In re Anthony N. CA5

California Court of Appeal Jul 18, 2013 No. F066247Unpublished

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Holding. The court held that sufficient evidence supported the finding that the appellant resisted, delayed, or obstructed a peace officer, and that any variance between the pleading and the proof was immaterial and forfeited by the failure to object at trial.

Issues

Whether there was sufficient evidence to support the finding that the appellant violated Penal Code section 148, subdivision (a)(1).
Whether the evidence was insufficient because the officer named in the petition was not present at the time of the arrest.
Whether the appellant forfeited the right to object to a variance between the pleading and the proof.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since Anthony did not object to variance between the petition and the proof at his jurisdictional hearing, he forfeited his right to raise this issue on appeal.”

“Anthony has failed to show or even assert that he was prejudiced by the variance.”

Filed 7/18/13 In re Anthony N. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ANTHONY N., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, F066247

Plaintiff and Respondent, (Super. Ct. No. 511564)

v. ANTHONY N., OPINION

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D. Siefkin, Judge. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Cornell, Acting P.J., Franson, J., and Peña, J.

On September 25, 2012, the court sustained allegations in a petition (Welf. & Inst. Code, § 602) charging appellant, Anthony N., with resisting arrest (Pen. Code, § 148, subd. (a)(1)). On October 25, 2012, the court adjudged appellant a ward of the court and placed him on probation. On appeal, Anthony contends there is insufficient evidence to support the court’s finding that he violated Penal Code section 148, subdivision (a)(1). We affirm. FACTS The Prosecution Case On March 5, 2012, at approximately 5:45 p.m., Modesto Police Officer Daniel Starr was on patrol traveling south on Sutter Avenue south of Rouse Avenue when he heard three to five gunshots. A few seconds later a black Lexus traveling slowly, north on Sutter Avenue passed him. Officer Starr heard another gunshot and saw a large amount of dust and debris “kick up” next to the driver’s window of the Lexus, which caused him to believe that one of the Lexus’s occupants fired a gun. Officer Starr made a U-turn and radioed dispatch that he had just observed a drive-by shooting. He followed the Lexus with his siren and emergency lights on as it ran two stop signs, turned right (east) on Rouse Avenue and traveled past Colorado Avenue before stopping next to a barn-like building located on the south side of the street. After the Lexus’s driver and passenger exited the car, the passenger ran southbound, jumped over a chain-link fence, and ran away. The driver, whom Officer Starr identified in court as Anthony, appeared confused, disobeyed Officer Starr’s commands to get on the ground, and jumped over the same chain-link fence. However, after the driver climbed back over the fence, Officer Starr pointed his gun at him and ordered him to raise his hands and get on the ground. This time, the driver obeyed and

In re Anthony N. CA5

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THE PEOPLE, F066247

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