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In Re Michael W., A Person Coming Under the Juvenile Court Law. v. Michael W

November 29, 2011

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



(Super. Ct. No. 59917)

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

In re Michael W.

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 juvenile court sustained three petitions alleging that Michael W.*fn1 (born 1991) was a delinquent minor who had committed offenses bringing him within its jurisdiction (and aggregated previously sustained petitions to increase his maximum term of confinement): the first petition (as is pertinent) alleged he both possessed controlled substances and possessed them for sale (with gang enhancements of both), and knowingly participated in a criminal gang in March 2009; the other two (as is pertinent) alleged he committed forcible sexual offenses involving his 13-year-old girlfriend in June and August 2007. The juvenile court held a combined dispositional hearing in November 2009*fn2 and committed the delinquent to the Division of Juvenile Justice (DJJ)*fn3 for a maximum period of confinement of 59 years (recognizing that DJJ could not hold him past his 25th birthday).

On appeal, the delinquent makes the entwined arguments that the juvenile court erred in admitting expert testimony, and that the evidence otherwise is insufficient to support findings he committed the drug offenses with the specific intent to benefit a criminal gang, or actively and knowingly participated in the criminal gang. In supplementary briefing, he also argues that he was entitled to a jury trial because the serious, lifelong consequences of his adjudications for the sexual offenses are akin to punishment for an adult defendant. We shall affirm.

FACTS

On patrol in Lathrop, a deputy saw the delinquent walking on the street (whom he knew was on probation), and decided to stop him to conduct a search. The delinquent was about one-half block from a house that he frequented where a well-known gang member named Villalobos lived. The deputy had just seen several people in front of that home, including Villalobos and another well-known gang member named Johnson.

In the search, the deputy found a clear package containing more than 20 pills in the delinquent's front pants pocket, who claimed he had obtained them in Stockton and had just arrived on the bus to deliver them to people at the Villalobos residence, after which he was going fishing with them. The content of the pills was a mix of both methamphetamine and the controlled substance commonly known as "Ecstasy."

The delinquent fled as another deputy began to handcuff him. Recapturing the delinquent and taking him into custody, the deputies retrieved a cell phone and a red bandana from his pockets. On the phone was a text message from Johnson stating, "I thought you were dipping on me and I just copped on 28 pills."*fn4 There was also a record of a nearly three-minute phone call to Villalobos (which, the delinquent later admitted during his interrogation, with Villalobos monitoring the flight from the deputies in order to give him advice), and a text message from a woman telling him to delete his messages and cell history. The deputy noted the contents of the cell phone of interest occurred "during the time we were actively pursuing him."

During his interrogation, the delinquent claimed the pills belonged to him and he had purchased them for $100 he had received from his grandmother. The grandmother later told the deputy that she did not give the delinquent any money. He used two to three of them every other day, and bought them in bulk every couple of weeks. He admitted that he did not have a job. He admitted his affiliation with a particular Lathrop gang, but claimed he was not formally initiated. Mentioning a heart condition, he said his doctor had advised him that the use of methamphetamine would adversely affect it.

The court accepted the deputy's qualification as a Lathrop gang expert,*fn5 and as an expert on the possession of controlled substances for sale, based on his field experience. The deputy testified about two 2009 contacts with the delinquent, when the latter was wearing attire identifying his affiliation with a particular Lathrop gang and was in the company of known members of the gang. The deputy described the indicia of this gang, based on his investigations and documentations of its members, which were present in tattoos on the delinquent. The Villalobos residence was a known gang home, based on the status of Villalobos as a member. The deputy asserted that a primary activity of the gang was engaging in sales of controlled substances, although he did not expressly specify the factual basis for this conclusion. He also testified about a robbery and an assault that two of its members had committed as predicate crimes in furtherance of the gang's activities.

The deputy believed the delinquent was an active member of the gang, based on prior contacts, the delinquent's association with "flamboyant" members of the gang, tattoos, and his self-identification. Over defense counsel's objection, he offered his opinion that the delinquent's offense was gang-related because it would benefit and further the gang, claiming that the delinquent and the majority of his gang associates did not have legitimate jobs and needed to derive income from the sale of controlled substances. Locations at which the delinquent had spent time were addresses where "the primary cause of service by the Lathrop Police" was reports of drug sales, and at which gang members had been ...


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