Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. JJD060251. Valeriano Saucedo, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Levy, J.
OPINION
INTRODUCTION
On May 3, 2006, an amended petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Anthony R. and codefendant Eliseo V., committed felony vandalism (Pen. Code, § 594, subd. (a), count one) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). The petition further alleged Anthony resisted arrest (§ 148, subd. (a)(1), count two) and committed petty theft (§ 484, subd. (a), count three).
Unless otherwise indicated, all further statutory references are to the Penal Code.
Anthony had a prior juvenile adjudication in which he admitted two counts of misdemeanor battery (§ 242).
On June 29, 2006, Anthony waived his rights to a hearing and admitted count three. At the conclusion of a contested hearing, the juvenile court found the remaining allegations to be true. On July 27, 2006, the court placed Anthony on probation and ordered victim restitution to a mini mart of $30 and ordered a hearing on the issue of victim restitution to Daniel Prado at a “threshold” of $1,909.01. On October 26, 2006, the court conducted a restitution hearing and reduced the restitution to Prado by $75.
On appeal, Anthony contends there was insufficient evidence to support the gang allegation. Anthony also contends there was insufficient evidence of the damage caused to Prado’s vehicle.
FACTS
Daniel Prado was lying in bed late on the evening of April 24, 2006, when he heard what sounded like metal objects banging against his two cars. When Prado looked out his window, he saw three people beating his 1994 Infiniti with metal rods. They were yelling, “west side creeps at night.” Prado jumped out of bed, ran to his front door, and confronted the three vandals. The vandals were now using their metal rods to beat Prado’s 1980 BMW. Prado asked the three, “[w]hat the fuck are you doing?”
The vandals turned to Prado and said, “Fuck you” and “WSNG.” Prado understood the second expression to refer to a gang. Prado specifically recalled Anthony saying “WSNG.” Prado put on some more clothes and went outside, but by then, the vandals were gone. Prado identified Anthony and Eliseo as two of the vandals who hit his car and made gang threats.
Prado asked a neighbor if he had seen where the three vandals had gone. The neighbor pointed in the direction they went. Prado caught up with the three and called the police from his cell phone. Prado told the three he had contacted the police. They ran toward Prado’s car with their weapons and again shouted “WSNG.” Prado followed the three vandals to a fenced area between two houses.
When Officer Patrick Donohoe of the Tulare Police Department arrived, he and Prado spoke to Eliseo. Prado and Donohoe heard a crackling noise and noticed Anthony started to run away. Donohoe chased Anthony. Prado chased Eliseo, who tried to run away in the opposite direction. Donohoe arrested Anthony and Eliseo.
Prado had already spent $200 to fix the front windshield of the BMW. The vandals broke the rear view mirror on the passenger door and there were dents on the BMW toward the back panel. The Infiniti had scratch marks and dents. There was a good sized dent in the door as well as the roof of the car.
Donohoe testified that he was dispatched to the scene of vandalism. While questioning Eliseo, Donohoe heard what sounded like shots from a handgun. Donohoe, whose gun was unholstered, saw Anthony standing near a broken board in a fence and ordered Anthony to take his hands out of his pockets. Anthony turned, tossing a shiny green metallic object into the backyard and put his hands back into his pockets. Anthony eventually removed his hands from his pockets and faced Donohoe in a fighting stance. Donohoe applied pepper spray on Anthony, who took off running. Eventually, Donohoe and two officers assisting him were able to subdue Anthony.
When Donohoe returned to where Prado was waiting, Prado was standing near Eliseo and another juvenile, Ruben N. Prado identified Eliseo and Ruben as vandals. After being identified, Ruben said, “Fuck that, I’m rose … of WSNG.” Ruben also said, “You don’t fuck with me.” Donohoe arrested Eliseo and Ruben.
