Opinion
B298001
06-09-2020
THE PEOPLE, Plaintiff and Respondent, v. ANGEL RODRIGUEZ, Defendant and Appellant.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Charles J. Sarosy, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 9PH01110) APPEAL from an order of the Superior Court of Los Angeles County. Jerry B. Marshak, Commissioner. Affirmed. Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
Angel Rodriguez appeals from an order revoking his parole. (Pen. Code, § 1203.2.) The trial court found he violated a parole condition prohibiting him from associating with or contacting known gang members. Police found appellant in a park near a large gathering of gang members wearing gang attire.
The revocation of appellant's parole was not an abuse of discretion. His conduct was recorded on police body cameras. As the court observed, if "a picture is worth a thousand words[,] a moving picture is worth maybe a million." Appellant can be seen entering a park known as a gang stronghold and approaching a gang party being held next to a basketball court. He told an officer he planned to play basketball, after eating the gang's barbecue. His conduct was willful. We affirm.
FACTS AND PROCEDURAL HISTORY
Appellant was convicted of second-degree robbery in 2010. (Pen. Code, § 212.5, subd. (c).) He was paroled on November 24, 2015. A condition of his parole reads, "You shall not contact or associate with any person you know or reasonably should know to be a member or associate of a prison gang, disruptive group, or street gang." Appellant signed a form agreeing to the conditions of his parole.
In February 2019, the state Department of Corrections and Rehabilitation petitioned to revoke appellant's parole. The petition states that police saw appellant in a public park with a group of Rolling 20's members in gang attire. He has violated parole seven times since 2016. His criminal record includes five felony convictions. Of his six misdemeanor convictions, four were incurred during parole.
Testimony showed that on February 9, 2019, Los Angeles Police Department officers converged on Loren Miller Park, where a large group congregated near a barbecue. The park is a stronghold of the Rolling 20's gang. Officers knew February 9 is a "hood day" on which the Rolling 20's celebrate their gang. Half of the people at the barbecue were gang members; some had gang tattoos and wore red clothing associated with the gang. Gang members only let people they know show up at their hood day.
Officer Thompson saw appellant in the park, with a bicycle. Thompson knew appellant was on parole and a member of the Dead End Harpy's gang, which associates and is friendly with the Rolling 20's. It is commonplace for a Black gang to have an alliance with a Hispanic gang, if they share territory. Appellant has gang tattoos on his face, neck and torso. His bicycle seat had decals of the letters "D" and "E," signifying the Dead End Harpy's clique. He was detained.
The court viewed and admitted into evidence three police body camera recordings. Officer Garcia testified that when she walked into the park, appellant and his bike were outside the park. The court closely examined the recordings and questioned Garcia, who agreed that appellant was riding his bike within the park as she arrived.
Appellant testified that he was at Loren Miller Park on his bicycle on February 9. He encountered police officers and greeted them. He saw they were arresting people. He was going toward the bathroom to shower because he is homeless, but the area was under construction. He decided to leave. At that point, Officer Thompson recognized appellant from a recent encounter and said they were going to arrest everyone for parole violations. Appellant testified, "I had no idea it was a hood day barbecue." He denies associating with Rolling 20's members or talking to anyone in the park. He was in the neighborhood looking for a sober living home.
In the recording, appellant tells Thompson he was on the way to play basketball in the park when he saw police. He adds that he was going to get some barbecue before playing basketball.
Appellant testified that he has been affiliated with the Harpy's gang for about 30 years, since he was 10 years old. He described himself as an ex-member. Hispanic gangs do not have hood days and he is unfamiliar with the term. The "D" on his bike seat stands for "Drake," the manufacturer; it has nothing to do with a gang.
A parole agent testified that appellant agreed to a condition prohibiting his association with gang members. After police detained appellant for violating that condition, he called the agent and said he does not associate with Rolling 20's members and happened to be in the neighborhood looking for a substance abuse or sober living program.
The Court's Findings and Ruling
The court found clear evidence that gang members gathered in the park to socialize; multiple people wore gang attire. Appellant was within the confines of the park where the gang had gathered; the recording "actually showed that he was inside the park, right almost at the center of the park where the barbecue pit was . . . ." He was on a bicycle bearing the initials of his former gang, which is friendly with the one at the park. Given appellant's experience with gangs since age 10, the court rejected appellant's testimony that he does not know the term "hood day." The court did not credit appellant's testimony that he was in the neighborhood looking for a sober living home.
