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People ex rel. Reisig v. Acuna

California Court of Appeals, Third District, Yolo

February 28, 2017

THE PEOPLE EX REL. JEFF W. REISIG, AS DISTRICT ATTORNEY, Plaintiff and Respondent,
v.
TIMOTHY ACUNA et al., Defendants and Appellants.

          Order Filed Date 3/10/17

         APPEAL from a judgment of the Superior Court of Yolo County, No. CVCV04002085, Kathleen M. White, Judge. Affirmed.

          Law Office of Mark E. Merin and Mark E. Merin, Cathleen A. Williams and Paul H. Masuhara for Defendants and Appellants.

          Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Deputy Attorney General, Robert C. Nash, Deputy Attorney General, for Plaintiff and Respondent.

         ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

         THE COURT:

         It is ordered that the opinion filed herein on February 28, 2017, be modified as follows:

         On page 4, near the end of the paragraph that started on page 3 with “Appellants argue evidentiary error” delete the sentence “For its part, the Attorney General offers this court no help, instead compounding the problem with a 458-page rambling respondent's brief plus 28-page addendum.”

          HULL, J.

         Eight individuals appeal from a civil judgment granting a permanent (seven-year) injunction enjoining public nuisance activities of a criminal street gang.

         Yolo County District Attorney Jeff W. Reisig on behalf of the People of the State of California (plaintiff), filed this civil action against the Broderick Boys criminal street gang (a/k/a BRK a/k/a BSK a/k/a Norteno a/k/a Norte a/k/a XIV) and 23 of its members, to enjoin as a public nuisance (Civ. Code, §§ 3479-3480) activities in a 2.98-square-mile area (safety zone) of West Sacramento. The safety zone is bounded by Harbor Boulevard to the west, the Sacramento River to the north and east (but not including the area previously known as the Lighthouse Marina and Golf Course), and by Highway 50/Business Loop 80/State Route 275 to the south.

         In a prior appeal, we affirmed, for the most part, a preliminary injunction. (People ex rel. Reisig v. [Timothy] Acuna (2010) 182 Cal.App.4th 866 (Acuna I).)

         This appeal by eight individual defendants (appellants) comes after a bench trial during which the eight appellants were represented by various attorneys. The trial served as a prove-up hearing as to defaulting defendant Broderick Boys. The trial court issued a judgment and permanent (seven-year) injunction against defendant Broderick Boys, its a/k/a's, and its “active members” including but not limited to 17 individual defendants -- Timothy Acuna, Victor Dazo, Jr., Alex Estrada, Ramon Esquilin, Jesse Garcia, Michael Hernandez, Rainey Martinez, William McFadden, Robert Montoya, Michael Morales, Guillermo Duke Rosales, Robert Sanchez, Paul Savala, Abel Trevino, Felipe Valadez, Jr., Billy Wolfington, and Tyson Ybarra. Several of the original defendants were dismissed.[1]

         The trial court found Broderick Boys is a criminal street gang which, through its members, creates a public nuisance in the safety zone by engaging in violent assaults, robberies, trespass, theft, illegal possession of weapons, possession of drugs for sale, “tagging” public and private property with gang symbols, displaying gang symbols and signals to intimidate residents, and threatening and retaliating against persons perceived to have disrespected the gang. The injunction enjoins the gang and its active members from engaging in nuisance activities and also restrains them from other activities including (1) associating with known members (standing, sitting, walking, driving, gathering, or appearing in public) except inside or traveling to or from school or church, and (2) being out in public between 10:00 p.m. and 6:00 a.m., subject to exceptions.

         This appeal from the permanent injunction is limited to the eight defendants/appellants -- Timothy Acuna, Alex Estrada, Jesse Garcia, Robert Montoya, Michael Morales, Guillermo Duke Rosales, Felipe Valadez, Jr., and Billy Wolfington. We have no need in this appeal to address enforceability of the injunction as to anyone else.

         Appellants argue evidentiary error, insufficiency of evidence, constitutional claims, and miscellany. They fail to show prejudicial evidentiary error, yet appear to assume in their substantial evidence argument that we should disregard the evidence they challenged. Appellants misstate facts and law (despite taking almost a year to prepare the opening brief) and fail to support each factual assertion in their brief with a citation to the record, as required by California Rules of Court, rule 8.204(a)(1)(C). Appellants' reply brief acknowledges the opening brief's factual misstatements and defects but dismisses them as inconsequential and nonprejudicial to plaintiff. Appellants thus miss the point that they have the duty on appeal to state the evidence fairly, in the light most favorable to the trial court's ruling, and record citations are for the benefit of the reviewing court as well as the respondent. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman); Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 112-114 (Lewis).) Appellants' neglect is particularly burdensome, given that they submitted 380 pages of initial briefing (114-page opening brief plus 266 pages of addenda of purported facts and objections). For its part, the Attorney General offers this court no help, instead compounding the problem with a 458-page rambling respondent's brief plus 28-page addendum. Appellants' 71-page reply brief rounds out the mass. Despite appellants' defects, we nevertheless endeavor to address their contentions.

