Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 07CEJ601525-5 Gary R. Orozco, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before, Wiseman Acting P.J., Levy, J. and Dawson, J.
STATEMENT OF THE CASE
A petition was filed on June 30, 2009, pursuant to Welfare and Institutions Code section 602, subdivision (a) alleging appellant, D.L., committed assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), count one), terrorism for the benefit of a criminal street gang (§ 186.22, subd. (a), count two), and three counts of battery (§ 242, counts three, four & five). The petition alleged a criminal street gang enhancement (§ 186.22, subd. (b)(1)). Counts three through five alleged those offenses were committed within the meaning of section 186.22, subdivision (d).
Unless otherwise designated, statutory references are to the Penal Code.
At the conclusion of the jurisdiction hearing, the juvenile court granted appellant’s motion to dismiss counts three through five. The court found counts one and two to be true as well as the gang enhancement alleged in count one. The court found both offenses to be felonies.
On September 25, 2009, the court committed appellant to the Department of Juvenile Justice, exercising its discretion to make the maximum term of appellant’s commitment five years on count one rather that eight years. The court found count one to be an offense within the meaning of Welfare and Institutions Code section 707, subdivision (b)(14). Appellant contends there was insufficient evidence in count two that he had knowledge that members of the Norteño gang engaged in a pattern of criminal activity.
The court stayed appellant’s term of confinement on count two pursuant to section 654.
FACTS
On April 11, 2009, Darlene Mendoza was hosting a birthday party for her daughter. Max Sanchez, Mendoza’s uncle, attended the party sometime after 8:00 p.m. Sanchez was dropped off by his girlfriend. Sanchez sat down and talked, then called his girlfriend to have her bring him a sweater. When Sanchez went out to meet his girlfriend, he was being followed by appellant and D.A. Sanchez was worried because when he had first arrived, D.A. was looking at him a little weird. According to Sanchez, D.A. was “dogging” him like D.A. had a problem with Sanchez.
As Sanchez was walking up to his girlfriend’s car, appellant and D.A. were walking about 15 feet behind him. As Sanchez talked to his girlfriend, appellant and D.A. started calling out to Sanchez to come over and said to him, “What’s up Bulldog.” Sanchez did not respond to them. Instead, Sanchez called his cousin from his cell phone. Appellant and D.A. went around the corner of the alley as Sanchez talked on his phone. Sanchez picked up the sweater from his girlfriend who exited the car and asked Sanchez who had confronted him.
J.R. ran up to Sanchez demanding to know if Sanchez was a Bulldog and then punched Sanchez in the eye. Sanchez stumbled to his hands and knees. Appellant came running toward Sanchez out of the alley. J.R. punched Sanchez again. When Sanchez tried to defend himself from J.R., appellant started kicking Sanchez’s legs. Sanchez was attempting to block the many hits, kicks, punches, and stomps.
J.R. was adjudicated in the same jurisdiction hearing with appellant after the juvenile court granted the prosecutor’s motion to consolidate the two actions.
As J.R. continued attacking Sanchez, appellant kicked Sanchez’s head, side, and ribs. As appellant kicked Sanchez, J.R. kept hitting Sanchez’s head. D.A. joined the attack trying to keep Sanchez on the ground and kicking at Sanchez’s feet so Sanchez could not stand. Sanchez jumped into the passenger seat of his girlfriend’s car and she drove him away. Before the incident, Sanchez did not know appellant. Sanchez later identified appellant from a photographic lineup.
Roxanne Sanchez Contreras and Alma Contreras were also at the party. Roxanne and Alma noticed a number of males exiting a garage three houses down the street. Roxanne heard the men yelling “gang stuff, ” including slurs. Roxanne heard people yelling “Norteño” or “norte” at the party. Roxanne saw people attacking Sanchez. They were hitting, punching and kicking Sanchez every way they could. Sanchez was on his back until he moved onto his stomach to crawl away.
Because the witnesses have the same last name, we refer to them by their first names.
Alma and her sister were telling the attackers to stop and to leave. Roxanne saw J.R. kicking Sanchez and appellant “socking” him. Roxanne saw J.R. kick Sanchez four or five times in the back. The other people were also kicking Sanchez. Roxanne heard the attackers call Sanchez “mutt.” Roxanne saw appellant kick and punch Sanchez. She remembered appellant because he also pushed down Alma’s nine-year-old daughter. The attackers continued to hit and kick Sanchez as he crawled away from them for a distance of about 15 feet. Roxanne testified appellant was wearing a red and white jersey. Roxanne identified appellant and J.R. at the hearing.
