In re Daniel D.

Filed 5/19/06  In re Daniel D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Tulare County.  Martin  W. Staven, Judge.

            S.  Lynne Klein, 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, Louis  M. Vasquez and Leslie  W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            Following a contested jurisdictional hearing, the juvenile court sustained allegations against Daniel  D. (appellant) of resisting an executive officer (Pen. Code, §  69),^[1] assault by means of force likely to produce great bodily injury (§  245, subd. (a)(1)), battery on an officer (§  243, subd. (b)), resisting a peace officer (§  148, subd. (a)(1)), three counts of battery on school property (§  243.2, subd. (a)), and disturbing the peace (§  415). Gang enhancement allegations (§  186.22, subds. (b)(1) & (d)) were found true.  Appellant was adjudged a ward of the court and placed in a group home, with a maximum term of confinement of 11 years 1 month.  Appellant was ordered to register as a gang member pursuant to section 186.30, subdivision (b)(1).

            Appellant contends there is insufficient evidence of the two predicate acts necessary to support the gang enhancement.  He also contends the gang expert's testimony was based on testimonial hearsay, violating his constitutional right to confront witnesses against him.  Finally, insofar as defense counsel failed to perfect an objection below, appellant contends counsel rendered ineffective assistance.  We find no merit to appellant's claims and affirm.

FACTS

Events Surrounding the Crime

            Appellant was one of eight to ten Norteno gang members who, during lunch at school, approached a group of Sureno gang members and attacked Jesus  G.  Appellant held Jesus from behind and choked him.  Police officer Dar Wiebe and the school's vice principal ordered appellant and Jesus to stop fighting, but appellant refused and the two had to be physically separated.

            While Officer Wiebe was trying to calm appellant, he hit her on the left side of her head.  Appellant got away and attacked another student, Ruben  P.  Officer Wiebe ordered the two to stop fighting and threatened to pepper spray them.  Appellant again refused, and Officer Wiebe pepper-sprayed him in the face and eyes.  Appellant swung at the officer, but was subdued and handcuffed.

            Paramedics arrived and placed appellant on a stretcher.  As he was carried off, appellant spit blood on students Miguel  E. and Geraldine  S.  The spittle landed on Miguel's shirt and hand and on Geraldine's cheek and shirt.  Appellant told an officer that he spit at Miguel because he was a â€