In re Anthony P.

Filed 12/15/08 In re Anthony P. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Following a contested jurisdictional hearing, the juvenile court sustained a petition under Welfare and Institutions Code section 602,[1] finding true the allegations that the minor, Anthony P., had committed an assault and a battery and that the offenses were committed for the benefit of a criminal street gang. (Pen. Code, 245, subd. (a)(1), 242, 243, subd. (a), 186.22, subds. (b)(1)(B) & (d).) The minor was committed to the enhanced ranch program for six to eight months. On appeal, the minor contends that the juvenile court failed to exercise its discretion to determine whether the offenses were felonies or misdemeanors. We remand the matter for the juvenile court to make this determination.

BACKGROUND

Section 602 Petitions

On June 28, 2006, a petition under section 602 was filed against the minor alleging that he committed second degree robbery (Pen. Code, 211, 212.5, subd. (c)). The petition was amended on October 18, 2006, adding a second count for felony grand theft (Pen. Code, 487, subd. (c)). The minor admitted the grand theft allegations in count 2. Among other orders, the juvenile court dismissed count 1, adjudged the minor to be a ward of the court, and returned the minor to the custody of his parents on probation with various terms and conditions.

On February 11, 2008, a petition under section 602 was filed against the minor alleging two counts. In count 1, the People alleged that the minor committed assault with a deadly weapon and instrument other than a firearm, a cutting object, and by means of force likely to produce great bodily injury, a felony (Pen. Code, 245, subd. (a)(1)) against one victim. It was further alleged that the offense was committed for the benefit of, at the direction of, and in association with, a criminal street gang (Pen. Code,  186.22, subd. (b)(1)(B)). In count 2, the People alleged that the minor committed a battery (Pen. Code, 242, 243, subd. (a)) against a second victim for the benefit of, at the direction of, and in association with, a criminal street gang, a felony (Pen. Code,  186.22, subd. (d)).

Jurisdictional Hearing

Judge David A. Cena presided over the contested jurisdictional hearing in March 2008. Viewing the evidence in the light most favorable to the juvenile courts jurisdictional findings, as we are required to do (In re Roderick P. (1972) 7 Cal.3d 801, 808-809), the testimony revealed the following.

The Prosecutions Case

On February 7, 2008, the two victims in counts 1 and 2 were walking home from high school in San Jose with two or three other schoolmates. Four individuals,[2] including the minor, were behind the victims group. Two other individuals ran across the street from an apartment complex and were also behind the victims group.

Some of the individuals in the group of six behind the victims group began yelling at the victims group. One of the victims heard, [C]ome on you fucking scraps. What the fuck are you going to do? and Norte. Scraps. Bring it. The other victim heard scraps and [w]ho do you bang with? One witness, who was in the victims group, only heard scraps being yelled.

One of the victims testified that he hang[s] around Sureos. The other victim testified that he hang[s] out with Brown Priders. He testified that Brown Priders are not Sureos, although they sometimes associate with Sureos.

The minor had been seen hanging out with Norteos at school and displaying Norteo-associated symbols. Two others who were with the minor and behind the victims group had also been seen hang[ing] out with Norteos. One of the two individuals who had run across the street had Norteo-related symbols tattooed on his fingers.

At the time of the incident, the victim in count 2 responded to the yelling from the group of six, stating that he did not bang. A witness who was in the victims group also stated, I aint nothing. I dont bang. One of the individuals who had run across the street swung at the victim in count 2, and the other individual who had run across the street eventually joined in the fight. The victim in count 2 sustained a bloody lip from a plastic cigarette lighter that one of the individuals who had run across the street had been holding when he hit the victim.

The victim in count 1 got involved in the fight after the victim in count 2 was approached by the two who had run across the street. The victim in count 1 was hit in the back of the head by other individuals from the group of six (not the minor), and he was cut on his upper back, near his right shoulder. He does not know who cut him. He later received three stitches at the hospital for the cut. He did not fight with the minor, although he did see the minor punch one of his friends.

At some point, most or all of the individuals in the group of six who were behind the victims group were involved in the fight with the victims group. After a passerby indicated that the police had been or were going to be called, the group of six ran away in the direction of the high school and everyone in the victims group went home.

San Jose Police Officer Douglas Gates testified that one of the victims reported seeing the group behind him make certain hand signs, which Officer Gates associated with a northerner gang member. San Jose Police Officer Michael Marchan testified that one of the victims reported hearing individuals from the group of six calling Norte and also Norteo while he and his friends were being punched.

