In re J.B.

Filed 6/29/06 In re J.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Edward M. Lacy, Jr., Judge.

Harry Zimmerman, 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 G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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PROCEDURAL HISTORY

J. B. (appellant) was charged by a subsequent petition with possession of a concealable firearm by an active street gang member (Pen. Code,^[1] § 12025, subd. (b)(3), count I); possession of a concealed weapon (§ 12101, subd. (a), count II); active participation in a criminal street gang, erroneously charged as a distinct felony under section 186.22, subdivision (d), count III); and misdemeanor possession of live ammunition (§ 12101, subd. (b), count IV). Count II included a gang enhancement under section 186.22, subdivision (b)(1)(A). The petition further advised that the court was entitled to aggregate terms based on previously sustained petitions.

Following a jurisdictional hearing, the juvenile court sustained the petition as to counts III and IV and granted appellant's motion to dismiss counts I and II and to strike the count II enhancement based on insufficient evidence. The court denied appellant's motion to set aside the true finding on count III and amended the charge sua sponte to reflect a violation of section 12101, subdivision (b), punishable as a felony pursuant to section 186.22, subdivision (d). The court then committed appellant to the California Youth Authority (CYA) for the maximum period of four years and four months after finding he committed the offense of possessing live ammunition for the benefit of a criminal street gang (§ 12101, subd. (b); § 186.22, subd. (d)).

On appeal, appellant contends that the court violated his right to confront witnesses against him by admitting hearsay evidence of statements made by appellant's companion, Kyle E., in which Kyle identified himself as a member of appellant's gang. The prosecution's gang expert relied on this evidence to reach his opinion that Kyle was a gang member and that his possession of a rifle could qualify as one of the two predicate offenses necessary to establish a â€