The court concluded, "Given all of these different facts: the large gathering of known or easily discernible gang members, the presence of Mr. Rodriguez riding or walking his bike in close proximity to them. The bike has a decal on it of a known gang . . . . [By] a preponderance of the evidence[,] Mr. Rodriguez was in a place with known gang members and should not have been. And therefore, this is true that he's having that association."
The court revoked appellant's parole and sentenced him to 140 days in jail. The court noted that this was less than the time requested by the People because "I don't see actual evidence that you were participating in the hood day in an affirmative, direct way. Not that you need to, to have a violation, but I do find that that is a differing factor here."
DISCUSSION
Parole may be revoked "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of [officers] that the person has violated any of the conditions of their supervision." (Pen. Code, § 1203.2, subd. (a).) A defendant may request formal proceedings " 'to require the prosecution to prove the alleged violation occurred and justifies revocation.' " (People v. Leiva (2013) 56 Cal.4th 498, 505.) The violation must be "willful." (People v. Galvan (2007) 155 Cal.App.4th 978, 982.)
The court has "great discretion" to revoke parole, and " 'only in a very extreme case should an appellate court interfere,' " i.e., if the decision is arbitrary, capricious or unsupported by the facts. (People v. Rodriguez (1990) 51 Cal.3d 437, 443, 445.) We apply the substantial evidence standard to factual findings, looking for evidence of solid value, whether contradicted or uncontradicted, and drawing all reasonable inferences in favor of the findings without reweighing conflicting evidence or credibility. (People v. Butcher (2016) 247 Cal.App.4th 310, 318; People v. Buell (2017) 16 Cal.App.5th 682, 687.) The court's observations of material on video recordings may constitute substantial evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)
Appellant argues that no substantial evidence supports the court's factual findings because he did not "contact" or "associate with" persons known to be gang members and his conduct was not "willful." He asserts that the court abused its discretion by revoking his parole. After reviewing the testimony and the body camera recordings, we find substantial evidence that appellant contacted or associated with known gang members.
The evidence shows that Loren Miller Park is a stronghold of the Rolling 20's, a gang allied with appellant's gang. Appellant has 30 years of experience with gang life. The court could reasonably infer he would know that Rolling 20's members gather at this park annually on February 9 to celebrate their "hood day." The court rejected the credibility of appellant's testimony that he does not know the term "hood day."
A large group of gang members had congregated in the park, wearing gang regalia. By his own admission, appellant entered the park; he can be seen on camera riding toward where the gang was gathered. He can also be seen approaching and talking to people there. (See People v. Gipson (2013) 213 Cal.App.4th 1523, 1527-1528 [defendant who spent five to ten seconds at a gang hang out with other gang members violated a parole condition barring association with known gang members].)
A basketball court adjoined the Rolling 20's gathering. Appellant's claim at trial that he came to shower is not credible because he is heard on the recordings telling officers he came to play basketball. The court expressly rejected appellant's testimony that he was in the area looking for a sober living home.
The court could reasonably find that appellant's decision to enter and loiter in the park during a gang party violated the parole condition forbidding him from contacting or associating with gang members. Once he saw officers conducting parole violation checks, he tried to leave because he knew he should not be there.
The court could find that appellant's conduct was willful. He said in the recording that he wanted to eat barbecue and play basketball; only Rolling 20's members had a barbecue next to the basketball court. Once he saw gang members gathered at the park, appellant could have continued on his way and complied with his parole terms. (Compare People v. Galvan, supra, 155 Cal.App.4th at pp. 983-984 [it was impossible for the defendant to comply with a parole condition requiring him to report to probation because he was immediately deported upon release from custody].) Appellant deliberately chose to approach the gang, even with police present. The court did not believe appellant's explanations for his behavior. Its decision to revoke appellant's parole was not an abuse of discretion.
DISPOSITION
The order revoking Angel Rodriguez's parole is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
ASHMANN-GERST, J.
CHAVEZ, J.