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In e Shawn G.

In e Shawn G.
08:17:2013





In e Shawn G




 

 

In e Shawn G.

 

 

 

 

 

 

 

 

 

Filed 6/12/13  In e Shawn G. CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>










In re SHAWN G., a Person Coming Under the Juvenile Court
Law.

 


 


THE PEOPLE,

 

      Plaintiff and
Respondent,

 

            v.

 

SHAWN G.,

 

      Defendant and
Appellant.

 


 

 

         G047317

 

         (Super. Ct.
No. DL042150)

 

         O P I N I O
N


 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Maria D. Hernandez, Judge.  Affirmed.

                        Jan B. Norman, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        No appearance for
Plaintiff and Respondent.

                        We appointed href="http://www.fearnotlaw.com/">counsel to represent Shawn G. on
appeal.  Counsel filed a brief that set
forth the facts of the case.  Counsel did
not argue against her client but advised the court no issues were found to
argue on his behalf.  We gave Shawn 30
days to file written argument on his own behalf.  That period has passed, and we have received
no communication from him.

                        Pursuant
to Anders v. California (1967) 386
U.S. 738, to assist the court in conducting its independent review appellate
counsel provided the court with information as to issues that might arguably support an
appeal.  Counsel listed as
possible, but not arguable issues:  (1)
whether the juvenile court abused its discretion when it denied Shawn’s motion
to exclude the victim’s mother from the courtroom during the adjudication; (2)
if the court did err when it denied the motion to exclude, was the error
prejudicial; and (3) whether the court abused its discretion when it ordered
Shawn to serve 540 days in juvenile hall.

                        We have reviewed the
information provided by counsel and have independently examined the
record.  We found no arguable
issues.  (People v. Wende (1979) 25 Cal.3d 436.)  We affirm the judgment.

FACTS

                        Shawn G. attacked Jessie
Monter as she walked home from work. 
Shawn grabbed Monter from behind and placed his arm around her
neck.  He struck her in the head five to
10 times with a foot-long piece of wood. 
When Shawn struck Monter on the nose, she fell to the ground.  While she was on the ground, Shawn continued
to strike her with the wood.

                        Chona Verlinden was
sitting in her parked car when she heard a female cry.  At first, Verlinden saw Shawn and Monter
facing each other.  But when Verlinden
heard a female scream, she turned around again and saw Shawn and Monter on the
ground while Shawn struck her.  Verlinden
saw Monter’s face covered in blood and Shawn running away.

                        Verlinden stopped a
passing motorist who gave chase but ultimately lost sight of Shawn.  Monter called her mother, Cynthia Peerson, on
her cellular telephone and walked to the manager’s office at her apartment
complex.  While the manager, Linda Stone
(Linda)href="#_ftn1" name="_ftnref1" title="">[1],
provided Monter with medical assistance, her husband, Frank Stone (Frank),
pursued Shawn in his car.  Monter
described her assailant as a male black with short hair, approximately 5’ 6”
tall, thin, in his late teens, carrying a black backpack, and wearing a dark
“hoodie” and dark jeans.

                        After speaking with her
daughter on the telephone about the attack, Peerson drove home.  Just as Frank was leaving to search for
Shawn, Peerson arrived.  Peerson saw her
daughter outside the Stones’ apartment with the Stones and Verlinden.  Peerson got out of her car and spoke with her
daughter.  Verlinden approached Monter
and asked her to speak with the police on the telephone.  As Verlinden was handing the telephone to the
victim, Verlinden pointed and said, “‘There he is.’”  Monter agreed.  Verlinden recognized Shawn’s jacket and
backpack.

                        Peerson looked across
the street and observed the person running. 
Peerson pursued Shawn in her car. 
Peerson encountered Shawn as he was walking down the street.  She pulled her car next to Shawn and accused
him of attacking her daughter.  She told
him to stay there until the police arrived. 
Frank arrived and saw Shawn sitting on the curb and Peerson in her
car.  Shawn was breathing heavily and
talking on his cellular telephone.  Frank
heard Shawn say, “‘I  didn’t do it.’”

                         Police took Verlinden to a location where she
observed Shawn in a police vehicle. 
After seeing Shawn, she identified him as the assailant.

 

                        The police responded,
and Monter was taken to the hospital.  At
the hospital, Monter was treated for a cut above her eye requiring four
stitches, three cuts on her head, and numerous bruises.  The police recovered a blood-stained
two-by-four piece of wood approximately one foot long in the area where the
assault occurred.  The blood on the piece
of wood was later compared with Monter’s and found to be a match.                       

                        Several days later,
police showed Monter a photographic line-up at the police station.  Shawn’s photo was included in the group, but
Monter was only able to identify two of the photos as possibly being her
assailant.  She described Shawn’s photo
as being more likely her assailant, but admitted she “only saw a glimpse of
[her assailant’s] face.”