San Jose Police Officer Gina Tibaldi testified that the minor was on juvenile probation with search conditions. On February 7, 2008, officers searched the bedroom in the house where the minor was residing. Officers found paperwork containing words and symbols, including a red Huelga bird, associated with Norteos. Officers also found a red belt and three red and black hats, one of which had 408 on it. On cross-examination, Officer Tibaldi explained that officers also cleared the bedrooms of the minors two brothers to make sure there [were] no people hiding in closets or under beds but they didnt go through anything, such as the drawers or dressers in those rooms.

San Jose Police Officer Anthony Kilmer testified as an expert in Hispanic criminal street gangs. He explained that Norteos and Sureos are rival gangs in Santa Clara County. According to Officer Kilmer, Norteos fall under the Nuestra Familia prison gang umbrella. Signs or symbols associated with Nuestra Familia or Norteos include the color red and the Huelga bird. Officer Kilmer explained that the number 408, which reflects the area code of San Jose and Santa Clara County, is associated with both Norteos and Sureos and publicly displays where a gang member is from. He also explained that scrap is a derogatory term used by Norteo gang members to describe a Sureo or perceived Sureo gang member.

In Officer Kilmers opinion, the commission of crimesranging from homicides down to assault with deadly weapons, . . . batteries, vandalism[] and so onare a primary activity of Norteo gang members in Santa Clara County. The crimes are typically committed on rival gang members, although they may also be committed against perceived rival gang members who hang[] out with a Sureo. Norteos use violence to show . . . that theyre strong, theyre powerful, . . . or the dominant group in the area. According to Officer Kilmer, it is not uncommon for Norteo gang members to use weapons, officers are seeing more and more gang-related cases that escalate with weapons, it is very common for Norteo gang members to gather and confront Sureo gang members, it is common for fistfights involving gang members to turn into a case where someone gets injured by a weapon, it is common for a fight to end before someone realizes that a stabbing has occurred and for no one to have seen the knife, and if a person commits a stabbing during a fistfight the person earns more respect from . . . fellow gang members . . . . Officer Kilmer testified as to four incidents in 2006 and 2007 involving offenses committed by Norteo gang members.

In Officer Kilmers opinion, the offenses in the current case were committed for the benefit of, and in association with, the Norteo criminal street gang. Officer Kilmer further testified that it was his opinion that the minor was an active member of a Norteo street gang. In reaching these conclusions, Officer Kilmer reviewed the police reports prepared in the case, spoke with staff from the high school attended by some of those involved in the incident and the police detective who works at that high school, and reviewed reports concerning previous contacts the police had with the minor.

The Defense Case

The minors father testified that he picks up the minor after school, although on the day of the incident, he was five minutes later than usual. Regarding the probation search conducted by the police, he testified that not all of the items described by Officer Tibaldi came from the minors room and that the minors older brother, but not the minor, has baseball hats. The minors father testified that the minor does not have any red clothes.

The minor testified that on the day of the incident, he left school with a friend and saw a group of people, including the two victims. The minor testified that the group with the victims walked ahead of him, whereupon two males came running across the street towards the victims group. The minor testified that he did not know these two males and that the two males fought with the victims in count 1 and 2.

The minor testified that while he was watching the fight, someone from the victims group hit him and pulled out a ballpoint pen to use as a weapon. The minor acknowledged hitting the person who had the pen, asserted that he acted in self-defense, and testified that he did not fight with anyone else during the incident. When someone yelled that the police had been called, everybody just went their own way, according to the minor. He testified that he went back to school, where his father picked him up. The minor denied being involved in the planning of the incident and denied saying anything to anyone during the incident.

The minor testified that his parents will not allow him to wear red. He denied having a red belt or a drawing of a red Huelga bird in his room. He testified that the hats found by the police belonged to his brother.

The Juvenile Courts Findings

On March 10, 2008, Judge Cena found the allegations of assault and battery in the petition to be true, as well as the gang allegations.

Dispositional Hearing

The dispositional hearing was held on March 28, 2008, by Judge Margaret S. Johnson. The court adopted the recommendations of the probation officer. The minor was continued as a ward of the court and ordered, among other things, to be committed to the Santa Clara County Juvenile Rehabilitation Facilities enhanced ranch program for six to eight months, and then returned to the custody of his parents on probation, and to pay restitution to the victims. The minor was also required to register as a gang member within 10 days of release from custody (Pen. Code, 186.30). The court set the maximum time of confinement at ten years four months, after aggregating the time for the pending petition and the previously sustained petition for grand theft, and gave the minor credit for time served of 57 days.

On March 28, 2008, the minor filed a notice of appeal.

DISCUSSION

The minor contends that the juvenile court failed to exercise its discretion to determine whether the offenses were felonies or misdemeanors pursuant to section 702, and therefore the matter must be remanded for clarification and possible recalculation of the maximum period of physical confinement.