Alma saw eight men coming out of a garage. The men were wearing clothing that was red, white, and black. Alma saw another relative running away from the alley and then saw Sanchez being hit and kicked by appellant, J.R., and D.A. Alma further explained that as Sanchez was on his hands and knees on the ground, appellant was hitting, punching, and kicking Sanchez. Although appellant’s back was facing toward Alma, he turned around so she could see his face. Appellant struck Sanchez more than five times. J.R. was also punching and kicking Sanchez, striking him more than five times. Alma identified appellant and J.R. at the hearing. Alma described the shirt appellant was wearing during the attack as burgundy.
The parties stipulated the Norteño gang is a criminal street gang within the meaning of section 186.22, the gang has a common name and identifying sign, and members of the gang have as one of their primary activities the commission of crimes as defined by section 186.22, subdivision (e). The parties stipulated that Norteño gang members, whether acting alone or together, engaged in a pattern of criminal activity for one of the predicate offenses and that this criminal activity occurred after September 26, 1988. The parties further stipulated the most recent predicate crime occurred within three years of one of the earlier crimes and that the predicate crimes were committed on separate occasions by two or more persons.
The parties also stipulated that the only two issues remaining to be resolved were whether the minors were members of the Norteño gang and whether the offenses they committed were for the benefit of or in association with the Norteño gang.
Detective DeWayne Chatman was employed by the Fresno County Sheriff’s Department in the Multi-Agency Gang Enforcement Consortium and worked for the sheriff’s department for the previous 11 years. Chatman’s assignment is to investigate and track Norteño gang members in Fresno County. Norteño gang members wear the color red. Chatman believed appellant and J.R. were active participants in the Norteño gang on the day of the attack. On six earlier occasions, appellant identified himself as a Norteño. Appellant has gang tattoos, including “HPN” which stands for Huron Parkside Norteños, a subset of the Norteño gang. The term “mutts” is a derogatory, slang term for people who are part of the Bulldog criminal street gang.
SUFFICIENCY OF EVIDENCE OF KNOWLEDGE
Appellant contends the evidence is insufficient to support the juvenile court’s true finding that appellant committed count two, the offense of active participation in a criminal street gang (§ 186.22, subd. (a)). Appellant contends there was no evidence he had knowledge that members of the Norteño gang engage or have engaged in criminal activity. Appellant argues he and J.R. are culpable as aiders and abettors and that his actions and those of J.R. cannot both constitute the requisite two predicate offenses for count one for him to have knowledge of a pattern of criminal activity. We disagree and will affirm the juvenile court’s judgment.
In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 186.22, subdivision (a) makes it an offense for anyone “who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ….” Evidence of the elements of the substantive offense of section 186.22, subdivision (a) are that the defendant: (1) is more than a nominal member of a criminal street gang, (2) he or she had knowledge the gang’s members engage in or have engaged in a pattern of criminal gang activity, and (3) he or she willfully promoted, furthered, or assisted, in felonious criminal conduct by members of the gang. (People v. Lamas (2007) 42 Cal.4th 516, 524.) The conduct promoted by the defendant must be felonious conduct, not mere misdemeanor conduct. (Id. at pp. 524-525.)
In People v. Gardeley (1996) 14 Cal.4th 605, the California Supreme Court held that the prosecution there had proven a “pattern of criminal gang activity” by presenting evidence of the charged offense and of one other offense committed on a prior occasion by one of the defendant’s fellow gang members. (Id. at p. 625.) In People v. Loeun (1997) 17 Cal.4th 1 (Loeun), the court addressed the question of whether the requisite “pattern” could also be established “by evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.” (Id. at p. 5, italics added.) The court concluded this was permissible. (Ibid.)
In Loeun, the defendant struck the victim several times with a baseball bat. Seconds later, another member of the defendant’s group struck the victim with a tire iron. (Loeun, supra, 17 Cal.4th at p. 6.)
The Loeun court reasoned that “[i]n Gardeley, not only were the predicate offenses committed on separate occasions, but they were also perpetrated by two different persons. The pertinent statutory language does not require proof, however, that the two or more predicate offenses must have been committed both on separate occasions and by different persons. Under the statute, the pattern of criminal gang activity can be established by proof of ‘two or more’ predicate offenses committed ‘on separate occasions, or by two or more persons.’ [Citation.] The Legislature’s use of the disjunctive ‘or’ in the language just quoted indicates an intent to designate alternative ways of satisfying the statutory requirements. [Citations.] This language allows the prosecution the choice of proving the requisite ‘pattern of criminal gang activity’ by evidence of ‘two or more’ predicate offenses committed ‘on separate occasions’ or by evidence of such offenses committed ‘by two or more persons’ on the same occasion. Therefore, when the prosecution chooses to establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses committed on a single occasion by ‘two or more persons, ’ it can, as here, rely on evidence of the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (Loeun, supra, 17 Cal.4th at pp. 9-10.)
