In re Semaj D

Filed 5/23/06  In re Semaj 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Kern County.  H. A. Staley, Judge.

            Maureen L. Fox, 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, Janis Shank McLean and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

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            Appellant Semaj D. raises various claims relating to a shooting outside his ex-girlfriend's house.  The juvenile court found that he actively participated in a criminal street gang (Pen. Code, §  186.22, subd.  (a),^[1] count  5); carried a concealed firearm while actively participating in a gang (§  12025, subd.  (b)(3), count 4); and discharged a firearm in a grossly negligent manner (§  246.3, count  3).  The court also concluded that appellant had violated his probation (count 6).  The court found not true the gang enhancements (§  186.22, subd.  (b)(1)) alleged in connection with counts 3 and 4. 

            Appellant requested dismissal of count 5, contending that the finding that he actively participated in a gang (§  186.22, subd.  (a)) was inconsistent with the court's not-true findings on the gang enhancements (§  186.22, subd.  (b)(1)).  The court denied the motion and committed appellant to the California Youth Authority for a period of four years and four months:  the upper term of three years on count 5; eight months on count 3, to be served consecutively; and eight months on count 4, to be served consecutively. 

            On appeal, appellant contends that (1)  active participation in a gang is a lesser-included offense of carrying a concealed weapon while actively participating in a gang; (2)  insufficient evidence supports the finding that he carried a concealed firearm while actively participating in a gang; (3)  insufficient evidence supports the finding that he actively participated in a gang; (4)  punishment for both actively participating in a gang and carrying a concealed weapon while actively participating in a gang violates the multiple-punishment ban of section  654; and (5)  punishment for both carrying a concealed weapon while actively participating in a gang and discharging a firearm in a grossly negligent manner also violates section  654.  We reverse the adjudication on count  5 that appellant actively participated in a gang (§  186.22, subd.  (a)) and remand for a new disposition.

FACTUAL HISTORY

            On the afternoon of April  11, 2005, appellant's ex-girlfriend was at home with her mother, her nephew's fiancée, and the fiancée's three children, who were all between two and three years old.  Appellant called his ex-girlfriend several times that day.  She finally called her boyfriend and they had a three-way telephone conversation.  Her boyfriend told appellant not to call her anymore and they got into an argument. 

About an hour later, appellant called his ex-girlfriend and told her to go outside.  She looked through the window and saw him.  She stepped outside the front door and looked at him.  He stood alone in the street, about 30 to 45 feet from her.  He was wearing a red â€