Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL024889, Donna L. Crandall, Judge.
John L. Staley, 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, Garrett Beaumont and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
U.C. appeals from a judgment rendering him a ward of the juvenile court (Welf. & Inst. Code, § 602) after the court found true he committed street terrorism, two firearm offenses, and the firearm offenses were for the benefit of a criminal street gang. U. argues the trial court erroneously denied his motion to suppress and insufficient evidence supports the court’s true findings on the offenses and enhancements. None of his contentions have merit, and we affirm the judgment.
FACTS
Officer Erin Moore was in a marked patrol car one Sunday evening at approximately 9:00 p.m.—it was dark. Moore was patrolling a residential neighborhood when she saw a car parked on a driveway between an apartment complex and a commercial business with four individuals standing near the front of the car. The car’s windows were down and there was loud music coming from the car. She saw a stack of 100 to 200 gold compact disks sitting on the car’s hood. Three of the men were looking at the compact disks and one of the men was holding some of them.
Moore made eye contact with one of the individuals (U.), continued driving, and made a U-turn. When she made the U-turn, she saw U. hurriedly walking toward the apartment complex; the other three individuals remained near the front of the car. Moore parked the car and got out. She said, “‘Hey, come back over here.’” U. looked back and continued walking away toward a fence. Moore said, “‘I’m talking to you. Come back to the car.’” At this point, U. was at the apartment complex fence approximately 10 feet away. He turned around and walked back towards Moore; he was wearing a black baseball hat that said, “L.A.” She told the four individuals to sit, and they complied.
Moore asked U. why he walked away, but he did not respond. Juan L. said U. was nervous “because he had an 18th Street baseball cap, and [U.] didn’t want [Moore] to see it.” U. was silent. Moore asked U. if that was true, and U. “nodded his head ‘yes’ and kind of chuckled.” Moore told U. the hat he was wearing said, “L.A.,” not “18th Street,” and she knew the difference between the two. U. shrugged, but did not respond.
Officer Michael Cunha arrived, and Moore briefed him and looked at the compact disks, which had black marker writing on them. After obtaining consent, Moore patted down the four individuals for weapons, but did not find any, and told them to sit down. Cunha walked towards the apartment complex, following the path U. had walked. Cunha found a black baseball hat that said, “‘Eighteen’” and a loaded. 22-caliber Beretta handgun on the grass. The gun and hat were six to eight feet from the sidewalk and three to five inches apart. He walked back and gave them to Moore, and she asked the individuals who the gun belonged to. No one responded. Because U. was the only one who walked toward the apartment, Moore arrested him.
After transporting U. to the police station and advising him of his Miranda rights, Moore interviewed him. U. said he was not an 18th Street gang member and did not “run” with them, but his brothers, one of whom was in jail, and two of the individuals he was with that night, were 18th Street gang members. U. said a friend gave him the hat and he threw it when he saw her because he did not want her to think he was an 18th Street gang member. He told her that he did not know who the gun belonged to or how it ended up lying next to his hat.
Miranda v. Arizona (1966) 384 U.S. 436.
A petition alleged U. committed the following offenses: minor in possession of a firearm (Pen. Code, § 12101, subd. (a)(1)) (count 1), gang member carrying a loaded firearm in public (§ 12031, subds. (a)(1), (a)(2)(C)) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). The petition alleged he committed counts 1 and 2 for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
All further statutory references are to the Penal Code, unless otherwise indicated.
U. filed a motion to suppress evidence, and the district attorney responded. After taking Moore’s and Cunha’s testimony for purposes of the motion and trial, and hearing argument, the juvenile court denied the motion.
U. sought to suppress the handgun, the baseball hat that said, “‘[E]ighteen,’” and his statements.
At trial, the district attorney offered the testimony of Officer Bryan Janocha, a gang expert. After explaining his training, education, and experience, Janocha testified concerning gang culture and habits. He stated traditional Hispanic street gangs are turf oriented and they control their turf through fear and intimidation. He said a gang’s or gang member’s reputation is enhanced through violence, and guns allow a gang member to commit more violence.
Janocha stated he was familiar with the 18th Street criminal street gang because he was assigned to investigate its nearby rival, “‘Boys from the Hood’” (Boys). He delineated its territory, which included the area where Moore saw U. and the others. He stated 18th Street had approximately 25 members at the time of the incident, and its signs were “‘18,’” “‘Eighteen,’” and “‘XVIII.’” He said 18th Street’s primary activity was assault with a deadly weapon. Based on criminal records admitted into evidence, Janocha testified as to the predicate offenses of robbery (§ 211), and minor in possession of a firearm (§ 12101, subd. (a)(1)).
