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In Re J.C., A Person Coming Under the Juvenile Court Law. v. J.C

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


December 13, 2010

IN RE J.C., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
J.C., DEFENDANT AND APPELLANT.

(Santa Clara County Super. Ct. No. JV34669)

The opinion of the court was delivered by: McAdams, J.

In re J.C.

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Minor J.C. appeals from the "denial of [the] defense 'Motion to Set Aside Petition and Findings Due to Lack of Competency Pursuant to Welfare and Institutions Code section 782.' " We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) which raises no issues and states that the appeal is from juvenile court orders finding the minor incompetent to stand trial and housing him at a facility for the purpose of attempting to restore his competency. We notified the minor at his last known address of his right to submit written argument in his own behalf within 30 days. The notice was returned as undeliverable.

After reviewing the entire record on appeal, this court sent counsel the following request for further briefing. "Minor J.C. appeals from the 'denial of [the] defense "Motion to Set Aside Petition and Findings Due to Lack of Competency Pursuant to Welfare and Institutions Code section 782." ' . . . This motion was denied without prejudice by the court's 'Order After Competency Hearing,' . . . in which the court found that the minor was (1) incompetent to stand trial on the probation violation alleged in a petition filed February 4, 2009 . . . and (2) competent to stand trial on August 19, 2008 and November 25, 2008, when he admitted the felony offenses alleged in two Welfare and Institutions Code section 602 petitions.

"Minor's appellate counsel has filed a brief pursuant to . . . Wende[, supra,] 25 Cal.3d 436, stating that the minor's appeal is from the court's determination that appellant was incompetent. The court requests briefing on the following questions:

1. Did the trial court err in finding the minor competent to stand trial on the first two petitions?

2. Did the court err, or did prior counsel render ineffective assistance of counsel, by failing to inquire whether the 11-year-old, ADHD and bipolar minor was too developmentally immature to be competent to stand trial, prior to the minor's admission of the first petition? (People v. Ary (2004) 118 Cal.App.4th 1016; Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847.)

"Appellate counsel is not precluded from addressing either issue by way of habeas corpus or other writ. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; Timothy J. v. Superior Court, supra, 150 Cal.App.4th 847.)"

Appellate counsel responded by submitting a letter and an a copy of a superior court minute order informing us that "[t]he issues the court raises appear to have been superseded and rendered moot by litigation that took place in appellant's case after the filing of the notice of appeal. [¶] Defense counsel for appellant re-litigated the question of whether a retroactive finding of incompetence could be made in connection with the July 22, 2008, and September 11, 2008 petitions. On August 12, 2010, the Juvenile Court ruled that appellant had been incompetent when he entered admissions to both petitions, and suspended proceedings in both petitions. (Exhibit, p.3)"

The Attorney General submitted a response acknowledging appellate counsel's letter and electing not to respond on the substantive merits of the court's questions in light of the assertion of mootness.

Pursuant to Wende,we have reviewed the entire record, appellate counsel's letter and attached exhibit, and the Attorney General's response. We conclude that the issues on which this court requested supplemental briefing are moot. As there are no other arguable issues on appeal, the judgment will be affirmed. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.)

PROCEDURAL BACKGROUND

On July 22, 2008, the Santa Clara County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging that on July 20, 2008, minor J.C. participated in an act of sexual penetration with a four-year-old girl. (Pen. Code, § 289, subd. (h).) The next day, the minor was referred for a mental health evaluation. The evaluation was unsealed on August 12, 2008. In it, Dr. Robert Perez stated that the minor was 11 years old and already had "a long-standing history of psychiatric disability [and] [m]ultiple psychiatric diagnoses (Bipolar Affective Disorder, Intermittent Explosive Disorder, Attention Deficit Disorder)" as well as "significant depression and anxiety."

On August 19, 2008, at the time set for jurisdictional hearing, the minor admitted the petition. The court found the petition true and a factual basis in the police report. The court also found that the offense was a felony and that the minor knew the wrongfulness of his act. At the dispositional hearing on September 8, 2008, the court declared the minor a ward of the court and placed him at the Rebekah Children's Services group home as a condition of probation. The court set the maximum confinement time at three years with 45 days credit for time served.