Donohoe heard Prado say to Ruben, “Don’t snicker at me.” Ruben said, “You did this to me. Are you the witness?” Prado replied, “Yeah, you broke my windshield.” Ruben responded, “WSNG is now out to get you.” When Donohoe returned to where he located Anthony, he found two long wooden sticks and a golf club.
Tulare Police Detective Edward Hinojosa is a criminal street gang expert. Hinojosa explained that the minors were in a Norteno, or northern gang. To join a gang, members have to be “jumped in” by committing crimes and to promote the gang. In the City of Tulare, there are between 500 and 600 gang members with another couple hundred associates. Members of this gang indentify themselves with the color red, the number 14, and the letter “N.” They also identify themselves with the Huelga bird created by Cesar Chavez as a symbol of the United Farm Workers.
Defense counsel for both juveniles stipulated that Hinojosa was a trained and qualified gang expert.
The expression “WSNG” stands for West Side Tula. The younger members call themselves the West Side Locos, a sub branch of the West Side Tula like a junior varsity team. If gang members have committed enough crimes, they can claim the title West Side Northern Gangster, and have a role more like a varsity team. Hinojosa has spoken to over 100 members of WSNG and investigated crimes in which WSNG members were both suspects and victims. In executing search warrants, Hinojosa had recovered photos taken by gang members depicting them flashing gang signs, associating with other gang members, and wearing red gang attire. He recovered letters showing correspondence between the subject of a search warrant and other documented gang members who are in custody, jail, or prison.
The violent crimes of the WSNG gang include homicide, attempted homicide, assault with a deadly weapon, drive-by shootings, robberies, burglaries, rape, and witness intimidation. Gang members try to create an aura of intimidation and fear in a community. People, afraid of retaliation, are afraid of gang members. One gang objective is to terrorize a community.
Hinojosa testified concerning an act of witness intimidation by Jerome Torres he witnessed on October 17, 2005 in the courthouse. After his arrest, Torres admitted being a West Side Northern Gangster. Torres was convicted of witness intimidation with a gang enhancement.
Hinojosa explained that on July 29, 2005, Eliseo admitted to Hinojosa during a gang field interview that he was a member of West Side Tula. On February 25, 2005, Eliseo was involved in a physical alteration with another student with southern affiliation after Eliseo called the student a “scrap.” On September 4, 2005, Eliseo was arrested for graffiti and possession of a large knife. While being booked, Eliseo asked the arresting officer if he could throw a gang sign. While Eliseo was being photographed, he made a “W,” a sign used by West Side Tula or Nortenos from the north side, with his fingers.
On September 8, 2005, Eliseo yelled at Corporal Canaba because he thought she was a southern gang member. Hinojosa did not have any field interview cards on Anthony. Hinojosa explained that it was possible for a person to commit crimes in furtherance of a gang and for the police not to have documentation on that individual, especially if the person is a juvenile. Hinojosa said that such juveniles are “flying under the radar.” Ruben N. had contacts with the police for tagging and graffiti.
When asked if three individuals, two are affiliates of WSNG and one does not yet have documentation as a gang member, vandalize cars and yell gang slurs were acting for the benefit of WSNG, Hinojosa replied that they were. Hinojosa stated it was his “opinion that this crime was definitely committed to promote the gang.”
Hinojosa explained the three juveniles were “committing the crime because they want everybody to know who’s actually committing this crime, and they’re trying to represent themselves as Norteno gang members.” Hinojosa stated that intimidating local residents would benefit the Norteno gang by “creating this aura of fear in the community.” A person doing this kind of activity is associating with a gang.
Hinojosa conceded the police report did not indicate that Anthony had been in trouble or had worn gang colors. No one was wearing red gang colors the evening of the vandalism. Hinojosa explained that to be a gang member, one has to commit crimes for the benefit of the gang.
Hinojosa stated that Anthony was a gang member because, according to the police report, car windows were being smashed while the vandals yelled, “West Side Norteno Gangsters.” Also, the victim of the crime reported that the vandals told him that the North Side Gangsters were coming to get him. Hinojosa opined that Eliseo was a gang member acting for the gang because of his prior admission of gang membership as well as his threats and gang slurs.
