Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County Super. Ct. No. YJ27616, Irma J. Brown, Judge.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant Cristian S.
Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant Levy R.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Cristian S. and Levy R. appeal from the orders of wardship entered following findings that each committed an assault for the benefit of a criminal street gang. Levy R. was further found to have made a criminal threat during the assault. In addition, he admitted to having committed misdemeanor vandalism, which was alleged in a separate petition. The minors contend that the evidence was insufficient to support the gang findings because there was no showing of the gang’s primary activities. Cristian S. further contends that there was insufficient evidence to support the gang finding because there was no showing that the assault was committed with the specific intent to promote the gang, and that the juvenile court erroneously failed to determine whether the assault was a felony or a misdemeanor. Levy R. further contends that the evidence was insufficient to support the gang finding because a misdemeanor was used as one of the predicate offenses and that one of the conditions of his probation is overbroad.
We conclude that the gang findings must be dismissed based on the lack of evidence of the gang’s primary activities and therefore do not address the minors’ other contentions of evidentiary insufficiency. We further conclude that the juvenile court prejudicially erred in failing to determine whether Cristian S.’s assault was a felony or a misdemeanor and remand to permit the court to make such a determination. Finally, we find merit in Levy R.’s contention that one of the conditions of his probation is overbroad and remand to permit the court to modify that condition of probation. In all other respects, we affirm the orders under review.
BACKGROUND
On the afternoon of July 12, 2006, 19-year-old Avery Martin was at a hamburger stand near Santa Monica High School with his girlfriend and his grandfather. As Martin was walking from the order window, he was approached by Benny Moreno. Moreno asked Martin, “Do you remember me from Santa Monica,” and hit Martin in the head. At that point, minors Cristian S. and Levy R., as well as Johnny J. and Manuel S., also started to punch and kick Martin, who had fallen to the ground. Martin’s grandfather came to Martin’s defense, allowing Martin to get away. As Martin fled, Levy R. and Johnny J. followed, threatening to kill Martin and using the word “nigger.” Johnny J. also pointed a gun at Martin.
In the same proceeding as the one under review here, juvenile petitions were also sustained against Manuel S. and Johnny J., both of whom appealed. On Manuel S.’s appeal, in which he did not raise an argument regarding the sufficiency of the evidence of the primary activities of the gang, we affirmed the order of wardship (In re Manuel S. (May 31, 2007, B193644 [nonpub. opn.]). Johnny J.’s appeal is pending in this court (B193646).
Further evidence established that Martin was acquainted with Moreno, Levy R., and Manuel S., but did not know Cristian S. or Johnny J. Martin’s girlfriend testified that Martin and Moreno did not like each other.
Cristian S. was arrested the day after the incident. He told the arresting officer that he was present at the fight, but denied that he had hit anyone. He further stated that he was a member of the Santa Monica 17 Street gang (SM 17) and that Martin is a member of the Graveyard Crips.
Santa Monica Police Officer Frank Marnell, a gang expert, testified that all the minors involved in this case were members of SM 17. The gang has been in existence for many years, has 120 to 140 members, and is “very territorial.” The hamburger stand at which the assault took place is within the territory claimed by SM 17. Marnell has had at least 100 “contacts” with the gang, “[t]he majority would be loitering and vandalism type calls. All the way up to shootings, ADW’s, robberies, burglaries, the whole gamut of the felonious crimes outlined in 186[.22] of the Penal Code.” Marnell’s “contacts” with the gang included field interviews, arrests, and intelligence gathering.
Marnell continued that SM 17 has had a longstanding rivalry with the Graveyard Crips, a mostly African-American gang which operates in the same territory as SM 17. Martin had had contacts with Marnell and other Santa Monica officers. Martin told the officers that on several occasions he had been chased and beaten by SM 17 members because they thought he was a member of the Graveyard Crips. Marnell was of the opinion that Martin did not belong to the Graveyard Crips, although the brother of Martin’s girlfriend belonged to the gang.
Upon the People resting the case, the minors moved to dismiss the gang allegations for insufficient evidence, arguing among other things that there had been a failure of proof of the predicate offenses. The court commented that proof of the predicate offenses was not required and denied the motions to dismiss.
Neither Cristian S. nor Levy R. presented any evidence in their defense. Following closing arguments by all counsel, the court stated it had re-read the gang enhancement statute and concluded it had erred in holding that the prosecution was not required to prove the predicate offenses. Accordingly, the court allowed the prosecution to reopen its case to recall Officer Marnell.
Marnell then testified based on written documents (which were marked for identification but not received in evidence) that a juvenile petition for robbery had previously been sustained against a SM 17 member and a separate petition for assault had previously been sustained against another member of SM 17. Although Marnell initially thought that the assault was a felony, he had since come to understand that it was a misdemeanor.
The minors objected that a misdemeanor could not be used as a predicate offense under the gang statute. The prosecutor argued that a misdemeanor was sufficient and alternatively requested that he be allowed to introduce evidence of a separate predicate felony offense that had been committed by a SM 17 member. The court ruled that the misdemeanor offense was adequate and sustained the gang allegations against the minors.
In their respective dispositional hearings, Levy R. was placed in a camp community placement program for a maximum term of 10 years 10 months. Cristian S. was placed in a camp community program for a maximum term of 6 years 4 months.
DISCUSSION
1. Primary Activities
The minors contend that the evidence was insufficient to support the gang findings because there was no showing of the gang’s primary activities. We agree.
“The Street Terrorism Enforcement and Prevention Act (STEP Act) was enacted by the Legislature in 1988. ([Pen. Code,] § 186.20 et seq.) Its express purpose was ‘to seek the eradication of criminal activity by street gangs.’ (§ 186.21.) One of the components of the STEP Act is a sentence enhancement provision for crimes committed ‘for the benefit of, at the direction of, or in association with any criminal street gang.’ (§ 186.22, subd. (b)(1).)