Section 702 provides that in a juvenile proceeding, [i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. This language in section 702 is is unambiguous and its requirement is obligatory . . . . (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Section 702 requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.] (Ibid.)

The required declaration as to misdemeanor or felony may be made at the contested jurisdictional hearing or at the dispositional hearing. (Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1), 5.795(a).)[3] If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state itsdetermination as to whether the offense is a misdemeanor or a felony. (Rule 5.780(e)(5), italics added; see also rules 5.790(a)(1), 5.795(a).) The courts determination must also be noted in an order or in the minutes from the hearing. (Rules 5.780(e), 5.795(a).)

The significance of an express declaration under section 702 was explained by the California Supreme Court in Manzy W., supra, 14 Cal.4th 1199. Among other things, the California Supreme Court pointed out that a minor may not be held in physical confinement longer than an adult convicted of the same offense. (Manzy W., supra, 14 Cal.4th at p. 1205; 731, subd. (c).) Requiring the juvenile court to declare whether an offense is a misdemeanor or felony facilitat[es] the determination of the limits on any present or future commitment to physical confinement for a so-called wobbler offense. (Manzy W., supra, 14 Cal.4th at p. 1206.) Further, the requirement that the juvenile court declare whether a so-called wobbler offense [is] a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. (Manzy W., supra, 14 Cal.4th at p. 1207.)

In Manzy W., the juvenile court had imposed a felony-level term of physical confinement in the Youth Authority[4] for a drug possession offense that would, in the case of an adult, be punishable either as a misdemeanor or as a felony (a so-called wobbler), but the court had failed to declare the offense a felony. (Manzy W., supra, 14 Cal.4th at p. 1201.) The California Supreme Court considered whether the failure to make the mandatory express declaration pursuant to section 702 required remand of the matter. It explained that neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.] (Manzy W., supra, 14 Cal.4th at p. 1208.)

The California Supreme Court also refused to apply the Evidence Code presumption that the juvenile court performed its official duty. The California Supreme Court stated that it was unpersuaded that such a presumption is appropriately applied when the juvenile court violated its clearly stated duty under Welfare and Institutions Code section 702 and there is nothing in the record to indicate that it ever considered whether the . . . offense was a misdemeanor or a felony. (Manzy W., supra, 14 Cal.4th at p. 1209.)

At the same time, the California Supreme Court refused to hold that remand is required in every case when the juvenile court fails to make a formal declaration under section 702. The California Supreme Court explained: [S]peaking generally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (Manzy W., supra, 14 Cal.4th at p. 1209.)

The California Supreme Court ultimately concluded that the matter before it should be remanded to the juvenile court for an express declaration pursuant to section 702 and possible recalculation of the maximum period of physical confinement. (Manzy W., supra, 14 Cal.4th at p. 1211.) The California Supreme Court found [n]othing in the record establish[ing] that the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony, and it would be mere speculation to conclude that the juvenile court was actually aware of its discretion in sentencing Manzy. (Id. at p. 1210.)

In this case, the People alleged in count 1 that the minor committed an assault, which is punishable either as a misdemeanor or a felony. (Pen. Code, 17, 245, subd. (a)(1).) In count 2, although the People alleged that the minor committed a battery, which is punishable as a misdemeanor (Pen. Code, 17, 242, 243, subd. (a)), the People also alleged that the battery was committed for the benefit of a criminal street gang pursuant to Penal Code section 186.22, subdivision (d),[5] which makes the offense punishable as either a misdemeanor or a felony. (See People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444 [a misdemeanor may become a felony for sentencing purposes under subdivision (d) of [Pen. Code] section 186.22].)

The juvenile court did not expressly declare on the record during the jurisdictional or dispositional hearing that it had considered whether the offenses would be misdemeanors or felonies, nor did it expressly declare its determination in this regard. (Manzy W., supra, 14 Cal.4th at p. 1209; Rules 5.780(e)(5), 5.795(a).)

The People make several arguments as to why the record is sufficient in this case to show that the juvenile court determined the offenses to be felonies.

First, the People maintain that Judge Cena declared both offenses to be felonies in sustaining the petition and cite In re David V. (2008) 166 Cal.App.4th 801 (David V.), for the proposition that the declaration was sufficient.

