In re Jose C. CA1/2 ( 2013 )

Filed 7/18/13 In re Jose C. CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re JOSE C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A136846
JOSE C.,
(Alameda County Super. Ct.
Defendant and Appellant. No. SJ12018609-01)
Appellant Jose C., a minor, appeals from the juvenile court jurisdictional findings
that he carried a concealed firearm and that he carried a loaded firearm in public.
Appellant also appeals a disposition order declaring him a ward of the court and placing
him on probation. Appellant brings this appeal in compliance with Welfare and
Institutions Code section 800. Appellant’s counsel filed the opening brief without raising
any specific issue and requests that the court conduct an independent review of the entire
record in accordance with People v. Wende (1979) 25 Cal.3d 436. Appellant was
apprised by counsel of his right to file a supplemental brief on his own behalf and he did
not do so. We have reviewed the entire record and find no arguable issues that would
present a meritorious appeal.
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BACKGROUND
The information filed by the Alameda County District Attorney included: in count
one, that appellant carried a concealed firearm (Pen. Code, § 25400, subd. (a)(2)), and, in
count two, that he carried a loaded firearm in public (Pen. Code, § 25850, subd. (a)). On
June 26, 2012, following a contested jurisdictional hearing, the court found these
allegations to be proven true beyond a reasonable doubt. The court subsequently
declared appellant a ward of the court and placed him on probation in his mother’s
custody.
At the jurisdictional hearing, the court heard from the following witnesses:
appellant and Hayward Police Officer Paul Petersen, the officer who discovered the
firearm and arrested appellant.
On January 30, 2012, just before 6:00 p.m., Hayward Police Officers Valderrama
and Petersen drove to an address on Jefferson Street, which was a gang residence that had
been the location of multiple shootings and was known to house individuals who possess
firearms. The police reports and officer’s testimony state that upon approaching the
residence, Officer Petersen noticed appellant standing in front of the home smoking a
cigarette. Smoking in public is a Municipal Code violation in Hayward under section
5-6.11. Petersen asked his partner to stop the vehicle in order to issue appellant a citation
for smoking in public. In his testimony, Petersen stated that he stepped out of his vehicle
and began to walk toward appellant. Petersen said that when appellant saw Peterson
drawing near, he discarded his cigarette and “casually” walked around the side of the
residence toward the back of the home. Petersen testified that he yelled at appellant to
remain where he was and then pursued appellant to the back of the residence, losing sight
of him for approximately five seconds. Petersen regained sight of appellant when he
looked around the back of the house; and there he witnessed appellant tossing a black
object underneath a blue tarp that covered debris. Petersen stopped appellant. Petersen’s
partner arrived, and appellant was searched for weapons, asked for his identification and
detained. While appellant was detained Petersen searched the area and recovered the
object appellant had discarded. Petersen noted that the area underneath the tarp was
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covered in dust and trash, but concluded that the black object did not appear to have been
there long because it lacked the covering of dust and residue. The object beneath the tarp
was revealed to be a handgun inside a black sock.
Appellant disputes this rendition of events. He maintains that he was not smoking
a cigarette, that he was unaware the officers had stopped in front of the Jefferson
residence, and that he only went to the back of the house to relieve himself. Appellant’s
and Peterson’s statements were consistent up until the point where appellant stated that
he saw the officers’ vehicle. The most inconsistent point being what appellant was
actually doing behind the residence: dumping a gun or micturating.
The court determined that the officer’s testimony was more credible than
appellant’s and concluded that he committed violations of Penal Code sections 25400,
subdivision (a)(2) and 25850, subdivision (a). In addition to the juvenile court
jurisdictional order and the disposition order, the court set the following probation
conditions: appellant not go to the 500 block of Jefferson Street at any time, have a 6:00
p.m. curfew, abstain from using drugs, and that he submit to searches and seizures
conducted by peace officers.
DISCUSSION
This appeal is from juvenile court jurisdictional findings and dispositional order
declaring appellant a ward of the court and placing him on probation. Counsel raises no
specific issues and asks the Court of Appeal to conduct a review of the entire record
consistent with Wende to determine whether there are any issues which would, if resolved
favorably to appellant, result in reversal or modification of the judgment. In reviewing
the entire record, we find no arguable issues that would present a meritorious appeal.
In reviewing this case for abuse of discretion, we defer to the trial court’s
determinations of credibility. It is the duty of the trial judge, as the trier of fact, to judge
the credibility of witnesses and weigh conflicting testimony. (People v. Alexander (2010)
49 Cal.4th 846, 882-883.) “ ‘The power to judge credibility of witnesses, resolve
conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial
court. On appeal all presumptions favor proper exercise of that power . . . .’ ” (People v.
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James (1977) 19 Cal.3d 99, 107.) Thus, we defer to the trial court’s determinations of
credibility as they are discretionary findings.
“The discretion intended, however, is not a capricious or arbitrary discretion, but
an impartial discretion, guided and controlled in its exercise by fixed legal principles. It
is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner to subserve and not to impede or
defeat the ends of substantial justice.” (Bailey v. Taaffe (1866) 29 Cal. 422, 424.) We
have found no such deviation from reasonable discretion that would be deemed an abuse
of the court’s discretion or a miscarriage of justice. There was ample evidence
supporting the allegations against appellant. The evidence offered at the hearing was the
eyewitness testimony of Petersen and photographs of the firearm found near appellant.
This evidence was disputed only by appellant’s testimony and the court expressly stated
that the officers’ testimony was more credible than that of appellant’s. Thus, the findings
and orders were proper.
In view of the facts set forth above, we find no issues regarding the sentence
imposed or any other aspect of the proceedings which are deserving of further briefing
under the holding of Wende.
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DISPOSITION
Our independent review of the record reveals no arguable issues that require
further briefing. The judgment is affirmed.
_________________________
Lambden, J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Richman, J.
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In re Jose C. (A136846)
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