Opinion
B228829
01-12-2012
In re E.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.C., Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PJ 450015)
APPEAL from a judgment of the Superior Court of Los Angeles County, Benjamin R. Campos, Commissioner. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found true the allegations of petitions filed on July 17, 2009 (first petition), November 13, 2009 (second petition), and March 15, 2010 (third petition), alleging that appellant E.C. fell within Welfare and Institutions Code section 602 in that he willfully disobeyed a court order, the Pacoima Project Boys (PPB) Gang Injunction (gang injunction), in violation of Penal Code section 166, subdivision (a)(4) on May 21, 2009, September 15, 2009, and January 30, 2010, respectively. Appellant, age 16 on the dates he is alleged to have disobeyed the gang injunction, appeals contending (1) the judgment must be vacated and the three petitions dismissed because his parent was not served with the gang injunction and had no other prior notice of it; and (2) there is insufficient evidence he was stopped while in public view or at a place accessible to the public. We disagree and affirm.
With certain exceptions not relevant here, Penal Code section 166, subdivision (a)(4) provides that a person who is guilty of a contempt of court by "[w]illful disobedience of the terms as written of any process or court order . . . lawfully issued by any court" is guilty of a misdemeanor.
PROCEDURAL HISTORY
The three petitions each charged appellant with contempt of court by willful disobedience of a process and order lawfully issued by a court. Appellant denied the allegations of the petitions. At the adjudication hearing, after the close of the prosecution's evidence, appellant moved to dismiss the petitions under Welfare and Institutions Code section 701.1. Finding there was circumstantial evidence to establish appellant committed the offenses beyond a reasonable doubt, the juvenile court denied the motion to dismiss. Appellant then offered evidence in his defense. After hearing the evidence presented by both parties, the juvenile court sustained all three petitions. The court held a disposition hearing on the same date and declared all three offenses to be misdemeanors. Appellant was ordered placed at home on probation, with the maximum term of confinement not to exceed an aggregate of 10 months. Appellant received three days of predisposition credit. Appellant timely appealed from the order declaring him a ward of the court.
FACTS
1. Prosecution Evidence
A. Service of Gang Injunction
Los Angeles Police Officer Jose Mendoza was assigned to the Northeast Gang Enforcement Detail and testified as an expert on the PPB gang. Officer Mendoza described PPB's territory as the area bounded by Pierce Street to the south, San Fernando Road to the west, Glenoaks Boulevard to the east and Paxton Street to the north (Safety Zone). He stated that as of late 2009 or early 2010, PPB had 254 documented members.
Genaro Estupinan, another Los Angeles police officer assigned to the Northeast Gang Enforcement Detail, testified that on April 28, 2009, about 5:15 p.m., he was on duty and observed appellant and Francisco A. standing on the corner of Carl Street and Carl Place. Officer Estupinan stopped his car and spoke with appellant, after which the officer filled out a field identification card with appellant's information. At that time, Officer Estupinan served appellant with a copy of the gang injunction. During this encounter, Officer Estupinan asked appellant if he was a member of the PPB, and appellant confirmed he was. Officer Estupinan testified he also spoke on that occasion with Francisco A., who admitted he was a member of PPB and had already been served with the gang injunction.
The gang injunction enjoined and restrained PPB, all of its members and "all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them . . . from engaging in or performing directly or indirectly" activities in the Safety Zone including "[s]tanding, sitting, walking, driving, gathering or appearing, anywhere in public view or anyplace accessible to the public, with any known member of the Project Boys criminal street gang . . . ."
Officer Estupinan further testified that at some point, he could not recall exactly when, he also served the gang injunction on Cesar F., who too was a member of PPB.
