Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL025407, Richard E. Behn, Judge.
Valerie G. Wass, 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, Assistant Attorney General, Lise Jacobson and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
I.V. appeals from judgment that declared him a ward of the court and committed him to a juvenile facility for 90 days, after the juvenile court found I. guilty of brandishing a replica gun in association with a gang. He argues the evidence was insufficient to prove either the offense or the gang enhancement, there was no implied waiver of his Miranda rights, and the juvenile court failed to state whether the offense was a felony or misdemeanor. We disagree and affirm.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTS
On September 10, 2006, Cesar Romero was driving home, wearing a tank top that revealed large tattoos on his arms. Turning onto Senate Street in Costa Mesa, he saw four young men looking at him. One lifted his shirt to reveal a gun tucked into his pants, pulled it out, and pointed it at Romero. The other three, including I., stood behind the gunman. Romero continued driving and the group advanced toward him, the gunman outpacing his companions. Romero was afraid the gunman was going to shoot at him and called the police.
Officer Alberto Lopez of the Costa Mesa Police responded. Based on Romero’s description, Lopez thought the gunman might be Jorge G., an active member of the Vario Little Town (VLT) street gang. Lopez went to Jorge’s home on Senate Street, where he found Jorge, I. and two other young men in the garage. An inspection of the garage turned up an “air soft gun” painted black and various items bearing the VLT insignia including pages in a notebook and a CD. Lopez arrested I. and took him to the police station.
While the court reporter took this down as two words, i.e., “air soft,” it is usually rendered as a single word, “airsoft” and we employ that usage hereafter.
The propriety of the arrest is not disputed.
Lopez advised I. of his rights under Miranda. After reading each right, he asked I. if he understood it; I. said he did. Lopez did not ask if I. waived his rights, or if he wanted to speak with him, but just began talking with the young man. I. said he “used to kick it” with VLT and recently began to do so again. He told Lopez that he had been hanging around Jorge’s garage with the other three young men. I. knew Jorge had the gun when they left, and he was at the scene of the brandishing incident I. thought Romero was a gang member who was “maddogging” them, which Lopez understood to mean staring someone down in a challenging way. I. admitted he saw Jorge point the gun at Romero. He joined the rest of the group in walking toward Romero’s car, explaining that he was “backing up” Jorge and his actions.
The Orange County District Attorney filed a petition to declare I. a ward of the court. (Welf. & Inst. Code, § 602.) It alleged I. had brandished a replica gun (Pen. Code, § 417.4) for the benefit of, at the direction of, or in association with a criminal street gang. (Pen. Code, § 186.22, subd. (d).)
All subsequent statutory references are to the Penal Code unless otherwise indicated.
At trial, in addition to the facts set out above, the following evidence was introduced. Lopez testified as a gang expert. After stating his experience as a gang investigator, Lopez said he was familiar with the VLT street gang. He knew about it from information given him by former gang experts in the Costa Mesa Police Department, senior officers, police reports, and from personally having investigated hundreds of crimes involving VLT members. Lopez stated that as of September 2006, VLT had three or more members, used a series of signs or symbols (which he identified), and its primary activities were “assaults, possession of weapons, vandalism.”
Lopez also testified about two prior crimes committed by VLT members. Juan Ricardo Acosta Cruz pled guilty to four counts of robbery, and a street terrorism count (§ 186.22, subd. (a)) that charged him with participating in VLT, a street gang. Lopez believed Cruz was a member of VLT based on reading the police report, conversations with a senior gang investigator, and the plea to the street terrorism count. Certified copies of the felony complaint and abstract of judgment against Cruz were introduced in evidence. Daniel F. pled guilty to carrying a loaded firearm in public (§ 12031), possession of a firearm capable of being concealed (§ 12101), a street terrorism count (§ 186.22, subd. (a)), and a gang enhancement (§ 186.22, subd. (b)). Lopez had arrested Daniel F. He believed the minor was a member of VLT based on gang indicia Lopez found in his room, his statements to Lopez, and his plea. A certified copy of the Flores plea and disposition were introduced in evidence.
The juvenile court found the allegations of the petition true beyond a reasonable doubt, sustained the petition, and set the matter for a disposition hearing. At that point, the clerk asked whether it was a misdemeanor or felony. The court replied “[i]ts a felony. Actually, we don’t determine whether it’s a felony until the disposition report. [¶] . . . [¶] But at this point is a felony.” A minute order entered that day recited the court found the matter to be a felony.
