In re D.M.



















Filed 4/4/13 In
re D.M. CA5

Opinion following order vacating prior opinion











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

In re D.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.	F064450 (Super. Ct. No. 11CEJ600949-1) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. W. Kent Hamlin, Judge.

Courtney M.
Selan, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, for Plaintiff and Respondent.

-ooOoo-



It was
alleged in a juvenile wardship petition filed November 8, 2011 (first
petition), that appellant, D.M., a minor, committed the following
offenses: href="http://www.fearnotlaw.com/">possession of a controlled substance,
viz., codeine (Health & Saf. Code, § 11350, subd. (a); count 1), resisting an executive officer (Pen. Code, §
69; count 2)href="#_ftn2" name="_ftnref2"
title="">^[1],
and active participation in a criminal
street gang (§ 186.22, subd. (a); count 3).href="#_ftn3" name="_ftnref3" title="">^[2] In a second wardship petition, filed December
6, 2011, it was alleged appellant committed two counts of first degree burglary
(§§ 459, 460, subd. (a); counts 1 & 4), two counts of active participation
in a criminal street gang (§ 186.22(a); counts 5 & 6) and individual counts
of grand theft (§ 487, subd. (a); count 2) and grand theft of a firearm (§ 487,
subd. (d); count 3). At a jurisdiction
hearing covering both petitions, the juvenile court found true all allegations
except for count 1 in the first petition.
Following the subsequent disposition hearing, the court adjudged
appellant a ward of the court and placed him on probation. The court also ordered appellant to pay
direct restitution totaling $11,583.19 to the victims of the two burglaries,
and a restitution fine of $500 (Welf. & Inst. Code, § 730.6).

In a
previous opinion, filed November 27, 2012, we rejected the sole argument raised
by appellant on appeal, viz., the claim that the evidence was insufficient to
support his adjudication of violating section 186.22(a) as alleged in count 3
of the first petition,href="#_ftn4"
name="_ftnref4" title="">^[3] and affirmed the judgment.

The California Supreme Court
granted review and has now directed us to vacate our prior decision and
reconsider this cause in light of People
v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez).

Though authorized to do so, the
parties have not filed supplemental briefs.
(Cal. Rules of Court, rules 8.528(f), 8.200(b), 8.532(b)(2).)

As we explain below, we vacate our
prior decision and, having reconsidered the cause in light of >Rodriguez, we reverse the challenged
adjudication.

FACTS

The Relevant Offensehref="#_ftn5" name="_ftnref5" title="">>^[4]

On October 30, 2011, City of
Clovis Police Officer Jason Smoak stopped a car for speeding. Appellant was the driver and sole occupant of
the car. After appellant admitted he did
not have a driver’s license, the officer placed him under arrest for driving
without a valid driver’s license.

Shortly thereafter, while looking
in the car “for information [regarding appellant’s] identity, records with the
vehicle, insurance, registration,” Smoak found a prescription bottle from which
the label had been removed. The bottle
contained liquid codeine. The officer
asked appellant if he had a prescription for the codeine, and appellant
responded that he did not. At that
point, appellant became “uncooperative,” i.e., “he began to tell [Smoak] that
it wasn’t his, and he said [the officer] didn’t have anything on him.” Smoak
arrested appellant for unlawful possession of codeine and placed him in the
back of the patrol car. Smoak then drove
appellant to the police station. As he
started driving, appellant became “very loud” and “argumentative,” and “[h]e
continued to yell and continued to be uncooperative” upon arrival at the
station. Appellant said, “‘Fuck Clovis
PD. I’m gonna get out, and when I do I’m
gonna get my whip out and slap my 15s every day through Clovis. I’m gonna rip some donuts in all the
intersections in Clovis that I can.’” He
stated “he was gonna find [Smoak] when he gets out,” and he told Smoak he was
going to “‘find your family, when you’re with your family, and make you
pay.’” Appellant “said he was from the
Dog Pound and that he knew how to make [Smoak] pay.”

Smoak took appellant’s statements
as a threat because he (the officer) was “familiar with gangs” and “somewhat
familiar with the Dog Pound Gang,” and he knew that “gangs are extremely
violent and can follow through on their threats.”

Gang Evidence

City of
Fresno Police Detective Donovan Pope testified that he is an investigator with
the Multi-Agency Gang Enforcement Consortium, he investigates gang crimes and
he is “specifically assigned to African-American based criminal street gangs in
Fresno.” He opined that the Dog Pound is
a criminal street gang within the meaning of section 186.22(f)href="#_ftn6" name="_ftnref6" title="">^[5] and that appellant is a member of the Dog
Pound.href="#_ftn7" name="_ftnref7" title="">^[6] Pope testified that the “primary activities”
of the Dog Pound Gang include “illegal weapons possession, felony assaults, and
residential burglaries.”

The detective also indicated that
appellant’s actions, as testified to by Officer Smoak, “benefitted the Dog
Pound Gang[.]” He explained: “The threats to the officer ... [are] just a
way of trying to use the gang’s violent reputation to instill fear in the
officer. [Appellant is] trying to get
respect, and the way to do that is to strike fear into somebody.” As a result of doing so, “citizens or
witnesses[] ... [are] not [going to] come testify, talk to police. That allows the gang to operate without any
opposition or consequence whatsoever. So
the attempt at trying to instill fear to deter [the officer] from doing what
... the officer needs to do ... is an example” of how he’s trying to use his
gang to “continue his illegal activity, and by instilling fear in that officer,
his gang’s [going to] benefit. It allows
him and his fellow gang members to conduct their criminal activities freely without
any type of opposition or any attempt to stop him in the future.”

DISCUSSION

“The elements of the gang
participation offense in section 186.22(a) are: First, active participation in a criminal
street gang, in the sense of participation that is more than nominal or
passive; second, knowledge that the gang’s members engage in or have engaged in
a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.” (Rodriguez,
supra, 55 Cal.4th at p. 1130.)href="#_ftn8" name="_ftnref8" title="">^[7]
In Rodriguez, >supra, 55 Cal.4th at p. 1128, our
Supreme Court held that where the accused acts alone, the third of these
elements is not satisfied. The statute
refers to the promotion, furthering or assisting the criminal conduct of the
plural “members.” (§ 186.22(a).) Thus, “The plain meaning of section 186.22(a)
requires that felonious criminal conduct be committed by at least two gang
members, one of whom can include the defendant if he is a gang member.” (Rodriguez,
at p. 1132.) As indicated above in our
factual summary, appellant acted alone in committing the acts upon which his
adjudication of section 186.22(a) as alleged in count 3 of the first petition
was based. Therefore, under >Rodriguez, his adjudication of that
offense cannot stand.



DISPOSITION

Our prior
decision in this case, filed November 27, 2012, is vacated. The true finding on the allegation set forth
in count 3 of the wardship petition filed November 8, 2011, that appellant
committed a violation of section 186.22, subdivision (a), is reversed. In all other respects, the judgment is
affirmed.