Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIJ112095, Charles Koosed, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
William H. Strohmeyer, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Minor Allen E. admitted that he violated Penal Code section 12101, subdivision (a), possession of a concealable firearm. He also admitted that the violation was committed to promote, further, and assist the criminal conduct of a criminal street gang in violation of Penal Code section 186.22, subdivision (b). On appeal, minor contends that the juvenile court erred in failing to make an express finding as to whether the possession of firearm charge was found true as a misdemeanor or felony.
On a subsequent petition filed against minor, allegations of two robberies with gang enhancements were found true. On appeal, minor contends that the evidence was insufficient to support the gang enhancements.
For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
A. Factual Background
1. May 2006 offense
Riverside police attempted to pull over a car in which minor was a passenger for having tinted windows. Even though the officers had activated their lights and sirens, the driver failed to stop the car until he had traveled another mile. During that time, police saw several heads in the backseat, moving around frantically. Following a consent search of the car, officers found a loaded .357 revolver concealed behind a rear seat armrest. Minor and three other passengers had “5150” tattooed on their heads or necks.
2. August 2006 offense
On August 22, 2006, Juan L. was going to a Stater Bros. store with his two brothers. Suddenly, they saw minor “appear” as if he had been right behind them. Minor said, “[H]old up.” When the three boys turned around, minor told them to empty their pockets. As they began to do so, two other individuals came running across the street. Minor and his two companions were now standing around the three boys. Minor and one of his cohorts went through the boys’ pockets; they took a total of $7.
At one point, minor asked the three boys where they were from. When one of the brothers said, “Cypress,” minor hit him. The three assailants then ran off. As they did so, Juan L. noticed a tattoo on the back of minor’s head. Juan L., however, could not decipher it. Juan L. later identified minor at a file lineup.
On August 27, 2006, as Martin C. was walking to the same Stater Bros. store, minor came up to him and asked him for money. When Martin C. stated that he did not have any money, minor told him to empty his pockets. When Martin C. refused, minor started to punch Martin C. Martin C. tried to get away, but another individual, Samuel C., came from the other side of the street and started punching Martin C. as well.
Samuel C. also told Martin C. to empty his pockets. Martin C. refused at first, but then relented. Minor and Samuel C. took two CD’s, a CD player, and $20. As they left, they started talking about the 5150 gang and told Martin C. not to talk to the police. Later, Martin C. identified minor and Samuel C. at a file lineup.
3. Testimony of Detective Scott Impola
Riverside Police Detective Scott Impola testified that he worked in the gang intelligence unit and that he was familiar with 5150 gang members and their activities.
The 5150 gang engages in a pattern of criminal activity that includes assaults, robberies, murders, and the sales of narcotics. “[P]utting in work,” or committing crimes on behalf of the gang, helps affiliates of the 5150 gang become full-fledged members. Committing violent assaults gives the members of the gang increased “respect” within the gang and gives them a reputation for being fearsome, both within the gang and the community at large. It also creates an atmosphere in the community where witnesses and victims are reluctant to testify against gang members. Therefore, they can commit their crimes with impunity.
There is an expectation that each member or associate of a gang will “back” the other members in their criminal activities. If an individual gang member does not do so, he could be “punked out,” or challenged by other 5150 members. He could be assaulted or even killed for not coming to their assistance in time of need. Detective Impola testified that the intersection of La Sierra and Indiana is 5150 gang territory and that Wybourn Avenue, the street where minor was eventually detained, is a common hang out for 5150 gang members.
Detective Impola also testified that the August 27, 2006, robbery was committed for the benefit of the 5150 gang, as it gave the gang a reputation for both strength and ferocity within the neighborhood and sent a message that the gang is not to be challenged. Robberies help the gang to survive, earn money, and “create a lifestyle” for the gang and its member.
Robberies serve as a means for securing the gang’s territory, and gangs often attempt to control the flow of pedestrian traffic inside the territory that they claim as their own. Normally, criminals endeavor to commit their offenses anonymously; minor’s purpose in announcing the name of the gang during the robbery was to “claim” the gang, to evidence his own membership in the gang, and to promote the gang within the community at large.
