Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NJ20849, Gibson Lee, Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
E.F., a minor, appeals from the order continuing wardship (Welf. & Inst. Code, § 602) entered following a finding that he violated probation previously imposed after his admissions that he committed vandalism causing less than $400 damage (Pen. Code, § 594, subd. (a)) and possessed a deadly weapon (Pen. Code, § 12020, subd. (a)). The court ordered appellant placed in camp. Appellant claims the trial court committed revocation hearing and dispositional errors. We affirm the order continuing wardship.
FACTUAL SUMMARY
The record reflects that in November 200 5, appellant committed vandalism, causing less than $400 damage. The record also reflects that on February 13, 2006, appellant possessed a deadly weapon, that is, a shuriken, also known as a ninja star.
CONTENTIONS
Appellant contends (1) there was insufficient evidence that he knew that the persons with whom he was detained were gang members, and (2) probation condition Nos. 15 and 15-A violated his right to due process.
DISCUSSION
1. There Was Sufficient Evidence That Appellant Knew His Companions Were Members of the Westside Longos Gang.
The gang is alternatively referred to in the record as the Westside Longos gang and the Westside Longo gang. We will refer to the gang as the Westside Longos gang except where it is quoted otherwise.
a. Pertinent Facts.
(1) The Underlying Proceedings.
The record reflects that a juvenile petition filed in January 2006 alleged, inter alia, that appellant committed the above mentioned vandalism (count 3). A petition filed in February 2006, alleged, inter alia, that appellant possessed the above mentioned deadly weapon (count 1). Pursuant to negotiations, on March 8, 2006, appellant admitted the above two counts. The court ordered appellant placed home on probation, and imposed on him various probation conditions.
One of the probation conditions which the trial court imposed on March 8, 2006, was, “The minor is to stay away from any known member of the Westside Longo Gang.” On July 26, 2006, the People filed a Welfare and Institutions Code section 777, subdivision (a) notice alleging, inter alia, that appellant violated a condition of his probation because he “associated with [J.R.].”
The notice filed by the People referred to the person as “[S.R.]” The pertinent police report referred to this minor as J.R. and as S.R. The notice was amended to refer to that person as J.R. There is no dispute J.R. and S.R. are the same minor. We will refer to that minor as J.R.
(2) The Probation Violation Hearing.
(a) The People’s Evidence.
On August 16, 2006, the court conducted a probation violation hearing on the above allegation. The evidence at that hearing established that about 2:30 p.m. on July 27, 2006, Long Beach Police Officer Luis Torales and his partner saw appellant and two other minors huddled outside a Long Beach garage. The two other minors were J.R. and C.M. Torales believed the three had been drinking. A brown paper sack containing an alcoholic beverage was on the ground next to J.R. Torales approached the sack, looked down at it, and saw the beverage. Appellant was no more than four feet from the sack.
Torales recognized J.R., C.M., and appellant as Westside Longos gang members to whom the officers had spoken in the past. Two days before, J.R. had admitted to Torales that J.R.’s moniker was Mousey. During an arrest earlier that year, appellant had been extremely belligerent and had referred to the “Longos.”
After Torales saw the beverage in the sack, he notified the three minors that they were in violation of a Westside Longos gang injunction. After bringing the three minors to his car, Torales told them that they could not have an alcoholic beverage or be within 10 feet of one. C.M. yelled, “‘It’s mine.’” Torales testified, “We notified them it didn’t matter if none of the Longos, [J.R.] and [appellant], were drinking, so long as they were near an alcoholic beverage.” After Torales notified the three that they were in violation of the gang injunction, the three merely nodded and put their heads down. J.R. said, “‘Well, it’s not my beverage. I wasn’t drinking it.’” The three minors were arrested.
Long Beach Police Detective Hector Gutierrez, a gang expert, testified as follows. Gutierrez was familiar with the Westside Longos gang. In Gutierrez’s opinion, J.R. was a member of that gang. Gutierrez’s opinion was based on the department’s intelligence database. He also had spoken to officers who previously had contacted J.R., and they knew him as a Westside Longos gang member. Appellant was a “self-admitted” member of the gang, and was associated with gang members in the Westside Longos area.
(b) Defense Evidence.
