Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36391
ELIA, Acting P. J.The juvenile court sustained a juvenile wardship petition alleging that appellant A. T., who had been declared a ward under a previous petition, committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and did so for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). (Welf. & Inst. Code, § 602.) The court continued him as a ward of the juvenile court, committed him to the Enhanced Ranch Program and ordered that "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect." On appeal, appellant challenges the sufficiency of the evidence to support the true finding on the gang enhancement allegation. He also contends that two probation conditions, which were imposed by a previous disposition in 2009, were unconstitutionally vague and/or overbroad. The Attorney General contends that, under this court's decision in In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.), appellant is precluded from challenging those probation conditions.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
We find sufficient evidence in the record to support the court's finding on the gang allegation. Consistent with Shaun R., we determine appellant failed to timely challenge those probation conditions. We affirm the 2010 disposition.
A. Procedural History and Evidence
1. Background
On October 19, 2009, a juvenile wardship petition was filed against appellant. It alleged that in September 2009, appellant committed second degree robbery by taking the victim's cell phone (Pen. Code, §§ 211, 212.5, subd. (c)). Appellant waived his rights and admitted committing the robbery. The court declared appellant a ward, placed him on probation, and imposed conditions of probation. One of the probation conditions provided "[t]hat said minor not be on or adjacent to any school campus unless enrolled or with prior administrative approval." Another stated "[t]hat said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer."
2. Current Section 602 Proceeding
A section 602 petition, filed on April 20, 2010, alleged that appellant had committed second degree robbery on or about April 17, 2010 (Pen. Code, §§ 211, 212.5, subd. (c)) and did so for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). A contested jurisdictional hearing was held in June 2010.
The evidence adduced at the jurisdictional hearing showed the following. Kevin, who was 15 years old at the time of the hearing, was at the Eastridge Shopping Center with friends on the evening of April 17, 2010. Kevin was wearing a red hat with the letter "C" on it and red shoes. Appellant and a companion approached Kevin from behind. Appellant tapped Kevin on the shoulder and told Kevin to follow him. Appellant stepped away from Kevin's friends, Kevin followed, and appellant asked Kevin where he was from. Kevin responded, "I don't bang or anything." Appellant replied, "What's with the red?" Kevin told appellant "it's a style." Appellant "told [Kevin] to empty [his] pockets." Kevin did so, and he pulled a cell phone out of his pocket. Appellant's companion took the cell phone from Kevin and opened it. Appellant took Kevin's hat. Appellant and his companion then walked away with the hat and cell phone. Appellant admonished Kevin " 'I better not catch you wearing red again.' " Kevin was scared throughout the incident; he was afraid of appellant and his companion because "[t]hey were big."
A store manager, who had witnessed the end of the incident outside his store, notified mall security. San Jose Police Officer Ryan Ferguson was dispatched to Eastridge Shopping Center at approximately 6:25 p.m. on April 17, 2010 in response to a reported robbery. When Officer Ferguson arrived at the mall, appellant and another minor were being detained in the parking lot by mall loss-prevention officers.
When appellant was interviewed by Officer Ferguson, appellant said that we "just checked [Kevin] 'cause he was wearing a red hat and red shoes." Appellant could tell that Kevin was scared of him. Appellant admitted that he asked Kevin to "take his uh, red clothing off" because "I don't like red" " '[c]ause I'm a Crip." He said, "I'm a Crip, man, and I see people wearing red, I don't like that." He admitted taking Kevin's red hat because it was red. Appellant told the police officer that he had been "[a]ffiliated" with "Asian Boy[z]" "since childhood." He also told the officer that he was "on gang probation" for the "[s]ame thing" because he previously had "jumped somebody for their stuff."
During voir dire examination regarding his qualification as an expert, San Jose Police Officer Ken Tran indicated that he had been a gang investigator with the gang investigations unit for approximately two years. He had received both formal and informal training. He was assigned to the Asian gang team within the gang unit. Officer Tran had spoken with more than 100 Asian gang members and investigated more than 20 Asian gang cases. He had read more than 100 police reports on gangs based on his caseload alone and half of his caseload involved Asian gangs. He was familiar with "Asian Boyz, " which was also known as "ABZ, " and other Asian gangs. He had participated in the investigation of about three previous ABZ cases. In one of those cases, ABZ gang members were the victims of a drive-by shooting by a rival gang. In a second case, the crime victim was a Sureno gang member and ABZ gang members were suspected. Officer Tran did not describe a third case. The officer had personally spoken to "more than five" ABZ gang members. He had acquired further information about ABZ by talking to a police officer in Westminster and a detective in Long Beach.
