In re Michael D.
Filed 5/13/13 In re Michael D. CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
>
In re Michael D., a Person Coming Under the Juvenile Court Law. | B244621 (Los Angeles County Super. Ct. No. MJ20326) |
THE PEOPLE, Plaintiff and Respondent, v. Michael D., Defendant and Appellant. |
APPEAL from
orders of the Superior Court
of
County, Akemi Arakaki, Judge.
Affirmed.
Tonja R.
Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, Michael D., admitted having committed “vandalism [with] over
$400 [in] damage-graffiti,†a felony.
(Pen. Code, § 594, subd. (a).)
The juvenile court declared Michael D. a ward of the court (Welf. &
Inst. Code, § 602), but did not sustain the petition filed against him. Instead, the court deferred entry of judgment
(Welf. & Inst. Code, § 790) and placed Michael D. at home on probation
for between 12 and 36 months. As a
condition of probation, Michael D. was to pay $2,904.96 in restitution and a
restitution fine in the amount of $110.
At proceedings held on August 29, 2012, Michael D. made a motion
requesting the juvenile court to find that he was unable to pay the restitution
and the restitution fine (see Welf. & Inst. Code, § 742.16) and to
dismiss the matter pending against him (Welf. & Inst. Code,
§ 790). The juvenile court denied
Michael D.’s motions and determined that the order of deferred entry of
judgment was to remain in full force and effect. Michael D. appealed. We affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On October 13, 2010, John Munoz worked
as a maintenance person for the Meadow View Apartments in Palmdale. As he was driving his truck north on Fifth
Street East, which runs in front of the
apartments, Munoz noticed a “group of kids sitting on the wall [which]
separates the ‘Meadow View Apartments’ from the ‘Shadow Spring
Apartments.’ †One young man, who
was later identified as 17-year-old Michael D., was standing on the sidewalk.
As Munoz
passed the group, he looked into his rear view mirror and saw Michael D.
bend down and write something on the sidewalk.
Munoz stopped, got out of his truck and approached Michael D. As Munoz did so, one of the juveniles who had
been sitting on the wall, Michael D.’s friend, Ramond S., jumped down from the
wall, ran toward Michael D. and tapped him on the shoulder. The two young men then ran into the apartment
complex and out of Munoz’s sight.
Munoz contacted
the Los Angeles County Sheriff’s Department and reported the vandalism. Deputy Hilzendeger was one of the deputies
who responded to the call. When he
reached the apartment building, he contacted Munoz, who told the deputy what he
had seen. Other deputies arrived and
searched the area for the two young men.
At the rear of the apartment complex, Deputy Jason Trevillyan was able
to detain Michael D. and Ramond S.
Both youths had black ink on their hands.
Deputy
Hilzendeger transported Munoz to the area where Michael D. and Ramond S.
were being held. After being advised of
field show-up procedures, Munoz viewed the two young men. He positively identified Michael D. as the
person he had seen write on the sidewalk and he identified Ramond S. as the youth
“who he believed was acting as a lookout and [had] fled with [Michael D.]â€
Hilzendeger
“Mirandizedâ€
Michael D., who indicated he understood his rights and was willing to waive
them and speak to the deputy without the presence of an attorney. When Hilzendeger then asked Michael D. what
had happened in front of the apartment complex, Michael D. indicated he had
been walking down the sidewalk and stopped to tie his shoe. As he bent down, Michael D. heard Munoz yell
at him and he ran away. Michael D. denied
writing on the sidewalk.
Deputy
Leo Lane advised Ramond S. of his rights pursuant
to Miranda and the young man agreed
to speak with the deputy without the benefit of the assistance of counsel. Ramond S. told the deputy he was “just
hanging out sitting on the wall†when he saw Munoz stop and get out of his
truck. When Munoz yelled at him, Ramond
S. got down from the wall and ran.
Ramond S. denied seeing Michael D. write anything on the sidewalk.
When Deputy
Hilzendeger checked for graffiti, he saw the letters “ ‘SDK’ â€
written in four separate areas. In
addition, the light post in front of the apartment complex had “ ‘187
FDKINGS’ †written up the side. The
brick wall which separates the Meadow View Apartments from the Shadow Springs
Apartments had “multiple areas [covered] with graffiti.†On the west end of the wall, the deputy
observed the letters “ ‘FDK’ †written with both a green and purple
substance. On the east end of the wall,
the deputy saw a “No Parking†sign with “ ‘FDK ORFIN’ †written on it with a
black marker. At the rear of the Shadow
Springs Apartments, the deputy observed the words “ ‘FDK = ORFIN
SPADE’ †sprayed on the wall with black paint. On the window north of the door to the front
entrance to the Shadow Springs apartment building, the deputy saw the letters
“ ‘FDK’ †written with a pink substance.
