Filed 7/9/15 In re Christopher C. CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re CHRISTOPHER C., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,

     Plaintiff and Respondent,                                         G051054

                v.                                                     (Super. Ct. No. DL050092)

CHRISTOPHER C.,                                                        OPINION

     Defendant and Appellant.



                     Appeal from a judgment of the Superior Court of Orange County, Lewis W.
Clapp, Judge. Affirmed.
                     Rex Adam Williams, under appointment by the Court of Appeal, for
Defendant and Appellant.
                     No appearance for Plaintiff and Respondent.
              The juvenile court declared defendant Christopher C. (minor) a ward of the
court after finding he committed two offenses with a knife—felony assault with a deadly
weapon and misdemeanor brandishing a deadly weapon. (Pen. Code, §§ 245, subd.
(a)(1), 417, subd. (a)(1).) The court committed minor to the custody of the probation
department pending suitable placement, and put him on probation.
              At the time of the offenses, then 13-year-old minor was living with his
uncle Jaime M., one of his legal guardians. In an altercation with Jaime, minor tried to
open the front door to leave the house, but Jaime blocked it and told minor he was not
allowed to leave. Minor pushed Jaime in an effort to open the front door, but Jaime
continued to block it.
              Minor went into the kitchen and Jamie walked after him. Minor came
toward Jaime holding a knife in a balled fist by his right ear, with the blade pointing away
from his body. Jaime was in the kitchen doorway and minor was in the kitchen, three or
four feet away. Minor said if Jaime did not move, he knew what minor would do.
              When Jaime moved backward, minor moved toward him and made a
downward slashing motion with the knife two or three times while the blade was pointed
at Jaime. Jaime, moved about six feet back, and out the front door. Minor followed
Jaime out of the house, threw the knife on the ground, and ran.
              We appointed counsel to represent minor on appeal. Counsel filed a brief
summarizing the proceedings and facts of the case and advised the court he found no
arguable issues to assert on minor’s behalf. (Anders v. California (1967) 386 U.S. 738;
People v. Wende (1979) 25 Cal.3d 436.)
              Counsel notified minor he could file a supplemental brief on his own
behalf. However the time to do so has passed and we have received no communication
from him.
              To assist us in our independent review of the record, counsel suggested we
consider the following issues:

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              1. Was there sufficient evidence to support the true findings of assault with
a knife and brandishing?
              2. Was there sufficient evidence minor knew the wrongfulness of his
actions within the meaning of Penal Code section 26?
              3. Did the court err in denying minor’s motion to reduce the assault to a
misdemeanor?
              4. Did the court err in denying minor’s request for a Welfare and
Institutions Code section 241.1 report?
              5. Under the accusatory pleading test, does assault with a knife include
brandishing a knife? Does brandishing a knife include assault with a knife?
              We have considered these issues and independently reviewed the entire
record according to our obligations under Anders v. California, supra, 386 U.S. 738 and
People v. Wende, supra, 25 Cal.3d 436, but found no arguable issues on appeal.
              With respect to the issues suggested by counsel:
              (1) “The same standard governs review of the sufficiency of evidence in
adult criminal cases and juvenile cases: we review the whole record in the light most
favorable to the judgment to decide whether substantial evidence supports the conviction,
so that a reasonable fact finder could find guilt beyond a reasonable doubt. [Citations.]”
(In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) Applying this standard there is
substantial evidence to support all of the elements of both offenses.
              (2) Penal Code section 26 provides in relevant part: “All persons are
capable of committing crimes except those belonging to the following classes: [¶] One--
Children under the age of 14, in the absence of clear proof that at the time of committing
the act charged against them, they knew its wrongfulness.” The court found minor was
aware of the wrongfulness of his conduct at the time the offenses were committed and
substantial evidence supports that finding.



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              (3) Nothing in the record provided to us supports counsel’s claim minor
moved to reduce the assault with a deadly weapon to a misdemeanor. At the close of the
People’s case-in-chief minor did move to dismiss the assault under Welfare and
Institutions Code section 701.1, on the grounds that it had not been proven. The court
properly denied that motion because at the close of petitioner’s case-in-chief substantial
evidence supported all of the elements of that offense.
              (4) When a minor qualifies as both a dependent and a ward of the juvenile
court, the Legislature has declared that a minor cannot simultaneously be both. (Welf. &
Inst. Code § 241.1; see In re Donald S. (1988) 206 Cal.App.3d 134.) In this case minor
was not a dependant at the time he was declared a ward. Thus, the procedures set forth in
Welfare and Institutions Code section 241.1 were not applicable.
              (5) A misdemeanor brandishing of a weapon under Penal Code section 417
is not a lesser and necessarily included offense of assault with a deadly weapon. (People
v. Escarcega (1974) 43 Cal.App.3d 391, 398.)
                                     DISPOSITION
              The judgment is affirmed.




                                                 THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




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