Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge, Super. Ct. No. JW108585-02
Grace Lidia Suarez, 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, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Levy, J.
INTRODUCTION
Appellant, Dante S., was charged in petition filed on February 16, 2007, pursuant to Welfare and Institutions Code section 602, that he defaced personal property, a misdemeanor (Pen. Code, § 594, subd. (b)(2)(A)) and violated the terms of his probation. At the jurisdictional hearing on April 5, 2007, the juvenile court found the allegations true. At the conclusion of the dispositional hearing on May 17, 2007, the court committed appellant to Camp Irwin Owen.
Unless otherwise noted, all statutory references are to the Penal Code.
The court further ordered appellant to register with the chief of police or the sheriff that he is a gang member pursuant to sections 186.30, subdivision (b)(3) and 186.22. On appeal, appellant contends and respondent concedes that there was insufficient proof adduced at the jurisdictional hearing to prove appellant’s offense was gang-related. We agree and will remand for further proceedings.
FACTS
On December 6, 2006 at about 8:00 a.m., Jose Munoz was driving past the Red Cross building on 18th Street in Bakersfield when he saw four or five minors marking the Red Cross sign. Munoz slowed and looked at the minors, hoping to frighten them away. The minors proceeded “to flip [Munoz] the bird” and laughed at him.
Munoz identified the photographs of the Red Cross sign that showed the graffiti and explained the photographs accurately depicted what he saw. Munoz identified appellant as one of the minors present. Munoz saw appellant write purple graffiti under a large Kern County Chapter sign, depicted in another photograph.
Bakersfield Police Department Detective Lance O’Nesky was assigned to the Graffiti Habitual Offender Suppression Team (GHOST). O’Nesky took photographs of each minor and questioned appellant On December 6, 2006. O’Nesky directed another officer to take pictures of the graffiti. Appellant told O’Nesky that he did not write any of the graffiti. Appellant told O’Nesky he was a member of the Country Boys gang and his moniker was De Loc.
O’Nesky explained that appellant was searched at some point, but O’Nesky was unaware that any evidence was found on him. O’Nesky searched the area around the sign a few hours later and found nothing. O’Nesky was unaware of the significance, if any, of the color purple. O’Nesky found no graffiti related writing on any of appellant’s clothing.
The belts of two other juveniles arrested that day had the letters “SPK” written inside them. The letters “ESK” and “WS” were written in purple on one belt buckle. O’Nesky was unaware of whether any of the writing pertained to the County Boy Crips. Another officer told O’Nesky that SPK stood for Skate Park Kings.
Appellant testified the he and his companions were waiting for it to be 8:15 a.m. so they could go to school. He noticed Munoz staring at him. Appellant denied writing on the sign and explained that he was not a tagger. Appellant denied having a purple marker and noted he gets searched at school every day. Appellant did not see his companions writing that day, but had noticed graffiti at that location on prior occasions.
Appellant said that although he had been associated with the Country Boy Crips, he changed his life and was no longer associated with the gang. Appellant’s mother testified that her son never possessed markers and she had never seen him tagging. She further explained that appellant was not a member of a gang.
DISCUSSION
Appellant contends, and respondent concedes, the evidence was insufficient to support the court’s finding that the admitted offense was “gang related” within the meaning of section 186.30, subdivision (b)(3). Specifically, he asserts the record does not prove that one of the organization’s primary activities was the commission of any crime enumerated in section 186.22, subdivision (e)(1) through (25), having a common name or symbol, and whose members individually or collectively have engaged in a pattern of criminal gang activity.
Whether appellant’s offense was gang-related is subject to proof by a preponderance of the evidence. (In re Jorge G. (2004) 117 Cal.App.4th 931, 944.) Thus, the court’s finding that the instant offense was gang-related will be supported by sufficient evidence only if the court reasonably could have found, based on a preponderance of evidence that is reasonable, credible, and of solid value supporting “each element of gang-relatedness.” (Ibid.) A crime is gang-related if it pertains to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). (Ibid.) “The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity.” (Ibid.)
“To support element (3), there must be substantial evidence that the commission of offenses enumerated in section 186.22, subdivision (e), is a primary activity of the gang. ‘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.’ [Citation.] However, evidence sufficient to show only one offense is not enough.
“‘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.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.... [¶] Sufficient 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.’ Citation. [¶] We recognize that a gang’s primary activities may be shown though expert testimony [citations] ….” (In re Jorge G., supra, 117 Cal.App.4th at pp. 944-945.)
Here, appellant admitted he was a member of a gang. He denied the incident itself. There was no evidence whatsoever before the trial court that tended to prove that the gang to which appellant claimed adherence was in fact a group that, as one of its primary activities, committed any of the crimes enumerated in section 186.22, subdivision (e)(1) through (25). Appellant’s admission to the officer that he was a gang member went only part of the way to the necessary proof. However appellant may have characterized the group with which he associated, it could not be found to be a gang within the meaning of section 186.30 unless and until the prosecutor proved that particular group was of the type described in section 186.22, which the prosecutor failed to do. We will therefore reverse the finding and the associated order that appellant register as a gang member.
The People may present evidence on the topic on remand. As we said in Jorge G., “[a]lthough we reverse the order to register, we conclude the People are entitled to present sufficient evidence in light of the definition and standard of proof that we set forth [in the opinion]. [¶] In doing so, we conclude that a second disposition hearing will not violate the prohibition on double jeopardy.... [¶] Nor would the imposition of registration upon remand, if the court makes the requisite findings based on sufficient evidence, be prevented by the doctrines of res judicata, collateral estoppel, or law of the case.” (In re Jorge G., supra, 117 Cal.App.4th at pp. 946-947.)
DISPOSITION
The court’s finding that appellant’s violation of section 594, subdivision (b)(2)(A) was gang-related within the meaning of section 186.30(b)(3), and the court’s order that appellant register as a gang member pursuant to that statute, are reversed. The case is remanded to juvenile court for a limited dispositional hearing for the prosecution to show, if possible, that appellant’s offense was gang-related. After the hearing, the court shall enter the appropriate order. The judgment is otherwise affirmed.