Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DL015028, Donna L. Crandall, Judge.
Deborah A. Kwast, Orange County Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin J. Phillips, and Martin F. Schwarz, Deputy Public Defenders, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Victor V., already a ward of the court under Welfare and Institutions Code section 602, was found to have committed the charges in a subsequent petition by the juvenile court. Specifically, he was found (1) in contempt of court for violating certain terms of a gang injunction (see Pen. Code, §§ 166, subd. (a)(4), 186.22. subd. (d)), and (2) resisting and obstructing a police officer in the lawful performance of his duties. (See §§ 148, subd. (a)(1), 186.22, subd. (d).) The juvenile court found that the gang injunction violation was committed for the benefit of, or at the direction of a criminal street gang. (See § 186.22, subd. (d).) Victor was ordered to spend 180 days in an appropriate juvenile facility under a renewed grant of probation.
All further section references are to the Penal Code unless otherwise stated.
On appeal, Victor claims the evidence is insufficient to sustain the juvenile court findings and that the gang allegation could not legally be attached to the gang injunction contempt charge. We agree with the latter contention and direct the clerk of the superior court to modify the juvenile court order by striking the special allegation attached to the first charge. Once modified, we affirm the juvenile court order.
I.
FACTS
On January 3, 2007, Anaheim Police Officers Heinzel and Boyers saw a group of people in an alley at 2045 South Haster Street, an area they knew to be within the “safety zone” delineated in an “Amended Preliminary Injunction” filed November 17, 2006 in case number 06CC10916. That injunction, designed to eradicate criminal street gang misconduct, included a list of gang members’ names, and Victor was one of them, as was Victor G. The injunction prohibited members of Boys From The Hood (BFTH), a criminal street gang, from “[s]tanding, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with any other defendant herein, or any individual known to the defendant to be a member of” the BFTH in the defined “safety zone[.]”
Heinzel and Boyers approached the group of seven young men, recognizing Victor and a few others from previous contacts Heinzel had had with them. He was aware of the terms of the court injunction.
As the officers approached, the youths attempted to flee. Heinzel, however, managed to grab Victor, who was able to wrest free of his grasp when Heinzel reached for another of the youths. Victor then ran through a walkway that led out of the alley. Heinzel pursued Victor on foot and eventually caught up with him and detained him.
Anaheim Police Department Investigator Bryan Janocha testified as a gang expert at Victor’s dispositional hearing. Janocha testified that he has had five years of experience dealing with, and contacting members of BFTH. Janocha testified that BFTH members typically wear clothing that relates to the Dallas Cowboys football team and the color of dark blue. Janocha explained that BFTH members also refer to themselves as “Vario Boys,” and that they use hand signs of a “V” or a “B” for “Vario Boys,” referring to their gang territory as their barrio. They are allied with a criminal street gang known as South Side Huntington Beach (SSHB). They consider all other gangs to be enemies.
Janocha testified that the BFTH street gang has been around since the mid- 1990’s and claim their territory as Harbor Boulevard on the west, State College on the east, Chapman on the south, and the I-5 Freeway at Harbor Boulevard to the north. At the time of Victor’s arrest, the BFTH had approximately 80 members.
Janocha further testified that he has seen graffiti by members of BFTH in the named neighborhood including “Boys From The Hood” spelled out, “B.F.T.H.,” “B.V.,” or “Anaheim Boys.” The most common criminal acts of members of BFTH are auto theft and felony vandalism.
Janocha testified that he was familiar with Victor from personal contacts he had with him many times over the past few years. Janocha held the opinion that Victor was a member of BFTH. He based his opinion partly on field interview cards that he read, on cases that he investigated involving Victor, and on the previous occasions in which he met and talked with Victor who sported a tattoo of “Anaheim Boys.” Janocha testified that numerous field interview cards indicated a link between Victor and BFTH. He stated that Victor was found in the company of BFTH members on several occasions, which were documented in field interview cards. Furthermore, one field interview card indicated that Victor admitted he was a member of BFTH. Janocha also testified that he heard that Victor’s stepfather believed Victor to be a BFTH member.
Victor was also involved in previous incidents involving BFTH gang members. On July 31, 2005, the Orange Police Department documented in a police report that Victor was in a car that was stopped, and he was with BFTH gang members and admitted affiliation with the gang. On January 13, 2006, Victor was again seen in the company of two other BFTH gang members. In another incident, Victor ran from officers, but was caught with a large felt marker in the company of other BFTH members and adjacent to surfaces where BFTH graffiti was evident. Furthermore, Victor was also the victim of a gang-related shooting: He was shot by members of a rival gang, Jeffrey Street, in a confrontation between the two gangs. Witnesses to that incident stated that Victor’s group was yelling out “Boys,” while the car’s occupants were yelling “Jeffrey Street.”
