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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re ERNESTO H., a Person Coming Under the Juvenile Court Law.
H029814
(MontereyCounty
Super. Ct. No. J38458)
THE PEOPLE,
Plaintiff and Respondent,
v.
ERNESTO H.,
Defendant and Appellant.
Statement of the Case
On August 3, 2005, the Monterey County District Attorney filed a petition under Welfare and Institutions Code section 602, alleging that Ernesto H., a minor, committed one count of attempted, premeditated murder and four counts of assault with a deadly weapon and further alleged that in committing the offenses, the minor personally inflicted great bodily injury and acted for the benefit of a criminal street gang.[1] (Pen. Code, §§ 186.22, subd. (b)(1), 187, 245, subd. (a), 664, 12022.7, subd. (a).)
On November 21, 2005, the court conducted a jurisdictional hearing. It sustained the allegations of attempted murder and three counts of assault with a deadly weapon, the gang allegations on each count, and the allegations of great bodily injury as to the attempted murder and one count of assault. Later, at the dispositional hearing, the court continued the minor as a ward of the court, calculated his maximum term as 29 years and seven months to life, and committed him to the California Youth Authority.[2]
The minor appeals from the jurisdictional and dispositional orders. He claims there is insufficient evidence to support the findings of (1) attempted murder, (2) premeditation and deliberation, and (3) commission of the offenses for the benefit of a street gang.
We strike the gang finding, reverse the dispositional order, and remand the matter for further proceedings.
Evidence and Ruling
On July 21, 2005, around 6:50 p.m., Sergio Ornelas was riding his bicycle back home when the minor and two others started running toward him. The minor was wearing a hooded sweatshirt, with the hood up over his head. Ornelas was wearing a regular gray-blue sweatshirt bearing a 49er logo. He noticed a white truck at a stop sign. When the minor and his companions reached Ornelas, they suddenly attacked him. As Ornelas tried to defend himself with his bicycle, the minor left and went over to the truck, rummaged through objects in the back, and returned carrying a hammer. He told Ornelas to drop the bicycle or else he would hit him with the hammer. Ornelas did not comply, and the minor hit him â€
Description
On August 3, 2005, the Monterey County District Attorney filed a petition under Welfare and Institutions Code section 602, alleging that a minor, committed one count of attempted, premeditated murder and four counts of assault with a deadly weapon and further alleged that in committing the offenses, the minor personally inflicted great bodily injury and acted for the benefit of a criminal street gang. (Pen. Code, $$ 186.22, subd. (b)(1), 187, 245, subd. (a), 664, 12022.7, subd. (a).) On November 21, 2005, the court conducted a jurisdictional hearing. It sustained the allegations of attempted murder and three counts of assault with a deadly weapon, the gang allegations on each count, and the allegations of great bodily injury as to the attempted murder and one count of assault. Later, at the dispositional hearing, the court continued the minor as a ward of the court, calculated his maximum term as 29 years and seven months to life, and committed him to the California Youth Authority. The minor appeals from the jurisdictional and dispositional orders. Appellant claims there is insufficient evidence to support the findings of (1) attempted murder, (2) premeditation and deliberation, and (3) commission of the offenses for the benefit of a street gang. Court strike the gang finding, reverse the dispositional order, and remand the matter for further proceedings.
