Opinion
H036540
10-27-2011
In Re D.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. J44560)
I. INTRODUCTION
The minor, D.S., appeals from the January 7, 2011 dispositional order that followed his admissions that he attempted to escape from a county facility by force (Welf. & Inst. Code, § 871, subd. (b)) and committed assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1).) The court ordered him committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) for a maximum term of confinement of six years six months.
On appeal, the minor's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We notified the minor of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from the minor. Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court's direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide a brief description of the facts and the procedural history of the case.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Our summary of the facts is taken from the probationer officer's report filed on January 6, 2011.
On the afternoon of November 26, 2010, 15-year-old D.S. was in custody at the Monterey County Juvenile Hall. As a juvenile institution officer was returning D.S. to his assigned room after escorting him to the restroom, D.S. circled around her, placed his arm around her in a chokehold, and began to squeeze her neck. As D.S. was squeezing the officer's neck, he stated, " 'You're gonna do whatever I tell you to!' " D.S. then directed the officer to give him the institutional keys and open the door to the room assigned to another juvenile, G.E.
The officer attempted to yell and use the institutional radio for assistance, but D.S. squeezed her until she felt lightheaded and fell to the floor. G.E. heard yelling, looked out his window, and saw the officer's head slam against the window before she fell. Other juvenile institution officers arrived and restrained D.S. The victim subsequently received treatment for neck and back injuries.
When D.S. was interviewed by the probation officer, he stated that at the time of the incident he was tired of being incarcerated and his intention was to get the victim's keys but not to "permanently injure her." Another juvenile reported that D.S. and G.E. " 'had been talking about escaping for days.' "
B. Procedural Background
D.S. has been a ward of the Monterey County Juvenile Court since January 6, 2010. He was originally adjudicated a ward of the court for two counts of vehicle theft (Veh. Code, § 10851, subd. (a) and two counts of resisting arrest (Pen. Code, § 148, subd. (a)(1).) Between January 2010 and August 2010, D.S. accumulated four violations of probation and two additional offenses, including escape from juvenile hall (Welf. & Inst. Code, § 871, subd. (a)) and battery (Pen. Code, § 242).
On November 30, 2010, a petition was filed under section 602 alleging that on November 26, 2010, D.S. committed three felonies, including attempted escape (Pen. Code, §§ 664, 4532, subd. (a)(1); count 1); assault by means of force likely to produce great bodily injury (Pen. Code, §§ 245, subd. (a)(1)), 12022.7, subd. (a), 1192.7, subd. (c)(8); count 2); and assault on a custodial officer by means likely to produce great bodily injury (Pen. Code, § 245.3; count 3).
An amended petition was filed on December 6, 2010. The amended petition alleged that D.S. had committed two felonies, including attempt to escape from a county facility by force (Welf. & Inst. Code, § 871, subd. (b); count 1) and assault by means of force likely to produce great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a), 1192.7, subd. (c)(8); count 2).
During the pretrial hearing held on December 7, 2010, D.S. admitted the allegations of the amended petition. The prosecutor stated that the People were still investigating the evidence for the Penal Code section 12022.7, subdivision (a) enhancement (personal infliction of great bodily injury in the commission of a felony) and would dismiss the enhancement allegation if the evidence was insufficient.
An uncontested disposition hearing was held on January 7, 2011. At the time of the hearing, the People dismissed the Penal Code section 12022.7, subdivision (a) enhancement allegation to count 2. D.S.'s guardian (his grandmother) requested that the hearing be continued to allow D.S. to receive a psychological evaluation and see a private therapist. The juvenile court denied the request on the ground that the court had previously received a full psychological report dated April 16, 2010, and that further assessment and treatment would be provided to D.S. while he is in custody. D.S.'s attorney requested that D.S. not be committed to the DJJ on the ground of his mental health issues.
During the dispositional hearing, the juvenile court addressed the issue of whether Penal Code section 654 applied. Relying on the decision in In re Ronnie N. (1985) 174 Cal.App.3d 731, the court ruled that "[i]n this case the [section] 871[, subd.] (b) elements of that offense are different than that of the [section] 245[, subd.] (a)(1) offense and . . . although it's a single act, that they are different offenses and entailing different elements of proof, therefore sustaining those multiple charges is proper in the Court's opinion, and he can receive the consecutive period of time for that."
Regarding the period of confinement, the juvenile court also determined that the maximum period of confinement was six years six months, which included the imposition of a consecutive term of eight months on count 1 (Welf. & Inst. Code, §871, subd. (b)) and a term of four years on count 2 (Pen. Code, § 245, subd. (a)(1). The court awarded 345 days of credit for time served.
As stated in the January 7, 2011 disposition order, the juvenile court considered the probation report and determined that commitment to the DJJ would be in the best interest of the minor because (1) the DJJ has programs that will probably benefit him; (2) less restrictive alternatives are ineffective and inappropriate; (3) protection of society requires a secure facility; and (4) reasonable efforts were made to avoid removal from the home. The court also directed the Monterey County Behavioral Health, Children's Division, to conduct a mental health assessment and to provide DJJ with the results of the assessment. Further, the court ordered D.S. to pay a state restitution fine of $100 and victim restitution in an amount to be determined.
The record reflects that D.S. was placed in the DJJ as of March 18, 2011.
C. Appeal
On January 24, 2011, D.S. filed a notice of appeal from the January 7, 2011 jurisdictional finding and dispositional order. Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
III. DISPOSITION
The dispositional order of January 7, 2011, is affirmed.
BAMATTRE-MANOUKIAN, J. WE CONCUR: MIHARA, J. WALSH, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.