Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ06004106
NEEDHAM, J.
Michael G. (Michael) appeals from a dispositional order of a juvenile court commissioner and an order denying his application for a rehearing. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. Facts and Procedural History
A. Prior 602 Proceeding
Michael was alleged to be within the jurisdiction of the juvenile court in a petition filed under Welfare and Institutions Code section 602, which charged that he committed vandalism in December 2005. (Pen. Code, § 594, subd. (b)(1).)
On July 19, 2006, Michael was placed on informal probation pursuant to Welfare and Institutions Code section 654.2. On January 19, 2007, informal probation was successfully completed, probation was terminated, and the petition was dismissed.
B. This 602 Proceeding
A reopened wardship petition was filed under Welfare and Institutions Code section 602 on April 20, 2007, alleging Michael to be within the jurisdiction of the juvenile court by virtue of his commission of numerous offenses on April 3, 2007: battery (Pen. Code, § 242); assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); brandishing a firearm (Pen. Code, § 417, subd. (a)(2)); and participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)).
1. Admission of April 3 Assault
At the detention hearing on April 23, 2007, Michael admitted the misdemeanor battery alleged in the petition. The other charges were dismissed.
The juvenile court detained Michael in secure custody on the ground it was a matter of immediate and urgent necessity for Michael’s protection and of reasonable necessity for the protection of the person or property of another. Michael remained in juvenile hall pending disposition. The dispositional hearing was initially scheduled for May 7, 2007.
2. Initial Dispositional Report
According to the dispositional report filed on May 2, 2007, the battery occurred when Michael approached another boy, asked him if he was a “Scrap”— a derogatory term for members of the Sureño street gang— and punched him in the face. Michael also picked up the victim’s sister’s bicycle and threw it at a person accompanying the victim.
Michael told the probation officer that he was a member of the Norteños gang and that his temper would sometimes get him into trouble. He stated that he hit the victim and threw the bike at the other person when it looked like they were about to come after him.
The dispositional report recognized that Michael had not been on supervised probation in the past, and recommended formal probation with various conditions rather than out-of-home placement. A case plan outlining Michael’s obligations and the services to be provided was prepared for the anticipated May 7 hearing. The plan described Michael as follows: “Michael is a very aggressive Norteño gang member. This offense is gang related. Minor has a very poor history of gang activity at school and is presently on a suspension for being involved in a fight. Michael has little insight into his behavior and says he feels justified in being physical when he is confronted or feels threatened in any way. Michael admits to using marijuana regularly. Michael is intelligent[,] however, he needs structure, supervision and consequences for his behavior.” (Italics and bolding in original.) As to Michael’s parents, the probation officer wrote: “Parents together and provide an intact home. However, both parents have histories of substance abuse and some issues with physical confrontations including some domestic violence. Mother minimized Michael’s gang involvement and had difficulty recognizing that that contributes to his acting out. Parents do recognize Michael’s upset about his paternal grandmother being terminally ill.”
3. Subsequent 602 Petition
On May 4, 2007, a subsequent petition was filed under Welfare and Institutions Code section 602 (subsequent section 602 petition), alleging possession of marijuana for sale (Health & Saf. Code, § 11359), misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)), and resisting an officer (Pen. Code, § 69). Each of the offenses was alleged to have occurred on January 29, 2007, and thus pre-dated Michael’s April 2007 battery. The dispositional hearing on the assault was continued to May 14, pending the resolution on the new allegations.
4. Amended Subsequent 602 Petition
Before the dispositional hearing could occur, the subsequent section 602 petition was amended on May 11, 2007, adding counts of felony robbery (Pen. Code, § 211) and misdemeanor battery (Pen. Code, § 242) upon two different victims on January 29, 2007, and felony theft of a third victim’s motor vehicle on March 20, 2007 (Veh. Code, § 10851). Each of those offenses also pre-dated Michael’s April 2007 battery. A pretrial hearing date on the seven charges of the amended subsequent section 602 petition was set for May 18, 2007, and the dispositional hearing on Michael’s April 2007 battery was continued to the same date.
At the hearing on the subsequent section 602 petition on May 18, 2007, Michael entered admissions to amended counts of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and receiving stolen property (Pen. Code, § 496). Disposition on these charges, as well as the April 2007 battery charge, was set for June 4, 2007.
5. New Dispositional Report
A new dispositional report, filed on May 25, 2007, recounted Michael’s April 2007 offense as well as the additional offenses he admitted from the amended subsequent section 602 petition. As to the aggravated assault count, Michael approached a fellow student, told him he looked like a “Scrap,” and threatened to beat him up if he saw him outside of school. Michael saw the victim later that day, challenged him to a fight, chased him, punched him in the mouth and stomach, and took his cell phone. As to the count of receiving stolen property, Michael and several other boys were seen driving recklessly in a blue Toyota, which Michael admitted taking after finding it on the street with the ignition punched.
