Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 189130
NEEDHAM, J.
Davon J. (Davon) appeals from a dispositional order of a juvenile court commissioner and an order denying his petition 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 Petitions
In December 2003, a petition under Welfare and Institutions Code section 602 alleged that Davon committed a burglary (Pen. Code, § 459). In January 2004, the court placed Davon on informal probation under Welfare and Institutions Code section 654.2.
Except where otherwise indicated, all statutory references hereafter are to the Welfare and Institutions Code.
In October 2004, an amendment to the petition alleged that Davon committed an additional burglary. The court set aside the probation, Davon admitted the second burglary, and the first burglary allegation was reinstated and dismissed. Davon was adjudged a ward of the court and returned to the custody of his mother under supervision of the probation department.
In February 2005, a subsequent 602 petition alleged that Davon unlawfully possessed a concealable firearm (Pen. Code, § 12101, subd. (a)(1)), brought a firearm onto school grounds (Pen. Code, § 626.9), and carried a concealed firearm without a license (Pen. Code, § 12025, subd. (a)(2)). Davon admitted the allegation that he unlawfully possessed a concealable firearm, and the remaining counts were dismissed. In March 2005, wardship was continued and Davon was released to his mother on home supervision pending acceptance to the Family Preservation Unit. After a period with the Family Preservation Unit, Davon was released from home supervision in April 2005.
In September 2005, a supplemental petition under section 777a alleged that Davon had violated the terms of his probation by being suspended from school and receiving a “Notice to Appear for alleged robbery.” Davon was detained at juvenile hall and then released to his mother. In October 2005, a further supplemental petition under section 777a alleged that Davon had violated the terms of probation by being suspended from school for willfully using force on another, committing or attempting to commit robbery, and disrupting school activities. It was also alleged that Davon received five misconduct referrals, a notice to appear for alleged robbery, and a reprimand from the Fremont Police for an alleged battery. At the ensuing jurisdictional hearing in December 2005, Davon admitted the conduct alleged in the second section 777a petition. In February 2006, Davon was released on electronic monitoring. In March 2006, he was released from electronic monitoring and placed on home supervision, which was vacated in April 2006.
In May 2006, a subsequent 602 petition alleged attempted robbery (Pen. Code, § 664/211) and two counts of misdemeanor battery (Pen. Code, § 242). Davon admitted one of the battery counts, and the other two counts were dismissed on motion of the district attorney. In July 2006, wardship was continued and Davon was continued on probation with additional restrictive terms.
B. The Current Petition
In February 2007, a further subsequent 602 petition alleged that Davon perpetrated robbery and attempted robbery. The evidence at the March 2007 jurisdictional hearing, at which Davon was represented by counsel, included the following.
1. The People’s Case
Sean S. testified that he and his girlfriend Stephany were approached by Davon and another boy at a bus stop on February 22, 2007. Davon or his friend told them to “empty out our pockets and just give them what we had.” Sean gave Davon three dollars he had in his pocket, hoping that Davon and his friend would go away. Sean was scared, even though neither Davon nor his friend displayed a weapon or verbally threatened him. He nonetheless refused to turn over his iPod and headphones, despite Davon’s demands.
After Sean gave Davon the three dollars, he and Stephany walked to Sean’s house. Davon and the other boy followed them part of the way. Sean told his father what had happened, and his father called 911.
After 20 to 30 minutes, the police arrived. Ten to twenty minutes later, the police took Sean to a liquor store near the bus stop, where he identified Davon and his friend as the boys who had robbed him. Sean explained that he was “100 percent positive” of this identification.
Stephany was subsequently taken to identify the suspects. She identified Davon’s friend as one of the individuals involved in the incident. She also told police that Davon might have been the other participant, although she “wasn’t sure.” When asked at the hearing what she meant by “unsure” on a “scale of 1 to 10, [with] 10 being sure and 1 being very unsure,” Stephany testified that her certainty scored an “8.”
The parties stipulated that the police did not recover the three dollars from Davon or his friend.
2. Defense Case
Davon’s mother testified that Davon was at home before he was arrested. He told her he was going to a Wienerschnitzel restaurant, about five minutes away, and asked her for a dollar. The next time she saw him, Davon was across the street in front of a liquor store. She also testified that Davon has a non-identical twin brother, D., with the same complexion. It was unclear where D. was at the time of the incident.
Davon testified that he was at home shortly before the arrest and decided to go to the Wienerschnitzel restaurant. He claimed that the bus stop, located across the street from his home, was not on his route to the restaurant. At the restaurant with his friend Christopher, Davon had one dollar from his mother and bought a chili cheese fried burrito for $1.08. Then he and Christopher went to the liquor store so Christopher could buy a cigarette. After two minutes at the liquor store, Davon was arrested.
3. Ruling at Jurisdictional Hearing
The court found the evidence insufficient to establish a robbery, but sufficient to establish theft from a person. (Pen. Code, § 487, subd. (c).) The attempted robbery allegation was stricken. The court determined that the maximum time of confinement, based on the offense sustained in the petition and the terms of all previously sustained petitions, was seven years six months.
4. Dispositional Order
At the April 2007 dispositional hearing, Davon was again represented by counsel. The juvenile court commissioner found that Davon had been tried on probation in the physical custody of his parent but failed to reform (§ 726, subd. (a)(2)), Davon’s welfare required that custody be taken from his mother (§ 726, subd. (a)(3)), continuance in the home of the mother was contrary to Davon’s welfare, and reasonable efforts had been made to prevent or eliminate the need for removal of Davon from his home. The court continued wardship and ordered that Davon be placed in a suitable foster home, private institution, or group home/county facility. Additional out-of-home terms and conditions of probations were imposed as well.
5. Petition for Rehearing
Davon petitioned for a rehearing, contending that the commissioner erred in remanding Davon into custody, proceeding with the disposition on the same day, and ordering an out-of-home placement. After a careful review of the dispositional hearing transcript, including quoting from the transcript at the petition hearing, the juvenile court found that the commissioner had not abused her discretion.
Davon appealed from the dispositional order and the denial of his petition for a rehearing.
II. DISCUSSION
Davon’s appellate counsel represented in the opening brief in this appeal that he wrote Davon at his last known address and advised him of the filing of a Wende brief, Davon’s opportunity to file his own supplemental brief within 30 days thereafter, and his right to request that appellate counsel be relieved from representation if Davon so desired. 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. JONES, P. J., SIMONS, J.