Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J05-01300
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Justin H. appeals from the juvenile court’s dispositional order. His counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplementary brief. We find no arguable issues and affirm.
Background
In August 2005, a Welfare and Institutions Code section 602 petition was filed charging Justin H. (born 1991) with three crimes that were committed in April 2005: misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1); count 1); misdemeanor disturbance of the peace by fighting (Pen. Code, § 415, subd. (1); count 2); and misdemeanor battery on school, park or hospital property (Pen. Code, § 243.2, subd. (a); count 3). In September, the petition was amended to charge three additional crimes that were committed in July: misdemeanor unlawful driving or taking of a vehicle without the consent of the owner (Veh. Code, § 10851, subd. (a); count 4); misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1); count 5); and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count 6). In October, the petition was amended again to charge three additional crimes that were committed in September: misdemeanor second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b); count 7) and misdemeanor petty theft (Pen. Code, §§ 484, 488; count 8).
In January 2006, Justin admitted counts 2, 3, 4 and 8 (count 3 was changed by amendment to misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a))) and the remaining counts were dismissed. In February 2006, the court adjudged Justin a ward of the court, placed him on 90 days of home supervision, and imposed conditions of probation.
In October 2006, Justin was accused of violating probation by failing to attend school several times and by testing positive for drugs on three occasions. Justin admitted the positive drug tests and the court found he violated probation. The court placed him on 60 days of juvenile electronic monitoring (JEM), ordered him to continue drug treatment, and scheduled him for drug court review. On October 27, Justin was rejected for drug court.
On November 2006, December 2006, and January 2007, the probation department reported numerous violations of Justin’s home supervision, including disabling his electronic monitor, missing school, leaving home, fighting with his father, and testing positive for drugs, and using alcohol. The court extended electronic monitoring in response to these violations until, on January 10, 2007, the court ordered Justin detained in juvenile hall.
On January 11, 2007, the probation department reported a violation of Justin’s terms of probation: positive drug tests in January 2007 and possession of marijuana in November 2006. Justin admitted the possession charge and was detained in juvenile hall pending a further hearing. He waived his Arbuckle rights. On January 15, 2007, he was released on electronic monitoring pending the hearing.
People v. Arbuckle (1978) 22 Cal.3d 749.
In an interview with a probation officer, Justin attributed his poor performance on probation to marijuana use and both he and his mother said his attitude and behavior had improved since he had stopped using the drug recently. The probation officer concluded that Justin had in fact stopped using marijuana, had embraced his recent placement in a continuation high school, and was willing to engage in drug treatment. He recommended terminating electronic monitoring, returning Justin to his parents’ home, and ordering him to complete nine work details. On January 30, 2007, the court continued electronic monitoring for 15 days, imposed a curfew, ordered him to participate in counseling, and imposed 6 work details.
On February 26, 2007, a supplemental petition was filed charging Justin with misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1); count 1). On March 14, an amended supplemental petition was filed that added a charge of felony second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 2). It was alleged he was armed with a handgun during the commission of the robbery. Justin was detained in juvenile hall.
At a June 12, 2007 pretrial hearing, Justin pled no contest to the resisting charge and the robbery charge was dismissed (Judge Pro Tem Clare Maier, presiding). The court placed Justin on electronic monitoring and authorized the probation department to downgrade his placement to home supervision. The court found the maximum term of confinement was one year, six months.
On July 3, 2007, the court (Hon. George V. Spanos, presiding) referred Justin to drug court and set a July 25 disposition hearing in the event he was deemed ineligible for drug court. The minute order for the July 3 hearing indicates that Justin waived his Arbuckle rights.
On July 6, 2007, Justin was arrested for making criminal threats on July 4 to a neighbor. According to a police report, someone fired several shots into the neighbor’s residence on July 5. Justin was detained in juvenile hall. On July 9, the court found he had violated the terms of his home supervision. On July 10, a second supplemental petition was filed charging Justin with making criminal threats (Pen. Code, § 422; count 1).
Justin appeared in drug court on July 13, 2007 (Judge Pro Tem Claire Maier, presiding). A contested hearing on the supplemental petition was scheduled. The hearing took place before the Honorable Jill C. Fannin on July 31, August 21, and August 24, 2007. At the conclusion of the hearing, the court dismissed the petition for insufficient proof and set a dispositional hearing for September 7.
On August 31, 2007, Justin appeared in drug court before Judge Pro Tem Maier. He was granted a 30 day trial period of release on electronic monitoring beginning September 3, during which time he was to attend school and support programs.