Janocha said he knew U. because he investigated a case where U.’s brother shot a Boys gang member with a .22-caliber handgun. Janocha opined U. was an active member of 18th Street criminal street gang on the day of the incident because he was in 18th Street territory, he was wearing a hat that said, “‘Eighteen,’” and he had a gun. Based on a hypothetical mirroring the facts of this case, Janocha stated the firearm offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang because he was wearing a hat that said “‘Eighteen,’” he was with 18th Street associates, and he had a gun. He stated possessing a gun promotes the gang because it can be used to commit violence, including shooting a rival gang member who comes through its territory. He also opined the firearm offenses were committed to promote, further, or assist criminal conduct by other 18th Street gang members for the same reasons.
The juvenile court found true all the offenses and allegations. The court declared U. a ward of the court, and placed him on formal probation, which included commitment to a juvenile facility for 120 days.
DISCUSSION
I. Motion to Suppress
In evaluating a challenge to a trial court’s ruling on a motion to suppress evidence, we use a two-pronged standard of review. First, we defer to the trial court court’s express or implied factual findings if they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Second, “we exercise our independent judgment[]” to determine whether, on these facts, the challenged seizure violated the Fourth Amendment. (Ibid.)
“Under the cases, an officer may stop and detain a [person] on reasonable suspicion . . . the [person] has violated the law. Citations. The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.] [¶] Reasonable suspicion is a lesser standard than probable cause . . . . [Citation.] But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
Here, under the cover of night, four individuals were standing near a car parked between an apartment complex and a commercial business in a residential neighborhood. They were inspecting a large number of compact disks that were all the same color. There was loud music coming from the car, which one could reasonably conclude was a demonstration of the quality of the compacts disks. Based on these facts, it was reasonable for Moore to suspect the individuals possessed or were selling illegally manufactured compact disks.
As Moore made a U-turn, she saw U. hurriedly walk away, while the other individuals remained near the car. He ignored her first request to come back. U. walked back only after she persisted. Based on U.’s fleeing of the area and his refusal to obey Moore’s order, it was reasonable for Moore to suspect U. possessed or was selling illegally manufactured compact disks. (Illinois v. Wardlow (2000) 528 U.S. 119, 124 [“nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”].) Therefore, we conclude there were specific articulable facts U. was engaged in criminal activity giving Moore reasonable suspicion to conduct an investigatory detention.
U. relies on the following facts to support his claim Moore did not have a reasonable suspicion he was engaged in criminal activity: Moore did not see how the compact disks were packaged, she did not see the black marker writing on the disks until after he was detained, it is not unusual for young people “to have a large collection of burned compact disks,” and she did not see the individuals exchange any money or “piles of cash.” Although one or more of these facts might have increased Moore’s level of suspicion, reasonable suspicion is based on the totality of the circumstances and it is a lesser standard than probable cause. And while we agree “burning” compact disks is not unusual, it was suspicious to have that large of a collection sitting on the hood of a car parked on a driveway between an apartment complex and a commercial business at 9:00 p.m., on a Sunday night, with music blaring from the car. Finally, it was reasonable to conclude U. and his two gang associates were testing the compact disks in preparation for sale. We conclude, based on the totality of the circumstances, it was reasonable for Moore to suspect U. was engaged in criminal activity.
II. Sufficiency of Evidence
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s 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.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).)
A. Firearm Offenses
U. argues insufficient evidence supports the juvenile court’s finding he committed counts 1 and 2 because there was no evidence he possessed the gun. We disagree.
As we explain below, U. argues insufficient evidence supports the juvenile court’s finding he committed counts 1 and 2 for the benefit of a criminal street gang. In attacking the sufficiency of the evidence on one of the required statutory elements, U. states he “was the only one who possessed a weapon.” He also states, “[his] possession of the gun” satisfied one of the statutory elements. We assume for purposes of discussion he was not conceding this point.
Possession may be constructive, which occurs when the defendant has a right to control the contraband or has “dominion and control over the place where it is found[,]” even if his or her right to exercise dominion and control over the place is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Constructive possession may be found “[w]hen contraband is found in a place to which the defendant and others have access and over which none has exclusive control[.]” (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) Mere presence at the place where contraband is found, or proof of opportunity of access to a place where contraband is found, without more, will not support a finding of possession. (Id. at p. 346.) Possession may be proved by circumstantial evidence and inferences drawn from such evidence. (People v. Glass (1975) 44 Cal.App.3d 772, 774.)
