Opinion
C088468
02-07-2020
In re R.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.G., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JDSQ18335)
Following a contested jurisdictional hearing, the juvenile court found the minor, R. G., possessed a firearm and ammunition in association with a criminal street gang, with the specific intent to further criminal conduct by gang members. On appeal, the minor contends: (1) the gang expert's opinion was not supported by the evidence; and (2) the circumstantial evidence cannot support the juvenile court's specific intent finding. We agree with both arguments, will vacate the juvenile court's gang findings, and will remand to the juvenile court to amend its jurisdictional and dispositional orders.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation to that necessary to provide a general background and determination of the minor's issues on appeal.
In September 2016, a juvenile court sustained allegations the minor committed battery for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members and imposed wardship terms on the minor. (Pen. Code, §§ 186.22, subd. (d), 242.)
Further statutory references are to this code.
A June 2018 Welfare and Institutions Code section 602 petition alleged the minor, then 16 years old, was: a person under age 30 with a prior juvenile conviction and wardship in possession of a firearm (§ 29820, subd. (a)(1); count 1); a minor in possession a firearm for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (§§ 186.22, subd. (d), 29610; count 2); and a minor in possession of live ammunition for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (§§ 186.22, subd. (d), 29650; count 3). The petition further alleged a gang enhancement to count 1: that minor committed it for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
Four probation officers testified, one as "an expert on gangs." The following evidence was elicited:
In April 2018, during a search of the minor's bedroom, Officers from the Woodland Police Department, Yolo County Sheriff's Department and the State Department of Corrections and Rehabilitation, found numerous documents indicating the minor's association with the East Side Trece subset of the Sureño criminal street gang in Woodland.
Pinned to the wall, above the minor's bedroom door, was a document with the minor's last name on it in "Old English" font -- "a common font" that members of "both major gangs in Woodland," the Norteños and the Sureños, use -- and "an Aztec number for 13 . . . three dots over two lines." Also pinned above the bedroom door was a drawing of an Aztec warrior's face, with "three G shields" around his face and three dots under his left eye. The "G shields" and the three dots were consistent with the Sureño criminal street gang iconography.
Officers also found two pictures of the minor making an "E" gesture with his right hand, which gesture "represent[ed] [the] East Side Trece" subset of the Sureño criminal street gang. White lined paper with "gang writing on it" was located throughout the minor's bedroom. The "gang writing" consisted of "rap lyrics or [ ] poe[try]" referencing weapons, stolen cars, East Side Trece, an East Side Trece-affiliated subset, an area of Woodland claimed by the Sureño criminal street gang, and negative references to Norteños, an "opposite gang."
The record on appeal contains five of those documents. Exhibit 22 is a twelve-line poem, which contains the text, "Master plan in making/Mission a go/set the weapon down." Exhibit 27 consists of a poem and extraneous text, including the word "NKilla," interpreted at the hearing as meaning "Norteño killer." Exhibit 29 is a poem that contains the lines "Only 15, but Im living life to fast/dodged death once left a couple scars on my back" and "thuggin on my enemies till that debt is scored." The expert interpreted this text as consistent with the notion that gang members who are "disrespected, assaulted by rival gang members, they have to respond and settle the score." Exhibit 31 is another document with text that mirrors the text in exhibit 29. Exhibit 38 is a document with large letters, including the letter "N" above the letter "K," interpreted at the hearing as meaning "Norteño killer."
Evidence was introduced indicating the minor was the victim of a stabbing in 2016.
In a later search of the minor's bedroom in June 2018, officers found a handgun and magazine with seven rounds of live ammunition under the minor's mattress. The only documents found during this search that were introduced into evidence were a pay stub from the minor's employer (a restaurant) and a student achievement award with the minor's name on it.
On a mirror in the minor's bedroom, written with a black Sharpie marker, was the minor's last name and the number 13. But the number 13 "was drawn over . . . as if it was being crossed out" or "scribbled out." That "scribbled out" writing on the mirror was present at a prior search of the bedroom, but officers had not gotten close enough to the writing to see the "13" before.
