Filed 5/24/17 In re T.F. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


In re T.F., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,
v.
T.F.,
Defendant and Appellant.




A148160

(Contra Costa County
Super. Ct. No. J15-01232)


The juvenile court found T.F. in violation of a probation condition that he not associate with any person known to him to be a member of the Tre-Four gang. He contends this finding was unsupported by substantial evidence because the prosecution failed to present sufficient evidence that the Tre-Four gang had engaged in a pattern of criminal gang activity, an element of the Penal Code section 186.22, subdivision (e) definition of a criminal street gang. His argument lacks merit, and we affirm.
BACKGROUND
T.F.’s Welfare and Institutions Code Section 602 Petitions
On June 10, 2010, the San Francisco County District Attorney filed a Welfare and Institutions Code section 602 petition alleging that T.F. (then 13 years old) committed felony attempted second degree robbery, felony false imprisonment, and misdemeanor resisting arrest. Following a contested jurisdictional hearing, the juvenile court sustained all three counts, adjudicated T.F. a ward of the juvenile court, and ordered him placed on probation in his mother’s home. His case was then transferred to San Mateo County.
On September 20, 2011, the San Francisco County District Attorney filed a second juvenile wardship petition, this one alleging one count of felony first degree robbery.
Two days later, the San Francisco County District Attorney filed a third petition, alleging felony second degree robbery with a weapons use enhancement and assault with a deadly weapon.
On January 7, 2013, the San Francisco County District Attorney filed a fourth petition, alleging two misdemeanor counts of resisting arrest.
On January 31, 2013, the San Francisco County District Attorney filed a fifth petition, this time alleging T.F committed nine offenses: six counts of felony second degree robbery, each with weapons use allegations; attempted felony second degree robbery, also with a weapons use allegation; assault with a deadly weapon; and misdemeanor resisting arrest.
On March 6, 2014, the district attorney amended the assault allegation in the fifth petition to assault with force likely to cause great bodily injury. T.F. admitted that amended allegation and one count of felony second degree robbery. The remaining counts in the fifth petition were dismissed, as were the second, third, and fourth petitions in their entirety.
On April 21, 2014, T.F. was continued as a ward and committed to the Division of Juvenile Justice (DJJ) for a maximum period of seven years, eight months. He was transported to the DJJ on July 9, 2015.
T.F.’s Probation Violation
On November 13, 2015, T.F. (now 19 years old) was discharged from the DJJ and placed in the home of his father. The juvenile court imposed standard terms and conditions of probation, as well as gang conditions that specifically prohibited T.F. from associating “with any person known to the minor to be a gang member or associate,” including “Tre-Four Gang/Tre-4,” “Down Below Gang,” and “Towerside Gang.” The matter was transferred to Contra Costa County, where T.F.’s father resided.
On February 3, 2016, T.F.’s probation officer in Contra Costa County was contacted by a San Francisco police sergeant, who advised that T.F. was being sought in connection with a shooting the day before. T.F. was subsequently arrested at the Antioch probation office on suspicion of aggravated assault with a firearm.
On February 5, the Contra Costa County Juvenile Court declared T.F. a ward with no termination date and reimposed the probation conditions ordered by the San Francisco County Juvenile Court (with minor modifications not pertinent here).
That same day, the Contra Costa County Probation Department filed a notice of probation violation alleging that T.F. violated the following four conditions of his probation: (1) “Not participate in gang activity and not visit or remain in any specific location known to be an area of gang-related activity”; (2) “stay away from San Francisco, specifically places where known gang members congregate, including but not limited to the following places within the City and County of San Francisco: Sunnydale housing area, Towerside area, Visitation Valley, Alemany housing area”; (3) “Not associate with any person known to [T.F.] to be a [gang] member or associate; including, but not limited to the following groups: Tre-Four (Tre-4) Gang, Down Below Gang, Towerside Gang”; and (4) “Obey all laws.”