Hilzendeger
went to the apartment where Michael D. lived and contacted his mother. There, the deputy advised Michael D.’s mother
that deputies had detained Michael D. with regard to an investigation involving
vandalism and asked her if he could search Michael D.’s room. Michael D.’s mother allowed the deputy to
search Michael D.’s room for “graffiti tools and paraphernalia.†During the search, the deputy recovered from
the top of a desk a piece of paper which had the letters “ ‘FDK’ â€
written on it in black ink. Hilzendeger
then contacted Ramond S.’s mother at the apartment where they lived. After advising her that her son was being
detained with regard to a vandalism investigation, the deputy asked Ramond S.’s
mother if he could search Ramond S.’s room.
His mother replied, “ ‘Yes[,] of course. He’s already on probation.’ †During the search, the deputy found four
pieces of paper with the words “ ‘FDK’ †and “ ‘ORFIN’ †written
on them.
Both
Michael D. and Ramond S. were transported to the Palmdale Sheriff’s Station
where they were booked into custody on charges of vandalism. At the station, a deputy asked Michael D. and
Ramond S. “if they had anything to do with the graffiti at the apartment
complex.†Michael D. admitted having
written “ ‘FDK SPADE’ †on the sidewalk with a green crayon. He, however, denied responsibility for any of
the other graffiti in the area. When the
deputy asked Michael D. if he used “ ‘Spade’ †as his moniker,
the youth replied, “ ‘I just looked at the spade on my shirt and thought it
sounded cool.’ †When questioned,
Ramond S. admitted having written “ ‘FDK’ †on the wall and sidewalk. He denied painting or drawing any of the
graffiti at the apartment complex and stated that he did not use
“ ‘Orfin’ †as a moniker.
In his
report, Deputy Hilzendeger concluded that, based upon Michael D.’s and
Ramond S.’s statements, the evidence recovered from their bedrooms and the
similarity of the writing of the graffiti at the apartment complexes, the two
young men were responsible for all of the indicated graffiti. In addition, the deputy believed that
Michael D. goes by the moniker of “ ‘Spade’ †and Ramond S. goes
by the moniker of “ ‘Orfin.’ â€
The deputy booked into evidence the papers recovered from
Michael D.’s and Ramond S.’s bedrooms, then photographed the damage
at the apartment buildings “and downloaded the image[s] to [the] Palmdale
Station shared files.†Deputy
Treyvillyan also downloaded photographs of the damage and of Michael D.’s and
Ramond S.’s hands.
name="_ftnref3" title="">[3]
Both
Michael D. and Ramond S. were “cited†for violating Penal Code section 594,
subdivision (b)(1),
title="">[4]
then released to their respective mothers.
2.
In a
petition filed pursuant to Welfare and Institutions Code section 602 on January
14, 2011, Michael D. was charged with three counts of “vandalism over $400
damage-graffiti, in violation of Penal Code [section] 594[, subdivision (a)], a
Felony.†In count 1 it was alleged
Michael D. had “unlawfully and maliciously deface[d] with graffiti and other
inscribed material real and personal property, to wit, sidewalks, [a] block
wall and light pole not his/her own, belonging to [the] City of Palmdale, the
amount of said damage being over $400.00.â€
In counts 2 and 3, it was alleged Michael D. had “unlawfully and
maliciously deface[d] with graffiti and other inscribed material real and
personal property, to wit, [a] wall not his/her own, belonging to [the] City of
Palmdale, the amount of said damage being over $400.00.†Also on January 14, 2011, a notice of
financial responsibility pursuant to California Rules of Court, Juvenile, rule
1309, was issued. The notice indicated
that a number of sections of the Welfare and Institutions Code provide that the
“father, mother, spouse, or other person liable for the support of a minor, the
estates of such persons, or the estate of such minor shall be liable for the
costs to the county for certain services†including the “costs of payment of
[a] fine.†The notice further states
that “[p]arties as described above may be liable for payment of any fine levied
for the violation of vandalism or graffiti if the minor is unable to pay the
fine.â€
At
proceedings held on May 10, 2011, Michael D., after having been advised of and
waiving his constitutional rights, admitted the charge he committed “vandalism
[with] over $400 [in] damage-graffiti, in violation of Penal Code [section]
594[, subdivision (a)], a Felony†as alleged in count 1 of the petition. The juvenile court found that Michael D.