“[P]roof of the ‘two or more’ predicate offenses as specified by … subdivision (e) of section 186.22 need not consist of evidence that different Penal Code provisions were violated. Rather, the commission of two acts violating the same penal provision (for example, two robberies) would satisfy the statutory requirement of ‘two or more’ predicate offenses so long as the robberies satisfied the further statutory requirement of having been committed ‘on separate occasions, or by two or more persons.’ [Citation.] Otherwise, a gang that limited its criminal behavior to one type of criminal activity, such as committing robberies, ‘would not be subject to the [STEP Act] no matter how many times its members committed that crime.’ [Citation.]”
In Loeun, the court rejected a contention that due process compelled a construction of the statute requiring the prosecution to prove one predicate offense predating the crime charged. (Loeun, supra, 17 Cal.4th at p. 11.) In People v. Zermeno (1999) 21 Cal.4th 927 (Zermeno), however, it clarified that “Loeun involved two separate assaults by two different assailants, each one subject to criminal liability as a direct perpetrator, not merely as an aider and abettor.” (Zermeno, supra, 21 Cal.4th at p. 933.) Where, by contrast, one gang member is the actual perpetrator and the other is liable solely as an aider and abettor, the combined activity of the two constitutes but one offense. (Id. at pp. 931-932.)
The present case falls squarely within the holding of Loeun. Even if we assume arguendo that appellant was unaware of the prior criminal activities of the Norteño gang, he, J.R., D.A., and other fellow gang members were actively and separately assaulting Sanchez. Appellant was clearly aware of his own assault of the victim and was working in immediate and close proximity, as well as in coordination with, J.R. and D.A.
There was a brief discussion in the prosecutor’s closing argument between the prosecutor and the court concerning the appellant’s culpability and whether appellant was responsible for the conduct of D.A. and J.R. for their attacks on Sanchez within an aid and abet theory. The court, seeking clarification of the prosecutor’s comment asked, “Even if he [appellant] only threw one punch, if the others threw eight punches each, under an aiding and abetting theory, that’s how he would be, just as responsible?” The prosecutor replied appellant was “absolutely culpable.” The prosecutor went on to argue that appellant’s attack on Sanchez was lengthy and involved more than a few kicks and punches. Later, referring to J.R., the prosecutor stated he thought he remembered witnesses testifying that both J.R. and appellant had kicked the victim when he was on the ground. The prosecutor again mentioned a potential aid and abet theory for J.R.’s culpability for attacking the victim with the same force as appellant.
We agree with respondent’s interpretation of the juvenile court’s comment concerning appellant as seeking clarification of the prosecutor’s argument, not a finding that either juvenile was culpable on an aid and abet theory. We find the prosecutor’s reference to an aid and abet theory with regard to the juveniles as, at most, an alternative theory of liability based on his potentially imprecise memory of the witnesses’ testimony. In fact, there was overwhelming evidence from the three key witnesses that both J.R. and appellant physically attacked Sanchez with blows from their fists and kicks from their feet to Sanchez’s head and body while fellow gang members yelled gang slogans and epithets at Sanchez before and during their attack. Prior to the attack, appellant was with D.A. when D.A. accused Sanchez of being a member of the Bulldog gang. This indicates appellant was aware of the gang-related purpose of the attack.
There was no evidence at the jurisdiction hearing that appellant threw only a single punch or that he was passively aiding and abetting fellow gang members. Because neither appellant nor coparticipant, J.R., was a mere aider and abettor, this case is factually inapposite to Zermeno.
Both appellant and J.R. were culpable for both the assault allegation in count one and the gang allegation in count two. In making its findings that both counts were true as to each juvenile, the juvenile court did not rely on or refer to an aid and abet theory. We reject appellant’s comparison of his case to Zermeno and conclude there was sufficient evidence that he had knowledge his criminal street gang was involved in criminal activity through his own actions and those of his coparticipant, J.R., on April 11, 2009.
DISPOSITION
The judgment of the juvenile court is affirmed.
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)