(Santa Cruz County Super. Ct. No. J21518) (Santa Cruz County Super. Ct. No. J21519)
CERTIFIED FOR PUBLICATION
Appellants Cesar V. and Antonio V. challenge the juvenile court's findings that they violated Penal Code section 415, subdivision (1) by making a challenge to fight in a public place, and its findings that these offenses were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (d)). They contend that neither the substantive violations nor the gang allegations are supported by substantial evidence. Cesar and Antonio also assert, and the Attorney General concedes, that a remand is required because the juvenile court neglected to declare whether the offenses are misdemeanors or felonies. We hold that a violation of Penal Code section 415, subdivision (1) is not a specific intent offense. We find that substantial evidence supports the juvenile court's findings, but we remand for declarations of the felony or misdemeanor status of each of the offenses.
I. Evidence Presented At The Jurisdictional Hearing
The only witnesses at the contested jurisdictional hearing were Santa Cruz Police Sergeant Loran Baker and the prosecution's gang expert.
Baker testified that on November 19, 2009, at 12:30 p.m., he was driving east on Laurel Street just past Center Street near downtown Santa Cruz. He was in plain clothes and driving an unmarked car. The traffic was "stop-and-go," so he was proceeding at just "a few miles per hour." Baker saw 16-year-old Cesar and 17-year-old Antonio walking westbound along the sidewalk on the other side of Laurel Street. Cesar and Antonio had "their attention directed towards the traffic and [were] making some hand signs." Baker was particularly attentive to this activity because a 16-year-old boy had been stabbed to death "where the same kind of exchange was occurring" just a month earlier, a block away from this location.
Baker "couldn't tell if" the hand signs being made by Cesar and Antonio were directed at "a car or somebody on the [other side of the] street," but he saw that "their gestures . . . seemed to be getting more aggressive and [they were] moving towards them like they were challenging them to fight, I realized then, hey, this is for real, and they are challenging somebody." Since their behavior was "aggressive," Baker could tell that they were not "fooling around." Cesar and Antonio "changed directions" and "were moving towards the street." Cesar and Antonio put their hands up in the air while taking "a few steps towards the cars like, hey, let's go," a gesture that Baker "took that as a challenge, let's go." They "held their arms up in an inviting manner" which was "like, hey, it's on, you're open to somebody approaching you."
Because Cesar and Antonio had moved to the edge of the sidewalk, and Baker was concerned that violence would ensue, he "did a U-turn in traffic," drove up behind Cesar and Antonio, activated his lights, called for backup, and told Cesar and Antonio to "wait right there." When a uniformed officer arrived to assist Baker less than two minutes later, Baker and the other officer separated Cesar and Antonio and spoke with them individually.*fn1
Antonio told Baker that he had "been using hand signals to display a gang slogan . . . towards a car." Antonio described the car as a white Cadillac and "wanted to know why I wasn't stopping it . . . ." He told Baker that "one of the occupants in the rear seat [of the Cadillac] had actually thrown him a four, meaning Norteno sign" which would identify that person as a Norteno gang member. Antonio told Baker that he had made signs for P, S, and C to signify the Poor Side Chicos gang, a Watsonville Sureno gang.*fn2 Antonio asserted that he "took it [the occupant's alleged sign] as being a challenge, a form of disrespect." He said he was "not really afraid because . . . there was a girl in the car." Antonio told Baker that he thought a fight was unlikely to occur because "typically there won't be a gang fight when the girl was present." Antonio also said that any fight would have been "fair" because there were two people in the Cadillac. Antonio denied being a gang member, but he admitted that he associated with Poor Side Chicos gang members. He said that he "had to . . . kind of like stand up for his friends." Antonio acknowledged that he was aware that his conduct had occurred in an area "where Nortenos and Surenos would actually cross paths and it would be not good." Antonio also admitted that the blue "swoosh" on the Nike shoes he was wearing was intended to "signify" his Sureno affiliation.
Baker then spoke to Cesar. Like Antonio, Cesar admitted making a "hand gesture" of "a P an S and a C for Poor Side Chicos" and claimed that an occupant of a white Cadillac had made a gesture. Cesar maintained that he "was just holding his ground and not trying to challenge the occupants" of the Cadillac. Cesar said he was not a gang member but admitted he associated with members of the Poor Side Chicos gang.
Cesar and Antonio had been stopped previously by police in the company of a Poor Side Chicos gang member. On another occasion, they were stopped by police with Sureno gang members, and Antonio was wearing attire associated with the Poor Side Chicos gang.
Baker testified that he was not "operating under any assumption" as to whether there actually was a white Cadillac with an occupant who made a gang gesture. He thought it was "a possibility" that Cesar and Antonio were responding to such a gesture, but he did not think it mattered.
The prosecution's gang expert testified that a gesture of putting one's hands up in the air would be seen as "challenging the other person." He also opined that the "common response" to someone making a gang sign is violence. The expert testified that there was "no other reason" for a person to make a gang sign besides "challenging them to fight." The presence of a girl would not eliminate the risk of violence in such a situation. The gang expert testified that the Poor Side Chicos gang would benefit from a challenge such as that made by Cesar and Antonio because "[i]t would further the violent reputation" of the gang "within the community."
II. Procedural Background
Welfare and Institutions Code section 602 petitions were filed alleging that Cesar and Antonio had violated Penal Code section 415, subdivision (1) and that their offenses could be treated as either felonies or misdemeanors because the offenses had been committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (d)).
The prosecutor argued that a gang sign "thrown at someone that is perceived as a rival, is an invitation to a fight, a challenge to a fight." Cesar's trial counsel argued that Cesar and Antonio "were in fact not challenging someone to fight. They were responding to something that turned out to be not a challenge at all." Antonio's trial counsel joined in Cesar's counsel's arguments and also argued that Antonio "didn't think a fight was going to happen, so clearly in his mind he is not challenging someone to fight."
The court found that Cesar and Antonio had violated Penal Code section 415, subdivision (1) by making gang signs in an "aggressive" manner and using a gesture to indicate "[l]et's go." It also found true the gang allegations.
Antonio, who had previously been declared a ward, was continued as a ward and placed in his parents' home on probation. Cesar was placed on probation without wardship in the custody of his parents. Cesar and Antonio timely filed notices of appeal.
A. Sufficiency of the Evidence
1. Penal Code Section 415, Subdivision (1) Violations
Cesar and Antonio contend that the juvenile court's findings that they violated Penal Code section 415, subdivision (1) are not supported by substantial evidence.
"The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials." (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) Thus, "we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal. Under this standard, the critical inquiry is 'whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] An appellate court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] [¶] In reviewing the evidence adduced at trial, our perspective must favor the judgment. [Citations.] 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of ...