Opinion
F086124
10-24-2023
In re V.G., a Person Coming Under the Juvenile Court Law. v. V.G., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Keith Fox, 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NOT TO BE PUBLISHED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 Kern County No. JW144078-00 Wendy L. Avila, Judge.
Keith Fox, 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 [*]
Minor, V.G., appeals from a disposition order adjudging him a ward of the juvenile court and placing him on probation. His counsel on appeal filed a brief that summarizes the case and facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter, advising minor of his right to file a supplemental brief raising any grounds he would like this court to consider. Minor did not respond. We have conducted an independent review. Finding that no reasonably arguable legal or factual issues exist, we affirm.
PROCEDURAL SUMMARY
On November 22, 2022, the Kern County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code, § 602, subd. (a)) in case No. 2200136248, alleging 17-year-old minor committed first degree robbery (Pen. Code, § 212.5, subd. (a); count 1), first degree burglary (§ 460, subd. (a); count 2), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and criminal threats (§ 422; count 4). As to count 2, the petition further alleged that a person other than an accomplice was present during the commission of the offense (§ 667.5, subd. (c)(21)).
All further statutory references are to the Penal Code except as otherwise indicated.
The following day, minor denied the allegations of the petition. The juvenile court found that continuance of the minor in the home of the parent would be contrary to minor's welfare and reasonable efforts had been made to prevent the need for removal of custody from the parent; the court therefore placed minor in the custody of the probation department pending disposition or further order of the court.
On December 20, 2022, at an ex parte hearing, minor's counsel declared a conflict and advised the juvenile court that minor's parents hired private counsel to represent minor. However, private counsel was not present-likely because he was not given notice of the hearing-and the court relieved minor's counsel and appointed substitute counsel.
On January 6, 2023, minor's substitute appointed counsel was relieved in favor of minor's retained counsel.
On February 14, 2023, the jurisdictional hearing began. At the hearing, minor's counsel noted that he learned of a supplemental report that neither minor's counsel nor the prosecutor had seen. The following day, minor's counsel moved for a mistrial based on the failure to produce the supplemental report by one of the officers who responded to the incident. Minor's counsel contended that the report tended to exonerate minor. The juvenile court denied minor's motion but agreed to grant a continuance to permit minor's counsel to prepare and call witnesses in response to the report. The court also agreed to release minor to the custody of his mother for the duration of the continuance.
On February 28, 2023, the jurisdictional hearing continued. On March 21, 2023, the juvenile court found count 1 not true, but found the remaining counts and allegations true. The court then released minor to the custody of his mother on the same conditions previously imposed pending disposition in this case.
On April 13, 2023, the juvenile court held the dispositional hearing. It adjudged minor a ward of the court and placed minor on probation for a term not to exceed minor's 21st birthday with the requirement that he serve 30 days in a youth detention center, stayed pending further review. It further noted that minor's maximum term of confinement was five years eight months, less 90 days credit for time served. It found counts 2, 3, and 4 to be felonies. It ordered minor to pay a restitution fine of $100 and victim restitution in an amount to be determined. The terms of minor's probation required him to: consent to a search by a probation or law enforcement officer, complete mental health and anger management counseling, have no contact with the victim, M.G., report to the probation officer, not leave the county without approval from the probation officer, and obey all laws, among other things. Minor's counsel agreed that the terms of probation were appropriate.
The record reflects that the trial court intended to hold a hearing to determine the appropriate amount of restitution and to follow up on minor's progress on probation to determine whether to impose the stayed term of confinement. The record before us does not disclose whether such hearing was held or the results.
On the same date, minor filed a notice of appeal.
