In re Justin W.
Filed 9/10/12 In re Justin W. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
In re JUSTIN W., a Person Coming Under the Juvenile Court
Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
JUSTIN W.,
Defendant and
Appellant.
G046050
(Super. Ct.
No. DL038647)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Nick A. Dourbetas, Judge. Affirmed.
Raymond M. DiGuiseppe,
under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Respondent.
*
* *
The
juvenile court sustained allegations that defendant Justin W. (minor) committed
vandalism causing $400 or more in damages.
(Pen. Code, § 594, subds. (a), (b)(1).)
The court declared the offense to be a felony, set the maximum term of
confinement at three years, and placed minor on continued supervised probation.
Minor timely filed a
counsel to represent him. Counsel did
not argue against minor, but advised the court he was unable to find an issue
to argue on minor’s behalf. Minor was
given 30 days to file written argument in his own behalf. That period has passed, and we have not
received any communication from him. We
have examined the entire record but have not found an arguable issue. (People
v. Wende (1979) 25 Cal.3d 436.)
Accordingly, we affirm the judgment.
FACTS
the judgment. (People v. Houston
(2012) 54 Cal.4th 1186, 1215.) The
principal of an intermediate school in Garden Grove
pulled his truck into the parking lot of a school facility to attend a
meeting. He noticed a group of five
students, including minor, congregated in the parking lot, talking to someone
in a Ford F-150 pickup truck. As the
principal started to walk to his meeting, one of the students yelled to him by
name. The meeting lasted 45 minutes to
an hour. When the principal returned
from the meeting, he discovered someone had “taken a key to [his truck] and
scratched it multiple times from front to back.” The cost of repair for the vehicle damage,
together with a car rental, totaled $2,912.
The principal paid $346 of this amount and the insurance company paid
the rest.
The next morning, the
principal called one of the students he had recognized in the parking lot,
C.V., into his office in an effort to determine who had caused the damage to
his truck. After that conversation, he
called the police.
The responding police
officer interviewed C.V. in the principal’s office. C.V. had already provided a written statement
to the principal, so the officer went over that statement with him. C.V. told the officer that he saw the
principal pull into the parking lot, and, after the principal left the lot on
foot, minor rode his bicycle around the truck several times with keys in his
right hand which he used “to scratch the side of the truck every time he rode
around it.”
The officer then went to
a high school to speak with several other students that were identified by C.V.
and the principal as having been present in the parking lot. J.M told the officer he had observed minor
riding his bicycle around the truck, but had not actually witnessed the
keying. But J.M. related that minor
later told him he had “keyed [the principal’s] truck.”
At trial, C.V. and J.M.
recanted the statements they had made to the investigating officer. C.V. admitted the signature on the written
statement was his, but did not “remember writing . . . any of that.” J.M. did not remember the minor telling him
he had keyed the principal’s truck, but did acknowledge that his written
statement to that effect was in his own handwriting. The minor likewise denied even seeing the
principal on the date of the incident and denied keying the truck.
DISCUSSION
To assist the court in
its independent review of the record, minor’s counsel has suggested we consider
two potentially arguable issues. (See
738.) First, counsel suggests we
consider whether the court properly denied deferred entry of judgment (DEJ)
under Welfare and Institutions Code section 790 et seq., without first ordering
an updated suitability report from the probation department. Second, counsel suggests we consider whether
the court erred in declaring the offense a felony instead of a
misdemeanor. As we explain below,
neither issue has arguable merit.
Updated Suitability Report
Pursuant to Welfare and
Institutions Code section 790, subdivision (b), the prosecuting attorney filed
a declaration in writing with the court stating that minor was eligible for
DEJ. The court set July 11, 2011, for a DEJ suitability hearing, and
directed the probation department to prepare a report for that hearing. The report was timely prepared and
filed. The report recommended denying
minor the benefits of DEJ. At the July
11 hearing, minor requested the court “reserve determination of DEJ
suitability”; the court granted the request.
The case proceeded through a full contested jurisdictional trial,
resulting in the court finding the allegations of the petition true beyond a
reasonable doubt. Proceeding immediately
to disposition with minor’s consent, the court indicated it had considered the
probation report of July 11. It then
continued minor as a ward of the court with additional probation
conditions. The disposition order was
made on November 1, some three and one-half months after the filing of the
probation report.
Simply put, there is no
evidence that an updated probation report would likely have changed either the
probation department’s recommendation or the court’s disposition. Moreover, minor steadfastly denied the
allegations of the petition, choosing to defend the allegations in a full
trial. Under these circumstances minor
was not entitled to be considered for DEJ.
The court need not consider DEJ for a minor “who does not admit the
charges in the petition or waive a jurisdictional
hearing, and who does not show the least interest in probation, but who
insists on a jurisdictional hearing in order to contest the charges.” (In re
Kenneth J. (2008) 158 Cal.App.4th 973, 979-980.) The record does not disclose any request by
minor to be considered for DEJ. Quite to
the contrary, minor “insist[ed] on a jurisdictional hearing in order to contest
the charges.” (Ibid.) The potential issue
is not arguable.
Declaring the Offense a Felony
Section 702 of the
Welfare and Institutions Code requires that “[i]f the minor is found to have
committed an offense which would in the case of an adult be punishable
alternatively as a felony or a misdemeanor, the court shall declare the offense
to be a misdemeanor or felony.” In the
case of an adult, minor’s offense, vandalism causing damage of $400 or more, is
punishable either as a state prison term of 16 months, two years, or three
years, or by a jail term not exceeding one year. (Pen. Code, §§ 594, subd. (b)(1), 1170, subd.
(h)(1).) Here, the court declared
minor’s offense a felony with a maximum term of confinement of three
years. Counsel suggests we consider
whether the court erred in making this determination.
In the case of an adult,
Penal Code section 17, subdivision (b), is the statute authorizing alternate
punishment as a felony or misdemeanor, and that choice, by the terms of the
statute, is made “in the discretion of the court.” Accordingly, we review the court’s determination
to declare minor’s offense a felony under the abuse of discretion
standard. Under Penal Code section 17,
subdivision (b), the discretionary authority of the court is guided by “‘the
nature and circumstances of the offense, the defendant’s appreciation of and
attitude toward the offense, or his traits of character as evidenced by his
behavior and demeanor at the trial’” and “the general objectives of sentencing
such as those set forth in California Rules of Court.” (People
v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 978.) Here, the court
did not abuse its discretion. Minor had
already admitted separately charged petitions alleging public intoxication
(Pen. Code, § 647, subd. (f)), unlawful taking of a vehicle (Veh. Code, §
10851, subd. (a)), and two counts of hit and run causing property damage (Veh.
Code, § 20002, subd. (a)). The property
damage in the present case caused by his vandalism was substantial, and minor
continued to deny under oath even his presence at the scene of the crime. The court was well within its discretionary
authority in determining the present offense to be a felony.
Our review of the entire
record has not disclosed the existence of any arguable issue.
DISPOSITION
The judgment is affirmed.
IKOLA,
J.
WE CONCUR:
ARONSON,
ACTING P. J.
FYBEL, J.
name="_ftn1" title="">[1] Minor was already on
probation under previous wardship proceedings.
