Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. NJ22040, John H. Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Seventeen-year-old Michael H. was declared a ward of the Orange County Superior Court based on findings that he had unlawfully taken a vehicle, received stolen property, resisted an officer, and actively participated in a criminal street gang, with additional findings that the first three offenses were committed for the benefit of a criminal street gang. (Welf. & Inst. Code, § 602; Veh. Code, § 10851, subd. (a); Pen. Code, §§ 496, subd. (a), 186.22, subds. (a), (b), (d), 148, subd. (a)(1).) After the Orange County court fixed Michael’s maximum term of confinement as eight years, four months, the case was transferred to the Los Angeles Superior Court, which reimposed the maximum term of confinement and placed Michael at home on probation. Michael appeals, contending the vehicle theft and receiving stolen property findings cannot both stand because they are based on the same facts, there is insufficient evidence to support the gang enhancement and active gang participation findings, the maximum term of confinement should not have been set, and the court erred in failing to declare whether the offense of resisting or obstructing a peace officer was a misdemeanor or a felony. We conclude that the juvenile court erred by finding that Michael both stole and received the same car, finding the gang enhancement and active gang participation charge true, imposing a maximum term of confinement, and declaring that his offense of resisting or obstructing a peace officer was a felony. We therefore partially reverse the juvenile court’s order.
BACKGROUND
Garden Grove Police Officer Dale Miller ran the license plate number of a Honda Civic that caught his attention and learned that the vehicle had been stolen. Officer Miller followed the Honda to a parking lot and used his patrol car to block the Honda. When the officer identified himself to the three young men who were getting out of the Honda, all three ran off. Michael was apprehended after a brief chase and identified as a passenger. The driver (S.L.) was arrested at a nearby restaurant. The officer learned from a search of the Honda that it had been started without a key. A screwdriver was found in the car, and a portion of the steering column had been removed. “TRG” had been written on the steering wheel with a pen. At the time of his arrest, Michael had a red bandana in his pocket.
Michael waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, 444 [86 S.Ct. 1602], and admitted that he was a passenger in the Honda, that he had stolen it by using the screwdriver, and that he was a member of the Oriental Boyz (OBZ) gang. He voluntarily displayed the gang’s hand sign to the officer. He identified the other passenger as his younger brother, Harry T., and said S.L. and Harry knew the car was stolen. During subsequent questioning by an officer from the Garden Grove gang unit, Michael admitted that he had joined OBZ at age 13, that his moniker was “Menace,” and that the gang had about 30 members in the Pueblo Del Rio projects in Los Angeles. He insisted that he was no longer an active gang member, although he was willing to “back up” the gang if it needed him. He said that S.L. and Harry were not OBZ members and that the three of them were simply “cruising” on their way to pick up Michael’s girlfriend. In a separate interview, S.L. admitted that he had written “TRG,” which stood for “Tiny Rascal Gangsters” on the Honda’s steering wheel. He claimed, however, that he was not a member of TRG. S.L. also told the police that Michael was an OBZ member, and that Michael had told him that OBZ was part of the larger Bloods gang.
Evidence of the facts summarized above was presented at the adjudication hearing. In addition, an Asian gang expert testified that OBZ was an active gang with about 50 members in Los Angeles and Long Beach; that the gang was involved in automobile thefts, particularly thefts of Hondas, because its members engaged in street racing and joyriding and needed extra parts for repairs. The expert further testified that OBZ is part of the larger Bloods gang, which is represented by red, although the Asian gangs tend to display their gang colors unobtrusively. In response to a hypothetical question based on the facts of this case, the officer opined that Michael was still an active member of OBZ who was acting for the benefit of the gang and, more specifically, was the “shot-caller” who had stolen the car.
DISCUSSION
1. Dual findings of unlawfully taking or driving the vehicle and receiving it as stolen property
Michael contends the court erred in sustaining both the Vehicle Code section 10851, subdivision (a) and receiving stolen property (Pen. Code, § 496, subd. (a)) allegations because both are based on the theft of the Honda. Respondent argues that the dual findings are permissible because, pursuant to Welfare & Institutions Code section 203, the findings against Michael were not “convictions.” This argument also relies upon the wording of Penal Code section 496, subdivision (a), which in pertinent part provides that “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.”
