Trial Court: Sonoma County Superior Court Trial Judge: Hon. Philip A. Champlin (Sonoma County Super. Ct. No. 35428J)
The opinion of the court was delivered by: Ruvolo, P. J.
CERTIFIED FOR PUBLICATION
Appellant was declared a ward of the juvenile court based on findings that he had committed a robbery in which he used a dangerous and deadly weapon and personally inflicted great bodily injury on the victim. The juvenile court also found true an enhancement allegation that appellant had committed the robbery for the benefit of, at the direction of, and in association with, a criminal street gang.
On appeal, appellant challenges only the true finding on the gang enhancement. We agree this finding is not supported by substantial evidence that appellant committed his crime with the specific intent to promote, further, or assist in criminal conduct by gang members. Accordingly, we reverse the portion of the judgment finding the enhancement true, and remand for a rehearing on disposition.
II. Facts and Procedural Background
Around midnight on June 4, 2010, Jeffrey Chamblee, an assistant manager at a supermarket, saw three young men pictured on the store's surveillance cameras, walking back and forth inside the store. Based on Chamblee's experience as a loss prevention manager, the men's behavior roused his suspicions, so he focused his attention on them.
After a few minutes, two of the young men left the store separately. Appellant remained behind, looking at the bottles displayed in the liquor aisle. When Chamblee saw appellant pick up a large bottle of Jack Daniels and walk away, Chamblee went to a position 10 or 15 feet from the store's exit door. From there, Chamblee kept watching as appellant walked through an unattended check stand and headed for the exit, without stopping or making any effort to pay for the bottle of liquor.
Chamblee approached appellant and asked him to "Give me the bottle." Appellant crouched down and began to run, so Chamblee stepped toward him and reached for the bottle. Appellant then raised the bottle as if to strike Chamblee with it or throw it at him. The bottle broke against a nearby machine. Appellant hit Chamblee on the ear with the neck of the bottle and ran out of the store.*fn1 Chamblee was later taken to the hospital, where he received 13 stitches to close the six-centimeter head wound appellant had inflicted on him.
Another employee of the supermarket, Lucine Avilla, was in the store's parking lot while appellant was in the store. She noticed a young man get into a truck and start the engine. Moments later, she saw appellant hit Chamblee with the broken bottle, leave the store, and run directly toward the truck she had noticed moments earlier.
Police officer Brian Mann responded to a call from the supermarket. He reviewed the surveillance camera footage of the incident, and asked other officers to look for the truck Avilla had seen, which was described to him as a green pickup truck. Another officer found the truck, stopped it, and detained the four occupants. They were appellant; Kevin Pinochi, who was driving; Justin Holmes; and a young man whose name appears in the record only as Midgett. All of the truck's occupants were under 21 years old.
Mann interviewed all the occupants of the truck, except for Holmes, who refused to talk with him. Pinochi at first denied going to the supermarket, but later admitted that he and his companions had gone there to get alcohol. When Mann asked how they expected to accomplish that goal, since they were all under age, Pinochi responded, "I don't know. You have to ask them." Midgett admitted to Mann that he had entered the store, but claimed he had only done so in order to use the bathroom. Midgett told Mann that the young men "had all gone in the store for their own reasons." Appellant admitted going to the store to get alcohol, though he had no money with him. He told Mann his friends did not know that he intended to steal a bottle of liquor from the store.
Appellant and his companions were all wearing clothing with an element of red on it. Appellant had a red baseball cap. Pinochi had on an oversized red t-shirt and a red baseball hat. Midgett and Holmes both wore black clothing, but Midgett's jeans had red stitching and his shoes had a red "swoosh" emblem, and Holmes's black jersey had a red number and name printed on the back. In the pickup truck, the police found two crowbars and an 18-inch baseball bat.
On June 7, 2010, a petition was filed in juvenile court under Welfare and Institutions Code section 602, charging appellant with robbery (Pen. Code, § 211*fn2 ), and alleging that in connection with the robbery, appellant personally used a dangerous and deadly weapon, i.e., the broken bottle (§ 12022, subd. (b)(1)), and personally inflicted great bodily injury on his victim (§ 12022.7, subd. (a)). The petition also alleged that the robbery was committed for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).)
At appellant's jurisdictional hearing, the prosecution introduced the testimony of Eric Swift, a police detective, who was stipulated to be an expert on gang activity in the relevant area. Swift knew Holmes, understood him to be a "self-admitted" active participant in a Norteno gang,*fn3 and opined that he was an active gang member. Swift also was familiar with Pinochi, and characterized him as a Norteno affiliate.
Swift opined that appellant was an active Norteno gang participant, and that his crime was committed in association with and for the benefit of the Norteno criminal street gang. Swift acknowledged that he had not met or spoken with appellant previously, despite his familiarity with local gang members.*fn4 Swift was not aware that any gang enhancements or gang probation conditions were associated with appellant's prior juvenile record. Swift's opinion was based on the "totality" of the ...