Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD058453, Valeriano Saucedo, Judge.
Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
It was alleged in a juvenile wardship petition (Welf. & Inst. Code, § 602) that appellant E.H., a minor, committed assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and that in committing that offense he acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b)(1) (section 186.22(b)(1)). At the jurisdiction hearing, the juvenile court found both allegations true. Subsequently, at the disposition hearing, the juvenile court continued appellant as a ward of the court, ordered that appellant be confined in the Youth Correctional Center Unit for a period of 168 days to 365 days and placed him on probation with various terms and conditions, including that he (1) “[h]ave no contact in person, in writing, by telephonic or electronic means, or directed through a third party with [G.J.], [or] any person known to [appellant] to be a victim of [appellant’s] offense”; and (2) “[n]ot use, possess, or be under the influence of any alcoholic beverage or illegal or intoxicating substance, or possess any associated paraphernalia.”
We refer to these probation conditions, respectively, as the no-contact condition and the drug/alcohol condition. We note that the no-contact condition, which is set forth in the record in a printed form, also forbids contact with any person “identified in Attachment 19b, Victim Identification Form.” Since no “Attachment 19b” appears in the record, we construe the language quoted in this footnote as surplusage, and not part of the no-contact condition.
On appeal, appellant argues that the evidence was insufficient to support the true finding on the criminal street gang enhancement allegation, and that the no-contact and drug/alcohol conditions are unconstitutionally vague and overbroad. We will modify the challenged probation conditions and affirm the judgment as modified.
FACTS
All references to April 7 are to April 7, 2008.
C.M. (C.) testified to the following. At approximately 4:00 p.m. on April 7, C., age 14, and his friend G.J. (G.) were walking along La Vida Street when a male minor approached G., who was wearing a maroon shirt, and said, “Loco Park.” G. “said something back,” at which point the minor punched G. and the two began to fight. While they were fighting, appellant “ran out of the house” carrying a bat. Appellant hit G. with the bat, at which point G. and C. ran off. C. was wearing a red shirt.
Police Officer Andy Swarthout testified that at approximately 3:51 p.m. on April 7, he went to the area of La Vida to investigate a report of an assault with a deadly weapon and there made contact with a minor, K.J. (K.). He further testified that K. told him the following. Appellant and another minor, H.H. (H.) “stepped out of the house.” Appellant was holding a bat. H. then “took the bat from [appellant]” and, “using both hands, … struck the victim an unknown [number] of times in the upper torso and back area[.]” Appellant “was … punching and kicking the victim while he was on the ground[.]” Both appellant and H. were, at one point, “standing outside of the house yelling and throwing gang signs.”
The People offered the foregoing to impeach K., who testified just prior to Officer Swarthout. K. testified to the following. She is 15 years old. She did not remember telling Officer Swarthout she saw two persons “standing outside the residence on La Vida yelling and throwing gang signs at the victim.” She did not know who was holding the baseball bat because she “wasn’t really there.” She did not tell the officer she saw one person “take the bat with both hands and strike the victim an unknown number of times in the upper torso and back.” She did not recall telling the officer she saw “one of the suspects punch and kick the victim while he was on the ground.” She did not recall identifying appellant as the “suspect carrying the baseball bat, or identifying [H.] as the individual that was punching and kicking the victim.” When she spoke to the officer, there was an 11-year-old girl standing beside her. K. made a statement to police officers, but “anything [she] might have said about seeing somebody with a bat or somebody fighting was because that little girl had told [her] that ….”
Officer Swarthout testified that there was a “smaller female” standing near K. “on the side,” but K. never, at any time, indicated that she (K.) “had actually [seen] nothing,” nor did K. say that she was relating to the officer what the “smaller female” had seen. The officer also testified that K. “state[d] she had prior contacts with [H.] and [she] indicate[d] that she still believes he’s extremely violent ….”
Police Officer Matt Doherty testified to the following. He made contact with C. and G. at approximately 3:50 p.m. on April 7. C. was wearing “a red shirt with the white logo of TC on it ….” The officer asked C. why he was wearing that shirt, and C. responded that “he backs his homies that are down with Nortenos.” C. indicated he and G. knew they were walking by “a known Sureno house.”
