In re Jonathan C.

Filed 1/29/07 In re Jonathan C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a contested jurisdictional hearing, the juvenile court sustained an allegation against Jonathan C. (appellant) that he committed battery (Pen. Code,  242)^[1]and that the battery was committed with the intent to assist a criminal street gang ( 186.22, subd. (d)). The court adjudged appellant a ward of the court, declared the offense a felony under section 186.22, subdivision (d), and placed him on probation, ordering that he serve five days in juvenile hall and 49 days on house arrest.

Appellant contends there was insufficient evidence to support the section 186.22, subdivision (d) alternative sentencing provision. Specifically, he contends that there is insufficient evidence that the primary activity of the gang was the commission of the violent crimes enumerated in section 186.22, subdivision (e), and insufficient evidence that he committed the battery with the specific intent that it promote the gang. We find no merit to appellants claims and affirm.

FACTS

Events Surrounding the Crime

At trial, R.A. described an incident that occurred on May 5, 2006, as he walked to his grandmothers house. While he was walking, a maroon car stopped nearby. Two males got out of the car and rushed and punched him. Appellant, whom R.A. recognized from school, was one of the two who punched and kicked him. R.A. claimed he had had no prior problem with appellant, claimed he himself was not a gang member, and claimed he did not associate with either Norteno or Sureno gang members.

Police Officer Daniel Foss responded to a report of a fight. Officer Foss spoke with R.A. and observed that he had red marks and scratches on his back, neck, chest, and stomach. R.A. told Officer Foss that his assailants flashed gang signs as they drove by him. The car then turned around and two or three individuals got out and began punching and kicking him. R.A. identified the driver of the vehicle as appellant, whom he called Jonathan and identified him as a Sureno gang member. R.A. told Officer Foss he had had prior problems with appellant and provided the officer with an incident report number of a prior encounter. Officer Foss testified that R.A.s family, in describing the assailants car, told him that the vehicle had driven by the house several times and screamed gang accusations.

After speaking with R.A., Officer Foss observed a maroon car parked nearby and saw appellant exit the vehicle. Appellant, whose lip was bleeding, told Officer Foss he had just been in a fight with R.A. Appellant admitted he was a Sureno gang member.

The Gang Evidence

Detective Jason Dilbeck testified as a gang expert for the prosecution. Dilbeck testified that he had worked with gangs for seven and a half years. He personally investigated [h]undreds of gang crimes and had had contact with between 700 and 800 Sureno gang members. He explained the gang identifies with the color blue and the number 13. According to Detective Dilbeck, the Sureno criminal street gang had about 1,000 members in Madera.

When questioned about the primary activities of the Surenos, Detective Dilbeck stated, It depends. He then explained:

The primary activities are going to change when you get in to particular sets. Primary activities can range from some Sureno gangs that are heavily involved with narcotic sales, to other gangs that are more known for violence such as assaults with deadly weapons, walk-up shootings, shooting at inhabited dwellings, things of that nature.

He identified two predicate offenses committed by Sureno gang members. The offenses, attempted voluntary manslaughter and assault with a firearm, are both enumerated in section 186.22, subdivision (e).

Detective Dilbeck opined that the battery committed by appellant promoted or assisted the gang. Dilbeck testified that a gang member gets respect by committing violent crimes, especially if its against rival gang members. These crimes then instill fear because the more violent gang members are and appear to be to the public, the harder it is for law enforcement to investigate crimes and the harder it is to get victims to testify against the gang. Dilbeck opined that a gang member who gains respect by committing a violent crime benefits the gang as well. According to Dilbeck, if an individual[] in a gang [is] perceived as violent, the gang, as a whole, will be perceived as more violent.

When asked on cross-examination why he thought appellants actions benefited the Surenos, Detective Dilbeck stated,

Number one, it was done in connection with another Sureno. Number two, it was two rival gang members. Number three, the victim advised Officer Foss that they had thrown gang signs prior to the incident. Also that there was prior incidents where he had made threats against the victim and acknowledged that he was a Sureno member to the victim .

Detective Dilbeck testified that R.A. was a known Norteno gang member and that he did not admit to being a Norteno because he did not want his mother to know of his gang involvement.

Defense

Appellant denied that he was involved in a confrontation with R.A. According to appellant, he was driving with some other people when one of his back seat passengers spotted R.A. and asked him to stop the car. Appellant got out of the car as well, and when he did so, R.A. socked him, so he hit him back. Appellant denied being a gang member.

DISCUSSION

Evidence of Gang Enhancement

Appellant challenges the sufficiency of the evidence to support the true finding on the section 186.22, subdivision (d) alternative sentencing provision. Specifically, appellant contends that there was a lack of evidence that the primary activity of the gang was the commission of the violent crimes enumerated in section 186.22, subdivision (e), and a lack of evidence that the minor committed the battery with the specific intent that it promote, further, or assist the gang. We disagree.

In determining the sufficiency of the evidence, we review the entire record to determine whether there was evidence that was reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 140; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code,  411; People v. Cudjo (1993) 6 Cal.4th 585, 608.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the trier of fact could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, at p. 331.)

