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In Re Michael W., A Person Coming Under the Juvenile Court Law. v. Michael W

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


November 29, 2011

IN RE MICHAEL W., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL W., DEFENDANT AND APPELLANT.

(Super. Ct. No. 59917)

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

In re Michael W.

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 juvenile court sustained three petitions alleging that Michael W.*fn1 (born 1991) was a delinquent minor who had committed offenses bringing him within its jurisdiction (and aggregated previously sustained petitions to increase his maximum term of confinement): the first petition (as is pertinent) alleged he both possessed controlled substances and possessed them for sale (with gang enhancements of both), and knowingly participated in a criminal gang in March 2009; the other two (as is pertinent) alleged he committed forcible sexual offenses involving his 13-year-old girlfriend in June and August 2007. The juvenile court held a combined dispositional hearing in November 2009*fn2 and committed the delinquent to the Division of Juvenile Justice (DJJ)*fn3 for a maximum period of confinement of 59 years (recognizing that DJJ could not hold him past his 25th birthday).

On appeal, the delinquent makes the entwined arguments that the juvenile court erred in admitting expert testimony, and that the evidence otherwise is insufficient to support findings he committed the drug offenses with the specific intent to benefit a criminal gang, or actively and knowingly participated in the criminal gang. In supplementary briefing, he also argues that he was entitled to a jury trial because the serious, lifelong consequences of his adjudications for the sexual offenses are akin to punishment for an adult defendant. We shall affirm.

FACTS

On patrol in Lathrop, a deputy saw the delinquent walking on the street (whom he knew was on probation), and decided to stop him to conduct a search. The delinquent was about one-half block from a house that he frequented where a well-known gang member named Villalobos lived. The deputy had just seen several people in front of that home, including Villalobos and another well-known gang member named Johnson.

In the search, the deputy found a clear package containing more than 20 pills in the delinquent's front pants pocket, who claimed he had obtained them in Stockton and had just arrived on the bus to deliver them to people at the Villalobos residence, after which he was going fishing with them. The content of the pills was a mix of both methamphetamine and the controlled substance commonly known as "Ecstasy."

The delinquent fled as another deputy began to handcuff him. Recapturing the delinquent and taking him into custody, the deputies retrieved a cell phone and a red bandana from his pockets. On the phone was a text message from Johnson stating, "I thought you were dipping on me and I just copped on 28 pills."*fn4 There was also a record of a nearly three-minute phone call to Villalobos (which, the delinquent later admitted during his interrogation, with Villalobos monitoring the flight from the deputies in order to give him advice), and a text message from a woman telling him to delete his messages and cell history. The deputy noted the contents of the cell phone of interest occurred "during the time we were actively pursuing him."

During his interrogation, the delinquent claimed the pills belonged to him and he had purchased them for $100 he had received from his grandmother. The grandmother later told the deputy that she did not give the delinquent any money. He used two to three of them every other day, and bought them in bulk every couple of weeks. He admitted that he did not have a job. He admitted his affiliation with a particular Lathrop gang, but claimed he was not formally initiated. Mentioning a heart condition, he said his doctor had advised him that the use of methamphetamine would adversely affect it.

The court accepted the deputy's qualification as a Lathrop gang expert,*fn5 and as an expert on the possession of controlled substances for sale, based on his field experience. The deputy testified about two 2009 contacts with the delinquent, when the latter was wearing attire identifying his affiliation with a particular Lathrop gang and was in the company of known members of the gang. The deputy described the indicia of this gang, based on his investigations and documentations of its members, which were present in tattoos on the delinquent. The Villalobos residence was a known gang home, based on the status of Villalobos as a member. The deputy asserted that a primary activity of the gang was engaging in sales of controlled substances, although he did not expressly specify the factual basis for this conclusion. He also testified about a robbery and an assault that two of its members had committed as predicate crimes in furtherance of the gang's activities.

The deputy believed the delinquent was an active member of the gang, based on prior contacts, the delinquent's association with "flamboyant" members of the gang, tattoos, and his self-identification. Over defense counsel's objection, he offered his opinion that the delinquent's offense was gang-related because it would benefit and further the gang, claiming that the delinquent and the majority of his gang associates did not have legitimate jobs and needed to derive income from the sale of controlled substances. Locations at which the delinquent had spent time were addresses where "the primary cause of service by the Lathrop Police" was reports of drug sales, and at which gang members had been found. He believed the delinquent had the specific intent to aid a gang member in the commission of a crime, based solely on the delinquent's receipt of the text message from Johnson.