After the court recognized him as a gang expert for purposes of Penal Code section 186.22, Officer Tran testified that the Asian Boyz, which is abbrebiated as ABZ, is a very large Asian gang with different chapters within the nation. The ABZ gang has approximately 4, 000 to 5, 000 members in California. He indicated that the ABZ gang does not have subsets but, rather, has different chapters. He indicated there were different groups in "Long Beach, Westminster, down in Orange County, Fresno, Stockton or here in San Jose" that fell under the umbrella of the ABZ. The ABZ gang is "more prevalent" in Southern California than in Northern California. In Santa Clara County, there are approximately 300 to 400 members but only 30 were documented. The color blue, the letter "A, " and the number 1226 are associated with the ABZ gang. ABZ gang members sometimes have tattoos that are common among Asian gang members, specifically tattoos of dragons, panthers, and koi fish.
When listening to the recording of appellant's statement to Officer Ferguson, Officer Tran had heard appellant say something about associating with the Crips. He explained that the Crips are historically a black gang that was associated with the color blue and a rival to Blood gangs that claimed the color red. The officer described the historic connection between the Crips and Asian Boyz who align themselves with the Crips and call themselves Crips as do other Asian Crips gangs. The officer stated that Asian gangs prey on each other within their own community. Although the San Jose Crazy Crips also claim the color blue, it is a rival gang to the ABZ. ABZ is a close ally with the VBZ gang, which associates with the color black. Members of the ABZ gang perceive other Asians wearing the color red as rival gang members.
Officer Tran spoke with police officers in Westminster, located in Southern California, about the ABZ gang and crimes committed for the gang's benefit. He also read police reports. He learned that there was a documented ABZ gang member, Bao Nguyen, who resided in Westminster and had commited a series of seven strong-arm robberies between December 2006 and July 2007. Nguyen had admitted being an ABZ gang member and had an ABZ tattoo. The officer described two of the robberies, one occurring on June 19, 2007 and the other occurring on July 26, 2007, and opined that both had been committed for the benefit of the Asian Boyz Street Gang. Nguyen had admitted that ABZ benefitted from his actions. The proceeds of the robberies had been used to buy drugs to share with other ABZ gang members. Nguyen had been convicted of committing those robberies and sent to prison. His California CLETS rap sheet was admitted into evidence. It showed Nguyen had been "charged and... convicted" of a "criminal street gang" crime.
According to Officer Tran, the primary activities of the ABZ gang were the commission of crimes such as vandalism, burglary, drug dealing, assault, assault with deadly weapons, drive-bys, attempted murders and robberies. In his opinion, which was based on prior cases and convictions, the Asian Boyz gang was an ongoing criminal street gang as legally defined.
In Officer Tran's opinion, appellant was a member of the criminal street gang known as Asian Boyz or ABZ. Tran's conclusion was based on the facts of the robbery in this case, appellant's statement to Officer Ferguson after the robbery, Tran's own prior contact with appellant, another officer's encounter with appellant on October 4, 2008, appellant's association with ABZ gang members, and appellant's clothing and tattoos.
During the October 2008 police contact with him, appellant was wearing a baseball cap with the letter "A" on it and was with a group of documented ABZ gang members. The Field Identification card from that contact indicates that appellant had the word "south" tattooed on one arm and the word "side" tattooed on the other arm. During Officer Tran's subsequent encounter with appellant on October 15, 2009, the officer also observed tattoos on appellant's arms. In addition to the "south" and "side" tattoos, appellant had a koi fish tattoo on his arm. When the officer spoke with appellant, appellant said that he "kick[ed] it with ABZ and VBZ, " which appellant explained stood for Asian Boyz and Vietnamese Boyz. Appellant said he had not been jumped in. Appellant was wearing a blue belt that had a belt buckle with a letter "A" on it, which was gang indicia. He was also wearing white Nike shoes with a blue Nike emblem and blue Dickie pants. Officer Tran testified that the "south" and "side" tattoos "could have been his claim to his hood or his area" in the southside of San Jose. But he acknowledged that the ABZ do not have "an identified turf" or "specific hood" in San Jose.
It was also Officer Tran's opinion that the alleged robbery was a gang-related offense and was done for the benefit of the ABZ gang and in association with ABZ gang members. The crime bolstered the ABZ gang's reputation, which made other gangs less likely to challenge them, and showed appellant's allegiance to the gang in that "he can be counted on for future criminal conduct" for ABZ. Although "sometimes gang members will take rival gang members' property as a trophy, " Officer Tran did not have enough information to conclude that Kevin, the victim in this case, was a gang member. Kevin had reported to the officer that he was receiving threats from other ABZ gang members through the Internet, which indicated to the officer that ABZ was aware of the incident.