Janocha was also familiar with an individual named Victor G. (V.G.) and had personal contact with him in the past. Janocha testified that in his opinion, V.G. was also a member of BFTH. He stated that he investigated a case involving V.G. in which V.G. spray-painted graffiti of BFTH in a rival gang neighborhood. Janocha also testified that he was present when the preliminary gang injunction was signed by the judge and that both Victor and V.G. were named individuals enjoined by the terms of the injunction. Finally, Janocha was present when the gang members—including Victor V. and V.G.—were served with the preliminary injunction.
At the dispositional hearing, Heinzel testified as to who was at the scene along with Victor when they were detained. Heinzel was asked, “The other individual… the person you initially attempted to detain, that was the minor?” to which Heinzel replied “Yes.” He was then asked, “And the other individual,” at which point he was shown a photograph marked as People’s 1, and asked “Do you recognize the individual in that photo?” Heinzel again replied, “Yes” and stated, “he was one of the others that was there that initially attempted to flee.” (Italics added.) Heinzel, however, went on to identify the individual depicted in the photograph as Victor V.—the minor’s name—not Victor G. Janocha later testified that on the day of the incident, he attempted to interview both V.G. and Victor at the scene as both of them had been detained by Heinzel.
Janocha was also given a hypothetical scenario like the incident in Victor’s case. Janocha testified that in his opinion, based on the scenario, the offense was done in association with and for the benefit of a criminal street gang. Janocha explained that the basis of his opinion was that gang members are defiant towards law enforcement to benefit their reputation. He stated that the gang members, seen together in a group, despite an injunction forbidding it, and then running from law enforcement, creates fear and intimidation in the area which enhances the gang members’ reputation.
II
DISCUSSION
Sufficiency of Evidence
Victor claims that there is insufficient evidence to support the court’s finding that he violated the association terms of the gang injunction. “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Victor does not attack the lack of evidence comprising any of the elements of either the contempt statute or the gang violation. He focuses his complaint on the identification of himself and the requisite other gang member and argues the failure of proof on the identification issue warrants a reversal.
Evidence Establishes That Victor Was Associating With V.G.
Victor first argues that the People failed to establish that he was in the company of V.G., a BFTH gang member. Viewing the evidence in the light most favorable to the People as we must (People v. Kraft (2000) 23 Cal.4th 978, 1053), we disagree.
At the hearing, Janocha testified that on the day of the incident, he arrived at the scene after Victor and V.G. were detained and attempted to interview them both. The trier of fact could reasonably infer from this testimony that Victor and V.G. were in the company of one another, in violation of the injunction, because they were both detained at the scene on the day of the incident, by the officers enforcing the injunction at that location.
Nonetheless, Victor argues that Heinzel failed to identify V.G. as the person in the photograph marked as People’s 1. Although it is clear from Heinzel’s testimony that he was referring to someone other than the minor Victor, he argues there is no credible evidence placing both himself and V.G. at the scene together and in each other’s company.
Heinzel first testified that Victor was the person he initially attempted to detain. He also identified Victor in court. Heinzel then testified that the other individual he attempted to detain was depicted in the photograph, People’s 1. It is clear that Heinzel was not speaking of Victor V. even though he identified the name of the person in the photograph with the same name as the minor.
Obviously, Heinzel misspoke because Janocha was also shown People’s 1 and identified the individual in the photograph as Victor G., not the minor, Victor V. Janocha was familiar with both Victor and V.G. and yet identified the youth in the photograph as V.G.
“In deciding the sufficiency of the evidence, [we] resolve[] neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
We conclude that the trier of fact resolved the conflicts and inconsistencies in the testimony, finding that, based on Heinzel’s testimony, the person in the photograph was one of the individuals in the alley with Victor, and from Janocha’s testimony, that the person in the photograph was V.G. Circumstantial evidence supports the juvenile court’s finding that Victor was in the alley with V.G., in direct violation of the gang injunction. When “‘“‘“the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”’ [Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 58.)