Section 186.22, subdivision (d) is not an enhancement, but is instead an alternate penalty provision. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899-900.) The provision elevates a misdemeanor to a felony if the crime 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 . ( 186.22, subd. (d).)

To prove the existence of a criminal street gang, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called predicate offenses) during the statutorily defined period. [Citation.] [Citation.] (In re Jose P. (2003) 106 Cal.App.4th 458, 466-467; see also  186.22, subd. (f).)

The primary activities element of section 186.22, subdivision (f) was construed by our Supreme Court in People v. Sengpadychith (2001) 26 Cal.4th 316 as follows:

The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22 requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]. Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the [30] enumerated crimes found within the statute. (Id. at pp. 323-324, quoting People v. Gamez (1991) 235 Cal.App.3d 957, 970-971, disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)

The court noted further that [s]ufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) It held further that the primary activities element might also be satisfied by expert testimony of the type found in People v. Gardeley, supra, 14 Cal.4th 605, where a police gang expert testified that the defendants gang was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] (People v. Sengpadychith, supra, at p. 324.)

Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) But such evidence alone is not necessarily sufficient to establish the primary activities requirement. (Ibid.) And, in fact, evidence sufficient to show only one offense (enumerated under section 186.22, subdivision (e)) is not enough. (In re Jorge G. (2004) 117 Cal.App.4th 931, 945; see also People v. Perez (2004) 118 Cal.App.4th 151 [beating six years before subject crime and four shootings less than a week before subject crime held insufficient to establish groups members consistently and repeatedly committed enumerated offenses].)

Here, the gang expert testified that the primary activities ranged from narcotics sales to violence such as assaults with deadly weapons, walk-up shootings, shooting at inhabited dwellings. The specific crimes listed by the gang expert are all enumerated offenses under section 186.22, subdivision (e).

But appellant argues the experts testimony that the gangs primary activity can range from narcotics sales to acts of violence fails to prove that the gangs primary activity is the commission of violent crimes which are specified in section 186.22, subdivision (e) . Appellant contends that although the expert listed several enumerated offenses, he did so merely to give examples of certain violent crimes, but that it was the commission of violent crimes in general that was the primary activity of the gang, and although section 186.22, subdivision (e) lists some violent crimes, it does not list all violent crimes. We disagree.

In People v. Duran (2002) 97 Cal.App.4th 1448, the court was presented with a situation where the gang expert testified the gang had several primary activities; the main one was putting fear into the community by committing robberies, assaults with deadly weapons, and narcotics sales. (Id. at p. 1455.) The defendant argued that this was insufficient evidence of the gangs primary activity because putting fear into the community is not an enumerated offense. (Id. at p. 1464.)

The court in Duran rejected the defendants argument, explaining that the experts testimony had to be read in context. The expert in Duran had testified:

Now, when I say [that the gangs main primary activity is putting fear into the community], what I mean is often these gang members are committing robberies, assault with deadly weapons, narcotic sales, and theyre doing it as a group. [] And in doing so, they start claiming certain territories within the city . [] And theyre controlling either the narcotics sales in that area, theyre committing the robberies in this area, all for the purpose of fear and intimidation of the community. (People v. Duran, supra, 97 Cal.App.4th at p. 1465, italics omitted.)

The court held that the testimony supported a finding that the gang members were engaged in more than the occasional sale of narcotics, robbery or assault, making it a primary activity of the gang. (Id. at pp. 1564-1466.)

Here, we find appellants interpretation of the experts testimony strained and out of context. We do not read Detective Dilbecks testimony as stating that one of the gangs primary activities is violence, which is not an enumerated offense. Instead, we see it as his explanation that there were primarily two types of crimes that the gangs involved themselves in: narcotic sales and violent crimes. Dilbeck then specifically listed the violent crimes, in the plural, as assaults with a deadly weapon, walk-up shootings, and shooting at inhabited dwellings, each an enumerated offense. ( 186.22, subd. (e)(1), (5).)

Moreover, Detective Dilbeck did not just give his general opinion about the activities of the Surenos. He also testified that two persons shown to have committed crimes of violence, attempted voluntary manslaughter and assault with a deadly weapon, were Sureno gang members. Both predicate crimes, committed in 2001, are enumerated offenses as listed in section 186.22, subdivision (e)(1) and (3). The court in Duran found that a gang experts primary activity testimony had been further corroborated by the predicate crimes evidence used to show a pattern of gang activity. (People v. Duran, supra, 97 Cal.App.4th at p. 1465.)

We conclude there was sufficient evidence to prove the primary activity element of the gang allegation.

Appellant also contends there was insufficient evidence that he committed the battery with the necessary specific intent. According to appellant, Detective Dilbeck testified that appellants actions had the effect of benefiting the gang, but he never testified that appellant committed the battery with the specific intent to promote, further, or assist in criminal conduct by gang members. We disagree.

