Filed 10/24/22 In re C.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT
In re C.G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, F083674
Plaintiff and Respondent, (Super. Ct. No. JJD073561)
v. OPINION C.G.,
Defendant and Appellant.
THE COURT * APPEAL from an order of the Superior Court of Tulare County. John P. Bianco, Judge. J. Meera Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-
* Before Hill, P. J., Levy, J. and Peña, J. Minor, C.G., appeals from a disposition order finding that he committed assault by force likely to produce great bodily injury and assault with a deadly weapon, adjudging him a ward of the court, and placing him on probation. On appeal, minor’s appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende); see In re Kevin S. (2003) 113 Cal.App.4th 97.) We offered minor the opportunity to present his own brief on appeal, but he has not responded. Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court’s direction in Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case. Finding no arguable error that would result in a disposition more favorable to minor, we affirm. PROCEDURAL SUMMARY On October 27, 2021, the Tulare County District Attorney filed a second amended juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging minor committed assault by means of force likely to produce great bodily injury upon X.Q. 1 (Pen. Code, § 245, subd. (a)(4); count 1), and assault with a deadly weapon upon A.M. (Pen. Code, § 245, subd. (a)(1); count 2). On November 2, 2021, after a contested jurisdictional hearing, the juvenile court found the allegations of the second amended petition true beyond a reasonable doubt. On November 16, 2021, the juvenile court declared minor a ward of the court and placed him on probation. The terms of probation included postdisposition electronic monitoring for at least 30 days, attending school regularly, not using or possessing alcohol or drugs, not possessing any weapons, not contacting the coparticipants in the
1 X.Q. is referred to as X.J.Q. in the second amended petition but X.Q. during the jurisdictional hearing. For the sake of consistency, we refer to him as X.Q.
2. offenses or the victims, submitting to searches, and abiding by a curfew. Minor was advised that violation of probation could result in his commitment to a detention facility to complete a program. On December 16, 2021, minor filed a notice of appeal. On July 7, 2022, minor’s counsel filed a Wende brief identifying no issues on appeal and asking us to conduct an independent review. On the same date, the clerk of this court sent a letter to minor, informing him of his right to submit a letter stating any grounds on appeal. To date, minor has submitted no letter identifying grounds on appeal. FACTUAL SUMMARY The May 27, 2021 Incident (Count 2) On or around the afternoon of May 27, 2021, A.M. was involved in a physical altercation at the park in his family’s apartment complex in Dinuba. He was with his friends Adrian, J.C., B.G., and B.G.’s girlfriend. Adrian saw minor exit Adrian’s girlfriend’s apartment, which was near the park, and “wanted to start some problems.” Adrian approached minor and shouted something to him, and A.M., J.C., B.G., and B.G.’s girlfriend followed Adrian.2 At that point, minor returned to Adrian’s girlfriend’s apartment and “called his friends …. [T]hat[ was] when the altercation started.” Minor and at least three other people exited the home and “came up on” A.M., Adrian, J.C., B.G., and B.G.’s girlfriend. At that point, A.M. did not attempt to fight. He saw one person—not minor— holding a bat. That person swung the bat at A.M., and A.M. blocked it and ran. A.M.’s friends were not struck. A.M. ran home and minor pursued him but stopped before A.M. reached the porch to his home. A.M. did not see if minor had anything in his hands.
2 The record is not clear what, if anything, Adrian said to minor before minor reentered Adrian’s girlfriend’s home.
3. A.M. spoke to a police officer after the incident and told the officer that minor chased him with a knife. However, at trial A.M. was no longer sure if he was correct when he spoke to the officer. A.M. testified that he never told the officer that minor swung the knife at him. A.M. had a knife in his possession that day. He found it on a table. B.G. was in the same park in Dinuba on May 27, 2021, at approximately 3:00 p.m. He and his girlfriend were sitting apart from A.M., J.C., and Adrian. He saw a group “start[] pressing [his] friends”; “[i]t was three against a whole mob.” B.G. ran to A.M.’s apartment to get help. He did not see anyone get hit. B.G. spoke to a police officer about a week after the incident, however, he did not tell the officer that he had seen someone follow A.M. or swing a knife at A.M. A.M. told B.G. that minor chased him but B.G. had not seen it. B.G. did not recognize minor as one of the people involved in the incident. B.G. testified that the people he saw approaching his friends were all wearing masks so he could not recognize them. On May 28, 2021, Marcos Nunez was a police officer with the City of Dinuba Police Department. A.M.’s mother approached Nunez to report that her son had been struck in the arm with a bat the previous day. Nunez later spoke to A.M. A.M. told him that he was involved in an altercation, that he escaped and ran away, and that minor chased him with an open pocketknife to the patio of his apartment. About a week later, Nunez spoke to B.G. B.G. told him that minor chased A.M. with a knife. B.G. told Nunez that minor swung a knife at A.M. and demonstrated the swing. He identified minor in a photo lineup. One of the members of minor’s group said that a person named Arturo—not minor—was the person who chased A.M. The October 12, 2021 Incident (Count 1) On October 12, 2021, X.Q. was at school, eating at a desk when he was approached by a fellow student named Joseph. Joseph removed an earbud from X.Q.’s
4. ear and told X.Q. that he was sitting in Joseph’s seat. X.Q. asked Joseph why he took X.Q.’s earbud and Joseph responded that he would give it back if X.Q. moved from the seat. X.Q. responded that he would move if Joseph gave him the earbud back. Joseph began to walk around the desk to X.Q. and X.Q. stood and said, “ ‘I’m off your chair.’ ” Joseph then threw the “earbud behind him disrespectfully” and told X.Q. that he could “get it [him]self.” X.Q. responded that if Joseph gave him the earbud back that it “d[id]n’t have to cause [any] problems.” Joseph then pushed X.Q. X.Q. “went back in [Joseph’s] face to get in his way” and Joseph pushed him for a second time. X.Q. then pushed Joseph “again”3 and “threw [Joseph] away” from him. X.Q. then picked up his earbud and sat near the teacher. Later, while X.Q. was still at school, a young man named Adrian approached X.Q. and told him that Joseph wanted to “go one on one.” X.Q. understood that to mean that Joseph wanted to fight him to “squash” the problems between the two. The fight was planned to take place after school at a location X.Q.
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Filed 10/24/22 In re C.G. CA5
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 FIFTH APPELLATE DISTRICT
In re C.G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, F083674
Plaintiff and Respondent, (Super. Ct. No. JJD073561)
v. OPINION C.G.,
Defendant and Appellant.
THE COURT * APPEAL from an order of the Superior Court of Tulare County. John P. Bianco, Judge. J. Meera Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-
* Before Hill, P. J., Levy, J. and Peña, J. Minor, C.G., appeals from a disposition order finding that he committed assault by force likely to produce great bodily injury and assault with a deadly weapon, adjudging him a ward of the court, and placing him on probation. On appeal, minor’s appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende); see In re Kevin S. (2003) 113 Cal.App.4th 97.) We offered minor the opportunity to present his own brief on appeal, but he has not responded. Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court’s direction in Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case. Finding no arguable error that would result in a disposition more favorable to minor, we affirm. PROCEDURAL SUMMARY On October 27, 2021, the Tulare County District Attorney filed a second amended juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging minor committed assault by means of force likely to produce great bodily injury upon X.Q. 1 (Pen. Code, § 245, subd. (a)(4); count 1), and assault with a deadly weapon upon A.M. (Pen. Code, § 245, subd. (a)(1); count 2). On November 2, 2021, after a contested jurisdictional hearing, the juvenile court found the allegations of the second amended petition true beyond a reasonable doubt. On November 16, 2021, the juvenile court declared minor a ward of the court and placed him on probation. The terms of probation included postdisposition electronic monitoring for at least 30 days, attending school regularly, not using or possessing alcohol or drugs, not possessing any weapons, not contacting the coparticipants in the
1 X.Q. is referred to as X.J.Q. in the second amended petition but X.Q. during the jurisdictional hearing. For the sake of consistency, we refer to him as X.Q.