“A gang sentence enhancement under section 186.22 must be based upon ‘substantial evidence . . . support[ing a] finding of the existence of a “criminal street gang” whose members engage in a “pattern of criminal gang activity.” [Citations.]’ [Citation.] Section 186.22(f) defines ‘criminal street gang’ for purposes of determining the appropriateness of a gang sentencing enhancement, as follows: ‘[A]ny ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of [section 186.22,] subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.’
“Therefore, the ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) . . .
“. . . In People v. Sengpadychith (2001) 26 Cal.4th 316 [] (Sengpadychith), the [Supreme C]ourt explained: ‘The phrase “primary activities,” as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s “chief” or “principal” occupations. [Citation.] . . .
“The court noted further that ‘[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.’ (Sengpadychith, supra, 26 Cal.4th at p. 324.) It held further that the ‘primary activities’ element might also be satisfied by expert testimony of the type found in Gardeley, supra, 14 Cal.4th 605, where a police gang expert testified that the defendant’s gang ‘was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.]’ (Sengpadychith, supra, 26 Cal.4th at p. 324.)
“‘Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities.’ (Sengpadychith, supra, 26 Cal.4th at p. 323.) Such evidence alone, however, is ‘[n]ot necessarily’ sufficient to establish the ‘primary activities’ requirement. (Ibid.) Indeed, ‘evidence sufficient to show only one offense [enumerated under section 186.22, subdivision (e)] is not enough.’ [Citations.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1221–1223, fn. omitted.)
The Attorney General places great reliance on Marnell’s numerous “contacts” with SM 17 members, which “contacts” included “shootings, ADW’s, robberies, burglaries, the whole gamut of the felonious crimes . . . .” The Attorney General then concludes that a “fair interpretation of Officer Marnell’s testimony relating to the enumerated offenses implied that the commission of those crimes was one of the SM 17 gang’s primary activities.” But here, as in In re Alexander L. (2007) 149 Cal.App.4th 605, 611–612, “[n]o specifics were elicited [in Marnell’s testimony] as to the circumstances of these crimes, or where, when, or how [Marnell] had obtained the information. He did not directly testify that criminal activities constituted [SM 17’s] primary activities.”
Citing People v. Loeun (1997) 17 Cal.4th 1, 4–5, the Attorney General correctly notes that the requisite “‘pattern of criminal gang activity’” can be established by evidence of offenses committed on the same occasion by fellow gang members. But the failure of proof here does not go to the question of “‘pattern.’” And while one may surmise that if a gang engages in a pattern of crimes the commission of those crimes may be one of the gang’s primary activities, common knowledge of gangs and their nefarious activities cannot substitute for the existence of substantial evidence. In short, Marnell’s testimony “was insufficient to establish that ‘the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.’ [Citation.]” (People v. Perez (2004) 118 Cal.App.4th 151, 160.) Accordingly, the gang findings must be reversed.
With respect to whether the gang allegations may be adjudicated again on remand, we note that in People v. Seel (2004) 34 Cal.4th 535, the California Supreme Court determined that when a sentence enhancement “‘is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (Id. at pp. 546–547, quoting from Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [120 S.Ct. 2348].) Relying on Apprendi, the Seel court held a premeditation finding which an appellate court determines is not supported by substantial evidence cannot be retried because premeditation is an element of the crime of attempted murder and not a mere sentencing enhancement. (People v. Seel, supra, 34 Cal.4th at p. 550.)
A defendant is as entitled to a jury trial on the elements of an enhancement statute such as Penal Code section 186.22 as he is on the elements of the underlying offenses. (People v. Sengpadychith, supra, 26 Cal.4th at p. 327.) By parity of reasoning with People v. Seel, supra, 34 Cal.4th 535, further adjudication on the gang allegations is therefore barred under the doctrine of double jeopardy, and on remand the allegations must be dismissed.
2. Determination of Felony or Misdemeanor
The crime of assault is an alternative felony or misdemeanor. (Pen. Code, § 245, subd. (a).) Cristian S. contends, and the Attorney General aptly concedes, that the juvenile court erroneously failed to declare whether the assault in this case was a felony or a misdemeanor and that the matter must be remanded to permit the court to declare the nature of the offense. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) We shall so order.
3. Condition of Probation
At disposition, the juvenile court orally ordered as condition of probation No. 16 that Levy R. have “[n]o dangerous or deadly weapons in your presence or be present where anyone else has one.” The minute order of the dispositional hearing specified as condition No. 16: “Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person.”
Levy R. contends that this condition of probation is overbroad and vague because it does not contain a requirement of knowledge. In In re Sheena K. (2007) 40 Cal.4th 875, 890, the Supreme Court agreed that a knowledge requirement exists, citing the rule that “[a] probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] 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.]” The court further held that issues of vagueness and overbreadth are not forfeited where, as here, the issues are being raised for the first time on appeal. (Id. at p. 879.)
Based on In re Sheena K., supra, 40 Cal.4th 875, the Attorney General aptly concedes Levy R.’s contention and agrees that condition of probation No. 16 should be revised. We shall so order.
DISPOSITION
The findings under Penal Code section 186.22 that Cristian S. and Levy R. committed assault for the benefit of a criminal street gang are reversed and the matters are remanded to the juvenile court with directions to dismiss these findings and, accordingly, to recalculate the minors’ maximum periods of confinement. On remand the juvenile court is further ordered to determine whether the assault committed by Cristian S. was a felony or a misdemeanor and to modify Levy R.’s condition of probation No. 16 to include the requirement that the minor have knowledge that other persons in his presence possess a deadly or dangerous weapon. In all other respects, the orders under review are affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.