In re Eduardo A. CA5

Filed 8/2/13 In re Eduardo A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re EDUARDO A., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, F066346

Plaintiff and Respondent, (Super. Ct. No. JJD065539)

v. OPINION EDUARDO A.,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Kane, J. and Detjen, J.

An amended juvenile delinquency petition charged minor, Eduardo A., with carrying a concealed dirk or dagger (count 1; Pen. Code, § 213101), discharging a firearm at an inhabited dwelling (count 2; § 246), discharging a firearm at an occupied vehicle (count 3; § 246) and assault with a firearm (counts 4-7; § 245, subd. (a)(2)). Counts 2 to 7 alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(B), (b)(4)(B)) and counts 4 to 7 alleged minor personally used a firearm in the commission of the offenses (§ 12022.5, subd. (a)). The court later found counts 1, 4, 5, 6 and the special allegations to be true. The court found counts 2, 3 and 7 not proved and dismissed the petition as to those counts. At the disposition hearing, the court found minor not suitable for deferred entry of judgment, determined all of the offenses were felonies, calculated a maximum period of confinement of 25 years 4 months, declared minor a ward, removed him from his parents‟ custody, and placed him on probation under the supervision of the probation officer for out of home placement in the Youth Correctional Center Unit for 240 to 365 days. Minor filed a timely notice of appeal. The sole issue raised on appeal is minor‟s contention that the section 186.22 gang enhancement should be reversed because inadmissible expert testimony on minor‟s intent was received and minor was denied effective assistance of counsel because trial counsel did not object to or seek to exclude that expert testimony. We conclude that if there was any error in admitting the expert testimony, it was harmless and therefore affirm. Penal Code section 186.22, subd. (b)(1) provides, in relevant part, as follows: