In re Bernardo M. CA5

California Court of Appeal Mar 27, 2014 No. F065906Unpublished

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Holding. The court affirmed the juvenile court's judgment, holding that the variance between the cited statute in the petition and the evidence presented did not violate due process and that sufficient evidence supported the finding that the appellant knowingly associated with gang members in violation of a court injunction.

Issues

Whether the appellant was denied procedural due process due to a variance between the statute cited in the petition and the statute under which he was prosecuted.
Whether there was sufficient evidence to support the finding that the appellant violated a gang injunction by knowingly associating with other gang members.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since appellant, in effect, concedes he had adequate notice of the charges against him, we conclude the variance between the petition and the evidence is inconsequential.”

“Accordingly, since the evidence amply supports the court’s implicit finding that appellant was aware the other occupants of the Honda were Norteño gang members, we reject appellant’s sufficiency of the evidence claim.”

Filed 3/27/14 In re Bernardo M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 BERNARDO M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, F065906 Plaintiff and Respondent, (Super. Ct. No. JJD062587) v. BERNARDO M., OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Kelly Babineau, 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, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P.J., Franson, J., and LaPorte, J.† † Judge of the Kings Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

The court readjudged appellant, Bernardo M., a ward of the court after it sustained allegations charging him with willful violation of a court order (Pen. Code, § 166, subd. (a)(10)).1 On appeal, appellant contends: 1) he was denied procedural due process because the underlying petition cited the wrong code section; and 2) the evidence is insufficient to sustain the court’s finding that he violated a court order. We affirm. FACTS On September 4, 2012, at appellant’s jurisdictional hearing, the prosecutor requested judicial notice that on July 19, 2011, appellant admitted allegations in a prior petition that he violated the association clause of an injunction issued against the Norteño gang. (§ 166, subd. (a)(9).) The court granted the prosecutor’s request for the purpose of showing appellant was served with the injunction and his knowledge and understanding of its terms. The prosecution then presented evidence establishing that on February 15, 2012, at approximately 9:49 p.m. in Cutler, Tulare County Sheriff’s Deputy Carlos Lara stopped a Honda Accord driven by Bernardo Pena (Pena) because the light on the license plate was out. Appellant was seated in the front passenger’s seat, Alberto Zavala (Alberto) was seated in the rear seat behind appellant, and Alejandro Zavala (Alejandro) was seated in the rear behind Pena. When Deputy Lara approached Pena, he noticed Pena’s eyes were red and watery, his speech was slurred, and there was an odor of an alcoholic beverage coming from the interior of the car. Lara recognized appellant from at least two previous contacts, including one a few months earlier when appellant was arrested in Orosi by the gang unit because he was intoxicated and belligerent. After having the back seat passengers roll

In re Bernardo M. CA5

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