Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J0401118
Lambden, J.
This is an appeal from a juvenile matter. Appellant’s counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Appellant did not file a supplemental brief.
STATEMENT OF FACTS
In the early morning hours of June 18, 2007, three male youths, appellant C.M., his brother E.M., and another minor, Nathan, entered the room of the 16-year-old victim at a Merced County group home. Appellant was a 15-year-old dependent of the state and all the youths were residents of the group home. The victim, an autistic paranoid schizophrenic with slight mental retardation, was sleeping in his bed. The victim’s roommate was also present in the room, but remained asleep throughout the entire assault.
There are conflicting stories about what happened that night and the victim was unsure of who committed the actual rape. According to the victim, the three youths came into his room around 1:15 a.m. The victim testified that either Nathan or appellant held down his arms and either Nathan or E.M. restrained his legs. He could not remember whether it was E.M. or appellant who pulled down his pants and sodomized him. To prevent him from screaming, appellant held the victim’s mouth shut and Nathan punched him in the face and shoved a sock into his mouth. During the sexual assault, one of the youths used a blue pen to mark the victim’s buttocks. It is unclear which youth used the pen. The rapist also ejaculated on either the victim’s buttocks or his back. After the rape, Nathan told the victim, “Now you are gay now, you faggot.”
Once the youths left, the victim went back to sleep. The next morning, he took a shower and washed his clothes because he liked being a “clean person.” He was unable to completely remove the blue ink from his buttocks. After school that day, he told two people about the rape.
Appellant and his brother were both arrested on June 20, 2007, for the sexual assault. Nathan was arrested the following day. When police detectives spoke with E.M., he initially denied any knowledge of the assault. He gave conflicting stories about his whereabouts at the group home that week, stating that he was not in the home when the rape occurred. After more questioning, he admitted to being present, but claimed that Nathan had committed the rape. E.M. told the detectives that Nathan had sodomized another boy prior to this incident. He said that he and appellant had reported the incident to the staff, which the staff denied. Appellant, on the other hand, claimed his brother was lying and said that he had been in bed that night and was unaware of the assault.
Nathan’s version of events also differed. Nathan told the detectives that on the night of the rape, E.M. woke him up and held a shank to his throat. He was led to the victim’s room where appellant was already restraining the victim and holding his mouth shut. A few minutes later, while still holding the shank, E.M. sodomized the victim. Both brothers threatened to “shank” Nathan if he told anyone about the rape. Nathan testified that he was afraid of E.M. and appellant and that he was once forced to sodomize another male youth after E.M. held a shank to his throat and threatened to stab him. E.M. had also previously burned Nathan with a shank.
Shanks were found under both appellant’s and his brother’s mattresses. A screwdriver with a black and red handle with a pointed end was found under appellant’s mattress. The other shank had a black handle with a pointed shaft and was taped to a ball point pen.
The day after the rape, June 19, 2007, the victim was examined by a forensic nurse who was unable to determine whether the victim had been sexually assaulted or sodomized. Although the minor had complained about experiencing pain in his buttocks, the nurse was unable to find any physical evidence of damage to the rectum. However, the nurse testified that while sodomy may result in the tearing of the rectal walls, tearing does not occur in every case.
The examination did reveal the existence of pen markings on both sides of the minor’s buttocks and at the anal opening. There were also pen marks on his left abdomen and a small circular bruise on his left inner arm. The nurse recalled that the victim had expressed uncertainty as to whether the rapist had ejaculated on him. The nurse did not use a lamp, which would have revealed the presence of matter foreign to the victim.
A group home staff member who was on duty the night of the rape testified that the assault could not have occurred at the time the victim claimed because she was on duty from 12:30 a.m. to 8:30 a.m. Part of her duties was to check on the children every 10 to 15 minutes.
Appellant, E.M., and Nathan had a history of bullying the victim. They picked on him on a regular basis and prior to the rape, the victim had used a tape recorder to record insults and threats from the three. They had also harassed and assaulted another boy in the home. E.M. had heated up a sharpened screwdriver and burned the same 15-year-old boy whom Nathan claimed he had been forced to sodomize. Appellant has a prior history of violence and drug and alcohol abuse with charges including criminal threats, assault, battery, and fire setting. There have been multiple reports against appellant’s mother, father, and grandmother for abuse and neglect.
PROCEDURAL HISTORY
A juvenile wardship petition was filed on June 22, 2007. Appellant was arraigned on a petition filed on the same date. He was charged before the Merced County Superior Court with one felony count of sodomy in concert with force or fear (Pen. Code, § 286, subd. (d)).
A motion to consolidate was filed on July 13, 2007. Appellant’s case and his brother’s case were consolidated for jurisdiction purposes only. A time waiver was entered on August 17, 2007.
A jurisdiction hearing was held on October 24, 2007. The judge found the charge of sodomy to be true under section 602 of the California Welfare and Institutions Code. Because appellant was a dependent and resident of Contra Costa County, the judge ordered that he be transferred back to the county for the final determination of whether appellant belonged in the dependency or delinquency system.
The disposition hearing was held in Contra Costa County on November 29, 2007. A contested disposition hearing was held on December 20, 2007.
On January 2, 2008, the court sentenced the appellant to the Department of Juvenile Justice for the maximum term of nine years with 198 days credit. The judge chose not to exercise his discretion to reduce the maximum period of actual confinement. The judge ordered appellant to be placed in a sex offender treatment program and to register as a sex offender under Penal Code section 290. Appellant was also ordered to pay $200 in restitution fines.
Appellant filed an appeal on January 4, 2008. Counsel was appointed on March 28, 2008.
On June 3, 2008, notice was sent to appellant’s counsel informing her that the time for filing the opening brief had expired. Counsel requested an extension on June 26, 2008, which was granted on August 1, 2008. Counsel requested and was granted a second extension on July 30, 2008. A third extension, filed August 1, 2008, was granted on August 15, 2008, with notice that no more extensions would be granted.
Appellant’s counsel filed the opening Wende brief on September 16, 2008. Appellant did not file a supplemental brief on his own behalf.
We have reviewed the entire record and find no arguable issues.
Accordingly, the judgment is affirmed.
We concur: Kline, P.J., Richman, J.