In re Frank M. CA4/1 ( 2016 )

Filed 2/5/16 In re Frank M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re FRANK M., a Person Coming Under
the Juvenile Court Law.
D068469
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J237104)
v.
FRANK M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Browder
A. Willis III, Judge. Affirmed.
Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant Frank M.'s appointed appellate counsel has filed a brief asking this
court to independently review the record for error as mandated by People v. Wende
(1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
During the afternoon of May 4, 2015, Frank M. and his father became involved in
an argument that ended up with an altercation. Frank M.'s father pushed Frank M. and
held him to the ground. When he let go, Frank M. grabbed a steak knife from the kitchen
and swung it at his father. Frank M.'s father grabbed a car seat to protect himself, but
Frank M. continued swinging the knife and cut his father's thumb with it. The father
suffered a one-inch laceration on his thumb, which the father described as "more like a
fingernail scratch."
This appeal arises out of a Welfare and Institutions Code section 602 juvenile
delinquency proceeding in which the amended petition alleged in count 1 that Frank M.
assaulted his father with a deadly weapon or instrument (Pen. Code, § 245, subd. (a)(1)),
and also alleged that in committing that offense he personally used a deadly weapon
(Pen. Code, § 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (Pen.
Code, § 12022.7, subd. (a).) In count 2, the amended petition alleged that Frank M.
committed a battery resulting in the infliction of serious bodily injury (Pen. Code, § 243,
subdivision (d)), a misdemeanor under Penal Code section 17, subdivision (b)(4).
At the June 2015 readiness hearing, Frank M. admitted the misdemeanor battery
offense charged in count 2 in exchange for the dismissal of the count 1 felony charge and
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the related allegation with a Harvey waiver.1 The court accepted the admission, finding
that Frank M. gave it freely and voluntarily and that there was both a factual basis for the
admission and substantial evidence that would support an argument that Frank M. acted
in self-defense.
At the disposition hearing held on July 9, 2015, the court declared Frank M. a
ward of the court, placed him on probation for one year, and placed him in his mother's
home. The defense objected to certain terms proposed by the probation department,
including three gang-related conditions on the ground there was no evidence that the
minor is associated with a street gang. Frank M.'s father acknowledged his older son was
actively "hanging out" with a gang (Vista Home Boys).
The court overruled the objections and imposed the following three pertinent
probation conditions: (1) "The minor shall not wear any item of clothing such as a hat,
bandanna, badge, logo, jewelry, or possess any gang paraphernalia including photos or
graffiti, or use a hand sign or name that the minor knows or reasonably should know
identifies the minor with VISTA HOME BOYS gang, or any other known gang"; (2)
"The minor shall not knowingly associate with or be in the company of any person the
minor knows or reasonably should know is a member of VISTA HOME BOYS, or any
other known criminal street gang or any person the probation officer informs the minor is
affiliated with, or a member of, a criminal street gang. The minor shall not knowingly
1 People v. Harvey (1979) 25 Cal.3d 754. A Harvey waiver permits a sentencing
court to consider counts that were dismissed under a plea bargain and were
transactionally related to the admitted offense. (Id. at pp. 758-759; see also 3 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 658, pp. 1058-1059.)
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visit or remain in any specific location which the minors knows to be or, or which the
probation officer has informed the minor is, an area of criminal street gang activity. The
minor shall not knowingly use a hand sign that the minor knows or reasonably should
know identifies the minor with the VISTA HOME BOYS gang, or any other known
criminal street gang. EXCEPTION: MINOR'S OLDER BROTHER"; and (3) "The
minor shall not knowingly possess, wear, or display any clothing or insignia, such as a
tattoo, emblem, badge, cap, hat, bandanna, logo, jewelry, or possess any gang
paraphernalia including photos or graffiti that the minor knows or reasonably should
know, or that the probation officer has informed the minor, is evidence of affiliation with
or membership in the above named gang, or any other criminal street gang. For purposes
of these probation conditions, the words 'gang' and 'gang-related' mean a 'criminal street
gang' as defined in Penal Code section 186.22, subdivision (f). EXCEPTION: MINOR'S
OLDER BROTHER."
The court also ordered Frank M. to pay a $60 fine under to Welfare and
Institutions Code section 730.5, and held Frank M. and his parents jointly and severally
liable for a $50 restitution fine under Welfare and Institutions Code section 730.6.
DISCUSSION
Frank M.'s appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d
436, and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the
proceedings below and indicating she was unable to find any reasonably arguable issues
for reversal or modification of the judgment on appeal. Frank M.'s counsel has identified
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the validity and constitutionality of the gang-related probation conditions as possible, but
not arguable, issues under Anders.
We granted Frank M. permission to file a brief on his own behalf. He has not
responded.
We have independently reviewed the record under Wende and considered the
possible issues identified by Frank M.'s counsel. We have found no reasonably arguable
issues for reversal or modification of the judgment. Accordingly, we affirm the
judgment. Frank M.'s appellate counsel has competently represented him in this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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