Gang Evidence
The court ruled that Officer Dwight Brumley of the gang suppression unit was qualified to testify as an expert on criminal street gangs. Officer Brumley testified that the Surenos are a criminal street gang; Loco Park is a “subclique,” i.e., a “smaller part of,” the larger Sureno gang; and the Nortenos are a rival gang of the Surenos.
With regard to whether appellant was a criminal street gang member, Officer Brumley testified to, inter alia, the following: A June 2007 booking record indicated appellant “claimed southern gang affiliation ….” A November 2007 police report indicated appellant “stated that he was a Sureno gang member and had been claiming membership for approximately one year.” Appellant has “LPX3” tattooed on his upper left arm. If a person has that tattoo, “[that person is] actually a Loco Park gang member.” In November 2007, Officer Brumley searched the bedroom that appellant shared with H., appellant’s brother, and found various items indicating gang affiliation. Officer Brumley spoke with appellant on April 4, 2008, at which time appellant “admitted to Loco Park membership” and stated he became a member when he was approximately 13 years old.
The prosecutor, in his direct examination of Officer Brumley, posited the following hypothetical situation: Two male juveniles wearing red shirts, one of whom is wearing a bright red shirt with the letters “TC” on it, are walking down the street when another person (first assailant) approaches and says, “Loco Park.” At that point “words are exchanged,” and the first assailant “is now punching ….” Subsequently, another person “brings out a baseball bat to [the first assailant], and then they start hitting the people in the red shirts.” The prosecutor then asked, “In your opinion, would that promote or benefit the Loco Park Sureno gang in any way?”
Officer Brumley opined as follows: The red shirt with the letters “TC” on it “would represent Tulare County Norteno because of the color red and the white ‘TC.’” The actions of the two assailants, including “yelling ‘Loco Park,” would “show[] … dominance or superiority over the Norteno gang members,” and increase the gang’s reputation for violence by communicating to “neighbors, witnesses, anybody that may hear of the incident, that the Loco Park Surenos are a violent group of individuals ….” Such a reputation would help gang members “get respect” from rival gang members, “witnesses and citizens.” As a result, “Pretty much the gang can get away with whatever they want because there are no witnesses.”
Officer Brumley further opined that a person “com[ing] out of a home with a bat and provid[ing] it to [a person] attacking the person in red would … be [acting] in furtherance of a gang” because in gang culture, gang members are obligated to “com[e] to the assistance of [another gang member] in the fight.” Such action would benefit the gang because of the “fear and intimidation that it creates among … potential witnesses ….”
DISCUSSION
Sufficiency of the Evidence of Gang Enhancement
We review the sufficiency of the evidence to support an enhancement using the same substantial evidence standard we apply to a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) Thus, we apply the following principles to appellant’s challenge to the section 186.22(b)(1) gang enhancement: “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Only by a clear showing that “‘“on no hypothesis whatever is there sufficient substantial evidence to support the verdict”’” will a conviction be reversed. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) “We resolve all conflicts in favor of the judgment and indulge all reasonable inferences from the evidence in support of the judgment. [Citation.] This standard applies to convictions resting primarily on circumstantial evidence.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 321.)
Section 186.22(b)(1) provides for a sentence enhancement for any person who commits a felony where the prosecution proves such offense was committed (1) “for the benefit of, at the direction of, or in association with any criminal street gang,” (2) “with the specific intent to promote, further, or assist in any criminal conduct by gang members ….” With respect to the second element, “[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Gang membership alone does not prove the requisite specific intent. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [“While evidence established the minor has an affiliation with the Nortenos, membership alone does not prove a specific intent to use the knife” for a gang-related purpose, rather than personal self-defense].) “‘The crime itself must have some connection with the activities of a gang ….’” (Ibid.)