The court found the robbery and gang allegations true. It continued appellant as a ward, removed him from his parent's custody, and committed him to the ranch for six to eight months. After he completed the ranch commitment, appellant was to be returned to parental custody on probation. The court set the maximum time of confinement at 11 years, aggregating the terms of all previously sustained petitions. The court's disposition included the provision "[t]hat all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect." Appellant timely filed a notice of appeal from the court's June 2010 order.
B. Sufficiency of the Evidence to Prove the Gang Enhancement Allegation
1. Legal Standard
Appellant contends that Officer Tran's testimony was insufficient to prove the enhancement allegation under Penal Code section 186.22, subdivision (b), for committing a felony "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." "[C]riminal street gang" "means 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 the [statutorily enumerated] criminal acts..., 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." (Pen. Code, § 186.22, subd. (f).)
"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 group's primary activities." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Id. at p. 324, italics omitted.) Alternatively, sufficient evidence of a gang's primary activities may be established by "expert testimony" of a "police gang expert" that a particular gang "was primarily engaged in" committing qualifying offenses where that opinion is based on the expert's conversations with members of that gang, investigations of crimes committed by gang members, and information the expert has obtained from colleagues in his police department and "other law enforcement agencies." (Ibid.)
" '[P]attern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [statutorily specified] offenses [within the statutorily specified time frame], and the offenses were committed on separate occasions, or by two or more persons." (Pen. Code, § 186.22, subd. (e).) The term "predicate offenses" describes "the component crimes that constitute the statutorily required 'pattern of criminal gang activity.' " (People v. Gardeley (1996) 14 Cal.4th 605, 610, fn. 1.) The predicate offenses need not be gang-related. (Id. at pp. 621-624.)
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806....) We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (Ibid.) If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27....) 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (Ibid.)" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
"Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411.) This principle applies to the testimony of an expert witness. (See People v. Smith (1995) 31 Cal.App.4th 1185, 1190.)
2. Activities of the ABZ Gang
Appellant contends that Officer Tran's testimony about ABZ's primary activities "was not supported by reliable evidence" because "there was no evidence to support the notion that the activities of Westminster ABZ could be properly ascribed to San Jose ABZ." Appellant states that "[t]he prosecution apparently provided the testimony regarding Bao Nguyen and the Westinster ABZ as proof that ABZ engaged in a pattern of criminal activity and had as primary activities the commission of robberies and other crimes enumerated in the statute." He complains that the prosecution "offered no explanation... why robberies committed by a member of an ABZ chapter in Westminster, a southern California city hundreds of miles from San Jose, should be attributed to appellant's ABZ group in the absence of any proof of personal association or collaborative activity of any kind."
Appellant's trial counsel made a similar argument to the juvenile court below: "[The gang expert] just essentially rattled off various crimes that fall under that statute. He didn't discuss where that information came from, what is substantiating that conclusion, why he's come to that conclusion; if this was in San Jose, or if this was nationally or if these were crimes that were in Southern California predominantly; if these were convictions, if these were arrests. We just don't know." He also contended that "we're essentially gaining most of our evidence about ABZ from a Southern California ABZ. And there has not been any evidence connecting Southern California ABZ to San Jose ABZ other than the fact that they use the same acronym, they wear the same colors and, at best, they have the same general ideals."
Relying primarily upon the case of People v. Williams (2008) 167 Cal.App.4th 983 (Williams), appellant argues that the criminal activities of the Asian Boyz gang in Westminster, California cannot be ascribed to the San Jose Asian Boyz. He maintains that there is no evidence of a common structure, shared leadership, shared activities, or cooperation or communication or loyalty between the two groups.
In Williams, the defendant challenged the sufficiency of the evidence to support a "primary activities" finding regarding the Small Town Peckerwoods, the group to which he belonged. (Williams, supra, at pp. 986-987.) The defendant contended that the relevant group in determining whether the evidence was sufficient to uphold the gang enhancement was "the Small Town Peckerwoods, not other groups calling themselves Peckerwoods or some overall Peckerwoods gang." (Id. at p. 987.) He also maintained that "there was no evidence he was an active participant in any group other than the Small Town Peckerwoods, and there was insufficient evidence of a connection between members of the Small Town Peckerwoods and anyone else." (Ibid., fn. omitted.)
