Opinion
F064450
11-27-2012
In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 11CEJ600949-1)
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J. and Gomes, J.
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, for Plaintiff and Respondent.
It was alleged in a juvenile wardship petition filed November 8, 2011 (first petition) that appellant, D.M., committed the following offenses: possession of a controlled substance, viz., codeine (Health & Saf. Code, § 11350, subd. (a); count 1), resisting an executive officer (Pen. Code, § 69; count 2), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). In a second wardship petition, filed December 6, 2011, it was alleged appellant committed two counts of first degree burglary (§§ 459, 460, subd. (a); counts 1 & 4), two counts of active participation in a criminal street gang (§ 186.22(a); counts 5 & 6) and individual counts of grand theft (§ 487, subd. (a); count 2) and grand theft of a firearm (§ 487, subd. (d); count 3). At a jurisdiction hearing covering both petitions, the juvenile court found true all allegations except for count 1 in the first petition. Following the subsequent disposition hearing, the court adjudged appellant a ward of the court and placed him on probation. The court also ordered appellant to pay direct restitution totaling $11,583.19 to the victims of the two burglaries, and a restitution fine of $500 (Welf. & Inst. Code, § 730.6).
Except as otherwise indicated, all further statutory references are to the Penal Code.
We generally refer to subdivisions of section 186.22 in abbreviated form, i.e., 186.22(a) and 186.22(f).
On appeal, appellant's sole contention is that the evidence was insufficient to support his adjudication of violating section 186.22(a) as alleged in count 3 of the first petition. The elements of this offense are "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 56.) Appellant's challenge to the sufficiency of the evidence supporting this offense is limited to the third of these elements. We find this challenge to be without merit, and affirm.
In his opening brief, appellant presented the argument that the court erred in imposing the restitution fine. In his reply brief, he "retracts" this claim.
Section 186.22(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."
We refer to this element as the promote/further/assist element. By not challenging the sufficiency of evidence concerning the remaining elements, appellant implicitly concedes the sufficiency of the evidence supporting them.
FACTS
Because appellant challenges the sufficiency of the evidence of only one of the offenses of which he stands adjudicated, we limit our factual summary to the facts relevant to that offense.
On October 30, 2011, City of Clovis Police Officer Jason Smoak stopped a car for speeding. Appellant was the driver and sole occupant of the car. After appellant admitted he did not have a driver's license, the officer placed him under arrest for driving without a valid driver's license.
Shortly thereafter, while looking in the car "for information [regarding appellant's] identity, records with the vehicle, insurance, registration," Smoak found a prescription bottle from which the label had been removed. The bottle contained liquid codeine. The officer asked appellant if he had a prescription for the codeine, and appellant responded that he did not. At that point, appellant became "uncooperative," i.e., "he began to tell [Smoak] that it wasn't his, and he said [the officer] didn't have anything on him." Smoak arrested appellant for unlawful possession of codeine and placed him in the back of the patrol car. Smoak then drove appellant to the police station. As he started driving, appellant became "very loud" and "argumentative," and "[h]e continued to yell and continued to be uncooperative" upon arrival at the station. Appellant said, "'Fuck Clovis PD. I'm gonna get out, and when I do I'm gonna get my whip out and slap my 15s every day through Clovis. I'm gonna rip some donuts in all the intersections in Clovis that I can.'" He stated "he was gonna find [Smoak] when he gets out," and he told Smoak he was going to "'find your family, when you're with your family, and make you pay.'" Appellant "said he was from the Dog Pound and that he knew how to make [Smoak] pay."
Smoak took appellant's statements as a threat because he (the officer) was "familiar with gangs" and "somewhat familiar with the Dog Pound Gang," and he knew that "gangs are extremely violent and can follow through on their threats."
Gang Evidence
City of Fresno Police Detective Donovan Pope testified that he is an investigator with the Multi-Agency Gang Enforcement Consortium, he investigates gang crimes and he is "specifically assigned to African-American based criminal street gangs in Fresno." He opined that the Dog Pound is a criminal street gang within the meaning of section 186.22(f) and that appellant is a member of the Dog Pound. Pope testified that the "primary activities" of the Dog Pound Gang include "illegal weapons possession, felony assaults, and residential burglaries."