B. First Offense
On May 21, 2009, about 7:15 p.m., Officer Mendoza was on duty at the San Fernando Gardens Housing Project near Lehigh Avenue and Carl Street, within PPB territory. He saw appellant and Cesar F. sitting in chairs talking to each other. Officer Mendoza had previous contacts with Cesar F. Based on those contacts, Officer Mendoza knew that Cesar F. was a self-admitted PPB member. The officer expressed an opinion that Cesar F. was a PPB member on the day the officer observed him with appellant. After watching appellant and Cesar F. for some time, Officer Mendoza made contact with them.
C. Second Offense
At 5:00 p.m. on September 15, 2009, Officer Mendoza was on duty and saw appellant huddled on chairs with Alejandro F. and Carlos P. on Pierce Street, within PPB's territory. Based on Officer Mendoza's prior contacts with Alejandro F. and Carlos P., both of whom were self-admitted PPB members, Officer Mendoza opined that both Alejandro F. and Carlos P. were PPB members on that date. Carlos P. also had tattoos causing Officer Mendoza to believe he was a member of PPB. After monitoring the three minors for a period, Officer Mendoza walked up to them and detained them for violating the gang injunction.
D. Third Offense
On January 30, 2010, at 6:00 p.m., Officer Mendoza was in uniform and on duty in a marked patrol car within PPB's territory, near Pierce Street and Lehigh Avenue. He saw appellant speaking with Francisco A. Officer Mendoza had about 20 prior contacts with Francisco A., during which he had seen Francisco A.'s tattoos and heard Francisco A. admit to being a PPB member. Officer Mendoza kept appellant and Francisco A. in view and monitored them from his car. Appellant and Francisco A. looked toward Officer Mendoza's direction. When Officer Mendoza opened the door of his car, intending to detain appellant and Francisco A., appellant took off running.
E. Officer's Cross-examination
On cross-examination, Officer Mendoza testified that the housing projects are enclosed by a 10-foot high fence with "no trespassing" signs at all the entrances. He testified that one can become a full-fledged member of the PPB either by invitation or by fighting with members of the gang (i.e., getting "jumped"). The officer stated that PPB members use the logo of the Toronto Blue Jays and that they normally wore a baseball cap displaying a "J" for "Projects." Gang members often have tattoos saying "PJ" or "PJB" or "Jets." Officer Mendoza indicated that PPB also assigns monikers to gang members. Alejandro F.'s moniker was "Timer," and Francisco A. went by "Flaco" or "Felon." None of the persons that Officer Mendoza observed with the minor had any visible tattoos.
2. Defense Evidence
Appellant testified he believed the San Fernando Housing Project was private property, based on several signs that said "No Trespassing" and "Private Property."
On the date Officer Estupinan stopped appellant, appellant was sitting with Alejandro F., when Francisco A. came toward them. Officer Estupinan told them to "stand up," that he had to talk to them. Officer Estupinan asked appellant, "Where you from?" Appellant understood that Officer Estupinan was asking what gang appellant was from. Appellant replied, "I am not from nowhere." The officer then asked appellant, "When you going to get jumped in?" To which question appellant replied, "I am not." Officer Estupinan then asked, "What they call you?" And appellant answered, "They don't call me nothing." The officer queried, "Why not?" Appellant responded, "I am not from nowhere." Appellant denied having any tattoos or carrying anything with PPB graffiti. He testified he was not wearing a Blue Jay's hat, and he told the officer he had no moniker.
Appellant stated that there were no PPB members living inside the San Fernando Housing Project. He testified Francisco A. was a friend whom he had known since age four, and they had grown up and gone to school together. Appellant denied ever being jumped into PPB. Appellant swore that he had never been arrested prior to these arrests for violating the gang injunction. He testified he did not consider himself a member of PPB, and he believed there were people who could testify he was not a member of PPB.
