In re Carlos H.

Filed 2/28/07 In re Carlos H. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Locker, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

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The Madera County Superior Court readjudged appellant, Carlos H., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations in petition No. BJL015830-A (the A petition) charging Carlos with possession of a concealed dirk or dagger (Pen. Code, 12020, subd. (a)(4)),^[1]an allegation in petition No. BJL015830-B (the B petition) charging Carlos with public intoxication ( 647, subd. (f)), and allegations in petition No. BJL015830 that he violated his probation. The court also found true a gang enhancement ( 186.22, subd. (b)(1)(A)) with respect to Carloss possession of a concealed dirk or dagger offense. On May 2, 2006, the court ordered Carlos to enroll in the Juvenile Correctional Camp for a period of two years (six months confinement and 18 months aftercare). On appeal, Carlos contends (1) the evidence is insufficient to sustain the courts true finding on the gang enhancement; (2) the court erred in requiring Carlos to register as a gang member; and (3) the evidence is insufficient to sustain the courts true finding with respect to the public intoxication offense. We will find merit to these contentions. In all other respects, we will affirm.

FACTS^[2]

The A Petition

Madera Police Officer Jason Pritchard testified that on January 25, 2006, at approximately 2:50 p.m., he arrived at a location where another officer had detained Carlos and two other males on the street. During a search of Carlos, the officer found a fixed knife with a blade three and a half inches long in Carloss pants pocket. Although the knife was inside a sheath, the sheath was not locked.

Officer Jason Dilbeck testified as an expert that Carlos was a Sureo gang member. Dilbeck based his opinion on Carloss admission to that effect, his mothers admission that he was a gang member, Carloss display of X3, a Sureo gang symbol, documentation of Carlos uttering a gang slogan, documentation that Carlos had been associating with other gang members, his arrest while committing crimes with other gang members, and Carloss admission of Sureo gang membership when he was in a custodial environment at the Madera Juvenile Hall.

Dilbeck further testified that on January 25, 2006, Carlos was loitering with two known gang members^[3]in Sureo gang territory. According to Dilbeck, this benefited the Sureo gang because there were three Sureo gang members associating with each other, two of the subjects were on probation, and Carlos had a knife in his possession that was readily accessible for stabbing. Dilbeck also testified that gang members carry weapons not only to bolster the reputation of their gang but also to protect their territory and to allow them to commit offensive and defensive crimes against rival gang members.

The B Petition

Officer Shant Sheklanian testified that on March 8, 2006, he went to a location where four people had been detained including Carlos who was in the back seat of a patrol car. Sheklanian transported Carlos to the police station and administered two breath tests for alcohol which measured Carloss blood alcohol content at .04 percent and .05 percent. Afterwards, the officer transported Carlos to the hospital where he was medically cleared.

Officer George Yang testified that when he arrived on the scene, Carlos had already been placed in the back seat of a patrol car. He further testified that the people detained had all been drinking.

DISCUSSION

The Gang Enhancements

We review claims of insufficient evidence by examining the entire record in the light most favorable to the judgment below. [Citation.] We review to determine if substantial evidence exists for a reasonable trier of fact to find the counts against the minor true beyond a reasonable doubt. [Citation.] Substantial evidence must be reasonable, credible, and of solid value. [Citation.] We also presume the existence of every fact the lower court could reasonably deduce from the evidence in support of its judgment. [Citation.]

[Section 186.22, subdivision (b)(1)] enhances an existing sentence and does not criminalize mere gang membership [citation]; rather, it imposes additional punishment for any person who is convicted of a felony 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. [Citation.]

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. [Citation.] California law permits a person with special knowledge, skill, experience, training, or education in a particular field to qualify as an expert witness [citation] and give testimony in the form of an opinion (id., [Evid. Code] 801). [Citation.] However, Evidence Code section 801 limits this testimony to that related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citation.] The subject matter of the culture and habits of criminal street gangs . . . meets this criterion. [Citations.] [Citation.] Generally, experts may state their opinion based upon facts given in a hypothetical question asking them to assume their truth; however, the hypothetical must root itself in facts shown by the evidence. [Citation.] If experts base an opinion on material not admitted into evidence, the material must be reasonably relied upon by experts in that particular field in forming their opinions and be reliable. [Citation.] Like a house built on sand, the experts opinion is no better than the facts on which it is based. [Citation.] (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197.)

