Opinion
G039837
9-3-2008
In re EDWIN M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. EDWIN M., Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published
Edwin M. (minor) appeals from an order declaring him a person coming under Welfare and Institutions Code section 602. A petition alleged Edwin violated Health and Safety Code section 11351.5 (possession for sale of cocaine base; count 1) and Penal Code section 186.22, subdivision (a) (active participation in the Townsend Street criminal street gang; count 2), and further alleged that he committed count 1 "for the benefit of, at the direction of, or in association with" the Townsend Street criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).
At trial, Santa Ana Police Officer Arturo Castorena testified that as he and Officer McClaskey were patrolling Townsend Street in Santa Ana, an area known for its active drug trade and as the Townsend Street gangs claimed turf, they saw an individual crouch down behind a wrought iron fence. Officer Castorena knew drug dealers on Townsend Street frequently hide their stash and money near fences or cars to avoid apprehension. As the officers drove closer to the person, they saw him stand and toss something toward a nearby grassy area. The officers detained the person, later identified as Edwin, for littering. A search of Edwins person yielded $83 and two tickets to the Orange County Fair. A search of the area where Edwin had crouched down yielded a single rock of cocaine base, valued at $10. However, in the nearby grassy area, the officers found a clear plastic Ziploc baggie containing five small pieces and one larger wafer-like piece of cocaine base. Castorena testified that he found approximately 2.6 grams of cocaine base, which would be approximately 28 doses and worth approximately $260.
Officer Castorena testified as the prosecutions drug recognition expert and as the prosecutions gang expert. The foundation for his testimony in both areas is adequately set forth in the record. With respect to Castorenas experience with criminal street gangs, he testified that the Townsend Street gang claimed the area where Edwin was arrested in possession of cocaine base. He testified to two predicate offenses and otherwise established that Townsend Street fits the statutory definition of a criminal street gang.
Castorena searched for records indicating that Edwin was a member of this gang. He found two STEP notices, field interview cards, and a missing persons report for Edwin. Castorena stated that once Edwin told a police officer that he was not a member of Townsend Street, but that he backs up Townsend Street. Castorena testified that Edwin does not live on Townsend Street, although Edwin explained to the arresting officers that he was on Townsend Street to visit his girlfriend.
Edwin testified on his own behalf. He admitted coming to Townsend Street to purchase cocaine base. However, he claimed the cocaine base discovered by the officers did not belong to him. Edwin denied membership in the Townsend Street gang, and he does not have any gang-related tattoos or a gang moniker. Officer Castorena admitted there was no evidence Edwin possessed one of the gangs signature blue bandanas, that he associated with Townsend Street gang members, or that he knew any of the older members of that gang. Further, Edwin did not specifically say he backed up Townsend Street. He was quoted saying, "he would back up his Townsend Street friends in a fight, if asked to do so."
The court found sufficient evidence of possession of cocaine base for sale and that the sale benefitted or otherwise supported the Townsend Street criminal street gang. However, the court rejected Castorenas expert opinion testimony that Edwin was an active participant in the Townsend Street gang, relying on the absence of evidence Edwin had any gang tattoos, a gang moniker, or associated with other Townsend Street gang members. Thus, the court sustained count 1 of the petition and found true the gang enhancement, but did not sustain count 2. The court placed Edwin on supervised probation and ordered him to serve 180 days in a juvenile facility as a condition of probation. Ultimately, Edwin served less than the full 180 days because he performed very well at the juvenile facility.
Edwin appealed from the judgment, and upon his request this court appointed counsel to represent him. Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, which set forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record. We granted Edwin the opportunity to file a supplemental brief on his own behalf, but we received nothing from him and the time to file such a brief has passed. We have concluded our independent review of the record and find no arguable issues for appeal.
DISPOSITION
The judgment is affirmed.
We concur:
FYBEL, J.
IKOLA, J. --------------- Notes: The parties stipulated the Ziploc baggie contained a net weight of 1.27 grams of cocaine base, and "[t]he loose off-white substance contained net weight of 04.24 grams of cocaine base." There is no explanation for the discrepancy between Officer Castorenas testimony and the parties stipulation. Based on our review of the record, this unexplained discrepancy is immaterial to the validity of the judgment.