An expert testified that he believed the minor was an active member of East Side Trece, a subset of the Sureño criminal street gang, which identifies with the number 13, and uses the "hand sign[] . . . [of] the letter E, [which] stands for East Side Trece." The gang's primary activities are assaults with deadly weapons, possession of deadly weapons, sale of controlled substances, threats by means of force or violence, and burglaries. The expert emphasized the importance of "the culture of respect" in the Sureño criminal street gang, achieved "through fear and intimidation within the gang, rival gang members in the community." "Respond[ing] to disrespect" and "instill[ing] fear and intimidation in the community" are important to East Side Trece, the expert explained.
The expert testified that the minor's prior adjudication "for a gang crime" and the documents found in the minor's bedroom in the April 2018 search supported his opinion that the minor was an active member of East Side Trece.
The expert testified that the minor's possession of the handgun and live ammunition "further[ed] the gang and also [the minor] within the gang," explaining, "word of mouth within the gang, they know he has access to weapons . . . . His standing is elevated and other gang members will look up to him." More generally, the expert testified that possession of a weapon increases one's standing in the gang and enhances the gang's "respect standing" in the community.
In a "closing argument" pleading filed after the contested jurisdiction hearing, the minor argued that "the People failed to present any evidence that someone other than the minor knew about the minor's possession of the firearm and ammunition." Thus, minor contended, the expert's opinion that "the minor possessed the firearm and ammunition for the benefit of the gang" "was not based on evidence presented at trial because the People did not present any evidence other than the expert's opinion."
The juvenile court sustained all allegations of the petition, explaining that "[t]he minor's writings . . . support the finding that [the minor] had the firearm and ammunition for the benefit of the gang and he intended to assist[,] further[,] or promote criminal conduct by gang members." After quoting some of the writings found in the minor's bedroom, the court stated: "If these are not admissions of gang membership . . . going out with other members while armed with weapons and planning to use those weapons for retribution because that's what gang members are supposed to do, I don't know what would be."
The juvenile court quoted from the writings: " 'my struggle, gangsters causing trouble, master plan and making, mission is a go, gangster with a master plan, time to make shit happen, my brothers know what's up though, we up to no good, riding with the homies, well-equipped, packing tools, banging on my rivals cause that's what we do, I'm a mother fucking gangster, cooling with the goons, always up to no good, I'm in the four-corner room, thinking of the next move, dodged death once even though I took it with a laugh, I'm tripping hard, thugging on my enemies till the debt is scored, young gangsters on the track, listen up, fuck all my rivals, ES slashing -- banging on my rivals.' "
The juvenile court did not reference any specific exhibits in connection with the above quote. Also, it is unclear whether the court was quoting multiple documents or one document.
DISCUSSION
The minor argues there was insufficient evidence for the juvenile court's gang findings, because the expert's opinion was not supported by the evidence and specific intent cannot be inferred from the circumstances. Specifically, there was no evidence that anyone else knew about the firearm and ammunition found in the minor's room. The People argue the minor's writings provided sufficient evidence for the gang findings. Defendant has the better argument.
On appeal from the juvenile court's adjudications after a contested jurisdiction hearing, " '[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citations.] Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence." (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615.) We apply the same standard in considering a challenge to the sufficiency of the evidence to support an enhancement. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
The relevant gang findings, the section 186.22, subdivision (b) enhancement to count 1 and the section 186.22, subdivision (d) elements in counts 2 and 3, "appl[y] when a defendant has personally committed a gang-related [crime] with the specific intent to aid members of that gang." (People v. Albillar, supra, 51 Cal.4th at pp. 67-68.) The specific intent element is rarely established with direct evidence, but rather "must be inferred from the facts and circumstances surrounding the case." (People v. Perez (2017) 18 Cal.App.5th 598, 607.)