Detective Impola testified that the August 22, 2006, robbery was also committed for the benefit of the 5150 gang. When minor asked the three boys where they were from during the robbery, he was making a turf-related inquiry that placed the focus on the geographic area the gang controlled and the fact that the victims had crossed into it. Minor kept his head shaved in order to reveal the “5150” tattoo he had. The tattoo served simultaneously as a display of his membership in the gang and a sign that he was “down for” the gang—that he would do whatever he could for the gang and other gang members.
Detective Impola further testified that gang members will only commit crimes with other gang members or associates of the gang, as they can trust that they will assist them in the commission of crimes or help them avoid being prosecuted for those crimes. In this case, both the nature of the inquiry and the tattoo benefited the gang by intimidating the community and individual victims. It creates notoriety for the gang as people talk about having been victimized and about others who have been victimized by the gang. This dynamic feeds a self-perpetuating cycle of fear, which in turn serves to increase and solidify the gang’s control over the neighborhood. The principle of “back-up” was exhibited during the robbery. Immediately after minor accosted the victims, his cohorts converged at the scene of the robbery and assisted minor.
B. Procedural Background
1. May 2006 petition
In a petition filed on May 8, 2006, the People alleged that “minor committed a violation of Penal Code section 12101, subdivision (a), a felony.” The People also alleged that minor had committed the offense “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in any criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b).”
At the jurisdictional hearing on June 5, 2006, minor admitted both violations. Thereafter, the juvenile court made a true finding as to both the allegation and special allegation and set a disposition hearing for June 26, 2006. Minor failed to appear.
2. August 2006 petition subsequent
In a petition subsequent filed on August 29, 2006, the People alleged that minor had committed three violations of robbery under Penal Code section 211. The People also alleged that minor had committed the offense “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in any criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b).”
After a contested jurisdictional hearing, the juvenile court dismissed the robbery allegation in paragraph 3 of the petition subsequent, along with its special allegation under Welfare and Institutions Code section 701.1. The juvenile court then made a true finding with respect to each of the other two paragraphs and their special allegations.
On October 24, 2006, the juvenile court set minor’s maximum term of physical confinement at 21 years. The court also adjudged minor a ward under Welfare and Institutions Code section 602. At a dispositional hearing on November 2, 2006, the court ordered that minor be confined in a suitable home placement or juvenile facility.
II
ANALYSIS
A. The Juvenile Court Complied with Welfare and Institutions Code Section 702
Welfare and Institutions Code section 702 provides, in part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” Minor asserts the juvenile court in this case failed to comply with Welfare and Institutions Code section 702 because it did not declare whether the weapons possession charge was found true as a misdemeanor or a felony. Therefore, he asserts the matter must be remanded for the court to comply with the statute.
Although the court did not formally declare the assault to be a felony, the California Supreme Court in In re Manzy W. (1997) 14 Cal.4th 1199, at page 1209, rejected the proposition “that remand is, in effect, ‘automatic’ whenever the juvenile court fails to make a formal declaration under Welfare and Institutions Code section 702.” Instead, the court held that “the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (Ibid.)
The question then arises what sort of showing is required to avoid a remand. The Supreme Court in In re Manzy W., supra, 14 Cal.4th at page 1209, stated: “The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” The record in this case establishes the court had that awareness.
Minor’s offense, possession of a weapon under Penal Code section 12101, subdivision (a), is a wobbler offense, punishable as either a felony or misdemeanor. (Pen. Code, § 12101, subd. (c); In re Jose T. (1997) 58 Cal.App.4th 1218, 1220.) Thus, under Welfare and Institutions Code section 702, the juvenile court was required to declare whether the offense was a felony or misdemeanor.