On cross-examination, appellant stated he no longer spent time with Francisco A., and he did not know whether Francisco A. was a member of the PPB. Appellant said he used to see Cesar F. at school but Cesar F. had been expelled and appellant no longer saw him. Appellant did not know if Cesar F. was a member of PPB. Appellant denied knowing Carlos P. He testified he had arrived to pick up Alejandro F. and had just sat down when Officer Mendoza drove up on September 15, 2009. He testified he did not know why he ran when he was with Francisco A. on January 30, 2010. He stated it had nothing to do with his being with Francisco A. or having been served with the gang injunction. Appellant did not deny he was served with a copy of the gang injunction. He did not think it was important to read because he was "not from nowhere," and he threw it away without reading it.
Appellant's mother testified that she was in his room daily and did not see anything in his room with the initials "PJB" or any graffiti or spray cans. She never saw appellant wearing gang attire, throwing gang signs with his friends or with any tattoos.
DISCUSSION
1. Service of Gang Injunction
Appellant contends the judgment should be vacated and the first, second and third petitions dismissed because his parent was not served with, and had no other prior notice of, the gang injunction. Appellant argues that state law and federal and state due process principles require that the minor's mother receive actual notice of the gang injunction as well as appellant. We disagree.
A criminal street gang can be enjoined under Code of Civil Procedure section 369.5, subdivision (a). (People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 40.) An injunction may apply to classes of person through whom the enjoined party may act, "such as agents, servants, employees, aiders, abettors, etc., though not parties to the action." (Id. at p. 42.) "'To render a person amenable to an injunction it is neither necessary that he should have been a party to the suit in which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice.'" (Id. at p. 43, quoting In re Lennon (1897) 166 U.S. 548, 554.) Indeed, there is no statutory requirement on the method of service of an injunction in the Code of Civil Procedure, and it has been held that "[a]ctual notice is not required, 'only a method reasonably certain' to give notice." (People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506, 1519.)
There is no dispute that Officer Estupinan personally served appellant with a copy of the gang injunction and that appellant had notice and knowledge of the injunction. However, appellant argues that service of the injunction could only be accomplished in the same manner as service of summons, because without notice of the injunction there could be no violation constituting contempt. He analogizes an injunction to a summons and asserts that service of the gang injunction was invalid because his mother was not also served with a copy of the injunction pursuant to Code of Civil Procedure section 416.60.
Code of Civil Procedure section 416.60 provides: "A summons may be served on a minor by delivering a copy of the summons and of the complaint to his parent, guardian, conservator, or similar fiduciary, or, if no such person can be found with reasonable diligence, to any person having the care or control of such minor or with whom he resides or by whom he is employed, and to the minor if he is at least 12 years of age." (Italics added.)
Appellant's contention was squarely rejected by Division Two of this court, in In re Orlando C. (2010) 186 Cal.App.4th 1184 (Orlando C.). In Orlando C., the minor was served with a copy of a gang injunction, but his parents were not. (Id. at p. 1188.) A petition was filed alleging that the minor had violated the gang injunction, and the juvenile court found the allegations to be true. The juvenile court accordingly found the minor to be a ward of the court, and the minor appealed from the judgment. The minor contended there was no evidence his parent was served with or had knowledge of the gang injunction. (Id. at p. 1190.) The minor argued that Code of Civil Procedure section 1016 equates a summons with a paper to bring a party into contempt because it provides that the provisions of the chapter governing "Notices, and Filing and Service of Papers" (Code Civ. Proc., § 1010 et seq.) "do not apply to the service of a summons or other process, or of any paper to bring a party into contempt." Thus, the minor argued, the Legislature's mentioning both summons and contempt together "'indicates a legislative view that they are analogous.'" (Orlando C., supra, at p. 1190.)
