In re E.M.
Filed 6/5/13 In re E.M. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
>
In re E.M., a Person Coming Under the Juvenile Court Law. | A136811 |
THE PEOPLE, Plaintiff and Respondent, v. E.M. , Defendant and Appellant. | (Napa County Super. Ct. No. JV17156) |
In re E.M., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. E.M. , Defendant and Appellant. | (Solano County Super. Ct. No. J41398) |
Minor
E.M. appeals from final dispositional orders requiring him to register as a
gang member. The orders were issued by
the Napa
County Juvenile Court on September 26, 2012, and by the Solano County
Juvenile Court on October 3, 2012.
Appellant has filed a timely appeal.
As required under People v. Kelly (2006)
40 Cal.4th 106, 124, we affirmatively note counsel for appellant has filed a
counsel apprised appellant of his right to file a
file such a brief. Upon review of the
record for potential error, we conclude no arguable issues are presented for
review and affirm the judgment.
STATEMENT OF
FACTS AND PROCEDURAL HISTORY
On
August 5, 2010, a witness observed two Hispanic males breaking the windows of a
Honda Passport and a Lincoln LS. One
used a tire iron to break the windows of the Honda. Approximately two hours later, an officer
stopped a vehicle matching the witness’s description of the car seen in the
area at the time of the vandalism.
Appellant was in the car along with three other individuals. Police located a metal pipe in the vehicle
and a tire iron in the trunk. O.M., an
occupant of the vehicle, stated they had been driving when unknown individuals
yelled, “Southside.†In response, O.M.
exited the vehicle, grabbed a pipe, and smashed out a window. He stated appellant broke the other window.
The
Napa County District Attorney filed a petition pursuant to Welfare and
Institutions Code section 602, subdivision (a), on August 9, 2010, alleging two
counts of felony vandalism for the benefit of or in association with a criminal
street gang (Pen. Code,
name="_ftnref1" title="">[1]
§§ 186.22, subd. (b)(1)(A) & 594, subd. (b)(1)), possession of a
deadly weapon (billy) for the benefit of or in association with a criminal
street gang (§§ 12020, subd. (a) & 186.22, subd. (b)(1)(A)), and
street terrorism (§ 186.22, subd. (a)).
On
August 25, 2010, appellant admitted all charges and gang enhancements. The juvenile court placed him on a 12- to
36-month term of probation without wardship pursuant to Welfare and
Institutions Code section 790, deferred entry of judgment. The court imposed various terms and
conditions. At the time of appellant’s
admissions, the court informed him twice he was required to register as a gang
member.
Appellant
again appeared before the Napa County Juvenile Court on November 24, 2010,
where based on his admissions, the court found appellant had violated the terms
of the deferred entry of judgment by failing to maintain passing grades,
failing to attend school, associating with known gang members, and possessing
items with gang significance. The court
declared appellant to be a ward of the court and placed him on probation, but
did not order mandatory gang registration at the hearing.
A
second wardship petition was filed in Napa County on May 10, 2011, alleging
appellant committed two misdemeanors, tattooing a minor (§ 653) and
cruelty by inflicting injury on a child (§ 273a, subd. (b)). It was further alleged appellant violated his
probation terms by associating with known gang members and testing positive for
marijuana.
Appellant
admitted the charge of tattooing a minor and the probation violation. The court continued appellant as a ward of
the court, adopting terms and conditions of probation with a number of
modifications. Gang registration was not
ordered at that hearing.
On
March 27, 2012, appellant’s case was transferred from Napa County to Solano
County for delinquency supervision because his father resided in Solano
County. The Solano County Juvenile Court
accepted the transfer of jurisdiction.
The
Solano County District Attorney asked the court to impose a probation condition
ordering appellant to register as a gang member pursuant to section 186.30,
based on the admitted and sustained offenses from the original petition filed
on August 9, 2010. The parties
subsequently submitted memoranda.
Appellant’s counsel argued that when appellant admitted violating
section 186.22, subdivision (a), there was no evidence the Napa court told him
he would be required to register as a gang member if his deferred entry of
judgment status was later revoked.
Before
the Solano County Juvenile Court had an opportunity to determine whether
appellant was required to register, on June 11, 2012, the Napa County District
Attorney filed a new petition alleging that on June 7, 2012, appellant
committed a misdemeanor, resisting a police officer (§ 148, subd. (a)(1)). After appellant admitted the charge, the case
was transferred back to Solano County for disposition.
On
July 3, 2012, the Solano County Juvenile Court held a dispositional hearing and
continued appellant as a ward of the court on probation. It did not order mandatory gang
registration.
It
was not until August 2, 2012 that the Solano court focused on the gang
registration issue. Appellant’s case was
transferred back to Napa County Juvenile Court to determine if appellant could
withdraw his admission to the charges in the original wardship petition for the
failure of the court to advise him of the mandatory gang registration
requirements.
On
September 26, 2012, the Napa County Juvenile Court determined appellant was
required to register as a gang member and imposed that condition nunc pro tunc
back to August 25, 2010, the date on which appellant admitted the charges and
was placed on deferred entry of judgment.
The case was then transferred back to Solano County.
On
October 3, 2012, the Solano County Juvenile Court accepted the transfer of
jurisdiction. Appellant was ordered to
register as a gang member.
Appellant was
represented by able counsel throughout the proceedings.
The
Napa County Juvenile Court correctly determined appellant was required to
register as a criminal street gang member under the mandatory language of
section 186.30, and hence, appropriately imposed the registration
condition nunc pro tunc back to August 25, 2010, when it was originally
imposed. Moreover, appellant was on prior
notice of the registration requirement when the juvenile court informed him
twice on August 25th that he would be required to register as a gang member for
up to five years. Appellant,
nonetheless, failed to register.
In
all of his matters, appellant freely and voluntarily admitted the charges,
enhancements, and the probation violation.
There
was no dispositional error.
The
court has reviewed the entire record and finds no arguable issues requiring
further briefing.
Accordingly,
the judgment is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise indicated.
