Opinion
G037517
5-22-2007
In re KYLE M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KYLE M., Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The court found true allegations that minor Kyle M. committed a carjacking, a felony (Pen. Code, § 215, subd. (a)), and resisted an officer, a misdemeanor (Pen. Code, § 148, subd. (a)(1)). He was declared a ward of the court and ordered to serve 180 days in a juvenile facility.
After minor appealed, we appointed counsel to represent him. Counsel filed a brief setting forth the facts of the offenses and the disposition. He did not argue against minor but advised the court he had not found any issues to present on defendants behalf. (People v. Wende (1979) 25 Cal.3d 436.) He suggested three issues to assist us in our independent review of the record: (1) Was there sufficient evidence to prove minors identity and the elements of the offenses; (2) was trial counsel ineffective for failing to make a closing argument; and (3) did the court err by ordering 180 days of confinement rather that the 120 recommended by the probation department. We examined the entire record to determine if any arguable issues were present, including those suggested by counsel and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.) Minor was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from him.
As to sufficiency of the evidence, the victim of the carjacking identified minor at the hearing as the one who took his car; the arresting officer did so as well. This was sufficient proof of minors identity.
The victim of the carjacking testified that, as he got out of his car late one night, minor approached him and demanded his keys. Minor had his hands underneath his shirt and the victim believed he had a weapon. Although he was not willing to give minor the keys, he did so because he was afraid. Minor drove away in the car. Minor admitted planning the carjacking, demanding the keys, and taking the car. This evidence satisfies the prima facie elements of carjacking. (Pen. Code, § 215, subd. (a).)
There was also testimony minor failed to stop the car when police attempted to stop it and, after getting out of the car, ran away from police, despite an officer identifying himself and demanding that minor stop. This evidence is sufficient to prove resisting an officer. (People v. Christopher (2006) 137 Cal.App.4th 418, 431.)
We cannot determine ineffective assistance of counsel on appeal because the record does not show why minors counsel did not make a closing argument. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) This issue may be raised in a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Finally, the court did not abuse its discretion in sentencing minor to 180 days of confinement rather than the 120 recommended by the probation department. The court determined minors acts were "a substantial crime," based on the planning, minors belief the victim was vulnerable and his willingness to use force, and his failure to yield to police. It also pointed to the fact that when he got of out the car, he left it running without regard to whom or what it would hit. It properly considered the gravity of the offense. (Welf. & Inst. Code, § 725.5.) There is no requirement the court accept the probation departments recommendation. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.)
The judgment is affirmed.
WE CONCUR:
MOORE, J.
IKOLA, J.