Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kings County, No. 08JQ0213, George L. Orndoff, Judge.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Vartabedian, A.P.J., Cornell, J., and Kane, J.
FACTS AND PROCEEDINGS
On October 27, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 charging appellant, J.C., Jr., with three counts of felony assault with a deadly weapon by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)). Count one further alleged appellant committed that offense for the benefit of a criminal street gang (§ 182.22, subd. (b)(1)(B)).
Unless otherwise indicated, all statutory references are to the Penal Code.
On November 21, 2008, appellant entered into a plea agreement wherein he would admit count one and the gang enhancement and the remaining allegations would be dismissed. The juvenile court explained to appellant the consequences of his admission of the allegations as well as his constitutional rights. The court then advised appellant he faced a commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for up to nine years. Appellant waived his rights. Appellant admitted count one and the gang allegation.
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
Appellant entered into the same plea agreement on October 31, 2008, but the parties could not establish a factual basis for appellant’s change of plea and the juvenile court would not accept the plea.
The prosecutor set forth the factual basis for appellant’s change of plea. On October 21, 2008, appellant along with coparticipants approached three minors, surrounded them, and did not allow them to proceed through an apartment complex. Appellant approached A. and assaulted him in the back of his head with a pair of metal knuckles. A. was further beaten by the other coparticipants. One of the coparticipants yelled profanity and gang slogans at the three minors. Appellant confirmed that this recounting of events was accurate and the juvenile court found a factual basis for the plea.
The probation officer noted in her report that appellant’s only other offense was misdemeanor battery on school property in December 2007 for which he received a warning. Appellant’s grades in school were poor. Appellant had ten disciplinary referrals at school for, among other things, gang-related tagging on papers, cutting classes, not attending Saturday school, a theft on campus, profanity, disturbing classes, and dress code violations. Appellant was a member of the Norteño Gang for three or four years. Appellant wears gang attire and clothing and had been suspended for doing so. The probation officer recommended appellant’s commitment to DJF.
The juvenile court noted appellant’s poor performance at school and the fact that he was a validated gang member for a number of years. The court found the only mitigating factor in appellant’s case was his early admission of culpability. The court ordered appellant committed to DJF, noting that appellant’s maximum period of confinement was four years for assault with a deadly weapon and five years for the gang enhancement. The court found the present offense comes within the provisions of Welfare and Institutions Code section 707, subdivision (b). Although the court stated it was aware it had the discretion to commit appellant to DJF for less than the maximum time of confinement, the court ordered appellant to serve the nine-year maximum term of confinement.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on April 27, 2009, we invited appellant to submit additional briefing. Appellant replied with a letter stating his counsel improperly induced him to change his plea by misinforming him that he would not go to DJF because he was a first-time offender.
The primary problem with appellant’s contention is that there is nothing in the appellate record to corroborate what his counsel told him regarding the consequences of his plea. The conversation appellant refers to was not recorded in the appellate record. On appeal, our review is limited to the four corners of the record on appeal. (In re Carpenter (1995) 9 Cal.4th 634, 646; People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) Indeed, the juvenile court expressly advised appellant that if he admitted count one and the enhancement he could be sent to DJF for up to nine years. When asked if he understood this potential consequence of his plea, appellant replied, “Yes, your Honor.” We find no merit to this issue.
After independent review of the record, we conclude there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.