Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36277
Bamattre-Manoukian, ACTING P.J.
The minor, C. A., appeals from a dispositional order, following the findings by the juvenile court that he committed an assault by means of force likely to produce great bodily injury for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B).) The court placed the minor on probation with various terms and conditions, including that he serve 60 days on the electronic monitoring program and that he “not knowingly come within 25 feet of a Courthouse” except as specified.
Further unspecified statutory references are to the Penal Code.
On appeal the minor contends that there was insufficient evidence to support the “primary activities” element and the “pattern of criminal gang activity” element of the gang enhancement (§ 186.22, subds. (e) & (f)), that his counsel rendered ineffective assistance by failing to request that the court not consider certain hearsay testimony, that an assault by force likely to produce great bodily injury is not a serious felony within the meaning of the gang enhancement, and that the probation condition concerning the courthouse is unconstitutionally overbroad.
For reasons that we will explain, we will modify the probation condition and affirm the dispositional order as so modified.
BACKGROUND
On September 15, 2009, the district attorney filed a petition under Welfare and Institutions Code section 602 alleging that the minor, then age 13, committed an assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) The petition further alleged that the offense was committed “for the benefit of, at the direction of, and in association with a criminal street gang.” (§ 186.22, subd. (b)(1)(B).)
The Jurisdictional Hearing Evidence
On September 11, 2009, the victim was on his way home from middle school when he was assaulted by the minor, J.C., A.G., and J.G. The victim had attended the same school as the minor and J.C.
Before the assault, J.G. asked, “ ‘Do you bang?’ ” The victim responded that he did not. J.G. also said “ ‘Norteño XIV’ ” and “ ‘Puro Norte’ ” to the victim just prior to the assault. The victim testified that he is not a Sureño but acknowledged that he has been “hanging out” with Sureños.
The victim was hit from behind on the back of his head. He did not know who hit him. He covered his head with his hands, tucked his chin down to his chest, and leaned forward. The victim was “hit a lot” and by more than one person. He was punched in the head and shoulders, and kicked in the legs. He recalled telling the police that he was on the ground during part of the assault and that he was kicked. The victim did not hit anyone during the incident. He suffered a head injury and went to the hospital after the incident. He needed stitches as a result of the assault. Photographs showing a bloody injury on the victim’s head were introduced into evidence.
Several witnesses saw the assault while driving their vehicles and stopped to intervene. Jose Trinidad Melo testified that he saw the victim being hit and kicked and described the assailants as “swinging and punching away” at the victim. Initially, the victim was standing. Eventually, he “fell against a fence in kind of a fetal position” and was falling towards the ground with his hands covering his head. Melo testified that the minor looked like one of the assailants who was hitting the victim. Of the several “boys” who were around the victim, all of them appeared to be “participating” in the assault. Melo yelled at the assailants to “stop and get off the kid.” The assailants looked at Melo and started walking, and then running, away from the victim. Melo exited his car and went to check on the victim. He also called 911. A portion of the 911 call was played for the court and a transcript was admitted into evidence. During the call, Melo reported that the victim had a “gash on the side of his head.”
Melo also reported during the 911 call that there were “probably about four” boys hitting the minor. At the jurisdictional hearing approximately three months later, Melo testified that there were “about three kids” hitting the minor. After listening to a tape of the 911 call, he testified: “It’s been a little while, so it could have been three, four boys” involved in the assault.
Shelly Biscaino was in a car with her niece and approaching a red light. She saw four boys kicking another boy who was “in a fetal position.” Her niece “jumped out of the car and went to help.”
Rocio C. stopped her vehicle at a red light and saw four males “beating another boy.” The victim was against a fence and then on the ground in a “fetal position.” Rocio testified that all four assailants were either hitting or kicking the victim. She saw the minor in particular hitting and kicking the victim.
Rocio C. exited her vehicle and tried to stop the fight. She approached J.C., who she described as “more of the aggressor.” She asked what he was doing, and he responded by calling her a “bitch.” Rocio saw that he had “something that was kind of like reflecting, like a metal thing, ” and at some point, he hit the victim with a plastic bottle.
The minor had continued to hit the victim after Rocio C. exited her car. When Rocio was approximately five to seven feet away from the minor, she asked him what he was doing. The minor looked at Rocio and then started running away.
In the process of trying to shield the victim, Rocio C. was kicked in the leg by one of the assailants. At some point, she “pulled” the backpack worn by another assailant, and he looked at her, “gave the [victim] a couple more kicks, ” and then started running. Eventually the remaining assailants left the scene in the same direction as the minor, and all four assailants were “running together.” Some of the assailants were laughing as they left, and the minor “had a smirk on his face.”
