Filed 4/27/21 In re J.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed in part, reversed in part, and remanded.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

J.N. appeals from the juvenile court’s judgment entered after the court found he committed murder, felony vandalism, and street terrorism, and he vicariously discharged a firearm. J.N. argues insufficient evidence supports the finding he committed street terrorism.[1] We agree and reverse the true finding on the street terrorism allegation and remand. In all other respects, we affirm the judgment.

FACTS

A felony petition charged J.N., Sergio C., and Alexander E. with the following: murder (Pen. Code, § 187, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated (count 1)), vandalism for the benefit of a criminal street gang (§§ 186.22, subd. (d), 594, subds. (a), (b)(2)(A) (count 2)), and street terrorism (§ 186.22, subd. (a) (count 3)). The petition alleged a gang-murder special circumstance (§ 190.2, subd. (a)(22)), and the criminal street gang enhancement

(§ 186.22, subd. (b)(1)) as to count 1. It also alleged J.N. and Alexander vicariously discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)), and Sergio personally discharged a firearm causing death (§ 12022.53, subd. (d)).

The juvenile court transferred the case to criminal court (Welf. & Inst. Code, § 707, subd. (a)). J.N. filed a petition for writ of mandate challenging the transfer. We granted the petition and ordered the court to enter a new order denying the transfer request (J.N. v. Superior Court (2018) 23 Cal.App.5th 706).

At juvenile court proceedings, on the prosecutor’s motion, the juvenile court dismissed the section 190.2, subdivision (a)(22), special circumstance. The prosecutor stated he intended to pursue the murder charge under the natural and probable consequences doctrine. At the jurisdictional hearing, the prosecutor presented the following evidence.

Santa Ana police officers responded to an intersection in the Dead End Familia gang’s claimed territory and found Edgar Ojeda lying face down suffering from gunshot wounds. Paramedics arrived and pronounced him dead. There was fresh Townsend Street gang graffiti at more than a dozen locations in the area, some of which crossed out Dead End Familia gang graffiti. The graffiti included the monikers “Tanks” and “Crawler.” A nearby camera captured J.N. running away, followed by Sergio and Alexander. An autopsy revealed 24-year-old Ojeda was 68 inches tall and weighed

173 pounds, and had cannabinoids and alcohol in his system. He suffered four gunshot wounds, and had cuts and soot from a gun on his left hand.

About 18 months later, officers arrested J.N. and Sergio. Detective Matthew McLeod advised J.N. of his rights pursuant to Miranda v. Arizona (1966)

384 U.S. 436, and interviewed him. For about the first hour, J.N. denied being present at or knowing anything about the shooting. He stated that at the time of the shooting, he associated with Townsend Street gang members on a daily basis but he was distancing himself from the gang and denied his gang moniker was “Tanks.” J.N. refused to answer any further questions, and McLeod left the room.

A little later, J.N. asked McLeod to return. J.N. admitted his moniker was Tanks and he was with two other Townsend Street gang members at the time of the shooting. J.N. stated he went with Sergio and Alexander to write graffiti in rival gang territory. He was the lookout while they wrote Townsend Street graffiti and crossed out Dead End Familia graffiti. He initially denied writing any graffiti but eventually admitted he wrote some of it. He said Ojeda “popped out” and asked, “‘What are you doing plaquing up my hood?’” Ojeda did not have a gun. Sergio pulled out a gun and asked Ojeda where he was from. Ojeda did not answer but instead reached for the gun. Ojeda and Sergio struggled for control of the gun. J.N. heard gunshots and ran. J.N. initially claimed he did not know Sergio had a gun but later admitted he knew he did. He knew they were in Dead End Familia claimed territory. When McLeod asked J.N. what he would expect a gang member would do when he saw rivals crossing out graffiti in his territory, J.N. said he expected the gang member would “retaliate back” with violence.

