In re Anthony A.

Filed 7/27/06 In re Anthony A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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In the latest in a series of petitions and probation violations, the juvenile court found that Anthony A. committed an assault likely to produce great bodily injury, assault with a deadly weapon, and was an active participant in a criminal street gang. In addition, the court found he committed the assaults for the benefit of a criminal street gang. He was committed to the California Youth Authority.^[1] He appeals, claiming the evidence does not support the gang offense or the gang enhancements. In addition, he argues the court violated his right to due process when it committed him to CYA without substantial evidence of probable benefit to him. We affirm.

Procedure and Facts

In February 2003, when Anthony was 15 years old, he admitted that he unlawfully possessed a concealable firearm. He was sentenced to juvenile hall and given probation. He was found to have violated his probation three separate times after the initial disposition. The probation violations were based on his failure to attend school, testing positive for marijuana, and failing to complete court ordered programs.

A subsequent petition was filed on August 23, 2004. Anthony admitted that he possessed marijuana for sale and that he did so for the benefit of a criminal street gang. He was given a suspended CYA commitment and was continued as a ward of the court. In addition, he was required to register under the gang registration statute. (Pen. Code, § 186.30.)

The present petition, filed in May of 2005, arose from an assault on a clerk at a convenience store.

On May 8, 2005, Thomas Carrillo was working at a 7-Eleven convenience store. At approximately 4 a.m., a group of people had congregated in the parking lot. Over the course of several minutes, Carrillo asked them to leave three times. The third time he asked them to leave, he picked up a portable telephone and acted as if he was calling the police. Carrillo testified that usually individuals would disperse when he would pretend to make a telephone call. One of the individuals cursed at him. Carrillo went back inside the store and this time he did call the police.

Carrillo went outside the store while he was talking to the dispatcher. He gave the dispatcher a description of the vehicle in the parking lot, gave a general description of the individuals in the parking lot, and gave the dispatcher the license plate number of the vehicle. At this time, five males hopped out of the vehicle.

As Carrillo backed away from the group, he was hit and taken to the ground. He was dragged to the handicapped parking stall. The group continued to beat him and kick him in his head and his back. He was also hit with the dustpan used in cleaning up the store parking lot. The assault continued for approximately 10 minutes.

The group left and Carrillo went inside and pushed the panic alarm. He was taken to the hospital. He suffered multiple cuts and bruises and was in excruciating pain. One of his wounds required stitches.

Carrillo identified Anthony as one of his attackers. While Carrillo was being punched and kicked, Anthony was holding him in a headlock. The incident was captured on videotape.

The vehicle described by Carrillo was stopped within minutes after the attack. Anthony was one of the five males in the van. The handle of the dustpan from the store was in the vehicle.

Police officer Michael Freudenthal testified as an expert on gangs. Freudenthal testified that Nortenos is an umbrella street gang organization and is a prison classification for Nuestra Familia. Its common color is red and its common symbols include â€