PEOPLE v. THE BRODERICK BOYS

4/23/07

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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APPEAL from a judgment of the Superior Court of Yolo

County, Thomas E. Warriner, J. Reversed with directions.

David C. Henderson and Jeff W. Reisig, Yolo County District Attorneys, for Plaintiff and Respondent.

No appearance for Defendant.

ACLU Foundation of Northern California, Ann Brick, Alan L.

Schlosser and Jory C. Steele, for Movants and Appellants.

By default the Yolo County District Attorney obtained a permanent injunction against The Broderick Boys, a street gang. Four men served with the injunction moved to set it aside, alleging the injunction was void for lack of proper notice. The trial court found they lacked standing to attack the injunction because they did not admit gang membership, and they appealed.

The evidence reveals a level of gang criminality plaguing West Sacramento which might well justify injunctive relief. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090.)

However, the injunction cannot stand because, under the facts of this case the district attorney failed to show that The Broderick Boys is an unincorporated association for the purpose of service (Corp. Code, 18035, subd. (a), 18220) and, in any event, the district attorney did not take steps reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Mullane v. Central Hanover B. & T. Co. (1950) 339 U.S. 306, 314 [94 L.Ed. 865, 873] (Mullane).) It is not necessary to actually inform the other party, but the means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. (Id. at p. 315; reaffirmed in Jones v. Flowers (2006) 547 U.S. 220, ___ [164 L.Ed.2d 415, 427] (Jones).)

The district attorney served only Billy Wolfington, a single gang member of unknown rank, trusting that he would spread the word. However, when he was served, Wolfington immediately said we would not appear in the proceeding, i.e., he would not oppose the Peoples request for an injunction against The Broderick Boys. Under these circumstances, even if service on Wolfington complied with state law regarding service of process, the service on him alone was not reasonably calculated to apprise the gang and its other members of the pending action.

The fact appellants are not named in the complaint and did not admit membership in the gang does not mean they lack standing to challenge service. The district attorney has alleged that appellants are gang members, which is why they were served with the injunction. In fact, one appellant has been arrested for allegedly violating the injunction. California Supreme Court decisions allow a nonparty who has been aggrieved by a judgment to move to vacate it and appeal from the denial of that motion, thereby achieving party status. This is the procedure used by appellants in this case. Other cases explain that a nonparty served with an injunction may challenge the injunction in the court that rendered it. Appellants were sufficiently aggrieved by the injunction served on them to confer standing to attack it.

We reverse with directions to grant the motion to set aside the judgment granting the permanent injunction.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint and Preliminary Injunction

On December 30, 2004, the district attorney filed a complaint to enjoin a nuisance, namely, The Broderick Boys, a Norteno criminal street gang, known by various aliases, alleged to be an unincorporated association. Does 1-400 were named, and the complaint described, but did not name as defendants, 10 alleged members, including Billy Wolfington (Bouncer). The complaint sought an injunction to create a Safety Zone within West Sacramento which would in part prohibit gang members and agents from associating with other known members and would impose a curfew on gang members, with exceptions, such as for travel to work, school and church activities.

When he filed the complaint, the district attorney also sought a preliminary injunction, supported by a request for judicial notice of criminal records of 12 alleged gang members, some of whom were among the 10 named in the complaint, including Billy Wolfington, who had been required by a court order to register as a gang member after he was convicted of drug and weapons charges.

The district attorney also submitted declarations from peace officers describing the activities of The Broderick Boys. The Evidence Code allows expert evidence on the workings and hierarchy of a gang. (Evid. Code, 801; People v. Williams (1997) 16 Cal.4th 153, 193-194; see United States v. Easter (9th Cir. 1995) 66 F.3d 1018, 1020-1021.) For purposes of this appeal we accept as true the following facts.

The Broderick Boys is the largest street gang in West Sacramento, numbering over 350 members of mixed racemostly Hispanic and Caucasianand mixed gender, ranging in age from 12

to mid-40s. The gang is connected to the Nuestra Familia prison gang and uses the color red and certain symbols in clothing, graffiti and accessories. Its principal enemy is an affiliate of the Mexican Mafia prison gang, in the Sureno family of gangs.

The Broderick Boys has a hierarchical structure. The foot soldiers are typically younger men and women. Members who are a bit older and perhaps have served time for crimes, up to their mid-20s in age, are hommies. Still older members, up to mid-30s in age, are veteranos who generally have families and are no longer on the street, but theyre kind of controlling and watching over things in the shadows. . . . [T]heyve earned the right to lean back and to supervise. The top guys that make the major decisions, all the way up, they are . . . your shot callers. Entry into the gang for males is by being jumped in, that is, beaten up by several members; for females entry is by being sexed [in], that is, by submitting to sex with multiple members. Some relatives or friends of members may bypass these rituals. No nonmember would have a gang tattoo, because thats going to get you shot or beaten or both. Members may move away and there is a procedure for jumping out, but it is rarely used.

