In re Frank M. CA4/1

California Court of Appeal · D068469 · 2016-02-05 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. J237104
Trial judge: Browder A. Willis III
Outcome: affirmed — Affirmed.
Area: delinquency
Panel: Gilbert Nares (author), Judith D. McConnell, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:58Z · confidence low

The trial court accepted a plea bargain where the minor admitted to misdemeanor battery, dismissed the felony assault charge, and imposed probation conditions prohibiting gang association and attire. The Court of Appeal affirmed the judgment after an independent review of the record found no reasonably arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Imposition of gang-related probation conditions (no association, no attire, no hand signs) and acceptance of plea bargain. “We have independently reviewed the record under Wende and considered the possible issues identified by Frank M.'s counsel. We have found no reasonably arguable issues for reversal or modification of the judgment.”	de novo	not reached	agree with court The court applied the Wende standard of review, which requires an independent examination of the record to determine if there are any reasonably arguable issues. The court concluded that the identified issues (validity of gang conditions) were not reasonably arguable, thereby affirming the judgment without detailed analysis of the merits.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel must independently review the record for error and file a brief identifying any reasonably arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may file a brief stating there are no arguable issues, but must still provide a summary of the proceedings and identify potential issues.
relied: People v. Harvey (1979) 25 Cal.3d 754 — A Harvey waiver permits a sentencing court to consider dismissed counts that are transactionally related to the admitted offense.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for appointed counsel appeals. It accurately summarizes the procedural history and the court's independent review process.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The juvenile court accepted Frank M.'s admission to misdemeanor battery with serious bodily injury in exchange for dismissal of a felony assault count with a Harvey waiver, declared him a ward, placed him on one-year probation in his mother's home with gang-related conditions imposed over defense objection, and ordered a $60 fine and a $50 restitution fine. On appeal, appointed counsel filed a Wende/Anders brief identifying the gang conditions as possible but not arguable issues, the minor filed no supplemental brief, and the Court of Appeal independently reviewed the record and affirmed.

Ruling reviewed	Standard	The court	The model
Acceptance of the minor's admission to count 2 (misdemeanor battery, Pen. Code § 243(d)) as free, voluntary, and supported by a factual basis, with dismissal of count 1 under a Harvey waiver “The court accepted the admission, finding that Frank M. gave it freely and voluntarily and that there was both a factual basis for the admission and substantial evidence that would support an argument that Frank M. acted in self-defense.”	unclear	correct	agree with court Under Wende the court independently reviewed the record and found no arguable issue. The opinion recites that the admission was found voluntary with a factual basis, and the minor received the benefit of the bargain (felony count and enhancements dismissed). Nothing in the opinion suggests any defect in the plea colloquy.
Imposition of three gang-related probation conditions over defense objection that there was no evidence the minor was associated with a street gang “The defense objected to certain terms proposed by the probation department, including three gang-related conditions on the ground there was no evidence that the minor is associated with a street gang.”	unclear	correct	agree with court The opinion does not state a standard of review or analyze the conditions; it simply finds no arguable issue after considering counsel's identified possible issues. The result is defensible: the record shows the older brother actively associated with the Vista Home Boys, which supports a reasonable rehabilitative basis under the broad discretion accorded juvenile courts (consistent with In re Laylah K.), and the conditions contain express knowledge requirements and define 'gang' by reference to Pen. Code § 186.22(f), addressing the vagueness/overbreadth concerns of In re Sheena K. However, the opinion does not articulate this reasoning.
Declaration of wardship and placement on one year of probation in the mother's home; imposition of a $60 fine (Welf. & Inst. Code § 730.5) and a $50 restitution fine (§ 730.6) for which the minor and parents are jointly and severally liable “The court also ordered Frank M. to pay a $60 fine under to Welfare and Institutions Code section 730.5, and held Frank M. and his parents jointly and severally liable for a $50 restitution fine under Welfare and Institutions Code section 730.6.”	unclear	correct	agree with court These dispositional orders were encompassed in the court's independent Wende review. The fines are within the statutory minimums and nothing in the opinion indicates error; the court found no reasonably arguable issue for reversal or modification.

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 before affirming.
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, after which the court independently examines the record.
relied: People v. Harvey (1979) 25 Cal.3d 754 — A sentencing court may not consider facts underlying counts dismissed under a plea bargain unless the defendant waives that protection; a Harvey waiver permits consideration of transactionally related dismissed counts.
missed: People v. Lent (1975) 15 Cal.3d 481 — A probation condition is invalid only if it has no relationship to the crime, relates to conduct not itself criminal, and requires or forbids conduct not reasonably related to future criminality; the test governs review of the gang conditions challenged below.
missed: In re Sheena K. (2007) 40 Cal.4th 875 — Juvenile probation conditions must give fair notice of prohibited conduct and may be challenged for facial vagueness/overbreadth; a knowledge requirement cures vagueness in association and gang-type conditions.
missed: In re Laylah K. (1991) 229 Cal.App.3d 1496 — A juvenile court may impose gang-related probation conditions on a minor not shown to be a gang member where the minor's environment and associations expose him to gang influence, because juvenile probation serves rehabilitation and the court's discretion is broader than in adult cases.