Knowledge Requirement for Violation of Gang Injunction
Victor argues that the People failed to establish he knew that any of the individuals he was associating with in the alley were members of BFTH as required by the gang injunction. Victor argues that since there is no proof that he knew V.G. was a BFTH gang member, there is insufficient evidence to prove he violated the gang injunction. Victor relies on People ex rel Gallo v. Acuna (1997) 14 Cal.4th 1090 (Gallo), in his contention that there must be a knowledge requirement in a violation of a gang injunction. Thus, evidence must show that he knew the other individual was a gang member.
First, we note that the injunction in this case is dissimilar to the injunction in Gallo. The Gallo gang injunction was found to be vague when it stated “‘any other known “VST”. . . or “VSL” member,’” because the injunction would include individuals known to the police to be gang members but not necessarily known to the defendant as such. The court stated that there must be a limiting construction of the injunction that requires the “defendant’s own knowledge of his associate’s gang membership.” (Gallo, supra, 14 Cal.4th at p. 1117, original italics.)
The injunction in Victor’s case does not have the same problem because its language provides for the exact requirement Gallo demands: the defendant’s knowledge of another’s gang membership. It states that Victor cannot associate, “with . . . any individual known to the defendant to be a member of the Boys From the Hood Criminal Street Gang.” (Italics added.)
However, the injunction in Victor’s case also provides another means by which Victor could be in violation. The injunction specifically bars his association “with any other defendant [named] herein.” (Italics added.) This alternative association element is such that there is no requirement that Victor knew an individual was a BFTH gang member, as long as the individual was listed as a defendant in the injunction, which list was served on Victor at the same time as the injunction itself.
Since V.G. was a listed defendant in the injunction, there was no requirement that the prosecution prove that Victor knew V.G. was a BFTH gang member. Therefore, there was sufficient evidence for the trier of fact to find Victor violated the injunction order, since Victor was associating with V.G. in the alley, and V.G. was a listed defendant in the injunction order.
Violation of Penal Code Section 148, Subdivision (a)
Victor also argues that he could not have willfully resisted, delayed, or obstructed a peace officer in the discharge of his duties (§ 148, subd. (a)) when he ran from Heinzel because Heinzel was not acting within the lawful scope of his duties when he attempted to detain him. Victor contends that if the contempt charge cannot be proven because of Heinzel’s failure to name V.G., then Heinzel was not acting in the lawful discharge of his duties when he attempted to detain Victor at the scene. This argument, however, depends on the success of his first argument, resolved adversely to Victor in the above discussion.
The trier of fact found that both Victor and V.G., two named defendants under the gang injunction, were together in an alley located within the designated safety zone in the injunction. When Heinzel attempted to detain them, they both attempted to flee, with Victor breaking free from Heinzel’s grasp and fleeing the scene, requiring Heinzel to pursue him on foot before grabbing him and returning him to the scene. We are required, as a reviewing court, to accept all “[r]esolution of conflicts and inconsistencies in the testimony [made by] the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181.) Nothing about the testimony in this case renders the identification impossible or “inherently improbable.” (Ibid.)
There is sufficient evidence that a trier of fact could reasonably find that Heinzel, drawing from his training and experience, suspected violation of the gang injunction and suspected that Victor was involved. (Cf. In re Tony C. (1978) 21 Cal.3d 888, 893.) He answered a call to investigate a group of individuals in an alley. He had received gang enforcement training and was aware of the gang injunction and the “safety zone” that it described and in which the alley was located, was within the “safety zone” described in the injunction. Further, Heinzel recognized some of the individuals that he observed in the alley and specifically recognized Victor from prior contacts he had with him over the years.
The trier of fact could reasonably find that any officer in a like position, who was familiar with the gang injunction, the area it covered, and the individuals listed in it, would have reason to stop and detain individuals he was familiar with who were located in the gang injunction “safety zone” for questioning or limited investigation.
Therefore, there is sufficient evidence from which the trier of fact could reasonably find that Victor was lawfully detained and that he violated section 148, subdivision (a) when he ran from Heinzel.
Elevating the Contempt to a Felony By Attaching An Allegation Under Section 186.22, Subdivision (d)
Victor argues that a felony prosecution cannot legally be accomplished by bootstrapping a gang enhancement under section 186.22 onto a criminal contempt charge when the underlying order is based on, and attempts to abate the same gang-related conduct. He likens it to the impermissible bootstrapping effect prohibited in People v. Arroyas (2002)96 Cal.App.4th 1439 (Arroyas).
