In re T.B.
Filed 5/20/13 In re T.B. 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 T.B., a Person Coming
Under the Juvenile Court Law.
B244360
(Los Angeles
County
Super. Ct.
No. MJ20495)
THE PEOPLE,
Plaintiff and Respondent,
v.
T.B.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Akemi Arakaki, Judge.
Affirmed.
Jennifer
Gerard, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, T.B., appeals from the order of wardship (Welf. & Inst.
Code, § 602) entered as a result of his admission he committed the felony of
present (Pen. Code, §§ 664, 459). The
juvenile court placed T.B. at home on probation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At
approximately 5:00 p.m. on March 27, 2011, Cheryl Freeman was at
her home on Sorrell Avenue
in Palmdale. She heard the doorbell ring
and, when she looked through the “peep hole,†saw T.B. and a companion, Gary
K., standing on her front porch. After
seeing the two juveniles, Freeman turned off her television, closed all the
blinds and sat down on the couch in her living room. Freeman then saw Gary K. “violently shaking
the [locked] kitchen window . . . attempting to gain entry into her
[home].†At the same time, Freeman saw
T.B. “crouch down and [look] into her family room . . . sliding glass
door.†Freeman “stared†at T.B. through
the blinds on the door. When she made
eye contact with him, both he and Gary K. ran from the house and jumped over
the fence on the west side of Freeman’s property. Freeman called the Palmdale Sheriff’s
Station, then got into her car and followed T.B. and Gary K. to the Kaiser
Medical Center
parking lot.
Palmdale
Deputy Sheriff Hudson responded to Freeman’s call. Before the deputy arrived at the Kaiser
parking lot, an “air unit†located T.B. and Gary K. Sheriff’s Deputies Fletcher and Reddy then
took the two juveniles into custody and Freeman identified them as the
individuals who had attempted to enter her home.
Deputy
Hudson went to Freeman’s residence where he determined that T.B. and Gary K.
could only have entered her backyard by jumping over a locked side gate. The deputy did not, however, see any signs of
attempted forced entry.
T.B. and
Gary K. were transported to the station, “booked into custody [and]
cited.†At the station, Deputy Hudson
advised T.B. of his rights pursuant to Miranda.
rights and was willing to waive them, he told the deputy that he thought it
would be fun to play “ ‘ding dong ditch’ †on Freeman. He then stated that Gary K. had entered
Freeman’s backyard to look for a tennis ball.
Gary K. also waived his Miranda
rights, but then refused to make a statement.
Both T.B. and Gary K. were later released to their respective parents.
2. Procedural
history.
On May 25,
2011, a petition filed pursuant to Welfare and Institutions Code section 602
alleged that, on or about March 27, 2011, “the crime of ATTEMPTED FIRST DEGREE
BURGLARY, PERSON PRESENT, in violation of PENAL CODE [sections] 664/459, a
Felony, was committed by [T.B.], who did attempt[] to enter an inhabited
dwelling house and trailer coach and inhabited portion of a building occupied
by CHERYL FREEMAN, with the intent to commit larceny and any felony.†It was further alleged pursuant to Penal Code
section 462, subdivision (a) that, “[e]xcept in unusual cases where the
interests of justice would best be served if the person is granted probation,
probation shall not be granted to any person who is convicted of a burglary of
an inhabited dwelling house . . . .†Finally,
it was alleged that the offense of attempted first degree burglary, person
present, “is a violent felony within the meaning of Penal Code [section]
667.5[, subdivision] (c) in that another person, other than an accomplice, was
present in the residence during the commission of the . . . offense.â€
name="_ftnref3" title="">[3]
On July 11, 2011, the juvenile court
continued the proceedings and referred the matter to another department for a
“competency setting.†T.B.’s counsel had
“declare[d] a doubt†as to the juvenile’s competency “and [the] proceedings
[were] suspended.†At proceedings held
on September 14, 2011, the
juvenile court again suspended the matter and referred the case to another
department for a “competency setting.â€
In the meantime, T.B. remained released to his mother.
On May 10, 2012, the juvenile court
continued the matter to 1:30 p.m. on
May 29, 2012 for a
competency hearing to be held in Department 285. After listening to the testimony of a Dr.
Catherine Scarf, reading all of the reports and hearing argument from the
parties, the juvenile court denied T.B.’s counsel’s request to appoint another
doctor and concluded T.B. was competent.
The juvenile court reinstated the proceedings and, in the interim,
allowed T.B. to remain released to his mother.