The amount of Ecstasy found on the delinquent's person was far in excess of personal use. The deputy had never encountered users who bought Ecstasy in bulk. The delinquent was also aware that his heart condition made use of Ecstasy dangerous. In addition, the deputy had previously arrested the delinquent for selling marijuana. The deputy believed the possession of Ecstasy, with the stated purpose of delivering it to Johnson, was for the purpose of ultimate sale by Johnson.

Defense counsel moved to dismiss the allegations. In response, the prosecutor noted the sheer quantity of drugs, the evidence of a prior similar arrest, and the evidence of the juvenile's medical condition. The trial court denied the motion as to that count, but was troubled about proof of the delinquent's knowledge of the gang's activity for the offense of gang participation. The prosecutor emphasized the delinquent's presence at locations notorious for sales of controlled substances and the presence of gang members, his text message from Johnson about pills, and the assistance Villalobos gave him in escaping from the deputies. The trial court denied the motion to dismiss the gang offense and the gang enhancements as well.

DISCUSSION

I

Gang enhancements for underlying felonies do not require actual membership in a gang; instead, there must be substantial evidence that a party personally committed the felonies for the gang's benefit or in association with (or at the direction of) the gang (making the crime "gang related" in the shorthand of People v. Gardeley (1996) 14 Cal.4th 605, 622), with the specific intent to aid a gang member engaged in criminal conduct--it is not necessary to prove an intent to aid the gang as a whole. (People v. Albillar (2010) 51 Cal.4th 47, 60, 67-68 (Albillar); In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358-1359, 1362.) For the substantive offense of gang participation, the elements include active (as opposed to passive or nominal) participation in a gang with the knowledge that its members have engaged in a pattern of criminal activity as a gang, and giving willful aid to a gang member in any criminal conduct (whether gang-related or not). (Albillar, supra, 51 Cal.4th at p. 56.)

The gist of the delinquent's first three arguments come down to three points. First, regarding the gang enhancement, he claims there is insufficient evidence that he had the specific intent to aid gang members engaged in criminal conduct other than the opinion of the deputy, which he contends was unsupported because the evidence shows only his proximity to the Villalobos residence while in possession of the Ecstasy.*fn6 Second, with respect to the gang offense, he asserts the absence of evidence of his active participation in the gang at the time of his drug offenses*fn7 other than the deputy's opinion, which he contends was unsupported because the evidence showed only the limited gang affiliation that he admitted, his possession of the Ecstasy, and the conclusory assertion that the gang had a pattern of drug activity. Third, he claims it was nothing more than speculation on the part of the deputy that the delinquent had knowledge of the gang's pattern of drug activity.

The delinquent interweaves his argument with references to the facts in other cases. The Supreme Court has flatly stated that review of the "sufficiency of the evidence . . . necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value." (People v. Rundle (2008) 43 Cal.4th 76, 137-138.) The delinquent does not suggest that any of these cases establish any particular fact as a sine qua non for a gang enhancement or gang participation. We therefore do not need to discuss his authority in responding to his arguments.

A

A finding of specific intent cannot rest solely on expert testimony without support in the evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931; People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) We disagree, however, that the only evidence of his intent was the deputy's opinion to this effect.

The delinquent's argument overlooks his admission (when the deputy initially detained him) that he had just arrived by bus from Stockton with the Ecstasy in order to deliver it to people at the Villalobos residence. The text from Johnson confirmed that he had been expecting a delivery from the delinquent. This is sufficient circumstantial evidence of the specific intent to assist a gang member in criminal conduct for purposes of the gang enhancements, whatever other fault the delinquent may find in the deputy's expert opinion.

B

The deputy asserted that the gang had a pattern of criminal activity involving drug sales (based on the frequency of police "service" at the Villalobos residence and other addresses), and mentioned having a Lathrop database of gang-related crimes (even if he did not specifically cite this). He also mentioned the delinquent's association with "flamboyant" gang members, his adoption of gang indicia (including tattoos), and his claim to limited affiliation. The delinquent assisted Johnson in getting Ecstasy, and Villalobos assisted the delinquent in the escape attempt. This is sufficient to support the deputy's opinion that the delinquent actively participated in gang activities.

