People v. Banos CA4/3

Filed 5/23/16 P. v. Banos CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050542

v. (Super. Ct. No. 11WF2322)

RODERICK EDGAR BANOS, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part, reversed in part and modified. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana Butler and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Roderick Edgar Banos was placed on probation after a jury found him guilty of carrying a concealed dirk or dagger with an attendant gang enhancement. Appellant contends there is insufficient evidence to support the gang enhancement, and one of his probation conditions is overbroad. We agree. Therefore, we will reverse the true finding on the gang enhancement and modify appellant’s probation. At the parties’ request, we will also modify the judgment to ensure it accurately reflects the court’s sentencing decision. In all other respects, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant was originally charged with three crimes: 1) Carrying a concealed dirk or dagger; 2) street terrorism; and 3) possessing 28.5 grams or less of marijuana. (Pen. Code, §§ 12020, subd. (a)(4) [repealed and recodified in Penal Code section 21310]; 186.22, subd. (a), Health & Saf. Code, § 11357, subd. (b)).1 For sentencing purposes, it was also alleged appellant committed the first crime for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Appellant pleaded guilty to the first two crimes, but his plea was vacated after the California Supreme Court determined a person cannot be convicted of street terrorism when they act alone, as appellant did in this case. (People v. Rodriguez (2012) 55 Cal.4th 1125.) In addition to dismissing the street terrorism charge, the prosecution also dismissed the drug charge, leaving only the weapon charge and the gang enhancement. The trial on those charges revealed the following facts: Orange County Sheriff’s Deputy Khantui Char was on patrol when he noticed appellant, then age 20, riding a BMX style bicycle in Midway City. Because it was dark and appellant’s bicycle was not equipped with a safety light, Char stopped him. At the time, appellant was wearing a hooded sweatshirt, baggy shorts, black tennis shoes,