2. offenses or the victims, submitting to searches, and abiding by a curfew. Minor was advised that violation of probation could result in his commitment to a detention facility to complete a program. On December 16, 2021, minor filed a notice of appeal. On July 7, 2022, minor’s counsel filed a Wende brief identifying no issues on appeal and asking us to conduct an independent review. On the same date, the clerk of this court sent a letter to minor, informing him of his right to submit a letter stating any grounds on appeal. To date, minor has submitted no letter identifying grounds on appeal. FACTUAL SUMMARY The May 27, 2021 Incident (Count 2) On or around the afternoon of May 27, 2021, A.M. was involved in a physical altercation at the park in his family’s apartment complex in Dinuba. He was with his friends Adrian, J.C., B.G., and B.G.’s girlfriend. Adrian saw minor exit Adrian’s girlfriend’s apartment, which was near the park, and “wanted to start some problems.” Adrian approached minor and shouted something to him, and A.M., J.C., B.G., and B.G.’s girlfriend followed Adrian.2 At that point, minor returned to Adrian’s girlfriend’s apartment and “called his friends …. [T]hat[ was] when the altercation started.” Minor and at least three other people exited the home and “came up on” A.M., Adrian, J.C., B.G., and B.G.’s girlfriend. At that point, A.M. did not attempt to fight. He saw one person—not minor— holding a bat. That person swung the bat at A.M., and A.M. blocked it and ran. A.M.’s friends were not struck. A.M. ran home and minor pursued him but stopped before A.M. reached the porch to his home. A.M. did not see if minor had anything in his hands.
2 The record is not clear what, if anything, Adrian said to minor before minor reentered Adrian’s girlfriend’s home.
3. A.M. spoke to a police officer after the incident and told the officer that minor chased him with a knife. However, at trial A.M. was no longer sure if he was correct when he spoke to the officer. A.M. testified that he never told the officer that minor swung the knife at him. A.M. had a knife in his possession that day. He found it on a table. B.G. was in the same park in Dinuba on May 27, 2021, at approximately 3:00 p.m. He and his girlfriend were sitting apart from A.M., J.C., and Adrian. He saw a group “start[] pressing [his] friends”; “[i]t was three against a whole mob.” B.G. ran to A.M.’s apartment to get help. He did not see anyone get hit. B.G. spoke to a police officer about a week after the incident, however, he did not tell the officer that he had seen someone follow A.M. or swing a knife at A.M. A.M. told B.G. that minor chased him but B.G. had not seen it. B.G. did not recognize minor as one of the people involved in the incident. B.G. testified that the people he saw approaching his friends were all wearing masks so he could not recognize them. On May 28, 2021, Marcos Nunez was a police officer with the City of Dinuba Police Department. A.M.’s mother approached Nunez to report that her son had been struck in the arm with a bat the previous day. Nunez later spoke to A.M. A.M. told him that he was involved in an altercation, that he escaped and ran away, and that minor chased him with an open pocketknife to the patio of his apartment. About a week later, Nunez spoke to B.G. B.G. told him that minor chased A.M. with a knife. B.G. told Nunez that minor swung a knife at A.M. and demonstrated the swing. He identified minor in a photo lineup. One of the members of minor’s group said that a person named Arturo—not minor—was the person who chased A.M. The October 12, 2021 Incident (Count 1) On October 12, 2021, X.Q. was at school, eating at a desk when he was approached by a fellow student named Joseph. Joseph removed an earbud from X.Q.’s
