Opinion
E041410
9-17-2007
In re ERIC H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ERIC H., Defendant and Appellant.
Allison K. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Sharon Rhodes and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The juvenile court found true that minor committed an attempted robbery (Pen. Code, §§ 664/211) for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). Minor was thereafter declared a ward of the court and placed on probation in the custody of his grandmother on various terms and conditions. On appeal, minor contends (1) there was insufficient evidence to sustain the true finding of attempted robbery, and (2) there was insufficient evidence to support the gang enhancement allegation. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The juvenile court dismissed the burglary allegation (§459) and the attendant gang enhancement allegation.
I
FACTUAL BACKGROUND
On June 24, 2006, Christopher F. drove to Post Street in San Bernardino County to buy marijuana from someone known to him as "Money." Christopher had purchased marijuana from Money three times before, and the two had agreed to meet on Post Street. When Christopher had previously purchased marijuana from Money, Christopher handed money to him, he handed Christopher the marijuana in exchange, and Christopher drove away. However, this time, when Christopher arrived, minor was with Money, and Money directed Christopher to pull his car around to a carport. Although Christopher felt as if "something was a little bit amiss," he agreed, and Money got into Christophers car and directed minor to meet them at the carport. Christopher then drove to the carport area with Money in the car with him.
After Christopher parked his car, Money directed Christopher to get out of the car. Christopher asked why, and Money responded, "Look. Come on, man." Christopher and Money got out of the car, but Christopher did not feel safe, so he locked his car and engaged the alarm. Christopher was holding his car keys in his hand.
Money and minor then directed Christopher to a carport structure that essentially placed Christopher in a corner. With minor standing right next to Money, Christopher gave $20 to Money, and Money walked some distance away. Minor acted as if he was going to hand the marijuana to Christopher, but when Christopher approached minor to retrieve the marijuana, minor punched Christopher in the face with a closed fist. As Money stood aside, minor grabbed Christophers forearm in an attempt to grab Christophers car keys, which he was still holding in his hand. Christopher pulled his arm away and fought back to prevent minor from grabbing the keys. Christopher then ran from minor, who gave chase.
As minor chased Christopher, minor directed Money to run in a different direction, which resulted in cutting Christopher off from returning to his car. When Christopher saw Money standing near the car, Christopher realized minor and Money were preventing him from returning to his car. Christopher then ran away and immediately called the police.
The police arrived five to eight minutes later. They accompanied Christopher to his car and found the drivers side window was broken with a rock. Christopher discovered a number of items missing from his car, including his compact disc collection of approximately 200 compact discs, his wallet, his cellular telephone, and the remote control for the television mounted in his car. As a result of minor punching him, Christopher suffered lip and gum damage.
The juvenile court took judicial notice of two minute orders from the courts files. The minute orders reflected sustained petitions dated August 18, 2005, for Kevin M. (Kevin) and Lawrence H. (Lawrence) for violations of section 487, subdivision (c) (grand theft person).
Two days after the incident, Officer Jacinto DeLeon searched minors home and found a notebook that had the moniker "Young Nonsense" and the words "I love Eric" written in it, a blue binder that had "OR 1" written on it, and an "air-soft" gun that looked like a nine-millimeter Barretta firearm. These items were found in minors room.
Officer Claudia Leyden testified as a gang expert. She had numerous recent contacts with minor. On June 7, 2006, Officer Leyden stopped minor for jaywalking on Post Street, just outside his residence, which is located in the territory claimed by the Outrageous Ones gang. Officer Leyden asked minor why he always wore blue, and minor responded that he was a member of the Outrageous Ones Crips Gang, a known gang in Redlands. Minor was wearing blue shorts and a blue hat; Crips gang members commonly wear blue.
Officer Eduardo Herrera also testified as a gang expert. He had been assigned to the Redlands Multiple Enforcement Team, which was involved in gang suppression and investigation, for about nine months. He testified that Outrageous Ones or "OR 1" was a "new, up and coming gang" and that their gang graffiti would say such things as, "White Rag Gangster," and "Were the Biggest Black Gang in Redlands." Outrageous Ones claimed Post Street from Colton to Lugonia Avenue in the City of Redlands as its territory.