Rocio C. observed “a lot of blood coming down” the victim’s face. Rocio called the police and got into her car to “try to catch” the assailants. She lost sight of them for several minutes. When she saw all four assailants at a park, she told the police that she had found them.
San Jose police responded and eventually all four assailants were arrested. After the minor was arrested, he stated, “ ‘Why am I going? I wasn’t in the fight. I didn’t do anything.’ ” The minor later told the police that he was “hanging out” with his friends, J.C., A.G., and J.G., when they saw the victim. As the minor was walking, he heard a “commotion” and turned around to see J.C. and the victim punching each other. The two fought on the ground until a woman told them to stop. The minor ran away from the scene because he “knew that fighting was wrong and he didn’t want to get in trouble.” He claimed that he and his other two friends were not involved in the fight. The minor knew the victim from school but indicated that he “never had any problems” with him.
The minor indicated to the police that he was “affiliated or with a Norteño gang called VMF or Varrio Meadow Fair” but denied being a member. The minor had one dot tattooed on his left elbow and four dots written in red pen on his right elbow. He also had “X4” and “ENE, ” which is “ ‘N’ in Spanish, ” “carved” into his left hand. The minor had a red bandanna in his back pocket.
Regarding the other assailants, J.C. was wearing a belt buckle with the letter “E” on it, and A.G. had a belt buckle with the letter “M” on it. J.G. had a red bandanna, an identification card with “XIV” written on the back, a red shirt, a belt buckle with the letter “E” on it, and one dot tattooed on his right hand.
San Jose Police Officer Ken Tran testified as an “expert in the area of gang nomenclature, identification, and gang information.” He explained that Norteños are a “criminal street gang” and that “[t]hey emulate themselves after the prison gang known as Nuestra Familia.” There are more than “3, 000 Norteño gang members that are known to law enforcement in this county.” Regarding common names or signs, “Norteños associate with the color red, the number 14, ” “the letter ‘N, ’ ” and the letters “ ‘E-N-E, ’ which is Spanish for the letter ‘N.’ ” The number 14 may be displayed in tattoos or in writings, and may appear as “14, ” “X4, ” “XIV, ” “one dot and four dots, ” or the letter “N.” Varrio Meadow Fair is an “ongoing criminal street gang” that “fall[s] under the larger umbrella of Norteño.” Varrio Meadow Fair’s territory is in San Jose “close” to where the assault in this case occurred. The Varrio Meadow Fair gang is associated with the letter “M, ” which may appear on belt buckles.
Officer Tran testified that Sureños are the “main rival gang” to Norteños. “Sureños associate with the color blue, the number 13, ” and the letter “S.” Officer Tran explained that the letter “E” refers to “East side” and is associated with both Norteños and Sureños.
Officer Tran stated that “one of the primary activities” of Norteños “is to commit crimes such as assault with a deadly weapon, robberies, murder, [and] burglary.”
Introduced into evidence were the informations and other court records showing that Richard Carlos Perez and Angel Luis Alcaraz were convicted of battery in 2009 for an incident occurring in 2008. Officer Tran reviewed “the synopsis that was written by the detectives who actually did the investigation on the case.” Officer Tran concluded that Perez and Alcaraz were active Norteño gang members and that the battery was committed in furtherance of the Norteño gang.
When Officer Tran was thereafter asked why “gang members commit crimes like batteries, ” he explained: “First and foremost, they want to gain notoriety. They want people to know that they are down for the cause, they are down for the gang and they are willing to commit these acts of violence for the furtherance of the gang.” Officer Tran was asked whether “this is done to intimidate, ” and he responded, “Yes.” He stated that “[o]bviously, it’s done to intimidate any possible witnesses, intimidate the public, ” and that gang members “want to intimidate any witnesses from coming forward to cooperate with the police to report incidents like this.”
Officer Tran also indicated that gang members “do not report” crimes “when they have been victimized and when it is reported, they tend to not cooperate with law enforcement.” He further stated that “Norteños commit crimes for dominance of their area” and for a “strong reputation.” He explained that the stronger the reputation, the greater the “ability to recruit more members, to grow and to continue to operate.” Without a strong reputation, “rival gangs[] will challenge them.”
Officer Tran testified that it is “very common” for multiple members of one gang to assault a member of another gang. It is also common for gang members to “go along with the primary attackers as back-ups, ” because they are “expected to... back up the gang” and “to commit these acts of violence for the gang.” Further, gang members “really don’t care if there are witnesses around” when they commit crimes.