The dispositional hearing took place at 9:00 a.m. on September 7, 2007 before Judge Fannin. Justin was absent, but Public Defender Covington was present. The court stated at the outset of the hearing, “We talked about this off the record. Justin is not here. But apparently he was waylaid into drug court pending the contested disposition. So I’m going to continue the contested disposition to next week at 1:30. And Justin needs to appear. [¶] Probation needs to notify him he should appear. I had him detained pending my next hearing. I don’t know who changed my order, releasing him.” The prosecutor said he was going out to drug court that afternoon and offered to “tell them that we’re transferring back to your department since he hasn’t been cleared of the dispo at this point.” The court responded, “Yes, it’s time not waived. Actually, we’ll put it on Tuesday[, September 11]. He should be in custody pending disposition.”
A transcript of the hearing before Judge Fannin is in the appellate record. Although the transcript is dated September 9, 2007, this appears to be a typographical error because September 9 was a Sunday.
A minute order for a “drug court review” hearing before Judge Pro Tem Maier in the afternoon of September 7, 2007, states that Justin appeared for the hearing with Public Defender Clark. He was ordered detained in juvenile hall pending the September 11 disposition hearing.
In a report for the July 3, 2007 disposition hearing, the probation department recommended that Justin be committed to the Orin Allen Youth Rehabilitation Facility for a six-month program. The facility would give him “a stable, structured[] environment where he can consistently attend school and receive counseling to address his continued drug use and delinquent behavior in the community.”
At the September 11, 2007 hearing, Justin’s attorney contested the commitment recommendation. “This case had previously been set for disposition in Department 34 [before Judge Spanos], at which time[] Justin was to be screened for drug court. He was accepted, pending the outcome of his─the new charge, the 422. [¶] When that was not sustained, Justin’s mother called . . . one of the coordinators for drug court . . . [who] added Justin to calendar on . . . August 31st in drug court.” She noted that Justin had been accepted in drug court on a trial basis. The court responded, “I get to make the decision if he goes to drug court or not. So you can make your argument as to why he should go to drug court.”
Defense counsel argued that Justin’s behavior and school attendance had vastly improved during his recent releases and that it was premature to judge his recent school performance because of the repeated interruptions by juvenile hall detention. He made a lot of progress and gained insight into his drug dependency since he was first referred to drug court in October 2006. He reported to drug court September 7, 2007, even though he knew he was going to be detained. She questioned whether Justin would receive quality education or counseling at the Ranch and argued it was not the least restrictive environment that could meet Justin’s needs. She argued drug court, which had already accepted Justin, would be the most appropriate disposition.
The prosecutor argued Justin needed a more structured environment. During his July 3, 2007 interview, he showed little remorse for the February 22 incident, which he blamed on the arresting officers. He had a long history of not taking school seriously. He had a series of violations of home supervision and an escalating criminal history: four sustained counts in 2005; sustained counts of possession of marijuana, and resisting arrest in 2007; and arrests for armed robbery and criminal threats in 2007.
The court committed Justin to the six-month ranch program. The court noted that when the disposition first came up, Justin was released on electronic monitoring and it was clear from the testimony regarding the criminal threats charge that Justin “was continuing to screw up” on the monitoring program even though he knew the disposition hearing was pending and he was waiting to see if he would be accepted into drug court. “He’s been tried on JEM over and over and over again, and it never seems to work out. So I want to give him a chance at the Boy’s Ranch, six months regular program. . . . There’s drug treatment there. There’s anger management there. It is a very good school there. . . . I can order counseling to make sure he gets to the head of the list.” She acknowledged that “Justin testified very candidly and spoke very eloquently for himself. So I have a very good feeling that Justin is going to get better. And I believe the best way to make that happen, again[,] is not releasing him on JEM, because that hasn’t worked, but letting him go to the Boy’s Ranch and getting a really solid foundation before he’s back at school.” The court stated that Justin’s maximum custodial time was one year, nine months and that he had already served 186 days in custody.
Discussion
There was no error in the juvenile court’s disposition. Justin was represented by legal counsel throughout the proceedings. Counsel advised Justin of his right to file a supplementary brief to bring to the court’s attention any issue he believed deserved review. (People v. Kelly (2006) 40 Cal.4th 106.) Justin did not file a supplementary brief.
There are no legal issues that require further briefing. We find no arguable issues on appeal.
Disposition
The September 11, 2007 dispositional order is affirmed.
We concur: SIMONS, ACTING P. J., NEEDHAM, J.