                        A first amended petition
alleged Shawn committed the following offenses: 
(1) assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))href="#_ftn2" name="_ftnref2" title="">[2]
(count 1); (2) assault with force likely to produce great bodily injury
(§ 245, subd. (a)(4)) (count 2); and

(3)
battery with serious bodily injury
(§ 243, subd. (d)) (count 3).  The
amended petition alleged Shawn inflicted great bodily injury (§ 12022.7, subd.
(a)), as to all counts, and personally used a deadly weapon (§ 12022, subd.
(b)(1)), as to count 3.

                        Prior to trial, the
prosecution moved to exclude Shawn’s mother from the courtroom because she was
listed as a witness.  The court indicated
it would take this witness out of order or exclude her as necessary during
portions of the testimony.  When Shawn
moved to exclude Monter’s mother, the prosecutor requested  “under Marsy’s Law” that Monter’s mother be
allowed to remain.  The court denied the
motion to exclude Monter’s mother.  At
trial, Shawn denied any involvement in the attack.

                        The matter was
adjudicated and the juvenile court sustained all the allegations and found all
the enhancements to be true with the exception of count 2.  At the dispositional hearing, the court
acknowledged its duty to balance the importance of redressing Monter’s injuries
with Shawn’s best interests.  The court
noted Shawn had numerous reported incidents of assaultive behavior dating back
to age five.  It found Shawn’s lengthy
history of explosive, aggressive behavior very disturbing.  The court noted the psychiatric report
submitted to the court recommended Shawn be confined in a locked secure
facility where he could receive intensive therapeutic treatment.  The court noted that despite her best
efforts, Shawn’s mother was unable to control his behavior.

                        The court declared Shawn
a ward of the court and committed him to the Juvenile Hall or an appropriate
facility for 540 days with credit for 170 days served.  After termination of the commitment, the
court ordered Shawn released to his parents on probation with various terms and
conditions.  The court found the maximum
term of confinement to be five years.

DISCUSSION

                        Appellate
counsel listed three possible but not arguable issues.  We will discuss each in turn.

Failure to Exclude Monter’s Mother

                        Evidence
Code section 777href="#_ftn3" name="_ftnref3"
title="">[3]
provides in pertinent part that “the court may exclude from the courtroom any
witness not at the time under examination so that such witness cannot hear the
testimony of other witnesses.”  We review
the juvenile court’s ruling for an abuse of discretion.   (People
v. Wallace
(2008) 44 Cal.4th 1032, 1053.) 


                        Our
Supreme Court has observed “Marsy’s Law” (Proposition 9, the Victims’ Bill of
Rights Act of 2008”; Pen. Code, § 3041.5; Cal.
Const., art. I, § 28), “amended the California Constitution to guarantee crime
victims a number of rights.”  (>Kling v. Superior Court (2010) 50
Cal.4th 1068, 1080.)  One of those rights
is to be present in the courtroom (§ 1102.6), but nothing in Marsy’s Law
precludes a motion to exclude witnesses under Evidence Code section 777.  The purpose of excluding witnesses is to
prevent tailored testimony and aid in the detection of less than candid
testimony.  (Geders v. United States (1976) 425 U.S. 80, 87.)  Prosecutors generally call victim witnesses
to testify first so they can remain in the courtroom for the entire trial.  The procedure of taking witnesses out of
order in response to a motion to exclude witnesses appears to have been
followed with respect to Shawn’s family members.  It is not clear from the record why this
procedure was not followed with respect to Peerson, who was the subject of
Shawn’s motion to exclude.  Had Peerson
been called as the first prosecution witness, the problem could have been
avoided for the most part.  

                        Here,
Peerson was present when her daughter, Verlinden, Linda, and Frank
testified.  The issue then is whether
allowing Peerson to hear the testimony of these witnesses influenced her
testimony.  We conclude it did not.

                        We
begin our discussion by noting the pertinent parts of the testimony of the
various witnesses.  Monter testified how
while sitting with her mother trying to clean up her face, she saw Verlinden
point and heard her say, “‘There he is.’” 
Monter explained she looked at the person and recognized him as her
assailant based on his clothing and backpack.

                        Verlinden
testified that after observing Shawn, she lost sight of him, and went to look
for Monter.  She located Monter talking
with neighbors, the Stones.  While
standing near Monter, Verlinden saw Shawn running on the street and identified
him as Monter’s attacker.

                        Linda
testified Monter knocked on her door the afternoon of the incident screaming
and asking for help.  Monter appeared
beaten up and was bloody.  While Linda
was tending to Monter’s wound, Monter’s mother, Peerson, arrived.  After a few minutes of conversation with her
daughter, Peerson searched for her daughter’s assailant.