In the present case, after hearing the testimony and reviewing the police report, Officer Tran believed that the assault on the victim was “committed in association with and/or for the benefit of and/or at the direction of the Norteño street gang.” In particular, Officer Tran believed that when the assault occurred, the minor was participating as a Norteño and for the benefit of the Norteño gang. Officer Tran’s opinion was based on the statements made prior to the assault, including the reference to “Puro Norte” and the question as to whether the victim “bang[s], ” and his belief that all four assailants were Norteño gang members.
In concluding that all four assailants were Norteño gang members, Officer Tran explained that J.C. had admitted being a Norteño and had actively participated in the assault with Norteño gang members. Regarding A.G., Officer Tran relied on his clothing, his admission to being a Norteño, and his participation in the assault. Officer Tran similarly relied on J.G.’s clothing and his active participation in the assault with Norteño gang members. Regarding the minor, Officer Tran referred to the minor’s clothing that day, the tattoos and “markings” that he had, and his active participation in the assault with Norteño gang members. Although the minor had denied being a Norteño, Officer Tran explained that “it’s pretty common for these gang members not to admit their gang affiliation, ” that gang members may know there is a “gang enhancement” if “they get arrested on some gang crime, ” and that “a lot of gang members” reportedly have been told “not to admit gang affiliations or... any affiliation to any specific gang if and when they get arrested or are contacted by the police.”
A portion of the police report containing A.G.’s statement to the police was admitted into evidence on behalf of the minor. According to the report, A.G. admitted that he and J.C. hit the victim, but he claimed that the minor and J.G. “did not get involved in the fight.”
The Court’s Findings
On December 8, 2009, the juvenile court found true the allegations in the petition as to the count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and the gang enhancement (§ 186.22, subd. (b)(1)(B)). The minor was adjudged a ward of the court and placed on probation with various terms and conditions, including that he serve 60 days on the electronic monitoring program and that he abide by certain gang conditions. One of the gang conditions stated that the minor may not “knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of a gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.”
DISCUSSION
Sufficiency of the Evidence Regarding “Primary Activities”
On appeal, the minor contends that there was insufficient evidence to support the “primary activities” element of the gang enhancement and that his federal right to due process was violated as a result.
“ ‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ [Citations.] We apply an identical standard under the California Constitution. [Citation.] ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175 (Young).) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of solid value.’ [Citations.]” (People v. Raley (1992) 2 Cal.4th 870, 891 (Raley).) The substantial evidence standard of review applies to claims of insufficiency of the evidence to support a gang enhancement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Section 186.22, subdivision (b)(1) provides for additional punishment when the crime is committed “for the benefit of, at the direction of, or in association with any criminal street gang.” “A ‘criminal street gang[]’... 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.’ ([§ 186.22, subd.], subd. (f), italics added.)” (People v. Gardeley (1996) 14 Cal.4th 605, 610, italics added and omitted (Gardeley).) The specified criminal offenses include assault with a deadly weapon or by means of force likely to produce great bodily injury, robbery, unlawful homicide or manslaughter, and burglary. (§ 186.22, subd. (e)(1), (2), (3), (11).)
To establish a gang’s primary activities, the California Supreme Court has stated that “[s]ufficient proof... might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members, ’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith), italics omitted.)
In the present case, Officer Tran testified that “one of the primary activities” of Norteños “is to commit crimes such as assault with a deadly weapon, robberies, murder, [and] burglary.” The minor asserts that Officer Tran’s testimony “failed to ‘provide substantial evidence’ of consistent and repeated commissions of the offenses enumerated” in the gang statute. We disagree.
Expert testimony may provide sufficient proof of a gang’s primary activities. (Sengpadychith, supra, 26 Cal.4th at p. 324.) Here, Officer Tran testified as an expert “in the area of gang nomenclature, identification and gang information, ” and he stated that committing crimes was one of the “primary activities” of Norteños. The specific crimes that Officer Tran identified as being committed by Norteños—assault with a deadly weapon, robbery, murder, and burglary—are among those enumerated in the gang statute. (§ 186.22, subd. (e)(1), (2), (3), (11).)
Relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), the minor contends that Officer Tran’s testimony lacked an adequate foundation, because he failed to state the grounds upon which “his knowledge was based, ” and it is “impossible to tell” whether the source of his knowledge was reliable.
Alexander L. is distinguishable in pertinent respects. First, the gang expert in Alexander L. “did not directly testify that criminal activities constituted [the gang’s] primary activities.” (Alexander L., supra, 149 Cal.App.4th at p. 612.) In contrast, in this case, Officer Tran specifically testified as to the primary activities of Norteños.