Such a dual use of the fact of gang misconduct was addressed directly in Arroyas. Arroyas was charged with vandalism after officers found him with a green pen defacing a sign. He then admitted to being a member of a particular gang with the moniker of “Chewy.” The initials of that gang and the name “Chewy” were found written in green ink on several nearby walls. (Arroyas, supra, 96 Cal.App.4th at p. 1441.)
The charge of vandalism was elevated to a felony for being gang-related under section 186.22, subdivision (d), and also enhanced by the allegation that it was gang-related under section 186.22, subdivision (b). The reviewing court upheld the felony designation of the crime due to the application of section 186.22, subdivision (d), even though the vandalism statute at that time required proof that the value of the damage to the property exceeded $5,000 to constitute a felony. However, the reviewing court struck the application of section 186.22, subdivision (b), which resulted in enhancing any prison term by two, three or four years. It did so, notwithstanding “the purpose of [section 186.22] was to combat the ‘state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.’ . . . . [¶] While any felony may be punished under section 186.22, subdivision (b)[], subdivision (d) presents an option to punish a felony differently than provided by subdivision (b)[], and also provides an option to punish gang-related misdemeanors more severely. Although subdivision (d) allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose, nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap subdivision (d) misdemeanors into subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.” (Arroyas, supra, 96 Cal.App.4th at pp. 1444-1445, italics added.)
The Arroyas court emphasized that section 186.22, subdivision (d) did not specifically elevate the crime to felony status. The statute actually transferred whatever substantive crime is charged into a “wobbler,” granting the power to the sentencing court to impose either felony or misdemeanor punishment, in its discretion. (Arroyas, supra, 96 Cal.App.4th at pp. 1443-1444.)
Section 594, subdivision (b)(2), as it stood in 2000, provided felony punishment for “maliciously” defacing, damaging or destroying property, but only if “the amount of defacement, damage, or destruction” was at least “five thousand dollars . . . .”
The Attorney General responds that Victor has not been doubly punished: He is not facing two separate and distinct enhancing subdivisions of section 186.22. Moreover, the District Attorney characterizes the Arroyas prohibition to be limited to those instances in which one enhancement automatically triggers the imposition of the second enhancement’s terms. Contempt is a misdemeanor, but it is elevated to a “wobbler” when committed for the benefit of a gang under section 186.22, subdivision (d). Thus, it can now be charged as a felony under section 186.22, subdivision (d). (§ 186.22, subd. (d); see Arroyas, supra, 96 Cal.App.4th at p. 1446 [the subdivision grants the sentencing court discretion to treat the offense as either a felony or misdemeanor].) Such a construction appears to meet the stated intent of the Gang Violence and Juvenile Crime Prevention Act—known as Proposition 21—a term of which became subdivision (d) of section 186.22. This law “voices the intent of the people that gang-related crimes receive enhanced punishment . . . .” (Id. at p. 1448.)
A “wobbler” is an offense chargeable as either a misdemeanor or a felony. (See People v. Vessell (1995) 36 Cal.App.4th 285, 291-292.)
However, as the Arroyas court noted, Proposition 21 does not permit “a defendant [to] receive double punishment because his or her crime fell within the scope of two statutes. Rather, [section 37 of Proposition 21] advises that where a crime does fall within the scope of two statutes, only the statute yielding the longer period of punishment should apply.” (Arroyas, supra, 96 Cal.App.4th at p. 1448.) Thus, the question remains whether obtaining an injunction against gang-related conduct by a gang member and then enhancing said conduct because it is gang related under section 186.22, subdivision (d), imposes the “double punishment” castigated in Arroyas.
In People v. Briceno (2004)34 Cal.4th 451, the California Supreme Court addressed and resolved the issue whether any felony to which an enhancement under section 186.22, subdivision (b) is attached, may qualify as a serious felony for future enhancement under section 667, subdivision (a)(1). Serious felonies are listed in section 1192.7, subdivision (c) which includes in subparagraph (28)—added by the passage of Proposition 21—”any felony offense, which would also constitute a felony violation of Section 186.22[.]” Briceno argued that could only mean the single felony of street terrorism under section 186.22, subdivision (a). The Court rejected this narrow interpretation, concluding that any felony to which an enhancement under section 186.22, subdivision (b) was attached would thereafter comprise a “serious felony” for later enhancing purposes. (Id. at pp. 458-459.)