It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) But expert opinion on whether a specific individual possessed a specific intent is not allowed. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197.) Instead, an expert may testify how certain conduct may benefit or promote a gang, based on the experts own observations, or for the expert to assist the trier of fact in understanding the meaning of the defendants actions in the context of gang activity. (Id. at pp. 1197-1198.)

For instance, in People v. Killebrew (2002) 103 Cal.App.4th 644, this court found the experts testimony regarding the minors specific intent to promote, further, or assist in criminal conduct by gang members exceeded the type of culture and habit testimony found in the reported cases. (Id. at p. 654.) In Killebrew, the defendant was convicted of conspiracy to possess a handgun by an active member of a criminal street gang. The defendant was not found in actual possession of the gun. (Id. at p. 647.) Following a gang shooting, officers observed three cars. They stopped the first car and found a gun. The other two cars drove away and were located a short time later. A gun was found near a Dumpster nearby. The defendant was seen observing the stop of the first vehicle from a street corner, and the prosecution sought to place him in one of the three vehicles, but the testimony was extremely weak. The prosecutions theory was that the occupants of all three vehicles conspired to possess the two handguns because of the threat of retaliation for an earlier shooting. (Id. at pp. 648-649.)

At trial an expert on gangs reasoned that the occupants of the cars were gang members, that they traveled in large groups for protection from possible retaliatory shootings, that any group of this particular gang out at night would be armed, and that everyone in the car would know there was a gun in the car and mutually possess it. He testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (People v. Killebrew, supra, 103 Cal.App.4th at p. 652 & fn. 7.) This testimony provided the only evidence to establish the elements of the crime, and we found it did nothing more than inform the jury how [the expert] believed the case should be decided. (Id. at p. 658.)

Similarly, in In re Frank S., a traffic stop on a minor found him to be in possession of a concealed knife, some methamphetamine, and a red bandana. The officers arrested the minor, who stated that he needed the knife for protection from southern gang members who thought he was part of a rival northern gang. The minor acknowledged having friends in the northern gang. (In re Frank S., supra, 141 Cal.App.4th at p. 1195.) The allegations that the minor was carrying a concealed dirk or dagger with a gang enhancement were found true. (Id. at p. 1194.)

At trial, the gang expert opined that the minor possessed the knife to protect himself, and that a gang member would use the knife for protection from rival gang members and to assault rival gangs. The expert opined that the minors possession of the knife benefited the northern gang members because it helped to provide protection should they be assaulted. (In re Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)

This court found the case similar to Killebrew in that the expert testified to subjective knowledge and intent of the minor. (In re Frank S. supra, 141 Cal.App.4th at pp. 1197-1198.) Such testimony is much different from the expectations of gang members in general when confronted with a specific action. [Citation.] (Id. at p. 1198.)

In contrast, in People v. Gamez, supra, 235 Cal.App.3d 957, the court found the evidence sufficient to prove the defendant committed the crime for the benefit of the gang and with the specific intent to promote or assist the gang. In Gamez, the defendant was convicted of, inter alia, assault with a firearm when he shot at several individuals in front of a house where a rival gang members car was parked. The evidence established that the defendant drove to a location in rival gang territory. The gang expert testified that the Hispanic gangs in that area were extremely territorial and that venturing into another gangs turf is done at great risk. (Id. at p. 978.) A car parked in front of the house where shots were fired belonged to a rival gang member who was thought to have been involved in a recent gang shooting. The expert opined that, in the culture of gangs, the shooting by a rival gang member could not go unavenged and would warrant a retaliatory strike. (Ibid.) The court found this constituted sufficient evidence that the defendants actions were done with the intent to aid and promote his gang. (Ibid.)

Here, the evidence established that appellant was a Sureno gang member; he was in the presence of other Surenos at the time of the incident; the Surenos threw gang signs before they attacked R.A.; and appellant made prior threats against R.A. Contrary to R.A.s denial, Detective Dilbeck testified that R.A. was a known Norteno gang member.

Appellant claims that when Detective Dilbeck was asked why he thought appellants actions may have benefited the gang, he responded with the same factors listed above: (1) the battery was done in connection with another Sureno; (2) it involved rival gangs; (3) before the incident, the Surenos threw hand signs; (4) appellant made previous threats against R.A.; and (5) appellant acknowledged he was a Sureno. Appellant claims that this testimony does not point to appellants specific intent to commit the offense for the purpose of promoting the gang. However, appellant fails to mention that Dilbeck also testified that violent crimes were part of the primary activity of the gang; that a gang member gains respect by committing violent crimes on rival gang members; and, if an individual in a gang is perceived as violent, the gang, as a whole, will be perceived as more violent.

Based on the totality of evidence and expert opinion, we find that there is sufficient evidence to uphold the juvenile courts finding that appellants actions were done with the specific intent to promote, further, or assist in criminal conduct by gang members.

DISPOSITION

The findings and judgment are affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.

Pursuant to California Constitution, article VI, section 21.

^[1]All further statutory references are to the Penal Code unless otherwise stated.