Second, in Alexander L., the court stated that even if the expert’s testimony could be construed as referring to the gang’s primary activities, the testimony lacked foundation because “information establishing reliability was never elicited from him at trial.” (Alexander L., supra, 149 Cal.App.4th at p. 612 .) In this case, however, there was evidence of Officer Tran’s extensive experience with gangs. Officer Tran had been a police officer for nearly 10 years, and his most recent assignment was to the Gang Investigations Unit. He testified that he was familiar with the Norteños and he was aware of Varrio Meadow Fair, which is a “subset” of the Norteños. A two-page document reflecting his gang-related training and experience was admitted into evidence. According to the document, Officer Tran trained other officers regarding gangs, and his expertise included the Norteño and Sureño gangs. He had participated in more than 200 criminal investigations involving gang members while on patrol and as a detective, and he had been the lead investigator in more than 50 gang-related cases. He had also talked to “hundreds of gang members, associates, and victims of their crimes, ” spoken with other law enforcement personnel regarding gang-related “trends and crimes in their areas of jurisdiction, ” reviewed approximately 100 gang-related field interview cards, and “routinely review[ed] police reports of gang-related investigations.” We observe that the minor did not challenge Officer Tran’s qualifications as a gang expert (see People v. Duran (2002) 97 Cal.App.4th 1448, 1463 (Duran)), and he did not object to Officer Tran’s testimony concerning the primary activities of Norteños (cf. Evid. Code, §§ 721, subd. (a) [expert may be cross-examined as to basis for opinion], 803 [opinion testimony “shall” be excluded “upon objection” if based on improper matter]). In view of Officer Tran’s experience with gangs, including his personal conversations with gang members, investigation of numerous gang-related crimes, and gang information from other law enforcement personnel, there was sufficient foundation for his testimony. (Gardeley, supra, 14 Cal.4th at p. 620; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [sufficient foundation for gang expert’s testimony regarding primary activities based on his “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports”].)
Accordingly, we determine that there was sufficient proof of the primary activities element as required by section 186.22, subdivision (f).
Sufficiency of the Evidence Regarding “Pattern of Criminal Gang Activity”
As stated above, in order to subject a defendant to the penal consequences of section 186.22, the gang must “engage[] through its members in a ‘pattern of criminal gang activity.’ (Id., subd. (f), italics added.)” (Gardeley, supra, 14 Cal.4th at p. 610.) “A ‘pattern of criminal gang activity’ is defined as gang members’ individual or collective ‘commission of, attempted commission of, ... sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses’ during a statutorily defined time period. (§ 186.22, subd. (e); People v. Gardeley, supra, 14 Cal.4th at p. 617.)” (Duran, supra, 97 Cal.App.4th at p. 1457.) The predicate offenses include assault by means of force likely to produce great bodily injury. (§ 186.22, subd. (e)(1).)
“The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]” (Duran, supra, 97 Cal.App.4th at p. 1457.) Two predicate offenses may be established by “evidence of the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (People v. Loeun (1997) 17 Cal.4th 1, 10 (Loeun).) In Loeun, the California Supreme Court concluded that the prosecution had established two predicate offenses through evidence of the defendant’s “commission of the charged crime of assault with a deadly weapon on [the victim] and the separate assault on [the victim] seconds later by a fellow gang member.” (Id. at p. 14.) In contrast, in People v. Zermeno (1999) 21 Cal.4th 927, the California Supreme Court explained that two predicate offenses are not established “[w]hen a defendant commits an aggravated assault and a fellow gang member aids and abets that assault by preventing anyone from stepping in, ” because the “combined activity” of the two individuals is only a “single offense.” (Id. at pp. 928-929.)
In this case, the minor implicitly acknowledges that if there was evidence that at least two assailants committed an assault by means of force likely to produce great bodily injury, then at least two predicate offenses were established and the requisite pattern of criminal gang activity was shown. (§ 186.22, subds. (e) & (f).) He argues, however, that “[w]hile it is clear that someone used sufficient force to inflict a head wound, ” the record “does not prove beyond a reasonable doubt that more than oneparticipant used sufficient force to qualify as assault by means of force likely to produce great bodily injury.” (Italics added.) We disagree.
Section 245 “ ‘prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’ [Citation.] ‘[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the [factfinder] based on all the evidence, including but not limited to the injury inflicted. [Citations.]’ [¶] Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.) “[T]he use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury.’ ” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
As previously stated, in considering a challenge to the sufficiency of the evidence, we review the entire record, and draw all reasonable inferences in favor of the prosecution, to determine whether a rational trier of fact could have found the essential elements beyond a reasonable doubt. (Young, supra, 34 Cal.4th at p. 1175.) “The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]” (Ibid.)
