In re David S. 3/19/02 CA2/7

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2002 » In re David S. 3/19/02 CA2/7

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B136865

Case Date: 06/13/2002

Preview:Filed 3/19/02

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SECOND APPELLATE DISTRICT DIVISION SEVEN

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

B136865 (Super. Ct. No. PJ24602)

THE PEOPLE, Plaintiff and Respondent, v. DAVID S., Defendant and Appellant.

APPEAL from an order of the Superior Court County of Los Angeles. Jack Gold, Commissioner. Affirmed in part, reversed in part, and remanded. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent. ________________________________

David S. appeals from the order of wardship after findings he committed first degree murder in which a principal intentionally discharged a firearm proximately causing death, the offense was committed for the benefit of a criminal street gang, and he was an active participant in a criminal street gang. He was committed to the California Youth Authority. He contends: (1) the court committed misconduct; (2) the evidence is insufficient to support a finding of first degree murder; (3) by operation of law the court's finding in this case is for murder of the second degree; (4) the court improperly calculated the maximum theoretical period of confinement by using the gang enhancement; (5) the evidence was insufficient to show he "actively participated" in a criminal street gang; (6) the corpus delicti of the offense of street terrorism, Penal Code section 186.22, subdivision (a), was not independently established; (7) the court improperly calculated the maximum theoretical period of confinement; and (8) the court failed to exercise its discretion under In re Manzy W. He also requests, if a remand is ordered, that a different bench officer be required to make the determinations upon remand. On April 25, 2001, we filed an opinion in this case rejecting appellant's contentions and affirming the order of the juvenile court. On May 9, 2001, appellant filed a petition for rehearing raising a new issue. He requested this court follow People v. Garcia (2001) 88 Cal.App.4th 794, and find the evidence is insufficient to support a finding of a Penal Code section 12022.53, subdivision (e) enhancement since there is no evidence in this record the shooter, Spider Acosta, an adult, was convicted of murder. Subsequent to filing his petition for rehearing on August 8, 2001, in case No. S099765, the California Supreme Court granted hearing in Garcia. We granted appellant's request for rehearing so appellant could raise the Garcia issue in his appeal.
2 1

Welf. & Inst. Code,

Download In re David S. 3/19/02 CA2/7.pdf