Opinion
B199424
10-29-2008
In re A.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.L., Defendant and Appellant.
Courtney M. Selan, 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, Lawrence M. Daniels and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
A.L. (minor) appeals from orders entered by the juvenile court sustaining a petition filed on March 27, 2007, alleging that he was a minor in possession of a firearm capable of being concealed (Pen. Code, § 12101, subd. (a)(1)); finding a gang allegation to be true that the act was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A); sending minor to Camp Community Placement; and denying minors Welfare and Institutions Code section 701.1 motion. Affirmed with directions.
CONTENTIONS
Minor contends: (1) there was insufficient evidence to support the gang enhancement allegation because the People failed to prove that the Harpy gang was a street gang having as one of its primary activities the commission of one or more criminal acts described in section 186.22, subd. (e)(1)-(25), whose members individually or collectively engaged in a pattern of criminal activity; (2) his predisposition custody credits should be recalculated; and (3) the probation condition prohibiting him from remaining in the presence of any unlawfully armed person and from using or possessing any narcotics or controlled substances is unconstitutionally vague and overbroad and violates his due process rights.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. On March 24, 2007, Los Angeles Police Department Officer Jeremy Escamilla drove toward a van that was obstructing traffic and parked on the wrong side of the street. He recognized the driver of the van as a Harpy gang member who was enjoined from associating with the front passenger. Officer Escamilla saw minor inside the van moving his hand under the rear seat of the van as if he were trying to hide something. Officers recovered a loaded nine-millimeter blue steel handgun from the area where minor was moving his hand. Officers also recovered live ammunition from the van.
Officer Escamilla testified as a gang expert assigned to the Harpy gang for three years. The Harpy gang originated in the 1960s or early 1970s and has approximately 200 members. The Harpy gang territory is within the boundaries of Washington Boulevard to the north, Jefferson to the south, Figueroa Boulevard to the east, and Normandie to the west. Officer Escamilla identified specific tattoos associated with the Harpy gang, and had contacted 100 to 200 Harpy members who had Harpy gang tattoos on their bodies.
Officer Escamilla had arrested Jose Beltran (Beltran), an admitted Harpy member, who had Harpy tattoos on his body. Beltran had been convicted of attempted robbery on September 22, 2006. Officer Escamilla had arrested Daniel Navar (Navar) an admitted Harpy gang member, who was convicted on July 20, 2006 of the unlawful driving or taking of a vehicle. Documentary evidence in the form of a certified docket printout of those convictions was introduced into evidence. Officer Escamilla was personally involved in investigations of two murders and 15 robberies committed by Harpy gang members. Officer Escamilla testified that all the occupants of the van were Harpy gang members. According to Officer Escamilla, the gun was possessed for the benefit of the gang because the gun was found in a van in Harpy gang territory; all the occupants of the van were Harpy gang members; Harpy gang members used guns to commit robberies and intimidate the community; and Harpy gang members promoted the gang through the use of the robbery proceeds and fear.
The juvenile court found true the allegation in the Welfare and Institutions Code section 602 petition filed on March 27, 2007, that minor was in possession of a firearm capable of being concealed (§ 12101, subd. (a)(1)) and that the act was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). On March 22, 2005, minor admitted he carried a concealed dirk or dagger (§ 12020, subd. (a)(4)) as alleged in a Welfare and Institutions Code section 602 petition filed January 5, 2005. He admitted to possession of a controlled substance, cocaine base, in violation of Health and Safety Code section 11350, subdivision (a), as alleged in a Welfare and Institutions Code section 602 petition filed March 7, 2005. A petition filed on January 5, 2005, alleging that minor was in possession of a controlled substance, methamphetamine, a felony, in violation of Health and Safety Code section 11377, subdivision (a), was dismissed.
Minor was placed in Camp Community Placement for a maximum confinement period of three years eight months, calculated as three years for the first sustained petition and eight months on the third sustained petition. Minor received 15 days of predisposition credit.
The juvenile court found true the allegation in a petition filed on July 26, 2005 alleging that minor was carrying a concealed firearm (§ 12101, subd. (a)(1)), a felony. Minor was ordered placed in Camp Community Placement for a maximum confinement period of four years and four months. Minor was awarded 140 days of predisposition credit for all of his sustained petitions up to that point. On July 25, 2006, minor admitted count 1 of a probation violation notice that he had failed to report to the probation department as directed. Minor was returned to Camp Community Placement.