“ ‘A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.” ’ [Citation.]” (Raley, supra, 2 Cal.4th at p. 891.) A trier of fact may rely on inferences to support a conviction only if those inferences are “of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt” that the inferred facts are true. (Ibid.) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of solid value.’ [Citations.]” (Ibid.) “An appellate court must accept logical inferences that the [factfinder] might have drawn from... circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
In this case, the victim testified that he was “hit a lot.” He was hit and/or kicked by all the assailants. Witnesses described the assailants as “swinging and punching away” and “beating” the victim. The minor was identified as one of the assailants, and he was seen hitting and kicking the victim. The juvenile court ultimately found that the minor had committed an assault by means of force likely to produce great bodily injury. The minor does not challenge that finding on appeal. Given that there was no evidence or argument by the parties suggesting that the minor was merely an aider and abettor, the court’s finding reflects, and the evidence supports, a determination that the minor was a direct perpetrator of the assault on the victim. Further, one of the other assailants, J.C., was described as “more of the aggressor” in the group assault. The evidence also established that J.C., while hitting and/or kicking the victim, used at least one object, a plastic bottle, to strike the victim. In view of the finding that the minor committed an assault by means of force likely to produce great bodily injury, and the evidence that J.C. was more aggressive in the assault than the minor, the record supports a determination that at least two people, the minor and J.C., committed separate assaults by means of force likely to produce great bodily injury. Based on these two predicate offenses by the minor and J.C., we conclude that substantial evidence supports the juvenile court’s implicit finding that a pattern of criminal gang activity was established by the prosecution. (§ 186.22, subds. (e) & (f).)
Failure to Request Order Concerning Hearsay Testimony
The prosecutor introduced into evidence court records showing that Perez and Alcaraz had been convicted for a battery occurring in 2008. The prosecutor then asked Officer Tran to briefly state the facts underlying the battery convictions. After an objection by the minor’s counsel and in response to questions by the court and the prosecutor, Officer Tran clarified that he was “not involved in the actual case” but that he had “read the synopsis that was written by the detective who actually did the investigation on the case.”
The minor’s counsel immediately objected on the ground of lack of foundation. The prosecutor responded that “this is just going to the Officer’s opinion. [¶] This is the Officer’s opinion as to the facts of that case and also as far as the conviction is concerned and the Information. The Court does have certified copies.” The court overruled the objection for lack of foundation and explained that “Detective Tran has been designated as an expert. Experts can rely on hearsay to form their opinion.”
Officer Tran then testified that “[t]he two suspects” confronted the victim, called him a “scrap, ” and then “assault[ed]” him. Officer Tran stated that the assailants “were later determined to be Norteño gang members.” He described the red items that they possessed and the tattoos on one of them, and explained that Norteño gang members use “scrap” as a “derogatory term... to call out” Sureno gang members. Officer Tran opined that Perez and Alcaraz were “active Norteño gang member[s]” and that the battery was “committed in furtherance of the Norteño gang.”
The minor contends that his counsel rendered ineffective assistance by failing to request “an order that the court could not consider the hearsay for its truth – that Perez and Alcaraz were gang members when they committed the offenses.”
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When... the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson); see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
“Expert testimony may... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [citations].)... [¶]... And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter... upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (Gardeley, supra, 14 Cal.4th at p. 618.)
“A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.]... “[A] witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact. [Citations.]” (Gardeley, supra, 14 Cal.4th at p. 619.) “ ‘Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.]’ ” (People v. Bell (2007) 40 Cal.4th 582, 608.)
In this case, the minor fails to show that his counsel’s performance fell below a standard of reasonable competence and that prejudice resulted. (Anderson, supra, 25 Cal.4th at p. 569.) In overruling the objection to Officer Tran’s testimony concerning the underlying facts of the battery convictions, the juvenile court explained that Officer Tran had been designated as an expert and that “[e]xperts can rely on hearsay to form their opinion.” In view of this statement, we have no doubt that the court understood the limited purpose for which the prosecutor was offering the hearsay testimony by Officer Tran. Given that the court was also the factfinder at the jurisdictional hearing, a request by counsel for “an order that the court could not consider the hearsay for its truth” was unnecessary. Even assuming such a request should have been made, as we have explained there was sufficient evidence from which the court could find that the primary activities element and the pattern of criminal gang activity element had been established, without relying on any evidence concerning Perez’s and Alcaraz’s prior battery. Consequently, the minor has not established that “ ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” ’ ” (Anderson, supra, 25 Cal.4th at p. 569.)
