IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
December 6, 2010
IN RE D.L., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
D.L., DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Butz, J.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The minor, D.L., appeals from the juvenile court's dispositional order following a contested hearing that committed him to the San Joaquin County Camp. He contends there was insufficient evidence to sustain the allegations of possession of stolen property, street terrorism, and the criminal street gang enhancement. (Pen. Code, §§ 496, subd. (a), 186.22, subds. (a) & (b)(1).)*fn1 He also contends, and the People agree, there are errors in the calculation of the maximum period of confinement. We shall reverse the true finding for street terrorism and remand for recalculation of the maximum period of confinement.
FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2009, Sergeant Patrick Withrow was on patrol in Lathrop, California, in an area known to be frequented by gang members. Curfew in the area is 11:00 p.m. About 12:45 a.m., Withrow noticed a group of people standing around a car that was parked in front of the Washburne residence.*fn2 Patrick and Miguel Washburne, who lived in that house, were documented Norteno gang associates and the house was known for gang activity.
Sergeant Withrow turned his spotlight in the minor's direction and saw the minor standing next to the car. He knew the minor and knew the minor was on probation. The minor looked surprised and nervous and began to walk toward the house and then walk back to the car. Withrow then saw the minor pull up the side of his shirt and withdraw something metallic from the waistband. The minor then crouched down and Withrow heard what sounded like a gun hitting the asphalt.
Sergeant Withrow called the minor over, and the person the minor had been standing next to walked toward the house. The minor was dressed in blue jeans, a white T-shirt and a red-and-white baseball hat. After patting down the minor, Withrow went over to the car and, under the car where the minor had crouched down, Withrow found a loaded nine-millimeter handgun. The nine-millimeter handgun had been stolen a few years earlier from Eric Perez, who is the father of the minor's classmate. Perez talked to his daughter, the minor's classmate, about the stolen gun. Prior to the gun being stolen, Perez had come home to find the minor on his property on a few occasions and had ordered him to leave. The minor and one of his friends, documented Norteno gang member Jose Rodriguez, had been questioned after the theft. Rodriguez admitting knowing the gun was at Perez's house and that he had played with it, but both Rodriguez and the minor denied taking the gun. When Withrow recovered the gun, there were scratches over the serial number.
When the minor was searched and taken into custody, he had 2.76 grams of marijuana in his front pocket, equally distributed in five small baggies. He did not have a smoking device, and no indicia of marijuana was found in the vehicle. The minor was on probation and had been ordered not to associate with gang members or wear indicia of gang involvement.
Sergeant Withrow obtained identification from the two individuals in the car. The driver was Jenet Alyarado, who was unknown to the officer. One of the passengers was Darnel Tucker, a documented Norteno associate. The other passenger was Rochelle Booker, also a documented Norteno associate.
The minor is an admitted, active, and documented Norteno gang member. He has previously admitted to a 2008 gang-related assault, wherein he and two other Norteno gang members went to a Sureno gang member's house and threw rocks at the Sureno gang member and his mother. He has repeatedly been found in the company of Norteno gang members, including Rodriguez. Rodriguez has previously admitted to committing a gang-related robbery.
Deputy Ryan Biedermann, a gang expert, testified that the majority of Nortenos in Lathrop have no legitimate job. The gang supports itself by selling illegal narcotics and committing thefts and burglaries within the city. Some Nortenos, including one of the minor's closest friends, have been involved in possessing, using, or selling marijuana. The Lathrop Nortenos are very violent, committing crimes including robbery, assault with a deadly weapon, drive-by shootings, stabbings, possession of narcotics for sale, burglary, carjacking, and possession of firearms. They "rule the streets" through fear and intimidation, and arm themselves with firearms to further the intimidation. Possession of firearms by Nortenos not only facilitates their criminal activities and ability to intimidate, but increases their status within the gang. Additionally, it is common for drug dealers to carry firearms.
