From Casetext: Smarter Legal Research

In re I.F.

California Court of Appeals, Fifth District
Mar 30, 2009
No. F055062 (Cal. Ct. App. Mar. 30, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. 07CEJ600011-2, Jon N. Kapetan, Judge.

Paul E. Lacy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sara J. Hopper, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Levy, Acting P.J., Cornell, J., and Dawson, J.

PROCEDURAL BACKGROUND

On October 16, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, I.F., committed second degree felony robbery (Pen. Code, § 211, count one), misdemeanor battery (§ 242, count two), misdemeanor vandalism (§ 594, subd. (a)(2), count three), misdemeanor resistance, obstruction, or delay of a peace officer (§ 148, subd. (a)(1), count four), and misdemeanor delay of a peace officer (§ 243, subd. (b), count five). On January 3, 2008, after a contested jurisdictional hearing, the juvenile court found count one to be the lesser included offense of attempted robbery. The court found the remaining counts true. Count one was found to be a felony.

Unless otherwise indicated, all statutory references are to the Penal Code.

At the dispositional hearing on February 7, 2008, the court placed appellant on probation and committed him to the Elkhorn Correctional Facility. The court determined that appellant’s maximum period of confinement was 4 years 10 months. The court’s calculation included a prior and unrelated felony theft violation in 2007.

In his first opening brief, appellant contended that the juvenile court miscalculated his maximum term of confinement. The probation officer and juvenile court chose the theft offense as the principal term. Count one was a subordinate term and was calculated to have a maximum term of confinement of one-third the midterm of two years, or, eight months. This calculation is based on section 213, subdivision (b) which states that notwithstanding section 664, robbery in the second degree is punishable by imprisonment in state prison. Section 18 creates a triad of punishments of 16 months, two years, and three years.

In his first opening brief, however, appellant applied the provision in section 664 creating punishment for half the term otherwise set forth for an offense to section 213, subdivision (a)(2), which creates a triad of two years, three years, and five years. Appellant applied section 664 to the three-year midterm for a midterm of 18 months. One-third of 18 months is six months. Appellant’s analysis failed to follow section 213, subdivision (b).

After receiving respondent’s brief explaining that appellant’s calculation failed to follow section 213, subdivision (b), appellant filed a request on December 18, 2008, to strike his opening brief and file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Appellant filed a Wende brief on December 22, 2008, which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. The Wende brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter dated December 22, 2008, we invited appellant to submit additional briefing. To date, he has not done so.

FACTS

At 6:00 a.m. on October 15, 2007, Frank Kwiecien went to the Circle Six Food Mart at Ventura and First Streets in Fresno. At the store, Kwiecien saw appellant standing near a telephone at the side of the building. As Kwiecien exited his car and walked toward the store, a Hispanic male approached him and asked Kwiecien to buy him a beer. Kwiecien declined and told appellant it would be illegal to buy appellant a beer. Appellant called Kwiecien a derogatory name and Kwiecien went into the store.

Kwiecien bought a cup of coffee and two packs of Marlboro Red cigarettes. When Kwiecien left the store, he was carrying the cup of coffee in one hand and the packages of cigarettes in the other hand. Kwiecien had a third pack of cigarettes in his front pocket. As Kwiecien approached his car, the Hispanic male, who asked him to purchase beer, walked toward Kwiecien and confronted him. The man was muttering something that Kwiecien did not understand.

The Hispanic male said something else Kwiecien could not understand and reached into Kwiecien’s shirt pocket. Kwiecien slapped his hand away. Kwiecien threw his coffee at the man but missed him. Kwiecien got pulled from behind by someone else and fell to the ground. Appellant and the Hispanic male started to kick Kwiecien around the head and face for about a minute. Kwiecien estimated he was hit “two dozen times.” The package of cigarettes in Kwiecien’s pocket was still there after the attack. The packages of cigarettes Kwiecien had been carrying were gone. Kwiecien did not see his attackers carrying the cigarettes away.

Kwiecien suffered cuts to his nose and right ear. He was bleeding a lot and also suffered several bruises. When Kwiecien was washing up later, the sink basin was filled with blood. The court received into evidence a photograph of Kwiecien after the attack and a photograph of the Circle Six market.

Officer Trevor Shipman of the Fresno Police Department was dispatched to investigate the crime. When Shipman saw Kwiecien at the Circle Six, Kwiecien looked beaten up with numerous injuries to his face. Several minutes after arriving at the scene, Shipman came into contact with appellant at First Street just off Ventura. Shipman read appellant his Miranda rights. Appellant had minor scrapes on his face and blood on his right hand.

Miranda v. Arizona (1966) 384 U.S. 436.

Appellant waived his right to remain silent and told Shipman that he knew nothing about an incident at the Circle Six. Photographs were admitted into evidence showing blood on appellant’s right hand.

Officer John Mendes was dispatched to assist Shipman with the investigation. Mendes saw appellant walking west on Ventura and then south on First Street. Appellant appeared surprised to see Mendes and began moving his head back and forth. It appeared to Mendes that appellant was looking for an escape path. Mendes gave appellant verbal commands to get down on the ground. Appellant ignored the commands and continued to walk. Another officer grabbed appellant’s hand and pulled him to the ground. Appellant had blood on his hands.

When a police technician attempted to take a blood sample from appellant’s hands, appellant “balled” them up into a fist. Appellant pulled on the technician’s fingers as the technician grabbed appellant’s handcuffs, appellant released the technician’s fingers and kicked the technician in the groin. When appellant was searched after his arrest, officers did not find any cigarettes on him.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.


Summaries of

In re I.F.

California Court of Appeals, Fifth District
Mar 30, 2009
No. F055062 (Cal. Ct. App. Mar. 30, 2009)
Case details for

In re I.F.

Case Details

Full title:In re I.F., a Person Coming Under The Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fifth District

Date published: Mar 30, 2009

Citations

No. F055062 (Cal. Ct. App. Mar. 30, 2009)