Opinion
G052702
03-22-2017
In re Y.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Y.C., Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL050599) OPINION Appeal from a judgment of the Superior Court of Orange County, Lewis Clapp, Judge. Affirmed. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
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Y.C. contends insufficient evidence supports the juvenile court's finding true the gang enhancement allegation that he possessed a can of spray paint for the benefit of a gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (d).) We affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
A Welfare and Institutions Code section 602 petition, filed on March 25, 2015 (the first petition), alleged minor possessed an aerosol container of paint in violation of section 594.1, subdivision (e)(1). The petition alleged an associated gang enhancement. (§ 186.22, subd. (d).)
A subsequent Welfare and Institutions Code section 602 petition, filed on August 4, 2015 (the second petition), alleged minor had been an active gang member with a concealed firearm in a vehicle (§§ 25400, subds. (a)(1), (c)(3), 186.22, subd. (a)) and an active gang participant carrying a loaded firearm in public (§§ 25850, subds. (a), (c)(3), 186.22, subd. (a)), and that he had committed street terrorism (§ 186.22, subd. (a)). The petition further alleged associated gang enhancements. (§ 186.22, subd. (b)(1).)
Trial on the first petition commenced on August 18, 2015. Witnesses called by the People testified to the following.
Y.C. lived with his father in an area of Santa Ana where the neighborhood streets and sidewalks were painted with graffiti. Y.C.'s father had told him many times not to paint graffiti.
On February 8, 2015, around 8:30 p.m., Officer Ernesto Solorio was in a police car patrolling a Santa Ana neighborhood claimed by the Lopers gang and which was marked with a significant amount of Lopers graffiti. Solorio saw Y.C., Alexis V., and then 21-year-old Ramon Gonzalez, walking close together and crossing a street. The threesome simultaneously saw Solorio's police car. Immediately, Y.C. turned left, while his two companions walked in a different direction.
Solorio stopped his car, walked toward Y.C., and asked if he could talk to him. Y.C. consented. Because they were in a gang area, Solorio asked Y.C. if he could pat him down for weapons. Y.C. consented. As Y.C. walked toward Solorio, the officer heard a noise that sounded like the marble inside a can of spray paint. Y.C. admitted he had a paint can on him, and said he was 13 years old. Solorio found the paint can in Y.C.'s front sweatshirt pocket.
Solorio arrested Y.C. and read him his rights under Miranda v. Arizona (1966) 384 U.S. 436. Y.C. said he understood those rights and agreed to speak to Solorio. Y.C. told Solorio he had been "hanging around with the Lopers for about two months in an effort to get jumped into the gang" and that he was carrying the can of spray paint so he "could possibly tag or graffiti one of the walls with 'Lopers.'" When Solario asked Y.C. why he would do that, Y.C. said he was doing it to promote the gang and its membership and because "he was putting in his work."
The People's gang expert, Corporal Julian Rodriguez, testified about Hispanic gang culture. Respect is important to gangs and gang members because, by instilling fear in the community and intimidating people, the gang can commit crimes with impunity and have a safe haven and a sphere of influence.
"Jumping in" is the most common way of joining a Hispanic gang. Typically, recruits start their involvement in the preteen years.
"Putting in work" means doing something that benefits the gang, such as acting as a backup or lookout, or committing crimes. The younger a person is, and the newer he is to the gang, the more work that is expected of him.
A person who writes graffiti gains respect within the gang because he puts in work and represents to the community and to the gang's rivals the areas where his gang is active. He may even go into rival territory and write graffiti to project his gang's presence. A "backup" watches the person writing graffiti, in order to alert the writer whenever the police or rivals are coming. This is because a person writing graffiti is "very vulnerable because it takes a while to actually write the graffiti." The backup may often be armed for protection of the graffiti writer and the group as a whole.
The Lopers gang had over 50 members on the date of the incident. Vandalism is one of the crimes typically committed by Lopers gang members. The incident occurred in an area claimed by the Lopers.
Rodriguez opined that, at the time of the crime, Y.C. was an active participant in the Lopers gang. One of the two people Y.C. was walking with, Ramon Gonzalez, claimed to be affiliated with Lopers and is in Rodriguez' opinion a Lopers gang member. The second person Y.C. was walking with, Alexis V., was subsequently involved with Y.C. in criminal conduct on August 2, 2015. On that date, Y.C. and Alexis V. were in a vehicle with two other persons. When the vehicle approached pedestrians, its occupants brandished a firearm and all four of them claimed the Lopers gang. An officer attempted to stop the vehicle and a chase ensued. During the chase, a firearm was discarded through the window of the moving vehicle. It was eventually recovered by the police. When the chase ended, four subjects (including Y.C.) were arrested.
When presented with a hypothetical question based on the facts of the incident involving the possession of a can of spray paint, Rodriguez opined the crime was committed for the benefit of the gang.
The court found the allegations of the first petition to be true and that Y.C. was a person described in Welfare and Institutions Code section 602. The court reduced the charge to a misdemeanor. (§ 17, subd. (b).) With the parties' agreement, the court postponed disposition until it learned more about Y.C.'s conduct alleged in the second petition.
At the disposition hearing on September 23, 2015, Y.C. admitted, and the court found true, the allegations of the second petition as to count 1 and its associated enhancement, i.e., active gang member having a concealed firearm with a gang enhancement. The court dismissed the remaining counts. With regard to both petitions, the court ordered Y.C. to serve 90 days in juvenile hall (with 53 days credit for time served) and placed him on probation.
