In re T.H.

Filed 1/23/09 In re T.H. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

T.H. appeals from orders sustaining a petition pursuant to Welfare and Institutions Code[1] section 602 and declaring him a ward of the court. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) T.H. has been apprised of his right to file a supplemental brief, but he has not done so.

The Alameda County District Attorney filed a petition pursuant to section 602, alleging that T.H. had committed misdemeanor vandalism, causing injury of $400 or more. (Pen. Code, 594, subd. (b)(1).)

A contested jurisdictional hearing took place. Jazmin Rangel testified that she and her family were neighbors of T.H. on March 10, 2008. She believed he had recently moved to the neighborhood. Since that time, she had seen groups of young people playing music and drinking outside his apartment.

On the evening of March 10, Rangels fathers truck was parked outside her house, separated from the house by a gate. Rangel heard screaming outside the house. Her father asked her to call the police because people were trying to get inside the house. Rangel went outside and saw 10 or 15 people trying to open the gate. She locked the gate and went back to call the police. As she called the police, she saw the youths jumping on the bed of the truck, screaming, and running across the street.[2] Some of the youths dispersed. Before the police arrived, Rangel saw T.H. and two other people kicking and jumping on her fathers truck, then kicking the trucks window. They broke the window and dented the hood. Rangel was about 30 feet from the group, and the lighting was good. She saw part of T.H.s face. T.H. went into an apartment next door. Shortly afterward, Rangel identified T.H. in a line-up. She identified him with certainty at the hearing.

T.H.s sister testified that T.H. and his family had lived in their apartment for about four years. She saw the incident, and testified that T.H. was not part of the group involved in the disruption and vandalism, that he was not outside at the time, and that when she returned to the apartment about a minute after she saw two people kicking the trucks window, T.H. was inside. T.H. testified that he was inside his apartment during the entire incident. He stayed inside because his mother had told him to wash the dishes.

The juvenile court found beyond a reasonable doubt that T.H. had violated Penal Code section 594, subdivision (b)(1). It declared him a ward of the court, placed him on probation, ordered him to live in his mothers home, and set the maximum term of confinement at one year.

Section 726, subdivision (c) provides in pertinent part: If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. Here, T.H. was not removed from his mothers physical custody. In such a case, the court held in In re Ali A. (2006) 139 Cal.App.4th 569, 573-574 and footnote 2, the juvenile court is not required by section 726, subdivision (c) to fix a maximum term of confinement, and any such provision has no legal effect. The court in Ali A. went on to conclude that although a maximum term of confinement had been erroneously included in the dispositional order where the minor was not removed from his parents physical custody, there was no need to reverse or remand because the juvenile court would have to comply with section 726, subdivision (c) at a later date if the minor violated the terms of his probation, and the minor therefore suffered no prejudice. (Ali A., at pp. 573-574 & fn. 2.) We likewise see no prejudice here and no need for remand.

T.H. was represented by counsel. The evidence supports the juvenile courts orders. There are no meritorious issues to be argued.

DISPOSITION

The orders appealed from are affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] T.H. was not part of this group.