In re Jesse M.

Filed 1/5/10 In re Jesse M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

The juvenile court found that Jesse M. (appellant) committed second degree robbery and declared him a ward of the court. Appellants counsel has briefed no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplementary brief. We find no arguable issues and affirm.

BACKGROUND

In December 2008, a Welfare and Institutions Code section 602, subdivision (a)[1] petition was filed in Contra Costa County Juvenile Court, charging appellant, born in June 1991, with one count of second degree robbery (Pen. Code,  211, 212.5, subd. (c)).

At a March 2009 contested jurisdictional hearing, the People presented testimony from a police officer that appellant confessed to robbing Jose Vallejo, in Pittsburg, the night of November 28, 2008. Appellant told the officer that two other males, Tiren and Isaac, also participated in the robbery. Appellant testified at the hearing and admitted to participating in the robbery with Tiren and Issac. However, he claimed that he participated only because he feared Tiren and Issac would whoop him if he refused. Appellant elicited testimony from a counselor at the group home where he and Tiren resided that Tiren was threatening and controlling. The juvenile court sustained the robbery charge.

In April 2009, the matter was transferred to Alameda County for disposition. Appellant was already a dependent child in that county under section 300. At the dispositional hearing, appellant was adjudged a ward of the court under section 602 and the dependency under section 300 was dismissed. Appellant was detained; and, in May 2009, he was accepted into the Rite of Passage program in San Andreas.

DISCUSSION

We have reviewed the record and have found no arguable appellate issues.

Appellant was represented by legal counsel throughout the proceedings and there is no indication in the record that counsel was ineffective.

Appellant confessed his participation in the robbery to the police after being informed of his rights. The only issue at trial was whether he participated in the robbery under duress. The juvenile court rejected appellants testimony and found the People had shown beyond a reasonable doubt that defendant did not act under duress. The court did not believe appellant was motivated by fear of immediate death or great bodily harm in committing the robbery. (See Pen. Code,  26; CALCRIM No. 3402; People v. Heath (1989) 207 Cal.App.3d 892, 899-900.) That finding is supported by substantial evidence. (See In re Branden O. (2009) 174 Cal.App.4th 637, 641-642.) Among other things, appellants testimony was not credible because, when he made his confession to the police the night of the robbery, he did not claim to have acted under duress.

Appellants counsel on appeal has suggested, as a possible arguable issue, the fact that one of the alleged co-participants, Tiren, was found legally unavailable due to his assertion of the privilege against self-incrimination under the Fifth Amendment to the United States Constitution, without being required to refuse to respond to each separate line of questioning. (See Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 [a person claiming the Fifth Amendment privilege must do so with specific reference to particular questions asked or other evidence sought].) However, appellants counsel below suggested that Tirens refusal to testify rendered him legally unavailable and asked that Tiren be excused. Appellants counsel did not request that Tiren be required to assert the privilege as to each separate line of questioning. Accordingly, any claim of error in this regard has been forfeited. (People v. Alvarez (1996) 14 Cal.4th 155, 186 [defendant forfeited Sixth Amendment confrontation clause claim in failing to object on that ground]; People v. Chaney (2007) 148 Cal.App.4th 772, 777-780.) Moreover, it is unlikely appellant could show prejudice from any error. (People v. Archer (2000) 82 Cal.App.4th 1380, 1394.) It is difficult to conceive of any questions Tiren could have answered without incriminating himself that would have offered meaningful support for appellants claim of duress. This is likely the reason why appellants counsel asked that Tiren be excused.

Finally, the juvenile court did not err in its disposition.

Appellate counsel advised appellant of his right to file a supplementary brief to bring to this courts attention any issue he believed deserved review. (People v. Kelly (2006) 40 Cal.4th 106.) Appellant did not file a supplementary brief. There are no legal issues that require further briefing.

DISPOSITION

The juvenile courts orders are affirmed.

SIMONS, J.

We concur.

JONES, P. J.

BRUINIERS, J.

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[1] All further undesignated section references are to the Welfare and Institutions Code.