         Appellants appear to advocate a standard whereby an individual cannot be subject to a gang injunction unless he personally commits multiple nuisance activities. We explain the correct standard is that an individual can be subject to the injunction if he is an active member of a gang whose members commit nuisance activities, and active membership does not mean personal commission of multiple nuisance activities.

         Additionally, much of appellants' briefing hinges on the flawed premise, unsupported by authority, that the relative success of the preliminary injunction in reducing nuisance activity must inure to appellants' benefit, commanding a conclusion that there is no longer an ongoing need for injunctive relief. However, a permanent injunction is appropriate where the misconduct is ongoing or likely to recur and, while a permanent injunction may be inappropriate where the defendant discontinued the misconduct voluntarily and in good faith, compliance with a court order (here, the preliminary injunction) does not constitute voluntary discontinuation. (Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1658-1659 (Feminist).)

         While this appeal was pending, the California Supreme Court held a gang expert cannot base an opinion on the assumed truth of case-specific facts that are inadmissible hearsay for which no independent competent evidence is adduced. (People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 (Sanchez), disapproving People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley).) This aspect of Sanchez concerning state evidentiary rules for expert testimony (Evid. Code, §§ 801-802) applies in civil cases such as this nuisance lawsuit. We allowed supplemental briefing, as we discuss post. To avoid potential complications that might otherwise arise in light of Sanchez, we focus in this appeal on evidence that did not depend on experts' assuming the truth of case-specific hearsay not proven by independent competent evidence or subject to a hearsay exception --, e.g., records of criminal convictions, trial testimony or spontaneous statements by victims, and non-case-specific hearsay about gang culture. We reject post appellants' suggestion that evidence improperly admitted may have been the deciding factor in the trial court's decision.

         We affirm the judgment.

         Prior Proceedings and Appeals

         Plaintiff filed the original complaint in December 2004, naming only Broderick Boys (with a/k/a's) as defendant. The trial court issued a default injunction in February 2005. (People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506, 1514 (Broderick Boys).) On April 23, 2007, we reversed the default injunction, holding that (1) four individuals served with the injunction had standing to challenge it; (2) Broderick Boys was not an “unincorporated association” for purposes of service of process (Code Civ. Proc., § 416.40, subd. (b); Corp. Code, § 18220), because the gang had no “lawful purpose” (Corp. Code, § 18035); and (3) even if the gang were an unincorporated association, service of the complaint on only one member of unknown rank was insufficient. (Broderick Boys, at p. 1511.)

         Plaintiff filed the operative amended complaint in July 2007, seeking an injunction against Broderick Boys (with a/k/a's) and 23 individuals. The court entered default judgments in 2007 against nine individuals (none of whom are appellants in this appeal) -- Victor Dazo, Jr., Ramon Esquilin, Michael Hernandez, Rainey Martinez, William McFadden, Robert Sanchez, Paul Savala, Abel Trevino, and Tyson Ybarra. The judgment at issue in this appeal finds these nine are still Broderick Boys active members responsible for the public nuisance.

         After submission of declarations and a hearing, the trial court granted a preliminary injunction in May 2008. The court entered default against defendant Broderick Boys in October 2009. In an appeal from the preliminary injunction (Acuna I, supra, 182 Cal.App.4th 866), we upheld the preliminary injunction, except for (1) an overbroad restriction on controlled substances that would have prohibited gang members from entering pharmacies, and (2) a vague restriction on alcohol that would have barred members from being in the presence of someone drinking alcohol in a restaurant. (Id. at pp. 888, 892.) We held substantial evidence supported the trial court's conclusion that plaintiff was likely to prevail in showing Broderick Boys is a criminal street gang and engages in public nuisance activities. (Id. at p. 879.) We said defendants forfeited their challenge to the findings of their active membership, because they made no individualized arguments and did not explain how the evidence was insufficient. (Ibid.)

         Facts and Proceedings of Current Appeal

         At the bench trial in 2010, plaintiff presented two criminal street gang experts -- Police Detective Joe Villanueva and Sergeant Jason Winger -- both of whom also had personal experience investigating gang-related crimes.

         Villanueva worked for the West Sacramento Police Department (WSPD) and Yolo County's District Attorney between 2000 and 2007. He then transferred to Fairfield but keeps up with Broderick Boys' “goings-on” through continued communications with WSPD. Villanueva has a master's degree in criminal justice and did his master's thesis on gang injunctions. Winger testified to his 16 years of experience on the WSPD and was still working there at the time of trial. Since 2007, he has patrolled the field as part of the Community Response Team (CRT), which he now supervises.

