In re Muhammad A. CA5 ( 2014 )

Filed 11/7/14 In re Muhammad A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 MUHAMMAD A., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE, F068728
Plaintiff and Respondent, (Super. Ct. No. 13CEJ600482-1)
v.
OPINION
MUHAMMAD A.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Timothy
Kams, Judge.
Randall Conner and E. Katherine Dashiell, 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 Franson, J.
INTRODUCTION
On June 7, 2013, appellant, Muhammed A., was charged in a juvenile delinquency
petition pursuant to Welfare and Institutions Code section 602 with felony second-degree
robbery (Pen. Code, § 211, count 1)1 and misdemeanor assault by means likely to cause
great bodily injury (§ 245, subd. (a)(4), count 2). On September 25, 2013, the juvenile
court found the allegations true at the conclusion of a jurisdiction hearing as to appellant
and a second juvenile, Q.M.
On November 13, 2013, the prosecution filed a subsequent juvenile petition
alleging two felony counts that on November 10, 2013, appellant unlawfully drove or
took a vehicle (Veh. Code, § 10851, subd. (a), count 1) and received a stolen motor
vehicle (§ 496d, subd. (a), count 2). On November 14, 2013, appellant admitted count 2
and the court dismissed count 1.
At the joint disposition hearing on both petitions, the juvenile court granted the
prosecutor’s motion to dismiss the subsequent petition filed on November 13, 2013. On
the original petition, the juvenile court found appellant to be a ward, placed him on
probation for one year upon various terms and conditions, and ordered his detention in
the Fresno County Juvenile Justice Campus for 180 days. The court found count 1 to be
a felony and count 2 to be a misdemeanor. Appellant was granted 75 days of custody
credits.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende).
FACTS
Rosalino Zarate owned a green bicycle. At approximately 4:30 p.m. on June 4,
2013, Zarate rode his green bicycle to Quigley Park in Fresno on the corner of Dakota
and Teilman. Six young black males surrounded Zarate at the park and grabbed Zarate’s
1 Unless otherwise designated, statutory references are to the Penal Code.
2.
bicycle. One of the suspects, Q.M., displayed a handgun in his waistband. Three of the
males stood close to Zarate while the other three took Zarate’s bicycle. Appellant was
part of the group. Zarate had his hands on the bicycle until Q.M. showed him the gun.
All six suspects left the scene with Zarate’s bicycle. Zarate called police.
On the afternoon of June 5, 2013, Zarate walked towards park. Q.M., appellant,
and a third suspect approached Zarate near the intersection of West Dakota Avenue and
North West Avenue. Appellant, who rode Zarate’s bicycle, dismounted and said “here
comes the guy from the bike.” All three males hit Zarate. Q.M. threw Zarate to the
ground and all three males started kicking him.
Janet McElroy stopped her vehicle near the three attackers. Another car also
stopped and the driver said something to the attackers and they walked away. McElroy
got back into her car, stopped, and told the attackers to leave Zarate alone and to return
his bicycle to him. One of the suspects told McElroy that the bicycle belonged to him,
not to Zarate. Zarate entered McElroy’s vehicle. McElroy followed the suspects, who
fled with Zarate’s bicycle, and drove to a nearby police station. She called the police
from across the street of the station, keeping an eye on the attackers as they walked down
the street.
McElroy recognized the suspects as the same persons who had assaulted Zarate.
A police officer detained the suspects. Zarate identified the suspects as the persons who
had assaulted him.
Fresno Police Department Officer Pat Mares questioned Q.M. and appellant
following their arrest. Mares advised Q.M. of his Miranda2 rights. Q.M. said he was
present during the robbery but denied participating in it or possessing a gun. Q.M. said
that a Caucasian male named Marzulo had used a gun to rob Zarate. Q.M. then said he
possessed a “fake gun” on the Sunday prior to the robbery, but not on the date of the
2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3.
robbery. Q.M. said that a Hispanic juvenile named Sanchez used a gun to rob Zarate.
Q.M. was aware that the bicycle appellant was riding was stolen.
Regarding the assault on Zarate on June 5, 2013, Q.M. said that Zarate had
attempted to seize the bicycle from appellant. A third party, unrelated to the robbery on
the previous day, who mistook Zarate for a bicycle thief, had confronted him. Q.M.
denied using any force against Zarate.
Mares also gave appellant his Miranda rights and questioned him. Appellant
admitted he was present when the bicycle was taken and again the next day. According
to appellant, the bicycle was taken by a kid. Appellant did not know his name. The
incident happened at Quigley Park on the corner of Dakota and Teilman in Fresno.
Appellant said the bicycle was taken back from Zarate because it belonged to appellant’s
uncle. Appellant claimed that on June 5, 2013, Zarate grabbed appellant off of the
bicycle and an unknown third party believed Zarate was trying to steal the bicycle.
Appellant denied any physical confrontation with appellant.
The parties stipulated that a recording and transcript of the recording of Zarate’s
call to the police on June 4, 2013, could be admitted into evidence. Zarate said that two
minors confronted him with guns. Zarate said that he could not describe the minors
because they made him turn his head away.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) By letter on May 15, 2014, we
invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
4.