                        Frank
testified that on the afternoon of the incident, he heard his wife yell loudly
to him to get a towel.  After throwing
the towel down to his wife, Frank went downstairs and observed Monter with her
face all bloody.  The only description
Monter gave him of her assailant was that he was “‘a black guy.’”  With that limited description, Frank got in
his car and searched for the assailant. 
Having been unsuccessful, Frank returned to the apartments.  When he returned, Monter and Peerson were
still there.  Linda then redirected him,
and he left again in pursuit of the assailant.

                        Frank
located Shawn a few blocks away.  Shawn
was on the sidewalk leaning against a stop sign.  Peerson was also in her car.  Frank observed Shawn to be on a cellular
telephone and overheard him to say, “‘I didn’t do it.  I didn’t do it.  I didn’t do anything.’”  Frank also heard him describe Monter in great
detail.

                        After
these witnesses had testified, the prosecutor called Peerson to testify.  Peerson described how her daughter called her
and said she had been assaulted.  She
immediately went to the location of her daughter and found her holding a towel
to the front of her head.  After removing
the towel from her daughter’s face, Peerson observed Monter had an inch long
gash underneath her left eyebrow, and blood was coming down from the top and
back of her head.  Within just a few
minutes, she heard Verlinden say, “‘There he goes,’” and heard her daughter
say, “‘Yes, that’s him.’”  Peerson then
jumped in her car and began to pursue the person identified by her daughter and
Verlinden.  Peerson ultimately caught up
with Shawn, who was on the sidewalk.  She
pulled up next to him, accused him of attacking her daughter, and told him he
needed to stay until the police arrived. 
Shawn claimed to have no idea what Peerson was talking about. 

                        There
was some overlap among the testimony of various witnesses, and no significant
inconsistencies.  Although it would have
been a better practice to have called Peerson out of order as the prosecution’s
first witness, nothing in the record suggests her presence in the courtroom
caused her to tailor her testimony.  We
conclude the trial court did not abuse its discretion in denying Shawn’s motion
to exclude Peerson.

Prejudice

                        Although
we determine no error occurred, in the event it was error for Peerson to have
been allowed to remain in the courtroom, we discern no prejudice.  There was overwhelming
evidence
of Shawn’s guilt.

Abuse of discretion in ordering Shawn to serve 540 days in juvenile
hall


                        Welfare
and Institutions Code section 202 provides in relevant part:  “Minors under the jurisdiction of the
juvenile court as a consequence of delinquent conduct shall, in conformity with
the interests of public safety and protection, receive care, treatment, and
guidance that is consistent with their best interest, that holds them
accountable for their behavior, and that is appropriate for their
circumstances.”

Section 202, subdivision (e)(4),
provides for “[c]ommitment of the minor to a local detention or treatment
facility, such as a juvenile hall, camp, or ranch.”  In determining whether substantial evidence
supports a commitment order, the court examines the record presented at the
dispositional hearing in light of the purposes of juvenile law.

(Welf. & Inst. Code, § 202; >In re Michael D. (1987) 188 Cal.App.3d
1392, 1395 (Michael D.).)  Substantial evidence is evidence that is
“reasonable, credible, and of solid value—from which a reasonable trier of fact
could have made the requisite finding under the governing standard of
proof.”  (In re Jorge G. (2004) 117 Cal.App.4th 931, 942.) 

                        In
1984, the Legislature amended Welfare and Institutions Code

section 202 to make punishment
and public safety appropriate considerations in determining the disposition of href="http://www.fearnotlaw.com/">juvenile offenders.  The amendments “shifted its emphasis from a
primarily less restrictive alternative approach oriented towards the benefit of
the minor to the express ‘protection and safety of the public’ [citation],
where care, treatment, and guidance shall conform to the interests of public
safety and protection.”  (>Michael D., supra, 188 Cal.App.3d at p.
1396.) 

 

                        It
is clear from the record the juvenile court considered all the appropriate
factors.  Given the serious nature of
this attack, the lack of remorse on Shawn’s part, and his lengthy violent
history, we find no abuse of discretion in the court’s imposition of a 540 day
commitment. 

DISPOSITION

                        The
judgment is affirmed.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
J.

 

 

 

IKOLA, J.

 





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1]                       Unless the context
indicates otherwise, we refer to the Stones by their first names to avoid
confusion and mean no disrespect.

 

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2]                       All further statutory,
references are to the Penal Code, unless otherwise indicated.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3]                       Evidence Code section 777
provides:  “(a) Subject to subdivisions
(b) and (c), the court may exclude from the courtroom any witness not at the
time under examination so that such witness cannot hear the testimony of other
witnesses.  [¶] (b) A party to the action
cannot be excluded under this section. 
[¶] (c) If a person other than a natural person is a party to the
action, an officer or employee designated by its attorney is entitled to be
present.” 








Description We appointed counsel to represent Shawn G. on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court no issues were found to argue on his behalf. We gave Shawn 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
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