Opinion
F049776
12-6-2006
In re JOSE I., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE I., Defendant and Appellant.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stanley A. Cross, Assistant Attorney General, Stephen G. Herndon and Paul E. OConnor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.
The court found that appellant, Jose I., was a person described in Welfare and Institutions Code section 602 after Jose admitted allegations in an amended petition charging him with disturbing the peace (count 1/Pen. Code, § 415), driving with a blood-alcohol of .08 percent or greater (count 3/Veh. Code, § 23152, subd. (b)), and resisting a peace officer (count 6/§ 148, subd. (a)). In a separate proceeding on January 26, 2006, the court found that the offenses Jose committed in counts 1 and 6 were gang related and ordered Jose to register as a gang member (§ 186.30).
All further statutory references are to the Penal Code unless otherwise indicated.
On February 2, 2006, the court set Joses maximum term of confinement at one year eleven months and it committed Jose to a county detention facility for a period of 45 to 180 days. On appeal, Jose contends the court erred when it imposed the gang registration requirement. We agree and will remand the matter to the trial court for further proceedings. In all other respects, we will affirm.
FACTS
On April 29, 2005, a California Highway Patrol Officer made a traffic stop of a car in which Jose was a passenger. Jose identified himself as a VCL gang member and became upset when the officer told him that he was going to arrest the driver for driving under the influence. He also refused the officers order to leave. Instead, Jose clenched his fists and yelled gang slurs at him. He then advanced on the officer to within 5-8 feet before complying with the officers second directive to get on the ground (count 6).
On June 26, 2005, while under the influence of alcohol, Jose drove a car off the road and struck a bicyclist. The bicyclist suffered a laceration on his knee (count 3).
On October 25, 2005, Jose and fellow gang members wearing red were seen in Dinuba chasing a rival gang member who was wearing blue. After being contacted by police officers, Jose stated that he still claimed VCL (count 1).
On January 23, 2006, Joses counsel objected to a gang registration requirement recommended by the probation department.
At the January 26, 2006, hearing, Dinuba Police Officer Chad McMullen testified for the prosecution. Additionally, the prosecutor introduced a minute order that showed that on February 22, 2002, Norteño gang member Hector Mendoza was convicted of several offenses including assault with a firearm and a minute order that showed that on May 17, 2004, Norteño gang member Juan Guerrero was sentenced on his convictions for assault with a firearm and other offenses. McMullens testimony and these minute orders, in pertinent part, established that the Norteño gangs primary activities included assaults, batteries, and disturbing the peace, that VCL is a "clique" of the Norteño gang, and that in 2002 Mendoza was convicted of assault with a firearm and in 2004 Guerrero was convicted of assault with a firearm. At the conclusion of the hearing, the court implicitly found that Joses offenses in counts 1 and 6 were gang related and ordered him to register as a gang member.
DISCUSSION
Section 186.30, in pertinent part, requires every juvenile who has a petition sustained for a gang related crime to register as a gang member. In In re Jorge G. (2004) 117 Cal.App.4th 931, this court stated:
"[A finding that a crime is gang related] . . . is supported by sufficient evidence only if there is evidence that is reasonable, credible, and of solid value supporting each element of gang relatedness. 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. [¶] . . . [¶]
"To support element (5), there must be substantial evidence of at least two predicate offenses committed within the specified time frame by the minor or other members of his gang." (In re Jorge G., supra, 117 Cal.App.4th at pp. 944-945, italics added.)
Jose contends the evidence here is insufficient to sustain the courts gang registration requirement because the prosecution failed to establish when the Norteño gang members noted above committed the two predicate offenses. Thus, according to Jose, the evidence failed to show whether either offense was committed within three years of each other. Respondent agrees and additionally notes that the record failed to establish that at least one of the offenses occurred after the effective date of the statute. We agree with the parties and will remand the matter to the trial court for further proceedings.
DISPOSITION
The judgment is reversed with respect to the order to register and affirmed in all other respects. The case is remanded to the juvenile court for a new hearing to address whether Joses offenses were gang related.