Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD061577 Hugo J. Loza, Commissioner.
Paul E. Lacy, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
STATEMENT OF THE CASE
On January 27, 2010, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, A.U., feloniously resisted an executive officer by threats or violence to deter him in his official duty (Pen. Code, § 69). After a contested jurisdiction hearing, on March 15, 2010, the juvenile court found the allegation true beyond a reasonable doubt. At the disposition hearing on March 29, 2010, the juvenile court found the allegation to be a felony, set the maximum term of confinement for the current offense, as well as for past offenses, and ordered appellant into the Long Term Program at the Tulare County Youth Correctional center Unit. Appellant filed a timely notice of appeal.
Unless otherwise indicated, all statutory references are to the Penal Code.
In 2007, appellant had sustained petitions for: two counts of first degree, felony burglary (§ 459); felony possession of a dirk or dagger (§ 12020, subd. (a)(4)); felony vandalism (§ 594, subd. (a)); misdemeanor battery (§ 242); and a violation of probation. In 2008, appellant had a misdemeanor conviction for escape from a juvenile facility (Welf. & Inst. Code, § 871, subd. (a)) and a violation of probation. In 2009, in addition to the instant adjudication, appellant had an adjudication for misdemeanor battery (§ 243, subd. (e)(1)).
FACTS
On December 23, 2009, Lisa Junio was working as a probation correctional officer at the juvenile detention facility in Tulare County. Chadwick Lamarsna, supervisor of the facility, brought appellant over to Junio’s pod and there was a struggle. As Junio was supervising showers, she saw Lamarsna escorting appellant up the stairs. Appellant began pulling down papers and Christmas decorations.
The papers appellant was pulling down were blue and white, blue being a Sureño gang color. Norteño gang members use the color red. Appellant is affiliated with the Norteño gang. Lamarsna directed appellant to stop but appellant continued to pull down the decorations. Lamarsna directed appellant to go to his cell. Appellant ignored this command as well. Lamarsna commanded appellant to cover, a prelude to the use of pepper spray. In this position, the ward is supposed to crouch on his or her hands and knees.
Instead of moving into the cover position, appellant stood in a fighting stance with his hands clinched into fists. Lamarsna went to move appellant to the ground, while Junio radioed for assistance. Appellant continued resisting by pushing and then holding onto Lamarsna until other staff members assisted Lamarsna.
Lamarsna testified that as he was leading appellant into the pod and they reached the top of the stairs, there was a door that had blue and white paper on it. Appellant jumped up and started pulling down the decorations off the wall. Appellant would not stop when told to do so by Lamarsna. Appellant jumped up and pulled more decorations off the wall. Lamarsna put his hand over appellant, trying to block appellant from jumping up. Appellant turned around and told Lamarsna to never put his “fucking hands on me.”
Lamarsna described appellant as being visibly agitated. Appellant was pumping his fists down his side in a hostile stance. Lamarsna was still on the stairs and could have fallen backward down the stairs. Lamarsna stepped onto the top tier to be in a safer position. At first, appellant backed up to allow Lamarsna off the stairs. Appellant then squared off in a fighting stance.
Lamarsna told appellant to cover, but appellant failed to do so. Appellant remained combative and defiant, lunging at Lamarsna. Lamarsna grabbed appellant and held him close to his body to prevent appellant from striking. Appellant grabbed Lamarsna’s waist and circled his way around Lamarsna. Appellant tried to push Lamarsna toward the stairs. Lamarsna was trying to prevent them both from falling down the stairs. Lamarsna pinned appellant against the wall, but appellant tried to pull Lamarsna down to gain an advantage. Staff arrived and helped get appellant off Lamarsna. Appellant continued to struggle until pepper spray was used on him.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on June 24, 2010, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.