Opinion
F085327
11-09-2023
In re J.M., a Person Coming Under the Juvenile Court Law. v. J.M., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Patrick J. Hoynoski, 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NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County, No. 22JL-00107A Jennifer O. Trimble, Judge.
Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Counsel for appellant J.M. (minor) has submitted a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to conduct an independent review of the record on appeal. Although we offered minor the opportunity to present his own brief on appeal through a letter, he has not responded.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court's direction in Kelly, at page 110, we provide a brief description of the facts and the procedural history of the case. Finding no arguable error that would result in a disposition more favorable to minor, we affirm.
PROCEDURAL SUMMARY
On September 13, 2022, a Welfare and Institutions Code section 602 petition was filed alleging minor committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), a felony; count 1). The petition further alleged minor committed the offense for the benefit of, at the direction of, and in association with a criminal street gang to promote, further and assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (d)).
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
On September 22, 2022, minor admitted the allegations of the petition on the condition he receive a deferred entry of judgment (DEJ). However, during the October 18, 2022, dispositional hearing, after the juvenile court stated it was not inclined to grant minor a DEJ, minor withdrew his plea. The matter was then set for a contested jurisdictional hearing.
On November 10, 2022, following the contested jurisdictional hearing, the juvenile court found the allegations contained in the petition to be true and declared minor a ward of the court. On the same day, the court then placed minor on probation with various terms and conditions, including a level III commitment to the Bear Creek Academy short-term home commitment program.
A notice of appeal was filed on November 15, 2022.
FACTUAL SUMMARY
On September 7, 2022, 15-year-old A.O. was walking with a friend at his high school. As A.O. walked past a group of students, he was punched in the nose. A.O. continued to be hit and fell to the ground. A.O. recalled experiencing blurry vision and having to cover his head to protect himself. A.O. eventually identified minor as the person who hit him, and also testified that minor called him a" 'scrap.'" As a result of the strikes, A.O. had some pain on his cheek, bruising, and a stuffy nose, but acknowledged he had no lingering pain.
During cross-examination, A.O. stated he had no prior, direct interactions with minor. A.O. also stated that while he had friends who were in a gang, he was not actually a member of that gang. Although A.O. admitted they had previously stared each other down, he had never experienced problems with minor before. A.O. did acknowledge, however, he had experienced problems with minor's friends "who [wore] red." In fact, A.O. believed these friends of minor's may have put him up to it, after minor and two of his friends surrounded him while he was walking alone at school the day before. At that time, minor's friends asked A.O. if he "banged." Because he had gone to elementary school with minor's friends, he knew they were members of a gang who were rivals of the gang his own friends belonged to. Nothing happened that day because a school "liaison" was there and told everyone to move on.
According to testimony this is an employee who works with a resource officer assigned to the campus by the sheriff's department.
Officer Joseph Royel, a street gang expert, testified minor had no contact with law enforcement before this incident, and that there was also no evidence A.O. had any gang affiliation. However, Royel believed minor was an active member of a street gang based on a four-finger symbol he made after attacking A.O., having the nickname of "Little Maniac," and because he asked A.O. if "he bangs." Finally, Royel stated that minor's actions benefitted the gang by removing a potential rival gang member "from [the] set," and by intimidating others.
Minor declined to provide any testimony before the juvenile court made its ruling at the end of the jurisdictional hearing.
DISCUSSION
Having carefully reviewed the entire record, we conclude there is no arguable issue on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The order is affirmed. --------- Notes: [*] Before Poochigian, Acting P. J., Pena, J. and Smith, J.