In re Miguel H. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. J224541
- Trial judge
- Richard Monroy
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Judith L. Haller (author), O'Rourke, Cynthia Aaron
Analysis
The trial court found a probation violation true based on a preponderance of the evidence and imposed restitution as a condition of probation. The Court of Appeal affirmed the judgment after a Wende review found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of restitution as a condition of probation following a finding of a probation violation proven by a preponderance of the evidence.“may a juvenile court impose restitution as a condition of probation where the underlying finding arises from a probation violation which requires proof by a preponderance of the evidence, not proof beyond a reasonable doubt?” | de novo | not reached | unsure The court identified the issue as 'possible, but not arguable' and concluded that its independent review of the record disclosed no reasonably arguable issue, thereby affirming the judgment without addressing the merits of the restitution standard. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief and the court to conduct an independent review of the record when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from a case where no arguable issues exist, requiring a brief and court review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a no-merit brief. However, it is a 'sound with gaps' analysis because it dismisses the restitution standard issue as 'not arguable' without citing any authority supporting the proposition that preponderance of the evidence is sufficient for restitution in this context, leaving the legal basis for the dismissal implicit rather than explicit.
How this analysis was made · dispute it
unusual dispositionThe juvenile court found true a probation violation (failure to obey all laws) based on a restaurant manager's identification of Miguel as the person who threw a brick through the restaurant window, continued him on probation, ordered 45 days of house supervision, and imposed $2,250 in restitution as a probation condition. On a Wende/Anders appeal in which counsel raised no argument and Miguel filed no supplemental brief, the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
True finding on the probation violation allegation (failure to obey all laws) based on the restaurant manager's identification testimony“At a contested evidentiary hearing, the court found the allegation true based on the testimony of a restaurant manager who identified Miguel as the individual who threw a brick through the front window of the restaurant.” | unclear | correct | agree with court The opinion does not articulate a standard; this was an independent Wende review of the whole record. The finding rested on eyewitness identification by the restaurant manager at a contested hearing, which is sufficient evidence under the preponderance standard governing probation violations, and nothing in the opinion suggests any defect. The result is consistent with Wende and Anders. |
Imposition of $2,250 victim restitution as an additional condition of probation following a probation violation proved by a preponderance of the evidence“may a juvenile court impose restitution as a condition of probation where the underlying finding arises from a probation violation which requires proof by a preponderance of the evidence, not proof beyond a reasonable doubt?” | unclear | correct | agree with court The court treated counsel's flagged issue as not reasonably arguable without stating a standard, though probation conditions are ordinarily reviewed for abuse of discretion. Juvenile courts have broad discretion to impose reasonable probation conditions, and restitution tied to conduct established at a probation-violation hearing is reasonably related to rehabilitation; the preponderance standard is the correct standard for probation violations. The conclusion is defensible, though the opinion offers no analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the appellate court must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and identify anything in the record that might arguably support the appeal, after which the court reviews the record itself.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure: it summarizes the record, notes the one potential issue counsel identified, confirms the minor was given the chance to file his own brief, and states that independent review disclosed no arguable issue. It contains no substantive legal analysis of the restitution question, but none is required in a Wende affirmance, and the result is consistent with the broad discretion juvenile courts have over probation conditions.
Opinion
Filed 3/21/13 In re Miguel H. 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 MIGUEL H., a Person Coming Under the Juvenile Court Law. D062108 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J224541)
v. MIGUEL H., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard Monroy, Judge. Affirmed.
In June 2010, Miguel H., who was a ward of the juvenile court, admitted he had violated Penal Code section 211 (robbery). Seven other theft-related counts were dismissed. The court continued Miguel as a ward, placed him on probation with standard enumerated terms and conditions, and committed him to a one-year Breaking Cycles program. In September 2010, Miguel admitted he had violated two conditions of his probation: wearing gang clothing and violating his curfew. The court continued the previous commitment to Breaking Cycles and required him to complete 45 days of house arrest under an electronic surveillance program. In December 2010, Miguel admitted violating three other conditions of probation. The court continued the disposition for three months so it could evaluate how Miguel performed under the probation department's highest level of supervision. In March 2011, Miguel admitted six violations of probation conditions. On the same day, the court committed him to the Youthful Offender Unit for a maximum period of 480 days.
Miguel was released from the unit on December 20, 2011. A week later he was arrested for vandalism and charged with a probation violation: failure to obey all laws.
At a contested evidentiary hearing, the court found the allegation true based on the testimony of a restaurant manager who identified Miguel as the individual who threw a brick through the front window of the restaurant. The incident resulted in $2,250 in damage to the window, a wall and a painting. The court continued Miguel on probation;
reaffirmed the previously ordered conditions of probation; required 45 days of house supervision and imposed $2,250 in restitution as an additional condition of probation.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the relevant facts and proceedings at the juvenile court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 2 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to one possible, but not arguable issue: may a juvenile court impose restitution as a condition of probation where the underlying finding arises from a probation violation which requires proof by a preponderance of the evidence, not proof beyond a reasonable doubt?
We granted Miguel permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonably arguable issue. Competent counsel has represented Miguel on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- In Re Lifschutz Crim. 14131 · 1970-04-15