DISCUSSION
I. There was sufficient evidence to support the true finding that minor possessed the gun for the benefit of a street gang
Minor contends that the People failed to prove that the Harpy gang was a street gang having as one of its primary activities the commission of one or more criminal acts described in section 186.22, subd. (e)(1)-(25), whose members individually or collectively engaged in a pattern of criminal activity. We disagree.
Subdivision (b) of section 186.22 mandates that the trial court impose a sentence enhancement when the minor is "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. . . ." (§ 186.22, subd. (b).) "A `criminal street gang, as defined by the act, is any ongoing association of three or more persons that shares a common name or common identifying sign or symbol; has as one of its `primary activities the commission of specified criminal offenses; and engages through its members in a `pattern of criminal gang activity." (People v. Gardeley (1996) 14 Cal.4th 605, 610 (Gardeley); § 186.22, subd. (f), italics added.) "Under the act, `pattern of criminal gang activity means that gang members have, within a certain time frame, committed or attempted to commit `two or more of specified criminal offenses (so-called `predicate offenses). (Pen. Code, § 186.22, subd. (e).)" (Gardeley, supra, at p. 610.)
Expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930; Evid. Code, § 801.) In Gardeley, expert testimony that the defendant was a member of the Family Crip gang and that the primary activity of the gang was sale of narcotics as well as witness intimidation, was sufficient to meet the requirements of subdivision (f) of section 186.22 for a criminal street gang. (Gardeley, supra, 14 Cal.4th at p. 620.) Our Supreme Court held that the People had established the pattern of criminal gang activity through evidence that a gang member had shot at an inhabited dwelling and that the defendant had committed the current charge of attempted murder on the victim. (Id. at p. 623.)
Minor complains that Officer Escamilla did not establish specific evidence of a pattern of criminal activity or two predicate crimes. But, as he concedes, Officer Escamilla was qualified as a gang expert. Officer Escamilla testified that the Harpy gang has three or more members, the gang has a common hand signal, and the gang has as its primary activity the commission of specified offenses as described in section 186.22. Officer Escamilla testified that he was personally aware of involvement of Harpy gang members in two murders and at least 15 robberies committed for the benefit of the gang. Documentary evidence was introduced showing convictions of Harpy gang members for an attempted robbery and the unlawful driving or taking of a vehicle.
Minors citation to People v. Perez (2004) 118 Cal.App.4th 151 (Perez) does not avail him. In that case, we concluded that the gang experts testimony regarding a Latino gangs history of racial hatred and violent acts toward Asians, including the beating of an Asian child and the shootings of Asian men was insufficient to establish proof that the gangs primary activities were the commission of one or more of the certain enumerated crimes. We concluded that the evidence of retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish that "`the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. [Citation.]" (Id. at p. 159.) Here, on the other hand, Officer Escamilla testified that the Harpy gang had committed at least two murders and 15 robberies that he had personally investigated. Also, documentary evidence was admitted showing that two Harpy gang members had been convicted of attempted robbery and unlawful taking or driving of the vehicle, which both are offenses enumerated in section 186.22. Further, minors current offense also qualified as an enumerated offense, and was consistent with the testimony that the gangs primary activities included commission of the enumerated offenses. (§ 186.22.)
We conclude that sufficient evidence supported the juvenile courts true finding on the gang allegation.
II. Minors predisposition custody credits should be recalculated
Minor contends that the juvenile court did not calculate his custody credits for the days he was detained and in camp pursuant to the preceding petitions. The People concede that because the maximum confinement period imposed by the same juvenile court was an aggregate of the time imposed for minors current sustained petition, the other three petitions, and minors probation violation, the juvenile court should also have aggregated his predisposition credit attributable to all of his petitions and probation violation. But, while minor contends he should be awarded 571 days of custody credit, the People urge that the matter should be remanded to the juvenile court for a correct calculation of the aggregate predisposition credit to be awarded to minor.
A minor is entitled to predisposition credit for time spent in custody before the disposition hearing. (§ 2900.5; Welf. & Inst. Code, § 726.) A juvenile court may aggregate a minors maximum period of confinement based on multiple petitions. (Welf. & Inst. Code, § 726, subd. (c).)
The juvenile court ordered a maximum confinement period of nine years, which was an aggregate of minors petitions and probation violation, but failed to aggregate all of his predisposition credit, awarding only 59 days of predisposition credit. As the People point out, the record is unclear how long minor was in custody when the juvenile court awarded him 15 days of predisposition credit on March 22, 2005. On August 16, 2005, the juvenile court found the allegations of the petition to be true and ordered him to camp for a six month commitment. While the minute order shows that minor received 140 days of predisposition credit for all of his petitions up to that point, the reporters transcript does not reflect that or any amount of predisposition credit award. Rather, the record shows that the juvenile court merely stated: "25 days?" at the end of the hearing, indicating that minor may have been entitled at that point to 25 days of custody credit.