Unless otherwise noted, all subsequent statutory references are to the Penal Code.
Although section 496, subdivision (a) was amended in 1992 to include the above-quoted provision, the underlying principle that a person generally may not be convicted of both stealing and receiving the same property is a matter of common law. (People v. Smith (2007) 40 Cal.4th 483, 522; People v. Garza (2005) 35 Cal.4th 866, 871 (Garza); People v. Allen (1999) 21 Cal.4th 846, 851-853 (Allen).) This principle is largely based in logic: a person cannot receive property from himself. In addition, courts have recognized that theft offenses are intended to target thieves, whereas the offense of receiving stolen property is “ ‘directed at those who knowingly deal with thieves and their stolen goods after the theft has been committed. In other words, it is directed at the traditional “fence”’….” (People v. Jaramillo (1976) 16 Cal.3d 752, 758 (Jaramillo) quoting People v. Tatum (1962) 209 Cal.App.2d 179, 183-184.) Assuming, for the sake of argument, that the provision in section 496 (a) regarding dual convictions is inapplicable to juvenile adjudications, the common law rule nonetheless applies and mandates the same result. The juvenile court’s findings that Michael both unlawfully took the car and received it cannot stand absent evidence supporting an exception to the general rule, such as a “complete divorcement between the theft and a subsequent receiving” or a conspiracy between the thief and the receiver. (Jaramillo, supra, 16 Cal.3d at p. 759, fn. 8.) “To establish a divorcement between the acts of receiving (or concealing or withholding), there must be a significant break in the defendant’s possession and control over the stolen property.” (Garza, supra, 35 Cal.4th at p. 879.) The record indicates only that Michael stole the car on November 15, 2006 and was stopped while riding in it three days later. Nothing in the record supports an inference that a significant break in his possession and control of the car occurred.
Furthermore, the record amply demonstrates that the finding that Michael violated Vehicle Code section 10851, subdivision (a) was based exclusively upon his act of taking the car and, perhaps, driving it away at the time of the taking. “A person who violates section 10851 (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. … If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.” (Garza, supra, 35 Cal.4th at p. 876.) The People introduced no evidence of “posttheft driving” by Michael. S.L. drove the car when the police officers observed and blocked it.
Accordingly, the finding that Michael received the car as stolen property must be stricken. (People v. Stephens (1990) 218 Cal.App.3d 575, 587.)
2. Sufficiency of evidence: gang enhancements and street terrorism charge
Michael contends insufficient evidence supported the finding that he violated section 186.22, subdivision (a) (count 3) and the gang enhancements ancillary to counts 1, 2, and 4. In particular, with regard to the section 186.22, subdivision (a) finding, Michael argues that the evidence did not show he was an active participant in the OBZ gang or that he participated in felonious conduct by members of that gang. With respect to both the gang enhancements and the substantive offense, Michael argues that his “purported gang membership furnished no motivation for the charged offenses and, therefore, was wholly incidental to the offenses.”
The same standard governs review of the sufficiency of evidence in adult criminal cases and juvenile cases: we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)
Section 186.22, subdivision (b), provides a sentence enhancement for anyone 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.”
Insofar as the elements of the gang enhancement allegation are concerned, there was no direct or circumstantial evidence of Michael’s intent in stealing or retaining possession of the car. Although the prosecution’s gang expert testified that OBZ engaged in car thefts to supply its need for Honda replacement parts, the only link between appellant’s conduct with respect to the particular car in his possession and OBZ was appellant’s membership in that gang. As far as the record reveals, no parts were missing from the car, even though it had been in Michael’s possession for about three days at the time the police observed it. Nor was there evidence that Michael intended to give the car or any of its parts to OBZ or other OBZ members. Although S.L. had written his gang’s initials on the steering wheel, nothing indicates that appellant had marked the car in any fashion for OBZ. There was no evidence Michael had used the car in any gang-related activity, criminal or not. Nor was there evidence that other OBZ members had ridden in the car. Appellant was the only OBZ member present when the police stopped the car. S.L. belonged to a different gang which was not shown to be related to OBZ. Further, there was no evidence that other OBZ members had participated in the theft or otherwise knew that Michael had the car. The officers who stopped the car did not observe Michael (or anyone else) announce or signal a gang affiliation, ask anyone else about his or her gang affiliation, or otherwise demonstrate any behavior that indicated a gang-related intent.