At the disposition hearing, the juvenile court stated it had read the probation report, which recommended commitment to a juvenile facility for 90 days. Counsel for I. said “I think [] this is a felony. I don’t dispute that.” but argued for a shorter term. The court asked the district attorney what the maximum period of confinement was, and the latter replied three years. The court found the matter to be “extraordinarily serious” and followed the probation report recommendation. I. was declared a ward of the court and committed to the custody of the probation officer for commitment to a juvenile facility for 90 days, with credit for 58 days previously served, to be followed by probation on various conditions.
I
I. argues his statements to Lopez were inadmissible, and the juvenile court committed reversible error when it found an implied waiver of his Miranda rights. We disagree.
There is no dispute that a waiver of Miranda may be implied from conduct. What must be shown to establish waiver is “a free and deliberate choice rather than intimidation, coercion, or deception,” and “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) A waiver may be found if the “totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension.” (Id. at p. 421.)
Lopez testified he read I. each of his rights, asked if I. understood, and the young man answered affirmatively. Nothing in the record even hints at intimidation, coercion, or deception by Lopez, or anyone else. I. was a few months shy of 16 years old and a good student, with a 3.0 average and several “A” grades. Although his most recent grade in English was a “D,” and his parents did not speak English, there is no indication I. was less than fluent in the language – no interpreter was requested at the police station, trial, or the probation department. Nor was this I.’s first contact with the police – he had been previously arrested twice and contacted on two additional occasions by police officers in connection with gang activities.
In these circumstances, we have little difficulty accepting the trial court’s determination that I. waived his right to remain silent when he began talking with Lopez and his statements were properly received in evidence. The record reveals a teenager doing well in school, obviously intelligent (several A’s), familiar with police from his prior contacts with them, and advised of his rights, who answered questions freely after advisement. That is sufficient to show a knowing and intelligent waiver of the right to remain silent.
I. contends there was no implied waiver because Lopez never asked for an express waiver, there is no way to know if he was questioned in a coercive or intimidating manner because the interview was not recorded, and the trial court did not consider the totality of the circumstances. None of these points is persuasive.
We are unaware of any authority that requires a further inquiry after a defendant indicates he understands his rights – and none is cited by I. What’s more, there is a plethora of cases holding that answering questions after having one’s Miranda rights explained constitutes an implied waiver. It is abundantly clear that a Miranda waiver can be express or implied (North Carolina v. Butler (1979) 441 U.S. 369, 373; see, e.g., People v. Whitson (1998) 17 Cal.4th 229, 246, 247-248, 250), and courts have consistently implied such a waiver where the officer reads the Miranda admonition, the suspect acknowledges that he or she understands it, and then responds to the officers’ questions. (See, e.g., People v. Sully (1991) 53 Cal.3d 1195, 1233; People v. Davis (1981) 29 Cal.3d 814, 823-826.) The fact that an implied waiver was also found in one case where a police officer did ask if the defendant would like to talk after completing the Miranda warnings (People v. Mitchell (1982) 132 Cal.App.3d 389) does not make that officer’s conduct a legal requirement. Nor is any authority offered for the proposition that an interview must be recorded in order to be scrutinized for coercive conduct. In the absence of a scintilla of evidence that impermissible pressure was exerted in obtaining I.’s statements, nothing can be inferred from the failure to record the interview.
Finally, the juvenile court’s failure to state it was considering the totality of circumstances in finding an implied waiver violates no statute or case. When I. objected to Lopez’s testimony, the court overruled the objection, explaining that where a defendant answers a question after stating he understands his rights, “that’s an implied waiver.” I.’s age, education, and prior contacts with police indicate he was able to understand his rights and the consequences if he abandoned them, and the court’s omission to articulate its decision more completely in no way vitiates its implied waiver finding. I.’s statements to Lopez were properly admitted in evidence.
II
I. argues the evidence was insufficient to show he aided and abetted Jorge in brandishing a replica gun. The argument goes like this: There was no evidence I. knew Jorge intended to commit the offense, it had already been committed by the time he began to follow Jorge, following Jorge at a distance was not encouragement or assistance and his statement that he was “backing up” Jorge meant only that he was willing to do so if the need arose. We are unconvinced.