“freely and voluntarily†admitted the offense and that there was a factual
basis for the admission. After then
dismissing counts 2 and 3 pursuant to a settlement agreement, the juvenile
court declared Michael D. a ward of the court (Welf. & Inst. Code,
§ 602) and found the allegations as to count 1 to be true, but did not
sustain the petition. Instead, the
juvenile court deferred entry of judgment (see Welf. & Inst. Code,
§ 790) and placed Michael D. at home on probation for a period of 12 to 36
months. Michael D.’s counsel joined in
the admission pursuant to People v. West
(1970) 3 Cal.3d 595 and both parties stipulated that Michael D. was
to pay restitution in the amount of $2,848.
In addition, Michael D. was to “[m]ake restitution to the Restitution
Fund in the amount of $100.00.â€
On June 27,
2012, counsel for Michael D. gave notice that Michel D. was going to make a
motion pursuant to Welfare and Institutions Code section 742.16 regarding his
ability to pay the restitution ordered.
August 29, 2012. At those
proceedings, Michael D., who was 19 years old at that time, asserted that
although he had applied for numerous jobs, he had been unable to obtain
employment. With regard to Michael D.’s
parents, Michael D.’s counsel indicated that his father works at a company
which puts up fencing, but that “work [had] been really slim lately.†As to Michael D.’s mother, she “only occasionally
gets babysitting employment[] [s]o her ability to pay is also impaired.†Under these circumstances, Michael D.
had been unable to pay the $2,904.96 in restitution and the $110 restitution
fine. Counsel for Michael D.
requested that the juvenile court dismiss the matter pursuant to Welfare and
Institutions Code section 790 and the requirement that he pay restitution “be
eliminated as allowed by statute based on his and his parents’ inability to
pay.â€
After
hearing argument by the prosecutor who, among other assertions, indicated that
Michael D. was young and appeared to be “of sound mind and body†and would,
under those circumstances, eventually find employment, the juvenile court
denied Michael D.’s motions. The
juvenile court indicated that it had jurisdiction over Michael D. for two
more years, until he was 21 years old, and that his situation could change from
“day to day.†The court stated: “The court is going to deny the motion. The court is not going to make a finding that
Michael [D.] is unable to make the restitution payment in the amount of time
that the court has jurisdiction over the matter. He is on deferred entry of judgment. He has only been on deferred entry of
judgment for about sixteen months.
[¶] . . . [T]he
court does have up to three years that the court can keep him on deferred entry
of judgment. [It is] not going to make a
finding that he isn’t capable of making those payments in that the court in its
discretion can take into consideration his future prospects [with regard to]
his ability to pay.†The juvenile court
continued, “So, therefore, the court is going to deny the motion and the
request at this time. [It is] going to
again follow the request of [the] Probation [Department] which is that the
matter be left on calendar [and that Michael D. go back to court] in a few
months.†The court decided to keep “the
deferred entry of judgment in full force and effect†for another three months,
until November 20, 2012. The juvenile
court indicated that, at that time, depending upon Michael D.’s circumstances,
the court might re-consider Michael D.’s request and motion. However, at this point, the juvenile court
was going to deny them.
On October
15, 2012, Michael D. filed a timely notice of appeal from the juvenile court’s
August 29, 2012 orders. As grounds for
appeal, Michael D.’s counsel indicated that the juvenile court had
“[i]nadequate[ly] [considered] Michael [D.’s] lack of ability to pay [the
restitution and restitution fine ordered] pursuant to Welfare and Institutions
Code section 742.16.â€
CONTENTIONS
After
examination of the record, appointed appellate counsel filed an
requested this court to conduct an independent review of the record. By notice filed February 28, 2013, the clerk
of this court advised Michael D. to submit within 30 days any contentions,
grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have
examined the entire record and are satisfied counsel has complied fully with
counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
The
juvenile court’s orders are affirmed.
KITCHING,
J.
We concur:
CROSKEY,
Acting P. J.
ALDRICH, J.
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facts have been taken from the probation report.
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