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People ex rel Reisig v. Acuna

March 8, 2010

PEOPLE EX REL. JEFF W. REISIG, AS DISTRICT ATTORNEY, ETC., PLAINTIFF AND RESPONDENT,
v.
TIMOTHY ACUNA ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Yolo County, Kathleen M. White, Judge. Affirmed in part and reversed in part. (Super. Ct. No. CV04002085).

The opinion of the court was delivered by: Hull, J.

CERTIFIED FOR PUBLICATION

Plaintiff, the District Attorney of Yolo County, initiated this action against the Broderick Boys, an alleged criminal street gang, and 23 of its members to enjoin as a public nuisance their activities in a 2.98-square-mile area of the City of West Sacramento. The trial court granted plaintiff's motion for a preliminary injunction and defendants appeal. We conclude sufficient, credible evidence supports the trial court's conclusion the Broderick Boys is a criminal street gang whose activities have created a public nuisance in the designated area. However, we further conclude two provisions of the preliminary injunction, one dealing with controlled substances and the other dealing with the consumption of alcoholic beverages, are unenforceable. We therefore reverse as to those provisions but otherwise affirm the order.

Facts and Proceedings

Plaintiff filed the original complaint in this action on December 30, 2004, against the Broderick Boys and Does 1 through 400 and obtained a preliminary injunction by default. Later, plaintiff dismissed the Doe defendants and obtained a permanent injunction against the Broderick Boys alone, also by default. Several individuals moved to set aside the judgment, but the trial court denied the motion. On appeal to this court, we concluded plaintiff failed to provide adequate notice of the action and reversed the order denying the motion to set aside the default judgment. (See People ex rel. Reisig v. The Broderick Boys (2007) 149 Cal.App.4th 1506, 1512-1516, 1528-1529.)

On remand, plaintiff filed a first amended complaint naming as defendant the "Broderick Boys aka BRK aka BSK aka Norteno aka Norte aka XIV" (hereafter the Broderick Boys) as well as 23 named individuals and Does 1 through 400. The named defendants are Timothy Acuna (Cartoon), Thomas Cedillo, Robert Cortez, Victor Dazo, Jr. (Little Vic), Alex Estrada (Otter), Ramon Esquilin (Kiko), Victor Ferreira (Hugo), Jesse Garcia (Smokey), Michael Hernandez (Snoopy), Rainey Martinez, William McFadden (Billy), Robert Montoya (Little Rob), Michael Morales, Rudy Ornelas, Guillermo Duke Rosales (Duke), Robert Sanchez (Rabbit), Paul Savala (Savage), Rudy Tafoya (Rude Dog), Abel Trevino (Gangster), Felipe Valadez, Jr. (Shug), Billy Wolfington (Bouncer), Tyson Ybarra, and William Ybarra, Jr. (Shylos).

The first amended complaint contains a single cause of action alleging a public nuisance in an area described as follows: "located in the City of West Sacramento, bounded by Harbor Boulevard to the West, the Sacramento River to the North and to the East (but not including the area previously known as the Lighthouse Marina and Golf Course) and by Highway 50/Business Loop 80 and State Route 275 to the South" (the Safety Zone).

On July 27, 2007, plaintiff moved for a preliminary injunction, supported by copies of the criminal records of the named defendants and the declarations of 48 police officers, including that of Investigator Villanueva, a gang expert. These declarations described various contacts between the officers and alleged members of the Broderick Boys, indicia of gang membership, graffiti found in the Safety Zone, and crimes committed by alleged gang members in the Safety Zone.

Villanueva opined the Broderick Boys gang "is the largest and most powerful criminal street gang in the City of West Sacramento," has been involved in crimes and other nuisance activities since the late 1980's, is a mixed-race gang primarily composed of Hispanics and Caucasians, and is connected to the Nuestra Familia prison gang. According to Villanueva, the Broderick Boys has a hierarchical structure, with younger men and women as "street soldiers" or "foot soldiers," those from 18 years old to their mid-20's as the "older homies," those 25 to over 30 years old as the "veteranos" who are seldom seen on the street but control things from the shadows, and the ones making the major decisions, called "shot callers."

Villanueva further described how the Broderick Boys use graffiti, tattoos and gang signs to intimidate others and to mark their territory. He explained the crimes typically committed by the Broderick Boys and how those crimes are used to support the gang's activities and to instill fear among the residents of West Sacramento. According to Villanueva, the Broderick Boys use fear and intimidation to keep residents from reporting crimes.