DISCUSSION
Y.C. contends the evidence is insufficient to show he had the specific intent to aid, promote, further, or assist in any criminal conduct by gang members, as required for the gang enhancement alleged in the first petition. Specifically, he contends "there is no evidence that [he] possessed spray paint in concert with any other gang members" or that his companions knew that he "had the can of spray paint much less that they directed or planned acts of graffiti vandalism with him."
The first petition alleged a gang enhancement under section 186.22, subdivision (d), which provides, "Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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, shall be punished by imprisonment . . . ." Similarly, subdivision (b)(1) of section 186.22 establishes a gang enhancement for felony convictions and requires — in language identical to the specific intent phrase of subdivision (d) of the statute — that the defendant act "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ."
As to the specific intent phrase in section 186.22, subdivision (b)(1), our Supreme Court has stressed that the language "is unambiguous and applies to any criminal conduct . . . ." (People v. Albillar (2010) 51 Cal.4th 47, 66 [concerning § 186.22, subd. (b)(1)].) The conduct can be the same gang-related crime with which the defendant is charged. (Albillar, at pp. 66, 68.) On the other hand, the conduct can be totally separate criminal behavior. (Id. at p. 66.) Indeed, the conduct need not be gang-related, so long as the defendant has "the specific intent to promote, further, or assist criminal conduct by gang members." (Id. at p. 67.) The gang enhancement can even apply, at least under some circumstances, to a lone actor who commits a gang-related crime. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139 [concerning § 186.22, subd. (b)(1)] (lead opn. of Corrigan, J.); id. at pp. 1140-1141 (conc. opn. of Baxter, J.); accord, People v. Rios (2013) 222 Cal.App.4th 542, 564.) Due to the identical language in subdivisions (b)(1) and (d) of section 186.22 as to the specific intent requirement, the precepts discussed above should apply equally to a gang enhancement under either subdivision. (People v. Contreras (1997) 55 Cal.App.4th 760, 764 ["'Generally, identical words in different parts of the same act or in different statutes relating to the same subject matter are construed as having the same meaning.'"]; People v. Coker (2004) 120 Cal.App.4th 581 ["'"To understand the intended meaning of a statutory phrase, we may consider use of the same or similar language in other statutes, because similar words or phrases in statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be given the same interpretation"'"].)
People v. Rodriguez, supra, 55 Cal.4th 1125, a plurality opinion, held that a gang member who acts alone does not violate section 186.22, subdivision (a). (Rodriguez, at p. 1128 (lead opn. of Corrigan, J.); id. at p. 1139 (conc. opn. of Baxter, J.).) In dicta, Justice Corrigan's lead opinion and Justice Baxter's concurring opinion agree that lone actors are punishable under subdivision (b)(1) of section 186.22. (Rodriguez, at pp. 1138-1139 (lead opn. of Corrigan, J.); id. at pp. 1140-1141 (conc. opn. of Baxter, J.).) --------
The trier of fact may rely on an expert's opinion that certain hypothetical criminal conduct benefited a gang, or was committed for a gang purpose, so long as the hypothetical question closely tracks, and is rooted in, the facts shown by the evidence in the case. (People v. Vang (2011) 52 Cal.4th 1038, 1045-1046.) '"Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the . . . section 186.22, subdivision (b)(1), gang enhancement." (Id. at p. 1048.) The trier of fact may also rely on the expert's testimony about gang culture and habits to reach a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
When a minor challenges the sufficiency of the evidence to support the juvenile court's finding that the minor met the specific intent requirement of the gang enhancement, a reviewing court examines the entire record in the light most favorable to the judgment below "to determine if substantial evidence exists for a reasonable trier of fact to find the counts against the minor true beyond a reasonable doubt." (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1359.) The reviewing court presumes "'the existence of every fact the lower court could reasonably deduce from the evidence in support of its judgment.'" (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. Albillar, supra, 51 Cal.4th at p. 60.) The same standard applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
Here, substantial evidence supports the court's finding Y.C. had the specific intent to promote and further criminal conduct by gang members when he possessed a can of spray paint for the purpose of defacing public property in violation of section 594.1. Y.C. (then 13 years old and an active participant in the Lopers gang) and two other Lopers gang members (including a 21-year-old) were walking closely together in territory claimed by the Lopers and defaced with Lopers graffiti. Y.C. had a can of spray paint. As soon as the threesome noticed a police car, the group split up, with Y.C. separating from his two companions. Y.C. told the officer he had been "hanging out" with Lopers gang members for the past two months in order to get "jumped" into the gang. He admitted he possessed the spray paint can in order to tag or graffiti the name "Lopers" on a wall, and that his purpose was to promote the gang and to put in work. In response to a hypothetical question based on these facts, the gang expert opined the crime of possessing a can of spray paint was committed for the benefit of a gang and promoted, furthered, or assisted "ongoing felonious conduct of the gang." The gang expert also testified that graffiti writing was one of the Lopers gang's typical crimes and that a person planning to write gang graffiti is often accompanied by a backup who acts as a lookout or otherwise assists or protects the graffiti writer.
"Section 186.22[, subdivision] (b)(1)'s reference to promoting, furthering, or assisting gang members . . . merely describes a culpable mental state." (People v. Rodriguez, supra, 55 Cal.4th at p. 1141 (conc. opn. of Baxter, J.).) The foregoing evidence shows Y.C.'s intention to deface public property (§ 594.1) and commit vandalism (§ 594, subd. (a)(1)) with Lopers gang members, who may have planned to act as backups and also as witnesses to Y.C.'s putting in work for the gang.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.