In re D.E. CA1/3 ( 2014 )

Filed 10/27/14 In re D.E. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re D.E., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A141363
D.E., (Contra Costa County
Defendant and Appellant. Super. Ct. No. J1000186)
18-year-old D.E. (appellant) appeals from a dispositional order committing him to
the Youth Offender Treatment Program. Appellant’s counsel has filed a brief pursuant to
People v. Wende (1979) 25 Cal. 3d 436 and requests that we conduct an independent
review of the record. Appellant was informed of his right to file a supplemental brief and
did not do so. Having independently reviewed the record, we conclude there are no
issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Proceedings
On February 4, 2010, an original petition under Welfare and Institutions Code
section 602 was filed relating to allegations that appellant threw a brick into a BART
train’s windshield. The juvenile court sustained a misdemeanor allegation that appellant
gave a false name to BART police after police made contact with him for that incident
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(Pen. Code, § 148.9, subd. (a)1). The Contra Costa County Superior Court adjudged
appellant a ward of the court and placed him on home supervision in his mother’s care.
On November 16, 2010, the Alameda County Superior Court sustained a violation
of grand theft of a person (§ 487, subd. (c)) after appellant reportedly pushed a man and
grabbed $60 from him after the man had withdrawn cash from an ATM. The Contra
Costa County Superior Court accepted the case for transfer from Alameda County. The
Contra Costa County juvenile court set the offense as a felony, and subsequently ordered
appellant into placement at Boys Republic.
On March 28, 2011, appellant was arrested on an outstanding warrant for
absconding from Boys Republic. He admitted the probation violation and was placed at
Children’s Home of Stockton. He subsequently left that placement without permission
and returned to juvenile court on an outstanding warrant and a new felony charge of
section 245, subdivision (a)(1), after reportedly throwing a bicycle at a victim, who
sustained cuts and bruises.
On July 13, 2011, while en route to his new placement, Courage to Change,
appellant absconded from program staff, and a warrant for his arrest followed. The next
day, appellant was arrested on the outstanding warrant and a probation violation, and on a
new allegation that he and a co-responsible had broken a window at the victim’s
residence and had attempted to gain entry. The juvenile court sustained an amended
count, second degree burglary (§§ 459, 460, subd. (b)).
On October 31, 2011, appellant was placed at Unicorn but left the placement
without permission. On November 12, 2011, he was arrested by the Richmond Police
Department on the subsequent warrant. The juvenile court sustained the probation
violation and continued appellant’s placement. Appellant absconded while being
transported to the placement.
On December 29, 2011, appellant was arrested by the El Cerrito Police
Department and booked into juvenile hall. On January 25, 2012, appellant was
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All further statutory references are to the Penal Code.
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committed to the Youth Offender Treatment Program (YOTP) to complete all phases of
the program. Appellant completed the institutional portion of the program on May 21,
2013 and was placed on an ankle monitor after advancing to Phase four, aftercare
supervision. He was returned to custody on June 13, 2013, for absconding, and ordered
to restart Phase four. Appellant subsequently completed his 90-day GPS period on
September 15, 2013—one day before the current probation violation for absconding.
The Probation Violation Proceedings
An arrest warrant and “Notice of Probation Violation Hearing” was filed on
September 20, 2013, alleging among other things that appellant’s wardship was
continued on September 16, 2013 and that appellant had failed to attend school on certain
dates. Appellant was arrested and admitted the probation violation.
At a February 28, 2014 contested dispositional hearing, appellant sought an order
permitting him to move to Minnesota to live with his brother, C.M. Appellant’s mother,
D.M., testified that she was planning on moving to Minnesota with appellant, if he were
placed with his brother, C.M., and that it would be a better place for the family. She
testified that she had been reunited with her former husband in 2006, and that her
husband would also be moving to Minnesota with the family.
The probation department recommended that appellant return to the YOTP.
According to the probation report, at the time of the dispositional hearing, appellant was a
junior whose last IEP was completed on September 27, 2013, at West Contra Costa
County School District. At juvenile hall, he attended Mt. McKinley School with a GPA
of 2.5 and had completed 126.50 of the necessary 151 credits to earn a high school
diploma. He had attended Vista High School before absconding. School records from
another high school indicated truancy, class disruptions, discipline, fighting, and
“defiance.” During his probation interview, he admitted having used marijuana and
alcohol. Appellant had a history of mental illness, including depression, anxiety, PTSD,
and ADHD, and presented a “high risk” of reoffending. The probation officer believed
that while appellant had submitted a letter to the juvenile court in which he said he
wished to leave his past behind him and that he believed he would do better in
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Minnesota, in light of his social history, he would be better off living elsewhere. The
probation officer further testified that he believed that the structured environment and
intensive educational services of YOTP, including special educational services,
counseling, and daily tutoring, could benefit appellant. Appellant could also benefit from
gang intervention, based on his admitted associations, which would help prevent further
gang involvement. The probation officer expressed concerns about appellant moving to
Minnesota with the entire family.
The juvenile court continued appellant’s wardship at the YOTP with no
termination date and imposed various terms and conditions of probation. In determining
disposition, the juvenile court observed that appellant’s brother in Minnesota did not have
appropriate living quarters. The juvenile court was also unable to make a finding that
appellant’s mother, grandmother, and father were responsible caretakers. The juvenile
court calculated the maximum term of confinement as two years, eight months, and four
days.
DISCUSSION
Appellant’s counsel has filed a brief pursuant to People v. Wende, supra,
25 Cal. 3d 436, and asks this court to independently review the entire record to determine
if it contains any issues which would, if resolved favorably to the appellant, result in
reversal or modification. A review of the record has disclosed no reasonably arguable
appellate issue, and we are satisfied that counsel has fully complied with his
responsibilities. (Ibid.; People v. Kelly (2006) 40 Cal. 4th 106.) The juvenile court did
not err in ordering placement at the YOTP. Appellant was adequately represented by
counsel at every stage of the proceedings. There was no sentencing error. There are no
issues that require further briefing.
DISPOSITION
The judgment is affirmed.
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_________________________
McGuiness, P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
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