In opposition to plaintiff's motion, defendants presented their own declarations from approximately 100 residents and others familiar with the Safety Zone. Most of these declarants indicated they had not seen gang activity in the Safety Zone and did not believe there was a gang problem requiring an injunction. Two declarants indicated they have not seen any groups of gang members patrolling the streets in the Safety Zone, and others expressed the belief that the only ones engaging in harassment in the area are the police.

Defendants also submitted the declaration of their own gang expert, Professor James Hernandez of California State University, Sacramento, who opined the name "Broderick Boys" does not identify a criminal street gang. Rather, it is a designation used by some people to indicate their geographic home, i.e., the Broderick area of West Sacramento. According to Professor Hernandez, there is no leadership structure, defined goals, or organized efforts by the purported members of the Broderick Boys, as would be expected in a criminal street gang. Professor Hernandez further indicated the crime rate in West Sacramento is no greater than in any other city of its size and demographics.

The trial court issued the preliminary injunction. In its order granting plaintiff's motion, the court indicated that plaintiff met his burden of proving he is likely to prevail on the merits of his public nuisance claim and that any harm caused by continuation of the nuisance is not outweighed by the effects on defendants of granting the temporary injunction. In particular, the court found: "[T]he Broderick Boys, through its members including the defendants named in the amended preliminary injunction, acting individually or collectively, have engaged in violent assaults; robberies; `tagging' of private and public property with gang graffiti; intimidation; threats against victims and witnesses; trespass; theft; and possession, possession for sale and transportation of illegal drugs in the Safety Zone. To announce their presence in and enforce their turf and to instill fear [in] persons in the community and rival gang members, Broderick Boys members `patrol'; `tag'; congregate in areas in public view and display their tattoos, colors and signals; commit brazen crimes, sometimes announcing their gang affiliation while perpetrating such crimes; challenge passers by; and threaten violence and retaliate against individuals for perceived acts of disrespect, all within the Safety Zone. Searches of Broderick Boys members in the Safety Zone have yielded weapons including guns, crowbars, bats, knives and even an ice pick engraved with the gang's symbols. Many serious crimes involving the Broderick Boys occur after 10:00 p.m. and before sunrise."

The court issued a preliminary injunction prohibiting various activities within the Safety Zone by the Broderick Boys and its "active members," including the named defendants. Defendants appeal.

Discussion

I. Introduction

Defendants challenge the trial court's findings, both express and implied, underlying the preliminary injunction. They argue there was insufficient evidence a gang named the Broderick Boys exists in West Sacramento or that the alleged gang or its members create a public nuisance within the Safety Zone. They further contend the trial court erred in concluding there is a greater risk of harm from denying the temporary injunction than granting it. Finally, defendants contend various provisions of the injunction are vague, overbroad or otherwise violate their constitutional rights.

As our state Supreme Court explained in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna): "At this initial stage in the proceeding, the scope of our inquiry is narrow. We review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.] Review is confined, in other words, to a consideration whether the trial court abused its discretion in `"evaluat[ing] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued."' [Citation.] And although we will not ordinarily disturb the trial court's ruling absent a showing of abuse, an order granting or denying interlocutory relief reflects nothing more than the superior court's evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute." (Id. at p. 1109.)

Defendants argue that in evaluating the two factors, we must apply a clear and convincing evidence standard. In other words, we must decide whether the trial court abused its discretion in concluding plaintiff established by clear and convincing evidence he is likely to prevail on the merits and that the balance of potential harms is in his favor. In People v. Englebrecht (2001) 88 Cal.App.4th 1236 (Englebrecht), the Court of Appeal concluded the importance of the interests affected by a gang injunction "requires that the finding of facts necessary to justify its issuance be proved by clear and convincing evidence." (Id. at p. 1256.)

Plaintiff contends Englebrecht involved a permanent injunction rather than a preliminary injunction and argues defendants "cite no authority for the proposition that in the context of a preliminary injunction the superior court must apply the clear and convincing standard." However, it is plaintiff who fails to cite authority for the proposition that different standards apply to preliminary and permanent injunctions. In either case, the interests involved are the same; only the duration is different. A point not argued or supported by citation to authority is forfeited. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

Defendants further argue the clear and convincing evidence standard requires evidence "that is `so clear as to leave no substantial doubt' and `sufficiently strong to command the unhesitating [assent] of every reasonable mind.'" Defendants cite as support Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079 and In re Angelia P. (1981) 28 Cal.3d 908. In those cases, the state high court indicated the applicable standard is something less than proof beyond a reasonable doubt. It is satisfied where the evidence establishes a "high probability" of the requisite findings. (Broadman, supra, 18 Cal.4th at p. 1090; see also In re Angelia P., supra, 28 Cal.3d at p. 919.) Thus, our task is to determine if the trial court abused its discretion in concluding the evidence established a high probability (1) plaintiff will prevail on the merits, and (2) the interim harm plaintiff is likely to sustain if the preliminary injunction is denied is not exceeded by the interim harm defendants are likely to suffer if the injunction is issued.