Judge Cena, after hearing testimony during the contested jurisdictional hearing, stated: The Court has found beyond a reasonable doubt that the minor has committed all the elements necessary to prove count 1, the following offense: That on or about February 7, 2008, the minor committed the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury, a violation of Penal Code section 245 subdivision (a)(1), a felony. [] The Court further finds that the allegation the minor committed the above offense for the benefit of or at the direction of and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of Penal Code section 186.22 subdivision (b) (1) (B) to have been proved by the District Attorney beyond a reasonable doubt. [] The Court has found beyond a reasonable doubt that the minor has committed all the elements necessary to prove count 2, the following offense: That on or about February 7, 2008, the minor committed the crime of battery, a violation of Penal Code section 242/243 subdivision (a) and the crime of criminal street gang, a violation of Penal Code section 186.22 subdivision (a),^[[6]]a felony, in that the crime was committed for the benefit of, at the direction of and in association with a criminal street gang known as Norteo with the specific intent to promote, further and assist in criminal conduct by members of the gang. (Italics added.)

In David V., supra, 166 Cal.App.4th 801, the pertinent facts were as follows. At the close of trial proceedings, the court clerk asked, Was this a felony? and the court responded, Yes, both felonies. The court later stated, Theyre both felonies. The maximum sentence is three years, eight months unless I stand corrected, and subsequently remarked, I thought both were three-year felonies. (David V., supra, 166 Cal.App.4th at p. 812.) A minute order of the dispositional hearing bore a checkmark indicating that, on both petitions, the [o]ffense is declared to be a felony. (Ibid.) The Court of Appeal held that where a juvenile court expressly declares an offense to be a felony or misdemeanor, it is notinappropriateto presume that the declaration itself demonstrates an awareness and exercise of discretion. (Id. at p. 813, italics added.) The Court of Appeal distinguished Manzy W., supra, 14 Cal.4th 1199, in which the California Supreme Court refused to apply the presumption that the juvenile court had exercised its discretion, by reasoning that the juvenile court in Manzy W. had failed to formally declare whether the offense was a misdemeanor or felony. (David V., supra, 166 Cal.App.4th at p. 813.) In contrast, in the case before it, the Court of Appeal explained that the juvenile court had declared appellants weapon possession offense to be a felony (ibid.) and the oral statements made by the juvenile court sufficiently demonstrate that the court was aware of and exercised its discretion, thus satisfying the requirements of Welfare and Institutions Code section 702. (David V., supra, 166 Cal.App.4th at p. 814.)

The juvenile court is required to expresslydeclare on the record that it has considered whether the offenses would be misdemeanors or felonies and to state its determination in this regard. (Rules 5.780(e)(5), 5.795(a).) Here, the court did not expressly declare that it had considered whether the offenses would be misdemeanors or felonies. Although the court did refer to the offenses as felonies, it appears the court was reciting from, paraphrasing, or otherwise relying on the allegations of the petition. To that extent, the statements reflect that the court knew the petition alleged the counts as felonies.[7] The requirement that the court exercise its discretion by declaring the offenses to be misdemeanors or felonies is not satisfied when the petition specifically charges the offenses as felonies and the court merely finds the petition to be true. (In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) We also note that the clerks minutes from the jurisdictional hearing do not indicate that the court made a finding as to the misdemeanor or felony nature of the offenses.

The Peoples second argument appears to be based on the probation officers reports, which refer to both counts as felonies. The reports, however, do not indicate that the offenses may be treated as misdemeanors or felonies, nor do the reports include a specific recommendation that references section 702. Consequently, these reports do not establish that the probation officer was aware of the courts discretion to treat the offenses as misdemeanors or felonies or made a recommendation in this regard to the court.

Third, the People point to Judge Johnsons references to serious charges and to section 707, subdivision (b), during the dispositional hearing. For example, after counsel had confirmed that the case involved two counts under Penal Code sections 243 and 245 and that a two or three-day trial had taken place, the court stated: So these are very serious charges. And some very serious allegations. So you know it doesnt look like a return to EMP to me, just based on the charges. The court later asked counsel whether one of the offenses was a section 707, subdivision (b), offense, and the prosecutor responded in the affirmative. The court then stated: Well, I dont think that APA will take [the minor] with a [section] 707[, subdivision (b)] offense.

We are not persuaded that the courts comments reflect an implied determination that the offenses were felonies. The courts comments do not establish that the court was exercising its discretion and electing to treat the offenses as felonies. We also observe that none of the attorneys invited the courts attention to the need for a finding under section 702 at either the jurisdictional hearing or the dispositional hearing.

