In re Juan R.

Filed 2/8/07  In re Juan R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE COURT^*

            APPEAL from a judgment of the Superior Court of Tulare County.  Valeriano Saucedo, Judge.

            Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

The court adjudged appellant, Juan R., a ward of the court (Welf. & Inst. Code, § 602)^[1] after it sustained allegations charging him with assault with a deadly weapon (count 1/Pen. Code, § 245, subd. (a)(1)), challenging another person to fight (count 2/Pen. Code, § 415, subd. (1)), and brandishing a deadly weapon (count 3/Pen. Code, § 417, subd. (a)(1)).  The court also found true a gang enhancement in count 1 (Pen. Code, § 186.22, subd. (b)(1)(B)) and allegations in counts 2 and 3 that the underlying offense in those counts were committed for the benefit of a street gang (Pen. Code, § 186.22, subd. (d)).  On March 17, 2006, the court set Juan's maximum period of physical confinement (MPPC) at 11 years 8 months and placed him in the custody of the probation officer for placement in the Youth Treatment Center for 45 to 180 days.  On appeal, Juan contends: 1) the evidence is insufficient to sustain the court's finding that he committed assault with a deadly weapon; 2) the court's disposition order violated Penal Code section 654; and 3) the court erred in setting his MPPC.  We will affirm.

FACTS

            On September 23, 2005, during the lunch hour, Juan, his older brother, and some other juveniles were in a van that drove by Dinuba High School past Norteño gang members Angel M. and Alvaro M.  Vice Principal Michael Langton testified that after the van made a sudden stop, Juan and his brother jumped out.  Juan was very angry and was holding a pipe in his right hand in a threatening manner over his head.  Langton yelled at the juveniles to stop and Juan and his brother got back into the van.  Langton believed that if he had not intervened Juan would have hit Angel and Alvaro with the pipe.  Langton took Angel and Alvaro to the office where they each admitted throwing a rock at the van.

Angel testified that he was walking with Alvaro when Juan and his brother drove by flashing gang signs with three fingers and yelling out â€