Officer Herrera explained that gang members typically try to terrorize and intimidate in an effort to further their gangs interests, and gang members achieve higher status within the gang by committing more serious crimes. Officer Herrera also stated that in the previous 10 months of work, he had interacted on a daily basis with members of Outrageous Ones through arrests and contacts, including conversations with members about why they did certain things, where they were from, and what territory they were claiming. Spelling out the word "White Rag" was a common symbol Outrageous Ones used. There were 11 documented members, and Officer Herrera had contacted all of them.
Officer Herrera opined that Outrageous Ones had established a pattern of criminal activity within the meaning of section 186.22 and described two Outrageous Ones gang members who had committed a strong-arm robbery on July 26, 2005. Kevin and Lawrence, both members of Outrageous Ones, were in an area frequented by Outrageous Ones gang members when they saw a Hispanic juvenile male walking down the street to a grocery store. On his return from the grocery store, Lawrence grabbed the juvenile male around the neck and held his hands while Kevin searched the juveniles pockets. When the victim yelled for help, Kevin tried to put his hands over the victims mouth, but the victim bit Kevin. Kevin and Lawrence took the victims money, ran away, and hid in a friends house. A witness saw the incident and saw the perpetrators run to the house. Lawrence and Kevin were positively identified by the witness in an in-field lineup and arrested. Officer Herrera opined that Lawrence and Kevin committed the robbery to "intimidate, promote or gain influence within their gang by robbing people of either money or possessions."
Officer Herrera opined that minor was an active member of Outrageous Ones based on his and other officers contacts with minor; statements about minor from other Outrageous Ones gang members, other subjects in the streets, and witnesses of crimes committed in the area; and the gang paraphernalia found in minors room. In addition, minor had admitted to being a member of the Outrageous Ones, and his moniker was "Lil Nonsense" or "Young Nonsense." A gang card was also filled out on minor, and he was seen wearing a white rag on one occasion and a Baltimore Orioles baseball cap, which Outrageous Ones gang members wear because it was all black and had an "O" on it signifying Outrageous Ones, on another occasion. Officer Herrera concluded that minor committed the current crime with the specific intent to promote or enhance the Outrageous Ones gang, a new, up and coming gang. As a new gang, Outrageous Ones would benefit from the attempted robbery because it showed the gang meant "business," gave it a reputation for criminal conduct, and showed that people should not come to their territory. Additionally, the attempted robbery would benefit minor personally with respect to his status in the gang.
On cross-examination, Officer Herrera acknowledged that it was not noted on the police report that Lawrences and Kevins crime was gang related or that Lawrence and Kevin were members of Outrageous Ones. The officer also admitted that in this case there was no evidence that minor yelled out his gangs name or his moniker, as usually occurs when gang members commit crimes.
II
DISCUSSION
A. Sufficiency of the Evidence of Attempted Robbery
Minor contends there was insufficient evidence of attempted robbery because there was no evidence minor intended to take anything from the victim; rather, he claims there was only evidence to support a finding of battery. We disagree.
"`The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]" (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 275; see also In re Adrian R. (2000) 85 Cal.App.4th 448, 452.) When a defendant, here minor, challenges the sufficiency of the evidence, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence — meaning, evidence that is reasonable, credible and of solid value — must support each essential element of an offense. (Id. at p. 578.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jurys verdict unless it is clearly shown there is no basis on which the evidence can support the jurys conclusion. (See ibid.; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." [Citation.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
To find the allegation of robbery true, the juvenile court was required to find a "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "[T]he word "felonious," used in connection with the taking of property, means a taking with intent to steal." (Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 825.) A conviction of robbery cannot be sustained unless the evidence shows the defendant conceived his intent to steal either before or during the commission of an act of force against the victim. "`[I]f the intent arose only after the use of force against the victim, the taking will at most constitute a theft. [Citation.] The wrongful intent and the act of force or fear `must concur in the sense that the act must be motivated by the intent. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 34, quoting People v. Morris (1988) 45 Cal.3d 1, 19 & People v. Green (1980) 27 Cal.3d 1, 53.)