In defense, appellant, who had been convicted of possessing a ninja star, testified as follows. A couple of weeks before his August 16, 2006 testimony at the hearing, appellant was arrested with others, including J.R. and another male. He was helping J.R.’s relatives move out of an apartment. Appellant had been in a garage facing an alley.
Appellant did not know J.R. well, and did not know that J.R. was a Westside Longos gang member. Appellant had met the other male that day, and did not know he was a Westside Longos gang member. Appellant did not know there was an alcoholic beverage in the sack.
During cross-examination, appellant testified as follows. Appellant was aware of the Westside Longos gang. He guessed he lived in the gang’s territory, but did not know. Appellant had been served with an injunction containing a map of the area of the Westside Longos gang. Appellant lived in that area. In November 2005, police arrested appellant for writing “‘WS’” on a wall, but he did not write it. At the time, appellant possessed a marker.
Appellant later testified as follows. Appellant denied remembering having said that he had received the Westside Longos gang injunction, and denied remembering having received it. Appellant denied knowing J.R. The prosecutor asked if appellant knew J.R. at all, and appellant replied he had a couple of classes with J.R. in middle school. Appellant denied “really” knowing J.R. Appellant did not know what kind of person J.R. was. Police told appellant that they believed he was “‘hanging out’” with Westside Longos gang members.
On some date, police approached appellant about his possession of a pen. There was graffiti on a wall near appellant, and the graffiti said “WSL.” Appellant knew that that stood for Westside Longos.
As of the date of his testimony, appellant had been living at his address for about 11 years. No person had ever told appellant that the person was a Westside Longos gang member. Appellant did not know any Westside Longos gang members. No one called appellant Mookie, and appellant denied telling police that someone called him Mookie.
(c) Rebuttal and Surrebuttal Evidence.
On February 13, 2006, Torales was with another officer when Torales saw appellant, S.R., and E.L. congregating in an alley containing a large amount of Westside Longos gang graffiti. Torales detained them and asked them what they were doing there. They replied that they were just “hanging out.” Torales recovered a ninja star from appellant. After appellant was transported to youth services, Torales asked him if he were a Westside Longos gang member. Appellant replied he was not, but said “‘I do hang out with the Longos and they commonly call me Mookie.’” The parties stipulated that a detective would testify that J.R. was a member of the Westside Longos gang. In surrebuttal, appellant’s father testified that in the beginning of 2006, Torales had verbally harassed appellant.
At the conclusion of the hearing, the court indicated the case turned on witness credibility. The court found that appellant’s testimony was not credible, found him in violation of probation, and later ordered him placed in camp.
b. Analysis.
Appellant claims there was insufficient evidence that appellant knew that the persons with whom he was detained on July 26, 2006, were members of the Westside Longos gang. We disagree.
Appellant does not expressly dispute that S.R. was a member of the Westside Longos gang. Torales and Gutierrez testified S.R. was a member of that gang, and the parties effectively stipulated he was a member of that gang. Moreover, there was ample evidence that appellant was a member of the Westside Longos gang. Torales testified the officers knew appellant was a member of that gang. Gutierrez testified appellant had admitted he was a member of that gang. Appellant concedes “one member of a gang would likely know another of the same gang.”
Moreover, there is no dispute that on July 26, 2006, appellant was associating, and detained, with J.R. Torales saw appellant, J.R., and C.M. huddled together in an alley and believed they had been drinking. Appellant, during his testimony, conceded he had been with J.R.
As mentioned, the court told appellant on March 8, 2006, that he was to “stay away from any known member of the Westside Longos gang.” On July 26, 2006, Torales told appellant, J.R., and C.M. that they were in violation of a Westside Longos gang injunction prohibiting members from possessing, or being within 10 feet of, an alcoholic beverage. Torales also told the three minors that it did not matter if “none of the Longos, [J.R.] and [appellant], were drinking” as long as they were near an alcoholic beverage. Torales further told the three that they were in violation of the gang injunction. Torales, by these statements, was effectively accusing appellant of associating with Westside Longos gang members, including J.R.