C

Mere association with others known to be committing drug offenses does not necessarily establish knowledge of their activities. However, the delinquent congregated at locations notorious for drug and gang activity, and he was apprehended while assisting a gang member in a drug transaction. This is a sufficient basis for inferring his knowledge of the gang's criminal activities.

II

By virtue of the finding that he forcibly raped the victim and the disposition committing him to the DJJ, the delinquent, on his release, is subject to a lifetime requirement of registration as a sex offender (Pen. Code, § 290.008, subd. (c)(2)), which in turn makes him the subject of residency restrictions (Pen. Code, § 3003.5, subd. (b)). His adjudications for the forcible sex offenses also make him potentially the future subject of a petition committing him for treatment as a sexually-violent predator (SVP) because the victim was under 14. (Welf. & Inst. Code, §§ 6600, 6600.1.)

Citing cases that have commented on the stigma and severe consequences of being subject to the registration requirement, and claiming an equal stigma from a future finding that he is an SVP, the delinquent argues he was entitled to a jury trial because he has incurred the equivalent of an "adult criminal sanction" as a result of the lifelong impacts on his rights to travel and privacy. He further argues the residency restrictions are purely punitive in nature.*fn8

He concludes these three consequences "fundamentally change the nature" of a juvenile proceeding from the historic rationale of rehabilitation that has justified the denial of a right to a jury trial. (People v. Nguyen (2009) 46 Cal.4th 1007, 1019-1020, 1023 [citing McKeiver v. Pennsylvania (1971) 403 U.S. 528 [29 L.Ed.2d 647]]). (Compare In re Myresheia W. (1998) 61 Cal.App.4th 734, 739-741 [finding collateral future effect of juvenile adjudication on sentencing as adult did not cause a fundamental change in nature and require jury trial].) The delinquent argues that if these various consequences do not of themselves entitle him to a jury trial, then principles of equal protection require he be treated the same as an adult who is entitled to a jury trial before incurring them. To ward off any finding of forfeiture for his failure to raise the issue in the trial court, he claims ineffective assistance of trial counsel.

The three-legged stool on which he rests his arguments is wobbly. The registration requirement is regulatory and not punitive, even though it may be onerous to comply with it. (In re Alva (2004) 33 Cal.4th 254, 260, 279, 290 ["incidental" punitive effects, but not punishment for purposes of Eighth Amendment]; People v. Castellanos (1999) 21 Cal.4th 758, 796, 799 [ex post facto prohibition inapplicable because punishment not involved].)*fn9 Similarly, involuntary commitment as an SVP is for purposes of treatment and therefore is not a form of punishment. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1172-1179.) Since neither of these consequences involves punishment, they cannot be a basis for a claim that they change the nature of the proceedings and entitle him to a jury, or that imposing them without a jury results in any unequal treatment.

As for the residency restrictions, the delinquent does not cite any case finding them to be punishment for the underlying act (as opposed to being a consequence of later conduct), other than the two cases presently under review in the Supreme Court (see fn. 8, ante). On the other hand, In re E.J. (2010) 47 Cal.4th 1258, involving the enactment of parole regulations incorporating the residency restrictions, found the enactment did not have any retroactive effect on past conduct or pose the threat of additional ex post facto punishment for the underlying acts (as opposed to a present punishment for a present violation of a condition of parole). (Id. at pp. 1263-1264, 1278, 1280.) We take this as an indication that the Supreme Court will not consider the compliance with residency restrictions to be additional punishment for a qualifying juvenile adjudication, and therefore decline to follow the two sui generis decisions under review.

Moreover, we do not believe an intermediate appellate court has the authority to find a right to a jury in juvenile proceedings. Our Supreme Court has plainly stated that neither the federal nor state charter affords this right to juveniles. (Nguyen, supra, 46 Cal.4th at pp. 1019, 1023; see id. at p. 1028 [Kennard, J., diss.]; People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274; In re Daedler (1924) 194 Cal. 320.) As a matter of state law, only that court can consequently reconsider the question of whether our Constitution confers a right to jury trials in juvenile court proceedings (People v. Smith (2003) 110 Cal.App.4th 1072, 1079, fn. 8; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and by virtue of its independent constitutional obligation to interpret federal law, we must also follow our Supreme Court's rulings on questions of federal law absent a contrary ruling of the high federal court directly deciding the issue. (In re Tyrell J. (1994) 8 Cal.4th 68, 79.)

DISPOSITION

The jurisdictional and dispositional orders of the juvenile court are affirmed.

We concur: RAYE , P. J. HOCH , J.


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