Whether the perpetrator formed the intent to steal when applying force or fear on the victim is a question for the trier of fact. (See People v. Jennings (1991) 53 Cal.3d 334, 364-366.) The time when the intent was formed may be inferred from the circumstances surrounding the crime. (Ibid.)
"An attempt to commit a crime occurs when the perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act towards its commission. [Citations.]" (People v. Marshall, supra, 15 Cal.4th at p. 36.)
Here, substantial circumstantial evidence shows that minor committed an attempted robbery. Minor intended to steal the victims car keys by means of force or fear, and he had that intent even before the victim drove up to minor and his coparticipant to buy marijuana. Christopher testified that he had purchased marijuana from Money on three prior occasions and those occasions he had pulled up his car, gave the cash to Money in for marijuana, and then drove away. However, during this incident, Money, accompanied by minor, directed Christopher to pull over to a carport area and told Christopher to get out of his car and walk to an area where Christopher was cornered. When Christopher handed Money the cash, minor acted as if he was going to hand over the marijuana but instead punched Christopher in the mouth. Minor then attempted to grab Christophers car keys, which were in Christophers hands. When Christopher struggled with minor and was able to escape, minor and Money chased Christopher and prevented Christopher from running back to his car. Subsequently, when Christopher returned to his car a few minutes later with the police, his car was broken into, and numerous items were missing.
The only reason the robbery here was not completed was because Christopher struggled, managed to keep his car keys from minors grasp, and was able to escape. Contrary to minors contentions, a verbal demand for the victims item is unnecessary to establish the crime of attempted robbery. Minor ignores the context surrounding the crime before, during, and after minor punched Christopher in the face. The record clearly shows that minor punched Christopher in the face for the sole purpose of attempting to take Christophers car keys from Christophers hands — i.e., he attempted to take the keys by force or fear. There was more than substantial evidence here to show that minor committed the crime of attempted robbery.
B. Sufficiency of the Evidence of the Gang Enhancement
Minor next contends there was insufficient evidence to support the gang enhancement allegation pursuant to section 186.22. Specifically, he claims (1) there was insufficient evidence that the gangs primary activity was one or more of the enumerated offenses listed in section 186.22, subdivision (e); (2) there was insufficient evidence of a "pattern of gang activity" within the meaning of section 186.22, subdivision (e), because the predicate offense occurred before the formation of Outrageous Ones; (3) the trial court erred when it took judicial notice of two minute orders that documented two predicate offenses; and (4) there was no evidence the attempted robbery was committed for gang purposes, because there was no evidence minor or his coparticipant flashed gang signs or said anything about Outrageous Ones during the attempted robbery.
The criminal gang enhancement must be supported by substantial evidence. (People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1222.) As explained in part II.A., ante, when we review the record for substantial evidence, our role is a limited one. We do not reweigh the evidence but rather determine whether, based on the entire record, a rational trier of fact could find the People proved the enhancement beyond a reasonable doubt. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) We must presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)
The Street Terrorism Enforcement and Prevention Act (§§ 186.20-186.33) (STEP Act) creates both a substantive offense under section 186.22, subdivision (a) and a sentence enhancement under section 186.22, subdivision (b)(1). (In re Jose P. (2003) 106 Cal.App.4th 458, 466 (Jose P.).) Section 186.22, subdivision (b)(1) applies here, as the gang allegation was charged as a sentence enhancement.
Subdivision (b)(1) of section 186.22 imposes additional punishment for felony offenses that are committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ."
By its terms, section 186.22, subdivision (b)(1) does not require that a defendant commit a felony with the knowledge that his or her cohorts are members of a criminal street gang. Thus, the gang enhancement differs from the substantive offense set forth in section 186.22, subdivision (a), which does require such knowledge.
Section 186.22, subdivision (a) provides: "Any person 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months or two or three years."
To prove the existence of a criminal street gang, the prosecution must establish all of the following: "`the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. [Citation.] [Citation.]" (Jose P., supra, 106 Cal.App.4th 458, 466-467, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617; see also § 186.22, subd. (f).)
Minor first argues that there was insufficient evidence that Outrageous Ones is a criminal street gang because the prosecution failed to prove that Outrageous Oness primary purpose is the commission of one or more of the enumerated offenses and that its members had engaged in a pattern of criminal gang activity.