Accordingly, substantial evidence does not support a finding that Michael specifically intended to promote, further, or assist in any criminal conduct by gang members when he stole the car, received it, or ran from the police officers. The findings on the gang enhancement allegations must therefore be reversed with respect to counts 1, 2, and 4.
Section 186.22, subdivision (a) is a substantive offense intended to punish active gang participation. In order to establish a violation of subdivision (a), the prosecution must prove that, at the time of the offense, the defendant (1) actively participated in a criminal street gang (2) knew that the members of the gang engage in or have engaged in a pattern of criminal gang activity, and (3) willfully promoted, furthered, or assisted “in any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a); People v. Lamas (2007) 42 Cal.4th 516, 524.) Active participation requires that the defendant be more than a nominal or passive member. (People v. Castenada (2000) 23 Cal.4th 743, 747 (Castenada).)
Although Michael admitted his membership in the OBZ gang to the interviewing officer, he also told them he had withdrawn from active participation in gang activities. The prosecutor did not establish that Michael was an active member of OBZ at the time of his arrest. Indeed, the prosecutor failed to demonstrate that Michael had ever participated in the gang’s activities, i.e., that he had been more than a nominal or passive member. As far as the record reveals, Michael had no prior juvenile adjudications. He had no visible, identifiably gang-related tattoos. There was no evidence that any police officers had ever seen Michael in the company of other OBZ members (cf. Castenada, supra, 23 Cal.4th at pp. 752-753), and his companions at the time of the arrest giving rise to this case were not OBZ members. Although Michael freely identified himself as an inactive member of OBZ, proclaimed his willingness to “back up” the gang if they needed him, and carried a red bandanna, none of these matters established that he was an active participant, as opposed to a passive, albeit loyal, member.
Accordingly, the evidence was insufficient to support the finding that Michael violated section 186.22, subdivision (a). That finding also must be reversed.
3. Maximum term of confinement
Michael contends the court erred in setting a maximum term of confinement because he was placed at home on probation.
When a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. (Welf. & Inst. Code, § 726, subd. (c).)
The juvenile court erred in setting a maximum confinement term for Michael because he was not removed from his parents’ physical custody. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.) However, the declared maximum confinement term has no legal effect whatsoever and therefore does not prejudice Michael. Although it need not be stricken, the necessity of reversing the order provides a convenient opportunity for correction of this error.
4. Felony or misdemeanor character of resisting/obstructing police officer finding
Michael further contends that the juvenile court erred by failing to declare whether the offense of resisting or obstructing a police officer (§ 148, subd. (a)) was a felony or misdemeanor.
The heading of Michael’s argument refers to “Count One,” but the body of the argument addresses the resisting/obstructing charge.
The reporter’s transcript does not include any specification by the juvenile court regarding the felony or misdemeanor status of any of the four charges. However, the minute order indicates that the “court finds matter to be a felony ….”
A violation of section 148, subdivision (a) is a misdemeanor. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) Accordingly, to the extent that the juvenile court declared all counts to be felonies, it erred. Upon remand, the juvenile court must declare this offense to be a misdemeanor.
Appellant’s brief erroneously states that a violation of section 148, subdivision (a) is a wobbler.
DISPOSITION
The order is reversed with respect to counts 2 and 3 and the gang enhancements for counts 1, 2, and 4. The juvenile court is directed to declare that count 4 is a misdemeanor and strike, not recalculate, the maximum term of confinement. In all other respects, the order is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.