The declarations show that Billy Wolfington is a member of The Broderick Boys, but say nothing about his rank.

The lead investigator declared that gang members communicate by cell phones and share information about probation searches or other police activity, or rivalries with other gangs[.] The communications extend to members in county jail and state prison. What Ive seen is that as soon as we start hitting a specific gang with parole or probation compliance searches, at the beginning were seeing a lot of good information, intelligence, guns, so forth, and then toward the end all of a sudden were coming up dry, everything is gone. Gangsters definitely have a very active network. They let each other know if heat is coming down from police or from other gangs. You can talk to one gangster about a feud that theyre having with a particular gang and go on the other side of town and run into another gangster and hell know. [I]f I wanted to contact [The Broderick Boys], the way Id do it is to go out and find a gang member on the street. Theyll pass the word quickly.

The declarations showed that The Broderick Boys is not registered as a California corporation, limited liability company or partnership, and it has no address.

A declaration from District Attorney Jeff W. Reisig, then a deputy district attorney, describes his experience in gang suppression and states I have reviewed numerous gang injunctions issued by Superior Court Judges throughout California. It is the well established practice to allow service on the gang by service on one or more gang members. In support, he attached orders from two separate Los Angeles County Superior Court gang injunction casesknown as the Krazy Ass Mexicans and Canoga Park Alabama casesin which Judge Dzintra Janavs ordered service on any one or more named gang members of an order to show cause (OSC).

On January 3, 2005, the trial court issued an OSC for a preliminary injunction. The trial court ordered service on any one or more of the 10 persons described in the complaint. On January 5, 2005, the district attorney filed a proof of service on Billy Wolfington.

On January 24, 2005, the trial court issued a preliminary injunction. Only the district attorney appeared.

B. The Permanent Injunction

On February 3, 2005, the district attorney dismissed Does 1-400, the court clerk entered a default, and the trial court signed a permanent injunction, as requested. The judgment recites that The Broderick Boys is a criminal street gang and the injunction runs against Defendant Broderick Boys aka BRK aka BSK aka Norteno aka Norte aka XIV, its members, agents, servants, employees, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them[.]

C. Motion to Set Aside

On July 28, 2005, Keith Edwards, Angelo Velazquez, Jason Swearengin and Benjamin Juarez moved to set aside the default judgment and the default. None was named in the district attorneys papers. Each declared he lived in the safety zone and had not heard of this action until being served with the permanent injunction; Edwards was later arrested for allegedly violating the curfew. Each declared that had he known of the action and that the authorities believed the injunction would apply to him, he would have contacted an attorney. When served, none was told by what criteria their alleged gang membership had been determined by the authorities. The police had served 80 people with the permanent injunction and expected to serve 350. Appellants asserted they had a viable defense to the injunction generally and a defense to being included within its sweep.

Appellants state-law claims were that The Broderick Boys was not an unincorporated association, and service on Billy Wolfington did not comply with California law because no mailing was done and there was no showing of Wolfingtons gang status. Their federal claim was that service on one alleged gang member of unknown rank violated due process.

Appellants tendered three categories of evidence as follows:

(1) Declarations showed appellants addresses were known by the authorities: Velazquez was a registered narcotics offender; the Yolo County probation department knew where Juarez lived; Edwardss California ID card bore his address; and Swearengins parole officer had his address.

(2) An investigator declared that of the 51 alleged gang members named in the district attorneys papers, he was able to find possible addresses for 24 of them, using the same computer program the district attorneys investigator had used in his searches about The Broderick Boys.

(3) A request for judicial notice of Yolo County court records showed that 24 persons named in the district attorneys papers were in state prison, on probation, or on bail due to prosecutions by the Yolo County District Attorney.

D. Opposition

The district attorney opposed the motion, both because appellants allegedly lacked standing and on the merits. He tendered declarations showing that when Billy Wolfington was served with notice of the OSC before the complaint was filedwhile at the police station to complete his gang registration papershe admitted gang membership but said he would not appear; within 20 minutes he was seen talking to another gang member, while a third member was several yards away. The lead officer declared that within 10 minutes of one gang member being served with the injunction, another contacted the officer about it; two members, including appellant Velazquez, went to the police station to be served; he also opined that all appellants were gang members. The district attorney argued service was proper, though he later conceded that service on one member of an unincorporated association was not necessarily constitutionally adequate.

E. Reply

Appellants sought judicial notice of records from the Kick Ass Mexicans and Canoga ParkAlabama cases, showing that seven members of each of those gangs had been served. They also sought notice of records indicating that service on many gang members was the normal practice among prosecutors and that in one Ventura County case the trial court also ordered publication in a local newspaper.