The gang expert in Williams testified that "Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization." (Id. at p. 988.) He also "testified that Peckerwood groups share a white pride or white supremacist ideology, and there is a hierarchy, with 'shot callers' who answer to a higher authority inside the prison system." (Ibid.) He explained that "Peckerwoods are not typically organized like other criminal street gangs, however: for the most part, they have no constitution, and are a looser organization with a less well-defined rank structure." (Ibid.) According to the expert, "Peckerwood groups get together more for bragging than for strategizing, and one group of Peckerwoods will not necessarily know what another group is doing." (Ibid.)
The appellate court in Williams recognized: "Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization. [Citations.]" (Id. at p. 987.) But it also determined that "having a similar name" was not alone "sufficient to permit the status or deeds of the larger group to be ascribed to the smaller group." (Ibid.) The court concluded: "In our view, something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization. There was no such showing here. [The gang expert's] general references to 'shot callers' answering to a higher authority within the prison system were insufficient, absent any testimony that the group calling themselves the Small Town Peckerwoods contained such a person, or that such a person was a liaison between, or authority figure within, both groups." (Id. at p. 988.)
In this case, unlike Williams, appellant is part of a local criminal street gang that has exactly the same name as the larger organization. No affirmative evidence indicated that appellant was part of a local group that shared only a similar name and a general ideology with a loosely-organized larger group. There was no evidence that the San Jose ABZ differentiated itself in any relevant way from the larger ABZ organization or belonged to it in name only.
Appellant suggests that the "San Jose ABZ and Westminster ABZ are easily distinguishable from gangs such as the Norteños, " the gang at issue in People v. Ortega (2006) 145 Cal.App.4th 1344 and In re Jose P. (2003) 106 Cal.App.4th 458, 467. Neither case provides any support for appellant's contention that the criminal activities of the Westminster Asian Boys cannot be ascribed to the San Jose Asian Boys.
In People v. Ortega, supra, 145 Cal.App.4th 1344, the defendant contended "there was insufficient evidence to sustain a finding of the existence of a criminal street gang because... the term 'Norteño' is merely the geographical identity of a number of local gangs with similar characteristics, but is not itself an entity." (Id. at p. 1355.) He also asserted that "the prosecution had to prove precisely which subset was involved in the present case." (Id. at p. 1357.) The gang expert had testified that "there were thousands of Norteño gang members in the Sacramento area, and 20 to 25 subsets of Norteños." (Id. at p. 1356.) But there was no affirmative evidence indicating "the goals and activities of a particular subset were not shared by the others." (Id. at p. 1357.)
The appellate court in Ortega concluded: "There was sufficient evidence that Norteño was a criminal street gang, that the murder was related to activity of that gang, and defendant actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here." (Ibid.) The court further declared: "In light of the nature of gang structure and the apparent willingness of members to work with other gangs to commit crimes, requiring the prosecution to prove the specific subset of a larger gang in which a defendant operated would be an impossible, and ultimately meaningless task." (Ibid.)
In Jose P., the appellant argued that "there was insufficient evidence to establish that he was associated with any particular gang." (Jose P., supra, 106 Cal.App.4th at p. 465.) The gang expert in Jose P. "testified that the Norteño gang was an ongoing association of around 600 persons, identified by the color red and the number 14, and that it had as one of its primary activities the commission of the criminal acts listed in section 186.22." (Id. at p. 467.) With regard to the element of a pattern of criminal activity, the expert testified about a robbery and firearms offenses committed by Norteño gang members from different subsets. (Id. at p. 463.) On appeal, this court concluded that "[t]his is sufficient evidence to establish that Norteño was a criminal street gang." (Id. at p. 467.) This court rejected the contention that "the evidence of gang activity must be specific to a particular local street gang, not to the larger Norteño organization." (Ibid.)
In this case, there is no issue related to distinguishing between subsets of a gang in one vicinity. Officer Tran testified that ABZ has no "subsets, " but only "chapters." A "chapter" is ordinarily understood to mean "[a] local branch of an organization." (American Heritage College Dict. (3d ed. 1997) p. 235.) His testimony supported a reasonable inference that ABZ is a unified organization.
Officer Tran was aware of San Jose ABZ members' involvement in criminal activities and had spoken with a number of San Jose ABZ members. No evidence was presented that San Jose ABZ members did not share the "goals and activities" of ABZ members in other locales. Further, Officer Tran's testimony did not establish that his statements about the ABZ's "primary activities" were based solely on Southern California ABZ criminal activities. His description of ABZ's primary activities included a host of qualifying criminal activities, which were not limited to robberies. But the fact that an Westminster ABZ member had committed robberies, as had appellant, tended to support Tran's testimony that robbery was a primary activity of the ABZ gang as a whole.