On a substantial evidence challenge, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
An individual who “draws or exhibits an imitation firearm . . . in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor . . . .” (§ 417.4.) An aider and abettor is one who “aids the perpetrator of an offense, knowing of the perpetrator’s unlawful purpose and intending . . . to commit, encourage, or facilitate the commission of the offense . . . .” (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) “[T]he defendant’s intent to encourage or facilitate the actions of the perpetrator ‘must be formed prior to or during “commission” of that offense.’ [Citations.]” (Ibid.) While mere presence at the scene of a crime is insufficient to establish liability, the fact finder may consider companionship with the participants, presence at the scene, and conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
The evidence was sufficient to show I. aided Jorge in brandishing a gun to intimidate Romero, who he thought was a rival gang member. Drawing the gun was not the end of the offense, since Jorge kept it aimed at Romero as he advanced on him, I. following behind. Nor was it required that I. know of Jorge’s intent when they left the garage – intent to encourage or facilitate is sufficient if formed during commission of the offense. (People v. Montoya, supra, 7 Cal.4th at p. 1039.) By I.’s own admission, he was backing up Jorge after the gun was drawn and pointed, as the group pursued Romero. It was a reasonable inference he did so to support Jorge’s intimidating a rival gang member he believed to have shown disrespect. As for the argument that walking a distance behind Jorge was not encouragement or assistance, suffice it to say it was reasonable to find otherwise, particularly in light of I.’s admission he was backing up Jorge. And, as far as interpretation of that admission, the trial court’s decision to take it at face value strikes us as more convincing than the appellate argument it meant he would back up Jorge if necessary. It was a reasonable inference (perhaps the only reasonable inference) that he meant just what he said. The evidence supports the finding that I., as an aider and abettor, was guilty of the offense of brandishing a replica gun.
III
I. contends the evidence does not support the gang enhancement for lack of sufficient proof that (1) the primary activities of VLT were statutorily enumerated offenses, and (2) members of VLT have engaged in a pattern of criminal activity. Again, we disagree.
The gang enhancement provision at issue increases the punishment for public offenses “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 . . . .” (§ 186.22, subd. (d).) “Criminal street gang” is defined as a “group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in . . . subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f), emphasis added.) “Pattern of criminal activity” is defined as, in relevant part, “the commission of . . . or conviction of two or more of the following offenses . . . [listing of 33 enumerated offenses omitted].” (§ 186.22, subd. (e).)
To show the “primary activities” of a gang, there must be evidence that its “‘chief’ or ‘principal’” activities are committing the enumerated crimes, and it is not enough to show they do so “occasionally.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . .” (Id. at p. 324.)
I.’s primary activities argument challenges Lopez’s testimony that VLT’s primary activities were “assaults, possession of weapons, vandalism.” He makes two points. First, there was insufficient foundation to determine the testimony was based on “reliable or unreliable sources, or hearsay or solid evidence.” Second, Lopez failed to provide details of the offenses to show they were among those enumerated in the statute, which lists only certain assaults, weapons offenses, and vandalism.
The foundation point relies on our decision in In re Alexander L. (2007) 149 Cal.App.4th 605, but the case is distinguishable. There, the only evidence was a deputy sheriff’s testimony that “he ‘kn[e]w . . . the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the deputy] had obtained the information.” (Id. at pp. 611-612.) We held the testimony insufficient evidence because it was “impossible to tell whether his claimed knowledge [was] based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.” (Id. at p. 612, fn. omitted.)
Here, on the other hand, Lopez testified that his expert opinion was based on information he obtained from former gang experts in the Costa Mesa Police Department, senior officers, police reports, and personally having investigated hundreds of crimes involving VLT members. With that foundation, Lopez’s testimony was substantial evidence of the gangs’ primary activities. (People v. Gardeley (1996) 14 Cal.4th 605, 620 [detective’s expert testimony of gang’s primary activities was substantial evidence when based on conversations with gang members, personal investigation of hundreds of crimes committed by gang members, and information from colleagues and law enforcement agencies].)
On the enumerated offenses point, I. raises a series of points. We consider each in turn, and conclude none have merit. I. points out that only assault with a deadly weapon is listed in the statute, only felony vandalism is found on the list, and only certain weapons offenses are included. (§ 186.22, subds. (e)(1), (20), (22), (23), (32), (33).) But we think the juvenile court was entitled to infer Lopez was referring to enumerated offenses, and to rely on the Cruz and Lopez convictions, both of which included enumerated offenses committed by the gang.