In the present matter, although the juvenile court did not formally comply with Welfare and Institutions Code section 702, the court demonstrated that it was aware of, and ultimately did exercise, its discretion to determine whether the crimes should be designated felonies or misdemeanors. The juvenile court stated, “And all matters for which he was—the Court has found true, it was fixed at a felony. The 211s and gang enhancements are straight felonies.” Based on this statement, it is clear that the court realized that the possession of a weapon charge under Penal Code section 12101 was a wobbler. The court described the only other sustained allegations—“[t]he 211s and gang enhancements”—as “straight felonies.” This showed that the court recognized that the only other allegation—the weapons offense—was not a “straight felony,” but a wobbler.
In addition, the juvenile court also stated, in reference to all the matters it found true, that “it” was fixed at a felony. Since there were multiple allegations of robberies and multiple special gang enhancement allegations, the court’s use of the singular tense referred to the single weapons offense under Penal Code section 12101, subdivision (a).
Furthermore, in this case, the People filed a petition alleging that minor had committed a felony violation of possession of a concealable firearm under Penal Code section 12101, subdivision (a). The juvenile court’s calculation of the maximum term of confinement corresponds to having found the allegation true as a felony offense.
Based on the above, we are persuaded under these circumstances “that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.” (In re Manzy W., supra, 14 Cal.4th at p. 1209.) No remand is warranted. (Ibid.)
B. The Findings on the Gang Enhancement Allegations Are Supported by Substantial Evidence
Minor contends that the findings on the gang enhancement allegations are not supported by substantial evidence.
Our review of any claim of insufficiency of the evidence is limited. In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible, and of solid value from which a rational trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of review is the same in juvenile cases as in adult cases. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
The standard is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
In this case, the juvenile court found true that minor committed the crimes of robbery for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in any criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b).
A gang enhancement under Penal Code section 186.22, subdivision (b)(1), requires proof that (1) defendant committed a felony; (2) the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (3) the felony was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1); see In re Ramon T. (1997) 57 Cal.App.4th 201, 207 & fn. 3.)
In addition, the prosecution must prove the elements of a criminal street gang, meaning a group of three or more persons, having as one of its primary activities the commission of certain specified crimes, using a common name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (Pen. Code, § 186.22, subds. (e) & (f); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
The prosecution may rely on expert testimony to establish the required elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a); see People v. Gardeley, supra, 14 Cal.4th at p. 617.) The expert may testify regarding certain activities of the gang even though they may parallel the elements of the criminal street gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The expert also may testify concerning whether a defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide because these are matters far beyond the common experience of the jury. (Id. at pp. 508-510.) An expert’s testimony is also admissible concerning the existence, size, or composition of a gang; an individual’s membership in or association with a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and how; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
Here, contrary to defendant’s assertions, there was substantial evidence that defendant intended to commit the robberies for the benefit of the 5150 gang to promote, further, or assist in the criminal conduct of its members. Substantial evidence also showed that the crime defendant committed benefited his gang.
The testimony of gang expert, Detective Impola, established that the August 22, 2006, robbery was committed by minor for the benefit of the 5150 gang with the specific intent to promote, further, and assist in the criminal conduct of its members. Minor is an admitted member of the gang, and the offense was committed in the heart of the 5150 gang territory. While minor was robbing the three boys, he made a point of asking them where they were from. When of the victims replied, “Cypress,” minor hit him. As soon as minor accosted the victims, two of his cohorts immediately appeared “out of nowhere” to provide “back up,” to support and assist minor in the commission of the offense. Detective Impola observed that gang members will only commit crimes with other gang members because they are the only individuals whom they are willing to trust.
Moreover, Detective Impola testified that it is not necessarily the fruits of the crime that benefit the gang, but the commission of the crime itself. The gang enjoys a derivative benefit in that its own reputation for ferocity and fearlessness serves to terrorize the community, keeping it locked in the grip of fear. In this way, the gang asserts and solidifies its dominance in the neighborhood, effectively controlling the movement of foot traffic within the boundaries of its territory. There is no other reason why a robber would ask his victim where he was “from” while committing the offense. The inquiry itself sends the intended message. (People v. Gardeley, supra, 14 Cal.4th at p. 610.)
Based on the foregoing, we believe the evidence here, together with the reasonable inferences to be drawn therefrom, supports the juvenile court’s true findings on the gang enhancements.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., McKINSTER, J.