3. Basis of Officer Tran's Expert Testimony
Appellant argues that Officer Tran's testimony did not constitute sufficient evidence of the Asian Boyz's primary activities withing the meaning of Penal Code section 186.22, subdivision (f) since that "testimony amounted to no more than statements in In re Alexander L. (2007) 149 Cal.App.4th 605...." When the gang expert in Alexander L. was "asked about the primary activities of the gang, he replied: 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Id. at p. 611.) The appellant in Alexander L. had objected to the expert's answer on the ground that it lacked foundation and had moved to strike the testimony. (Id. at p. 612, fn. 4.) The gang expert did not indicate that he had any basis for his testimony and he "did not directly testify that criminal activities constituted [that gang's] primary activities." (Id. at p. 612.) The appellate court noted the objection should have been sustained and the motion should have been granted. (Id. at p. 612, fn. 4.) It concluded that the gang expert's "conclusory testimony [could not] be considered substantial evidence as to the nature of the gang's primary activities." (Id. at p. 612.)
In contrast, Officer Tran explicitly identified the ABZ gang's primary criminal activities. There was no objection to Officer Tran's qualification as an expert or to the foundational basis of his opinion regarding the ABZ's "primary activities." (See Evid. Code, §§ 720 [qualification as expert witness], 801, subd. (b) [permissible bases for expert opinion], 803 [authorizing exclusion, "upon objection, " of opinion testimony based on improper matter]; see also Evid. Code, § 405 [determination of foundational facts] and Assem. Com. on Judiciary com., 29B Pt. 1 West's Ann. Evid.Code (1995 ed.) foll. § 405, p. 374.) Officer Tran's testimony as a whole indicated that he personally investigated ABZ involvement in criminal activity and spoke to other law enforcement officers with experience with ABZ and this was sufficient. Appellant's counsel was free to probe the basis for Officer Tran's expert opinion regarding the ABZ's "primary activities" on cross-examination but did not elicit testimony indicating that Tran had relied upon improper or unreliable matter in forming an opinion or that his opinion was predicated upon incorrect law. (See Evid. Code, § 721, subd. (a); see also People v. Gardeley, supra, 14 Cal.4th at p. 618 ["any material that forms the basis of an expert's opinion testimony must be reliable"]; Zemke v. Workmen's Compensation Appeals Bd. (1968) 68 Cal.2d 794, 798 ["an expert's opinion which does not rest upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial evidence"].)
Appellant also refers us to In re Nathaniel C. (1991) 228 Cal.App.3d 990. In that case, the appellate court found that the evidence was insufficient to show that a primary activity of the "Family" was the commission of any of statutorily specified offenses as required by section 186.22, subdivision (f). (Id. at p. 1004.) The expert testified that "the primary activity of all of the gangs in his area [was] criminal" and "gave a general list of the crimes he had in mind, only one of which—assault with a deadly weapon—[was] included among the... offenses specified in the statute" but "did not identify the Family as one of the gangs in his area" and instead "made a point of stating that the Family's base is in San Bruno rather than his jurisdiction, South San Francisco." (Id. at pp. 1004-1005.) Unlike the expert in Nathaniel C., Officer Tran testified to primary activities that were specific to the ABZ gang.
Insofar as appellant may be citing Nathaniel C. for the proposition that a gang expert's opinion cannot be based on hearsay, he is mistaken. In that case, the expert witness, "a South San Francisco police officer, had no personal knowledge of the incident and only repeated what San Bruno police told him they believed about the shooting." (Id. at p. 1003.) The appellate court concluded that a police officer's testimony, which consisted of "only nonspecific hearsay of a suspected shooting of one Family member by another, " was insufficient to establish the commission of a predicate offense pursuant to Penal Code section 186.22, subdivision (e). (Ibid.) Although its opinion does not reflect that a hearsay objection was ever interposed in that case, the appellate court stated: "Such vague, second-hand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred. [Citation.] While experts may offer opinions and the reasons for their opinions, they may not under the guise of reasons bring before the trier of fact incompetent hearsay evidence. [Citations.]" (Id. at pp. 1003-1004.)
