In re E.M. CA1/1 ( 2013 )

Filed 6/5/13 In re E.M. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re E.M., a Person Coming Under the
Juvenile Court Law. A136811
THE PEOPLE,
(Napa County
Plaintiff and Respondent, Super. Ct. No. JV17156)
v.
E.M. ,
Defendant and Appellant.
In re E.M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, (Solano County
Super. Ct. No. J41398)
Plaintiff and Respondent,
v.
E.M. ,
Defendant and Appellant.
Minor E.M. appeals from final dispositional orders requiring him to register as a
gang member. The orders were issued by the Napa County Juvenile Court on
September 26, 2012, and by the Solano County Juvenile Court on October 3, 2012.
Appellant has filed a timely appeal. As required under People v. Kelly (2006) 40 Cal.4th
106, 124, we affirmatively note counsel for appellant has filed a Wende brief (People v.
Wende (1979) 25 Cal.3d 436) raising no arguable issues, counsel apprised appellant of
his right to file a supplemental brief, and appellant did not file such a brief. Upon review
of the record for potential error, we conclude no arguable issues are presented for review
and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On August 5, 2010, a witness observed two Hispanic males breaking the windows
of a Honda Passport and a Lincoln LS. One used a tire iron to break the windows of the
Honda. Approximately two hours later, an officer stopped a vehicle matching the
witness’s description of the car seen in the area at the time of the vandalism. Appellant
was in the car along with three other individuals. Police located a metal pipe in the
vehicle and a tire iron in the trunk. O.M., an occupant of the vehicle, stated they had
been driving when unknown individuals yelled, “Southside.” In response, O.M. exited
the vehicle, grabbed a pipe, and smashed out a window. He stated appellant broke the
other window.
The Napa County District Attorney filed a petition pursuant to Welfare and
Institutions Code section 602, subdivision (a), on August 9, 2010, alleging two counts of
felony vandalism for the benefit of or in association with a criminal street gang (Pen.
Code,1 §§ 186.22, subd. (b)(1)(A) & 594, subd. (b)(1)), possession of a deadly weapon
(billy) for the benefit of or in association with a criminal street gang (§§ 12020, subd. (a)
& 186.22, subd. (b)(1)(A)), and street terrorism (§ 186.22, subd. (a)).
On August 25, 2010, appellant admitted all charges and gang enhancements. The
juvenile court placed him on a 12- to 36-month term of probation without wardship
pursuant to Welfare and Institutions Code section 790, deferred entry of judgment. The
court imposed various terms and conditions. At the time of appellant’s admissions, the
court informed him twice he was required to register as a gang member.
Appellant again appeared before the Napa County Juvenile Court on
November 24, 2010, where based on his admissions, the court found appellant had
violated the terms of the deferred entry of judgment by failing to maintain passing grades,
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All statutory references are to the Penal Code unless otherwise indicated.
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failing to attend school, associating with known gang members, and possessing items
with gang significance. The court declared appellant to be a ward of the court and placed
him on probation, but did not order mandatory gang registration at the hearing.
A second wardship petition was filed in Napa County on May 10, 2011, alleging
appellant committed two misdemeanors, tattooing a minor (§ 653) and cruelty by
inflicting injury on a child (§ 273a, subd. (b)). It was further alleged appellant violated
his probation terms by associating with known gang members and testing positive for
marijuana.
Appellant admitted the charge of tattooing a minor and the probation violation.
The court continued appellant as a ward of the court, adopting terms and conditions of
probation with a number of modifications. Gang registration was not ordered at that
hearing.
On March 27, 2012, appellant’s case was transferred from Napa County to Solano
County for delinquency supervision because his father resided in Solano County. The
Solano County Juvenile Court accepted the transfer of jurisdiction.
The Solano County District Attorney asked the court to impose a probation
condition ordering appellant to register as a gang member pursuant to section 186.30,
based on the admitted and sustained offenses from the original petition filed on August 9,
2010. The parties subsequently submitted memoranda. Appellant’s counsel argued that
when appellant admitted violating section 186.22, subdivision (a), there was no evidence
the Napa court told him he would be required to register as a gang member if his deferred
entry of judgment status was later revoked.
Before the Solano County Juvenile Court had an opportunity to determine whether
appellant was required to register, on June 11, 2012, the Napa County District Attorney
filed a new petition alleging that on June 7, 2012, appellant committed a misdemeanor,
resisting a police officer (§ 148, subd. (a)(1)). After appellant admitted the charge, the
case was transferred back to Solano County for disposition.
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On July 3, 2012, the Solano County Juvenile Court held a dispositional hearing
and continued appellant as a ward of the court on probation. It did not order mandatory
gang registration.
It was not until August 2, 2012 that the Solano court focused on the gang
registration issue. Appellant’s case was transferred back to Napa County Juvenile Court
to determine if appellant could withdraw his admission to the charges in the original
wardship petition for the failure of the court to advise him of the mandatory gang
registration requirements.
On September 26, 2012, the Napa County Juvenile Court determined appellant
was required to register as a gang member and imposed that condition nunc pro tunc back
to August 25, 2010, the date on which appellant admitted the charges and was placed on
deferred entry of judgment. The case was then transferred back to Solano County.
On October 3, 2012, the Solano County Juvenile Court accepted the transfer of
jurisdiction. Appellant was ordered to register as a gang member.
DISCUSSION
Appellant was represented by able counsel throughout the proceedings.
The Napa County Juvenile Court correctly determined appellant was required to
register as a criminal street gang member under the mandatory language of
section 186.30, and hence, appropriately imposed the registration condition nunc pro tunc
back to August 25, 2010, when it was originally imposed. Moreover, appellant was on
prior notice of the registration requirement when the juvenile court informed him twice
on August 25th that he would be required to register as a gang member for up to five
years. Appellant, nonetheless, failed to register.
In all of his matters, appellant freely and voluntarily admitted the charges,
enhancements, and the probation violation.
There was no dispositional error.
The court has reviewed the entire record and finds no arguable issues requiring
further briefing.
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Accordingly, the judgment is affirmed.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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