Appellant does not dispute that the evidence was sufficient to support the first prong of the gang enhancement. We agree. Appellant’s argument is that there was insufficient evidence to support the juvenile court’s finding on the second prong, i.e., that appellant acted with the “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22(b)(1), italics added.) He argues that the evidence established that in “running out of the home with a bat to intervene,” he acted not with the gang-related specific intent required under the statute, but with a non-gang-related intent, viz., “the intent to benefit his younger brother.” There is no merit to this contention. From Officer Swarthout’s testimony that, according to K., both appellant and his brother were “throwing gang signs,” the court reasonably could have concluded that appellant acted with the requisite gang-related specific intent.
Appellant suggests that Officer Swarthout’s testimony as to what K. told him is entitled to no consideration because, he asserts, K.’s account of the altercation as reported by the officer was contradicted in some respects by other evidence, e.g., the testimony of K. herself, and therefore the officer’s testimony was not credible. This contention too is without merit. As indicated above, we must “resolve all conflicts in favor of the judgment and indulge all reasonable inferences from the evidence in support of the judgment.” (People v. Villalobos, supra, 145 Cal.App.4th at p. 321.) When we apply this principle, we conclude that although the evidence was susceptible to multiple interpretations, we must “indulge [the] reasonable inference[]” consistent with a true finding on the gang enhancement, viz., that K. told the officer, truthfully, that appellant was “throwing gang signs.” (See ibid.)
Appellant likens the instant case to People v. Albarran (2007) 149 Cal.App.4th 214. In that case, the trial court found that the evidence was insufficient to support the gang enhancement allegation but was admissible for the limited purpose to prove motive and intent with respect to the underlying charges, which arose from a shooting at a birthday party (Id. at p. 225.) The Court of Appeal noted that there was expert testimony that “gang members commit crimes to gain respect and enhance their status within the gang” and “a gang member gains such respect if his identity (or the identity of his gang) becomes known to the victim(s), within the gang community and/or the neighborhood.” (Id. at p. 227.) However, the court stated:
“[T]his shooting presented no signs of gang members’ efforts in that regard—there was no evidence the shooters announced their presence or purpose—before, during or after the shooting. There was no evidence presented that any gang members had ‘bragged’ about their involvement or created graffiti and took credit for it. In fact, … [the expert witness] conceded he did not know the reason for the shooting, though he had ‘heard’ that gang members were present at the party. There is nothing inherent in the facts of the shooting to suggest any specific gang motive. In the final analysis, the only evidence to support the respect motive is the fact of Albarran’s gang affiliation.” (Ibid., italics added, fn. omitted.)
Albarran, however, is distinguishable because in the instant case, in addition to the evidence of appellant’s gang membership, there was evidence of gang-related conduct, viz., the “throwing” of “gang signs.”
Appellant also relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia). That case, too, is inapposite.
In Garcia, the defendant and two other people robbed the victim of a bicycle and $14.85. A police officer testified as a gang expert that the defendant and his associates were gang members, the defendant’s gang was “turf oriented,” and its turf included the area where the robbery occurred. He also testified about three other robberies committed by gang members, and stated that robberies, often involving small sums of money, were one of the primary activities of the gang. The defendant was convicted of robbery and the jury found the gang enhancement allegation true. (Garcia, supra, 395 F.3d at pp. 1101-1102.)
As framed by the majority in Garcia, the issue on appeal was whether the evidence was sufficient “to support the jury’s finding of the required specific intent: that is, the intent to ‘promote, further, or assist in’ other criminal activity of the gang apart from the robbery of conviction.” (Garcia, supra, 395 F.3d at pp. 1100-1101.) In concluding the evidence was insufficient, the majority agreed with the magistrate, who had found nothing in the record “‘which would support an inference that [Garcia] robbed Bojorquez in order to facilitate other gang related criminal operations within El Monte.’” (Id. at p. 1103.) The majority found nothing in the record
“that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the E.M.F. The evidence indicates that Garcia was a gang member and that he robbed Bojorquez in an area known to be in the heart of the gang’s ‘turf.’ Detective Hernandez, the gang expert, testified that the gang was ‘turf oriented,’ and he described three other robberies committed by E.M.F. members in El Monte during the few months prior to Garcia’s offense. But there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the ‘turf-oriented’ nature of the gang with the commission of robberies generally, or, more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The expert’s testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez.” (Garcia, supra, 395 F.3d at p. 1103, italics added, fn. omitted.)