On July 25, 2006, after minors probation violation hearing, the juvenile court ordered him to return to camp for a six month commitment and awarded him 22 days of predisposition credit. Finally, on May 21, 2007, the juvenile court imposed the maximum confinement period that was an aggregate of the petitions and probation violation, but only awarded 59 days of presentence credit from March 24, 2007.
Accordingly, because the record is insufficient to allow for a proper calculation of credits to be awarded, the matter should be remanded to the juvenile court for a correct calculation of the aggregate predisposition credit to be awarded. (In re Emilio C., (2004) 116 Cal.App.4th 1058, 1069.)
III. Probation condition 16 shall be modified
Minor next contends that probation condition 16 which states that he is not to "remain in the presence of any unlawfully armed person" should be modified to include language that he is not to remain in the presence of any person "known to him to be unlawfully armed." He also contends that probation condition 21, which states that he is not to "use or possess [any] narcotics [or] controlled substances," should be modified to state that he is not to use or possess "illegal narcotics or illegal controlled substances."
"A juvenile probation condition is generally valid unless it `"(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and, (3) requires or forbids conduct which is not reasonably related to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, [124 Cal.Rptr. 905, 541 P.2d 545], superseded by Prop. 8 as described by People v. Wheeler (1992) 4 Cal.4th 284, 290-292, [14 Cal.Rptr.2d 418, 841 P.2d 938]; In re Binh L. supra, 5 Cal.App.4th at p. 203, [6 Cal.Rptr.2d 678.]) [¶] As explained in In re Antonio R. (2000) 78 Cal.App.4th 937, 941, , `juvenile conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minors constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may "curtail a childs exercise of the constitutional rights . . . [because a] parents own constitutionally protected `liberty includes the right to `bring up children [citation,] and to `direct the upbringing and education of children. [Citation.]" [Citations.] The Antonio R. court further explained that even conditions infringing on constitutional rights may not be invalid if they are specifically tailored to fit the needs of the juvenile. (Ibid.) In planning the conditions of a juvenile probationers supervision, the juvenile court must consider both the circumstances of the crime and the juveniles entire social history. (In re Binh L. supra, 5 Cal.App.4th at p. 203, .)" (In re Christopher M. (2005) 127 Cal.App.4th 684, 692-693.)
We will not disturb the juvenile courts exercise of discretion in establishing conditions of probation in juvenile cases in the absence of manifest abuse. (In re Christopher M., supra, 127 Cal.App.4th at p. 692.)
The People concede the point with respect to probation condition 16, citing In re Sheena K. (2007) 40 Cal.4th 875, 879-880 for the proposition that a probation condition precluding a minor from associating with "`anyone disapproved of by probation," was unconstitutionally vague and overbroad, and a challenge on that basis can be raised for the first time on appeal. In that case, our Supreme Court found that the probation condition must be modified to preclude the minor from associating with anyone "[known to be] disapproved of" by probation. (Id. at p. 890.)
As to probation condition 21, minor urges that he is precluded from using legally prescribed medication that he may require for medical reasons, thereby rendering that condition overbroad and vague. But, as previously stated, the juvenile court has wide discretion in determining probation conditions and may impose and require any and all reasonable probation conditions that he deems to be fitting and proper. (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968.)
The record shows that minor admitted to using heroin and crack cocaine since he was 14 or 15 years old. Further, one of his petitions for possessing crack cocaine was sustained. Minor also admitted that he failed to report to probation as required. While minor contends on appeal that he is being precluded from using legal prescription narcotics, there is no evidence in the record that he requires such medication. And, given minors record as a drug abuser, the juvenile court acted within its discretion in fashioning a probation condition that precluded him from using narcotics or controlled substance medication that could be abused. (In re Todd L. (1980) 113 Cal.App.3d 14, 20 [juvenile condition of probation requiring defendant to not use or possess narcotics or other controlled substances was proper based on minors social history].)
DISPOSITION
The matter is remanded to the juvenile court with directions to: (1) modify probation condition 16 to state "nor remain in the presence of any person known to him to be unlawfully armed;" and (2) calculate the amount of minors predisposition custody credit, including credit to which he is entitled pursuant to the previously sustained petitions. In all other respects, the judgment is affirmed.
We concur:
DOI TODD, Acting P. J.
CHAVEZ, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.