F. Trial Court Ruling

The trial court denied as irrelevant appellants requests for judicial notice and denied their motion to set aside the default and default judgment. The court reasoned that because appellants did not admit gang membership, they lacked standing. Appellants timely appealed. The appeal lies. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 155, pp. 220-221 (Witkin).)

DISCUSSION

I. Appellants have Standing to Challenge the Injunction

The trial court reasoned that because appellants did not declare that they were members or agents of The Broderick Boys, they lacked standing to attack the injunction; that although they were served with the injunction, and the authorities believe they are gang members, their remedy is to wait for any attempt to enforce the injunction against them or file a declaratory relief action. The district attorney observes that a trial court may, on motion of either party . . . set aside any void judgment (Code Civ. Proc., 473, subd. (d), emphasis supplied) and reasons that because appellants are not parties, they lack standing to set aside the judgment.

We agree with the trial court and the district attorney that a nonparty could attack the injunction in a declaratory relief action (Rest.2d, Judgments, 76) or in defense of contempt charges (People v. Gonzalez (1996) 12 Cal.4th 804).

But there is a well-settled procedure by which an aggrieved person may move to set aside a judgment and then appeal if the motion is denied, thereby achieving party status. (Luckenbach v. Laer (1923) 190 Cal. 395, 398; Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 15-16; 9 Witkin, supra, Appeal, 153, p. 218, 176, p. 233, 181, p. 237.)

[T]o the end that justice may be done, one appeal is permitted from an order refusing to vacate a judgment or decree when, for reasons involving no fault of the appealing party, he has never been given an opportunity to appeal directly from the judgment or decree. These are cases where ones rights or interests are injuriously affected by a judgment or by an appealable order in litigation to which he is not formally a party, . . .In such cases it is always permissible for the one injured to make himself a party to the litigation, if he has not been a party, and after he has thus submitted to the jurisdiction of the court, to move the vacation of the decree or appealable order injuriously affecting his interest, and to appeal if the motion be denied. (Estate of Baker (1915) 170 Cal. 578, 582, italics added.)

The effect of their motion was to make appellants parties. (Elliott v. Superior Court (1904) 144 Cal. 501, 509; Estate ofBaker, supra, 170 Cal. at p. 582; Skolsky v. Electronovision Productions, Inc. (1967) 254 Cal.App.2d 246, 248-250.)

Nor need appellants admit gang membership, if they are persons whose rights or interests are injuriously affected by the judgment. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) We preface our analysis by noting that Code of Civil Procedure section 473, the source of their claim, is a remedial statute, interpreted broadly to permit adjudications on the merits. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255-256; Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 885-886 [discussing aggrieved parties].)

First, appellants are not strangers to the case, as the district attorney stated at oral argument. He also stated overwhelming evidence exists that proves each appellant is a gang member, and the lead gang officer so opined; that is why appellants were served with the permanent injunction. In fact, appellant Edwards was arrested for violating the curfew. Thus, it is not accurate to call them strangers to the case.

Second, the injunction imposes limitations on otherwise lawful activities on any person who is a gang member or acting with a gang member. (See Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 353; 6 Witkin, supra, Provisional Remedies, 391, p. 318.) For purposes of a gang injunction, a person is a member of a gang if he or she is a person who participates in or acts in concert with an ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of acts constituting the enjoined public nuisance, having a common name or common identifying sign or symbol and whose members individually or collectively engage in the acts constituting the enjoined public nuisance. The participation or acting in concert must be more than nominal, passive, inactive or purely technical. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1261 (Englebrecht).) That is, a person is subject to the injunction if the State proves by clear and convincing evidence that the above definition is met. (Id. at pp. 1256-1257.) But a person served with the injunction would not always be in a position to make a sound judgment about whether to defy it with the hope or expectation of defeating a contempt action. To say appellants have no standing to attack the injunction unless they incriminate themselves by admitting they are gang members is not reasonable.

Third, contrary to the trial courts view, appellants, having been served with the injunction, could be liable for contempt by aiding or acting in concert with a member, whether or not they were a member or affiliated with the gang. (Acuna, supra, 14 Cal.4th at p. 1122-1125; People v. Saffell (1946) 74 Cal.App.Supp.2d 967, 978-979.)

As our Supreme Court tells us, there are two ways an affected person may challenge an injunction:

In this state a person affected by an injunctive order has available to him two alternative methods by which he may challenge the validity of such order on the ground that it was issued without or in excess of jurisdiction. He may consider it a more prudent course to comply with the order while seeking a judicial declaration as to its jurisdictional validity. [Citation.] On the other hand, he may conclude that the exigencies of the situation or the magnitude of the rights involved render immediate action worth the cost of peril. In the latter event, such a person . . . may disobey the order and raise his jurisdictional contentions when he is sought to be punished . . . . (In re Berry (1968) 68 Cal.2d 137, 148-149, italics added [nonparties charged with contempt].)

