Opinion
NOT TO BE PUBLISHED
Received for posting 11/30/09
APPEAL from a judgment of the Superior Court of Kern County No. JW118265-01, Jon E. Stuebbe, Judge.
Donna J. Hooper, 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, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, A.P.J., Levy, J., and Cornell, J.
INTRODUCTION
On December 8, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, J.M., made a criminal threat (Pen. Code, § 422, count one) for the benefit of or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)); that appellant was actively involved with a criminal street gang (Pen. Code, § 186.22, subd. (a), count two); and appellant had violated the terms of his probation (Welf. & Inst. Code § 777(a)(2), count three). At the conclusion of a jurisdictional hearing on February 25, 2009, the juvenile court found count one, count three, and the gang enhancement true. The court found count two not true.
Unless otherwise indicated, all statutory references are to the Penal Code.
On March 12, 2009, the juvenile court found J.M. to be a ward of the court and count one to be a felony. The court continued J.M. on probation and committed him to Camp Erwin Owen. J.M. filed a timely notice of appeal. J.M. contends, and respondent concedes, there was insufficient evidence that he committed count one for the benefit of a criminal street gang.
The juvenile court did not set J.M.’s maximum term of confinement. The minute order from the disposition hearing, however, sets forth J.M.’s available confinement time at eight years eight months. The probation officer’s calculation of J.M.’s total time of confinement included five years for the gang enhancement.
FACTS
J.M. and A.R. were students at Delano High School. On October 30, 2008, J.M. was standing by a tree in the school yard with several members of the Norteño gang. As A.R. was walking to class, J.M. approached A.R. and told him, “to watch your back and to tell your scrap friends to watch their back, too, because I’m bringing a cuete tomorrow.” A.R. understood the term “cuete” to mean a gun. The word “scrap” is a derogatory reference to southerners, also known as Sureños. A.R. took J.M.’s statement as a threat and feared for his safety.
Norteños and Sureños are rival gangs. A.R. associates with members of the Sureño gang. A.R. was afraid of J.M. because J.M. had thrown gang signs in the past and told A.R. he was going to bring a gun.
Jimmie Beltran is a student affairs specialist for Delano High School. Beltran is in charge of student discipline, truancy, attendance, and school safety. Beltran testified that A.R. reported the incident. Beltran searched J.M. and his notebook. Beltran found drawings and writings in the notebook referencing to the Norteño gang.
The school resource officer for Delano High School, Lloyd Galutira, stated J.M. admitted being involved with the Delano Norteño gang. In Galutira’s opinion, J.M.’s activities were for the benefit of the Delano Norteños street gang. J.M. denied seeing A.R. walk by him and denied talking to him. J.M. denied owning a gun.
DISCUSSION
Appellant contends, and respondent concedes, that there was no evidence presented at J.M.’s hearing that the Norteño gang committed any predicate criminal offenses and engaged in a pattern of criminal gang activity. We agree and will reverse the juvenile court’s finding that the gang enhancement is true.
To establish the section 186.22, subdivision (b)(1) gang enhancement, the People must show a group is a criminal street gang within the meaning of the statute. The elements of the enhancement are: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol, (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses, and (3) the group’s member must engage in, or have engaged in, a pattern of criminal gang activity. (People v. Sengpadychith (2001) 26 Cal.4th 316, 319-320; People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley); People v. Bragg (2008) 161 Cal.App.4th 1385, 1399-1400 (Bragg).)
A pattern of criminal gang activity constitutes gang members individually or collectively committing, attempting to commit, or conspiring to commit two or more predicate offenses during a statutorily defined time period. The charged offense may serve as a predicate crime. (Gardeley, supra, 14 Cal.4th at pp. 617, 624-625; Bragg, supra, 161 Cal.App.4th at pp 1400-1401.)
There was no evidence that one of the Norteño’s primary activities was a statutorily enumerated offense and no evidence they engaged in a pattern of criminal gang activity. The only evidence of predicate crimes is the charged offense of making a criminal threat. Accordingly, we conclude there was insufficient evidence of the gang enhancement and reverse the finding of the juvenile court that the gang enhancement was true.
DISPOSITION
The juvenile court’s finding that the gang enhancement was true is reversed. On remand, the court shall amend its minute order from the disposition hearing to reflect this change and reduce the available term of confinement by the term of the gang enhancement. The remaining orders of the juvenile court are affirmed.