Gang Enhancement Based on Serious Felony
The minor argues that the gang enhancement allegation may not be sustained because the underlying crime, assault by means of force likely to produce bodily injury, is not a serious felony under section 1192.7, subdivision (c), as required by the gang statute (§ 186.22, subd. (b)(1)(B)).
The People respond that an assault in which the defendant personally inflicts great bodily injury is a serious felony under section 1192.7, subdivision (c)(8). The People assert that the victim in this case had a bloody head injury requiring stitches and, under People v. Modiri (2006) 39 Cal.4th 481 (Modiri), the minor’s “crime constituted a serious felony under section 1192.7, subdivision (c)” even though “we may not be able to tell which individual assailant personally inflicted the great bodily injury.”
In reply, the minor contends that the People pleaded the gang enhancement “without reference to personal infliction of great bodily injury, ” and thus the enhancement may not be imposed. In supplemental briefing, the minor asserts that he may raise the pleading issue for the first time on appeal and that his federal right to due process was violated. He also argues that there is insufficient evidence to support a finding that he personally inflicted great bodily injury.
The petition in this case under Welfare and Institutions Code section 602 alleges that the minor committed “an assault upon [the victim] by means of force likely to produce great bodily injury.” As to the gang enhancement, the petition alleges that the minor “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 criminal conduct by gang members, with the meaning of Penal Code section 186.22(b)(1)(B).” The juvenile court ultimately found the gang enhancement allegation true.
Subdivision (b)(1)(B) of section 186.22 provides for an additional five-year term if the underlying crime is a “serious felony, ” and “serious felony” is defined by reference to section 1192.7, subdivision (c). Section 1192.7, subdivision (c) lists 42 categories which qualify as a serious felony, including “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice....” (§ 1192.7, subd. (c)(8).)
The California Supreme Court has stated that if there are “several ways” in which a crime may qualify as a serious felony under section 1192.7, the “better practice” is to “allege specifically” the basis of the charged enhancement, such as the infliction of great bodily injury. (People v. Thomas (1986) 41 Cal.3d 837, 843 (Thomas).) A defendant is entitled to “notice of the facts the prosecution intend[s] to prove to justify” an enhancement. (People v. Equarte (1986) 42 Cal.3d 456, 466 (Equarte).) “The defect in the pleading, however, is one of uncertainty only, and is waived by defendant’s failure to demur. [Citations.]” (Thomas, supra, 41 Cal.3d at p. 843; Equarte, supra, 42 Cal.3d at p. 467.)
In this case, the petition provided notice to the minor that the prosecutor intended to prove an assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and a gang enhancement under subdivision (b)(1)(B) of section 186.22. Subdivision (b)(1)(B) of section 186.22 requires the underlying crime to be a serious felony within the meaning of section 1192.7, subdivision (c). Although the petition in this case did not allege personal infliction of great bodily injury or otherwise refer to subdivision (c)(8) of section 1192.7, we observe that the minor does not contend on appeal that he was misled by the prosecution into thinking that a different category under subdivision (c) of section 1192.7 applied, where the petition alleged that he had committed an assault “by means of force likely to produce great bodily injury.” (See Equarte, supra, 42 Cal.3d at p. 467, fn. 13.) Any defect in the petition for failure to “allege specifically” the basis of the charged enhancement, that is, the personal infliction of great bodily injury, was one of uncertainty only and may not be raised for the first time on appeal. (See Thomas, supra, 41 Cal.3d at p. 843; Equarte, supra, 42 Cal.3d at p. 467.)
The minor cites People v. Mancebo (2002) 27 Cal.4th 735(Mancebo) and contends that he may raise the pleading issue for the first time on appeal “because the imposition of judgment under... section 186.22, subdivision (b)(1)(B) constitutes an unauthorized sentence.” We do not believe that Mancebo governs the present case. Mancebo involved the “One Strike” law (§ 667.61), which provides for harsher sentences for certain sex crimes committed under specified circumstances that must be “pled and proved.” (Mancebo, 27 Cal.4th at p. 742.) The information in Mancebo alleged various circumstances, but did not allege a multiple victim circumstance. At sentencing, the trial court substituted the “unpleaded... circumstance for a properly pleaded circumstance [regarding gun use], in order that the properly pleaded circumstance might be available for use in imposing an enhancement authorized under a different law.” (Id. at p. 751.) The California Supreme Court explained that the One Strike law “mandated that the properly pled and proved gun-use circumstances be used to support the One Strike terms” and “precluded the trial court from striking those circumstances in order to free up gun use as a basis for imposing lesser enhancement terms under” a different law. (Id. at pp. 749-750, fn. 7.) Mancebo thus involved the postconviction substitution of unpleaded allegations, rather than, as in this case, a pleaded enhancement in which the claimed defect was apparent on the face of the petition and to which a demurrer for uncertainty could have been brought.
