Filed 10/3/13 In re S.H. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


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


In re S.H., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,                                                                            F067004

         Plaintiff and Respondent,                                        (Super. Ct. No. JL004137)

                   v.
S.H.,                                                                                OPINION

Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. David W.
Moranda, Judge.
         J. Wilder Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.

                                                        -ooOoo-

*        Before Levy, Acting P.J., Detjen, J., and Peña, J.
       The court adjudged appellant, S.H., a ward of the court (Welf. & Inst. Code,
§ 602)1 after it found true allegations charging appellant with one count of committing
lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288,
subd. (a)). Following independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436, we affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       In January 2010, while visiting his legal guardian’s relatives in Orange County,
appellant put his hand down the pants of a five-year-old girl and felt her genital area.
       On August 27, 2010, the Orange County District Attorney filed a petition charging
appellant with one count of lewd and lascivious conduct with a child under the age of 14.
       On September 10, 2010, the district attorney filed a notice that appellant was
eligible for deferred entry of judgment (DEJ/§ 790). On November 8, 2010, the
probation department filed a report with the court recommending that appellant be found
unsuitable for DEJ and that the case be transferred to Merced County for disposition
because appellant and his family lived there.
       On November 15, 2010, the Orange County Juvenile Court found appellant
unsuitable for DEJ because he lived out of the county and it transferred the case to
Merced County.
       On September 27, 2011, following a contested jurisdictional hearing, the court
sustained the lewd and lascivious conduct charge.
       On November 17, 2011, the Merced County Juvenile Court adjudged appellant a
ward of the court and committed him to the Bear Creek Academy.
       On December 8, 2011, appellant filed a timely appeal.


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                              2
       On February 21, 2012, appellant admitted a charge of vandalism (Pen. Code,
§ 594(b)(2)(A)) and allegations that he violated his probation (§ 777) that were contained
in a subsequent petition.
       In an unpublished opinion filed on December 5, 2012, this court found that the
Orange County Juvenile Court improperly used appellant’s county of residence as a
factor to determine that he was not suitable for DEJ. We also set aside the jurisdictional
and dispositional orders and remanded the case to the juvenile court to determine whether
appellant is suitable for DEJ and for the court to issue appropriate orders depending on its
determination. (People v. S.H. (Dec. 5, 2012, F064014) [nonpub. opn.].)
       On February 21, 2013, the probation department filed a report recommending
against a grant of DEJ based on several factors including: appellant’s mental health
issues which required that he receive specialized counseling in a more structured setting
and a level of treatment that exceed what could be provided through a grant of DEJ; the
inability of appellant’s guardians to properly deal with appellant’s mental health issues;
the guardians’ minimization of appellant’s culpability for the assault on the victim; and
the circumstances of appellant’s offense.
       On February 26, 2013, the court granted appellant’s Marsden2 motion and
appointed substitute counsel in place of the public defender.
       At a hearing on March 19, 2013, the court cited appellant’s history of mental
health issues since he was seven years old and the inability of his guardians to deal with
these issues in finding appellant unsuitable for DEJ. Additionally, at this hearing
appellant admitted violating his probation by leaving his placement without permission.
       On March 26, 2013, appellant filed an appeal challenging the court’s finding that
he was not suitable for DEJ.

2      People v. Marsden (1970) 2 Cal.3d 118.


                                             3
       Appellant’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) Appellant has not responded to this
court’s invitation to submit additional briefing.
       Following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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