Opinion
F064243
10-31-2012
In re ALEX R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALEX R., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 10JQ0073C)
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Following a contested jurisdiction hearing, the juvenile court found true substantive offense allegations that appellant, Alex R., a minor, committed two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and enhancement allegations that he committed both counts for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)). Following the subsequent disposition hearing, the court continued appellant as a ward of the court, ordered him committed to the Kings County Juvenile Academy Bravo Program for a period of not more than one year and not less than 150 days, and, based on the offenses and enhancements adjudicated in both the instant case and in prior wardship proceedings, declared the maximum period of physical confinement to be 24 years 4 months.
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court's invitation to submit additional briefing. We affirm.
FACTS
The Instant Offenses
Appellant stands adjudicated of assault with a deadly weapon against Lieutenant Lorenzo Rivera, a juvenile correctional officer at Kings County Juvenile Center (KCJC), and Marco C. (Marco), a minor who was housed at KCJC on April 11, 2011 (April 11), during a melee that occurred on that date.
Rivera testified to the following: On April 11, he saw "a fight ... taking place over in the male unit." There were 10 to 15 minors "in the vicinity," and Rivera was able to identify three minors who were "actively participating" in the fight: Nathan R. (Nathan), Louie R. (Louie) and appellant. "[M]ultiple people [were] trying to strike" Marco. Louie picked up a chair and swung it at Marco. Rivera "threw [his] arm up to try to block it," but he was hit with the chair, as was Marco.
Marco testified to the following: He was at KCJC on or about April 11 when another minor approached him and asked, "what's up, fool, you bang?" Marco said, "I don't bang, but do what you got to do." Marco did not remember what happened at that point, except that he "started getting hit." He was "hit from all sides" but he did not know who was hitting him. He recalled telling an investigating officer that Nathan was the one who asked him if he "banged."
Fred Wills testified to the following: He was working as a "group supervisor" at KCJC on or about April 11, when a fight broke out. Marco was sitting on a couch in the "rec room" when Nathan struck him in the back of the head, at which point Marco "jumped up" and began fighting. Other minors "joined Nathan ... in [the] altercation[.]" Appellant was one of the "attacker[s]." He "was swinging, trying to get toward Marco," and "[a]t some point," despite Wills's efforts to stop the attackers, appellant succeeded in "get[ting] to" Marco.
Kings County Senior Deputy Sheriff Andrew Meyer testified that in the course of conducting an investigation of the April 11 fight at KCJC, he spoke with Marco, and that Marco stated appellant "was one of the persons punching him."
Gang Evidence
The court found Kings County Senior Deputy Sheriff Andrew Meyer qualified to testify as "an expert in the area of gangs." Deputy Meyer testified to the following:
The "Surenos" is a "southern Hispanic gang." "The Nortenos" is "the primary rival for the Surenos The two groups are "sworn enemies."
Except as otherwise indicated, all information in the "Gang Evidence" section of our factual summary is taken from Deputy Meyer's testimony.
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There are approximately 2,500 members of the Nortenos in Kings County. The "primary activities" of the Nortenos include "drive-by shootings," murder and attempted murder. In 2009, two members of the Nortenos committed the offense of shooting at an inhabited dwelling (Pen. Code, § 246), and in 2008 another Nortenos member committed "felony assault."
Appellant, Nathan and Louie are members of the Nortenos. Lieutenant Rivera testified that Marco "is very vocal [about] his gang association," and told the lieutenant he (Marco) is a "Sureno gang member."
According to the "rule" of "gang culture," "if one gang member is in a fight, the other gang members standing around that are part of his gang, ... are supposed to engage and back their fellow gang member up." Attacking a member of a rival gang "benefits the [attacking] gang" because such an attack "bolsters the [attacking] gang" and is "supposed to strike fear into their rivals ...."
DISCUSSION
Appellate counsel, in his Wende brief, informs us that appellant "personally requests" that this court "address" the following questions: "1. Was there sufficient evidence Alex aided/abetted Louie in committing the assault with the chair? [¶] 2. Does the doctrine of transferred intent apply to the assault charges against Alex? [¶] 3. Was there substantial evidence to support the Penal Code section 186.22, subdivision (b)(1) enhancement? [¶] 4. Does the proscription against multiple punishments for a single act under Penal Code section 654 require the court to stay the sentence for one of the two assault charges against Alex? [¶] 5. Did the juvenile court properly include a 5-year enhancement as to each count pursuant to Penal Code section 186.22, subdivision (b)(1) in Alex's maximum commitment calculation? [¶] 6. Did the juvenile court order the correct fines and fees? [¶] 7. Did the juvenile court calculate the proper maximum custody time? [¶] 8. Did the juvenile court properly deny Alex presentence credits on the present matter? [¶] 9. Was the juvenile court's restitution order an abuse of discretion?" We have considered these questions, and we have determined that none of them raise any reasonably arguable legal or factual issues.
In addition, we have independently reviewed the record, and based on that review we have determined that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.