Although Moore did not see U. throw anything, a trier of fact could reasonably conclude that when U. saw Moore drive by, he walked away and threw the hat and gun on the grass. U. admitted the hat was his, and the gun was lying less than six inches from the hat. Cunha testified that when he found the gun and hat, the gun was not muddy, dirty, or wet. And, there was no evidence any of the three other individuals walked where Cunha found the gun and hat. U. claims there were just too many other explanations for who put the handgun on the grass. As we explain above, “[w]e do not reassess the credibility of witnesses[.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 (Olguin).) Therefore, there was sufficient evidence U. had constructive possession of the handgun.
B. Street Terrorism
Relying on In re Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.), U. first claims insufficient evidence supported the juvenile court’s finding he committed count 3 and counts 1 and 2 for the benefit of a criminal street gang because there was no evidence 18th Street was a criminal street gang. We disagree.
Section 186.22, subdivision (a), states, “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 . . . in the state prison for 16 months, or two or three years.” (Italics added.)
Section 186.22, subdivision (b)(1), increases the punishment for gang-related crimes for “any person who is convicted of a felony 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 . . . .” (Italics added.)
At the time of trial, section 186.22, subdivision (f), defined “‘criminal street gang’” as “any ongoing organization, association, or 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 paragraphs (1) to (25), inclusive, of 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.”
The California Legislature subsequently amended section 186.22, subdivision (f), to include additional crimes listed in section 186.22, subdivision (e).
At the time of trial, section 186.22, subdivision (e), stated: “As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in [s]ection 245. [¶] (2) Robbery . . . (commencing with [s]ection 211) . . . . [¶] . . . [¶] (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of [s]ection 12101.”
It is well established, “[t]he subject matter of the culture and habits of criminal street gangs[]” is the proper subject of expert testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) Expert testimony is admissible even though it encompasses the ultimate issue in the case. (Evid. Code, § 805; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) “‘As a general rule, a trial court has wide discretion to admit or exclude expert testimony. An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.’ [Citation.]” (People v. Valdez (1997) 58 Cal.App.4th 494, 506, citations omitted.)
U. relies on the following colloquy, specifically the italicized language, to support his claim insufficient evidence supports the conclusion the 18th Street was a criminal street gang as defined in section 186.22, subdivision (f):
“[District attorney]: What is a criminal street gang?
“[Janocha]: It is an ongoing group or association which consists of more than three people who actively engage in a pattern of criminal activity as defined by [section] 186.22[, subdivision] (a)[,] . . . .
“[District attorney]: And does that group have -- are they formal and informal?
“[Janocha]: Correct.
“[District attorney]: And you indicated -- you talked about primary activity of . . . [s]ection 186.22[, subdivision] (a)?
“[Janocha]: I don’t think I talked about primary activity.
“[District attorney]: Well, what does that mean, ‘primary activity’?
“[Janocha]: It’s a crime that the gang would commit more than any other in enumerated crime.” (Italics added.)
Although Janocha did not specify what the 18th Street’s primary activity was during this exchange, he did so later in his testimony. He testified 18th Street was an ongoing organization with approximately 25 members at the time of the incident. He stated 18th Street’s common signs were “‘18,’” “‘Eighteen,’” and “‘XVIII.’” He testified 18th Street’s primary activity at the time of the incident was assault with a deadly weapon with force likely to produce great bodily injury, which is one of the enumerated crimes in section 186.22. (§ 186.22, subd. (e)(1).) And, he testified as to the predicate offenses, robbery and minor in possession of a firearm, establishing 18th Street engaged in a pattern of criminal gang activity. (§ 186.22, subd. (e)(2), (23).) Janocha’s testimony provided sufficient evidence for the juvenile court to conclude 18th Street was a criminal street gang as defined in section 186.22, subdivision (f).
Nathaniel C., supra, 228 Cal.App.3d 990, does not persuade us otherwise. In that case, the gang expert testified the primary activity of all gangs in his area is criminal. He recited a general list of crimes, only one of which was enumerated in section 186.22, subdivision (e). (Id. at p. 1004.) The court concluded the expert’s testimony did not establish the primary activities of the gang. (Id. at p. 1005.) Here, as we explain above, Janocha’s testimony did establish all the required elements of section 186.22, subdivision (f), including 18th Street’s primary activities. Therefore, sufficient evidence supported the juvenile court’s finding U. committed count 1 and counts 2 and 3 for the benefit if a criminal street gang.