Hinojosa admitted it was a tough question as to whether Anthony was a gang member because the investigating officers did not ask him questions regarding gang membership. Anthony was not wearing gang colors and the police had no prior gang contacts with him. On the other hand, Anthony was with two other known gang members and was involved in a gang-related crime. Because of Anthony’s involvement in a gang-related crime, Hinojosa opined he was either a gang member or a gang associate and that Anthony’s conduct benefited the criminal conduct of the coperpetrators. The juvenile court denied a motion by Anthony’s counsel to dismiss the allegation that Anthony acted for the benefit of a criminal street gang.
EVIDENCE OF GANG PARTICIPATION
Appellant contends the evidence was insufficient to sustain the allegation that he acted in support of a criminal street gang. Appellant argues that Detective Hinojosa “offered no specifics other than his brief description of the two acts of witness intimidation.” Appellant describes Hinojosa’s testimony as “conclusory testimony” insufficient to meet the prosecution’s burden of proof.
In reviewing a challenge to the sufficiency of the evidence in an appeal from a juvenile proceeding, our court reviews the whole record in the light most favorable to the judgment to determine if there is substantial evidence -- evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) We are in no position to weigh conflicts or disputes in the evidence. We consider all evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference which can be drawn from that evidence tending to establish the correctness of the trial court’s decision. We resolve all conflicts in favor of the trial court’s decision. We view the entire record to find any substantial evidence, contradicted or uncontradicted, which supports the decision of the trier of fact. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)
To show a violation of section 186.22, subdivision (b), the prosecution must prove the crime for which the defendant was convicted was “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)(1).) The prosecution must further prove that the gang: (1) is an ongoing association of three or more persons with a common name, identifying sign, or symbol, (2) has as a primary activity the commission of one or more of the criminal acts enumerated in the statute, and (3) includes members who individually or collectively have engaged in a pattern of gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses in the statute, also know as predicate offenses, during the statutorily defined period. (§ 186.22, subds. (e) & (f); People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
Hinojosa testified that WSNG is a Norteno gang in Tulare and that its primary criminal activities include homicide, attempted homicide, assault with deadly weapons, drive-by shootings, robberies, burglaries, rape, and witness intimidation. Gang members try to create an aura of intimidation and fear in a community. People, afraid of retaliation, are afraid of gang members. One gang objective is to terrorize a community. Hinojosa specifically described two predicate offenses committed by Jerome Torres and Guadalupe Deporto, who were both convicted of witness intimidation. Both convictions were for the benefit of the gang.
In addition to his description of the two predicate offenses, Hinojosa testified that once in 2005, Eliseo identified himself in a field interview as a gang member affiliated with the West Side Tula. Twice in 2005 Eliseo was involved in gang-related activities. Once he was in a physical altercation with a Sureno affiliate or gang member at school and the other time he was applying graffiti for the benefit of his gang. While being photographed during booking for the second incident, Eliseo threw a “W” gang sign.
Hinojosa’s testimony specifically set forth the nature and constitution of the Norteno gang and its subgroups in Tulare. Hinojosa’s testimony included specific details of at least four gang members, as well as the symbols and signs they used. One important theme of the Norteno gang in Tulare is to intimidate the broader community. The two predicate offenses involved convictions of Norteno gang members for witness intimidation, an enumerated offense in the statute. (§ 186.22, subd. (e)(8).)
The other general offenses committed by the Nortenos as categorized by Hinojosa are also enumerated in section 186.22, subdivision (e).
Although Anthony had no known prior affiliation with the Norteno gang or its subsets, on the evening of the vandalism, he was yelling gang slogans and slurs at the victim Prado. Anthony was either working at the direction of, or in association with, the gang. The prosecution proved each of the elements of the offense with specific evidence. Though some of the evidence adduced at the hearing was based on hearsay information and conversations with past members of difference gangs, the Supreme Court found such evidence admissible in Gardeley. (Gardeley, supra, 14 Cal.4th at pp. 619-620.)