Fourth, the People point to the form entitled DISPOSITIONJUVENILE DELINQUENCY, which was signed by Judge Johnson on the same day as the dispositional hearing. The form states: The court has previously sustained the petition alleging that the child violated Penal Code section 245, subdivision (a)(1), with enh PC186.22(b)(1)(B) fel., and Penal Code sections 242 and 243, subdivision (a), with enh PC186.22(d) fel. As with the Judge Cenas statements during the jurisdictional hearing, we are not convinced that these references to a fel[ony] reflect an exercise of discretion by Judge Johnson at the time of disposition. The same form contains a section regarding counts that may be considered a misdemeanor or a felony. In this section, a blank space is provided for the court to identify the count numbers and code sections and to indicate whether the court finds the minors violations are misdemeanors or felonies. This section has been left blank, which suggests that the court did not exercise its discretion in this regard at the dispositional hearing.

Fifth, the People contend that the juvenile courts findings regarding the gang allegations satisfies the requirement that the court determine whether the counts were misdemeanors or felonies. Specifically, regarding count 1, the assault, the People argue that because the court found true a gang enhancement allegation pursuant to Penal Code section 186.22, subdivision (b)(1)(B),[8] which applies only to a felony offense, the assault alleged in count 1 was necessarily a felony and the juvenile court had no discretion to declare it otherwise. Because we are remanding the case to the juvenile court to expressly declare on the record whether count 2, the battery for the benefit of a criminal street gang, is a misdemeanor or a felony, we will also direct the juvenile court to make an express declaration regarding whether count 1, the assault, is a misdemeanor or a felony and to recalculate the maximum time of confinement as necessary.

We are aware of the general rule that we presume that the trial court was aware of and exercised its discretion to act, absent evidence to the contrary. (Cf. People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430; Evid. Code, 664.) In a case such as this one, however, where the offenses may be treated as misdemeanors or felonies, the California Rules of Court require that the juvenile court expressly acknowledge its discretion by declaring that it considered whether to treat the offenses as either misdemeanors or felonies. (Rules 5.780(e)(5), 5.790(a)(1), 5.795(a).) In the absence of an express declaration that the offenses would be misdemeanors or felonies, and in view of the fact that two different judges presided over the jurisdictional and dispositional hearings, we will remand the matter to the juvenile court for clarification.

As a final argument, the People contend that remand is not warranted because it is highly unlikely that the juvenile court would have designated the offenses as misdemeanors. We note that the court did not commit the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, but instead committed the minor to the enhanced ranch program, to be returned to the custody of his parents on probation following successful completion of the program. Under the circumstances, we cannot say the juvenile court would necessarily declare the offenses to be felonies if directed to exercise its discretion under section 702 upon remand. We must remand to permit the juvenile court to make that determination in the first instance and to make any adjustments in the maximum period of confinement if either violation is deemed a misdemeanor.

DISPOSITION

The juvenile courts dispositional order is reversed, and the matter is remanded for the limited purpose of permitting the juvenile court to exercise its discretion to select between misdemeanor or felony treatment for the offenses and to make the express declaration required by section 702 and rule 5.795(a). If the juvenile court elects to treat either or both offenses as misdemeanors, it shall recalculate the maximum time of confinement. Otherwise, it shall declare the offenses to be felonies and reinstate its original order.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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Mcadams, J.

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duffy, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] These four individuals attended the same high school as the victims.

[3] All further rule references are to the California Rules of Court.

[4] The Youth Authority is now known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. ( 1710, subd. (a); Pen. Code, 6001.)

[5]Penal Code section 186.22, subdivision (d), states: Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.

[6] The petition alleged a violation of subdivision (d) of section 186.22, not subdivision (a).

[7] The petition alleged as follows: COUNT 1 [] On or about February 7, 2008, in the County of Santa Clara, State of California, the crime of ASSAULT WITH A DEADLY WEAPON OR BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by [the minor] who did commit an assault upon the person of [the victim] with a deadly weapon and instrument other than a firearm, a(n) cutting object, and by means of force likely to produce great bodily injury. [] . . . [] It is further alleged that . . . [the minor] committed the offense charged above for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members, within the meaning of Penal Code section 186.22(b)(1)(B). [] COUNT 2 [] On or about February 7, 2008, in the County of Santa Clara, State of California, the crime of BATTERY, violation of PENAL CODE SECTION 242-243(a), was committed by [the minor] who did willfully and unlawfully use force and violence upon the person of [the victim]. IT IS FURTHER ALLEGED, that the crime of CRIMINAL STREET GANG, in violation of PENAL CODE SECTION 186.22(d), a Felony, was committed by [the minor] who did commit the offense charged in Count 2, for the benefit of, at the direction of, and in association with a criminal street gang known as, Norteo, with the specific intent to promote, further, and assist in criminal conduct by members of the gang.

[8] Penal Code section 186.22, subdivision (b), states in part: (b)(1) . . . [A]ny 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [] . . . [] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.