"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 groups `chief or `principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).)
"Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted.) However, "`evidence sufficient to show only one offense [enumerated under section 186.22, subdivision (e)] is not enough." (People v. Vy, supra, 122 Cal.App.4th at p. 1223, quoting In re Jorge G. (2004) 117 Cal.App.4th 931, 945.) Still, the circumstances of the charged crimes, together with evidence of the gang members past offenses, "have some tendency in reason to prove the groups primary activities, and thus both may be considered by the [trier of fact] on the issue of the groups primary activities." (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran).)
A gangs primary activity may be established through expert testimony. (Duran, supra, 97 Cal.App.4th at p. 1465.) In making its determination, a trier of fact may consider "prior conduct or acts committed at the time of the charged offenses . . . ." (People v. Galvan (1998) 68 Cal.App.4th 1135, 1140; accord, Sengpadychith, supra, 26 Cal.4th at p. 323.) There is no requirement that the predicate offenses must have resulted in convictions, as the statute includes both convictions and commissions, or attempted commissions, of certain specified crimes. (In re Leland D. (1990) 223 Cal.App.3d 251, 258.) Certified court records, including an abstract of judgment, may also be used to establish the conviction for predicate offenses. (Duran, at pp. 1460-1461.)
When a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." (Evid. Code, § 801, subd. (a).) Such expert testimony may address the definition of a criminal street gang, the requisite primary activities and predicate offense or offenses, and the gangs past criminal conduct and ongoing criminal nature. (Sengpadychith, supra, 26 Cal.4th at pp. 322-324; Gardeley, supra, 14 Cal.4th at pp. 617-620.)
Section 186.22, subdivision (e) lists the qualifying offenses, including robbery (§ 211) and grand theft (§ 487).
Here, there was sufficient evidence that one of Outrageous Oness primary activities is the commission of one or more enumerated offenses. On motion by the prosecution, and without objection by minors counsel, the juvenile court took judicial notice of two minute orders that reflected two members of Outrageous Ones admitted to a July 2005 offense of grand theft person (§ 487, subd. (c)). The minute orders established that Kevin and Lawrence each sustained a true finding of grand theft person on August 18, 2005. In addition, the Peoples gang expert described the facts of the July 2005 offense committed by Kevin and Lawrence, as set forth in part I, ante. Officer Herrera opined that Kevin and Lawrence committed the robbery to promote their gang, explaining, "I believe thats exactly why they did it, which is to intimidate, promote or gain influence within their gang by robbing people of either money or possessions."
Minor also contends that the juvenile court erred in taking judicial notice of these minute orders. We reject this contention. First, minor did not object to the court taking judicial notice of these documents. Second, judicial notice of minute orders is a wholly proper mechanism for proving predicate offenses. (Duran, supra, 97 Cal.App.4th at pp. 1460, 1462 ["[w]e conclude that Evidence Code section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records [a certified minute order clearly falls within this definition] to prove not only the fact of conviction, but also that the offense reflected in the record occurred"].) Finally, even if the court erred in taking judicial notice of the two minute orders, Officer Herrera clearly described the 2005 robbery in detail; thus, any error was harmless.
Although the gang experts did not expressly opine that one of the principal activities of the Outrageous Ones gang was the commission of one or more statutorily enumerated felonies, they testified that the Outrageous Ones gang was a "new, up and coming gang"; that it was "their time to show that they do mean business"; that minor admitted to being a member of the Outrageous Ones gang; that Outrageous Ones gang members Kevin and Herrera had committed a strong-arm robbery and were convicted of grand theft person, in the Outrageous Ones gang territory in July 2005; and that minor, also a gang member, had committed an attempted robbery in the gangs territory. Each of these crimes are among the crimes listed in section 186.22, subdivision (e). In addition, Officer Herrera testified that the current attempted strong-arm robbery, perpetrated in the gangs territory, would send a message that people should not come to their territory. Officer Herrera stated that the July 2005 robbery furthered the same goal of intimidation via robbing people of money or possessions. (See Duran, supra, 97 Cal.App.4th at pp. 1464-1465 [sufficient evidence of primary activities requirements based on expert testimony that gangs primary activity was "`putting fear into the community" and that they committed various statutorily enumerated offenses toward this end].)