The appellate court in Orlando C. disagreed with the minor, saying, "the fact that Code of Civil Procedure section 1016 provides that both summons and contempt papers are not served in the manner specified in the 'Notices, and Filing and Service of Papers' chapter . . . supports only the conclusion that both cannot be served under those sections." (Orlando C., supra, 186 Cal.App.4th at p. 1190.) Section 1016 does not specify how such papers are to be served, the court observed, "and it does not follow that service of both are governed by the service of summons statutes." (Orlando C., at p. 1190.) The court added that even if it were assumed the minor's argument is correct, section 1016 "excludes both service of 'summons or other process' and 'any paper to bring a party into contempt.'" (Orlando C., at p. 1190, original italics.) "An injunction," the court explained, "does not bring a party into contempt" but rather only "sets forth the court-ordered restraints on the party's conduct." (Id. at p. 1191, italics added.) Unlike an order to show cause re contempt, an injunction is not a paper that brings a party into a contempt proceeding. Further, Code of Civil Procedure section 416.60 states only that "'[a] summons may be served on a minor,'" and it does not include any other type of document. (Orlando C., at p. 1191, original italics.) Moreover, the court had not found or been referred to any statute specifying "how, or if," an injunction should be served, adding that "[t]his may be because it need not be served." (Ibid.) The court thus concluded, as do we, that there is no requirement that the minor's parent be served with a copy of the injunction as well as the minor; delivery of the injunction to the minor is adequate to give both notice and knowledge of the injunction. (Ibid.)
Contrary to appellant's assertion that dual service was necessary so that his mother could take "appropriate" steps to protect appellant, it was highly unlikely appellant's mother would have taken steps to ensure his conformance with the order, because she did not believe appellant was a gang member and presumably would not have believed the gang injunction would apply to her son.
Appellant was not denied his federal or state due process rights. There is nothing in the record to suggest that appellant was not afforded due process when all three petitions were filed against him, nor that his mother was not given notice of those petitions. Because appellant was personally served with the gang injunction, and therefore had actual knowledge of the gang injunction, nothing more was required. (Orlando C., supra, 186 Cal.App.4th at p. 1191.)
2. Sufficiency of Evidence
Appellant contends that the judgment must be vacated and the petitions dismissed because there was insufficient evidence that appellant was stopped while in public view or at a place accessible to the public. Appellant argues that the juvenile court's failure to dismiss the three petitions due to insufficient evidence violates state and federal due process principles and requires vacation of the judgment and entry of a judgment of dismissal of the three petitions. We disagree.
A motion to dismiss under Penal Code section 1118 in an adult criminal nonjury trial "requires the trial court to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is 'proved beyond a reasonable doubt before [the defendant] is required to put on a defense.'" (In re Andre G. (1989) 210 Cal.App.3d 62, 66.) The same standard applies to motions to dismiss under Welfare and Institutions Code section 701.1 in a juvenile proceeding. (Andre G., at p. 66.) The standard of review of the juvenile court's denial of a motion to dismiss is whether substantial evidence supports the offense charged in the petition. (In re Man J. (1983) 149 Cal.App.3d 475, 482.) In applying the substantial evidence rule, we assume in favor of the court's order the existence of every fact from which the court could reasonably have deduced from the evidence whether the offense charged was committed and whether it was perpetrated by the person or persons accused of the offense. (Ibid.) Thus, "'we may not set aside the trial court's denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.'" (Ibid.; In re Cesar V. (2011) 192 Cal.App.4th 989, 995.)
The pertinent provision of the gang injunction that appellant allegedly violated prohibits "[s]tanding, sitting, walking, driving, gathering or appearing, anywhere in public view or anyplace accessible to the public, with any known member of the [gang]." In the juvenile court, appellant argued that he was "never on public property or in view of the public" in that he was "observed standing only on private property, closed off to public access and outside of public view." (Underscoring omitted.) Appellant asserted that in order to see appellant engaging in the alleged conduct, "the police officers entered private property in a manner not permissible (and indeed criminally punishable) if performed by members of the general public."
