In re Noemi A.

Filed 8/6/09 In re Noemi A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Gibson W. Lee, Judge.

Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Noemi A. appeals from the order declaring her a ward of the court (Welf. & Inst. Code, 602) by reason of her having attempted to burn property (Pen. Code,  455). Custody of Noemi A. was taken from her parents and she was ordered suitably placed. We affirm the juvenile courts order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Long Beach Police Officer Thomas Erdelji was on patrol when, at approximately 3:30 p.m. on December 28, 2008, he received a call regarding a family dispute at an apartment at 1444 Pine Avenue in the City of Long Beach. When Erdelji and two other officers, Solorio and Brammer, arrived at the apartment, they were unable to go inside immediately. The door to the apartment was padlocked closed from the inside. Erdelji and the other officers were able to enter the apartment only after 15-year-old Noemi A.s stepfather arrived home and handed the key to the padlock through a window to her mother, Ana R. When the officers then went inside the apartment, the stepfather remained outside, sitting on the front steps. Inside, Erdelji saw Ana R., who was carrying an infant, and, in the back bedroom, Noemi A.

Erdelji and Brammer went to the back bedroom to speak with Noemi A. while Solorio remained in the front room and spoke with Noemi A.s mother. Noemi A. was frustrated and upset because her mother would not let her go out of the house. According to Noemi A., her mother believed she was hanging around with the wrong crowd. Noemi A. admitted she has been missing school, staying out late at night and smoking marijuana. Erdelji attempted to have a conversation with Noemi A., but she kept interrupting him. [S]he behaved as if she didnt believe [the officer] knew what [he] was talking about, or that [his] suggestions would help. She remained frustrated and upset. After a lengthy conversation with Noemi A., Erdelji and Brammer went out to the living room. As the officers began to leave, Noemi A. slammed the door to the bedroom extremely loudly. When Noemi A. slammed the door a second time, Officers Erdelji and Brammer went back to the bedroom to ask Noemi A. to calm down.

While Erdelji and Brammer had been speaking with Noemi A., Officer Solorio had interviewed her mother, Ana R. After completing the interview, Solorio went back into the bedroom where Officers Brammer and Erdelji were attempting to talk with Noemi A. However, Noemi A. consistently told the officers that her mother was wrong and that the officers were wrong. Since they did not appear to be getting anywhere with her, Solorio and the other officers ended the conversation, left the bedroom and went into the living room. As Solorio was explaining various options with Noemi A.s mother, he heard Noemi A. slam her bedroom door shut. It made what the officer characterized as a really loud bang, which rattled the house. Solorio then heard loud bangs in the bedroom as if something was being thrown at the walls . . . . Solorio and the other officers returned to the bedroom, where Noemi A. was angrily crying out words.

Suddenly, Noemi A. got up and began gathering clothes from the top of her dresser. After piling them on the bed, she went back to the dresser, grabbed a box of matches, . . . walked back towards her bed [and] slid the box open. Still appearing very angry, Noemi A. lit one of the matches, lowered her hand towards the pile of clothes, and . . . said, Im going to [burn] the shit up. Although she had lowered her hand toward the clothes, Officer Brammer was able to keep her from lighting them on fire. He managed to fumble the [lit] match away from her right hand while it was still several inches from the clothing. Brammer then handcuffed Noemi A. and placed her under arrest.

2. Procedural history.

On December 30, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that on or about December 28, 2008, Noemi A. had attempted to burn property in violation of Penal Code section 455, a felony.[1]

At the detention hearing held on December 31, 2008, Noemi A. denied having attempted to burn property. The juvenile court ordered that Noemi A. remain detained in juvenile hall and that she be referred to the Probation Department for a pre-plea report.

The detention report, dated December 29, 2008, indicates Noemi A. is incorrigible. She is very disrespectful in the home. She talks back. She has not attended school in over one (1) month, and received F grades in all her classes. Noemi A. had indicated that she uses marijuana but does not drink alcoholic beverages. She denies being involved in a gang but has one prior non-detained petition for grand theft [of] money [or property] exceed[ing] $400 in value. Noemi A. was found in possession of a cell phone which had been taken from a teachers purse in a classroom at Lakewood High School. Although Noemi A.s mother requested counseling to help control [the] minors aggressive behavior, she was willing to accept custody of Noemi A.

At a hearing held on January 21, 2009, counsel for Noemi A. made a motion to dismiss the petition pursuant to Welfare and Institutions Code section 701.1. Counsel argued that Noemi A. had attempted to burn her own personal property and that such conduct was not unlawful. Counsel asserted, It doesnt fall under a criminal act. After a lengthy discussion and review of the elements of the crime of attempted arson, the juvenile court disagreed and sustained the petition, finding that Noemi A. had violated Penal Code section 455.

A dispositional hearing was set for January 23, 2009. In the interim, Noemi A. remained in custody.

At the January 23, 2009 proceedings, the trial court indicated its concerns regarding Noemi A. stemmed, not from the attempted arson, but from the unhealthy kind of relationships and situations at the home. The trial court noted: It also appears from the [probation] report that Noemi [A.] has run away from home on several occasions, and shes been gone out of the home for fairly substantial periods of time . . . . She apparently has not been attending school . . . [and] the mom is concerned that she is hanging out with persons that are not a real good, positive peer group, and mom is also concerned that there may be the spectre of drug abuse, marijuana especially, or in particular, that there are curfew issues, [and] there are interpersonal relationship issues. The juvenile court indicated that it believed Noemi A.s family situation was  dysfunctional and that she would fare better in a different environment.

After listening to argument by the parties and statements by both Noemi A. and her mother, the trial court indicated it believe[d] that Noemi [was] earnest in her desire to change and her parents[] desire to support her. However, after reading and considering the probation report, as well as the testimony and arguments given in court, the juvenile court determined the best option was to declare Noemi A. a ward of the court with the custody and control taken from the guardians [for a period not to exceed three years], and [that] care, conduct and control [be given] through the Probation Department for suitable placement under the terms and conditions that Noemi [A.] obey all laws, orders of the court, . . . all instruction and direction of [her] parents, as well as staff, [and] . . . not leav[e] placement without permission, as well as [obey] curfew. [She was directed to] [a]ttend a school program, maintain satisfactory grades, attendance and citizenship and not be absent without a valid medical excuse[.] [Noemi A. was also to] participate in counseling . . . with respect to parenting, . . . with respect to anger management and [with respect to] any other counseling . . . that is deemed [necessary] to address the issues that exist, [and] not to have any flammable material, given the charge of the sustained petition. The trial court ordered that Noemi A. be required to submit to drug testing and the search of her person and belongings at any time, then gave her predisposition credit for 27 days served.

Noemi A. timely filed a notice of appeal from the juvenile courts order on January 23, 2009.

This court appointed counsel to represent Noemi A. on appeal on April 3, 2009.

CONTENTIONS

After examination of the record, counsel for Noemi A. filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed June 3, 2009, the clerk of this court advised Noemi A. to submit within 30 days any contentions, grounds of appeal or arguments she 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 counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436,443.)

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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[1] Penal Code section 455 states: Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any structure, forest land or property, or who commits any act preliminary thereto, or in furtherance thereof, is punishable by imprisonment in the state prison for 16 months, two or three years. [] The placing or distributing of any flammable, explosive or combustible material or substance, or any device in or about any structure, forest land or property in an arrangement or preparation with [the] intent to eventually willfully and maliciously set fire to or burn same, or to procure the setting fire to or burning of the same shall, for the purposes of this act constitute an attempt to burn such structure, forest land or property.