The courts analysis in People v. Vy, supra, 122 Cal.App.4th at page 1225 supports our conclusion. There, it was held that the gang members commission of statutorily enumerated felonies on three separate occasions during a three-month period, culminating in offenses for which the defendant was on trial, was sufficient to satisfy the primary-activities requirement. Here, too, the evidence showed that Outrageous Ones gang members committed statutorily enumerated felonies on two separate occasions over a period of 11 months, culminating in the offenses for which minor was on trial. (Contrast People v. Perez (2004) 118 Cal.App.4th 151, 160 [evidence of retaliatory shootings over a period of less than one week and beating six years earlier insufficient to show that gang consistently and repeatedly committed statutorily enumerated offenses].)
Minors claim there was no evidence to show the Outrageous Ones gang was primarily engaged in activities enumerated in the STEP Act conflicts with the record. His reliance on People v. Perez, supra, 118 Cal.App.4th 151 is ill-founded because the expert there never testified about the gangs primary activities. (Id. at p. 160.) The same was true in In re Alexander L. (2007) 149 Cal.App.4th 605, where the expert never specifically testified about the primary activities of the gang. He merely stated he "`kn[e]w that the gang had been involved in certain crimes. . . . He did not directly testify that criminal activities constituted [the gangs] primary activities." (Id. at pp. 611-612.) Here, though Officer Herrera did not specifically state that the Outrageous Ones gangs primary activities are robbery and grand theft person, his testimony demonstrates that Outrageous Ones were primarily engaged in strong-arm robbery, attempted robbery, or grand theft person, activities enumerated in the STEP Act. His testimony was based on his familiarity with the Outrageous Ones gang; in talking to members of the gang; in having contact with the gang in the previous 10 months; in arresting documented members of the gang; in the crimes the gangs members had committed; and in "speaking with them either during or before . . . why they did certain things. Where theyre from or what theyre claiming."
Minor next asserts that the court erred in finding a pattern of gang activity based on two predicate offenses committed before the inception of the Outrageous Ones gang.
A "pattern of criminal gang activity" is defined as gang members individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. (§ 186.22, subd. (e); see also Gardeley, supra, 14 Cal.4th at pp. 616-617; Duran, supra, 97 Cal.App.4th at p. 1457.) The predicate offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10.) The charged crime may serve as a predicate offense (Gardeley, at p. 625), as can evidence of the charged offense and another offense committed on the same occasion by a fellow gang member. (Loeun, at p. 5.) "Crimes occurring after the charged offense cannot serve as predicate offenses . . . ." (Duran, at p. 1458.) At least one of the predicate offenses must have occurred after September 26, 1988, and the last offense must have occurred within three years after a prior offense. (Gardeley, at p. 625.)
The existence of a criminal street gang is unquestionably an element of both the enhancement and the substantive offense. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.) Subdivision (f) of section 186.22 broadly defines the term "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, . . ." (Italics added.) Hence, as minor points out, the STEP Act implicitly requires the gang at issue to be in existence at the time the predicate acts were committed.
Minors reliance on Officer Herreras testimony to support his claim that the Outrageous Ones gang was not in existence at the time the predicate offenses were committed by Kevin and Lawrence is misplaced. At the time of Officer Herreras testimony on July 26, 2006, Officer Herrera stated that he had been working in the gang unit for about nine months and that he had started hearing about Outrageous Ones, a "new" gang, "within the past year" prior to his current testimony, i.e., in July 2005, when the predicate offenses occurred. In response to a specific question by defense counsel, Officer Herrera responded that he was unsure of the exact dates but that the July 2005 crime "could have been before, could have been after" Outrageous Ones was first forming. Officer Herrera also testified that he had contacted 11 documented and known members of Outrageous Ones over the nine or 10 months since his assignment in the gang unit. However, Officer Herreras testimony does not establish that the predicate offenses took place before Outrageous Ones existed as minor suggests; instead, the police and/or Officer Herrera merely discovered the existence of the gang at about the same time the July 2005 crime occurred. Contrary to minors speculation, Officer Herreras testimony does not establish that the Outrageous Ones gang was not "an ongoing associations or groups of three or more persons . . . ."