The notice alleged that T.F. violated these conditions by: (1) associating with documented Tre-Four gang member Natali C. (as depicted in an Instagram photo posted two weeks earlier); (2) associating with documented Tre-Four gang members Dominic L., Michael P., and Reno F. (as depicted in an Instagram photo posted six weeks earlier); (3) associating with Tre-Four gang member Dominic (as depicted in an Instagram photo posted 10 weeks earlier); (4) associating with Tre-Four gang members Dominic and Michael (as depicted in an Instagram photo posted 11 weeks earlier); (5) associating with Tre-Four gang members Dominic, Michael, and Reno (as depicted in an Instagram photo posted five weeks earlier); (6) associating with documented Tre-Four gang member Jeremiah I. (as depicted in an Instagram photo posted six weeks earlier); (7) shooting a woman in San Francisco, as identified by the shooting victim; (8) associating with documented Tre-Four gang members (as documented by a video posted on You Tube on December 19, 2015); and (9) being arrested on charges of attempted homicide with a firearm, possession of a loaded firearm, and prohibited person with a firearm. Two weeks later, a tenth alleged violation was added: being present in San Francisco on January 27, 2016 (based upon two videos and a police memorandum).
March 2, 2016 Contested Probation Violation Hearing
At a contested probation violation hearing, San Francisco Police Sergeant Matthew Dudley testified as the prosecution’s expert on the Tre-Four and Down Below criminal street gangs. He had been an officer with the San Francisco Police Department for eight years, the last year and a half of which he spent as a member of the gang task force. His gang training included instruction at the police academy; training by outside agencies where he learned about strategic gang operations and gang infiltration through the use of informants; and Institute of Criminal Investigation basic investigator and gang investigator courses. He completed an instructor development course and qualified to be an instructor, subsequently teaching five police academy gang classes. He also received informal training by talking with other officers and gang members, reading books, and watching movies about gang culture.
As a patrol officer, Sergeant Dudley had worked in the Ingleside District (which includes the Sunnydale, Geneva Towers, and Alemany projects), and he became familiar with gangs in that district. He also worked as a member of the violence reduction team, which involved plainclothes work in gang enforcement. While a patrol officer and a member of the violence reduction team, he had daily contact with gang members. As a gang task force member, he saw gang members every week.
Sergeant Dudley testified that the San Francisco Police Department has specific criteria for assessing whether someone is a member of a criminal street gang. As he described them, the criteria include: “Frequenting gang areas, associating with gang members, committing crimes with gang members, having gang tattoos, being seen throwing up gang hand signs, wearing gang-related clothing, self-admission of being a gang member, having reliable informants identify a person as a gang member, having untested informants identify someone as a gang member.”
According to Sergeant Dudley, Tre-Four is a 10-to-15 member criminal street gang located in the Ingleside District in San Francisco. Given its small size, he believed all Tre-Four members would know all other Tre-Four members. Sergeant Dudley has had “[d]ozens” of conversations with other officers about individuals associated with Tre-Four and crimes involving Tre-Four members. He had read at least 100 police reports about Tre-Four members and had spoken with 10 to 15 individuals identified as Tre-Four members, most of which contacts had occurred in the Sunnydale and Alemany projects. When he was a patrol officer, he had daily contact with Tre-Four members. As a sergeant in the gang unit, his contact was once or twice a month. He had interviewed at least three Tre-Four members while they were in custody or being detained, and had personally investigated about 10 crimes in which Tre-Four members were the suspects.
Sergeant Dudley testified that Tre-Four members wear shirts that say Tre-Four or Tre-Foe. They also used the symbol of “a backwards uppercase B and a regular uppercase B separated by . . . a rifle bullet,” which stands for Blood Brother gang, a term with which Tre-Four members associate. Asked about other signs or symbols associated with the gang, Sergeant Dudley answered, “The number 34 for Tre-Four. The words
Tre-Four; Tre-Foe; Tre-Four Village; Tre-Four Vill; Blood Brother gang; the acronym WAWN for We All We Need; the various use of 4 in . . . social media posts. They’ll substitute . . . letters for the 3 and 4, or put 3 and 4 at the end of their name on social media.” They also use various hand signs, including three fingers on one hand and four on the other, four fingers on one hand, or forming a circle with the thumb and forefinger to make a “b” for Blood Brother gang.