4. ear and told X.Q. that he was sitting in Joseph’s seat. X.Q. asked Joseph why he took X.Q.’s earbud and Joseph responded that he would give it back if X.Q. moved from the seat. X.Q. responded that he would move if Joseph gave him the earbud back. Joseph began to walk around the desk to X.Q. and X.Q. stood and said, “ ‘I’m off your chair.’ ” Joseph then threw the “earbud behind him disrespectfully” and told X.Q. that he could “get it [him]self.” X.Q. responded that if Joseph gave him the earbud back that it “d[id]n’t have to cause [any] problems.” Joseph then pushed X.Q. X.Q. “went back in [Joseph’s] face to get in his way” and Joseph pushed him for a second time. X.Q. then pushed Joseph “again”3 and “threw [Joseph] away” from him. X.Q. then picked up his earbud and sat near the teacher. Later, while X.Q. was still at school, a young man named Adrian approached X.Q. and told him that Joseph wanted to “go one on one.” X.Q. understood that to mean that Joseph wanted to fight him to “squash” the problems between the two. The fight was planned to take place after school at a location X.Q. knew as “the Rec” or “the Recreation” in Tulare County. After school, at about 3:00 p.m., X.Q. walked to “the Rec,” anticipating a fight with Joseph. Minor and five other young men were present. X.Q. took off his glasses and threw a punch at Joseph. Then “six of them were against” X.Q., punching him. X.Q. defended himself as best he could. At the end of the fight, X.Q. “took one of the guys down” and fell on top of him. Two others then kicked X.Q. repeatedly in the head as X.Q. attempted to defend himself. Soon after, one of X.Q.’s mentors from school, Luciano Meza, stopped the fight. X.Q. recognized that minor was one of the people involved in the fight who hit him but he “couldn’t see because [his] glasses were off ….” X.Q. was being punched on the face, further limiting his ability to know who was striking him.
3 X.Q. did not describe a first push but indicated that he pushed Joseph “again.”
5. As a result of the fight, X.Q.’s eye socket and nose were broken. He also suffered bruising near his eye and temple, and bleeding to his ear. X.Q. continued to suffer migraines as a result of the fight and was unable to fully open his mouth. On October 12, 2021, at about 3:00 p.m., Meza was driving away from school when he saw “a bunch of people going at it” by “shoving and stuff like that” and “a bunch of students running everywhere …” near the recreation center. When he got there “everybody was hitting each other.” He approached and stopped the three or four students that he saw fighting. Meza saw minor “running around” during the incident. X.Q. was also involved in the altercation. He saw X.Q. on top of another student but he did not see minor kick X.Q. X.Q. declined an ambulance and instead decided to go home. On October 12, 2021, at about 3:00 p.m., Nunez was on duty as a school resource officer when he heard a dispatcher send an officer to the recreation center and he heard the dispatcher mention names of students with whom he was familiar. He called school administrators to seek demographic information for the involved students. He then called the dispatched officer to determine whether the fight occurred before the students had returned home after school. He determined that the fight occurred before the students had returned home from school and therefore he became involved. The following day, Nunez transported minor and Joseph from school to the police department and then to the juvenile detention facility. He heard one of the two say “ ‘We really didn’t even hit him,’ and a little laugh after that.” It sounded to Nunez as though both were laughing at the comment. Nunez also took a statement from Meza on October 13, 2021. Meza said that he “had heard that there was going to be something going down at the Rec ….” Meza decided to circle the area to try to make sure that none of the students did anything that would get them in trouble. When Meza approached to stop the fight, he saw X.Q. on top of one student and minor and another student striking X.Q. from above. He had to shove
6. minor and the other students away from X.Q. He looked minor “directly in the eyes and he said, ‘What’s going on? What’s happening?’ ” Minor and the other student stopped striking X.Q., then ran away. On October 12, 2021, at about 3:00 p.m., Jacob Aguilar was a police officer with the City of Dinuba. He was dispatched to respond to the fight. He took a statement from Meza. Meza told him that minor and another student were standing above X.Q., kicking him, when he arrived. On that record, the juvenile court found both counts alleged in the second amended petition true. DISCUSSION Having carefully reviewed the entire record, we conclude that there is no arguable issue on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441–443.) DISPOSITION The dispositional order is affirmed.
7.