In re Joseph C. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. J222099
- Trial judge
- Richard R. Monroy
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Cynthia Aaron
Analysis
The juvenile court adjudicated the minor delinquent for possessing a concealed dagger and other offenses, imposing a stayed commitment to the Short Term Offender Program. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to Wende and Anders, finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the juvenile court's judgment of delinquency and disposition.“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues.” | de novo | correct | agree with court The court applied the standard Wende/Anders review, which requires an independent examination of the record to determine if there are any arguable issues. The court found none, which is the correct procedural outcome when counsel identifies no arguable errors and the record supports the trial court's findings. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the duty of appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if they are frivolous, and allows the court to affirm if no arguable issues are found after independent review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel appeals. It identifies the potential issues raised by counsel and states that an independent review of the record revealed no reasonably arguable grounds for reversal.
How this analysis was made · dispute it
unusual dispositionThe juvenile court sustained a petition finding that Joseph C. possessed a concealed dirk or dagger (Pen. Code, § 21310), declared the offense a felony subject to a later defense motion to reduce it, found two curfew violations and a loitering infraction true, set a three-year maximum, and imposed but stayed a Short Term Offender Program commitment. Appointed counsel filed a Wende/Anders brief identifying three possible issues; the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Designation of the concealed dirk/dagger offense (Pen. Code, § 21310) as a felony rather than a misdemeanor at disposition“Based on the lack of sufficient information the court set the dagger offense as a felony, subject to a defense motion to reduce it to a misdemeanor. No such motion is in this record.” | unclear | correct | agree with court Under Welfare and Institutions Code section 702 and In re Manzy W., the juvenile court must expressly declare whether a wobbler is a felony or misdemeanor and must show awareness of its discretion. The opinion's recital that the court expressly set the offense as a felony while inviting a motion to reduce shows both an express declaration and awareness of discretion, so no arguable Manzy W. error appears. The court did not cite Manzy W., but the result is consistent with it. |
True finding on the concealed dirk/dagger count based on the knife recovered in a pat down after the Minor told police he had a weapon“During questioning the Minor said he had a weapon on him; that he had a knife in his pocket. Police patted down the Minor and discovered a knife in a sheath in the Minor's pocket.” | unclear | correct | agree with court The Minor's own statement that he was carrying a weapon supplied reasonable suspicion that he was armed, which justifies a limited pat down for weapons; moreover the opinion reflects no suppression motion below, so a Fourth Amendment claim would not be preserved. A two-sided fixed blade in a sheath in a pocket fits the statutory definition of a concealed dirk or dagger. No arguable issue appears on this record. |
Implicit rejection of a Second Amendment challenge to Penal Code section 21310 (possible issue identified by counsel)“2. Does Penal Code section 21310 violate the Second Amendment of the U.S. Constitution?” | de novo | correct | agree with court Published California authority has upheld the concealed dirk/dagger prohibition against Second Amendment attack, and the Supreme Court in Heller recognized that prohibitions on carrying concealed weapons are presumptively lawful. The court did not discuss this, as is customary in a Wende opinion, but the conclusion that the issue is not arguable is well supported. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- missed: In re Manzy W. (1997) 14 Cal.4th 1199 — Under Welfare and Institutions Code section 702, the juvenile court must expressly declare whether a wobbler offense is a felony or misdemeanor and the record must show it was aware of its discretion; the opinion's facts satisfy this but the case is not cited in addressing counsel's first possible issue.
- missed: People v. Mitchell (2012) 209 Cal.App.4th 1364 — California's prohibition on carrying a concealed dirk or dagger does not violate the Second Amendment; directly disposes of counsel's second possible issue but is not cited.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, recites the facts, procedural history, and the possible issues counsel identified, and the record described supports the conclusion that none is arguable: the felony declaration was express, the pat down followed the Minor's admission that he was armed, and the Second Amendment challenge is foreclosed by existing authority. It is terse and cites no authority on the three possible issues, so a reader must supply Manzy W. and the Second Amendment case law to confirm the result.
Opinion
Filed 11/1/13 In re Joseph C. CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOSEPH C., a Person Coming Under the Juvenile Court Law. D063870 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J222099)
v. JOSEPH C., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard R.
Monroy, Judge. Affirmed.
Kleven McGann Law and Sarah Kleven McGann, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Following an adjudication hearing, the juvenile court found that Joseph C. (the Minor) had committed the felony offense of possessing a concealed dirk or dagger (Pen.
Code, § 21310), two misdemeanor offenses of violating curfew (San Diego Mun. Code, § 58.0102, subd. (A)) and one infraction for loitering (San Diego Mun. Code, § 58.05, subd. (b)(1)).
At the disposition hearing the court determined the maximum custody was three years. The court took custody of the Minor under Welfare and Institutions Code 726, subdivision (a), and imposed, but stayed a commitment to the Short Term Offender Program.1 Based on the lack of sufficient information the court set the dagger offense as a felony, subject to a defense motion to reduce it to a misdemeanor. No such motion is in this record.
The Minor filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered the Minor the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
1. Loitering Infraction. At the adjudication hearing, the Minor admitted that on December 14, 2012, he was at a park when he should have been in school.
2. Curfew Violations. On December 21, 2012, the Minor was cited for being out after 11:00 p.m., without legitimate reason.
On January 19, 2013, the Minor was again cited for being out at 10:30 p.m., without legitimate reason.
1 The court's decision to stay the commitment to the Short Term Offender Program was based on information that the Minor would be moving to Oklahoma with his aunt. 2 3. Carrying a Concealed Knife. The Minor was contacted by police while he was sitting on a bench at a public park. During questioning the Minor said he had a weapon on him; that he had a knife in his pocket. Police patted down the Minor and discovered a knife in a sheath in the Minor's pocket. Police examined the knife and discovered it was a two-sided blade, and thus was a dagger. The Minor was then arrested.
DISCUSSION
As we have noted, appellate counsel has filed a brief indicating she is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies the possible, but not arguable issues:
1. Did the juvenile court fail to exercise its discretion to consider whether the knife offense should have been a misdemeanor?
2. Does Penal Code section 21310 violate the Second Amendment of the U.S.
Constitution?
3. Was the pat down of the Minor unlawful?
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Competent counsel has represented the Minor on this appeal.
3 DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12