Opinion
A151622
01-05-2018
THE PEOPLE, Plaintiff and Respondent, v. D.F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00132)
Defendant D.F., a ward of the court, appeals after a judgment in a proceeding under Welfare and Institutions Code section 602. D.F.'s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. D.F. has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
First Juvenile Wardship Petition
A juvenile wardship petition was filed on January 27, 2017, alleging that D.F. had committed a felony violation of resisting an executive officer (Pen. Code, § 69; count 1), and a misdemeanor violation of resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); count 2). Count 1 was later dismissed for insufficient evidence.
A contested jurisdictional hearing was held on March 13, 2017, on count 2 only. The district attorney called one witness, Officer Marcos Torres from the City of Antioch Police Department. On January 25, 2017, he was dispatched to the Somersville Towne Center, a shopping mall, on a report that a group of juveniles refused to leave the mall upon the request of security, and a report that one juvenile had threatened a security guard. Torres was driving a marked patrol car and in full uniform. By the time Torres arrived, he learned that the juveniles were now in the Starbucks within the parking lot of the mall, so he went to that location. Torres had received a report that the subject who made threats to security was wearing ski goggles on his head (the subject), so he contacted the subject (not D.F.) at Starbucks and placed him under arrest. The subject was with several other individuals, including D.F.; the group was curious and standing around asking why the subject was being detained.
Torres testified that in the mall "[t]here's a Macy's. There's a parking lot, and then directly east of the Macy's is the Starbucks within the same parking lot."
The security director for the mall advised Torres that he wanted all of the other individuals (four in all, including D.F.) admonished for trespassing, and Torres did so. Torres testified that two were "cooperative and provided their names and left," but D.F. and another remained on the property and walked towards the mall. Torres told them mall security did not want them on the property and they would be arrested for trespassing if they returned. Torres followed D.F. and "repeatedly told him that I was going to arrest him for trespassing if he didn't leave the property," but D.F. walked towards the mall and "was cussing at me and telling me—telling me 'no.' " Because D.F. did not leave the property, Torres placed him under arrest for trespassing.
On cross-examination, Torres testified that he grabbed D.F. by the arm when he went to arrest him, and D.F. tried to take off running. "He did some spinning around, and I did a leg sweep and took him to the ground and he struggled some more on the ground. He got back up, and with the assistance of one of the other officers on the scene, I was able to finally get him back on the ground and handcuff him." D.F.'s counsel offered a video in evidence showing Torres's arrest of D.F.; the video has no audio. Defense counsel had Torres draw a map to show Starbucks, the mall, the point where D.F. was arrested, and an arrow showing the direction D.F. was walking when he walked away from Torres; this was Exhibit B in evidence. On redirect examination, Torres stated that the leg sweep is an "apprehension maneuver taught in the POST Academy," and that he performed the leg sweep in this instance because D.F. was pulling away and trying to flee from him. At the time he performed the leg sweep, Torres had already informed D.F. that he was under arrest. Torres also placed his knee on D.F.'s head, another maneuver he learned at the POST Academy "to control combative suspects." D.F. continued to struggle after Torres performed the leg sweep and D.F. was on the ground. Once D.F. was in handcuffs, Torres took his knee off D.F.'s head.
The juvenile court judge watched the video and heard argument from counsel. The juvenile court then stated, "Looking at the video, it appears that the officer, by his arm gestures, was directing the minor to get off of the property, and the minor continued to walk into the direction of the mall as reflected in this Exhibit B. [¶] . . . I don't know what [D.F.] said. And there's some point that he might have a First Amendment right to say whatever he said, but he was definitely ignoring the officer's directive to get off the property. [¶] . . . I find that the officer was acting within the lawful performance of his duties. The minor was, in fact, obstructing or delaying a peace officer in his duties. [¶] I didn't find the force to be excessive. It looked as if the minor was struggling to get away from the officer. And the officer took him down, cuffed him, and got him back up, so—and I did find the officer to be credible." The court thus found that beyond a reasonable doubt D.F. had committed a misdemeanor violation of Penal Code section 148, subdivision (a)(1). The matter was set for disposition on April 21, 2017.
Supplemental Section 602 Petition
While D.F. was awaiting the dispositional hearing, the Contra Costa County District Attorney filed a supplemental Welfare and Institutions code section 602 petition on April 18, 2017, alleging four counts: misdemeanor violation of defrauding an innkeeper by not paying (Pen. Code, § 537, subd. (a)(1); count 1), misdemeanor petty theft (Pen. Code, § 484/488; count 2); felony first degree residential burglary (Pen. Code, § 459/460, subd. (a); count 3), and attempted first degree residential burglary (Pen. Code, § 459/460, subd. (a)/664; count 4). The supplemental petition also alleged that the burglary was committed while a non-participant was at the residence (Pen. Code, § 667.5, subd. (c)(21)), and that the prior Penal Code section 148, subdivision (a)(1) offense sustained on March 13, 2017 (the prior offense) could be used to increase the total commitment time.
On April 28, 2017, D.F. admitted and the court sustained count 4, the attempted residential burglary charge. All of the other charges were dismissed, including the special allegation of a non-participant's presence during the first degree burglary. D.F. was advised of his rights and the maximum term of confinement of 3 years and 4 months (which took account of the fact that the prior offense resulted in an additional four months to his maximum term of confinement). The juvenile court found that D.F. understood his rights and knowingly, intelligently and voluntarily gave up his rights; that he understood the nature and consequences of the allegations in count 4 as well as the consequences of a no contest plea; that there was factual basis for the plea; and that the plea was freely and voluntarily given. The supplemental petition was thus sustained as to count 4. D.F.'s counsel consented to D.F.'s no contest plea and waiver of rights.
Based on comments made by the district attorney at the dispositional hearing, D.F. was a "lookout" while his brother and other friends were attempting to commit a residential burglary.
The juvenile judge noted that counts 1 and 2 of the Supplemental Petition were dismissed as having been incorrectly added to the petition. --------
Dispositional Hearing on May 12, 2017
The probation department recommended that D.F. be committed to the Orin Allen Youth Rehabilitation Facility (OAYRF) for a six-month program, plus an additional 90-day conditional aftercare period. At the dispositional hearing, the court imposed but stayed a six-month commitment to the "Ranch," the court's terminology for OAYRF. D.F. was placed on home supervision for 120 days with an ankle monitor, and various conditions of probation. The court ordered terms of restitution and a restitution fine.
DISCUSSION
We have reviewed the record on appeal in its entirety and conclude that there are no meritorious issues to be argued.
D.F. was at all times effectively represented by counsel, who protected his rights and interests.
We see no error in the juvenile court's jurisdictional findings or dispositions. No ruling by the juvenile court admitting or denying evidence amounted to an abuse of discretion or legal error. D.F. was advised of, understood, and waived his rights before pleading no contest. The court ascertained that D.F. understood the rights he was waiving and the consequences of his plea, and the record provides a factual basis for the plea.
We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.