The minor also contends that the “theory that the offense was a serious felony due to the infliction of great bodily injury was... not presented at trial” and, “[b]ecause the matter was never presented to the trier of fact, ” his federal right to due process was violated. We disagree. The petition alleged a gang enhancement under section 186.22, subdivision (b)(1)(B), and the juvenile court at the jurisdictional hearing found that the gang allegation had “been proved.” Moreover, as we next explain in response to the minor’s contention that insufficient evidence supports a personal infliction finding, the court could properly find that the minor had personally inflicted great bodily injury.
In Modiri, the California Supreme Court explained that section 1192.7, subdivision (c)(8) “calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result.” (Modiri, supra, 39 Cal.4th at p. 493.) The Modiri court stated that “participation in a group attack may satisfy section[] 1192.7(c)(8)... where the defendant personally uses force against the victim, and the precise injurious effect is unclear.” (Modiri, supra, 39 Cal.4th at pp. 495-496.) In particular, “a personal-infliction finding could... be made if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others.” (Id. at p. 497.) The Modiri court explained that “where more than one person perpetrates an attack, ” “the evidence is often conflicting or unclear as to which assailant caused particular injuries in whole or part.” (Id. at p. 496.) The court reasoned that “those who participate directly and substantially in a group beating should not be immune from a personal-infliction finding for the sole reason that the resulting confusion prevents a showing or determination of this kind.” (Id. at pp. 496-497.)
In the present case, the evidence established that a group attack occurred, that the minor directly administered multiple blows, and that the victim suffered a head wound. On appeal, the minor does not contest that the victim suffered great bodily injury. The minor also does not challenge the juvenile court’s finding that he committed an assault by means of force likely to produce great bodily injury. Under these circumstances, although the “precise injurious effect” of the minor’s blows “is unclear, ” we determine that the juvenile court could properly find that the minor personally inflicted great bodily injury on the victim within the meaning of section 1192.7, subdivision (c)(8). (Modiri, supra, 39 Cal.4th at p. 496; see also id. at pp. 496-497.) Accordingly, we conclude that the trial court properly sustained the gang enhancement allegation under section 186.22, subdivision (b)(1)(B).
Probation Condition
In placing the minor on probation, the juvenile court imposed several gang conditions, which generally prohibited the minor from associating with gang members, participating in gang activity, visiting areas of gang-related activity, possessing gang-related clothing or other items, displaying gang signs, or obtaining any new, gang-related tattoos. Relevant to this appeal, the probation conditions also provide “[t]hat said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of a gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.”
On appeal, the minor contends that the 25-foot distance restriction is an overbroad restriction of his First Amendment right of access to court proceedings. He requests that the condition be modified so that it is identical to the probation condition ordered in People v. Leon (2010) 181 Cal.App.4th 943 (Leon). The minor acknowledges that he did not raise this objection in the juvenile court, but he asserts that “it is not waived by lack of objection. (In re Sheena K. (2007)40 Cal.4th 875, 889... [(Sheena K.)].)”
The People assume that the minor may raise the overbreadth objection on appeal pursuant to Sheena K., supra, 40 Cal.4th 875, but assert that the objection is “meritless.” The People argue that the probation condition in this case “is for all intents and purposes the same as the one... promulgated in Leon, with the additional exception, approved in [People v.] Perez [(2009)176 Cal.App.4th 380], that [the minor] could also have court access when necessary for a legitimate purpose.”
As an initial matter, we agree with the People’s implicit concession that the minor’s overbreadth argument may be raised for the first time on appeal. If, as in this case, a challenge to a probation condition “as facially... overbroad presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition” (Sheena K., supra, 40 Cal.4th at p. 888), the challenge is not forfeited by the minor’s failure to raise it in the juvenile court. (Id. at pp. 888-889.) We therefore turn to the merits of the minor’s argument.
General Legal Principles
Probation conditions that restrict a probationer’s exercise of constitutional rights are permissible if “ ‘ “necessary to serve the dual purpose of rehabilitation and public safety.” ’ ” (People v. Peck (1996) 52 Cal.App.4th 351, 362; see also People v. Jungers (2005) 127 Cal.App.4th 698, 703 (Jungers).) “However, probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant. [Citations.]” (Jungers, supra, 127 Cal.App.4th at p. 704; see also Sheena K., supra, 40 Cal.4th at p. 890.
