In re Raymond W.

Filed 11/28/07 In re Raymond W. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .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

Raymond W. appeals from a contested disposition of a probation violation resulting in a commitment to the Orrin Allen Youth Rehabilitation Facility (OAYRF). The appeal is from a final judgment entered under Welfare and Institutions Code section 602,^[1]and is authorized by section 800. Appellants counsel has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436.

FACTS AND PROCEEDINGS BELOW

The original petition against appellant, filed on April 14, 2003, alleged commission of misdemeanor vandalism.^[2](Pen. Code,  594, subd. (b)(2)(A).) Appellant admitted the allegation knowing it exposed him to maximum confinement in the Youth Authority for one year. At the disposition hearing, the court adjudged appellant an indefinite ward of the court and adopted the probation department recommendation of supervised probation in his fathers home with gang conditions. ( 607, 727, subd. (a)(1).)

Between October 2003 and March 2005, numerous petitions were filed alleging that appellant violated the terms of home-supervised probation on seven separate occasions. Three of those petitions, which were filed on December 14 and 20, 2004 and February 10, 2005, resulted in appellant being briefly detained in juvenile hall. On January 28, 2005, the court ordered drug court review. After appellant failed to appear at the hearing scheduled for March 18, 2005, the court issued a bench warrant.

Nearly two years later, on March 9, 2007, appellant was arraigned and detained and the bench warrant was recalled. At a hearing six days later, appellant waived his Boykin-Tahl rights^[3]and admitted the allegations of the outstanding petition alleging a probation violation, knowing it exposed him to detention in a locked facility for up to one year. The court thereafter sustained the petition, finding the offense it alleged to be a misdemeanor.

At the disposition hearing conducted on April 13, 2007, the court placed appellant in the custody of the probation department and committed him to OAYRF for 180 days. At that hearing, which was also attended by appellants parents and step-parents, after recounting his numerous prior probation violations while on home supervision, and the fact that he had not tested positive for drug use other than marijuana, the court told appellant: you have been taking steps in the right direction, but I think you need this [180-day detention] to get you really back on track. But I will make you this promise: When you get out and after youve done time, after parole and you are at home, if youre going to school or you have a job and youre clean and no new law violations for at least six months, then I can get you off probation. But you need to be doing well for me to get you off probation. On August 10, 2007, after appellant was released from detention, the court vacated probation and terminated wardship.

The notice of appeal filed on April 23, 2007 states: It is the opinion of trial counsel that the following arguably meritorious grounds do exist and are in the minors interest to pursue upon an appeal: [] That the test results indicating a positive result for THC [marijuana] were not confirmed by laboratory testing and should not suffice. The notice of appeal also indicated that this advice was given to appellant by trial counsel, but counsel also advised him that any advice concerning trial counsels own competency must be obtained from either the State Public Defender or other counsel.

DISCUSSION

The record before us does not indicate whether the test results showing appellant tested positive for marijuanawhich the trial court referred to at the April 13, 2007 hearinghad been adequately confirmed by laboratory testing. However, even indulging the questionable assertion that an initial test result might not have been properly tested by a qualified expert in a scientifically acceptable manner, competent counsel would have ample reason not to make such a strategically unwise objection. As the record shows, the detention order was based primarily on the number of appellants repeated probation violations over an extended period of time; compared to that factor his apparent marijuana use was inconsequential. It is almost impossible to think the court would have disposed of the case differently than it did if the evidence of marijuana use was excluded. Further, there is nothing in the record indicating that an objection to use of the test results might have been justified on the merits and would succeed, and it might well have led the court to see appellant as in unwarranted denial and order a disposition less favorable than the one it ordered.

Appellant was represented by able counsel throughout the proceedings.

His waiver of rights came after he was adequately informed by the court of the nature and importance of those rights and the likely consequences of any waiver.

There was no sentencing error.

There are no legal issues that require further briefing.

The judgment and detention imposed are affirmed.

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Kline, P.J.

We concur:

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Haerle, J.

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Lambden, J.

^[1]All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]The police report stated that, while on his way to school with a friend, appellant and his friend wrote on the wall of a building with a sharpie pen. Employees of a store across the street who saw this, told the boys to stop, and they did so. One of the witnesses then took the pen from appellant, and told the boys to wait for the police. When the police arrived, appellant was cooperative and gave a full statement.

^[3]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.