At proceedings held on August 17, 2012, the deputy public
defender appointed to represent T.B. indicated that an agreement had been
reached with regard to a disposition of the matter. T.B. had agreed to admit one count of
attempted first degree burglary, person present. In exchange for his admission, T.B. would be
placed at home on probation.
The
prosecutor first advised T.B. that he had been charged in a petition dated
May 25, 2011 with one count of
Penal Code sections 664 and 459, “a felony commonly known as attempted
first degree burglary person present.â€
After T.B. indicated that he understood the charge and had consulted
with his attorney regarding any defenses he might have, the prosecutor advised
him of his constitutional rights. The
prosecutor indicated that he had the right to “an adjudication, which is a
court trial.†The prosecutor
continued: “It means there’s a trial in
front of a judge instead of a jury. At
that trial the prosecutor would have . . . to prove the charges beyond a
reasonable doubt. [The juvenile] would
have the right to confront and cross-examine witnesses, the right to use the
subpoena power of the court to subpoena witnesses on [his] own behalf, the
right to present an affirmative defense, and the right to remain silent.†T.B. stated that his counsel had explained his
rights to him, that he understood his rights and that he was willing to “waive
and give up those rights[.]â€
The
prosecutor informed T.B. that there would also be “consequences to [his]
admission.†In particular, if T.B. were
on probation or parole in another matter, his admission would be considered a
violation of that probation or parole and could lead to time in custody. In addition, the juvenile court was going to
order that certain fines be paid and T.B. could be required to pay restitution
to the victims in both his present and previous cases. Finally, the prosecutor indicated that T.B.
would be required to provide a DNA sample pursuant to Penal Code section 296.
The prosecutor explained that the
juvenile court had several options in this matter, including “home on
probation, suitable placement, and camp†and that the “maximum time [he could]
spend in custody on this charge [was] three years . . . .†However, due to his admission, the parties
had agreed that T.B. would receive home on probation.
After T.B.
indicated that he understood the agreement and was admitting the charge “freely
and voluntarily,†he admitted having committed “a violation of Penal Code
section[s] 664-459, a felony commonly known as attempted first degree burglary,
person present[.]â€
title="">[4] The parties stipulated to a factual basis for
the plea and the juvenile court found that T.B. had “knowingly, intelligently,
understandingly and expressly waived all of his constitutional rights†and
understood the “nature of the conduct and the possible consequences of his
admission.†The juvenile court then
declared T.B. “a ward of the court pursuant to Welfare and Institutions Code
section 602,†indicated that his “care, custody, control and conduct [would
thereby be] placed under the supervision of the Probation Department†and that,
at this time, he would be “permitted to remain in the home of his mother under
[certain] terms and conditions.†The
juvenile court read to T.B. and his mother the terms and conditions of his
probation, then requested a probation report and set a court date for three
months later to “see how [T.B.] [was] doing on probation.†After dismissing the misdemeanor petition,
the juvenile court ended the proceedings.
On October
1, 2012, T.B. filed a timely notice of appeal from the juvenile court’s order
of wardship. T.B. indicated the grounds
for his appeal consisted of an “[i]mproper finding that [he] was competent
despite evidence produced at competency hearing[s] [held] on February 29, 2012,
and May 29, 2012†and “[a]ny other issues the appellate counsel deem[ed]
relevant and necessary to appeal.â€
CONTENTIONS
Initially,
we note that “a minor
who admits a juvenile court petition alleging a criminal offense need not
secure a certificate of probable cause in order to appeal.†(People
v. Turner (1985) 171 Cal.App.3d 116, 124, fn. 4; see In re Joseph B. (1983) 34 Cal.3d 952, 959-960;
16, 21.) Here, in his notice of appeal,
T.B. asserted the juvenile court erred when it improperly found him
competent. However, a review of the
record reveals the juvenile court considered the testimony of a Dr. Catherine
Scarf, read all of the reports and considered each party’s arguments. Under these circumstances, we may reasonably
conclude substantial evidence supports the juvenile court’s finding T.B. was
competent. (See In re Austin P. (2004) 118 Cal.App.4th 1124, 1134; see also
535.) There was no error.
Counsel was
appointed to represent T.B. on appeal and, after examination of the record,
filed an opening brief which raised no issues and requested this court to
conduct an independent review of the record.
By notice filed January 29, 2013, the clerk of this court advised T.B.
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.)
DISPOSITION
The
order of wardship is affirmed.
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH,
J.
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facts have been taken from the probation report.