The correct rule is that "[a]n expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably... be relied upon' for that purpose. (Evid. Code, § 801, subd. (b); In re Fields (1990) 51 Cal.3d 1063, 1070....)" (People v. Montiel (1993) 5 Cal.4th 877, 918.) Expert opinion testimony presented in court is not inadmissible hearsay. (See Evid. Code, § 1200.) While evidence of the matters on which an expert has relied is admissible only to show the basis of the opinion and not substantively for the truth of the matter (see People v. Coleman (1985) 38 Cal.3d 69, 92; Evid. Code, § 1200), a hearsay objection may be forfeited by the failure to timely raise it. (Evid. Code, § 353, subd. (a).) Hearsay that is not objected to may constitute substantial evidence. (See People v. Panah (2005) 35 Cal.4th 395, 476; see also Cal. Law Revision Com. com, 29B Pt.1 West's Ann. Evid. Code (1995 ed.) foll. § 140, p. 15 ["when inadmissible hearsay or opinion testimony is admitted without objection, this definition makes it clear that it constitutes evidence that may be considered by the trier of fact"].)
Nevertheless, Nathaniel C. was certainly correct that the officer's general testimony regarding criminal gang activities in the area was too indefinite to establish the "primary activities" of the particular gang at issue. We reiterate that Officer Tran's testimony regarding the Asian Boyz's "primary activities" was specific to that gang.
Appellant also quotes from Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, a civil medical malpractice case involving an appeal from a summary judgment. In Bushling, the appellate court stated: "[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]" (Id. at p. 510.) It concluded that the trial court properly granted defendants' motions for summary judgment because the opposing declarations of the plaintiff's experts assumed certain facts not having any evidentiary support. (Ibid.) Bushling was not applying the substantial evidence test. Moreover, the record in this case does not show that Officer Tran was basing his expert opinion on speculation.
People v. Dodd (2005) 133 Cal.App.4th 1564, another case cited by appellant, states the unremarkable proposition that "[a] trial court... may not admit an expert opinion based on information furnished by others that is speculative, conjectural, or otherwise fails to meet a threshold requirement of reliability. [Citations.]" (Id. at p. 1569.) As stated, appellant never made a foundational challenge to Officer Tran's testimony. While "[a]n expert's opinion which rests upon guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence" (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318, fn. 3), that was not shown to be the case here.
The record indicates that Officer Tran's testimony as a whole was based upon his personal investigation of ABZ involvement in criminal activity, his personal conversations with ABZ gang members and other law enforcement officers, prior cases and convictions, and his reading of police reports. His reliance upon information beyond his own personal experience does not demonstrate that his testimony did not constitute credible evidence of solid value or that his opinions were based upon conjecture and speculation. We reject appellant's challenge to the sufficiency of the evidence to support the juvenile court's true finding on the gang allegation.
C. Propriety of Challenges to Probation Conditions
Appellant challenges the two probation conditions mentioned above, which were imposed by the juvenile court in its 2009 disposition. He argues that the juvenile court's statement in its 2010 disposition that "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect" effectively incorporated those probation conditions into the 2010 disposition and made those probations conditions open to challenge on appeal from the 2010 disposition. Respondent, relying on Shaun R., supra, 188 Cal.App.4th 1129, contends that appellant is precluded from challenging those conditions in this appeal. We agree.
In Shaun R., this court, in a divided decision, concluded that a delinquency disposition's "prior orders" language did not "revive a previous order that has become final and is nonappealable" or "turn an otherwise nonappealable order into an appealable order." (Id. at p. 1133.) We rejected the "contention that, by ordering that 'all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect, ' '[a]ll prior orders not in conflict remain in effect, ' and '[a]ll prior orders not in conflict with today's orders to remain in full force and effect' (hereafter the 'all prior orders' provisions) in the 2009 Order, the court reimposed the conditions in the 2008 Orders that do not conflict with the 2009 Order and that those provisions are therefore appealable in this appeal from the 2009 Order." (Id. at p. 1137.) We observed "that in the context of dependency cases, courts have held that orders that have become final may not be reviewed in a later appeal from another appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1150, 1156...; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250-1252....) And the same is true of criminal appeals. (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421....)" (Id. at p. 1139.) We further concluded that "the 'all prior orders' provisions did not reimpose the court's previous orders" and merely "expressly instructed the minor that the court's prior orders that did not conflict with the 2009 Order 'remain[ed] in effect' or in 'full force and effect.' " (Id. at pp. 1139-1140.) Appellant asks us to reconsider Shaun R.'s holding in light of Justice Mihara's dissent in that case.
