In re Aurelio G.
Filed 7/7/06 In re Aurelio G. CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| In re AURELIO G., a Person Coming Under The Juvenile Court Law. |
|
| THE PEOPLE, Plaintiff and Respondent, v. AURELIO G., Defendant and Appellant. |
F049053
(Super. Ct. No. 05JQ0127) |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.
Elisa A. Brandes, 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, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
The court adjudged appellant, Aurelio G., a ward of the court after Aurelio admitted allegations in a petition charging him with committing the offense of challenging a person to fight (Pen. Code, § 415)[1] for the benefit of a criminal street gang (§ 186.22, subd. (d)).
Aurelio's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Aurelio has not responded to this court's invitation to submit additional briefing.
However, our review of the record disclosed the following issues. Even though committing a misdemeanor offense for the benefit of a criminal street gang is a wobbler offense, i.e., an offense that is punishable as a misdemeanor or a felony (§ 186.22, subd. (b)), the court did not determine the character of this offense as required by Welfare and Institutions Code, § 702. (See also In re Manzy W. (1997) 14 Cal.4th 1199.) In view of this, we will remand this matter to the juvenile court so it may comply with this section. Further, although the court cited section 296.1, subdivision (3)(A) for its order, requiring appellant to provide certain body samples, it appears the court intended to cite section 296, subdivision (a)(1) for this requirement because that is the only section that potentially applies to Aurelio's case. Additionally, section 296 subdivision (a)(1) applies only if a juvenile is adjudicated of committing a felony offense. Therefore, we will stay this requirement pending the juvenile court's determination of the character of appellant's gang offense with directions that the stay be lifted if the court declares the offense to be a felony or that the requirement be stricken if it declares it to be a misdemeanor.
Moreover, following independent review of the record, we find that with the exception of the issues discussed above, no other reasonably arguable factual or legal issues exist.
DISPOSITION
The matter is remanded to the juvenile court so that it may declare the character of Aurelio's gang offense in accord with Welfare and Institutions Code section 702. The order requiring Aurelio to provide certain body samples is stayed pending the court's determination of the character of Aurelio's offense. If the court declares Aurelio's offense to be a felony, it shall lift the stay; if it declares it to be a misdemeanor, it shall strike the order. In all other respects, the judgment is affirmed.
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* Before Harris, A.P.J., Gomes, J., and Hill, J.
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
