Opinion
G037302
4-20-2007
In re MICHAEL M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL M., Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The juvenile court sustained allegations that minor Michael M. unlawfully possessed a deadly weapon (Pen. Code, § 12020; all statutory references are to this code) and engaged in street terrorism (§ 186.22, subd. (a)). It also sustained an allegation that minor committed the offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The court found count 1 was a felony.
Minor appeals, contending the street terrorism count must be reversed because section 186.22, subd. (a) applies only to aiders and abettors and there was no evidence of such conduct on his part. He further argues his motion to exclude his confessions should have been granted based on violations of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda), and finally that the condition of probation forbidding him to wear items denoting gang affiliation is unconstitutionally vague.
We affirm the judgment. Minors first two assertions are not persuasive. However, we agree the condition of probation is too vague and modify the probation order to bar him from wearing apparel known to him to be associated with gang membership or affiliation.
FACTS
One evening police officer Scott Stafford and at least one other officer spoke to four or five young men, including minor, whom Stafford knew were all members of the Varrio Little Town street gang. Stafford asked minor if he was carrying any weapons. Minor stated he had a bat, pointed to his pocket, and consented to a search. Stafford found an aluminum bat with one end in minors pocket and the other under his shirt.
The bat had several etchings, including "WSCM" and "VLTR X-3," which Stafford testified meant "West Side Costa Mesa" and "Varrio Little Town Rifa X-3," respectively. Another etching was "Chuky," which is minors gang name. "Taz," on the bat in two places, is a moniker of another Varrio Little Town participant. Also scratched into the bat were "Latin Kings" and "LK," denoting another street gang.
After finding the bat, Stafford "had [minor] walk around to the side of the group," asking him the purpose of the bat. He then turned on a recorder. Minor said "the bat was for protection." Stafford asked minor whether "he had the bat because of other gangs," and minor agreed, again stating it was for protection, "for just in case." Although minor would not tell him from whom he had obtained the bat, when Stafford asked whether he had received it "from a friend that associated with Varrio Little Town," minor admitted he had.
Minor was arrested and taken to the police station. He was given his Miranda rights and questioned by Stafford and another officer. Minor told the officers he had been "jumped into" Varrio Little Town about six months prior; his moniker was "Chuky."
He repeated he had the bat, which he had been hiding, for protection, and would have used it if there had been a fight. He believed having the bat enhanced both his reputation and that of Varrio Little Town. Minor explained the gangs rivals and allies and showed several hand signs from both rival gangs and his own.
Additional facts are set out below.
DISCUSSION
1. Section 186.22, Subdivision (a)
Minor contends the true finding that he actively participated in a street gang must be reversed because section 186.22 applies only to an aider and abettor and not the direct perpetrator of a crime. We disagree.
Section 186.22, subdivision (a) states: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . ." This "is a substantive offense whose gravamen is the participation in the gang itself." (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) "[T]he focus of the . . . statute is upon the defendants objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, italics added.)
In recognizing this intent of section 186.22, subdivision (a), Ngoun rejected the restricted interpretation minor advances here, stating, "An active gang member who directly perpetrates a gang-related offense `contributes to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to defer criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (People v. Ngoun, supra, 88 Cal.App.4th at p. 436; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Minor argues we should disregard Ngoun and Ferraez because they erroneously interpret the statutes plain language and conflict with the Supreme Courts decision in People v. Castenada (2000) 23 Cal.4th 743. But Castaneda did not deal with the issue raised here. Rather, the court was interpreting the meaning of the term "actively participates" and in that context stated that "a person who is liable under section 186.22[, subdivision ]( a) must aid and abet a separate felony offense committed by gang members." (Id. at pp. 745, 750.)
In reviewing this language, Ngoun concluded that Castaneda "does not stand for the proposition that only an aider and abettor is subject to liability under section 186.22, subdivision (a) and, for the reasons we have expressed, it would be a misconstruction of the statutory language and a perversion of the legislative intent to read the subdivision in such a narrow manner." (People v. Ngoun, supra, 88 Cal.App.4th at p. 437, italics added.) We agree. We find unpersuasive minors attempt to distinguish Ngoun and Ferraez on their facts.
Thus, we affirm the determination that minor was liable as a direct perpetrator under section 186.22, subdivision (a).
2. Miranda Claim
a. Procedural History
Minor asserts that when Stafford questioned him before his arrest, he was in custody and entitled to a Miranda warning. He contends Stafford deliberately withheld it as part of his plan of interrogation. He further argues that even when he was given his Miranda warning he was not adequately told he "had a genuine choice" to refrain from further discussion. Thus, he concludes, all his statements to police should have been excluded.