"In enacting section 186.22, the Legislature sought to provide an alternative sentencing scheme, producing harsher punishment for gang-related offenses. Under subdivision (b)(1) of section 186.22, an enhanced sentence of two, three, or four years may be imposed upon conviction of a gang-related felony. Comparatively, subdivision (d) provides an enhanced sentence of one, two, or three years for conviction of a gang-related felony or misdemeanor." (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) --------
"Not every crime committed by a gang member is gang related. [Citations.] Nor can a crime be found to be gang related simply because the perpetrator is a gang member with a criminal history. [Citation.] Although a lone actor is subject to a gang enhancement, merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference the sole actor specifically intended to promote, further, or assist any criminal conduct by gang members. [Citation.] Otherwise . . . 'gang enhancement would be used merely to punish gang membership.' " (People v. Perez, supra, 18 Cal.App.5th at p. 607.) While expert testimony can assist the trier of fact in determining whether a gang enhancement is applicable, " 'purely conclusory and factually unsupported opinions' that the charged crimes are for the benefit of the gang because any violent crime enhances the gang's reputation is insufficient to support a gang enhancement." (Id. at p. 608.)
We recently ruled, in Perez, that there was a lack of substantial evidence supporting a gang enhancement, because the evidence "consist[ed] only of a gang member" with tattoos "committing a violent crime alone." (People v. Perez, supra, 18 Cal.App.5th at pp. 613, 614.) The expert testified that the gang member "fired gunshots [at a party] to intimidate the college students and to further the gang's reputation." (Id. at pp. 598, 613.) But that testimony was insufficient for the gang enhancement, because of what was missing: "all evidence typical of crimes committed for the benefit of the gang and intended to promote, further, or assist the commission of crimes by gang members -- gang colors, gang clothing, gang accruements, gang signs, gang epithets, help by other gang members." (Id. at pp. 613 -614.) Also missing was "evidence any of the students at the party knew defendant was a member of a gang." (Id. at p. 609.)
Here, the evidence consists of a gang member's possession of a firearm and ammunition in his bedroom, where, two months earlier, officers found numerous documents indicating the minor's gang affiliation and -- in poetic verse -- the minor's admiration of and possible participation in violent gang-related conduct. But, as in Perez, too much evidence is missing here to support the expert's opinion that the minor's possession of the handgun and ammunition was gang related. Missing is any evidence that anyone other than the minor knew the minor possessed the firearm and ammunition. Absent evidence anyone else knew the minor possessed the weapon and ammunition, there is no factual support for the expert's opinion that both the minor's status in the gang and the gang's ability to intimidate the community were enhanced by the minor's possession. (Cf. People v. Rios (2013) 222 Cal.App.4th 542, 573-574 [expert opinion based on facts that a gang member possessed a gun was "insufficient to impose the gang enhancement (§ 186.22(b)(1)) on the carrying a loaded firearm in a vehicle count"].)
The People contend "the writings" show the minor's "interest in carrying guns (packing tools) for the benefit of the gang" and the minor's "desire[] to use the gun against his enemies (Norteños) in concert with his fellow gang members." But the People do not explain precisely what words in which writings in the record on appeal support an inference regarding the minor's specific intent to promote, further, or assist criminal conduct by gang members. Exhibit 22 mentions a "weapon." Exhibits 27 and 38 contain text interpreted as meaning "Norteño killer." Exhibits 29 and 31 proclaim, "thuggin on my enemies till that debt is scored." Contrary to the People's contention, these references to a weapon and to acts of violence do not articulate a desire to use firearms in concert with fellow gang members.
Further, the People's contention, which appears to rest on the minor's gang membership and general interest in gang-related possession and use of weapons, ignores our warning in Perez that gang enhancements cannot be used to increase the punishment for the commission of a specific crime merely because someone belonged to a gang at the time. (People v. Perez, supra, 18 Cal.App.5th at p. 607.)
Although we must reverse counts 2 and 3, section 1181, case 6, authorizes us to reduce those adjudications to lesser included offenses in light of the record. (See People v. James (2014) 230 Cal.App.4th 1256, 1265-1266.) The minor does not dispute the sufficiency of the evidence that he possessed the handgun and ammunition.
DISPOSITION
Counts 2 and 3, and the enhancement to count 1, are reversed. Count 2 is modified to the minor's possession of a firearm in violation of section 29610, and count 3 is modified to the minor's possession of live ammunition, in violation of section 29650. The matter is remanded and the juvenile court is directed to amend its jurisdictional and dispositional orders in accordance with this opinion.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Butz, J.