, 2005, the Fresno County Juvenile Court conducted a disposition hearing, declared the violation of Penal Code section 368, subdivision (b)(1) to be a felony, and committed appellant to the middle term of three years in the California Youth Authority (CYA) with a consecutive term of three years for the great bodily injury enhancement. The juvenile court found appellant's violation of Penal Code section 148, subdivision (a) to be a misdemeanor, committed him to a consecutive term of four months on that count, and concluded his maximum period of confinement for sentencing purposes to be six years four months. The court ordered appellant to pay a $150 restitution fine (Welf. & Inst. Code, § 730.6), and awarded 85 days of custody credits.
On July 7, 2005, appellant filed a timely notice of appeal from the May 18, 2005 dispositional order and the March 15, 2005 nolo contendere admissions.
STATEMENT OF FACTS
The following facts are taken from the report and recommendation of the probation officer filed March 29, 2005:
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