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In Re D.L., A Person Coming Under the Juvenile Court Law. v. D.L

December 6, 2010

IN RE D.L., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
D.L., DEFENDANT AND APPELLANT.



The opinion of the court was delivered by: Butz, J.

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The minor, D.L., appeals from the juvenile court's dispositional order following a contested hearing that committed him to the San Joaquin County Camp. He contends there was insufficient evidence to sustain the allegations of possession of stolen property, street terrorism, and the criminal street gang enhancement. (Pen. Code, §§ 496, subd. (a), 186.22, subds. (a) & (b)(1).)*fn1 He also contends, and the People agree, there are errors in the calculation of the maximum period of confinement. We shall reverse the true finding for street terrorism and remand for recalculation of the maximum period of confinement.

FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 2009, Sergeant Patrick Withrow was on patrol in Lathrop, California, in an area known to be frequented by gang members. Curfew in the area is 11:00 p.m. About 12:45 a.m., Withrow noticed a group of people standing around a car that was parked in front of the Washburne residence.*fn2 Patrick and Miguel Washburne, who lived in that house, were documented Norteno gang associates and the house was known for gang activity.

Sergeant Withrow turned his spotlight in the minor's direction and saw the minor standing next to the car. He knew the minor and knew the minor was on probation. The minor looked surprised and nervous and began to walk toward the house and then walk back to the car. Withrow then saw the minor pull up the side of his shirt and withdraw something metallic from the waistband. The minor then crouched down and Withrow heard what sounded like a gun hitting the asphalt.

Sergeant Withrow called the minor over, and the person the minor had been standing next to walked toward the house. The minor was dressed in blue jeans, a white T-shirt and a red-and-white baseball hat. After patting down the minor, Withrow went over to the car and, under the car where the minor had crouched down, Withrow found a loaded nine-millimeter handgun. The nine-millimeter handgun had been stolen a few years earlier from Eric Perez, who is the father of the minor's classmate. Perez talked to his daughter, the minor's classmate, about the stolen gun. Prior to the gun being stolen, Perez had come home to find the minor on his property on a few occasions and had ordered him to leave. The minor and one of his friends, documented Norteno gang member Jose Rodriguez, had been questioned after the theft. Rodriguez admitting knowing the gun was at Perez's house and that he had played with it, but both Rodriguez and the minor denied taking the gun. When Withrow recovered the gun, there were scratches over the serial number.

When the minor was searched and taken into custody, he had 2.76 grams of marijuana in his front pocket, equally distributed in five small baggies. He did not have a smoking device, and no indicia of marijuana was found in the vehicle. The minor was on probation and had been ordered not to associate with gang members or wear indicia of gang involvement.

Sergeant Withrow obtained identification from the two individuals in the car. The driver was Jenet Alyarado, who was unknown to the officer. One of the passengers was Darnel Tucker, a documented Norteno associate. The other passenger was Rochelle Booker, also a documented Norteno associate.

The minor is an admitted, active, and documented Norteno gang member. He has previously admitted to a 2008 gang-related assault, wherein he and two other Norteno gang members went to a Sureno gang member's house and threw rocks at the Sureno gang member and his mother. He has repeatedly been found in the company of Norteno gang members, including Rodriguez. Rodriguez has previously admitted to committing a gang-related robbery.

Deputy Ryan Biedermann, a gang expert, testified that the majority of Nortenos in Lathrop have no legitimate job. The gang supports itself by selling illegal narcotics and committing thefts and burglaries within the city. Some Nortenos, including one of the minor's closest friends, have been involved in possessing, using, or selling marijuana. The Lathrop Nortenos are very violent, committing crimes including robbery, assault with a deadly weapon, drive-by shootings, stabbings, possession of narcotics for sale, burglary, carjacking, and possession of firearms. They "rule the streets" through fear and intimidation, and arm themselves with firearms to further the intimidation. Possession of firearms by Nortenos not only facilitates their criminal activities and ability to intimidate, but increases their status within the gang. Additionally, it is common for drug dealers to carry firearms.

An amended wardship petition alleged the minor committed the following offenses: felony possession of a firearm (Pen. Code, § 12101, subd. (a)(1)--count 1); misdemeanor possession of ammunition (id., § 12101, subd. (b)(1)--count 2); felony possession of stolen property (id., § 496, subd. (a)--count 3); felony possession of marijuana for sale (Health & Saf. Code, § 11359--count 4); misdemeanor possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2)--count 5); and felony street terrorism (id., § 186.22, subd. (a)--count 6). It was alleged that counts 1, 4 and 5 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that during the commission of count 4, the minor was armed with a firearm (§ 12022, subd. (a)(1)).

Following the contested hearing, the juvenile court sustained all alleged counts, except count 4 where the court determined the minor had committed simple possession of marijuana (Health & Saf. Code, § 11357) rather than possession for sale. The court found the gang enhancement alleged as to count 1 to be true (§ 186.22, subd. (b)(1)), but found the gang and gun-use enhancements alleged as to count 4 not true and dismissed the gang enhancement as to count 5. The maximum period of confinement was eight years.

In discussing its findings, the juvenile court found the evidence compelling and overwhelming that the minor possessed a firearm, knew it to be stolen, and possessed it for the benefit of a criminal street gang in connection with count 1. With respect to the possession of marijuana, the court found it "just as likely that [the minor] purchased the marijuana from the people in the car as he was going to sell it to them." Thus, the court found the minor had possessed it, but did not find beyond a reasonable doubt that he possessed it for sale or that the gang enhancement allegation had been proved in ...


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