Sergeant Dudley testified regarding four specific individuals to establish their membership in the Tre-Four gang. He knew Dominic L. personally from at least 10 contacts (including one arrest) and knew he had been arrested for sale of ecstasy and had two convictions as an adult for possession of a firearm. He had also compiled Dominic’s gang alpha file and gang validation form. He had seen him in the Sunnydale and Alemany projects, specifically on the 100 block of Blythedale Avenue which is Tre-Four territory. He had seen numerous pictures of Dominic “throwing up the 4, Tre-Four hand sign” and wearing a sweatshirt with the “BB” symbol. Based on all this, it was Sergeant Dudley’s opinion that Dominic was a longtime Tre-Four gang member and was associated with criminal activity through the Tre-Four gang.
Sergeant Dudley knew Michael P. from having seen and talked to him numerous times. He had also compiled Michael’s gang alpha file and gang validation form and had investigated him for criminal activity. He believed Michael to be a longtime Tre-Four gang member based on having seen him in gang territory and associating with gang members in person, pictures, and videos; displaying Tre-Four hand signs in pictures and videos; and using Instagram names that incorporated “3” and “4” to show his Tre-Four membership.
Sergeant Dudley likewise knew Jeremiah I. from having personally seen him for a number of years, with approximately 20 contacts (including one arrest). He had also seen him in videos and photographs. Most of the times he encountered Jeremiah he was associating with Tre-Four members. He had seen him wearing the Blood Brother gang sweatshirt with the two “Bs” symbol, and he had “Tre-Foa” (Tre-Foe spelled incorrectly) tattooed on his arm and “3” and “4” tattooed on his hand. Dudley believed Jeremiah was a member of the Tre-Four gang, and had been since at least November 13, 2015.
Lastly, Sergeant Dudley identified T.F. as a member of the Tre-Four gang. He had known T.F. since about 2010, having seen him numerous times in the Sunnydale projects. T.F. had been arrested in a Sunnydale area that was associated with gang activity. Sergeant Dudley had arrested him for robbery in January 2013 and had participated in at least three other investigations in which T.F. was a suspect. He had seen T.F. wearing a shirt that said “Tre-Foe Village” and displaying the Tre-Foe gang sign in a rap video. T.F.’s user name for his Instagram account contained Tre-Foe references, and he appeared in a number of Instagram photos with other Tre-Four members. He had also seen T.F. with Michael in Sunnydale, with Jeremiah in a rap video and in Sunnydale, and with Dominic in a rap video and “probably” with him in Sunnydale. A confidential reliable informant had also reported that T.F. was a Tre-Four member.
To establish that T.F. had associated with individuals known to him to be members of Tre-Four in violation of his probation conditions, the prosecution introduced a series of photographs that had been posted on Instagram between six and 11 weeks prior to February 4 (the day Sergeant Dudley downloaded the photographs and the day before the notice of probation violation was filed). In Sergeant Dudley’s opinion, the photographs were recent because T.F. and the other individuals looked more like they did at the time of the hearing than they did in 2013 and some of the clothing they were wearing in the photos had been released in the winter of 2015.
People’s exhibits 1, 2, and 3 were photographs from Dominic’s Instagram account of T.F. with Dominic, Michael, and others. People’s exhibit 4 was a photograph from Jeremiah’s Instagram account of Jeremiah and T.F. People’s exhibit 5 was a disk containing two recordings of rap videos that appeared on You Tube. Sergeant Dudley testified that T.F. appeared in both videos alongside Tre-Four gang members (including Dominic and Michael) and that the videos were filmed after T.F.’s November 2015 release from the DJJ, as indicated by how the individuals appeared, their clothing, and the dates the videos were posted.
