In re Thomas H. CA1/2

Filed 6/27/14 In re Thomas H. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

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

THE PEOPLE, Plaintiff and Respondent, v. A139248 THOMAS H., (Alameda County Defendant and Appellant. Super. Ct. No. SJ12018653)

Thomas H. appeals from juvenile court orders finding he committed a robbery while personally using a firearm. He contends the court violated his constitutional right to confrontation by admitting the pretrial statement of an accused co-responsible in the alleged offense. We affirm. STATEMENT OF THE CASE On May 14, 2013, a wardship petition was filed alleging that 16-year-old appellant, already a ward of the court,1 had committed a robbery (Pen. Code, § 211) while personally using a firearm (Pen. Code, § 12022.53, subd. (b)). The petition was subsequently amended to add a second count alleging possession of a firearm in a school zone (Pen. Code, § 626.9, subd. (b)).

1 Appellant had two previously sustained wardship petitions for burglary (Pen. Code, § 459), from May and July 2012.

1

The jurisdictional hearing began on June 12. The court denied appellant’s motion to exclude statements made to the police by M.E., who was charged in the same incident and a subject of the same jurisdictional hearing. On June 14, the court found true the allegations of robbery and personal use of a firearm. It made no finding on the allegation of possession of a firearm in a school zone. On June 28, the court continued appellant as a ward and committed him to the custody of the probation officer for placement in a suitable foster home or facility. The maximum time of confinement, for the current and previously sustained petitions, was found to be 17 years and eight months. Appellant filed a timely notice of appeal on July 12, 2013. STATEMENT OF FACTS Sixteen-year-old Jesse E. testified at the jurisdictional hearing that on May 13, 2013, after his first period class at Oakland High School, he met up with appellant, M.E. and Charles S. to “go see about a gun” for his friend “John,” who did not go to that school. On a prior occasion, Jesse had told appellant he knew someone who was trying to get a gun when appellant showed him a “grayish” revolver about six inches long. The four walked to the bathroom in the cafeteria. In the bathroom, Jesse was standing two or three feet from appellant, by the stalls, and the others were standing four or five feet away. Appellant pulled a gun from his “side waist,” cocked it and held it to Jesse’s chest with his right hand while going through Jesse’s jacket pockets with his left hand. M.E. went through Jesse’s pants pockets, pulling them inside out. They took from Jesse $11 (two $5 bills and a $1 bill), his phone (a “Cool Pad, Metro”), headphones, and a chapstick. Jesse was scared, thinking he might be killed if he resisted. The three left through one door to the bathroom and Jesse went out the other door. In a video recording played for the court, Jesse identified himself, appellant, M.E. and Charles walking into the bathroom at 9:30:53 a.m. Jesse’s pockets were “in” and his jacket was zipped up. Another segment of the video, time stamped 9:31:55, showed Jesse leaving the bathroom with his jacket zipped down and his pants pockets pulled out.