Section 186.22(f) provides that for purposes of section 186.22(a), "'criminal street gang' means 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, or (31) to (33), 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.
Detective Pope testified extensively as to the bases for these opinions. We do not summarize this testimony. Appellant does not challenge, and therefore implicitly concedes the sufficiency of, the evidence on these points.
The detective also indicated that appellant's actions, as testified to by Officer Smoak, "benefitted the Dog Pound Gang[.]" He explained: "The threats to the officer ... [are] just a way of trying to use the gang's violent reputation to instill fear in the officer. [Appellant is] trying to get respect, and the way to do that is to strike fear into somebody." As a result of doing so, "citizens or witnesses[] ... [are] not [going to] come testify, talk to police. That allows the gang to operate without any opposition or consequence whatsoever. So the attempt at trying to instill fear to deter [the officer] from doing what ... the officer needs to do ... is an example" of how he's trying to use his gang to "continue his illegal activity, and by instilling fear in that officer, his gang's [going to] benefit. It allows him and his fellow gang members to conduct their criminal activities freely without any type of opposition or any attempt to stop him in the future."
DISCUSSION
As indicated earlier, appellant argues that in threatening Officer Smoak on October 30, 2011, he did not willfully promote, further or assist in any felonious criminal conduct by members of the Dog Pound criminal street gang, and therefore his adjudication of violating section 186.22(a) as charged in count 3 of the first petition cannot stand. Specifically, he argues that "he could not have been found to have been willfully promoting, furthering, or assisting in Dog Pound Gang's felonious criminal conduct" at the time he threatened Officer Smoak because "there was no evidence presented that were any other Dog Pound Gang members present and committing felonious acts" at that time.
Appellant bases his claim that a gang member acting alone cannot be guilty of violating section 18622(a), in part, on CALCRIM No. 1400, which provides, in relevant part, as follows: "The defendant is charged [in Count ____ ] with participating in a criminal street gang [in violation of Penal Code section 186.22(a)]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, (he/she) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] a. directly and actively committing a felony offense; [¶] OR [¶] b. aiding and abetting a felony offense." However, as this court noted in People v. Salcido (2007) 149 Cal.App.4th 356 (Salcido), in rejecting a similar argument, "Published jury instructions ... are 'not themselves the law, and are not authority to establish legal propositions or precedent .... At most, when they are accurate, ... they restate the law.' [Citation.]" (Id. at p. 366.) In any event, there is nothing in CALCRIM No. 1400 that suggests that a jury may not convict on a charge of violating section 186.22(a) where the defendant acts alone.
As the parties note, this issue is currently before the California Supreme Court. (People v. Rodriguez (2010) 188 Cal.App.4th 722, review granted Jan. 12, 2011, S187680; People v. Gonzales (2011) 199 Cal.App.4th 219, review granted Dec. 14, 2011, S197036.)
Appellant also relies on statements in People v. Castenada (2000) 23 Cal.4th 743 in which the court referred to the promote/further/assist element as aiding and abetting, including the following: "[S]ection 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members ...." (Id. at p. 749.)
This court previously called this statement from Castenada "often misinterpreted" (Salcido, supra, 149 Cal.App.4th at p. 367), and has held that section 186.22(a) applies "to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor." (People v. Ngoun (2001) 88 Cal.App.4th 432, 436; accord, Salcido, at pp. 367-368.) At least one other Court of Appeal has agreed with our conclusion. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1305-1308). Appellant offers no argument that we should reconsider our holdings in Ngoun and Salcido, nor does he suggest any reason to limit those holdings such that a perpetrator of felonious gang-related conduct may not be convicted of violating section 186.22(a) unless he is in the company of other gang members at the time of such conduct. We will follow Ngoun, Salcido and Sanchez, and reject appellant's argument.
We turn now to the question of whether the evidence in the instant case is sufficient to support the promote/further/assist element. In general, in determining whether the evidence is sufficient to support a finding in a juvenile court proceeding the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of criminal convictions generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following: "[T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
When we apply these principles, we conclude Detective Pope's testimony was sufficient to establish that appellant's threats to Officer Smoak were intended to promote, further and assist in the commission of criminal acts by Dog Pound gang members by intimidating the officer and discouraging him from testifying against them or in any way attempting to impede the gang's criminal activities.
DISPOSITION
The judgment is affirmed.