P. v. Smith

Filed 7/27/07 P. v. Smith CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. John Vogt, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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It was alleged in a juvenile wardship petition filed March 14, 2006,^[1]as follows: appellant Donte Luther Smith, Jr. committed second degree robbery (Pen. Code, 211, 212, subd. (c)), unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)), receiving stolen property (Pen. Code, 496, subd. (a)) and failing to stop at the scene of an accident (Veh. Code, 20002, subd. (a)); appellant personally used a firearm in committing the robbery (Pen. Code, 12022.53, subd. (b)); and appellant was born in 1990, and therefore was 15 years of age at the time of the alleged offenses. On April 7, the juvenile court found appellant unfit to be tried in juvenile court (Welf. & Inst. Code,

707).^[2]On April 10, a criminal complaint was filed, charging appellant with the same offenses and alleging the same enhancement as in the wardship petition. On April 11, appellant pled not guilty to the charged offenses and denied the enhancement allegation.

On July 11, pursuant to a plea agreement, appellant withdrew his not guilty plea, pled guilty to the robbery charge and admitted the accompanying enhancement allegation, and the court dismissed the remaining charges. One of the terms of the plea agreement was an indicated sentence of 12 years. On August 22, the court imposed a prison term of 12 years, consisting of the two-year lower term on the substantive offense and 10 years on the firearm-use enhancement, and recommended that appellant be housed at the California Youth Authority.^[3]The instant appeal followed.

FACTS^[4]

Sumeet Manrai was working behind the counter at a liquor store in Fresno when, at approximately 7:41 a.m. on March 3, a person, carrying a rifle and wearing a black hooded sweatshirt and a bandana covering his nose and mouth, entered the store. The gunman demanded money; pointed the rifle at Manrai; took $3,000 in cash, two cartons of cigarettes and a package of Swisher Sweets cigars; and demanded the keys to Manrais car. Manrai handed the gunman the keys, and the gunman ran out of the store with all the items. Manrais car was a four-door Toyota Camry, California license No. 4MANRAI.

At approximately 8:05 p.m. on March 3, two persons, one carrying a sawed-off shotgun (subject No. 1) and the other carrying a knife (subject No. 2), entered a Shell gas station store in Fresno. Subject No. 2 demanded money, and subject No. 1 loaded the shotgun and pointed it at the clerk working in the store. Subject No. 1 reached over the counter and grabbed approximately $1,000 in cash from the cash register, at which point he and his companion ran out of the store and got into a car the clerk described as a newer model four-door Toyota . . . . The robbery and escape were captured by a store surveillance camera. A police detective, who viewed the surveillance video, identified the car in which the two subjects escaped as the vehicle stolen from Manrai earlier that day.

On March 4, at approximately 3:30 p.m., officers responding to the report of a traffic accident met with a witness who told the officers the following. She stepped outside her residence located on Howard Street and saw that a Toyota Camry had crashed into her car which was parked on the street. Several persons, including a Black male juvenile, were standing near the Toyota. These persons ran into a residence located on Howard Street.

Another witness told police the following. She stepped outside her residence located on Howard Street and saw that a Toyota Camry had crashed into her truck which was parked on the street, and that a Black male juvenile was sitting in the drivers seat of the Toyota. The juvenile ran into a residence on Howard. The witness had seen the juvenile before and knew that he lived at that residence. The number on the front license plate of the Toyota was 4MANRAI.

Police went to the Howard Street residence and met with the homeowner, appellants mother. Appellant was not at home. The officers conducted a probation search of appellants bedroom and found, among other items, two empty Swisher Streets cigar boxes.

On March 10, police arrested appellant at his home on Howard. Upon being shown a surveillance photograph of the robbery at the Shell station store, appellant identified the person shown holding a shotgun as himself. Appellant admitted taking money out of the cash register.

DISCUSSION

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Appellant, apparently in response to this courts invitation to submit supplemental briefing, has submitted a letter in which he argues, as best we can determine, that he was not yet 14 years of age at the time of the instant offense and therefore the court erred in finding him unfit for treatment under the juvenile court law.

[A]ny individual less than 18 years of age who violates the criminal law comes within the jurisdiction of the juvenile court, which may adjudge such an individual a ward of the court. ( 602, subd. (a).) A minor accused of a crime is subject to the juvenile court system, rather than the criminal court system, unless the minor is determined to be unfit for treatment under the juvenile court law or is accused of certain serious crimes. [Citation.] Minors age 14 years and older who commit the most serious crimes (for example a special circumstance murder where the victim was personally killed by the minor) are per se unfit for juvenile court. ( 602, subd. (b).) All other questions of fitness are determined pursuant to section 707. (In re Veronique P. (2004) 119 Cal.App.4th 195, 198.) Under section 707, age 14 is the minimum age at which a minor can be found unfit for treatment under the juvenile court law.

In the clerks transcript, with one possible exception, every one of the multiple references to appellants date of birth indicates a 1990 date of birth, as alleged in the wardship petition, and that therefore appellant was 15 years of age at the time of the instant offense. The single apparent exception is the criminal complaint, which appears to indicate, by interlineation, a date of birth in 1991. If that date is correct, appellant would have been 14 years of age at the time of the instant offense.

In addition, the reporters transcript of appellants April 7 fitness hearing ( 707, subd. (a)(1)), reveals that appellants counsel, in three instances, and the deputy district attorney, in one instance, indicated appellant was 15 years old. The fitness hearing transcript contains no other references to appellants age.

Finally, we advised appellate counsel of appellants contention. Thereafter, counsel submitted to this court a certified copy of appellants birth certificate and asked that we take judicial notice of the document. We grant that request. (Evid. Code, 452, subd. (d); Shin v. Kong (2000) 80 Cal.App.4th 498, 503, fn. 2.) The birth certificate indicates appellant was born in 1991.

Thus, although the record is arguably unclear as to appellants date of birth, there is nothing in the record to indicate he was under 14 years of age at the time of the instant offenses.

Appellate counsel has advised this court that he can discern no basis to withdraw the brief previously filed pursuant to Peoplev.Wende, supra, 25 Cal.3d. 436.

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Gomes, J., and Dawson, J.

^[1] Further references to dates of events are to dates in 2006.

^[2] Except as otherwise indicated, all further statutory references are to Welfare and Institutions Code.

^[3] The California Youth Authority is now known as the Department of Corrections and Rehabilitation, Juvenile Justice. (Gov. Code, 12838.)

^[4] The factual statement is taken from the report of the probation officer, which is based on information taken from Fresno Police Department and Fresno County Sheriffs Department reports.