Here, by contrast, the expert’s testimony was not silent on how the instant assault would promote, further and/or assist future criminal activity by members of appellant’s gang. The People’s gang expert testified that the instant assault could facilitate future Sureno criminal conduct by demonstrating to rival gang members dominance over that gang and by discouraging anyone who saw or heard about the attack from interfering in any way with the gang’s future criminal activity.
In addition, as appellant concedes, the evidence was sufficient to establish that H., by invoking “Loco Park” immediately before initiating the attack, was engaged in gang activity. The juvenile court reasonably could have concluded that appellant acted with the specific intent to assist that instance of gang criminal conduct as well.
We recognize that the Garcia majority held that the jury was required to find specific intent to “‘promote, further, or assist in’ other criminal activity of the gang apart from” the robbery of which the defendant was convicted. (Garcia, supra, 395 F.3d at p. 1101, italics added.) However, federal cases are not binding in matters involving state law (People v. Burnett (2003) 110 Cal.App.4th 868, 882), and California courts have rejected the Garcia court’s reasoning and conclusion. Thus, in People v. Romero (2006) 140 Cal.App.4th 15, the court held that Garcia was wrongly decided, and a gang enhancement was properly applied to a defendant on evidence that he intended to promote, further, or assist his codefendant in the shooting charged “rather than other criminal conduct.” (Id. at p. 19; see also People v. Hill (2006) 142 Cal.App.4th 770, 774 [disagreeing with Garcia’s interpretation of § 186.22, subd. (b)].) We join with the Romero and Hill courts in holding that Garcia misinterpreted California law.
Thus, for the foregoing reasons, Garcia does not assist appellant. Substantial evidence supported the gang enhancement in the instant case.
The Drug/Alcohol Condition
As indicated above, under the drug/alcohol condition, appellant may “[n]ot use, possess, or be under the influence of any alcoholic beverage or illegal or intoxicating substance, or possess any associated paraphernalia.” (Italics added.)
Appellant contends the drug/alcohol condition is unconstitutionally vague and overbroad because (1) it does not limit the proscribed conduct to the knowing use and possession of alcohol and substances that are illegal to possess, and (2) a medicine prescribed by a physician could be an “intoxicating substance,” and therefore the drug/alcohol condition proscribes the legal possession and use of prescription medicines.
We address these claims in order. We agree that the drug/alcohol condition is unconstitutionally vague because it does not contain a knowledge element. “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “The vagueness doctrine bars enforcement of ‘“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’” (Ibid.) “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’ ….” (Ibid.)
In Sheena K., our Supreme Court invalidated a condition of probation “forbidding [the probationer’s] association with ‘anyone disapproved of by probation’ ….” (Sheena K., supra, 40 Cal.4th at p. 889.) The court held: “[I]n the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague. [T]he probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer.” (Id. at pp. 891-892, fn. omitted.)
Similarly, the drug/alcohol condition is unconstitutionally vague because it does not provide advance notification to appellant that he is not to knowingly possess, use or be under the influence of certain categories of substances. (Cf. Sheena K., supra, 40 Cal.4th at pp. 891-892.) We will order it modified to remedy this defect.
Because we conclude that absence of the knowledge element renders the drug/alcohol condition unconstitutional on vagueness grounds, we need not address appellant’s argument that the same defect renders the condition unconstitutionally overbroad.
With respect to the second constitutional challenge to the drug/alcohol condition, we need not reach appellant’s constitutional claim because we reject appellant’s claim that the drug/alcohol condition forbids him from using or possessing medicine legally prescribed by a physician. On this point we find instructive People v. Kwizera (2000) 78 Cal.App.4th 1238.
