In re Cesar L.
Filed 6/14/06 In re Cesar L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| In re CESAR L., a Person Coming Under the Juvenile Court Law. | |
| THE PEOPLE, Plaintiff and Respondent, v. CESAR L., Defendant and Appellant. |
F048676
(Super. Ct. No. 05CEJ600101-1)
OPINION |
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.
Grace Lidia Suarez, 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, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Cesar L. was found to have committed assault with a firearm and to have discharged a firearm into an unoccupied car. On appeal, he contends (1) the gang expert's testimony should have been stricken because his opinions were based on unreliable evidence and without that testimony there was insufficient evidence to support the gang enhancement; (2) the juvenile court abused its discretion by committing him to the Department of Corrections and Rehabilitation, Juvenile Justice (formerly the California Youth Authority; hereafter the Department); (3) Penal Code section 654 prohibited the imposition of both the firearm use and the gang enhancement;[1] and (4) the court should have stayed the punishment on count 2 pursuant to section 654. We will strike the firearm use enhancement and affirm the juvenile court's findings and dispositional order as modified.
PROCEDURAL SUMMARY
On January 20, 2005, a Welfare and Institutions Code section 602 petition was filed alleging that Cesar assaulted the victim with a firearm (§ 245, subd. (a)(2); count 1) and discharged a firearm into an unoccupied car (§ 247, subd. (b); count 2). The petition also alleged that he personally used a firearm in the commission of count 1 (§ 12022.5, subd. (a)), and that he committed both counts for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The juvenile court found the allegations true, adjudged him a ward of the court, and committed him to the Department for a maximum period of confinement of 15 years, as follows: two years for count 1, plus 10 years for the gang enhancement, plus three years for the firearm enhancement, plus a concurrent term of three years and four months for count 2.
FACTS
On January 13, 2005, at about 9:00 p.m., the 17-year-old victim and his cousins, Eddie, Manuel, and Frank, left a youth program at church and drove to the park in the victim's car. They went to the park because the bus dropped off all the other young people from church at the park after the program. When the victim and his cousins arrived at the park, they parked across the street and joined their friends, Inno, Jess, and Robert. The boys were on or near a bench in the corner of the park, except for the victim and Frank, who stood about 14 feet away from the bench. Inno was wearing red, as he always did. There were at least 15 to 20 children nearby.
A green four-door car pulled up and parked in front of the victim's car. Cesar and three other boys got out of the car. One of them was wearing blue pants and a white shirt. One boy stayed near the car, while Cesar and the other two boys approached the bench and spoke to Eddie and Inno. One of the three boys said something about Inno's being a Bulldog. One of the boys asked Eddie and Inno, â€