I. next contends the evidence was insufficient to establish the elements of the criminal street gang component of the gang enhancement. We invited the parties to submit supplemental briefs on this issue, and both responded. I. concedes the sufficiency of the Daniel F. conviction, but he contends the Cruz conviction cannot supply the second predicate offense. This argument has two prongs, neither convincing.
The first prong is the evidence is insufficient because Lopez did not testify to the facts of the offenses committed by Cruz, nor whether he pled guilty or no contest. But neither was required. I. acknowledges that robbery is a predicate offense, and there is no dispute Cruz was convicted of that offense. No authority is offered for the proposition that more is required, and we do not believe it is. It does not matter what the facts were, or what the form of plea was. Cruz was convicted of a predicate offense, and that is enough.
The second prong of this point is the evidence does not show Cruz was a member of VLT, because his plea to the street terrorism count admitted participation in a criminal street gang, but not VLT. That overlooks the evidence. The complaint charged that in 2004, “Juan Ricardo Acosta Cruz did unlawfully actively participate in VARRIO LITTLE TOWN, a criminal street gang . . . .” Examination of the judgment reveals Cruz pled to that count (along with all of the others charged). So the record shows Cruz admitted participating in VLT, a criminal street gang. The evidence was sufficient to establish the elements of the criminal street gang component of the gang enhancement.
Finally, I. asserts the Cruz and Flores convictions do not show a “pattern of criminal activity” by VLT members, because they are isolated conduct rather than consistent and repeated offenses by gang members. But that confuses different elements of the statutory test. A pattern of criminal activity is shown by proving gang members engaged in two or more offenses (§ 186.22, subd. (e)), while the consistent and repeated test is one way of proving a gang’s primary activities. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) So the consistent and repeated test need not be met to establish a pattern of criminal activity element. The convictions were adequate to show predicate offenses by members of VLT, and the evidence sufficient to show VLT was a criminal street gang.
IV
I. contends the juvenile court failed to declare whether the offense was a misdemeanor or felony, or set the maximum period of confinement, so the case must be remanded. But any error was harmless, since the court exercised its discretion and said the matter was a felony.
Where a minor is found guilty of an offense punishable as a felony or misdemeanor if committed by an adult, “the court shall declare the offense to be a misdemeanor or felony.” (Welf. & Inst. Code, § 702.) The offense of brandishing a replica gun is a misdemeanor (§ 417.4), but a misdemeanor committed for the benefit of a criminal street gang is punishable as either a misdemeanor or felony. (§ 186.66, subd. (d).) If the record shows the juvenile court was aware of its discretion to declare a wobbler a felony or misdemeanor, and exercised that discretion, failure to comply with the statute is harmless error. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.)
The record convinces us the juvenile court understood its discretion to treat the wobbler offense as a misdemeanor or felony, and exercised that discretion, so no purpose would be served by remand. After the court sustained the petition, it declared the offense was a felony, while recognizing that decision properly should be made at the disposition hearing. (“It’s a felony. Actually, we don’t determine whether it’s a felony until the disposition report. [¶] . . . [¶] But at this point is a felony.” A minute order entered the same day stated “court finds matter to be a felony.” The probation report, noting the court’s felony finding, recommended 90 days in a juvenile facility. At the disposition hearing, the court adopted that recommendation because it found the matter “extraordinarily serious.” When defense counsel said he did not dispute the matter was a felony, the court did not correct him. The only fair reading of the court’s statement it would decide whether the case was a felony at the disposition hearing is that he knew such a determination had to be made. Any error was harmless.
I. also argues the juvenile court failed to state he could not be confined longer than an adult convicted of the same offense, and specify that period of confinement. (Welf. & Inst. Code, § 726, subd. (c).) Again, the error was harmless.
I. was committed to the custody of the probation officer for a definite term of 90 days, not an indefinite term. His reliance on In re George M. (1993) 14 Cal.App.4th 376, 381-382 is misplaced. There, the defendant was committed to the California Youth Authority, where the period of confinement was set by state juvenile authorities, and an outer limit had to be set by the court. Here, I. was not sent to the California Youth Authority, but rather to a local juvenile facility for a specified period of time. Since both errors asserted on this point were harmless, remand is not required.
In fine, I.’s statements to a police officer were admissible, the evidence supports the finding he was guilty of brandishing a replica gun for the benefit of a criminal street gang, and the juvenile court properly exercised its discretion to declare the offense a felony. The judgment appealed from is affirmed.
WE CONCUR: O'LEARY, J., IKOLA, J.