In that case, the defendant challenged the imposition of the probation condition designated 6.f, which directed that he “‘[f]ollow such course of conduct as the probation officer may prescribe.’” (People v. Kwizera, supra, 78 Cal.App.4th at p. 1240.) In rejecting the defendant’s argument, the court stated: “The phrase ‘follow such course of conduct as the probation officer prescribes,’ as used in condition 6.f is reasonable and necessary to enable the department to supervise compliance with the specific conditions of probation. It does no more. Since the court does not have the power to impose unreasonable probation conditions, it could not give that authority to the probation officer through condition 6.f. [T]he trial court has authority to empower the probation department with authority to supervise the probation conditions. Condition 6.f does not... authorize the probation officer to irrationally tell a defendant ‘to jump,’ as defense counsel fears.” (Ibid.)
Thus, the court declined to interpret the challenged condition in an irrational manner. We will do the same here. It is clear from the context that in imposing the drug/alcohol condition the court meant to direct that appellant, as a condition of probation, not illegally possess and/or use, among other things, any “intoxicating substance.” Just as the Kwizera court did not interpret the challenged condition as meaning that a probation officer could irrationally tell the probationer “to jump,” we will not presume that the juvenile court meant to prohibit appellant from taking medicine legally prescribed by a physician. Accordingly, we will construe the drug/alcohol condition to refer to alcoholic beverages and any controlled substance for which appellant does not have a valid prescription. As so construed, the basis for the second of appellant’s constitutional challenges to the drug/alcohol condition is eliminated. However, because we must modify the condition to resolve the vagueness problem as discussed above, we will order further modification to make our interpretation explicit.
The No-Contact Condition
Appellant contends the no-contact condition is unconstitutionally vague and overbroad because it proscribes contact with the victim or any person known to appellant to be a victim of the instant offense even in situations in which appellant does not “knowingly or purposefully” come into contact with such person(s). The People concede that the no-contact condition unconstitutional. We agree.
In People v. Lopez (1998) 66 Cal.App.4th 615, the trial court, as a condition of probation designated “condition No. 15,” ordered an adult probationer “‘not to … associate with any gang members ….’” (Id. at p. 622.) This court noted that a probation condition limiting the right of association under the First Amendment to the United States Constitution “is permissible if it is ‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’” (Lopez, at p. 628.) Nonetheless, this court held condition No. 15 unconstitutional because it impermissibly infringed on the defendant’s right to free association: “[C]ondition No. 15 suffers from constitutionally fatal overbreadth because it prohibits Lopez from associating with person not known to him to be gang members. [Citations.] In [People v. Garcia (1993) 19 Cal.App.4th 97], we held that a probation condition was not ‘sufficiently narrowly drawn’ where the condition required the defendant to refrain from associating with persons not known to the defendant to be users and sellers of narcotics, or felons, or ex-felons. [Citation.] We modified the condition to add the element of knowledge and affirmed it as modified. [Citation.] We will so modify condition No. 15 here.” (People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629, italics added.)
Similarly, in the instant case, the no-contact provision, although it forbids contact with the victim, who is of course known to appellant, or to “any person known to [appellant] to be a victim of [appellant’s] offense” (italics added), it forbids such contact in instances in which appellant does not knowingly initiate, or otherwise do anything to bring about, the contact. Forbidding contact of this sort infringes on appellant’s constitutional right of association and is not reasonably related to the ends of rehabilitation and protection of the public. Therefore, as in Lopez, the challenged condition is unconstitutionally overbroad. We will order it modified accordingly.
Because we conclude the no-contact condition unconstitutional on overbreadth grounds, we need not address appellant’s argument that the condition is unconstitutionally vague.
DISPOSITION
The drug/alcohol condition is modified to provide that appellant may not knowingly (1) use, possess, or be under the influence of any alcoholic beverage; (2) use, possess or be under the influence of any controlled substance for which he does not have a valid prescription; or (3) possess any associated paraphernalia. The no-contact condition is modified to provide that appellant may not knowingly and purposefully have contact in person, in writing, by telephonic or electronic means, or directed through a third party, with the victim, who shall be specified by name in the modified condition, or any person known to appellant to be a victim of appellant’s offense. As modified, the judgment is affirmed.