In re Jose C.
Filed 7/18/13 In re Jose C. CA1/2
TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 TWO
In re JOSE C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSE C.,
Defendant
and Appellant.
A136846
(Alameda County Super. Ct.
No. SJ12018609-01)
Appellant
Jose C., a minor, appeals from the juvenile court jurisdictional findings that
he carried a concealed firearm and that he carried a loaded firearm in
public. Appellant also appeals a
disposition order declaring him a ward of the court and placing him on
probation. Appellant brings this appeal
in compliance with Welfare and Institutions Code section 800. Appellant’s
counsel filed the opening brief without raising any specific issue and requests
that the court conduct an independent
review of the entire record in accordance with People v. Wende (1979)
25 Cal.3d 436. Appellant was
apprised by counsel of his right to file a supplemental
brief on his own behalf and he did not do so. We have reviewed the entire record and
find no arguable issues that would present a meritorious appeal.
The
information filed by the
County District Attorney included: in
count one, that appellant carried a concealed firearm (Pen. Code, § 25400,
subd. (a)(2)), and, in count two, that he carried a loaded firearm in public
(Pen. Code, § 25850, subd. (a)). On
June 26, 2012, following a contested jurisdictional hearing, the court found
these allegations to be proven true beyond a reasonable doubt. The court subsequently declared appellant a
ward of the court and placed him on probation in his mother’s custody.
At
the jurisdictional hearing, the court heard from the following witnesses: appellant and Hayward Police Officer Paul
Petersen, the officer who discovered the firearm and arrested appellant.
On January 30, 2012, just before 6:00 p.m., Hayward Police Officers
Valderrama and Petersen drove to an address on Jefferson Street, which was a gang residence
that had been the location of multiple shootings and was known to house
individuals who possess firearms. The
police reports and officer’s testimony state that upon approaching the residence,
Officer Petersen noticed appellant standing in front of the home smoking a
cigarette. Smoking in public is a
Municipal Code violation in Hayward under section
5-6.11.
Petersen asked his partner to stop the vehicle in order to issue
appellant a citation for smoking in public.
In his testimony, Petersen stated that he stepped out of his vehicle and
began to walk toward appellant. Petersen
said that when appellant saw Peterson drawing near, he discarded his cigarette
and “casually†walked around the side of the residence toward the back of the
home. Petersen testified that he yelled
at appellant to remain where he was and then pursued appellant to the back of
the residence, losing sight of him for approximately five seconds. Petersen regained sight of appellant when he
looked around the back of the house; and there he witnessed appellant tossing a
black object underneath a blue tarp that covered debris. Petersen stopped appellant. Petersen’s partner arrived, and appellant was
searched for weapons, asked for his identification and detained. While appellant was detained Petersen
searched the area and recovered the object appellant had discarded. Petersen noted that the area underneath the
tarp was covered in dust and trash, but concluded that the black object did not
appear to have been there long because it lacked the covering of dust and
residue. The object beneath the tarp was
revealed to be a handgun inside a black sock.
Appellant
disputes this rendition of events. He
maintains that he was not smoking a cigarette, that he was unaware the officers
had stopped in front of the Jefferson residence, and that he only went to the
back of the house to relieve himself.
Appellant’s and Peterson’s statements were consistent up until the point
where appellant stated that he saw the officers’ vehicle. The most inconsistent point being what
appellant was actually doing behind the residence: dumping a gun or micturating.
The
court determined that the officer’s testimony was more credible than
appellant’s and concluded that he committed violations of Penal Code sections
25400, subdivision (a)(2) and 25850, subdivision (a). In addition to the juvenile court
jurisdictional order and the disposition order, the court set the following
probation conditions: appellant not go
to the 500 block of Jefferson Street at any time, have a 6:00 p.m. curfew,
abstain from using drugs, and that he submit to searches and seizures conducted
by peace officers.
DISCUSSION
This
appeal is from juvenile court jurisdictional findings and dispositional order
declaring appellant a ward of the court and placing him on probation. Counsel raises no specific issues and asks
the Court of Appeal to conduct a review of the entire record consistent with
issues which would, if resolved favorably to appellant, result in reversal or
modification of the judgment. In
reviewing the entire record, we find no arguable issues that would present a
meritorious appeal.
In
reviewing this case for abuse of discretion, we defer to the trial court’s
determinations of credibility. It is the
duty of the trial judge, as the trier of fact, to judge the
conflicting testimony. (
882-883.) “ ‘The power to judge
credibility of witnesses, resolve conflicts in testimony, weigh evidence and
draw factual inferences, is vested in the trial court. On appeal
all presumptions favor proper exercise of that power . . . .’ â€
(People v. James (1977) 19
Cal.3d 99, 107.) Thus, we defer to the
trial court’s determinations of
credibility as they are discretionary findings.
“The discretion intended, however, is not a capricious or
arbitrary discretion, but an impartial discretion, guided and controlled in its
exercise by fixed legal principles. It
is not a mental discretion, to be exercised ex gratia, but a legal
discretion, to be exercised in conformity with the spirit of the law and in a
manner to subserve and not to impede or defeat the ends of
422, 424.) We have found no such
deviation from reasonable discretion that would be deemed an abuse of the
court’s discretion or a miscarriage of justice.
There was ample evidence supporting the allegations against
appellant. The evidence offered at the
hearing was the eyewitness testimony of Petersen and photographs of the firearm
found near appellant. This evidence was
disputed only by appellant’s testimony and the court expressly stated that the
officers’ testimony was more credible than that of appellant’s. Thus, the findings and orders were
proper.
In view of the facts set
forth above, we find no issues regarding the sentence imposed or any other
aspect of the proceedings which are deserving of further briefing under the
holding of Wende.
DISPOSITION
Our independent review of
the record reveals no arguable issues that require further briefing. The judgment is affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Richman, J.
In re Jose C.
(A136846)