McLeod also interviewed Sergio, who claimed he “used to be involved” with Townsend Street but stopped in 2015. He initially denied having a gang moniker, but eventually admitted it was Crawler. Sergio stated he, J.N., and a third person went to cover the graffiti in Dead End Familia claimed territory that he had seen Ojeda paint a couple days earlier. He got a gun from an older gang member in case a rival gang member confronted them. He knew a rival gang member might shoot him. He claimed J.N. knew he had the gun. Sergio said he was the lookout and denied writing the Townsend Street graffiti. Sergio stated Ojeda “jumped out” and asked them where they were from. He recognized Ojeda and knew he was a rival. He pulled out the gun and pointed it at Ojeda’s chest because he was afraid Ojeda had a gun. Sergio said they were from Townsend Street and asked Ojeda what gang he was from. Ojeda repeatedly asked what gang they were from as he approached Sergio. Sergio said he concluded Ojeda did not have a gun but he did not know what Ojeda was doing. He stated Ojeda grabbed the gun and almost took it away from him, but he fired the gun at Ojeda’s chest, emptying the gun. Sergio said he did not initially run because he had a gun and felt protected.

Officer Kiet Nguyen testified concerning an incident that occurred about three months after the shooting. When J.N. saw Nguyen in a patrol car, he ran and discarded a spray paint can but Nguyen caught him. As Nguyen escorted J.N. to his home, his neighbors were yelling and laughing. J.N. said, “‘You [sic] making me famous with the homies. We don’t give a fuck about some pigs. We’re Townsend.’”

McLeod testified as an expert on criminal street gangs. After detailing his background, training, and experience, McLeod testified concerning the culture and habits of traditional turf oriented Hispanic street gangs. McLeod stated gang members use graffiti to advertise their gang and earn respect, and threaten and disrespect rival gang members. He added a gang member risks being assaulted or killed by simply entering rival gang territory. McLeod explained guns are very important in gang culture because they enable gang members to commit crimes and assault rival gang members. He added a “gang gun” is kept in a location known and accessible to gang members. He opined the older gang member gave Sergio a gang gun. He said gang members tell each other when they have a gun. McLeod stated that when a gang member encounters a rival gang member, the gang member will ask where the rival is from and commit a violent act. He said the rival will respond by claiming his gang and violence will ensue.

McLeod testified concerning Townsend Street’s membership, primary activities, common signs and symbols, and criminal gang activity. He explained that at the time of the shooting, Dead End Familia existed and was Townsend Street’s rival. He said the shooting occurred in Dead End Familia’s claimed territory. Based on their statements, their gang monikers, the graffiti, and the circumstances of the shooting, McLeod opined J.N. and Sergio were active members of Townsend Street. Based on a hypothetical scenario rooted in the facts of this case, McLeod opined the graffiti benefitted Townsend Street by advertising the gang, elevating the gang members’ status, intimidating the rival gang, and announcing to rival gang members that Townsend Street gang members intended to commit assaults upon Dead End Familia gang members. Finally, he opined the offenses benefitted Townsend Street by demonstrating the gang members’ brashness because they went into rival gang territory, committed vandalism, and used a gun to eliminate a rival gang member.

The juvenile court found true all of the allegations except the section 186.22, subdivision (b), allegation as to count 1. As to count 1, the court stated J.N. committed second degree murder under the natural and probable consequences theory. Later, the court denied J.N.’s motion for a new jurisdictional hearing. Additionally, the court denied his motion to dismiss count 3 because he committed an uncharged conspiracy (§ 182) to commit felony vandalism. The court acknowledged the argument the conspiracy was to commit misdemeanor vandalism. The court, however, disagreed because the evidence demonstrated they went into rival gang territory to commit vandalism, which was felony conduct (§ 186.22, subd. (d)(1)). The court also denied his motion to reduce count 4 to a misdemeanor without prejudice. The court declared J.N. a ward of the court, stayed his commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, committed him to juvenile hall for

952 days with credit for 952 days, ordered him released, and placed him on probation. The court ordered the probation department to calculate restitution and ordered J.N. to pay restitution as a condition of probation.

Seventeen months later, the juvenile court dismissed the true finding on his second degree murder conviction (§ 1170.95), and reduced counts 2 and 3 to misdemeanors.[2] The court ordered J.N., Sergio, and Alexander jointly and severally liable for over $8,000 in restitution. The court’s restitution order is the subject of our contemporaneously filed case People v. J.N. (April 27, 2021, G058974) [nonpub. opn.].

