Filed 2/22/18 In re Desmond V. CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

In re DESMOND V., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

DESMOND V.,

Defendant and Appellant.

F075043

(Super. Ct. No. JJD068216)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After the sixth Welfare and Institutions Code section 602 petition was found true against appellant Desmond V., the juvenile court committed Desmond to the Department of Juvenile Justice (DJJ). Desmond appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On September 11, 2014, a section 602 petition was filed against Desmond alleging in count 1 a misdemeanor violation of Penal Code section 243.2, subdivision (a), battery on school property, and in count 2 a misdemeanor violation of Penal Code section 148, subdivision (a)(1), resisting arrest. Desmond was twelve years old at the time.
The juvenile court placed Desmond on informal probation on September 12, 2014, and scheduled a review date. The juvenile court articulated the goal of informal probation as dismissal of the charges if Desmond complied with the conditions of informal probation.
On December 29, 2014, a first amended section 602 petition was filed, alleging as count 3 a misdemeanor violation of Penal Code section 242, battery of his adopted father. At the December 30, 2014 detention hearing, informal probation was terminated.
At the January 6, 2015, pretrial hearing, Desmond admitted counts 1 and 2 pursuant to a plea agreement; count 3 was dismissed. At the January 20, 2015 disposition hearing, Desmond was declared a ward of the juvenile court and placed on probation to reside in the custody of his parents. Various terms and conditions of probation were set, including that he obey all laws, ordinances, and school rules.
On February 27, 2015, a second section 602 petition was filed alleging Desmond committed a felony assault with a deadly weapon and a misdemeanor battery. At the April 14, 2015 readiness conference, pursuant to a plea agreement, Desmond admitted to a misdemeanor count of assault with a deadly weapon, a violation of Penal Code section 245, subdivision (a)(1), and the other count was dismissed.
Disposition on the second section 602 petition was held on April 28, 2015. Desmond was continued as a ward of the juvenile court and again placed on probation in the physical custody of his parents. The parents’ intent was to have Desmond placed with the Grizzly Youth Academy, which the juvenile court felt was a “great” plan. Various terms and conditions of probation were imposed. Desmond was notified that if he was found to be in violation, a future disposition could be a return to custody.
On July 29, 2015, the probation office filed a section 777 notice of violation of probation. The alleged violations were that Desmond failed to abide by the court ordered curfew; failed to follow the directives of his caregivers; failed to comply with the probation officer’s directives; failed to regularly attend counseling; and had absconded from his residence on July 22, 2015, and his whereabouts were unknown.
Desmond was in custody on July 30, 2015, and in court for a hearing on the section 777 probation violation allegations. Desmond admitted the probation violation allegations.
Disposition on the probation violations was held on August 17, 2015. The juvenile court continued Desmond on probation, in parental custody, subject to various terms and conditions. Desmond again was warned that if there were future violations, he might be returned to custody.
On February 29, 2016, a third section 602 petition was filed against Desmond. This petition alleged as count 1 a felony assault by means of force likely to produce great bodily injury and as count 2 a misdemeanor battery on a school employee. The petition was amended on March 1, 2016, to allege as count 3, another felony assault by means of force likely to produce great bodily injury, with the special allegation that great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a), was inflicted; and misdemeanor vandalism was alleged as count 4.
At a hearing on March 8, 2016, Desmond admitted the allegations of the amended section 602 petition. Desmond was advised that he could be facing a maximum period of confinement of nine years four months and could be committed to the DJJ. The juvenile court sustained the amended petition; deemed counts 1 and 3 felonies and counts 2 and 4 misdemeanors; and referred the matter to probation for a recommended disposition.
The probation department filed a report for the disposition hearing. In that report, the probation officer states that Desmond’s mother reports he does not comply with curfew, is disrespectful in the home, leaves without permission, is using marijuana, was not attending counseling, did not complete court-ordered community service, and apparently has become involved with a gang. The probation officer opined that Desmond has an anger management problem and was quick-tempered. His mother noted that he is “intimidating” at home and “punches walls when he becomes angry.” Desmond admitted being involved with gangs, but denied being a gang member. The probation department recommended Desmond be removed from parental custody and placed in the Tulare County Mid-term Program.
At the March 22, 2016 disposition hearing, the juvenile court noted it had read the probation department’s report and recommendation. The juvenile court noted that the allegations of the amended petition, including the Penal Code section 12022.7 special allegation, previously were sustained. Desmond was continued as a ward of the juvenile court and committed to the Tulare County Mid-term Program for a period of 365 days. The juvenile court notified Desmond that the maximum custodial time for all sustained petitions was nine years eight months and that if Desmond continued to violate, he was “looking at going to DJJ.”
On April 4, 2016, a fourth section 602 petition was filed alleging Desmond committed a misdemeanor violation of Penal Code section 148.4, subdivision (a)(2), sounding a false fire alarm. At the April 5, 2016 detention hearing, Desmond admitted the allegation of the petition. The juvenile court noted that Desmond was now facing a maximum period of confinement of 10 years. Desmond was recommitted to the mid-term program.
A section 777 probation violation notice was filed on April 14, 2016. The section 777 notice alleged that Desmond violated his probation by failing to comply with the rules and regulations of the mid-term program.
Desmond admitted the probation violation on April 15, 2016. At the April 29, 2016 disposition hearing on the probation violation, Desmond was placed in the Tulare County Long-term Program for 240 to 365 days and warned that his next disposition likely would be to the DJJ.
On May 11, 2016, yet another section 602 petition, the fifth, was filed against Desmond. This petition alleged four misdemeanor offenses: battery, battery on a peace officer, resisting arrest, and disturbing the peace. At the May 12, 2016 detention hearing, Desmond admitted all the allegations. Desmond was informed he faced a maximum of 10 years 11 months in confinement. At the May 26, 2016 disposition hearing, the juvenile court recommitted Desmond to the long-term program for 240 to 365 days.
On June 23, 2016, the probation department filed a section 777 notice alleging Desmond was refusing to participate in the long-term program, failing to follow staff instructions, in possession of contraband, using profanity, and not following school rules and regulations. Desmond admitted the probation violation on July 14, 2016.
At the August 11, 2016 disposition, the juvenile court noted that the maximum time for all sustained petitions was 10 years 11 months. Desmond was committed to the Tulare County Long-term Program for 240 to 365 days.
On September 30, 2016, another section 602 petition, the sixth, was filed against Desmond. This petition alleged Desmond committed felony assault by means of force likely to produce great bodily injury. This incident occurred inside the long-term facility.
A contested hearing on the sixth petition was held on November 29, 2016. The probation officer who investigated the incident, Michael Wallace, testified that the long-term facility was under video surveillance with constant video recording. Wallace reviewed the video for the day of the incident; the video was admitted into evidence. Wallace testified the video showed a fight took place on September 27, 2016, at 12:35 p.m., in classroom 1A. Desmond’s face was clearly visible on the video.
The victim, M.L., also testified. M.L. testified that on the day and time in question, he was “jumped by two youths.” He identified Desmond as one of those who attacked him; Desmond threw a chair at M.L. in the classroom. When M.L. ducked and “run to cover,” Desmond started punching and kicking M.L. M.L. was on the ground with his arms covering his head while he was being hit on the head, back, and ribs multiple times by Desmond and one other youth.
Exhibit 1, the video of the attack, was played in the courtroom. M.L. testified it was an accurate depiction of what had happened. M.L. testified he overheard Desmond say he was “tired of the program” and “would rather get out and go to [DJJ],” which is why M.L. was jumped. M.L. had bumps on his head, red marks and bruising on his back. He saw the nurse at the facility for treatment and an X-ray was taken.
At the conclusion of presentation of evidence, defense counsel argued there was insufficient evidence the assault was likely to produce great bodily injury. Defense counsel argued that the injuries M.L. received to his back and head did not qualify as great bodily injury and that M.L. “embellish[ed]” his testimony. The People countered that great bodily injury need not actually be inflicted; the offense was committed when an assault likely to cause great bodily injury, such as kicking and punching, was committed.
The juvenile court stated the video showed Desmond and one other assailant “kicking [M.L.] in the head and the ribs and the back. They were punching him, as well. I did see a chair being thrown at him initially .… So all of those activities could certainly result in great bodily injury.” The juvenile court found the allegations of the petition true.
The probation department filed a social study for the disposition hearing. The recommended disposition was that Desmond be sent to the DJJ.
At the December 22, 2016 disposition hearing, the juvenile court was notified that a new section 602 petition “will be coming down the legal pipeline.” The matter was continued to January 3, 2017, with the juvenile court stating, “whatever the situation is” needs to be “filed at that time.”
As of January 3, 2017, the People had filed no new section 602 petition. Defense counsel stated that Desmond did not want to continue the hearing, “he wants to go to DJJ.” The juvenile court proceeded with disposition, taking judicial notice of all prior orders, findings, and judgments with respect to Desmond. The juvenile court sentenced Desmond to the DJJ. The juvenile court found that Desmond would “benefit from the reformatory discipline or other treatment” provided by the DJJ. The maximum period of confinement was set as 11 years 11 months, with 400 days of credit for time served.
A notice of appeal was filed January 18, 2017.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on October 6, 2017. That same day, this court issued its letter to Desmond inviting him to submit a supplemental brief. No supplemental brief was filed.
Desmond admitted allegations of the multiple section 602 petitions and the section 777 probation violation notices, with the exception of the sixth and last section 602 petition, which was contested. This section 602 petition alleged a felony violation of Penal Code section 245, subdivision (a)(4), assault by means of force likely to produce great bodily injury. There is no credible argument that Desmond did not commit the assault; he is shown clearly in the video admitted into evidence as Exhibit 1 attacking the victim and the victim testified Desmond was one of his attackers.
At the contested hearing, the victim testified he had “bumps” on his head and “bruising” on his back as a result of the attack. Desmond contended the evidence failed to establish the victim suffered “great bodily injury.” Penal Code section 245 “‘prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury.’” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065.) Whether the victim actually suffered great bodily injury, therefore, is not the issue.
According to M.L., he was hit with a chair, then punched and kicked in the head, back, and ribs. Whether the force used was such as to have been likely to produce great bodily injury is one of fact for the determination of the trier of fact based upon all the evidence. (People v. Armstrong, supra, 8 Cal.App.4th at pp. 1065–1066.) The use of fists alone can support an assault conviction under Penal Code section 245. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Here, Desmond used not only his fists to punch the victim, he also threw a chair at and kicked M.L. The juvenile court reasonably could find that the force used against M.L. by Desmond was likely to produce great bodily injury.
We review a juvenile commitment decision for abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329–1330; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) At the time the juvenile court committed Desmond to the DJJ on January 3, 2017, he was 15 years old. He first was the subject of a section 602 petition in September 2014. Desmond’s behavior was increasingly delinquent and increased in violence; he also began to associate with a gang. Attempts at rehabilitation and reformation while in the custody of his parents, or in a local facility, were unsuccessful. We conclude the juvenile court did not abuse its discretion in committing Desmond to the DJJ under the facts and circumstances of this case.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The juvenile court’s disposition order committing Desmond to the DJJ is affirmed.