The appellate opinion: sound with gaps — The opinion follows the proper Wende/Anders procedure, describes the proceedings, notes counsel's identified possible issues, invited a supplemental brief, and independently reviewed the record, reaching a defensible result since the gang conditions contain knowledge requirements and are supported by the older brother's gang involvement. It does not, however, articulate why the objected-to gang conditions present no arguable issue or cite the governing authorities (Lent, Sheena K., Laylah K.), leaving the reasoning implicit.

How this analysis was made · dispute it

Opinion

Filed 2/5/16 In re Frank M. 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 FRANK M., a Person Coming Under the Juvenile Court Law. D068469 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J237104)

v. FRANK M., Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.

Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. Defendant Frank M.'s appointed appellate counsel has filed a brief asking this court to independently review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

During the afternoon of May 4, 2015, Frank M. and his father became involved in an argument that ended up with an altercation. Frank M.'s father pushed Frank M. and held him to the ground. When he let go, Frank M. grabbed a steak knife from the kitchen and swung it at his father. Frank M.'s father grabbed a car seat to protect himself, but Frank M. continued swinging the knife and cut his father's thumb with it. The father suffered a one-inch laceration on his thumb, which the father described as "more like a fingernail scratch."

This appeal arises out of a Welfare and Institutions Code section 602 juvenile delinquency proceeding in which the amended petition alleged in count 1 that Frank M.

assaulted his father with a deadly weapon or instrument (Pen. Code, § 245, subd. (a)(1)), and also alleged that in committing that offense he personally used a deadly weapon (Pen. Code, § 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (Pen.

Code, § 12022.7, subd. (a).) In count 2, the amended petition alleged that Frank M.

committed a battery resulting in the infliction of serious bodily injury (Pen. Code, § 243, subdivision (d)), a misdemeanor under Penal Code section 17, subdivision (b)(4).

At the June 2015 readiness hearing, Frank M. admitted the misdemeanor battery offense charged in count 2 in exchange for the dismissal of the count 1 felony charge and 2 the related allegation with a Harvey waiver.1 The court accepted the admission, finding that Frank M. gave it freely and voluntarily and that there was both a factual basis for the admission and substantial evidence that would support an argument that Frank M. acted in self-defense.

At the disposition hearing held on July 9, 2015, the court declared Frank M. a ward of the court, placed him on probation for one year, and placed him in his mother's home. The defense objected to certain terms proposed by the probation department, including three gang-related conditions on the ground there was no evidence that the minor is associated with a street gang. Frank M.'s father acknowledged his older son was actively "hanging out" with a gang (Vista Home Boys).

The court overruled the objections and imposed the following three pertinent probation conditions: (1) "The minor shall not wear any item of clothing such as a hat, bandanna, badge, logo, jewelry, or possess any gang paraphernalia including photos or graffiti, or use a hand sign or name that the minor knows or reasonably should know identifies the minor with VISTA HOME BOYS gang, or any other known gang"; (2)

"The minor shall not knowingly associate with or be in the company of any person the minor knows or reasonably should know is a member of VISTA HOME BOYS, or any other known criminal street gang or any person the probation officer informs the minor is affiliated with, or a member of, a criminal street gang. The minor shall not knowingly 1 People v. Harvey (1979) 25 Cal.3d 754. A Harvey waiver permits a sentencing court to consider counts that were dismissed under a plea bargain and were transactionally related to the admitted offense. (Id. at pp. 758-759; see also 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 658, pp. 1058-1059.) 3 visit or remain in any specific location which the minors knows to be or, or which the probation officer has informed the minor is, an area of criminal street gang activity. The minor shall not knowingly use a hand sign that the minor knows or reasonably should know identifies the minor with the VISTA HOME BOYS gang, or any other known criminal street gang. EXCEPTION: MINOR'S OLDER BROTHER"; and (3) "The minor shall not knowingly possess, wear, or display any clothing or insignia, such as a tattoo, emblem, badge, cap, hat, bandanna, logo, jewelry, or possess any gang paraphernalia including photos or graffiti that the minor knows or reasonably should know, or that the probation officer has informed the minor, is evidence of affiliation with or membership in the above named gang, or any other criminal street gang. For purposes of these probation conditions, the words 'gang' and 'gang-related' mean a 'criminal street gang' as defined in Penal Code section 186.22, subdivision (f). EXCEPTION: MINOR'S OLDER BROTHER."

The court also ordered Frank M. to pay a $60 fine under to Welfare and Institutions Code section 730.5, and held Frank M. and his parents jointly and severally liable for a $50 restitution fine under Welfare and Institutions Code section 730.6.

DISCUSSION

Frank M.'s appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the proceedings below and indicating she was unable to find any reasonably arguable issues for reversal or modification of the judgment on appeal. Frank M.'s counsel has identified 4 the validity and constitutionality of the gang-related probation conditions as possible, but not arguable, issues under Anders.

We granted Frank M. permission to file a brief on his own behalf. He has not responded.

We have independently reviewed the record under Wende and considered the possible issues identified by Frank M.'s counsel. We have found no reasonably arguable issues for reversal or modification of the judgment. Accordingly, we affirm the judgment. Frank M.'s appellate counsel has competently represented him in this appeal.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

Cites, in this corpus

People v. Harvey Crim 21022 · 1979-11-27
People v. Wende Crim. 20851 · 1979-10-12