Fear Not Law Articles: In re FRANK S.

In re FRANK S.

Filed 8/1/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re FRANK S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

FRANK S.,

Defendant and Appellant.

F049045

(Super. Ct. No. J-57211)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. William Silveira, Jr., Judge.

Michelle Guardado, 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, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile division of the superior court found true against appellant Frank S., a minor, one count of carrying a concealed dirk or dagger (Pen. Code^[1], § 12020, subd. (a)(4)) with a gang enhancement (§ 186.22, subd. (b)(1)), one count of possession of methamphetamine (Health and Saf. Code, § 11377, subd. (a)), and one count of false representation to a peace officer (§ 148.9, subd. (a)). The minor appeals, claiming sufficient evidence does not exist to support the court's finding true the special allegation that appellant possessed the dirk or dagger for the benefit of his gang with the specific intent to promote, further, or assist criminal gang behavior. We agree and reverse the special allegation. We publish this case to emphasize that crimes may not be found to be gang-related based solely upon a perpetrator's criminal history and gang affiliations.

FACTS

On July 17, 2005, a Visalia police officer initiated a traffic stop of the minor after he failed to stop at a red traffic light while riding a bicycle. The minor rode alone and gave a false name to the officer. The officer discovered the minor in possession of a concealed five-and-one-half-inch fixed blade knife, a small bindle of methamphetamine, and a red bandana. After the officer arrested the minor, the minor stated he had been attacked two days prior and needed the knife for protection against â€

Description	Evidence that juvenile was a gang member and was found in possession of a knife. Combined with expert opinion that such possession benefited the gang because, "it helps provide them protection should they be assaulted by rival gang members," was insufficient to support finding that juvenile possessed the knife for the benefit of street gang. Expert's opinion usurped role of trier of fact and did not compensate for lack of evidence that minor had any reason for possessing knife other than self-protection such as evidence that the minor was in gang territory. Had gang members with him, or had reason to expect to use the knife in a gang-related offense.
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