The probation department recommended out-of-home placement, supporting its recommendation as follows: “Before the court is an extremely immature fourteen year old who has admitted some responsibility in these offenses. Michael was dismissed from informal probation on 1-19-07. Ten days later on 1-29-07 Michael was arrested twice, first for being in possession of marijuana and then for assaulting a Tennyson High School student who he thought was a rival gang member, stealing his cell phone and hitting a pregnant vendor trying to intervene. On 3-20-07 Michael was arrested after he was found driving a stolen vehicle which he later admitted to stealing. Fourteen days later, Michael was arrested on 4-3-07 for assaulting what he believed to be another gang member. Michael acknowledges that he immediately identified the victim as a rival gang member, felt threatened so he hit him and threw a bicycle at the person he was with. As documented in this report Michael has a history of aggressive and gang involved activities in particular at school. Michael admits to having a temper and states he will act on it if threatened. Michael admits to being a gang member, Norteño for at least the last two years. [His mother] initially saw no issue with Michael’s association or involvement in a gang. She herself admits to having a temper and to [intimidating] students and teachers in middle school. Both parents have arrest histories which points to some substance abuse and to some issues with physical confrontations. The mother does validly point out the family; in particular Michael has been under stress since learning the paternal grandmother is dying of cancer. [Michael’s parents] suspect Michael’s acting out is directly related to his inability to deal with his feelings about his grandmother. [¶] Due to the persistent nature of Michael’s gang affiliation and gang activities[,] an out of home placement was considered. It is apparent Michael learned little from his period of time on informal supervision. Further[,] given the number of aggressive offenses and general out of control behavior[,] the parents regardless [of] how well meaning appear to have little control or influence over their son.”
6. Dispositional Hearing
At the dispositional hearing before a juvenile court commissioner, Michael’s attorney argued that Michael should receive formal probation and remain in his parent’s physical custody. Essentially, she urged that Michael had been in custody since April 2007, he deserved a chance at formal probation, each of the incidents occurred over a short period of time, Michael and his family had been dealing with his grandmother’s terminal illness, the probation department had not spoken with the family about the out-of-home placement recommendation and was unaware of the efforts the family had undergone to get Michael into counseling, and it was unfair for the probation department to bring up earlier offenses.
The commissioner observed: “[t]his is quite a series of events in a short time. I don’t know that fairness—what probation did alleviates the fact or changes the fact that he’s a serious gang banger.” The commissioner found that the parents did not have control over Michael, had neglected to provide him with proper supervision (see Welf. & Inst. Code, § 726, subd. (a)(1)), reasonable efforts were made to prevent the need for removal, and remaining in the home was contrary to his welfare (see Welf. & Inst. Code, § 726, subd. (a)(3)). The court also pointed out that the order was not taking Michael permanently from his parents’ custody, that he was not going to be “locked up,” and that he could return home if he successfully completed the program.
The commissioner declared Michael to be a ward of the court, removed him from his parents’ custody and control, ordered him to be placed in a suitable foster or group home, and imposed numerous conditions of probation. The court determined that his maximum time of confinement was four years and 10 months. (See Welf. & Inst. Code, § 726, subd. (c).)
7. Application for Rehearing
Michael, through counsel, filed an application for a rehearing pursuant to Welfare and Institutions Code section 252. The application contended that, because Michael had not previously been subject to a juvenile court disposition, “progressive measures of rehabilitation” should have been attempted before the out-of-home placement order.
At the hearing on June 25, 2007, Michael’s counsel argued that a minor could not be removed from home unless reasonable efforts had been made to prevent or eliminate the need for removal, and no such efforts had been made in Michael’s case because this was his first disposition and he had no chance to succeed on formal probation with custody remaining with his parents. Counsel observed that the first (May 2) dispositional report recommended probation because Michael had not been tried on formal probation, and the second dispositional report recommended out-of-home placement even though there had been no change in Michael’s conduct between the two reports. Counsel also claimed that the probation department had been aware of some of the later-charged offenses at the time of its earlier recommendation.
In response, the prosecutor pointed out, among other things, that Michael had been on informal probation for a prior offense and, although he completed the term of probation, on the very date that the probation period ended he confronted a future victim and asked if he was a member of a rival gang. In addition, although Michael had not engaged in crime between the first and second dispositional reports (while he was in custody), a salient event nonetheless occurred between those two reports: Michael admitted additional charges.
The juvenile court found that, based on the transcript of the June 4 dispositional hearing, the commissioner had properly found that the gravity of Michael’s offenses warranted out-of-home placement. The court observed that Michael had increasingly escalated offenses that seemed to be gang-related. Although the commissioner had not expressly supported his finding that reasonable efforts had been made to prevent removal, the finding was made after arguments of counsel and discussion with Michael’s parents, and concluded that Michael was seriously involved in a gang. In reviewing the record, the court had considered the fact that it is unfair for minors to face a disposition and find out later that probation knew about and delayed bringing other charges before the court.
The court concluded: “So for all of those reasons—and this is not something that I take lightly, because I do recognize that the minor had not been tried on probation in home, but I think balancing the totality of what I know and what has been presented about his criminal conduct, I believe that this was the appropriate disposition for him to be placed out of home, and I would order the same thing under the circumstances.” The court denied the petition for rehearing and ruled that the commissioner’s order would remain in effect.
This appeal followed.
II. Discussion
Michael’s appellate counsel represented in the opening brief in this appeal that she wrote Michael at his last known address and advised him of his opportunity to file a supplemental brief within 30 days and to ask the court to relieve appellate counsel from representation if he so desires. This court has not received such a request or supplemental written argument from appellant.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. Disposition
The orders are affirmed.
We concur. SIMONS, Acting P. J.GEMELLO, J.