In re L.F. CA1/1 ( 2013 )

Filed 12/30/13 In re L.F. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re L.F., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
L.F., A138398
Defendant and Appellant. (Contra Costa County
Super. Ct. No. J1200726)
L.F. appeals from a dispositional order by the juvenile court following his no
contest plea to assault by force likely to produce great bodily injury (Pen. Code,
§ 245(a)(1)),1 receiving stolen property (§ 496(a)) and a misdemeanor charge of street
terrorism (§ 186.22(a)). The court declared wardship, ordered defendant removed from
his parent’s home and committed him to 18 months at the Youth Offender Treatment
Program, along with imposing other terms and conditions of probation. The minor’s
appellate counsel has raised no issues and asks this court for an independent review of the
record to determine whether there are any issues that would, if resolved favorably to the
minor, result in reversal or modification of the orders. (People v. Kelly (2006) 40 Cal. 4th
106; People v. Wende (1979) 25 Cal. 3d 436.) The minor was notified of his right to file a
supplemental brief, but has not done so. Upon independent review of the record, we
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All further statutory references are to the Penal Code unless otherwise noted.
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conclude no arguable issues are presented for review, and affirm the juvenile court’s
order.
BACKGROUND
We recite only the facts relevant to our review in light of defendant’s no contest
plea. The allegations in the Welfare and Institutions Code section 602 petition arise from
two incidents. The first, on January 13, 2012, occurred an AC transit bus. Defendant and
four other males boarded the bus, went to the rear and attacked two other juveniles,
including dragging them off the bus, beating them up and taking personal property.
Defendant and the others in the group were “validated” as members of a local street gang,
“Swerve Team,” and during the assault, audio recording picked up yells of “Swerve” and
“Swerve Team.” The second incident, on May 10, 2013, involved an armed robbery of a
driver parked in front of his residence. Defendant approached the car, asked the time,
then opened the passenger door. Another male opened the driver’s door, held a gun to
the driver’s head and told him to close his eyes. Defendant then took the driver’s wallet;
either defendant or the other male also took the driver’s cell phone.
As a result of the second incident, the amended section 602 petition included five
counts: counts 1 and 2, assault by force likely to produce great bodily injury (§ 245,
subd. (a)(1)); count 3, second degree robbery (§§ 211, 212.5, subd. (c)); count 4, street
terrorism (§ 186.22, subd. (a)); and count (5) receiving stolen property (§ 496 subd. (a)).
A gang enhancement (§ 186.22, subd. (b)(1)) was alleged as to counts 1 through 3 and 5.
As to count 3, it was alleged defendant used a firearm (§ 12022.53, subds. (b), (e)(1)).
As to counts 4 and 5, it was alleged defendant was armed with a firearm (§ 122022, subd.
(a)(1)).
On February 7, 2013, defendant entered into a negotiated disposition. The petition
was amended to include an additional count, count 6, of misdemeanor street terrorism
(§ 186.22, subd. (a)). After full advisement as to the rights he would be waiving,
defendant then pleaded no contest to counts 1, 5 and 6. The remaining counts and all
enhancements were dismissed. The trial court, having queried defendant, found his plea
was knowingly, intelligently, and voluntarily made.
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A contested dispositional hearing was held on March 25, 2013. Defendant had
told the probation officer the first incident was triggered by the victims, although he
admitted he might have kicked one of the victims after he had fallen to the ground. He
denied being part of the group of assailants. As to the second incident, he denied being
involved in a robbery and claimed he had been offered a ride home by the driver. He also
denied being a member of any gang. He claimed he had first used marijuana only a
month earlier, and denied having been detained and found with marijuana a year earlier
and then telling a probation officer he used a couple of times a month. In short,
defendant told the officer he did not think he had done anything wrong, that he had only
tried to defend his friend, and that he had pleaded no contest on his attorney’s advice
since he was facing 15 years on the charges. Defendant said he enjoys sports, and hoped
to become a professional football player. His academic record was poor, although he had
sufficient credits to graduate from high school on time. He had recently enrolled in
Contra Costa College and in Adult School. He thought that, “at most,” he should be
placed on probation and released to “continue on with his life.”