II. Criminal Street Gang

Defendants contend plaintiff failed to prove there is a criminal street gang named the Broderick Boys operating in West Sacramento. They argue plaintiff relied on general police declarations regarding gang customs and clothing and self-identification by alleged gang members without ever proving a gang exists in the first place. They further argue plaintiff failed to present any evidence to establish "how many members were in the purported gang, what the bylaws of the gang were, identification of individuals describing their rank or position, no evidence of collaborative activities or collective organizational structure." According to defendants, plaintiff relied solely on the unsubstantiated opinion of his gang expert, who merely inferred collective action from the fact the alleged gang has more than three members. Defendants assert this opinion was refuted by their gang expert, who opined the name "Broderick Boys" means nothing more than that people claiming this moniker are proclaiming where they live, i.e., the Broderick area of West Sacramento. Finally, defendants contend plaintiff failed to demonstrate any of the named defendants are members of the purported gang.

Under the Penal Code, a "criminal street gang" is defined as "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 [certain enumerated criminal offenses], 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." (Pen. Code, § 186.22, subd. (f).) "Pattern of criminal gang activity" is defined as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Id., § 186.22, subd. (e).) The covered offenses include assaults, robberies, grand theft and felony vandalism. (Ibid.)

In order to prove the existence of a criminal street gang in a given case, it is of course necessary to concentrate on the activities of those alleged to be members. A criminal street gang can act only through its members. (Acuna, supra, 14 Cal.4th at p. 1125.) In Englebrecht, the Court of Appeal explained that, in the context of a gang injunction, it is not necessary to prove the commission of criminal acts. Rather, in order to enforce a gang injunction against an alleged member, it must be shown the person "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." (Englebrecht, supra, 88 Cal.App.4th at p. 1261.)

Defendants argue there was insufficient evidence to prove the existence of a criminal street gang, because plaintiff failed to prove both collaborative activities by alleged gang members and a collective organization structure. They cite as support People v. Williams (2008) 167 Cal.App.4th 983 (Williams). In Williams, the defendant was convicted of murder and active participation in a criminal street gang named the "Small Town Peckerwoods," which was alleged to be part of a larger "Peckerwoods" gang. On appeal, the defendant argued, among other things, there was insufficient evidence to support the gang charge. In particular, the defendant argued the relevant group to consider was the local gang, the Small Town Peckerwoods, not the larger group, and there was insufficient evidence regarding the activities of the smaller group to support the conviction. (Id. at pp. 985, 987.)

The Court of Appeal agreed and reversed the gang conviction. In the context of "the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang" (Williams, supra, 167 Cal.App.4th at p. 985), the court said: "[S]omething more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization." (Id. at p. 988.) The court concluded no such showing had been made in that case. (Ibid.)

Defendants' reliance on Williams is misplaced. Beside the fact that Williams was a criminal prosecution involving a higher standard of proof, the issue there was not what is required to prove a particular group is a criminal street gang. In Williams, the issue was whether, in proving a crime was committed for the benefit of a criminal street gang, the People are limited to evidence regarding activities of the local gang or may rely on the activities of a larger group of which the local gang is a part. The court indicated the latter is permissible only if the People establish collaborative activities and a collective organizational structure between the local gang and the larger gang.

In the present matter, plaintiff did not try to prove the Broderick Boys is a criminal street gang by using evidence regarding the activities of the larger Norteno gang. As we describe below, plaintiff relied solely on evidence relating to the local gang.

Plaintiff's gang expert, Investigator Villanueva, opined the Broderick Boys "is the largest and most powerful criminal street gang in the City of West Sacramento. It has consistently grown and been involved in criminal enterprise (i.e., murders, felonious assaults, shootings, stabbings, robberies, thefts, narcotic activity and vandalism) and other nuisance activity since the late 1980's." Villanueva further opined the Broderick Boys gang "is connected to the Nuestra Familia gang which is a powerful prison gang in California."

Defendants argue Investigator Villanueva provided no evidence to support his opinion that the Broderick Boys is the most powerful gang in West Sacramento or that it is connected to the Nuestra Familia gang. But for purposes of the present proceeding, it does not matter if the Broderick Boys is the most powerful gang in West Sacramento or is connected with the Nuestra Familia gang. What matters is whether the activities of the Broderick Boys gang, standing alone and regardless of its ...


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