Filed 2/5/16 In re Frank M. CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re FRANK M., a Person Coming Under
the Juvenile Court Law.
                                                                 D068469
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J237104)

         v.

FRANK M.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Browder

A. Willis III, Judge. Affirmed.

         Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.
       Defendant Frank M.'s appointed appellate counsel has filed a brief asking this

court to independently review the record for error as mandated by People v. Wende

(1979) 25 Cal.3d 436 (Wende). We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       During the afternoon of May 4, 2015, Frank M. and his father became involved in

an argument that ended up with an altercation. Frank M.'s father pushed Frank M. and

held him to the ground. When he let go, Frank M. grabbed a steak knife from the kitchen

and swung it at his father. Frank M.'s father grabbed a car seat to protect himself, but

Frank M. continued swinging the knife and cut his father's thumb with it. The father

suffered a one-inch laceration on his thumb, which the father described as "more like a

fingernail scratch."

       This appeal arises out of a Welfare and Institutions Code section 602 juvenile

delinquency proceeding in which the amended petition alleged in count 1 that Frank M.

assaulted his father with a deadly weapon or instrument (Pen. Code, § 245, subd. (a)(1)),

and also alleged that in committing that offense he personally used a deadly weapon

(Pen. Code, § 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (Pen.

Code, § 12022.7, subd. (a).) In count 2, the amended petition alleged that Frank M.

committed a battery resulting in the infliction of serious bodily injury (Pen. Code, § 243,

subdivision (d)), a misdemeanor under Penal Code section 17, subdivision (b)(4).

       At the June 2015 readiness hearing, Frank M. admitted the misdemeanor battery

offense charged in count 2 in exchange for the dismissal of the count 1 felony charge and



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the related allegation with a Harvey waiver.1 The court accepted the admission, finding

that Frank M. gave it freely and voluntarily and that there was both a factual basis for the

admission and substantial evidence that would support an argument that Frank M. acted

in self-defense.

       At the disposition hearing held on July 9, 2015, the court declared Frank M. a

ward of the court, placed him on probation for one year, and placed him in his mother's

home. The defense objected to certain terms proposed by the probation department,

including three gang-related conditions on the ground there was no evidence that the

minor is associated with a street gang. Frank M.'s father acknowledged his older son was

actively "hanging out" with a gang (Vista Home Boys).

       The court overruled the objections and imposed the following three pertinent

probation conditions: (1) "The minor shall not wear any item of clothing such as a hat,

bandanna, badge, logo, jewelry, or possess any gang paraphernalia including photos or

graffiti, or use a hand sign or name that the minor knows or reasonably should know

identifies the minor with VISTA HOME BOYS gang, or any other known gang"; (2)

"The minor shall not knowingly associate with or be in the company of any person the

minor knows or reasonably should know is a member of VISTA HOME BOYS, or any

other known criminal street gang or any person the probation officer informs the minor is

affiliated with, or a member of, a criminal street gang. The minor shall not knowingly


1      People v. Harvey (1979) 25 Cal.3d 754. A Harvey waiver permits a sentencing
court to consider counts that were dismissed under a plea bargain and were
transactionally related to the admitted offense. (Id. at pp. 758-759; see also 3 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 658, pp. 1058-1059.)
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visit or remain in any specific location which the minors knows to be or, or which the

probation officer has informed the minor is, an area of criminal street gang activity. The

minor shall not knowingly use a hand sign that the minor knows or reasonably should

know identifies the minor with the VISTA HOME BOYS gang, or any other known

criminal street gang. EXCEPTION: MINOR'S OLDER BROTHER"; and (3) "The

minor shall not knowingly possess, wear, or display any clothing or insignia, such as a

tattoo, emblem, badge, cap, hat, bandanna, logo, jewelry, or possess any gang

paraphernalia including photos or graffiti that the minor knows or reasonably should

know, or that the probation officer has informed the minor, is evidence of affiliation with

or membership in the above named gang, or any other criminal street gang. For purposes

of these probation conditions, the words 'gang' and 'gang-related' mean a 'criminal street

gang' as defined in Penal Code section 186.22, subdivision (f). EXCEPTION: MINOR'S

OLDER BROTHER."

       The court also ordered Frank M. to pay a $60 fine under to Welfare and

Institutions Code section 730.5, and held Frank M. and his parents jointly and severally

liable for a $50 restitution fine under Welfare and Institutions Code section 730.6.

                                      DISCUSSION

       Frank M.'s appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d

436, and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the

proceedings below and indicating she was unable to find any reasonably arguable issues

for reversal or modification of the judgment on appeal. Frank M.'s counsel has identified



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the validity and constitutionality of the gang-related probation conditions as possible, but

not arguable, issues under Anders.

       We granted Frank M. permission to file a brief on his own behalf. He has not

responded.

       We have independently reviewed the record under Wende and considered the

possible issues identified by Frank M.'s counsel. We have found no reasonably arguable

issues for reversal or modification of the judgment. Accordingly, we affirm the

judgment. Frank M.'s appellate counsel has competently represented him in this appeal.

                                      DISPOSITION

       The judgment is affirmed.



                                                                                 NARES, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




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