In re Eric P.

Filed 1/17/07  In re Eric P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Douglas N. Gericke, Judge.  Affirmed in part, reversed in part.

            Victoria E. Fuller, Patrick DuNah, and Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, for Plaintiff and Respondent.

            Born December 1987, appellant Eric P. (appellant) is now 18 years old.  His most recent arrest, in August 2005, resulted in his being charged with carrying a loaded weapon for the benefit of a gang.  Appellant contends that the finding that he carried the weapon for the benefit of his gang is not supported by sufficient evidence of the specific intent required by Penal Code^[1] section 186.22, subdivision (b)(1).  We agree and will reverse the gang enhancement.

FACTUAL AND PROCEDURAL HISTORY

            Appellant has been the subject of four Welfare and Institutions Code section 602 petitions and two Welfare and Institutions Code section 777 petitions in less than two years. 

            A.         First Two Welfare and Institutions Code Section 602 Petitions

The first Welfare and Institutions Code section 602 petition was filed September 8, 2004, by the Orange County District Attorney's office after the car that appellant's older brother was driving was stopped for a traffic violation.  During a lawful search, police discovered a machete between the driver's and front passenger's seats, where appellant had been sitting.  They also found a modified rifle loaded with hollow-point bullets, which appellant said was his, in the trunk; and a hollow-point bullet in appellant's pocket.  Appellant said that he carried the weapon for protection and admitted that he and another passenger, David Vargas, were East Side Colton Gang members. 

The petition alleged that appellant possessed a deadly weapon, a short-barreled modified rifle (§ 12020, subd. (a)(1); count 1, a felony); a controlled substance, methamphetamine (Health & Saf. Code § 11377, subd. (a); count 2, a felony); drug paraphernalia (Health & Saf. Code § 11364; count 3, a misdemeanor); and was a minor in possession of a firearm (§ 12101, subd. (a)(1); count 4, a misdemeanor).  On September 30, 2004, appellant admitted the first three charges and count 4 was dismissed.  Because appellant was a resident of San Bernardino County, the matter was transferred there for disposition. 

In a telephone interview on October 6, 2004, appellant told San Bernardino County Probation Officer Russell Perry that he had been using methamphetamine since he was 15 years old.  As he had told police when he was arrested, he admitted that he was a member of the East Side Colton Gang.  He said that his friends were East Side Colton Gang members and that the tattoos a friend put on him in 2004 were East Side Colton Gang tattoos.  If something were to happen in the presence of gang members, he would â€