We think that Shaun R. was correctly decided. A judicial intent to "reimpose" or "reissue" a past order cannot be inferred from the ordinary meaning of the language used. The "prior orders" provision in this case, that "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect, " implies that "today's Orders" do not include the previous orders. The preposition "with" is used in the sense of comparison of past and present orders. (See American Heritage College Dict. (3d ed. 1997) p. 1549.) "Remain" is defined as "[t]o continue in the same state or condition." (American Heritage College Dict. (3d ed. 1997) p. 1153.) The usual meaning of these words does not suggest that past orders are being newly issued and, thus, may be newly challenged on appeal.
Further, construing "prior orders" language as reimposing or reissuing "prior orders" would seriously impact the finality of judicial determinations. The phrase "all prior orders" is not restricted to only prior orders imposing probation terms and conditions and a disposition may contain a variety of orders. (See §§ 726, subd. (b), 726.5, subd. (a), 727, subd. (b), 730.5, 730.6, 731, subd. (a); see also Judicial Council form JV-665.) If "prior orders" language is construed to mean that a court is reimposing or reissuing "all prior orders not in conflict, " new opportunities to appeal those prior orders "not in conflict" would be created each time a new order contains a "prior orders" provision.
"In general, a timely notice of appeal is ' "essential to appellate jurisdiction." [Citation.]... An untimely notice of appeal is "wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion." [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.' [Citation.]" (In re Chavez (2003) 30 Cal.4th 643, 650.) The construction of "prior orders" provisions advocated by Justice Mihira in his separate opinion in Shaun R. would undermine the principles of finality.
As indicated in Shaun R., it is well settled that " '[a]n appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.' [Citations.]" (In re Daniel K. (1998) 61 Cal.App.4th 661, 667.) Standard "prior orders" language is contained in many form dependency orders (see e.g. Judicial Council forms JV-320, JV-410, JV-412, JV-415, JV-425, JV-426, JV-430, JV-435, JV-440, JV-445, JV-446) yet we find no decision holding that "prior orders" language effectively reimposes past orders "not inconsistent" with the current order and makes them subject to a new challenge on appeal.
In this case, the 2009 dispositional order imposing probation terms and conditions apparently went unchallenged and became final. There is no language in the 2010 disposition expressly incorporating the probation conditions from the 2009 dispositon. As the majority opinion in Shaun R. pointed out, "if the juvenile court wishes to reimpose or incorporate a condition or term from a previous disposition order that has become final into a new disposition order, the court may do so by express reimposition or incorporation." (Shaun R., supra, 188 Cal.App.4th at p. 1141.) Absent any indication of contrary judicial intent in the record, general "prior orders" language should be understood as simply clarifying that a new disposition order does not necessarily supersede all prior orders by implication.
Justice Mihara is presently suggesting in his concurring and dissenting opinion that the reasoning of the majority in Shaun R. is flawed because it was "based on the implicit assumption that a juvenile court may ignore the current circumstances and simply make a blanket decision to continue 'all previous Orders' without deciding whether each element of a previous order is appropriate under the current circumstances." (Conc. & dis. opn., Mihara, J., post, at p. 2.) We find nothing in that decision to indicate any such assumption. Although a minor declared and continued as a ward of the juvenile court is involved in successive proceedings, there is a unitary wardship. This court must presume that a juvenile court is aware of and considers prior orders when it makes a new order containing a general "prior orders" provision unless something in the record demonstrates otherwise. (See Evid. Code, § 664 ["It is presumed that official duty has been regularly performed."].) Although Justice Mihara emphasizes the obligations of juvenile courts in rendering dispositions in delinquency cases, this appeal does not raise the entirely different question whether the juvenile court in this case failed in some manner to comply with applicable law in rendering the 2010 disposition.
DISPOSITION
The June 2010 disposition is affirmed
I CONCUR: DUFFY, J.
Mihara, J., Concurring and Dissenting.
I dissent from the majority’s conclusion that appellant is precluded from challenging two probation conditions that originated in a 2009 dispositional order and were incorporated into the court’s 2010 dispositional order by means of its provision that “all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.” I dissented in In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.), and I continue to hold that position.
I readily concede that there is no case (other than Shaun R.) that contains any holding on this issue. Consequently, my position on this issue is based not on any case authority but on the nature of juvenile delinquency proceedings and on the real world implications that would follow from acceptance of my colleagues’ position.