In so holding, the Court rejected the characterization this interpretation resulted in double punishment or bootstrapping because “any felony that is gang related is not treated as a serious felony in the current proceeding, . . .” (People v. Briceno, supra, 34 Cal.4th at p. 465, italics added.) At the same time, the Briceno court approved the Arroyas holding by noting that it “avoids the impermissible bootstrapping that would occur if any felony that is gang related is also deemed serious in the current proceeding. Specifically, while it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B).” (Id. at p. 465, original italics.) The Court reiterated the Arroyas determination that “‘nothing in the statute or in its stated purposes suggests an intention of the people of this state to bootstrap [section 186.22,] subdivision (d) misdemeanors into [section 186.22,] subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment.’ [Citations.]” (Ibid.) In other words, the Supreme Court limits application of any of the enhancing or punitive statutes based on the same fact of gang benefit to one elevating effect, which section 37 of Proposition 21 dictates must be the most punitive provision.
The pertinent point voiced in the Briceno opinion was that the “same gang-related conduct” cannot be used twice in the same sentencing scheme without violating the concept of double punishment for the same act. (See People v. Briceno, supra, 34 Cal.4th at p. 465, original italics; see also People v. Ireland (1969) 70 Cal.2d 522, 539 [“This kind of bootstrapping finds support neither in logic nor in law. . . . when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.”], italics added.)
That appears to have occurred in Victor’s case: The same “gang-related conduct” is being used first as the violation of the injunction and then used again to elevate that offense from a straight misdemeanor to the wobbler under section 186.22, subdivision (d). It is most egregiously seen here because the actions comprising the violations of the court order are not criminal in themselves: They only become criminal because they are gang-related.
The language excerpted from Briceno undermines the Attorney General’s argument that only if one enhancement automatically triggers imposition of a second enhancement’s terms does double punishment come into play. Quite to the contrary, it is not the enhancement statutes that are crucial: The crux is if a single fact is used to prove both of the enhancing provisions. Whether double punishment is inflicted is not resolved simply because the jury must first find the underlying offense and then find the enhancement true. The dual use of the same fact of gang-related conduct is the pivotal point that constitutes the impermissible bootstrapping.
Specifically, Victor allegedly violated the injunction by being in company of another gang member while a gang member is within the safety zone. The Attorney General emphasizes that he is not charged with gang-related conduct; he is charged with willful disobedience of a lawfully issued court order. (See Raskin v. Superior Court (1934) 138 Cal.App. 668, 670 [contempt is essentially a crime against the authority of a court].) Thus, the actual offense with which he is charged does not, on its face, relate to the same facts used to elevate the crime under section 186.22, subdivision (d), i.e., gang-related conduct.
Irrespective of this characterization, the injunction was issued to abate gang-related conduct. It focuses only on otherwise innocent acts which are made criminal solely because they are engaged in by gang members for the benefit of that gang. And it is those otherwise innocent acts which comprise both the disobedience of the injunction and the proof of a gang connection for the enhancing allegation under section 186.22, subdivision (d). Thus, it is “the same gang-related conduct[used] again to obtain an additional” form of punishment (People v. Briceno, supra, 34 Cal.4th at p. 465, original italics), i.e., the elevated designation as a felony.
In People v. Englebrecht (2001) 88 Cal.App.4th 1236, a case involving an injunction issued by the San Diego Superior Court prohibiting gang members from wearing certain colors, using certain hand signs or voicing certain words indicative of that gang, the prosecution was only able to penalize a gang member engaging in such innocuous conduct because it had already established that such conduct was gang-related and that such gang behavior comprised a public nuisance. (Id. at p. 1257.) Without that showing, such acts or conduct were merely the exercise of a person’s protected liberty: “[T]he freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. . . . Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is ‘a part of our heritage’ [citation], or the right to move ‘to whatsoever place one’s own inclination may direct’ identified in Blackstone’s Commentaries. [Citation.]” (City of Chicago v. Morales (1999) 527 U.S. 41, 53-54.)
Moreover, “it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of [a] statute’s coverage. To the extent that the language or history of [a statute] is uncertain, this ‘time-honored interpretive guideline’ serves to ensure both that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability. [Citations.]” (Crandon v. U.S. (1990) 494 U.S. 152, 158.)
We conclude that the prosecution cannot criminalize otherwise legally protected behavior due to the sole fact that it is gang related and then increase punishment for that behavior simply by again alleging the same gang-related fact. We order the clerk of the superior court to modify the order by striking the enhancement attached to count one of the petition subsequent. Once modified, the order is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.