Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. J189659
SIMONS, Acting P. J.
Joseph L., born September 1989, appeals an order of the juvenile court declaring him a ward of the court (Welf. & Inst. Code, § 602) and ordering his out-of-home placement after the court found he had committed sodomy (Pen. Code, § 286, subd. (c)) and a lewd act on a child under 14 years old (Pen. Code, § 288, subd. (a).) His counsel has advised that examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has informed his client in writing that a Wende brief was being filed and that defendant had the right to personally file a supplemental brief in this case within 30 days. No supplemental brief has been filed.
BACKGROUND
On April 11, 2006, the subject section 602 petition was filed alleging then 16-year-old defendant’s commission of a March 19 act of sodomy. On July 11, the petition was amended to allege defendant’s March 19 commission of a lewd act on a child under 14 years old. Defendant was placed at juvenile hall on April 9.
In June 2006, during the pretrial stage, defendant moved to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, on the ground that counsel’s representation was deficient. The trial court properly denied the motion after questioning defendant, defendant’s mother and uncle and defense counsel. In July, the section 602 petition was amended to allege the lewd conduct charge. (Pen. Code, § 288, subd. (a).) Thereafter, defendant retained private counsel.
Jurisdictional Hearing
At the August 15, 2006 jurisdictional hearing, M.S., the victim’s mother, testified that since 2000, defendant’s mother, Alicia J., (also referred to as “Lisa”), provided child care for the victim and her sister in Lisa’s home. About once a month, the children stayed overnight at Lisa’s home, where defendant resided. The children slept either in defendant’s mother’s bed, on the couch, or in defendant’s bed. The victim (age 10) and her younger sister (age 4) spent the March 19, 2006 weekend at Lisa’s home. In April the victim told M. that when she spent the night at defendant and Lisa’s home, defendant “took his private part and rubbed it in-between her butt.” The victim said the conduct last occurred during the March 19 weekend. The mother took the children to the hospital and they were interviewed at “CALICO.”
The victim testified that when she spent the night at Lisa’s home, defendant would touch her “bottom” with his “private part.” On the March 19, 2006 weekend, she awoke to find herself on her knees and defendant on top of her. He held her down as she tried to push him away. He also put his “private part” inside her “bottom.”
Alicia J. testified that the victim had lied to her on many occasions. Once the victim stole Alicia’s watch and once stole candy from Wal-Mart. Alicia said that defendant did not sleep at home the night of March 19 and was only at the house that day for 5 or 10 minutes. She said on the weekends defendant stayed at either his father’s or his uncle’s home. She also said when she and M. confronted defendant about the incident, he denied touching the victim.
Defendant’s uncle, Ronald J., testified he had been incarcerated several times as an adult for bank robbery. He said that defendant spent the entire night of March 19, 2006 at J.’ house and they watched X-rated movies. J. also said that the victim had problems with school and he had tried to counsel her.
Defendant testified he had known the victim for 6 or 7 years and they were like siblings. He denied sleeping at his mother’s house on the night of the March 19, 2006 incident, and denied ever engaging in sexual conduct with the victim.. He said the victim would lie about school and mentioned the two instances of stealing testified to by Alicia.
At the conclusion of the jurisdictional hearing, the court exercised its discretion to find the victim “very credible,” found the allegations of both offenses true and referred defendant for a mental health evaluation.
The probation department’s dispositional report noted that defendant was placed on probation in March 2004 after committing theft from a person (Pen. Code, § 487, subd. (c)). The report recommended that given defendant’s failure on probation, he should be placed in a suitable family home or group home under standard out-of-home probation conditions. At the dispositional hearing, defendant’s counsel stated with defendant’s consent, she was submitting on the report. The court stated it was following the probation department’s out-of-home placement recommendations and conditions including sex offender treatment. Defendant was properly given 165 days credit for time served and ordered to pay a $100 restitution fine.
Defendant was adequately represented by counsel at every stage of the proceedings, and appeared at every hearing. We conclude there are no arguable issues.
DISPOSITION
The order is affirmed.
We concur: GEMELLO, J., NEEDHAM, J.