This issue arises only when a juvenile is the subject of a subsequent Welfare and Institutions Code section 602 petition. The fact that the juvenile’s misconduct has necessitated a new section 602 petition necessarily demonstrates that the juvenile’s circumstances have changed. The previous dispositional order, which the juvenile court had found appropriate when it was imposed, has not proved adequate to dissuade the juvenile from further misconduct. Of course, the fact that a new section 602 petition has been filed does not necessarily mean that the juvenile’s misconduct has become more serious or that it has continued in a similar vein. The juvenile’s new misconduct may be less serious, or it may be of an entirely different type than the previous misconduct. In any case, the reality is that the juvenile’s circumstances have obviously changed. Therefore, when the juvenile court takes on the task of crafting a dispositional order on a new section 602 petition, it faces a new set of circumstances. The juvenile court must consider anew every aspect of the case in light of these new circumstances. (See generally In re Ruben M. (1979) 96 Cal.App.3d 690, 699, disapproved on another ground in In re Michael B. (1980) 28 Cal.3d 548, 554 [disposition of new section 602 petition “effectively terminate[s]” previous dispositional order].)
All further statutory references are to the Welfare and Institutions Code.
This is the context in which the juvenile court must make a decision about which elements of a previous dispositional order it wishes to adopt as part of its new dispositional order and which elements are inappropriate under the current circumstances. The flaw in the Shaun R. majority’s reasoning is that it is based on the implicit assumption that a juvenile court may ignore the current circumstances and simply make a blanket decision to continue “all previous Orders” without deciding whether each element of a previous order is appropriate under the current circumstances. That is incorrect.
When a juvenile court crafts a new dispositional order on a new section 602 petition, the juvenile court is obligated to ensure that every element of the new dispositional order is appropriate under the current circumstances. (See generally In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1087-1088 [court must review current circumstances at every dispositional hearing].) The juvenile court may not simply make a blanket decision to continue all previous orders without considering anew whether every element of the previous dispositional order is appropriate under the new circumstances that have necessitated a new section 602 petition. A juvenile court that does not satisfy its obligation to consider the appropriateness of every element of its new dispositional order is not meeting its judicial responsibilities. The only way that a juvenile court may satisfy its obligation to consider the appropriateness of every element of its new dispositional order while ordering that “all previous Orders” remain in effect is by considering every element of the previous dispositional order and making a decision that each element is appropriate under the current circumstances. (See generally In re Scott K. (1984) 156 Cal.App.3d 273, 277 [new dispositional order must be “all encompassing”].) A juvenile court that satisfies this obligation is necessarily imposing anew each of those elements of the previous dispositional order.
Because a juvenile court that uses the “all previous Orders” rubric must, consistent with its obligations, be making a considered decision that these elements of the previous dispositional order are appropriate under the current circumstances, the juvenile court is necessarily making a decision to impose those elements of the previous dispositional order as part of its new dispositional order. Since these elements of the previous dispositional order are being imposed anew as part of the new dispositional order, an appeal from the new dispositional order may challenge these incorporated elements.
The arguments that my colleagues make to the contrary are unpersuasive.
First, juvenile dependency orders are not analogous to juvenile delinquency dispositional orders. When a juvenile dependency court provides that all previous orders remain in effect, the court is merely providing for the routine continuation of prior orders without reconsideration. In contrast, when a juvenile delinquency court must craft a new dispositional order after a new section 602 petition has been sustained, the incorporation of any element of a prior order into the new dispositional order may not properly be considered routine, nor may it be done without the juvenile court making a considered decision that any such element is appropriate under the minor’s current circumstances.
Second, the precise wording of the juvenile court’s “all previous Orders” provision is not dispositive. Since the juvenile court was obligated to consider the propriety of each and every element of its new dispositional order, the precise language of the “all previous Orders” provision cannot be interpreted to absolve the court of that obligation.
Third, allowing a minor to challenge each and every element of a new dispositional order on appeal does not open up for review any aspect of a prior order that the juvenile court did not incorporate into the new dispositional order. Because the minor is being subjected to a new order containing any incorporated elements, an appeal challenging these elements is appropriate and timely. A minor who appeals from a new dispositional order that incorporates elements of a prior dispositional order is not challenging the prior dispositional order; he or she is challenging only those elements to which he or she is being subjected by the new dispositional order.
Here, the juvenile court’s 2010 dispositional order incorporated the 2009 dispositional order’s probation conditions into the 2010 dispositional order. Because these probation conditions thereby became part of the 2010 dispositional order, appellant could properly challenge the validity of these incorporated probation conditions in this appeal from the 2010 dispositional order. I would find that both of the challenged conditions require modifications to render them constitutional.