In so arguing, appellant relies on People v. Krohn (2007) 149 Cal.App.4th 1294 (Krohn). In that case, a police officer used an emergency access key to open a gate into an apartment complex, after which he drove into the parking area and observed the defendant carrying a can of beer. (Id. at pp. 1296-1297.) The officer detained the defendant, and a subsequent search uncovered a number of controlled substances in his possession. (Id. at p. 1297.) The issue presented was whether the courtyard of defendant's gated apartment complex was a "public place" giving the officer cause to suspect that defendant was engaged in the criminal act of drinking alcohol in a public place. (Id. at p. 1298.) The court held that the defendant's motion to suppress the evidence of drugs should have been granted as fruits of a poisonous tree because even if the officer reasonably suspected defendant was drinking beer in the courtyard, the officer had no reason to suspect defendant of doing so in a public place. (Id. at p. 1299.)
Here, in denying appellant's motion to dismiss, the juvenile court found that the housing project was in the middle of the geographic territory covered by the gang injunction. The court observed that "the language may be a euphemism, the safety zone, but it's the area where the gang injunction applies and where the prohibitions regarding association are to be enforced." The court found the present case factually distinguishable from Krohn. To accept appellant's proposition, the court found, would be to invert the common meaning of the language. The juvenile court noted that the term "public" can have different meanings, and it can mean public in general and public in particular. The court viewed the photographs admitted in evidence that depicted the fence surrounding the project and the "No Trespassing" signs, in concluding appellant was in "public view" or a place "accessible to the public." The court noted: "It's clear you can see through the fence at some locations. And whether you can see the entirety of the location, interior of the location, I believe the residents of the complex are members of the public. And if it's visible to them, it's within public view."
The gang injunction clearly prohibited gang members and anyone acting in concert with or in association with them from standing, sitting or appearing "anywhere in public view or anyplace accessible to the public." Unlike the officer in Krohn, there is no evidence that the officers in this case used an emergency access card to gain entry into the gated project or otherwise entered in a manner exclusive to law enforcement and inaccessible to the public. The juvenile court made a factual finding that appellant was associating with gang members "in public view." Substantial evidence, including the testimony of the officers and photographs of the locations, supports this finding.
Although we granted appellant permission to augment the record with the photographs admitted into evidence by reference, appellant failed to provide them to this court. It is the appellant's burden to demonstrate there is no substantial evidence to support the findings under attack by providing the reviewing court with a sufficient record. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Absent the photographs, we will presume they support the juvenile court's finding that the locations at issue were within public view. (Ibid.)
In any case, whether a particular location is a "public place" or "public area" depends on the totality of facts in a particular case. (People v. Cruz (2008) 44 Cal.4th 636, 674.) In the court below, appellant relied on Los Angeles Municipal Code section 41.23, respecting trespass on Housing Authority property such as the San Fernando Gardens Housing Project, and argued the provisions restricting entry only to "authorized" persons equated the public housing project to a private apartment complex as in Krohn. But fences, gates and signs are only some factors to take into consideration in determining whether an apartment complex is a "public" place or area, and such barriers have even less force under the gang injunction order, which covered "anywhere in public view or anyplace accessible to the public." (Italics added.) A location may be in public view even if not accessible to the public, and it may be accessible to the public even though not in public view. Moreover, as the juvenile court expressly found, the "public" included residents of the complex and appellant was found in locations open to their view. The juvenile court considered the totality of the facts and concluded the locations at which the officers observed appellant in association with members of the PPB were in the public's view.
We note that a separate provision of the municipal code, Los Angeles Municipal Code section 41.24, expressly relates to "Trespass on Private Property," an indication that a private apartment complex is distinct from a public housing project.
We find sufficient evidence to support the juvenile court's finding the allegations of the petition to be true.
3. Maximum Term of Confinement
Although neither party has raised the issue, we note that the juvenile court determined the maximum term of confinement should not exceed an aggregate of 10 months. We have previously held that the juvenile court is not authorized by law to set a maximum term of physical confinement if, as here, the minor is not ordered removed from the parental home. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Appellant is entitled to have the maximum period of confinement stricken from the dispositional order.
DISPOSITION
The term of maximum confinement set forth in the court's November 15, 2010 order is stricken. In all other respects, the judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.