U. also argues insufficient evidence supported the juvenile court’s findings he committed counts 1 and 2 for the benefit of a criminal street gang because there was no evidence he “had ‘the specific intent to promote, further, or assist any criminal conduct by [other] gang members.’” Not so.
The evidence at trial established U., an active participant in 18th Street, and two other 18th Street gang members were looking at compact disks in 18th Street territory, and 18th Street was in the midst of a feud with a nearby rival. The evidence also established that when U. saw Moore, he hurriedly walked away, and Cunha later found a hat that read “‘Eighteen’” and a loaded gun near where U. had walked.
Janocha provided testimony concerning gang culture and habits, including the importance of violence and guns. Based on a hypothetical mirroring the facts of this case, Janocha opined the offenses were committed for the benefit of a criminal street gang “because you have an individual who’s, in essence, advertising that he is from 18th Street. He has a hat that says ‘Eighteen’ on it. He’s representing his neighborhood via that hat. He says that two of the people he’s with are 18th Street associates. The three of them are, in my opinion, posted up in 18th Street claimed area. [¶] [18th] Street, like I said, has had an ongoing bitter feud with another gang that’s very close by. He’s wearing a hat, he’s in the neighborhood, and he is in possession of the gun. The gun is used, in my opinion, to basically back up what it says on his hat.” He explained, “post[ing] up” meant they were openly representing their gang in the neighborhood. When asked how the gun promotes or furthers a gang, Janocha explained: “Because that gives the gang power; it gives the gang a means by which to commit violence. If enemy or rival gang members come through that neighborhood and a fight ensues, there’s a gun there that can be used. It can be used either offensively or defensively. [¶] But either way, in my opinion, when three gang members are in their neighborhood and one of them has a gun, chances are that gun is going to be used in some sort of altercation with another gang. And them being able to use a gun obviously helps them, obviously helps them establish their reputation, but also would help them win some sort of physical confrontation with rival gangs, gang members.”
We acknowledge an expert witness is not permitted to give an opinion regarding the defendant’s specific intent. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) The expert does not decide whether the defendant had the requisite intent, but offers testimony as to factors the trier of fact may consider in determining the defendant’s intent. Expert opinion may be sufficient circumstantial evidence from which the trier of fact could conclude the defendant on trial had the requisite specific intent to commit the crime charged. “In cases involving possession of marijuana or [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]” (People v. Newman (1971) 5 Cal.3d 48, 53, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)
Here, evidence on the issue of intent was presented through the gang expert’s testimony. Based on a hypothetical mirroring the facts of this case, Janocha opined the offenses were committed for the benefit of a criminal street gang because the person was advertising, via the hat, he was an active 18th Street gang member. He testified possessing a gun promotes the gang because it can be used to commit violence. He said a gang’s or gang member’s reputation is enhanced through violence, and guns allow a gang member to commit more violence. Based on all the evidence, a rational trier of fact could conclude U. discarded the hat and gun when he saw Moore and that he possessed the gun with the specific intent to promote the 18th Street criminal street gang.
It was for the court to either accept or reject the expert’s opinion and, if accepted, determine the appropriate weight to be given the expert’s opinion in determining whether U. had the requisite intent. As we explain above, it is not our role to reweigh the evidence. (Valdez, supra, 32 Cal.4th at p. 104.)
Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), U. also contends insufficient evidence supports the juvenile court’s findings he committed counts 1 and 2 for the benefit of a criminal street gang because there was no evidence he had “the specific intent to promote, further, or assist in any [other] criminal conduct by gang members[.]” Again, we disagree.
In Garcia, supra, 395 F.3d at pages 1103-1104, the majority concluded the above italicized language requires defendant commit the crime “to enable or further other criminal activity by the gang.” We are not bound by lower federal court decisions. (People v. Hill (2006) 142 Cal.App.4th 770, 774 (Hill).) Additionally, California courts have criticized and refused to follow Garcia’s interpretation of section 186.22, subdivision (b)(1). (Ibid. [statute’s plain language requires showing of specific intent “‘to promote, further, or assist in any criminal conduct by gang members[,]’” rather than other criminal conduct]; People v. Romero (2006) 140 Cal.App.4th 15, 19 [same].) We find Hill and Romero persuasive and conclude section 186.22, subdivision (b)(1), requires evidence of “specific intent to promote, further, or assist in any criminal conduct by gang members,” not “other” criminal conduct.
Taking all the facts as a whole, we conclude sufficient evidence supports the juvenile court’s finding U. committed counts 1 and 2 with the “specific intent to promote, further, or assist in any criminal conduct by gang members[.]” (§ 186.22, subd. (b)(1).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J. IKOLA, J.