Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 05CEJ601467-3, Jon Nick Kapetan, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
INTRODUCTION
On July 24, 2007, a subsequent petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Raul M., committed robbery (Pen. Code, § 211). The petition further alleged Raul used a knife in violation of section 12022, subdivision (b)(1). The juvenile court sustained the petition at the jurisdictional hearing on August 14, 2007. At the conclusion of the disposition hearing the court committed Raul to the Department of Juvenile Justice (DJJ) for a term of five years for robbery plus a consecutive term of one year for use of a knife and four months for the earlier adjudication for misdemeanor possession of a deadly weapon.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On November 4, 2005, Raul admitted fighting on school grounds (§ 415.5). On April 10, 2006 Raul admitted misdemeanor possession of a dangerous weapon (§ 12020, subd. (a)). On April 6, 2007, Raul admitted an allegation that he violated the conditions of his probation.
Raul’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 Raul was advised he could file his own brief with this court. By letter on April 7, 2008, we invited Raul to submit additional briefing. To date, he has not done so.
FACTS
Robbery
At 8:10 p.m. on July 20, 2007, Raul was seen by security guard Isaac Centeno inside a Rite Aid pharmacy at Shields and Brawley in Fresno. Centeno was dressed casually to blend in with store customers. While looking through a cold box, Centeno saw Raul grab a bottle of liquor. Centeno walked over to Raul and told him not to run because Centeno was not going to call the police. Centeno wanted Raul to return the liquor bottle. When Centeno began talking to Raul, he was a few feet away from the minor. Raul ran away.
Centeno grabbed Raul to calm him down and to try to reason with him. Centeno told Raul he wanted the liquor bottle back. As Centeno grabbed Raul, Raul’s momentum from running took them both outside the store. Raul had a friend waiting for him there. Raul told the friend to get Centeno off of him. Centeno let go of Raul and the other person “stood up and squared off.”
Raul reached into his pocket and pulled out a switchblade knife. As Centeno backed away, Raul swung at him once. Raul was holding the knife in his right hand. The two were standing only two or three feet apart. The knife was no more than three inches long and had teeth on it. Following store procedure, Centeno completely backed away from Raul. Raul ran across the street.
Police officers pulled into the parking lot. Centeno told them he had been robbed and Raul pulled a knife on him. Raul was walking across the street and Centeno pointed him out to the officiers. The officers arrested Raul. Centeno identified Raul as the robber. One of the officers recovered two bottles of liquor from Raul.
Officer Bradley Oliver of the Fresno Police Department testified that he was approached by a Rite Aid loss prevention officer on July 20, 2007 who told Oliver he was robbed at knife point. Oliver approached Raul, identified by Centeno as the robber, and asked Raul if he had recently been inside the Rite Aid store.
Raul replied he had come from there. Oliver patted Raul down for officer safety and found a collapsible knife and two bottles of liquor in Raul’s pockets.
Oliver read Raul his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Oliver asked Raul where he obtained the alcohol. Raul replied he had stolen the alcohol from Rite Aid. Raul told Oliver that he was 16 years old. Raul admitted pointing the knife at the person who grabbed him at the store. Raul told Oliver he carried the knife for protection.
Raul testified he went into the store to take a couple of bottles of liquor. Raul did not know Centeno was a security guard. When Centeno grabbed Raul, he did not identify himself as a security guard. Centeno was wearing a red shirt and blue jean pants. The only thing Centeno said to Raul was he would not go to jail. Raul said he pulled out a knife, but made no motions with the knife. Raul admitted telling his friend to get Centeno off of him and making a statement to the police officer.
Disposition Hearing
The probation officer reported that Raul had poor school attendance as well as numerous suspensions and expulsions. Raul admitted using alcohol, marijuana, methamphetamine, cocaine, and ecstasy. At age 14, Raul jumped into the Parkside Bulldog gang.
Raul had a prior commitment to the Elkhorn Correctional Facility Delta Program (Elkhorn). Raul did not have a good history while on probation, including failure to obey court orders, using drugs or alcohol, and associating with gang members. The probation officer noted Raul failed to complete the program at Elkhorn and was returned to juvenile hall while attempting to commit suicide.
The probation officer did not believe an electronic monitoring program was appropriate and noted Raul failed to complete the Elkhorn program. The probation officer noted Raul was a danger to the community and recommended placement at DJJ.
The juvenile court noted Raul was a thief who carried weapons, belonged to a gang, and had a long juvenile history that included violations of probation. The court found Raul was on probation when he committed the instant offense and his prior history on probation was unsatisfactory. The court noted it considered less restrictive alternatives to placement at DJJ, but that those alternatives were inappropriate.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.