In Frank S., a Visalia police officer stopped a minor who was riding his bicycle. An ensuing search uncovered a knife and a small bindle of methamphetamine on the minor. The minor told the officer that he needed the knife for protection because he had been jumped two days earlier and he needed the knife for protection against rival gang members. During the adjudication hearing, the only evidence of the minors intent in possessing the knife came from an officer who testified as an expert that the minor possessed the knife with the specific intent to aid his gang. On appeal, this court held that an experts testimony was improperly admitted on the issue of the minors intent and that the evidence was otherwise insufficient to sustain the courts true finding of a gang enhancement because it did not show that the minor possessed the knife with the specific intent to promote, further, or assist in criminal conduct by gang members. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) In so doing, we noted that the prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. (Ibid., italics added.)

Carlos relies on Frank S. to argue that the evidence is insufficient to sustain the courts true finding on the gang enhancement because it fails to show that he committed the possession of a dagger offense for the benefit of a gang or with the specific intent to promote, further or assist in criminal conduct by the Sureo gang. We agree.

Here, the officer found a concealed dagger on Carlos. Further, Office Dilbeck testified that the knife was readily accessible for stabbing, that gang members carried weapons to bolster the reputation of their gang, to protect their territory and to allow them to commit offensive and defensive crimes against rival gang members. However, although on January 25, 2006, Carlos was with two other alleged gang members in Sureo gang territory, Carlos was not wearing any clothing that identified him as a gang member, there was no evidence that the other alleged gang members were wearing gang clothing, and, as in Frank S., there is no evidence that Carlos had any reason to expect to use the dagger in a gang-related offense. Thus, even though Dilbecks testimony established that gang members will carry weapons for the benefit their gang, we find this an insufficient basis to establish that on this occasion, Carlos carried it with the specific intent to promote, further or assist his fellow gang members in any criminal conduct.

Respondent contends that the requisite intent can be inferred from Carlos deep entrenchment in the gang lifestyle and the fact that he was in his own gangs territory in the company of two fellow gang members. We disagree.

Preliminarily we note that the evidence is insufficient to establish that on January 25, 2006, Carlos was in the company of two fellow gang members. Although Officer Dilbeck testified as an expert that the two males who accompanied Carlos on that date were gang members, he did not testify to any facts that supported this conclusion. Further, as noted earlier, Like a house built on sand, the experts opinion is no better than the facts on which it is based. [Citation.] (In re Frank S., supra, 141 Cal.App.4th 1192, 1197.)

In any event, gang membership alone does not prove the requisite intent. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Nor can this intent be inferred simply from Carloss possession of a dagger in his own gangs territory while in the company two other alleged fellow gang members. Thus, in accord with Frank S., we conclude that the evidence is insufficient to support a finding that Carlos carried the dagger for the benefit of a street gang.

The Registration Requirement

Carlos contends that the gang registration requirement should be stricken because there was insufficient evidence that his offense of possessing a dirk or dagger was gang related. Again, we agree.

Section 186.30 provides:

(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.

(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [] (1) Subdivision (a) of Section 186.22. [] (2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true. [] (3) Any crime that the court finds is gang related at the time of sentencing or disposition.

In People v. Martinez (2004) 116 Cal.App.4th 753, 761-762, the court held that a crime may not be found gang related within the meaning of section 186.30 based solely upon the defendants criminal history and gang affiliations. The crime itself must have some connection with the activities of a gang, which we conclude means a criminal street gang as defined elsewhere in Proposition 21, section 186.22, subdivisions (e) and (f). We also conclude that a crime is gang related in this context when it was committed, in the words of subdivision (b)(1) of section 186.22, for the benefit of, at the direction of, or in association with a street gang. [Citations.]

Neither of the first two circumstances in section 186.30 is present here. Further, in the previous section we concluded that the evidence was insufficient to sustain the courts finding that Carlos committed the possession of a dagger offense for the benefit of a street gang. It follows from this conclusion that the evidence is also insufficient to support the courts conclusion that the possession of a dagger offense was gang related.

The Public Intoxication Offense

Section 647, subdivision (f) provides:

Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way. (Italics added.)

Carlos contends that the evidence is insufficient to sustain the courts true finding on his public intoxication offense because it failed to show that he was under the influence of alcohol to the degree that he was unable to care for his safety or that of others or that he interfered with, obstruct or prevent the free use of any public way. Respondent concedes and we agree.

Here, all the evidence showed was that when Carlos was detained on March 8, 2006, he had a blood alcohol level of .04 or .05. Accordingly, we agree with the parties that the evidence is insufficient to sustain the courts finding that he violated section 647, subdivision (f).

DISPOSITION

The courts true findings on the gang enhancement attached to Carloss possession of a dagger offense (in petition A) and its true finding on the public intoxication offense (in petition B) are reversed. The judgment is further modified to strike the gang registration requirement. As modified, the judgment is affirmed.

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

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

^[2] The facts are limited to the counts and enhancements in the A and B petitions that the court sustained.

^[3] However, Dilbeck did not identify the two males who accompanied Carlos on that date or state the basis for his conclusion that these two males were gang members.