Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 09CEJ600709-2 David Kalemkarian, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J.; Cornell, J.; and Gomes, J.
INTRODUCTION
In a juvenile court criminal proceeding held on December 17, 2009, appellant A.R. admitted one count of assault by means likely to produce great bodily injury. He also admitted a great bodily injury allegation attached to this offense. (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a).) The prosecutor dismissed the remaining charges and special allegations contained in the petition that was filed on November 23, 2009, but reserved the right to comment and restitution. The maximum period of confinement was set at eight years and four months (MPC). At the disposition hearing held on January 27, 2010, appellant was committed for the MPC to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice. He was ordered to register with local law enforcement as a gang member upon release. (§ 186.30.)
Unless otherwise specified all statutory references are to the Penal Code.
A previously sustained petition for committing a residential burglary was aggregated.
Appellant argues the registration requirement must be reversed because the People did not adequately prove the gang relatedness of the assault. Respondent concedes the insufficiency of evidence. Citing our decision in In re Jorge G. (2004) 117 Cal.App.4th 931 (Jorge G.), respondent argues the matter should be remanded to the juvenile court for a new disposition hearing on the question of gang relatedness. We accept respondent’s concession and agree that remand is the appropriate remedy. (Id. at p. 946.)
The statement of facts is derived from the probation report.
On November 6, 2009, appellant and approximately eight or nine other males attacked the victim while he was walking home from the supermarket. They struck the victim and knocked him to the ground. Then they hit and kicked him on the head, face and back. The victim’s wallet, which contained $48, and his cell phone, were stolen. The victim suffered injuries to his face and head. The victim reported losing consciousness for 30 minutes.
When appellant was arrested, he admitted hitting the victim with his fists six times. He said that another member of the group took the victim’s wallet and cell phone. Appellant admitted being a member of the Huron Parkside Norteno gang and stated that he “‘put in work’” for this gang by fighting rival gang members.
The probation report recommended the assault be found gang related pursuant to section 186.30, subdivision (b)(3), as follows: “The minor has admitted to active ‘Norteno’ gang membership for over the last past two years. After reviewing the police report, your officer is of the opinion that the instant offense was a gang related offense.”
During the disposition hearing, defense counsel argued there were no facts proving the assault was committed for the benefit of a gang or that it was gang related. The prosecutor pointed to appellant’s admission of his status as an active gang member and his statement that he put in work for the gang as proof of gang relatedness. When imposing the gang registration requirement, the court stated that it “does specifically find that the facts and circumstances of this case warrant such registration.”
DISCUSSION
Section 186.30 provides that any person convicted in a criminal court or who has had a petition sustained in a juvenile court for one of three specified types of crime shall register with the local law enforcement agency as a criminal street gang member. In relevant part, the crimes specified in this statute include “[a]ny crime that the court finds is gang related at the time of sentencing.” (§ 186.30, subd. (b)(3).) If any of the three specified conditions are found to exist, a gang registration order is mandatory. (People v. Martinez (2004) 116 Cal.App.4th 753, 759 (Martinez).)
While a court may consider the appellant’s criminal history and gang affiliation when determining if an offense is gang related, it may not rely solely on these factors. (Martinez, supra, 116 Cal.App.4th at p. 762.) In Jorge G., supra, 117 Cal.App.4th 931, we held that five elements must be proved to support a finding that a crime is gang related within the meaning of section 186.30, subdivision (b)(3):
“A crime is gang related if it is related to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of: (a) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons.” (Jorge G., supra, 117 Cal.App.4th at p. 944.)
Respondent concedes that the People did not satisfy their evidentiary burden of proving all of these required elements. We have examined the record and accept this concession as properly made.
We turn to the question of remedy. Jorge G., supra, 117 Cal.App.4th 944 determined that remand for a new disposition hearing during which the People can present evidence proving the gang relatedness is the appropriate remedy when a section 186.30 registration requirement has not been adequately proved. (Id. at pp. 946-947.) It explained that a second dispositional hearing would not violate the prohibition against double jeopardy. (See People v. Monge (1997) 16 Cal.4th 826, 845 & Monge v. California (1998) 524 U.S. 721, 729.) Also, imposition of the registration requirement upon remand would not be prevented by the doctrines of res judicata, collateral estoppel, or law of the case. (See People v. Barragan (2004) 32 Cal.4th 236, 253-254.)
Appellant argues remand would be unfair. We are not convinced. Having considered all of the facts in this matter -- including the degree of danger appellant presents to society, the circumstances of the assault and the procedural history -- we do not believe that remand would be unjust.
Following and applying Jorge G., supra, 117 Cal.Appp.4th 944, the registration requirement will be reversed and the matter remanded for a new dispositional hearing during which evidence may be presented on the question of gang relatedness. If the People prove all of the elements necessary to establish that the assault was gang related within the meaning of section 186.30, subdivision (b)(3), then the juvenile court shall reimpose the registration requirement.
DISPOSITION
The order requiring appellant to register as a gang member pursuant to section 186.30 is reversed. In all other respects, the judgment is affirmed. The case is remanded to the juvenile court for a new dispositional hearing.