Our Supreme Court has observed, “‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’” (People v. Riel (2000) 22 Cal.4th 1153, 1189, italics added.) Torales’s statements accused appellant of associating with Westside Longos gang members, including J.R. Appellant did not deny the accusations. The fact that the court had ordered appellant to stay from Westside Longos gang members normally would have called for such a denial from appellant, since Torales’s accusations, if true, meant appellant had violated the court’s order and a condition of his probation. Appellant’s failure to deny the accusations amounted to admissions that he knew J.R. was a Westside Longos gang member.
Moreover, when Torales told appellant that the three minors were in violation of the gang injunction, appellant merely nodded and put his head down. This was not mere silence but nonverbal communicative conduct which implied appellant’s knowledge that the three of them, including J.R., were Westside Longos gang members.
The trial court’s conclusion that appellant’s testimony was not credible was amply supported by the evidence. Appellant testified he was aware of the Westside Longos gang and guessed he lived in the gang’s territory. However, he later admitted he had lived at his home for 11 years, he had been given a map of the gang’s territory, and his home was in that territory. Still later, appellant denied remembering having testified that he had received the injunction, and denied remembering having received it. Although he had lived in Westside Longos gang territory for 11 years, he denied knowing any members of that gang.
Moreover, appellant denied knowing J.R., but later admitted that appellant and J.R. had shared classes at middle school. Appellant subsequently claimed he did not “really” know J.R. Further, appellant denied knowing anyone who was a Westside Longos gang member, denied that anyone called him Mookie, and denied telling police that anyone called him Mookie. However, Torales testified appellant told Torales that appellant “‘hang[s] out with the Longos and they commonly call me Mookie.’” The trial court reasonably could have concluded that much of appellant’s testimony was fabricated to conceal, inter alia, the fact that he associated with persons, like J.R., whom appellant knew were members of the Westside Longos gang.
There is no dispute that the standard of proof at the probation violation hearing was preponderance of the evidence. (Welf. & Inst. Code, § 777, subd. (c).) We conclude there was sufficient evidence that when appellant associated with S.R. on July 26, 2006, appellant violated the condition of his probation that he “stay away from any known member of the Westside Longo Gang,” including sufficient evidence that appellant knew S.R. was a member of that gang.
2. Modification of Appellant’s Probation Conditions Is Appropriate.
a. Pertinent Facts.
The record reflects that, at appellant’s March 8, 2006 disposition hearing, the court, imposing probation conditions, stated as follows: “[15] Do not associate with co-minors, and specifically, [J.R.] and [E.L.] . . . and this includes staying away from the [Westside] Longo gang . . . .” The court later stated, “15-A, do not participate in any type of gang activity.” The March 8, 2006 minute order reflects, “15 Do not associate with . . . co-minors . . . [J.R. and E.L.].” The bottom of the minute order also reflects, “The minor is to stay away from any known member of the Westside Longo Gang.”
b. Analysis.
Appellant claims that probation condition No. 15, that he “stay away from any known member of the Westside Longo Gang” must be modified to reflect an appropriate knowledge requirement. We agree the condition must be modified to reflect that it refers to any person known by appellant to be a member of that gang. (Cf. In re Justin S. (2001) 93 Cal.App.4th 811, 816; People v. Lopez (1998) 66 Cal.App.4th 615, 628-629, 638; see In re Sheena K. (2007) 40 Cal.4th 875, 892.)
Appellant also claims, with respect to probation condition No. 15-A, that the word “gang” in that condition must be defined to refer to a criminal street gang. We agree the condition should be so modified. (People v. Lopez, supra, 66 Cal.App.4th at pp. 634, 638.) We reject respondent’s arguments that appellant waived the issues by failing to raise them below. (Cf. In re Sheena K., supra, 40 Cal.4th at p. 889; In re Justin S., supra, 93 Cal.App.4th at p. 815.)
DISPOSITION
The order continuing wardship is modified by modifying (1) probation condition No. 15 to read “stay away from any person known to you to be a member of the Westside Longo Gang,” and (2) probation condition No. 15-A to read “Do not participate in any type of gang activity. For purposes of the immediately preceding sentence, the word ‘gang’ means a ‘criminal street gang’ as defined in Penal Code section 186.22, subdivisions (e) and (f).” As modified, the order continuing wardship is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.
On August 14, 2006, the probation department also filed a Welfare and Institutions Code section 777, subdivision (a) notice alleging, inter alia, the same violation alleged in the notice filed by the People.