Opinion
H036068
08-19-2011
In re K.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. JV32555)
A Welfare and Institutions Code section 602 petition (602 petition) alleged that, on or about January 21, 2010, K.C. (the minor) assaulted and robbed a fellow student and was subsequently found to be in the possession of a nunchaku. (Pen. Code, §§ 211, 245, subd. (a)(1), 12020, subd. (a)(1).) After the People dismissed the assault charge, the juvenile court sustained the petition on the robbery and weapon possession counts and found the robbery to be a felony.
All further unspecified statutory references are to the Penal Code.
Following a contested dispositional hearing, the juvenile court ordered the minor committed to the Department of Juvenile Justice (DJJ) for four years and set the maximum time at six years, 79 days, with predisposition credits of two years, 79 days. The court further ordered the minor to pay a restitution fine of $110 and ordered attorney fees in the amount of $500, subject to the minor's and his parents' ability to pay.
We appointed counsel to represent the minor in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified the minor of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from the minor.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The contested jurisdictional hearing
On January 21, 2010, the minor got into an argument with a fellow student (the victim) at his high school in San Jose. Earlier in the day, the minor had twice told the victim that he wanted the victim's iPhone and that he wanted the victim to beat up a "Crip." Although, the minor threatened to beat up the victim if he failed to beat up a Crip as directed, the victim did not comply.
Around 3:00 p.m., the victim was walking home when a car drove up to him. The minor yelled at him from the car before getting out, walking up to the victim and punching him in the jaw. The victim asked the minor what he wanted, and when the minor said he wanted the victim's phone, the victim handed him his iPhone because he was afraid the minor would hit him again if he did not. The punch dislocated one of the victim's teeth and the victim's face was swollen for about five or six days afterwards.
Later that day, Santa Clara County Deputy Sheriff Chris Salas was investigating the assault and robbery of the victim. He and his partner, Deputy Jada Dessaure, went to the minor's home, searched his bedroom and discovered a nunchaku. Dessaure asked the minor who the nunchaku belonged to, and the minor admitted it was his.
On cross-examination, Salas testified that the victim told him the minor had a history of bullying him at school. However, the victim denied that this was so, and denied reporting this to Salas. The victim also admitted that when he told Salas what happened between himself and the minor that day, he did not mention that he and the minor spent several hours together at a mutual friend's house that day.
Dessaure admitted on cross-examination that her written report did not discuss the nunchaku and did not mention that the minor admitted it was his.
The juvenile court sustained the petition and found that the minor had committed felony second degree robbery (§§ 211, 212.5, subd. (c), count 1) and was in possession of an illegal weapon, namely a nunchaku (§ 12020, subd. (a)(1), count 3).
B. The contested dispositional hearing
Josephine Slonski, an intake and court liaison with the DJJ, testified as an expert witness in the operation of DJJ, including its facilities, programming and services. After reviewing two recent probation reports, a printout of the minor's referral history, the current section 602 petition and talking to the minor's probation officer, Slonski indicated that, if the minor were committed to the DJJ, his most recent offense would be a category four offense. With a category four offense, the minor could earn time credits up to 15 days per month and his parole baseline would be two years.
The minor's probation officer, Jay Jennings, testified as an expert witness in the area of dispositional recommendations for delinquent minors. He met with the minor approximately 11 times since being assigned as his probation officer.
Jennings testified regarding the minor's prior criminal history, and said that the minor was first cited in 2004 at the age of 12 for possession of marijuana and taking cell phones from two other students. The matter was settled at in-take because the probation officer had "difficulty locating the family and because [the minor] was 12."
According to Jennings, in 2006 the minor was cited for battery when he pushed a 50-year-old "mentally disabled" man to the ground at a lightrail station. Apparently, the minor had a history of harassing the man whenever he encountered him and, on this occasion, first knocked the man's hat off his head, then pushed him twice to the ground. The minor denied being responsible, and claimed that it was his friend who had assaulted the man. The probation department did not get involved in that incident for several months, however, until the minor committed an assault and robbery in January 2007.
