In re S.E. CA4/2

Filed 6/30/22 In re S.E. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.E., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E077787
Plaintiff and Respondent,
(Super.Ct.No. J279436)
v.
OPINION
S.E.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill,
Judge. Affirm.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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INTRODUCTION
Pursuant to a negotiated plea, defendant and appellant S.E. (minor) admitted as
true an allegation in the petition that he committed attempted murder. (Pen. Code,1
§§ 664, 187.) He also admitted that he personally used and discharged a firearm.
(§ 12022.53, subd. (c).) The parties stipulated that minor would be committed to the
Department of Juvenile Justice (DJJ). A trial court committed him to DJJ in accordance
with the agreement. Minor subsequently petitioned the court to set aside his DJJ
commitment and commit him to the Gateway to Arise program instead. The court denied
minor’s request to change the commitment.
Minor filed a timely notice of appeal. We affirm.
PROCEDURAL BACKGROUND
The San Bernardino County District Attorney filed a Welfare and Institutions
Code section 602 petition alleging that minor committed attempted murder (§§ 664, 187,
subd. (a), counts 1-3, 12), assault with a firearm (§ 245, subd. (a)(2), counts 4-6),
attempted carjacking (§§ 664, 215, subd. (a), count 7), shooting at an occupied vehicle
(§ 246, count 8), and attempted robbery (§§ 664, 211, counts 9-11).2
On February 26, 2021, pursuant to a plea agreement, minor admitted count 1
(attempted murder) and an added firearm enhancement. (§ 12022.53, subd. (c).) In
exchange, the parties agreed that minor would be committed to the DJJ, and the
1 All further statutory references will be to the Penal Code unless otherwise noted.
2 Count 7 was subsequently dismissed at the prosecution’s request.
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prosecution moved to dismiss the remaining counts and allegations, as well as its petition
to transfer the case to adult court. The court found the allegations true and found that
minor’s admissions were freely, intelligently, and voluntarily made. It also granted the
prosecution’s motions to dismiss and to withdraw the petition to transfer.
On March 12, 2021, the court declared minor a ward, removed him from his
mother’s custody, and in accordance with the plea agreement, committed him to the DJJ.
He was ordered to remain in juvenile hall pending delivery to the DJJ. On April 23,
2021, minor was accepted by the DJJ, but his delivery was pending.
On June 22, 2021, minor filed a petition to set aside his commitment to the DJJ
pursuant to Welfare and Institutions Code section 779. He requested to be committed to
the Gateway to Arise (Arise) program instead, asserting that he would “benefit more”
from the localized program. The court scheduled a special hearing on the petition. The
probation department filed a report recommending that minor be committed to the Arise
program and noting that he had not yet been delivered to the DJJ. The prosecution filed
an opposition to minor’s petition, asserting that Welfare and Institutions Code section
779 only allowed a change in commitment upon a showing of good cause that “the Youth
Authority is unable to, or failing to, provide treatment consistent with Section 734,” and
arguing that minor failed to make such showing. The prosecution also contended that the
court had no jurisdiction to “renegotiate the terms of the plea by judicial fiat” and change
the negotiated disposition.
The court held a hearing on August 27, 2021, and denied minor’s request to set
aside his DJJ commitment. Although the court agreed it was in minor’s best interest to
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go to the Arise program, it noted that this was a negotiated plea, and sending minor to the
DJJ was a specific term of the agreement. The court stated it was not in a position to
change specific agreements or contracts entered into by the parties.
Minor filed a timely notice of appeal.
DISCUSSION
Minor appealed and, upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and People v. Feggans (1967) 67 Cal.2d 444, setting forth a statement of the case
and no arguable issues. Counsel has also requested this court to undertake a review of
the entire record.
We offered minor an opportunity to file a personal supplemental brief, which he
has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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