DISCUSSION

I. Sufficiency of the Evidence

A. Second Degree Murder

J.N. argues there was insufficient evidence he committed second degree murder because the evidence established Sergio shot Ojeda in self-defense. After briefing was complete, we invited the parties to file supplemental letter briefs on the following issue: What effect does the juvenile court’s March 5, 2020, order dismissing its finding J.N. committed second degree murder pursuant to section 1170.95 have on his contention in this appeal that insufficient evidence supports the court’s finding?

In his supplement brief, J.N. states the order “renders the instant appeal moot.” In his supplemental brief, the Attorney General states the order renders moot J.N.’s claim insufficient evidence supports the juvenile court’s “true finding on the murder allegation.” The parties agree the juvenile court’s March 5, 2020, order dismissing its finding J.N. committed second degree murder renders moot his contention insufficient evidence supports that finding. We treat this claim as withdrawn.

However, we disagree with J.N. the juvenile court’s order dismissing its true finding on the murder allegation renders the instant appeal moot. The court also found true J.N. committed street terrorism, although it later reduced that offense to a misdemeanor. On appeal, J.N. challenges the sufficiency of the evidence on that finding, a contention to which we now turn.

B. Street Terrorism

J.N. contends insufficient evidence supports count 3 because there was no evidence he willfully promoted, furthered, or assisted in felonious conduct by gang

members because he only committed misdemeanor vandalism. We agree.

“Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘“[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011)

51 Cal.4th 1020, 1026 (V.V.).)

Section 186.22, subdivision (a), states in relevant part: “Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . .” (Italics added.) The offense committed as the third element of section 186.22, subdivision (a), must be a felony—it cannot be a misdemeanor. (People v. Lamas (2007) 42 Cal.4th 516, 524 (Lamas).)

Here, the parties agree the only basis to support count 3’s felonious criminal conduct requirement is count 2, felony vandalism. Generally, vandalism is punishable as a felony or a misdemeanor, depending on the amount of damage to the property. (§ 594.) Additionally, section 186.22, subdivision (d), can transform a misdemeanor into a felony where it was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” It is an alternate sentencing scheme. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.)

Here, the petition charged, and the juvenile court found true, J.N. committed vandalism for the benefit of a criminal street gang (§ 186.22, subd. (d)). The issue before us is whether vandalism elevated to a felony by virtue of conduct benefitting a criminal street gang (count 2) can also serve as the basis for street terrorism’s felonious criminal conduct requirement (count 3).

The parties dispute whether our Supreme Court’s decision in Lamas, supra, 42 Cal.4th 516, is instructive here. In that case, the court addressed the interplay between the street terrorism substantive offense and former sections 12031, subdivision (a)(2)(C), and 12025, subdivision (b)(3), misdemeanor firearm offenses that become felonies if section 186.22, subdivision (a)’s elements are satisfied. (Lamas, supra, 42 Cal.4th at

pp. 519-520, 523.) The Lamas court stated, “[A]ll of section 186.22(a)’s elements must be satisfied, including that defendant willfully promoted, furthered, or assisted felonious conduct by his fellow gang members before section 12031(a)(2)(C) applies to elevate defendant’s section 12031, subdivision (a)(1) misdemeanor offense to a felony.” (Id. at p. 524.) Although Lamas includes language which if considered broadly may support J.N.’s claim, the Lamas court seemed to limit its decision. (Id. at p. 520 [“[t]his conclusion applies to the substantive charge that defendant is an active participant of a criminal street gang (§ 186.22(a)) and to the gun offenses that elevate to felonies only upon proof that defendant satisfied [the] requirements under section 186.22(a)”].) Additionally, our Supreme Court subsequently stressed its decision in Lamas concerned “the sequence in which those provisions were to be applied” and that it “did not impose the additional requirement . . . the felonious conduct be ‘separate,’ ‘distinct,’ or ‘different’ from the conduct supporting the misdemeanor gun offense.’ [Citation.]” (People v. Infante (2014) 58 Cal.4th 688, 692, 694, italics added.)

