Opinion
F087121
07-25-2024
In re P.S., a Person Coming Under the Juvenile Court Law. v. P.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Kristen Owen, 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NOT TO BE PUBLISHED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 Tulare County No. JJD074764. Sara Bratsch, Judge.
Kristen Owen, 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 minor, P.S., has filed an opening brief summarizing the pertinent facts and raising no issues but asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes a declaration from appellate counsel stating P.S. was advised of his right to file a brief of his own with this court. By letter dated April 22, 2024, we also invited P.S. to submit additional briefing. P.S. has not filed a response.
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, we provide a brief description of the facts and the procedural history of this case. (Kelly, at p. 110.) Finding no arguable error that would result in a disposition more favorable to P.S., we affirm.
A Wende review is available in a delinquency appeal. (In re Kevin S. (2003) 113 Cal.App.4th 97, 119.)
PROCEDURAL SUMMARY
A juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), was filed on March 3, 2023, alleging P.S. committed second degree robbery (Pen. Code, § 211, a felony; count 1), and second degree robbery (§ 211, a felony; count 2). As part of each count, it was also alleged that during the commission of these offenses "a principal in said offense" was armed with a semiautomatic firearm within the meaning of section 12022, subdivision (a)(1). These offenses were alleged to have been committed on February 25, 2023.
All further statutory references are to the Penal Code, unless otherwise specified.
On July 3, 2023, a first amended juvenile wardship petition was filed alleging two additional counts against P.S. This newly amended petition alleged P.S. was carrying an unlawful switchblade knife (§ 21510, subd. (b), a misdemeanor; count 3), and that he participated in an attempted carjacking (§§ 664/215, subd. (a), a felony; count 4). While count 3 was alleged to have occurred in January 2023, before the original petition was filed, count 4 was alleged to have occurred in June 2023, after the first petition was filed.
On October 11, 2023, count 3 was dismissed before the juvenile court held a jurisdictional hearing on the remaining counts. On October 18, 2023, the court found true, beyond a reasonable doubt, the allegations contained in counts 1, 2, and 4, and further found the special allegations contained in counts 1 and 2 to be true.
At the end of a dispositional hearing held on November 1, 2023, the juvenile court adjudged P.S. a ward of the court, ordered him placed on probation, then released him to his father with an electronic monitor. A notice of appeal was filed two days later.
FACTUAL SUMMARY
The juvenile court found true beyond a reasonable doubt facts supporting the allegations contained in the first amended Welfare and Institutions Code section 602 petition involving P.S. The first amended petition contained factual allegations addressing two separate incidents.
1. The Armed Robbery at the Market
On February 25, 2023, at approximately 7:30 p.m., four young men entered a market at a gas station. Employees of the market who were eyewitnesses testified that one of the men entered the market while in possession of a handgun, and started yelling for everyone to get on their knees. After the other three men also entered the market, the employees were instructed to "give them the money and to give them our phones and wallets." After he handed over money from the till, the employee who was the cashier was then told to give them money from the safe. When the cashier indicated he did not have the code for the safe, he and the other employee were taken to the kitchen where they were forced to kneel while a gun was pointed at them. The assailants were eventually given money from the kitchen that was kept there to cash checks, which the assailants apparently knew about. At some point, they also took the employees' phones and wallets. The other employee involved in this incident described the clothing the four assailants were wearing and noted that three of the four were wearing face masks the entire time. The employee also stated the fourth assailant who did not wear a face mask the entire time looked young. A few days later, this employee noted a photograph of P.S. in a six-pack lineup looked similar to one of the four young men in the market who participated in the armed robbery, "but that the guy in the [market] was skinnier, like he had a skinnier face."
A number of law enforcement officers who responded to the scene also provided testimony in this case. One sheriff's deputy testified he received a call between 7:00 p.m. and 8:00 p.m. on February 25, 2023, regarding an armed robbery at a market. When he arrived at the scene, two employees reported that four male subjects had entered the market and robbed them. The deputy was also informed that one of the male subjects had a handgun. Having viewed the market's surveillance video on the evening of the incident, the deputy recalled that all but one subject was wearing a mask the entire time. Furthermore, based on the surveillance video, the incident took place between 7:27 p.m. and 7:32 p.m.
Yet another law enforcement officer testified about what he observed on the surveillance video. Specifically, the officer testified he was not initially able to recognize any of the suspects, but as the case progressed, he recognized one of the individuals in the vehicle as P.S., who he also identified in court. In fact, the officer was "quite positive" P.S. was the driver of the vehicle, who was shown entering the market last, and collecting various items from the market.
Additional testimony addressed evidence that was recovered immediately after the armed robbery and later during a search conducted under the authority of a search warrant. The vehicle used during the robbery was located soon thereafter when an employee was able to "ping" his cell phone that was taken during the incident. Near the vehicle, which matched the description given by witnesses, shoe tracks were found in the dirt where the vehicle was abandoned, along with surgical masks that matched the ones worn by the assailants during the robbery. A search conducted pursuant to a search warrant of P.S.'s home conducted on March 1, 2023, resulted in the seizure of two pairs of "Nike" shoes that had soles with similar track patterns as those found in the dirt near the vehicle on the night of the robbery.
Based on conversations an officer had with the owner of the market, it was estimated approximately $18,000 in cash was taken, in addition to $9,000 in undeposited checks, and an additional $1,000 in merchandise from the market. The subsequent search of P.S.'s home did not result in the discovery of significant amounts of cash, any uncashed checks, the victims' wallets, or merchandise taken from the market.
2. The Attempted Carjacking
On June 15, 2023, police were called to investigate an attempted robbery. The victim said two men attempted to rob her as she was getting out of her car after working a double shift. She reported that someone grabbed her by her backpack and swung her around and said," 'Give me your keys, I'm robbing you right now, I have a gun.'" When the victim informed her assailants she had a camera, they turned around, looked at it, then walked away. The victim identified P.S. in court as one of the individuals involved in that June 15 episode.
Law enforcement later showed the victim surveillance video from a gas station near her home recorded just before the attempted carjacking. The video showed two individuals who fit the description of the suspects. When she viewed the surveillance video, the victim stated she was 100 percent certain the individuals in the video were the same individuals who she encountered when she was getting out of her car.
The Defense
The defense presented three witnesses who provided testimony in an attempt to establish a potential alibi for P.S. for the evening of February 25, 2023. The first witness was a middle school friend of P.S.'s who testified he arrived at P.S.'s home between 5:00 p.m. and 7:00 p.m. on that evening and did not leave until the next day. This witness provided a list of people who were also at the house, saying they were "chilling, listening to music; doing teenager things."
The next two witnesses, a father and daughter who lived next door to P.S., testified they recalled the party and the fact it became loud, requiring the daughter to walk over and ask if they could quiet things down. The daughter noted that she believed this occurred on February 25 because she sent a text to her boyfriend on that date complaining about the noise next door.
DISCUSSION
Having carefully reviewed the entire record, we conclude there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.) We further note, substantial evidence supports the finding made by the juvenile court.
DISPOSITION
The order is affirmed.
[*] Before Poochigian, Acting P. J., Franson, J. and Pena, J.