An amended wardship petition alleged the minor committed the following offenses: felony possession of a firearm (Pen. Code, § 12101, subd. (a)(1)--count 1); misdemeanor possession of ammunition (id., § 12101, subd. (b)(1)--count 2); felony possession of stolen property (id., § 496, subd. (a)--count 3); felony possession of marijuana for sale (Health & Saf. Code, § 11359--count 4); misdemeanor possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2)--count 5); and felony street terrorism (id., § 186.22, subd. (a)--count 6). It was alleged that counts 1, 4 and 5 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that during the commission of count 4, the minor was armed with a firearm (§ 12022, subd. (a)(1)).
Following the contested hearing, the juvenile court sustained all alleged counts, except count 4 where the court determined the minor had committed simple possession of marijuana (Health & Saf. Code, § 11357) rather than possession for sale. The court found the gang enhancement alleged as to count 1 to be true (§ 186.22, subd. (b)(1)), but found the gang and gun-use enhancements alleged as to count 4 not true and dismissed the gang enhancement as to count 5. The maximum period of confinement was eight years.
In discussing its findings, the juvenile court found the evidence compelling and overwhelming that the minor possessed a firearm, knew it to be stolen, and possessed it for the benefit of a criminal street gang in connection with count 1. With respect to the possession of marijuana, the court found it "just as likely that [the minor] purchased the marijuana from the people in the car as he was going to sell it to them." Thus, the court found the minor had possessed it, but did not find beyond a reasonable doubt that he possessed it for sale or that the gang enhancement allegation had been proved in connection with count 4. The court also found the evidence proved beyond a reasonable doubt that the minor violated the substantive gang offense (street terrorism).
I. Possessing Stolen Property
The minor contends there was insufficient evidence to support the possessing stolen property adjudication because there was no substantial evidence that he knew the gun was stolen. We disagree.
The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605; In re Michael M. (2001) 86 Cal.App.4th 718, 726.) In either case we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, the evidence established that the minor was in possession of a gun which had been stolen from his classmate's father. Significantly, the serial number on the gun had been scratched out. Moreover, the minor was not permitted to possess a gun, had no legal means by which to purchase a gun, and there was no evidence he had otherwise obtained the gun in a legitimate manner. Accordingly, there was sufficient circumstantial evidence for the court to find beyond a reasonable doubt that the minor knew the gun was stolen.
II. Gang Enhancement
The minor also contends there was insufficient evidence to support the section 186.22, subdivision (b)(1) enhancement because there was no substantial evidence his possession of the gun was gang related, rather than personal. We find the evidence sufficient to support the finding.
Section 186.22, subdivision (b)(1) imposes a sentence enhancement for a person convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, when committed with the specific intent to promote, further or assist criminal conduct of the gang. Expert testimony about gang culture and habits may be considered in determining purpose and intent. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
The expert testimony established that the majority of the Nortenos in Lathrop, California, do not have legitimate jobs. The Lathrop Nortenos sell illegal narcotics and commit thefts and burglaries within the city for support. They are very violent, having committed crimes including robbery, assault with a deadly weapon, possession of narcotics for sale, burglary, carjacking, drive-by shootings, and possession of firearms. Several documented Nortenos with whom the minor associates have been involved in the possession, use or sale of marijuana. It is common for drug dealers to carry firearms. Moreover, firearm possession by Norteno gang members not only facilitates their criminal activity, but enhances the members' status within the gang.
Here, the minor is a documented, admitted, and active member of the Norteno gang in Lathrop. The minor had admitted committing a prior gang-related offense against a Sureno gang member--a Norteno rival gang. He was out at 12:45 a.m., by a car in front of a Norteno gang member's house, with a group of Norteno gang associates. The house was known by law enforcement for gang activity. The minor was wearing a red-and-white cap--red being the color associated with the Norteno gang. As soon as the officer turned his spotlight in the minor's direction, the minor tossed the loaded gun under the car and he and the person he had been standing with began walking toward the house. The minor had 2.76 grams of marijuana in his possession, which was equally distributed in five baggies, but he had no smoking device, and no indicia of marijuana was found in the vehicle.