His mother described defendant as a “good kid” who had some behavioral issues
earlier in high school. She thought he had gotten involved in a fight that got out of hand,
was sure he had not been involved in a robbery, and did not believe he was a gang
member, although acknowledged some of his friends might be.
The probation officer assessed defendant as having a moderate risk level for re-
offense. Given the separate acts of violent and serious criminal behavior, his
identification as a gang member, his poor school performance, his history of substance
abuse, and, particularly, his unwillingness to take any responsibility for his conduct, the
probation officer concluded defendant needed to be held accountable for his conduct, be
educated as to personal costs associated with gang membership, and to address the causes
of such serious criminal behavior. He concluded DJJ placement was appropriate. During
the probation officer’s testimony at the hearing, defendant made faces and was
admonished by the court.
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Defendant called two witnesses. Gonzalo Rucobo testified defendant had been
participating in Bay Area Peace Keepers, a violence intervention program, since July
2012. Defendant had actually reached out to the program on his own, after seeing its
work in connection with the high school sports program. Since then, Rucobo often saw
defendant daily, and believed defendant was at that point doing well in school. He did
not observe defendant associating with gang members, and did not think Swerve was a
typical gang, but a group of kids who had lost a friend and started using the “word.” He
believed defendant had some sport scholarship opportunities, and he and defendant had
talked about defendant making a fresh start. Valerie Estrada also testified about
defendant’s interaction with Bay Area Peace Keepers, including his attendance at life
skills class. He had perfect attendance, and she saw him every day. Defendant’s mother
also testified as to defendant’s efforts to turn around his schooling.
Defense counsel urged that defendant be placed on probation and suggested
electronic monitoring. The prosecution maintained the recommended disposition was
justified. While the prosecutor was arguing, the trial court again admonished defendant
when he began shaking his head. Defendant claimed he just “moved his head.” The court
did not “accept that” assertion and stated defendant was clearly “disagree[ing]” with the
prosecutor.
The court stated it was faced with a difficult decision because defendant had no
prior criminal record, but had engaged in very serious conduct. It found defendant had
substantial rehabilitative needs. The court was not only concerned by the fact defendant
did not think he had done anything wrong, but with other aspects of his behavior,
including lying about prior marijuana use. In fact, the court found defendant’s story
about the attack on the bus “completely ridiculous,” stating no one “in the universe”
would believe it. The court found defendant’s dissembling “almost incomprehensible.”
Nevertheless, in light of defendant’s efforts during the preceding six months, the court
chose not to commit him to a DJJ facility and instead committed him to the county
Youthful Offender Treatment Program with a review set for 18 months. If at that time,
defendant had done a good job in the program and not received any write-ups or
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infractions, he would be released for 90 days on electronic monitoring and then on
probation subject to numerous other terms and conditions, including a curfew and search
clause. The court calculated the maximum period of confinement as 60 months.
Defendant filed a timely notice of appeal from the March 25, 2013, dispositional order.
DISCUSSION
Upon review of the record, we discern no arguable issues. The minor was ably
represented by counsel at all times during the juvenile proceedings. He received all
necessary advisements and admonishments in connection with his change of plea. He
had a full and fair opportunity to present his case as to disposition, and no dispositional
errors were made. The juvenile court acted well within its discretion in committing
defendant to the Youthful Offender Treatment Program for a minimum of 18 months, and
also in specifying a 60-month (five-year) maximum term of confinement. (See In re
Angela M. (2003) 111 Cal. App. 4th 1392, 1396 [juvenile court’s commitment decision is
reviewed for abuse of discretion, with all reasonable inferences indulged to support its
decision].) It also acted within its discretion in imposing lawful conditions of probation
(see In re R.V. (2009) 171 Cal. App. 4th 239, 246–247 [discussing scope of juvenile
court’s discretion in imposing probation conditions], prohibiting the use and possession
of firearms until the age of 30 (§ 29820, subd. (b)), and issuing stay away orders as to the
victims and co-perpetrators.
DISPOSITION
The juvenile court’s dispositional order is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Dondero, Acting P. J.
_________________________
Becton, J.

Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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