Although the remedy of suffering an arrest and defending a contempt charge is available,it is not generally prudent. (In re Berry, supra, 68 Cal.2d at pp. 148-149.) An earlier California Supreme Court case made a similar point:

To compel defendant labor unions to seek redress by the indirect method of violation of the terms of the injunction and defense of a contempt proceeding, or certiorari or habeas corpus to secure relief from a contempt commitment, would be to relegate them to a remedy which is indeed circuitous. [Citation.] An independent action in equity would be almost as dilatory and cumbersome. (Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 96 (Sontag).)

Further, a declaratory relief action could founder on the rule that a collateral attack based on lack of jurisdiction may not rely on extrinsic evidence. (See 8 Witkin, supra, Attack on Judgment in Trial Court, 11-12, pp. 517-520, 22, p. 526.) To ascertain whether the method of service was reasonable, facts outside the proof of service would be relevant, as we explain.

Thus, we conclude that appellants, who are alleged by the authorities to be gang members and for that reason were served with the injunction and threatened with its enforcement, are sufficiently aggrieved by it to allow them to move to vacate the injunction and become parties to the action, without having to admit membership in the gang.

II. The Injunction is Void for Lack of Adequate Notice

Although the trial court did not pass on the adequacy of service, we will not remand the issue to the trial court. The undisputed facts about service of process in this case, and the requests for judicial notice on appeal, provide an adequate basis for us to address the legal issue of the propriety of the service of process. (See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.)

Many notice cases involve property rights, but notice requirements are not lessfor liberty interests. (See Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 795 [77 L.Ed.2d 180, 185] (Mennonite); Albrecht v. Superior Court (1982) 132 Cal.App.3d 612, 619 [Notice and an opportunity to be heard must precede deprivations of life, liberty or property].)

There is no one test for adequacy of notice, but the United States Supreme Court instructs us to look at the realities of the case in order to determine whether the notice given was reasonably calculated to inform people of the pendency of the proceedings affecting their interests. In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted. (Greene v. Lindsey (1982) 456 U.S. 444, 451 [72 L.Ed.2d 249, 256]; see Walker v. Hutchinson (1956) 352 U.S. 112, 115 [1 L.Ed.2d 178, 182] [no rigid formula . . . ; notice required will vary with circumstances and conditions].)

Actual notice is not required, only a method reasonably certainto give notice. (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967 (Evans); see Jones, supra, 164 L.Ed.2d at p. 425.) Also, heroic efforts are not required. (Dusenbery v. United States (2002) 534 U.S. 161, 170-171 [151 L.Ed.2d 597, 607] [Dusenbery].) But the method must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it[.] (Jones, supra, at p. 427.) As we will explain, the method used was not reasonably calculated, under all the circumstances, to achieve results. (Mullane, supra, 339 U.S. at p. 314 [94 L.Ed. at p. 873].)

A. The District Attorneys Showing

To establish the adequacy of service in this case, the district attorney relies on the following three points:

(1) Service on Billy Wolfington met the requirements of California law regarding service on unincorporated associations.

(2) The manner of service reflected a custom by California prosecutors in other gang injunction cases.

(3) The Broderick Boys has an internal communications network such that notice to Billy Wolfington would spread actual notice throughout the gang structure.

On examination, noneof these reasons proves sound.

1. Compliance with California Law

The district attorneys state-law theory is as follows: The Broderick Boys is an unincorporated association; an association which has no officers or agent for service of process may be sued by service on any member; because the gang has no officers or agent for service of process and Billy Wolfington is a member, service on Wolfington complied with California law.

First, the evidence presented at the default hearing does not show that The Broderick Boys is an unincorporated association. Second, even if it was, service on one member of unknown rank who disavowed any intention to appear was insufficient under both state and federal law.

a. A Street Gang as an Unincorporated Association

A summons may be served on an unincorporated association by serving an agent designated with the California Secretary of State, a president, vice president, secretary, treasurer, general manager or person authorized to accept service. (Code Civ. Proc., 416.40, subd. (b).) If no agent has been designated and no other method is feasible, a court may make an order that service be made . . . by delivery of a copy of the process to one or more of the associations members designated in the order and by mailing a copy of the process to the association at its last known address. Service in this manner constitutes personal service upon the unincorporated association. (Corp. Code, 18220.) The trial court issued an order in line with this section, excusing the need for mailing because The Broderick Boys does not have an address.

Story continued as Part II ..

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