Filed 6/9/14 In re Alejandro C. CA5




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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re ALEJANDRO C., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,                                                                            F068383

         Plaintiff and Respondent,                                       (Super. Ct. No. JJD066728)

                   v.
ALEJANDRO C.,                                                                       OPINION

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
         Karriem Baker, for Defendant and Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.

                                                        -ooOoo-


*        Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
       It was alleged in a juvenile wardship petition that appellant, Alejandro C., a minor,
committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1)1 and
assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4),
count 2); that he committed both offenses for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to promote, further, or
assist in criminal conduct by gang members (§ 186.22, subd. (b)(1));2 and that he was
subject to the punishment provisions of section 186.22, subdivision (b)(1)(C).3
Following a contested jurisdiction hearing, the juvenile court found true the count 2
assault and gang enhancement allegations. The court found the count 1 assault allegation
not true.
       At the subsequent disposition hearing, the juvenile court adjudged appellant a
ward of the court; placed appellant on probation; ordered him committed to the Tulare
County Youth Facility for 365 days, with that commitment stayed pending successful
completion of probation; ordered that appellant reside in the custody of his parents; and
modified the true finding on the gang enhancement to reflect that appellant was subject to
the punishment provisions set forth in section 186.22, subdivision (b)(1)(A).4


1      All statutory references are to the Penal Code.
2      Section 186.22, subdivision (b)(1) provides for a sentence enhancement, to which
we refer as the gang enhancement, for “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal conduct by
gang members ….”
3       The prescribed punishment for the gang enhancement is two, three, or four years
at the court’s discretion (§ 186.22, subd. (b)(1)(A)), unless the underlying felony is a
serious felony (§ 1192.7, subd. (c)), in which case the punishment is a term of five years
(§ 186.22, subd. (b)(1)(B)), or a violent felony (§ 667.5, subd. (c)), in which case the
punishment is a term of 10 years (§ 186.22, subd. (b)(1)(C)).
4      See footnote 3, ante.


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       Appellant’s appellate counsel has filed an opening brief which summarizes the
pertinent facts, with citations to the record, raises no issues, and asks that this court
independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant
has not responded to this court’s invitation to submit additional briefing. We affirm.
                                           FACTS
Instant Offenses and Gang Enhancement
       Evan S. (Evan), a high school student, “heard a story” from a girl in his class that
appellant, who at the time was a friend of Evan’s, and some of appellant’s friends “had
jumped somebody.”5 Evan told the girl that in his opinion a person who “jump[s]
somebody” is a “[p]ussy.” At some point thereafter, in January 2013, appellant
confronted Evan and asked him if he (Evan) “was talking shit about his gang or him.”
Evan said “no.” At some point after that, Evan and appellant had another “argument,” as
a result of which Evan “end[ed] up dealing with school administration[.]” As Evan was
leaving school that day, appellant and some of his friends “called [Evan] a rat” and said
Evan “was going to get what’s coming to [him].”
       Approximately two weeks later, on January 25, 2013, Sean W., with whom Evan
was acquainted, telephoned Evan and told him Evan’s girlfriend was at Sean’s house and
that she wanted to talk to Evan. Sean picked up Evan and drove him to his (Sean’s)
house. When Evan arrived, there were approximately 16 people there, some of whom he
knew from school. At Sean’s direction he walked into the backyard of the house, at
which point he “got hit” in the back of the head with what he thought was a metal object,
and he fell to the ground. As he was falling, he “recognize[d] people behind [him].” He
was “pretty sure” it was appellant who hit him. While he was on the ground his attackers



5      Our factual summary of the instant offenses is taken from Evan’s testimony.


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were “stomping on [his] face and socking [him] up.” Appellant was “kicking [Evan] in
[his] head and socking.”
       At some point while the attack was still going on, a friend of Evan’s emerged from
the house and told the attackers to stop. They stopped “for a minute,” and Evan “got up
and ran away.”
       Approximately seven people attacked Evan. Some were wearing red bandannas,
and Evan heard someone say, “How do you feel about talking shit about me and my
homies? What do you have to say about norte now?”
Gang Evidence
       City of Tulare Police Detective Tony Espinosa testified to the following. He is
currently assigned to the “gang unit.” There are approximately 300 to 350 members of
the Norteño gang in the City of Tulare. They “wear a particular color,” viz., red, and they
“support [a] particular number,” viz., 14, which represents the letter “N,” the 14th letter
of the alphabet. The “primary activities of Nortenos” are “drive-by shootings, homicide,
attempted homicide, assault, assault with a deadly weapon, drug sales, witness
intimidation, graffiti.” “Sureno street gangs” are rivals of the Norteños.
       Desiree Morales, a Norteño gang member, was convicted of assault committed on
or about March 9, 2012, and Manden Torres, also a Norteño gang member, was convicted
of attempted murder, committed on or about March 9, 2011.
       Based in part on school records that indicated appellant wore red, associated with
Norteño gang members and “verbally … assaulted” a member of the Sureño gang, calling
him a “scrap,” a derogatory term used by members of the Norteño gang to insult
members of the Sureño gang, Espinosa opined that appellant was an “active northern
gang member.” In response to a hypothetical question that tracked the facts as testified to
by Evan, Espinosa further opined that the assault on Evan “would [have been in]
furtherance of [appellant’s] gang” and would have benefited appellant’s gang by

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“[e]levation of their status within the community, showing they would not be
disrespected.”
                                      DISCUSSION
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.




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