As the conclusion of the hearing, the court found allegation Nos. 1 through 6 and 8 (that T.F. had associated with members of the Tre-Four gang) had been proven. Following a contested dispositional hearing, the court continued T.F. as a ward and returned him to the DJJ for a minimum of three months and a maximum of one year, with a release date of March 30, 2017. The court later amended the term of the DJJ commitment to nine months, with a release date of December 30, 2016.
T.F. filed this timely appeal.
DISCUSSION
Section 186.22, subdivisions (a) and (b) criminalize certain conduct relating to involvement with a “criminal street gang.” “Criminal street gang” is defined in the statute as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [certain enumerated offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Id., subd. (f).) A “pattern of criminal gang activity” in turn means “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . .” (Id., subd. (e).) Citing this statute, T.F. challenges the juvenile court’s finding that he violated his probation by associating with members of the
Tre-Four gang, claiming the prosecution failed to prove that Tre-Four is a criminal street gang because it did not introduce sufficient evidence that the Tre-Four gang engaged in a pattern of criminal gang activity as defined by subdivision (e). In support, he primarily relies on In re Leland D. (1990) 223 Cal.App.3d 251 (Leland D.). Neither section 186.22 nor Leland D. applies here.
Leland D., supra, 223 Cal.App.3d 251, involved a minor who was alleged to have knowingly participated in a criminal street gang in violation of section 186.22, subdivision (a) and to have committed a criminal offense for the benefit of a criminal street gang in violation of section 186.22, subdivision (b). Following a contested jurisdictional hearing, the juvenile court found both section 186.22 allegations (and other allegations not relevant here) to be true. (Leland D., at pp. 253–254.) On appeal, the minor argued the findings were unsupported by substantial evidence. The Court of Appeal agreed. (Id. at p. 254.)
The Court of Appeal’s analysis began with a lengthy discussion of section 186.22, including, as particularly relevant there, subdivisions (e) and (f). (Leland D., supra, 223 Cal.App.3d at pp. 256–257.) Applying that law to the evidence before it, the court concluded there was insufficient evidence that the group at issue was a criminal street gang engaged in a pattern of criminal activity because there was no evidence that any member of the group had committed one of the enumerated offenses (with the exception of the minor’s prior conviction for the sale of cocaine), as required by subdivision (e). While a police officer who testified as an expert on criminal street gang activity gave generic testimony that members of the gang had engaged in drug sales, committed vehicle thefts, and been involved in assault with deadly weapons, “[e]xactly who, when, where and under what circumstances [was] not specified.” (Leland D., supra, at
pp. 258–259.) This testimony, the court concluded, fell “far short of what is required to prove ‘the commission, attempted commission, or solicitation of two or more of the [statutorily enumerated] offenses’ (§ 186.22, subd. (e)) within the requisite three-year time period so as to establish that the [group] ‘engaged in a pattern of criminal activity.’ ” (Leland D., supra, at pp. 259–260.)
T.F. insists the definition of “criminal street gang” in section 186.22, subdivision (f) applies here and, as such, the members of Tre-Four must “engage in or have engaged in a pattern of criminal gang activity” within the meaning of subdivision (e). But, he continues, as in Leland D., there was insufficient evidence of the commission of two or more of the enumerated offenses having been committed on separate occasions, or by two or more persons, during that statutorily prescribed time frame. He claims that at best, “Sergeant Dudley made several generalized assertions tending to show that Tre-Four members were involved in criminal activity. He told the court that its members had committed all sorts of predicate offenses such as robberies, assaults and shootings, and that he had even investigated some of these offenses and had personally arrested several Tre-Four members,” but he never testified as to when these offenses were committed. Thus, T.F. concludes, as in Leland D., there was insufficient evidence that Tre-Four was a criminal street gang, and thus insufficient evidence that he violated his probation by associating with members of Tre-Four.