FACTUAL SUMMARY
The People's Case
On November 18, 2022, M.G. resided with her boyfriend at a house in Kern County for which minor's mother was the landlord. At approximately 9:16 p.m. on that date, she was at home alone and the power had been disconnected-she believed that minor's family had disconnected the power using a switch behind the house. She had a flashlight for light. Minor, his girlfriend, and his sister entered the house through a door that had been left unlocked. M.G. was in her bedroom. She heard someone enter the home and thought her boyfriend had returned. M.G. soon saw that it was minor, his girlfriend, and his sister. She was scared because she "knew they had already beaten up [her] boyfriend." She asked what they wanted. Minor entered M.G.'s bedroom and began pushing, hitting, and choking her, and told her that he was doing so because she had not left the property yet. M.G. told minor that his mother had given her 30 days to vacate the property and the time was not yet up. He continued to hit her "many times" on the face and head, which caused her to have headaches through the date of her testimony in this case. Minor also did something to M.G.'s hand because she would not give him her phone. He eventually took M.G.'s phone from her and it was never returned. She estimated that the phone had a value of $200 or $300 dollars. During the attack, minor told M.G. that this attack was just a warning and if she and her boyfriend did not leave, "it was going to be worse."
M.G. explained that she and her boyfriend were being evicted because she and her boyfriend had brought horses to the property.
M.G. testified that minor "did my hand like this" and did not clarify what she meant when instructed to do so by the juvenile court.
After minor, his sister, and his girlfriend left, M.G. used a second phone to call the police and report the incident. Officers came to M.G.'s house; she testified that she described the incident to the officers as she did at the hearing. She declined the officers' offer to call for medical care. She told them her boyfriend would take her to the hospital and he did. M.G. testified that hospital staff performed X-rays and discovered that her nose and wrist were broken. They applied a cast to her wrist and gave her medication for her headache.
M.G. testified that her boyfriend had never hit her, and the police never responded to her house regarding a domestic disturbance. M.G. did not use any alcohol or drugs on November 18, 2022, that would have impaired her ability to remember what happened. She did not use methamphetamine that night, but she had "[m]any years ago." M.G. also denied having assaulted minor's mother after November 18, 2022, and having asked minor's mother if M.G. and her boyfriend could stay longer.
On November 18, 2022, Gerardo Martinez Navarro and Issac Azua were deputies with the Kern County Sheriff's Department. At 9:19 p.m., they were dispatched to M.G.'s home in response to her call. They arrived within 10 or 15 minutes of dispatch. Navarro acted as a translator for Azua in interviewing M.G. When they arrived, M.G. exited her home "really crying and scared _." She told Navarro and Azua what had happened and that minor had said a phrase in Spanish that translated to "I'm going to f[**]k you up." M.G. did not tell the deputies that minor said anything else. She described that minor grabbed her by the throat with one hand and struck her in the face with the other hand. He periodically switched hands holding her throat and striking her. She did not say that minor choked her with both hands at any point. She also told officers that minor took her phone, a pink smartphone worth approximately $200. In searching minor's person, his girlfriend's person, and residence, no pink smartphone was found. M.G. also told the deputies that minor's girlfriend was present during the attack; she did not mention a third person having been present. She further told the deputies that she believed the attack was regarding rent.
After speaking with M.G., Navarro and Azua went to minor's house, which was directly behind M.G.'s house and shared the same driveway. They found minor and arrested him. As deputies escorted minor to the patrol car, M.G. looked at minor in Navarro's presence and confirmed that he was the person who attacked her. She was very scared and shaking. Navarro and Azua then looked around M.G.'s house. They found blood in the living room and a trail of blood that led to the bedroom. The blood looked fresh but some had dried. Navarro photographed the blood and M.G.'s injuries. M.G.'s face was bloody, her nose was swollen, and her lip was bleeding.
Minor's Case
A.M. was minor's friend. They were the same age and had been friends since elementary school. They went to the gym together almost every day and stayed for three to four hours. On November 18, 2022, minor and A.M. went to the gym with their friend A.O. Minor drove. A.M. checked the logs at the gym and knew that they arrived at approximately 4:40 p.m. They stayed at the gym for about three to four hours. Minor did not leave the gym during that time. Minor then dropped A.O. and A.M. off at home. A.M. did not know exactly what time they returned. Minor lived approximately one minute by car from A.M.'s house. Normally, minor would say hello to A.M.'s parents and talk for "a little bit" in the car before minor left.