Anthony relies on In re Alexander L. (2007) 149 Cal.App.4th 605, 611-614 (Alexander L.) for the proposition that the evidence here was insufficient and conclusory. In that case, the officer testified only to general offenses committed by the gang, and to a predicate offense in which the alleged gang member was actually acquitted of the gang allegation. (Id. at pp. 611-612.) A second predicate offense involved a gang member involved in an assault, but no direct link was made as to how the offense was connected to the gang. (Id. at pp. 612-613.) More importantly, the officer’s testimony concerning the predicate offenses did not have an adequate foundation. The officer did not explain how he knew about the offenses. (Id. at p. 612.)
We find the facts of Alexander L. to be completely distinguishable from those of the instant action. Here, in addition to testimony concerning general gang activity, Hinojosa testified in detail about how Nortenos committed crimes to create fear in the community and to intimidate witnesses. The two predicate offenses included specific details about how known gang members intimidated witnesses and were subsequently convicted of witness intimidation. Hinojosa witnessed one act of intimidation that led to a conviction and was apparently reviewing official records as the basis of the second offense. In one predicate offense, the defendant was also convicted of a gang enhancement. Finally, Hinojosa described prior contacts with Eliseo involving gang activity in specific detail. We find that Hinojosa’s testimony provided substantial evidence that included specific details of each element of the gang enhancement.
EVIDENCE OF VICTIM RESTITUTION
Anthony contends the direct victim restitution award was not supported by substantial evidence. We disagree and will affirm the juvenile court’s restitution order.
Restitution Evidence
The juvenile court conducted a restitution hearing on October 26, 2006. Prado produced estimates for the repair of his two cars totaling $1,909. Prado submitted repair estimates from Emmett’s Paint and Body Shop of $1,092.01 to repair the Infiniti and $817 to repair the BMW. At the hearing, defense counsel challenged the validity of the estimate but did not have other evidence to submit as to what was the correct amount. Defense counsel suggested that the court discount the amount of claimed damages.
The prosecutor explained to the court that defense counsel talked to a representative from Emmett’s, Mr. Adams, who had only viewed photographs of the cars. The parties attempted to call and subpoena Prado, but could not locate him. Defense counsel called Adams to testify.
Adams prepared the estimates on Prado’s Infiniti and BMW cars using photographs. Adams did not physically view the cars. Adams conceded that a photograph can be deceiving because it can look larger or smaller than it actually is. Adams was aware from a police report that a windshield and side mirror needed to be replaced. Labor for replacing a side mirror would be $50. A used part would be between $20 and $50 and a new one would be $131. There would be no reason to install a new part. Paint damage to the roof of the Infiniti would be about $160 for the paint.
Adams explained that he estimated it would take two hours of labor to repair the Infiniti. Adams explained that his total estimate of about $1,900 was a high end estimate, but that the deviation in time would be about half an hour. The court left an earlier order in place that Anthony was still responsible for damage to the BMW. The court noted Anthony could challenge that award later if he wished. At the conclusion of the hearing, the court ordered restitution for the Infiniti of $1,017.01 and left in place its earlier award of damages for the BMW. The court continued the hearing for the amount of restitution for the BMW.
The original estimate for repair to the Infiniti was $1,092.01. The new order reduced damages to $1,017.01, or, $75. The total amount of direct victim restitution ordered by the juvenile court was $1,834.01.
On December 6, 2006, the restitution hearing continued on the issue of restitution for the BMW. Defense counsel argued that the estimates were only made from photographs. The court noted it had already ruled on that issue. The court continued the hearing. On February 7, 2007, defense counsel argued that the prosecutor took an active role in the case and obtained an estimate. The claim was not submitted by the victim himself. Defense counsel sought recusal of the prosecutor.
