In re Derek v. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. J228327
- Trial judge
- Carlos Armour
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Cynthia Aaron
Analysis
The juvenile court affirmed the Minor's probation and set restitution at $28,920 following an admission of assault resulting in bodily injury. The Court of Appeal affirmed the judgment after a Wende/Anders review found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of request for deferred entry of judgment“Whether the juvenile court abused its discretion in denying the Minor's request for deferred entry of judgment” | abuse of discretion | not reached | unsure The court identified the issue as 'possible, but not arguable' and stated it had 'not found any reasonably arguable appellate issues' after reviewing the record, effectively declining to address the merits of the claim. |
Setting of restitution amount“Whether the juvenile court abused its discretion in setting the amount of restitution” | abuse of discretion | not reached | unsure The court identified the issue as 'possible, but not arguable' and stated it had 'not found any reasonably arguable appellate issues' after reviewing the record, effectively declining to address the merits of the claim. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to review the record for error when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying possible issues and the court to review the record independently.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the mandatory Wende/Anders review process for appointed counsel. However, it provides no substantive legal analysis for the two issues raised, relying solely on the assertion that they are not arguable.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe juvenile court accepted Derek V.'s admissions to a misdemeanor knife-on-school-grounds charge (Pen. Code § 626.10, subd. (a)) and later an assault resulting in bodily injury (§ 243, subd. (d)), declared him a ward, placed him on probation, and after a hearing set victim restitution at $28,920. On appeal, counsel filed a Wende/Anders brief identifying the denial of deferred entry of judgment and the restitution amount as possible issues; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of the Minor's request for deferred entry of judgment“Whether the juvenile court abused its discretion in denying the Minor's request for deferred entry of judgment” | abuse of discretion | correct | unsure The opinion recites no facts about the DEJ request, the basis for its denial, or the Minor's eligibility and suitability under Welfare and Institutions Code sections 790-795; it simply reports that independent Wende review disclosed no arguable issue. The disposition is procedurally proper for a Wende appeal, but the opinion provides nothing permitting independent evaluation of the merits of the denial. |
Setting victim restitution at $28,920 after a restitution hearing“In August 2012, the juvenile court conducted a restitution hearing and set restitution owed to the victim of the assault in the amount of $28,920.” | abuse of discretion | correct | unsure Restitution orders are reviewed for abuse of discretion and must have a rational basis in the record; the victim suffered a broken nose, which plausibly supports substantial medical expenses, and a contested hearing was held. However, the opinion does not describe the evidence supporting the amount, so the court's conclusion that no arguable issue exists cannot be independently verified from the opinion. |
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 frivolous may so advise the court but must file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The court followed the required Wende/Anders procedure: it identified the issues counsel flagged, offered the Minor an opportunity to file a supplemental brief, and stated it reviewed the entire record. The opinion is nonetheless bare, giving no description of the DEJ ruling or the evidentiary basis for the restitution figure, so the result is defensible but unexplained.
How this analysis was made · dispute it
record incompleteOpinion
Filed 3/12/13 In re Derek V. 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 DEREK V., a Person Coming Under the Juvenile Court Law. D062587 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J228327)
v. DEREK V., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos Armour, Judge. Affirmed.
In April 2011 Derek V. (Minor) admitted a misdemeanor violation of Penal Code1 section 626.10, subdivision (a), possessing a knife on school grounds, as alleged in a petition filed in the juvenile court. The Minor was placed on probation.
In May 2012 the Minor admitted a violation of section 243, subdivision (d), assault resulting in bodily injury, as alleged in a second petition filed in the juvenile 1 All further statutory references are to the Penal Code unless otherwise specified. court. The Minor was declared a ward of the court and placed on probation. In August 2012, the juvenile court conducted a restitution hearing and set restitution owed to the victim of the assault in the amount of $28,920.
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 the Minor has not responded.
STATEMENT OF FACTS
On January 14, 2011, school officials observed a folding knife clipped to the Minor's waistband.
On January 16, 2012, the Minor and a male companion attacked Pablo Oliva in retaliation for an earlier assault by Oliva on Derek's friend. The Minor and his friend contacted Oliva, knocked him off of his bicycle and repeatedly punched and kicked him until police officers intervened. Oliva suffered a broken nose as a result of the assault.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he 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. Whether the juvenile court abused its discretion in denying the Minor's request for deferred entry of judgment; and 2 2. Whether the juvenile court abused its discretion in setting the amount of restitution.
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.
DISPOSITION
The orders of the juvenile court are affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12