As the juvenile court noted, the evidence suggests that the minor was either selling, distributing for sale, or buying marijuana that evening--a known Lathrop Norteno gang activity--in front of a Norteno gang house, with a group of Norteno associates. His loaded, stolen gun facilitated this activity. It also enhanced his status in the gang. Accordingly, there was substantial evidence that the minor was acting both in association with and to further or promote his gang.
III. Street Terrorism
The minor also argues that the evidence was insufficient to support the street terrorism charge (count 6). We agree.
Section 186.22, subdivision (a) (hereafter section 186.22(a)), states in pertinent part: "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 subject to punishment as a felony or misdemeanor.
The offense has three elements: "[(1)] Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, . . . [(2)] '[k]nowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and [(3)] . . . that the person 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22(a).)" (People v. Lamas (2007) 42 Cal.4th 516, 523.) As this court recently held in People v. Rodriguez (2010) 188 Cal.App.4th 722, 726, 734-735 (maj. opn. by Blease, J.), the third element requires the perpetration of a felony in concert with other members of the gang. It "requires perforce that there be more than one participant." (Id. at p. 734.)
Here, the minor's possession of marijuana was a misdemeanor. The felonious conduct was the minor's possession of the stolen firearm (counts 1 and 3). The evidence did not, however, demonstrate that he possessed the stolen firearm in concert with any of his fellow gang members or that any of them even knew he possessed it at the time. Since the minor was the sole perpetrator of the felonious possession, the true finding for violation of section 186.22(a) (count 6) must be reversed.
IV. Maximum Period of Confinement
Finally, the minor contends, and the People concede, that the juvenile court miscalculated his maximum period of confinement. The maximum period of confinement must be recalculated on remand.
Welfare and Institutions Code section 726, subdivision (c) provides: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court."
Section 654, prohibiting multiple punishment for the same act or course of conduct, is applicable to minors. (In re Asean D. (1993) 14 Cal.App.4th 467, 474.) "The initial inquiry in any section 654 application is to ascertain the [minor's] objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) However, "if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, [the minor] may be found to have harbored a single intent and therefore may be punished only once." (People v. Harrison (1989) 48 Cal.3d 321, 335, citing Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Here, the juvenile court calculated the maximum sentence as eight years, broken down as follows: three years for possession of a firearm (count 1), plus three years for the gang enhancement on count 1; four months for possession of ammunition (count 2); eight months for possession of stolen property (count 3); no time for possessing marijuana (count 4); four months for possession of a concealed firearm (count 5); and eight months for street terrorism (count 6).*fn3
The minor argues, and the People concede, that the proper term for count 2 is two months (one-third the middle term of six months). The People also agree with the minor that this term should be stayed pursuant to section 654. Likewise, the People agree that the four months on count 5 should be stayed pursuant to section 654. The parties do not, however, agree whether count 3 should be stayed. Count 6, which the minor argues should have been stayed, is reversed as set forth in part III of the Discussion. We direct the juvenile court upon remand to determine which counts are to be stayed.
We also note an additional concern in the calculation of the maximum period of confinement. It appears the minor was subject to an aggregation for his prior adjudication. (Welf. & Inst. Code, § 726, subd. (c).) "Aggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court." (In re Adrian R. (2000) 85 Cal.App.4th 448, 454, quoting In re Richard W. (1979) 91 Cal.App.3d 960, 982.) Here, the juvenile court calculated the aggregation but it was not addressed upon calculation of the maximum period of confinement. Accordingly, we direct the juvenile court to exercise its discretion and address this upon remand as well.
The charge for street terrorism in count 6 is reversed and dismissed. The matter is remanded for a recalculation of the maximum period of confinement in accordance with this opinion. In all other respects, the judgment (order of disposition) is affirmed.
SCOTLAND, Acting P. J., concurring and dissenting:
I concur, except as to part III. and the portion of part IV. that incorporates the holding in part III. For the reasons stated by the dissent in People v. Rodriguez (2010) 188 Cal.App.4th 722 (conc. & dis. opn. of Sims, J.), I would uphold the true finding on count 6. SCOTLAND, Acting P. J.*fn4