We note that “ ‘a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.’ ” (Sheena K., supra, 40 Cal.4th at p. 889.) The juvenile court may impose “any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) Minors are deemed to be “more in need of guidance and supervision than adults” and “a minor’s constitutional rights are more circumscribed.” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
“A probation condition may be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct. [Citation.]” (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) We review constitutional questions de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
Court Proceedings
As one reviewing court has explained, “[t]he restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings” and is “designed to address the problem of gang affiliation.” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983-984, fn. 13.) “[T]he state’s ability to afford protection to witnesses whose testimony is crucial to the conduct of criminal proceedings is an absolutely essential element of the criminal justice system.” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149-1150 & fn. 15 [describing serious problem of witness intimidation by gang members].) Thus, a limitation on a minor’s appearance at proceedings that involve a gang member is reasonably related to both rehabilitation, because it limits the minor’s gang affiliation, and to an important state interest, that is, prevention of witness intimidation and protection of the integrity of the justice system.
At the same time, however, a broad ban on attendance at court proceedings may impinge upon a number of constitutional rights. For example, the public has a right of access to criminal and civil trials. (See Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 603 [acknowledging right of access to criminal trials; “this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment”]; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 [the constitutional right of access extends to civil trials].) Exercise of the right is essential to freedom of speech and to freedom of the press. (See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 577-580.)
In Leon, supra, 181 Cal.App.4th 943, one of the probation conditions at issue prohibited the defendant from appearing at “ ‘any court proceeding’ ” unless he was a party, a subpoenaed witness, or had the permission of probation. (Id. at p. 952.) This court observed that “[t]here can be a variety of legitimate reasons for being at a court proceeding, other than to intimidate or threaten a party or witness. For example, defendant may need to file a document regarding a family matter or he may, as a member of the public, wish to observe a newsworthy trial not involving a gang member or himself.” (Id. at p. 953.) While acknowledging the problem of witness intimidation, this court explained that “the current probation conditions as modified already prevent defendant from associating with gang members and from wearing, possessing, or displaying any criminal street gang paraphernalia.” (Ibid.) The clause allowing for attendance with the probation officer’s permission did not rectify the impermissibly “broad sweep” of the condition. (Id. at pp. 953-954.) Thus, this court narrowed the restriction on appearing at court proceedings to only those proceedings “concern[ing] a member of a criminal street gang” or in which “a member of a criminal street gang is present, ” so that the modified condition read as follows: “ ‘You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.’ ” (Id. at p. 954.)
In People v. Perez (2009) 176 Cal.App.4th 380, the appellate court struck a probation condition that provided: “ ‘The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance.’ ” (Id. at p. 383.) The court observed that the condition, as written, was neither “limited to protecting specific witnesses or parties” nor “confined to trials involving gang members, ” and the condition was “so broad” that it prevented activities unrelated to future criminality. (Id. at p. 384.) Among other things, the court noted that “[m]any courts are located in government complexes that house a variety of public agencies. These may include a county law library; a public defender’s office; a hall of administration, housing a board of supervisors, a city council, or both; a tax collector; and a health department, to name a few.” (Id. at p. 385.) Thus, under Perez, a condition that bars a probationer from coming within a specified distance of a courthouse impinges on the probationer’s access to public places and participation in civic activities. (See ibid.)
The probation condition in this case is similar to and in some respects narrower than the modified condition that this court approved in Leon. In Leon, the probation condition applied to “ ‘any court proceeding’ ” (Leon, supra, 181 Cal.App.4th at p. 954), whereas the condition in the present case pertains only to “criminal or juvenile proceedings.” Further, the condition in Leon qualifies “ ‘any court proceedings’ ” to include only those where “a member of a criminal street gang is present” or those “concern[ing] a member of a criminal street gang.” (Ibid.) The condition in the present case is similar because it qualifies the proceedings as including those that “involve[] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present.” Thus, we believe that the probation condition in this case is, for the most part, narrowly drawn and tailored to serve the state interest of preventing the minor from becoming further involved in a gang.
However, we are concerned that the minor’s ability to engage in civic functions may be circumscribed by the requirement that he remain at least 25 feet from any courthouse. In our view, restricting access to “criminal or juvenile proceedings, ” as opposed to the “courthouse, ” accomplishes the goal of preventing witness intimidation without infringing on the minor’s right of access. Therefore, the condition should be modified by deleting, in its entirety, the restriction that the minor not come within 25 feet of a courthouse.
DISPOSITION
The dispositional order of December 8, 2009, is ordered modified as to the courthouse condition, which shall state as follows: “That said minor not be present at any criminal or juvenile proceedings when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of a gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.” As so modified, the dispositional order is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.