In re Marcos N. CA5 ( 2013 )

Filed 12/18/13 In re Marcos N. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re MARCOS N., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE, F067085
Plaintiff and Respondent, (Super. Ct. No. JJD066286)
v.
OPINION
MARCOS N.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Gomes, J., and Peña, J.
INTRODUCTION
On July 17, 2012, Marcos N., appellant, waived his rights and admitted allegations
in a first amended petition filed pursuant to Welfare and Institutions Code section 602
that he committed second degree vehicle burglary (Pen Code, § 459, count 1),1 received
stolen property (§ 496, subd. (a), count 2), committed misdemeanor trespass (§ 602,
subd. (m), count 3), and misdemeanor possession of an alcoholic beverage by a minor
(Bus. & Prof. Code, § 25662, subd. (a), count 4). Appellant’s admission was dependent
on being placed in the Deferred Entry of Judgment program (DEJ). On July 31, 2012, the
juvenile court placed appellant on DEJ. Appellant was placed on probation for 12 to 36
months on various terms and conditions.
On January 29, 2013, a new petition was filed alleging that appellant carried a
concealed weapon (§ 25400, subd. (a)(2), count 1), carried a loaded firearm as an active
gang member (§ 25850, subd. (c)(3), count 2), possessed an assault weapon, a felony
(§ 30605, count 3), committed misdemeanor possession of live ammunition (§ 29650,
count 4), gave away a large-capacity magazine, a felony (§ 32310, count 5), and two
counts of resisting an executive officer (§ 69, counts 6 & 7). Each count further alleged a
gang enhancement (§ 186.22, subd. (b)(1)(A)).
On February 1, 2013, appellant waived his constitutional rights and admitted
counts 2, 6 and 7, and the gang enhancement in each of those counts. On February 19,
2013, the juvenile court declared appellant a ward of the court, found its prior
commitment of appellant to DEJ was unsuccessful, and terminated appellant’s
participation in DEJ. Appellant was informed that the maximum term of confinement for
all sustained allegations was nine years ten months with 63 days of custody credits. The
court ordered appellant’s placement out of home, committed appellant to the Tulare
1 Unless otherwise noted, all statutory references are to the Penal Code.
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County Youth Facility for 365 days, and ordered appellant on probation upon various
terms and conditions including that he not possess guns, knives, weapons, fireworks,
explosives, chemicals that can produce explosives, and to not associate with anyone he
knows or reasonably should know is a gang member.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende).
FACTS
June 2012 Offenses
On June 4, 2012, appellant was found trespassing in a vacant house with three
other minors while in possession of an alcoholic beverage. On June 26, 2012, the victim
of a vehicle burglary found appellant and one other minor inside his vehicle which had
been locked. The minors fled. The victim never lost sight of the minors and appellant
was apprehended. A stolen gun was found in the path of appellant’s flight.
January 2013 Offenses
On January 26, 2013, Porterville police officers were dispatched to a local
Save Mart store regarding a male possibly armed with a firearm. Upon arriving at the
scene police saw appellant, who matched the description given over the radio. The
officers approached appellant and told him they were going to conduct a pat-down search
of him for weapons. At one point, appellant threatened, “fuck you pig. I’ll blast you.”
Other slurs and insults were uttered. Appellant resisted the search but was subsequently
subdued and searched. Appellant was found in possession of a Tec-9 assault weapon.
The police also found live ammunition on appellant.
Appellant told the probation officer that his “homies” gave him the gun to take it
to get fixed. He said when stopped by the police he was on his way to get the gun fixed.
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APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) By letter on September 13, 2013,
we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
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