In re D.M. CA5

Filed 4/4/13 In re D.M. CA5 Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F064450

Plaintiff and Respondent, (Super. Ct. No. 11CEJ600949-1)

v. OPINION D.M.,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Courtney M. Selan, 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, Stephen G. Herndon and Harry Joseph Colombo, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Levy, J. and Gomes, J.

It was alleged in a juvenile wardship petition filed November 8, 2011 (first petition), that appellant, D.M., a minor, committed the following offenses: possession of a controlled substance, viz., codeine (Health & Saf. Code, § 11350, subd. (a); count 1), resisting an executive officer (Pen. Code, § 69; count 2)1, and active participation in a criminal street gang (§ 186.22, subd. (a); count 3).2 In a second wardship petition, filed December 6, 2011, it was alleged appellant committed two counts of first degree burglary (§§ 459, 460, subd. (a); counts 1 & 4), two counts of active participation in a criminal street gang (§ 186.22(a); counts 5 & 6) and individual counts of grand theft (§ 487, subd. (a); count 2) and grand theft of a firearm (§ 487, subd. (d); count 3). At a jurisdiction hearing covering both petitions, the juvenile court found true all allegations except for count 1 in the first petition. Following the subsequent disposition hearing, the court adjudged appellant a ward of the court and placed him on probation. The court also ordered appellant to pay direct restitution totaling $11,583.19 to the victims of the two burglaries, and a restitution fine of $500 (Welf. & Inst. Code, § 730.6). In a previous opinion, filed November 27, 2012, we rejected the sole argument raised by appellant on appeal, viz., the claim that the evidence was insufficient to support his adjudication of violating section 186.22(a) as alleged in count 3 of the first petition,3 and affirmed the judgment. The California Supreme Court granted review and has now directed us to vacate our prior decision and reconsider this cause in light of People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez).