In re S.B.

Filed 12/22/09 In re S.B. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Irma J. Brown, Judge. Affirmed.

Torres & Torres and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

__________________

S.B. (appellant) appeals from the order declaring him a ward of the court (Welf. & Inst. Code,  602)[1]after he admitted to committing a lewd act upon a minor under the age of 14 years (Pen. Code, 288, subd. (b)(1)), an act of oral copulation of a minor under the age of 18 years (Pen. Code, 288a, subd. (b)(1)), and criminal threats (Pen. Code, 422). Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm.

A.                 The Petition

On December 10, 2007, a section 602 petition was filed alleging the then 14-year-old appellant committed a lewd act upon a minor under the age of 14 years (Pen. Code,  288, subd. (b)(1)), participated in an act of oral copulation of a minor under the age of 18 years (Pen. Code,  288a, subd. (b)(1)), and engaged in criminal threats (Pen. Code, 422). Appellant denied the charges.

B.                 Motion to Suppress

On April 8, 2008, appellant filed a motion to suppress any statements he made on the grounds that he was in custody but not advised of his Miranda rights when police interrogated him in the office of his high school vice principal. Although the pleading caption identified the motion as having been brought pursuant to section 700.1 [motion to suppress evidence resulting from search and seizure], motions to suppress confessions are governed by Evidence Code section 402, not section 700.1. (In re Juma P. (1988) 204 Cal.App.3d 1228, 1235-1236.)

The People opposed the motion to suppress, arguing appellant was not in custody and his statements were voluntary. The People explained that, at the beginning of a tape recorded interview, a detective told appellant that appellant was not under arrest and that the detective simply wanted appellants side of the story. The detective said, Is that going to be okay? Cool? Appellant responded, Yeah. Appellant then answered the detectives questions. The People argued that, under Yarborough v. Alvarado (2004) 541 U.S. 652, 666, appellant was not in custody for purposes of Miranda.

On July 23, 2008, the juvenile court granted appellants motion to suppress. After doing so, the judicial officer hearing the motion recused herself for the purposes of the jurisdictional hearing, and the matter was transferred to a different judicial officer.

On September 3, 2008, the People filed a Notice of Intent to Introduce Evidence of Minors Statement and Request for Renewed Consideration of 402 Issues. Appellant opposed the request on the grounds that, under Code of Civil Procedure section 170.3, subdivision (b)(4)[absent good cause, rulings made by disqualified judge shall not be set aside by replacement judge], the second juvenile court did not have authority to set aside a ruling made by the first juvenile court before the judicial officer recused herself.

On September 15, 2008, the juvenile court granted the Peoples motion for renewed consideration of the motion to suppress. (See In re Juma P., supra, 204 Cal.App.3d at p. 1236 [ruling on the admissibility of a confession made at a pretrial motion to suppress is not binding on the court if the People again offer the evidence at trial].) Upon renewed consideration, the juvenile court denied appellants motion to suppress.

C.                 Adjudication and Disposition

On January 26, 2009, appellant admitted the allegations of the petition. The juvenile court sustained the petition and placed appellant home on probation for six months with certain conditions (the January 26 order).

Appellants trial attorney filed a timely notice of appeal.

Meanwhile, the matter was transferred to San Bernardino, the county in which appellant lived with his mother. San Bernardino transferred the matter back to Los Angeles for appellant to make a motion to withdraw his plea. At a hearing on April 14, 2009, appellants appointed counsel stated that she was not filing a motion to withdraw the plea because there was no merit to such a motion. Counsel explained that appellant still wanted to make the motion and, if the court wished to entertain it, counsel requested that new counsel be appointed. The juvenile court stated that there was no motion before it and, if there was, it would deny it based on the record. That day, the in pro. per. minor filed a second notice of appeal referencing the January 26 order.

D.                The Appeal

On April 7, 2009, we appointed counsel to represent appellant on this appeal. After examination of the record, appointed counsel filed an opening brief which contained an acknowledgment that he had been unable to find any arguable issues and requesting that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436.

We advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that appointed counsel has fully complied with his responsibilities and that no arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)

The order declaring appellant a ward of the court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

We concur:

FLIER, J.

BIGELOW, J.

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