The court noted that the prosecutor sent an investigator to take photographs of damage to Prado’s cars and based on those photographs, the body shop proved repair estimates. The court noted that defense counsel was complaining that the prosecutor did this work rather than the victim himself and sought recusal of the prosecutor. Defense counsel stated she also wanted the court to completely set aside its victim restitution order. The court denied the motion.
Analysis
Anthony contends the specific damage caused by his conduct and the amount of repairs to the victim’s cars was not established. Anthony argues that Adams could not give a true estimate of repairs based only on photographs.
Courts are vested with broad discretion in setting the amount of restitution. A court may use any rational method of fixing the amount of restitution which is reasonable and calculated to make the victim whole. (People v. Tucker (1995) 37 Cal.App.4th 1, 6.) A victim’s restitution rights are broadly and liberally construed in favor of full recovery of the victim’s economic losses. (People v. Mearns (2002) 97 Cal.App.4th 493, 500.) On appeal, we review a restitution order for abuse of discretion. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
Victim restitution is authorized in juvenile cases by Welfare and Institutions Code section 730.6, subdivision (h). Requiring the minor to pay victim restitution has both a deterrent as well as a rehabilitative effect. (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387 (Brittany L.).) The intent of the statutory provision is to require a probationary offender to make full restitution for all losses his or her crime has caused. (Id. at pp. 1388-1389.) The principles that apply in adult cases apply equally to the virtually identical provisions of Welfare and Institutions Code section 730.6. (Brittany L., supra, 99 Cal.App.4th at p. 1389.) Furthermore, it is error for a juvenile court to fail to determine the amount of a crime victim’s economic loss. (Id. at p. 1390.)
The court may use any rational method of determining the amount of victim restitution as long as it is reasonably calculated to make the victim whole. It must be consistent with the goal of rehabilitation. (Brittany L., supra, 99 Cal.App.4th at pp. 1391-1392.) Courts are given nearly unlimited discretion as to the kind of information they can consider. The hearing does not require the formalities of other phases of a criminal prosecution. (Id. at p. 1392.)
Anthony’s primary complaint concerning the repair estimates is that they were made from photographs of the victim’s cars rather than a personal inspection. Adams testified that there could be some variance in the degree of damage from a photograph to what the actual damage may be. Ultimately, this accounted for Adams’s testimony that the actual labor to repair the Infiniti could be too high by $75. The juvenile court reduced the amount of victim restitution by this amount.
We further note that the juvenile court did not rely solely on Adams’s testimony to determine the extent of damage to Prado’s cars. Prado himself testified at the jurisdiction hearing concerning the degree to which each car was damaged. Prado had already spent $200 to fix the front windshield of the BMW. The vandals broke the rear view mirror on the passenger door and there were dents on the BMW toward the back panel. The Infiniti had scratch marks and dents. There were also good sized dents in the door as well as the roof of the car.
We cannot say that Adams’s testimony and estimates, based on photographs of the damaged cars, failed to constitute substantial evidence. As noted in Brittany L., courts are given nearly unlimited discretion as to the type of evidence used to evaluate the amount of victim restitution. The juvenile court’s reliance on Adams’s testimony and his estimates of damage to the victim’s cars was not arbitrary or irrational. Anthony had multiple opportunities to challenge this evidence over the course of several continuances and hearings and failed to do so.
We acknowledge that although the victim did not testify at the restitution hearing, he did testify at the jurisdiction hearing. Also, Anthony could have made copies of the photographs to obtain independent estimates of the damage to the cars. Given the number of continuances, he had more multiple opportunities to challenge the prosecution’s evidence and failed to do so.
DISPOSITION
The juvenile court’s judgment is affirmed.
On another occasion, Guadalupe Deporto approached a witness in Tulare and told him that if he talked to the police, it would be the last time. Deporto was convicted of witness intimidation. In Hinojosa’s opinion, Deporto committed this offense because he associated with and wanted to further the Northern gang.