T.F.’s argument overlooks one significant fact that distinguishes Leland D. from this case. Section 186.22 creates a criminal offense and a sentencing enhancement for certain conduct related to a “criminal street gang.” In order to prove a section 186.22 gang offense, the prosecution must prove defendant’s involvement with a criminal street gang as defined in subdivisions (e) and (f). Here, however, the prosecution did not have to prove T.F.’s association with a criminal street gang, as the probation condition T.F. violated did not merely prohibit his association with a gang. Rather, it specifically ordered him to not associate with members of the Tre-Four gang, among others. In other words, the prosecution in Leland D. had to prove the minor’s involvement with a criminal street gang as an element of the offense, while here it was merely incumbent upon the prosecution to prove that T.F. had associated with members of the Tre-Four gang.
We note that the court in People v. Lopez (1998) 66 Cal.App.4th 615, 631–632, applied the section 186.22 definitions to a gang probation condition. Significantly, however, the condition there was a generic prohibition against being involved in gang activities. The section 186.22 definitions were thus necessary to remedy due process problems stemming from the vagueness of the condition. (People v. Lopez, supra, 66 Cal.App.4th at pp. 631–632.) No such vagueness issue exists here, given the specificity of the probation condition.
It is also worth noting that Leland D. involved a jurisdictional hearing concerning an alleged substantive offense which had to be proven beyond a reasonable doubt. (In re Greg F. (2012) 55 Cal.4th 393, 403–404.) This hearing involved a probation violation where the prosecution’s burden of proof was a preponderance of the evidence. (Welf. & Inst. Code, § 777, subd. (c); In re Eddie M. (2003) 31 Cal.4th 480, 505–506; People v. Rodriguez (1990) 51 Cal.3d 437, 446¬–447.)
Having rejected T.F.’s argument that the prosecution had to prove the elements of section 186.22, subdivision (f), we turn to the question whether the juvenile court’s probation violation finding was supported by substantial evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) A juvenile court has very broad discretion in determining a probation violation, and only in an extreme case should a reviewing court interfere with the discretion of the juvenile court. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) Here, there was substantial evidence that T.F. violated his probation by associating with individuals known to him to be Tre-Four members.
Sergeant Dudley had extensive experience with gangs in general and the Tre-Four gang in particular. He was personally familiar with Dominic, Michael, Jeremiah, and T.F. Based on his law enforcement training and gang experience, his interactions with these individuals, and information from a confidential informant, he believed all four were Tre Four gang members. Additionally, he had seen Dominic, Michael, and T.F. displaying Tre-Four hand signs, and Dominic and Jeremiah wearing clothing displaying the Tre-Four name or symbols. Jeremiah had Tre-Four tattoos. Multiple pictures downloaded from Instagram in February 2016 and You Tube videos posted in December 2015 showed T.F. in the presence of Dominic, Michael, and Jeremiah, among others. Sergeant Dudley believed the photos and videos were recent (i.e., taken after T.F. had been released from the DJJ in November 2015, not before his July 2013 commitment) because they had recently been posted on websites, the individuals looked more like they did at the time of the hearing than they did in 2013, and clothing worn by some of the individuals was part of the winter 2015 clothing line. Dudley also testified that because Tre-Four was a small gang (10-to-15 members), he believed each member knew all of the other members. This was ample evidence supporting the juvenile court’s finding that T.F. associated with individuals known to him to be members of the Tre-Four gang, and thus violated his probation. (See People v. Rodriguez, supra, 51 Cal.3d at p. 442 [“ ‘ “ ‘All that is required for the revocation of probation is enough evidence to satisfy the . . . judge that the conduct of the petitioner has not met the conditions of probation.’ ” ’ ”].)
DISPOSITION
The order finding T.F. in violation of the conditions of his probation and recommitting him to the DJJ is affirmed.
 

_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.

























A148160; P. v. T.F.