Contrary to the Attorney General’s claim, People v. Arroyas (2002) 96 Cal.App.4th 1439 (Arroyas), is instructive here. In that case, the information charged defendant with felony vandalism (§§ 594, subd. (a)(1), 186.22, subd. (d)), and alleged he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). (Arroyas, supra, 96 Cal.App.4th at p. 1442.) The trial court overruled defendant’s demurrer challenging the dual use of the gang conduct to punish him twice. (Id. at

p. 1442.) The Arroyas court explained section 186.22, subdivision (d), permissibly allowed a trial court to impose either misdemeanor or felony punishment. (Id. at

pp. 1443-1444.) However, the court stated, “Although [section 186.22,] subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap [section 186.22,] subdivision (d) misdemeanors into [section 186.22,] subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.” (Id. at p. 1445.) The court concluded a section 186.22, subdivision (b)(1), enhancement could not be applied to a misdemeanor offense made a felony pursuant to section 186.22, subdivision (d). (Arroyas, supra, 96 Cal.App.4th at p. 1449.)

Our Supreme Court cited Arroyas with approval. (People v. Briceno (2004) 34 Cal.4th 451, 465.) And another panel of this court reached a similar result as Arroyas, supra, 96 Cal.App.4th 1439, in the context of contempt for violating a gang abatement injunction (§ 166, subd. (a)(4)), and section 186.22, subdivision (d), because the dual use of the same gang-related conduct was impermissible bootstrapping. (Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828, 831-832.)

Here, the same gang-related conduct was first used to elevate the vandalism from a misdemeanor to a felony and then to provide the felonious criminal conduct element for street terrorism. This is the same impermissible bootstrapping that results in double punishment for the same conduct and is improper pursuant to Arroyas and Lopez. The Attorney General attempts to distinguish Arroyas on the ground section 186.22, subdivision (a), includes other elements that the prosecutor must prove. We are not persuaded. The juvenile court relied on the same gang-related conduct to first find J.N. committed felony vandalism and then find he committed street terrorism. Thus, pursuant to Arroyas and Lopez, the prosecution cannot legally elevate a misdemeanor based on a gang-related fact and then increase punishment for that behavior by alleging the same gang-related fact under a different statute.

The Attorney General argues that irrespective of count 2, felony vandalism, there was other uncharged felonious conduct that satisfied count 3’s third element of felonious criminal conduct—conspiracy to commit felony vandalism. (People v. Valenzuela (2019) 7 Cal.5th 415, 427-428 [felonious criminal conduct element need not be based on another charge or conviction]; § 182 [whether conspiracy to commit vandalism is felony or misdemeanor turns on whether vandalism punished as felony or misdemeanor].) The problem with this contention is the only evidence that supported felony vandalism was J.N.’s gang-related conduct.[3] Indeed, in addressing this issue, the juvenile court concluded the conspiracy to commit vandalism was a felony, but it did so based on J.N.’s gang-related conduct, and cited to section 186.22, subdivision (d). That leaves us back where we started. Thus, insufficient evidence supported count 3 and we reverse the juvenile court’s true finding on that count.

II. Section 186.22, Subdivision (b)(1)

In his opening brief, J.N. asserts a section 186.22, subdivision (b)(1), enhancement improperly attached to count 2. The Attorney General correctly notes the petition did not allege such an enhancement as to count 2 and the juvenile court did not find it true. In his reply brief, J.N. withdraws the claim assuming the record is clear on the issue. The record is clear, and we treat the assertion as withdrawn.

DISPOSITION

We reverse the juvenile court’s true finding on count 3 and remand the matter. In all other respects, the judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

[1] J.N. also claims insufficient evidence supported the finding he committed murder. As we explain below, he withdraws that claim.

[2] We take judicial notice of the juvenile court’s March 5, 2020, order. (Evid. Code, § 452, subd. (d).)

[3] The prosecution offered no evidence concerning the amount of damages for the vandalism.