A.O. and minor had been friends for about two years. On November 18, 2022, they went to the gym after school. Minor drove and A.M. went with them. It normally took 20 to 30 minutes to get to the gym. They arrived at the gym after 4:00 p.m. They stayed at the gym between two hours and two hours thirty minutes. Minor did not leave during that time. It was "pretty dark" when they left the gym. A.O. was dropped off at home first. They arrived at A.O.'s home between 7:00 p.m. and 9:00 p.m. Minor and A.M. said goodbyes for a few minutes and then minor and A.M. left.
Minor's counsel called Azua for direct examination. When Azua encountered M.G. on November 18, 2022, she did not mention any injury to her hand. Azua did not look at minor's hands on November 18, 2022, but another deputy did and found no redness, markings, or blood.
On November 18, 2022, Caymen Aguirre was a Kern County Sheriff's Deputy. He also responded to M.G.'s first 911 call. His role was to interview witnesses and arrest minor. He spoke to minor's girlfriend and the decision was made not to arrest her.
Azua and Aguirre returned to M.G.'s home at approximately 2:20 a.m. the following morning in response to a second 911 call. M.G.'s boyfriend reported that he believed the people involved in the attack were outside M.G.'s house. When the deputies arrived, M.G. and her boyfriend were present at M.G.'s house. M.G.'s boyfriend told Aguirre that he had taken M.G. to the hospital. When they returned, he saw that the door to their house was open and there was damage to his property. He told Aguirre that he had locked the door when they left for the hospital. When he returned to his vehicle to get his phone, there was a person wearing all black clothing and a mask who said that he and M.G. were not supposed to be living there and this was their last warning. The masked person then fled.
Azua testified that M.G.'s boyfriend was not present when they were at M.G.'s house the prior night; Aguirre testified that M.G.'s boyfriend was present the prior night.
Aguirre observed the area and saw no new damage to the door or the property inside of M.G.'s house.
Minor's counsel also called M.G. M.G. testified that she went to the hospital on November 18, 2022, immediately after the police left her house. A doctor at the hospital told her that her hand and nose were broken. When she returned home, she could tell that the things in her house had been "messed ... up" and the windows had been "shot up ... with bullet[s] . . .." However, she did not see anyone near the house when she returned home. When officers came out in the early hours of November 19, 2022, she told them about the property damage but not about the windows having been shot up.
Minor testified that on November 18, 2022, at approximately 4:30 p.m., he was at the gym with A.M. and A.O. Minor drove. They spent three or four hours at the gym. He did not know exactly what time they left the gym but it was "pretty dark." On the way home, he dropped off A.O. and talked at his house for five or six minutes. He then dropped A.M. off at home and said hello to his family for 10 to 12 minutes. Minor then picked up his girlfriend. The drive to his girlfriend's house took approximately 15 to 20 minutes; he spoke to her mother and brother for at least five minutes. They then returned to minor's house, which took another 15 to 20 minutes, and he made food. He did not see M.G. that night and did not go into her house. Minor had been home for about five to seven minutes when deputies knocked on the door to his house and arrested him.
Minor had seen M.G. and her boyfriend before. Approximately two weeks before he was arrested, he and his mother saw a physical altercation between the two where M.G.'s boyfriend was "beating on her." He slapped her and punched her. Minor's mother attempted to intervene.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presented no argument for reversal but asked this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d 436.
Our review of the record pursuant to Wende has disclosed no reasonably arguable issues on appeal.
DISPOSITION
The juvenile court's findings and order are affirmed.
[*] Before Hill, P. J., Detjen, J. and Pena, J. Filed 10/24/23 In re V.G. CA5