IN RE: LUIS M. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Luis M. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the juvenile court's finding that he committed battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d).  The court declared the offense a felony with a maximum confinement term of four years and placed appellant home on probation.   We strike the maximum confinement term and affirm in all other respects.

In March 2010, a petition was filed under Welfare and Institutions Code section 602, alleging that appellant committed the crimes of making a criminal threat, in violation of Penal Code section 422, and battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d).  An adjudication hearing was held in July 2010.

Detective Eric Berger of the Pomona Police Department testified at the hearing that he interviewed appellant on December 2, 2009 about a fight that occurred on October 23, 2009.   Appellant told Detective Berger he got into a fight with the victim, Samuel R., about a girl.   Appellant said he told Samuel he wanted to fight, but Samuel did not want to and walked away.   Appellant punched Samuel in the face.   Detective Berger asked appellant if he was remorseful, and appellant said he was not.   Detective Berger testified that he was “kind of shocked” that appellant did not express any remorse.   Appellant never indicated to Detective Berger that Samuel provoked him or started the fight.

Samuel testified at the adjudication hearing that he went to school with appellant.   At the time of the fight, Samuel had recently gotten out of a relationship with appellant's cousin, Bianca.   On October 23, 2009, appellant was waiting for Samuel after school, outside a restaurant with about 15 other people.   Samuel was with about 10 of his own friends.   Appellant asked Samuel if he was “talking trash” about his cousin;  Samuel said he was not and started walking away.   Appellant tried to get Samuel to fight with him, telling him his “crew” was named M.B.K. Samuel was afraid this group would beat him up.

Appellant and his friends followed Samuel for about half a mile as he walked down the street, and appellant told Samuel he would shoot him if Samuel talked about his family.   Appellant then punched Samuel in the nose and started hitting him.   Samuel's friends left, and appellant's friends told appellant to leave Samuel alone.   After appellant hit Samuel a few times, Samuel hit him back, but Samuel did not challenge appellant to a fight or tell appellant he wanted to fight.   Appellant put Samuel in a headlock and said, “ ‘That's what you get for talking about my family.’ ”   Then he left.

Arturo Jimenez testified that he was driving down the street with his children and a friend when they saw “a very scared African American boy being – what we thought was being antagonized by some other youths that were ․ in gang attire.”   Jimenez's friend was a retired peace officer, so they dropped off Jimenez's children and went back to check on the boy.   When they returned, they saw the boy surrounded by 10 to 20 boys, who began to beat him.   Jimenez was able to identify the victim but not any of the perpetrators.   Jimenez said Samuel was being attacked, had blood all over his face and shirt, and was trying to protect himself.   Jimenez stopped his car, got out, and yelled that his friend was a retired police officer.   The boys left, leaving the victim behind.

Appellant testified that on the day of the incident, he was walking home with six or seven girls, and there was a group of boys walking behind them.   Samuel was walking with a different group of about five boys, and he started following appellant and calling him names.   Appellant said that he and Samuel had not gotten along since middle school and that Samuel did not like him.   They were in high school at the time of this incident.

Appellant testified that Samuel pushed him and punched him in the mouth, so he punched him back.   Samuel kept punching him and then rushed him as if to tackle him, so appellant put Samuel in a headlock.   Appellant denied yelling about M.B.K. or telling Samuel he would get a gun and shoot him.   He stated that he did not associate with M.B.K. and that he just stayed home every day.   He testified that he told Detective Berger that Samuel hit him first and that he was sorry for breaking Samuel's nose.

Appellant also testified that he did not know that Samuel and Bianca had broken up.   Samuel used to try to boss appellant around and scare appellant in middle school, but appellant stayed away from him.

The juvenile court found that count 1, making a criminal threat, was not true but that count 2, battery with serious bodily injury, was true.   The court declared the offense a felony with a maximum confinement term of four years.   The court declined the request to reduce the offense to a misdemeanor but stated that it would consider the request at a later time.   The court declared appellant a ward of the court and placed him home on probation.   In addition to the standard terms of probation, the court ordered appellant to have no contact with the victim and with the M.B.K. gang.   Appellant filed a timely notice of appeal.

After review of the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On February 24, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   No response has been received to date.

Welfare and Institutions Code section 726, subdivision (c) provides that “[i]f the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare & Institutions Code] Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”  Welfare and Institutions Code section 726, subdivision (c) applies only if a minor is removed from the physical custody of his or her parent or guardian.   Where, as here, a minor is placed home on probation and not removed from his parents' custody, the juvenile court lacks the authority to set the maximum period of confinement.  (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112–113.)

DISPOSITION

The maximum term of confinement is stricken.   In all other respects, the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

EPSTEIN, P. J. SUZUKAWA, J.