Viewing the evidence in the light most favorable to the judgment, as we must, substantial circumstantial evidence shows that the Outrageous Ones gang had been in existence before or at the time the July 2005 predicate offense occurred. We conclude that the testimony of Officer Herrera provided a basis from which the juvenile court reasonably could find that the Outrageous Ones gang met the requirements of subdivision (f) of section 186.22 for a criminal street gang. Although it is not overwhelming, it is not contradicted and meets the test under the standard of review we employ. (See People v. Mayfield (1997) 14 Cal.4th 668, 768-769.)
Even if the July 2005 predicate offenses occurred when Outrageous Ones was first forming, the law does not require that the predicate offenses to be gang related. (Gardeley, supra, 14 Cal.4th at p. 621.)
Finally, minor argues that there was insufficient evidence he committed the current offense for the benefit of Outrageous Ones because there was no evidence anyone exchanged gang-related statements or gang signs. No such references are required under the statute, nor has minor cited us to any other authority requiring such reference.
"A gang enhancement does not apply unless the crime was `committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . [Citation.]" (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Gang membership alone cannot prove the requisite specific intent. (Gardeley, supra, 14 Cal.4th at p. 623.) In People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the court noted that "[t]he crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang." (Id. at p. 1198.) Thus, the prosecutor was not required to establish all three factors. So long as the evidence was sufficient to support a finding that minors crimes were committed either for the benefit of or at the direction of a criminal street gang, there was no requirement that the evidence also establish that he acted in association with a gang. (Ibid.)
In Gardeley, supra, 14 Cal.4th 605, our Supreme Court held that a gang experts opinion, based on a hypothetical derived from the facts of the case, that the charged assault was a "classic" example of a "gang-related activity" and his explanation that the assault intimidates witnesses and cements a gangs stronghold on a drug-dealing area supported an inference that the charged assault was committed "`for the benefit of, at the direction of, or in association with that gang, and `with the specific intent to promote, further, or assist in . . . criminal conduct by gang members" within the meaning of section 186.22, subdivision (b)(1). (Gardeley, at p. 619; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 ["Here a qualified expert testified the participation of a Southside gang member in a Townsend Street retaliation killing would benefit Southside by enhancing its `respect. It was for the jury to assess the weight of that testimony in the first instance, and since we believe a `rational juror could have been convinced by it, we cannot deem it insufficient"].)
Here, two gang experts testified that minor was an active member of Outrageous Ones, based upon minors own assertion that he was a member of the gang, minors dress during street contacts with police officers, statements from minors compatriots, the area minor frequented, minors moniker, statements from witnesses in the gang territory area, and gang writings found in minors room. The current offense occurred in the Outrageous Ones gang territory. In addition, Officer Herrera testified that, in his opinion, minor committed the current crime with the specific intent to promote or enhance the Outrageous Ones gang. The officer explained, that as a new gang, Outrageous Ones would benefit from the attempted robbery because it showed the gang meant "business," gave it a reputation for criminal conduct, and showed that people should not come to their territory. The officer further noted that the attempted robbery would also benefit minor personally with the respect to his status in the gang. The officer also stated that minors crime promoted intimidation and fear. Viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient for the jury to reasonably infer that minor committed the crime to benefit Outrageous Ones.
We decline to follow Garcia v. Carey (9th Cir.2005) 395 F.3d 1099, upon which minor relies, in which the Ninth Circuit Court of Appeals construed the statute as requiring evidence of an intent to assist in other criminal activity. (See People v. Romero (2006) 140 Cal.App.4th 15, 19.) We are not bound by the federal courts interpretation (see People v. Bradley (1969) 1 Cal.3d 80, 86; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55 ["`federal decisional authority is neither binding nor controlling in matters involving state law"]), and we reject it here.
III
DISPOSITION
The judgment is affirmed.
We Concur:
HOLLENHORST, Acting P.J.
McKINSTER, J.