In the January 2007 incident, the minor, then 14 years old, approached a 19-year-old man wearing blue shoes sitting in the park with his girlfriend. The minor asked the man if he was a "scrap," a derogatory term for Sureno gang members, but the man denied being in a gang. The minor demanded money and the man pulled out his wallet and gave the minor $5. While the man was looking down, the minor punched him in the face and knocked him to the ground. The minor then hit the man with a black metal rod, and the man reported losing consciousness for several seconds as a result of the attack. The minor was identified as the assailant and issued a citation.
Approximately two weeks later, the minor robbed a 15-year-old boy of his iPod. The minor approached the boy, and asked to see his iPod. After the boy handed it to him, the minor ran off. When the boy pursued him, the minor picked up a river rock, approximately four or five inches in diameter, from someone's yard. The minor grabbed the victim, held his head down and smashed him in the back of the head with the rock. The boy was transported to the hospital in an ambulance and required stitches.
Jennings testified that in the subsequent delinquency proceedings relating to these three incidents, the petitions were sustained and the minor was sent to the Wright Center (the ranch) on May 31, 2007. Within a month of arriving at the ranch, the minor was involved in a fight with two Sureno gang members. The minor was "failed from the ranch, brought back to the [juvenile] hall, and . . . a violation of probation . . . was sustained."
The minor was then returned to the ranch in September 2007, where he "did very well," and was placed on prerelease in March of 2008. The minor remained in full compliance until June of 2008, when he committed another robbery. In this incident, the minor, accompanied by two or three adult friends, surrounded a young man and demanded money. The minor brandished a knife and the young man handed over his wallet or his money. The minor and his accomplices got into a car and drove away. When he was subsequently arrested, the minor was in possession of individually-wrapped packages of marijuana.
Although this was the minor's third violent crime, his then-probation officer recommended 60 days electronic monitoring prior to the contested jurisdictional hearing. Before the 60 days expired, however, the minor absconded. He turned himself in three or four months later and the petition was sustained. The minor was given 180 days in the Life Skills program, and he was released from juvenile hall on May 16, 2009.
While the minor remained on probation, he tested positive for marijuana and there were reports, which could not be confirmed by school officials, that he was selling marijuana on campus. Approximately eight months after his release from juvenile hall, the minor committed the most recent offense where he punched the victim and stole his iPhone.
Based on his assessment of the minor and his review of the minor's record, Jennings recommended that the minor be committed to the DJJ. He was especially concerned by the minor's lack of emotion and empathy.
Dr. Rahn Minagawa testified as an expert in clinical and forensic psychology. Before Minagawa personally evaluated the minor, he reviewed the police reports, probation officer's report and two other psychological evaluations of the minor. Based on his evaluation and review of these documents, Minagawa recommended that the minor be placed at the ranch, rather than committed to the DJJ, principally because at the DJJ, the minor would be confined with other minors who "tend to be much more deeply involved in either gangs or antisocial behaviors[, . . .] many of [whom] also have drug and alcohol problems, but are in a much deeper level." On cross-examination, Minagawa stated that the minor needed to be in a structured program for 12 to 24 months, although it was undisputed that a ranch placement only lasts from six to eight months. Minagawa admitted he was not aware of recently-established programs at the DJJ in aggression therapy, gang intervention, substance abuse, or victim awareness, nor was he familiar with the DJJ's new intake screening and placement procedures.
The minor's counsel also introduced two supportive letters, one from Cindy Deetz, the minor's teacher at his high school's special education department and one from Dimas Martinez, Outreach educator, and Mario Ozuna Sanchez, director of intervention services at the Mexican American Community Services Agency, Inc.
The juvenile court committed the minor to the DJJ, and set the maximum time at six years and 79 days, with predisposition credits of two years and 79 days. The court set attorney fees at $500 and ordered the minor to pay a restitution fine of $110.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. DISPOSITION
The dispositional order is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.