Minor made a written motion in limine to exclude all his statements to the police on these grounds. The court denied the motion, stating: "If the facts would turn out that he was . . . arrested before questioning in the field, then Miranda would apply. If [the questioning] was part of the investigation based on detention, then Miranda would not apply. [¶] I cant determine that until after I hear what the officers have to say with regard to the stop and surrounding circumstances. . . . [I]f I follow the logic of your [argument], once the officer sees something, [he] can ask no more questions. [Hes] stopped. . . . [¶] Following that logic that you put forth, an officer can never investigate, could never follow up, could never ask questions. `Hey, is the bat yours? Are you going to play baseball? Or are you going to a gang fight? And thats the genesis; whether the bat is illegal or not, correct? [¶] . . . [¶] . . . My understanding of Miranda is [it] only applies for interrogation after arrest, not for investigation at the time of detention. [¶] . . . [¶] . . . [Detention] doesnt institute Miranda. [¶] . . . [¶] . . . He is detained. He is not arrested. Hes not in custody. [It] doesnt mean hes going down to the county jail. It means the officer has a right to investigate."
b. No Miranda Violation
A Miranda warning is not required unless a suspect is in custody while being questioned by the police. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) Although, "`custody generally does not include `a temporary detention for investigation where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officers suspicions. [Citations.]" (People v. Farnam (2002) 28 Cal.4th 107, 180-181.)
Whether there is a custodial interrogation is a mixed question of fact and law. (People v. Ochoa, supra, 19 Cal.4th at p. 401.) We defer to the trial courts findings of fact if supported by substantial evidence and then "independently decide whether `a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. [Citation.]" (Id. at p. 402.) Here there were no disputed facts. Therefore we need only decide the legal question of whether a reasonable person in minors position would have believed he was not free to leave or to refuse to answer questions.
This determination must be made based on the totality of the circumstances. Factors include "(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning." (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional considerations are the location of the interview, whether the suspect was told he was under arrest, whether the person was handcuffed or in any other way restrained, and whether the person was arrested after the detention. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
Here the circumstances demonstrate minor was not in custody during the initial interview by Stafford. He had not been arrested. He was not placed in a police car, handcuffed, or restrained in any fashion. Minor states he was taken around the corner to be questioned, but Stafford testified he only took him "around to the side of the group." Although there was at least one other officer at the scene, there were five gang members and only Stafford spoke to minor. There is no evidence the discussion was anything other than conversational. The officers had not drawn weapons. Contrary to minors claim the record does not show there was a coercive atmosphere.
The detention was short; after Stafford found the bat he asked minor only four questions. Although he did then arrest minor, this alone is not determinative of the question. Under the totality of the circumstances, minor was not in custody and no Miranda warning was required. Further, as a result, the Miranda warning was not given "midstream" requiring further explanation that minor had a choice to stop answering questions.
3. Probation Condition
A condition of minors probation was that he "not wear, display, use or possess an insignia, emblem, button, badge, cap, hat, scarf, bandana or any other article of clothing which is evidence of affiliation with or membership in the VLT street gang." He argues this is impermissibly vague because it does not require him "to be notified" what items this condition includes. Although minor did not raise this argument in the juvenile court, he has not forfeited the challenge because it raises a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
The Attorney General contends minor is "undeniably familiar" with the gang apparel and requires no notification. The respondents brief also asserts that the order requires the probation department to spell out the specific items barred within 24 hours after entry. These arguments do not satisfy the constitutional requirements requiring "[a] probation condition `[to be] sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated . . . . [Citation.]" (In re Sheena K., supra, 40 Cal.4th 875.) Sheena K. upheld the appellate courts determination that the condition prohibiting the minor from associating "with anyone `disapproved of by probation" was impermissibly vague (id. at p. 890) because there was no "express requirement of knowledge" (id. at p. 891).
The same is true in this case. The minute order requiring the probation department to "indoctrinate minor on gang terms within 24 hours" says nothing about giving minor explicit information about what specific items he is banned from wearing. Moreover, it is not reasonable to rely on minors assumed knowledge of the forbidden apparel. Therefore, we modify the probation order to provide minor may not wear any clothing, jewelry or insignia he knows shows gang membership or affiliation.
DISPOSITION
The minute order for the dispositional hearing prohibiting minor from wearing gang apparel is modified to provide that minor is "not to wear any clothing, jewelry, or insignia which minor knows indicates gang membership or affiliation." In all other respects, the judgment is affirmed.
We Concur:
FYBEL, J.
IKOLA, J.