Opinion
G044356 Super. Ct. No. DL036850
10-07-2011
In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson and Kristine A. Guiterrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson and Kristine A. Guiterrez, Deputy Attorneys General, for Plaintiff and Respondent.
The Orange County District Attorney filed a juvenile wardship petition against J.S. (minor) alleging he carried a dirk or dagger. (Pen. Code, § 12020, subds. (a)(4), (c)(24); all further statutory references are to this code unless otherwise stated.) A second petition alleged minor committed grand theft (§ 487, subd. (a)), three counts of tampering with a vehicle (Veh. Code, § 10852), and petty theft (§§ 484, subd. (a), 488). After the court reduced the section 12020 charge in the first petition to a misdemeanor, minor admitted all counts in both petitions and was placed on probation pursuant to his plea agreement.
A third wardship petition alleged minor disobeyed a gang injunction by wearing gang clothing. (§ 166, subd. (a)(4)). The court sustained the petition and continued minor's probation.
Minor contends the evidence was insufficient to establish the injunction he was found to have violated was a lawfully issued order or that he was a member or active participant in the gang. Finding no error, we affirm.
FACTS
An injunction issued against the Varrio Viejo gang prohibits its members and anyone acting for its benefit from engaging in 16 activities in several safety ones in San Juan Capistrano. It applies to gang "members, agents, servants, employees and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any one of them . . . ." In relevant part, the injunction states: "Anywhere in any public place, any place accessible to the public, or in the public view, do not (1) wear, display, exhibit, or possess any clothes or accessories that you know advertise, advance, promote, represent, or refer to the Varrio Viejo Criminal Street Gang, including clothes or accessories that display, exhibit, or feature, in any variation or combination, the image, name, words, or letters . . . 'Swallows,' 'Swallow's Day,' . . . '13,' 'XIII,' 'X3,' . . . [or] images of swallows (birds) . . . ."
Swallows are one of the symbols of the Varrio Viejo gang. Hispanic street gang members in Southern California often wear the number 13 to represent their allegiance to the Mexican Mafia.
Minor and his father were served with copies of the injunction and his mother advised they had been served. When asked if he needed the injunction explained to him, minor said he did not and that he "was well aware of the injunction and its prohibitions." Minor's family moved to a different city at his probation officer's suggestion after he was served with the injunction.
Less than a month after minor was served with the injunction, sheriff's deputy Mark Peters spoke to him about his clothing. Minor was wearing gray Dickies pants, a navy T-shirt, and a belt buckle with the number 13 on it. Minor stated he knew Varrio Viejo was a criminal street gang and that he was wearing its colors. Peters advised minor his belt buckle violated the injunction and not to wear it.
Two weeks later, sheriff's deputy Patrick Rich came across minor riding his skateboard within Varrio Viejo gang territory and the safety zone of the injunction. Minor was wearing a T-shirt bearing the word "swallows" and pictures of swallows. His belt buckle also had the number 13 on it. Minor admitted being served with the injunction, that he knew swallows were a symbol of the Varrio Viejo gang, and that his parents had moved him out of the area because of the injunction. He denied knowing he was in the gang injunction zone.
Minor has violated probation numerous times by associating with known Varrio Viejo gang members, and gang graffiti and indicia have been found in his home. Deputies have also seen recent photographs of him with other Varrio Viejo gang members displaying gang hand signs. Minor told a deputy he had been "hanging out" with members of the Varrio Viejo gang since about February 2010.
DISCUSSION
1. Lawfully Issued Order
Minor contends the evidence was insufficient to show the injunction precluding him from wearing a T-shirt with swallows and a belt buckle with the number 13 on it was a lawfully issued order. According to him, nothing in the record shows this prohibition "was necessary to abate a public nuisance" or that wearing such clothing was "injurious to the health of the community, offensive to the senses, . . . blocked access to private property or public streets . . . ," or "interferes substantially and unreasonably with the enjoyment of public life . . . ." He asserts the evidence thus fails to show his conduct "constituted a public nuisance for which an injunction could lawfully be issued."
Minor invited any error in this regard. The "'doctrine of invited error prevents a party from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error[.]'" (In re Karla C. (2010) 186 Cal.App.4th 1236, 1267.) When the prosecution asked deputy Rich, who qualified as a gang expert, the reasons why gang members or associates would be prohibited from wearing certain clothing and insignias, minor's counsel objected on relevancy grounds. The prosecutor argued the evidence was relevant "because the defense could challenge the validity of the order" and requested "leeway" to show "why it is a valid court order" and not "arbitrarily chosen and just thrown in by the police department." Minor's counsel maintained the evidence was irrelevant "[u]ntil the questions are asked on cross[-examination] . . . ." The court asked the prosecutor to move on but would allow the questioning "[s]hould the issue be either brought up on cross-examination or argued subsequent . . . ." That never occurred.
Although minor moved to dismiss the petition contending the district attorney failed to present sufficient evidence to establish a public nuisance under section 166, subdivision (a)(4), he focused solely on whether he was an active member of the gang to whom the injunction applied. The issue of the validity of the order precluding him from wearing proscribed clothing was thus never raised in the trial court and minor cannot now be heard to complain the record lacks the very evidence to which he successfully objected. We decline to consider the issue.
2. Active Gang Member
People v. Englebrecht (2001) 88 Cal.App.4th 1236 held that "for the purposes of a gang injunction an active gang member is a person who participates in or acts in concert with an ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of acts constituting the enjoined public nuisance, having a common name or common identifying sign or symbol and whose members individually or collectively engage in the acts constituting the enjoined public nuisance. The participation or acting in concert must be more than nominal, passive, inactive or purely technical." (Id. at p. 1261.)
Relying on this passage, minor argues the prosecution had to show that wearing T-shirts with swallows and the number 13 on belt buckles in public was a primary activity or chief or principal occupation of Varrio Viejo gang members. He contends there was no evidence of this or that he acted in concert with gang members in wearing the banned items and thus the evidence was insufficient to show he was a member or active participant in the gang.
But Englebrecht addressed only the definition of an active gang member. The injunction in this case enjoined not only members of the Varrio Viejo gang, but also its "agents, servants, employees and all persons acting under, in concert with, for the benefit of, at the direction of or in association with them or any one of them . . . ." (Italics added.)
In denying minor's motion to dismiss the petition, the court found minor was "advertising in an open and repeated fashion to promote the position of the Varrio Viejo gang." Substantial evidence supports this determination. Less than a month after being served with the injunction and his family moving him out of the area, deputies found minor back in a safety zone where he was knowingly wearing clothing containing gang symbols. He had been hanging out with the gang for several months and deputies found gang indicia in his home and photographs of him with gang members displaying gang hand signs.
As Englebrecht explained, the wearing of clothing with the gang name or symbols "amounts to or contributes to the nuisance enjoined. Gangs use such means of expression to demonstrate affiliation which in turn facilitates collective criminal action, defines exclusive territory, intimidates nongang members and serves as a warning and challenge to members of other gangs." (People v. Englebrecht, supra, 88 Cal.App.4th at p. 1266.) Because the record supports the finding the minor was acting for the benefit of the Varrio Viejo gang in wearing the T-shirt with the sparrows and the belt buckle with the number 13 on it, we need not consider whether there was also substantial evidence to show he was an active gang member within the definition set forth by Englebrecht.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
O'LEARY, J.
MOORE, J.