In re E.S. CA1/1

Filed 12/9/14 In re E.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 E.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
E.S., A141736
Defendant and Appellant. (Solano County
Super. Ct. No. J42325)
Defendant E.S. appeals from a judgment of the juvenile court sustaining
allegations of felony and misdemeanor assault with a deadly weapon or by means likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))1 on two dates, and
misdemeanor exhibition of a deadly weapon (§ 417, subd. (a)(1)) on two dates, declaring
wardship and placing him on probation on numerous terms and conditions, including
serving five weekends in juvenile hall. His 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 defendant, result in reversal or modification of
the judgment. (People v. Wende (1979) 25 Cal. 3d 436.) Defendant was notified of his
right to file a supplemental brief, but has not filed anything further. Upon independent
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
review of the record, we conclude no arguable issues are presented for review, and affirm
the judgment.
DISCUSSION
On January 13, 2014, the Solano County District Attorney filed a wardship
petition under Welfare and Institutions Code section 602, subdivision (a), alleging four
counts, two arising out of an incident occurring on January 8, 2014, and two arising out
of an incident on November 11, 2013.2 A contested jurisdictional and disposition hearing
was held on April 28, 2014.
The January 2014 incident occurred in E.S.’s math classroom at the end of the
day. In response to a classmate, K.J., telling him what she had just said to another
classmate “didn’t concern” him so “why did [he] want to know,” E.S. pulled a knife from
his pocket, opened it, and pointed it at K.J.’s stomach. K.J. had been out of her seat, and
when she sat down, E.S. leaned across his desk and held the blade six to eight inches
from her neck. When K.J. told him to “[g]et the knife out of my face,” he did so and put
it in his pocket, but then pulled it out again and held it closer to her neck. Fearing E.S.
would cut her, K.J. told him what she had said to the other student. K.J. did not tell the
teacher, fearing E.S. would try to cut her, but did tell a cousin. The following day she
also told another cousin, who told E.S. to apologize to K.J. E.S. walked away and one of
her cousins chased him. Two days after the incident, K.J. met with Police Officer Gulian
and wrote out a statement of what happened.
The November 2013 incident occurred in the vicinity of the high school stadium.
E.S. was either walking with or came up behind a fellow student, A.S. A.S. had briefly
dated E.S. E.S. demanded to see a note A.S.’s friend had given to her about E.S., telling
her if she did not, he would cut her. E.S., standing two to three feet away, pulled out a
knife from his pants pocket, opened it, and pointed it at her stomach. A.S. snatched the
2
A minor correction was made to count 1 in an amended petition filed
February 28, 2014. A second amendment adding a fifth count, misdemeanor battery on
school property, was filed April 8, 2014, and which was subsequently dismissed pursuant
to a Harvey waiver. (People v. Harvey (1979) 25 Cal. 3d 754.)
2
knife, then gave it back to E.S. and he put it away. After that, she threw the letter at him
and walked away. The next day, A.S. told a substitute teacher, whose name she could not
later recall. She also told her mother, who told her to tell the principal. She did not do so
until January, 2014, when she also met with Police Officer Gulian.
E.S. denied both incidents, said he never brought a knife to school and claimed the
other students were all friends. He also had broken up with A.S. His math teacher
testified he had not seen any incident in the classroom on January 8. Officer Gulian
testified K.J. did not say anything about E.S. holding a knife to her stomach and A.S. did
not say she had told the substitute teacher or her mother about the incident. E.S.’s mother
testified she had seen two students “jump” her son, and on January 10, 2014, she and her
son reported the incident to the principal. She also searched their home and found no
knife and never saw her son with a knife.
On rebuttal, in response to E.S.’s assertion he never told anyone he took a knife to
school, Melani Zamora, a probation officer, testified E.S. told her he started taking a
knife to school in December because there were students who disliked him. He also
admitted to her displaying the knife in the math class, but said he kept it at his side,
covered with his hand.
The trial court sustained the allegations, finding the testimony of K.J. and A.S. and
one of the corroborating witnesses to be credible. It granted an Esteybar motion3 as to
the second incident, reducing the assault charge to a misdemeanor, and set the maximum
term of confinement at four years four months. It placed E.S. on probation subject to
numerous terms and conditions, including that he serve five weekends in juvenile hall,
excusable if he was in compliance.4 The trial court urged E.S. to get this episode behind
him and stay out of trouble so the record can be sealed.
3
Esteybar v. Municipal Court (1971) 5 Cal. 3d 119 (Esteybar).
4
The Probation Report stated E.S. had not taken “any type of responsibility for
the offenses,” and had “denied any involvement, and expressed uncertainty as to why his
peers created lies that resulted in the sustained violations.” The probation officer
reported E.S. as being evasive, and noted his statements to the officer were contradictory
to those he had made to the Intake Officer.
3
Throughout the proceedings, defendant was ably represented by counsel. The
juvenile court’s findings are supported by substantial evidence. There was no abuse of
discretion in the disposition. The probation terms are lawful, and the court duly ordered
restitution and imposed a restitution fine.
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the
judgment.
4
_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Margulies, J.
5