IN RE: DIEGO P. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Diego P. appeals from an order of the juvenile court declaring him a ward of the court under Welfare and Institutions Code section 602 and ordering suitable placement.   The court found true the allegations that appellant committed the crimes of assault with a deadly weapon, a felony (Pen.Code, § 245, subd. (a)(1)), and vandalism, a misdemeanor (Pen.Code, § 594, subd. (a)).  We affirm.

On August 23, 2010, at about 9:40 p.m., appellant was at his mother's house when he got into an argument with his stepfather, Fausto Gutierrez.   Appellant was upset, so Gutierrez gave appellant a phone to call his father.   Gutierrez later told the police that appellant became angry when Gutierrez would not let him use the telephone.   Appellant called his father to come get him, gathered some clothes, and went outside.

Appellant got a stick and started hitting Gutierrez's car, a 1973 Volkswagen beetle, breaking the driver's window and the front windshield.   A brick later was found inside the car.   Appellant's mother, his brother, and Gutierrez went outside and tried to stop appellant from hitting the car, but he would not stop.   Gutierrez testified that he did not know how much it would cost to repair the car.

At the adjudication hearing, appellant's mother testified that appellant never swung the stick at her or Gutierrez, and that she never told the police that he did.   Gutierrez also testified that he did not know if appellant ever swung the stick at anyone and that he never told the police that appellant did so.   Appellant's brother testified that appellant was hitting the car but that he did not try to hit him or their mother.

Appellant's brother's girlfriend called the police, and Los Angeles County Deputy Sheriff Paul Beserra responded to the call.   Deputy Beserra was told that someone was committing a vandalism and trying to hit people with a stick.

When Deputy Beserra arrived, he saw appellant and other people standing in the street.   Deputy Beserra saw appellant throw an object into the street.   The object later was discovered to be a wood stick that was three to four feet long.   The family identified the stick as the one appellant used to hit the car and swing at them.

Deputy Beserra saw a Volkswagen beetle parked in front of the house with its front windshield and driver's window smashed.   The rear taillight also was smashed, and there was broken glass on the ground and inside the car.   He also found a brick inside the car.

Gutierrez told Deputy Beserra that he had an argument with appellant outside the house.   According to Deputy Beserra, Gutierrez said appellant used the stick to break the windshield and taillight and tried to hit Gutierrez with it four to five times.   Appellant's mother told Deputy Beserra that appellant tried to hit her with the stick when she tried to stop the fight between appellant and Gutierrez, and that appellant chased Gutierrez around the yard trying to hit him with the stick.   Appellant's brother told Deputy Beserra that he tried to protect his mother when appellant swung the stick at her.

After appellant received and waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, he told Deputy Beserra that he became upset after Gutierrez would not allow him to use a cell phone.   Appellant said he went outside, threw a brick through the windshield of Gutierrez's car, and used a stick to smash the driver's window and the taillight and to protect himself against his stepfather.

On August 25, 2010, a petition was filed under Welfare and Institutions Code section 602, charging appellant with five counts:  counts 1, 2, and 3, assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1));  count 4, vandalism with over $400 damage, a felony (Pen.Code, § 594, subd. (a));  and count 5, criminal threats (Pen.Code, § 422).

Appellant's mother and brother, Gutierrez, and Deputy Beserra testified at the adjudication hearing.   Appellant did not present any witnesses.   Defense counsel moved to dismiss for insufficiency of the evidence, arguing that three witnesses testified that there was no assault, and Deputy Beserra did not witness any assault.   Counsel further argued that although there was evidence of vandalism, there was no evidence that the damage was over $400.

The court granted the motion to dismiss count 5, criminal threats against Gutierrez, but denied the motion to dismiss the other four counts.   The court found the evidence sufficient to sustain count 1 of the petition, assault with a deadly weapon upon Gutierrez, but not counts 2 and 3, assault upon appellant's mother and brother.   As to count 4, the court found that there was sufficient evidence of vandalism, but not of damages over $400, and therefore sustained count 4 as a misdemeanor.   The court sustained counts 1 and 4 and dismissed the other counts.

The juvenile court found that count 1 was a felony with a maximum term of confinement of four years four months.   The court ordered appellant into suitable placement and imposed numerous other conditions.   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 14, 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.

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 judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

EPSTEIN, P. J. MANELLA, J.