Three days later, on September 11, 2008, a new section 602 petition was filed, alleging that on the day before the minor had destroyed windows, causing in excess of $400 damage, and had committed a battery. (Pen. Code, §§ 594, subd. (a)(b)(1), 242-243, subd. (a).) The minor was referred for another mental health evaluation.

The report was filed November 25, 2008. The minor was now 11 years and 2 months old. His diagnoses were the same. That same day, the minor admitted the vandalism charge. The court found the allegation true on the factual basis contained in the probation report. The court found that the vandalism was a felony. The maximum confinement time was set at three years, eight months, with 123 days credit for time served. The battery charge was dismissed. The minor remained a ward of the court and was to be placed at the Trinity Ukiah residential facility if a bed became available. He was released to Trinity on November 26, 2008.

On February 4, 2009, a petition was filed pursuant to Welfare and Institutions Code section 777 alleging that the minor had violated his probation by failing to engage in programming while at Trinity. On April 1, 2009, defense counsel declared a doubt as to the minor's competency and juvenile court proceedings were suspended. The next day, the court appointed a psychologist, Dr. Leonard Donk, to evaluate the minor. He initially concluded that the minor was competent. Two psychologists retained by the defense, Dr. Rahn Minagawa and Dr. Brian Abbott, concluded the minor was not competent. After reviewing the reports by Drs. Minagawa and Abbott, Dr. Donk also concluded that the minor was not competent.

On April 20, 2009, the matter was continued for setting of a contested competency hearing. On June 19, 2009, successor counsel for the minor filed a "Motion to Set Aside Petition and Findings Due to Lack of Competency Pursuant to Welfare and Institutions Code § 782."

On June 23 and July 20, 2009, a hearing was held on the minor's competency and successor counsel's motion. All three doctors testified, and their reports were admitted into evidence. Following argument, the court took the matter under submission. On July 24, 2009, the court issued its decision in a written "Order After Competency Hearing." The court found the minor incompetent to stand trial on the probation violation petition. The court denied without prejudice the motion to set aside the two delinquency petitions and findings on the grounds that the minor was incompetent at the time he admitted them. The court found that there was "a presumption [the minor] was competent until the contrary is proved" and left it to the moving party "to determine if [the minor] can overcome the presumption of competency on Petitions A and B."

On August 18, 2009 the court ordered the Chief of the Probation Department to "attempt to restore [the minor's] competence" by finding him appropriate services and placement. The minor was eventually placed with the Eastfield Ming Quong Families First.

STATEMENT OF FACTS

According to a Santa Clara Police Department report dated July 20, 2008, the minor was at a neighbor's house playing with the neighbor's son. The neighbor found the minor and her four-year old daughter inside a dog house in the backyard. She told the minor to leave and questioned her daughter, who said they had been playing "house" and the minor kissed her on the lips and touched her "pee-pee" on the "inside."

According to a Gilroy Police Department report dated September 9, 2009, the minor became angry when he could not use the "quiet room" at the Children's home. He tore apart his closet/dresser and broke two windows in his bedroom. The cost of replacement was estimated to be over $600.

DISCUSSION

Appointed counsel filed a Wende brief in this court. We asked counsel to brief several questions related to the court's findings that the minor was competent to stand trial at the time he admitted felony sexual assault and vandalism charges. Counsel has informed us that on August 12, 2010, the trial court reconsidered its previous ruling on the minor's motion, which it had denied without prejudice, and ruled that the minor was incompetent at the time he admitted the delinquency petitions and suspended proceedings in both petitions. We have reviewed the Juvenile Court minute order attached as an exhibit to counsel's letter, which he has declared on information and belief under penalty of perjury is a true and accurate copy of the Juvenile Court's order. The court's revised ruling has rendered moot the two questions on which this court requested supplemental briefing.

Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record on appeal and we have discovered no issues pertaining to the court's ruling that the minor was not competent to be tried on the probation violation petition. The minor was afforded a full hearing on that issue at which the experts were examined and cross-examined. The record on appeal also does not disclose any error in the court's disposition of this matter. We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: Premo, Acting P.J. Elia, J.

20101213

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