         Nortenos is a criminal street gang with primary activities of murder, assault, robbery, drug sales, and vehicle theft. Nortenos' rival is the Sureno gang. Nortenos use signs or symbols, such as wearing red and displaying “Norte, ” “N, ” “14, ” or “XIV.” Norteno gang members typically tattoo themselves with these symbols. The Norteno gang has subsets -- factions that come from designated areas separated by city or turf within a city -- who share the Norteno philosophy and use Norteno signs and symbols.

         Broderick Boys is a criminal street gang and subset of the Nortenos. Broderick Boys' primary territory is the northern part of West Sacramento, including the Broderick neighborhood on the eastern side. Broderick Boys' primary activities are assaults, firearms offenses, drug sales, vehicle theft, and gang graffiti. They engage in violent assaults against rival Surenos and intimidate citizens to discourage cooperation with police and facilitate gang operations, including illicit drug trade. Victims have moved away.

         In addition to using Norteno symbols, Broderick Boys uses “BRK, ” “BSK” (Broderick Scrap [Sureno] Killer), and adopts corporate logos as its own, e.g., a Boston Red Sox hat (a red hat with a B). Broderick Boys does not have a formal organization structure but has an informal structure, where senior members (original gangsters or OGs) have more influence than newer members and determine the course of the informal policy.

         People typically join Broderick Boys through family connections with existing members or by being “jumped in” (submitting to beatings), and females can join by being “sexed in” (having sex with members). Members establish themselves by “putting in work” for the gang (committing violence or selling drugs) to earn respect. They show commitment to the gang by “patrolling” -- going out in groups looking for a fight or confrontation to show willingness to assault others and instill fear in the community.

         Villanueva opined specific individuals were active Broderick Boys gang members at relevant times, including the eight appellants, the other named defendants who did not appeal, and numerous other individuals ultimately found by the trial court to be active members. We discuss specific evidence regarding the eight appellants post in our discussion of their substantial evidence challenge to the trial court's finding of their active membership.

         Villanueva based his opinions on his personal interactions with the individuals, their self-admissions, their gang tattoos, and his review of documents such as field interview cards, police reports, and jail classifications. Jail intake questionnaires ask new arrivals to check a box yes or no as to whether they are gang-affiliated, and to sign the intake form. Winger also opined specific individuals were active Broderick Boys gang members, based on Winger's personal contacts with them, involvement in criminal investigations, review of police records, and gang tattoos. Winger said that, in overall gang lifestyle, it is highly likely that if someone were to get a gang tattoo without being a gang member, that person would be “acted upon by actual members.”

         While the preliminary injunction was in place, Villanueva noticed a reduction in Broderick Boys crimes, self-admissions, and public association. Before the injunction, he regularly saw gang members hanging out in groups on street corners, but less so after the injunction. Broderick Boys members, including (defendant) Billy Wolfington, told Villanueva that the injunction was driving them “underground.” Winger testified the practice of “flashing” gang tattoos (displaying them in a manner trying to attract attention) has diminished in the last five years, since the first iteration of the gang injunction. “Historically, ” Broderick Boys members hang out in public together, but not so much since the injunction.

         Plaintiff adduced evidence of multiple public nuisance activities, through testimony of victims, witnesses, law enforcement officers, and judicial notice of criminal court records. These activities dated back to around 2001, diminished while injunctions were in effect (February 2005 to April 2007, and May 2008 to the present), yet occurred even in 2010 shortly before trial. The trial court acknowledged its duty to determine whether there was an ongoing need for injunctive relief but allowed older incidents to counter defendants' denial of the existence of a Broderick Boys criminal street gang.

         A lot of evidence was adduced over defense objection, subject to plaintiff “connecting the dots” to show the individuals were active Broderick Boys members. We disregard evidence concerning individuals who did not make it onto the court's list of active members in the statement of decision. We also disregard evidence involving just one person, e.g., being found in possession of drugs, etc. After the bench trial, the California Supreme Court in a criminal case, People v. Rodriguez (2012) 55 Cal.4th 1125, held a defendant's commission of attempted robbery while acting alone did not fall within the elements of the gang participation offense under Penal Code section 186.22, subdivision (a), which requires willful promoting, furthering, or assisting in felonious criminal conduct by gang “members” (plural), though a gang enhancement (id. § 186.22, subd. (b)) might apply to such a person. (Rodriguez, supra, 55 Cal.4th at pp. 1130-1132.) While different concerns govern this civil injunction case, we focus on evidence of incidents involving more than one person and/or incidents resulting in final convictions of gang offenses or enhancements.

         We set forth a sampling of recent activities within a few years of the 2010 trial, all involving persons found by the trial court to be active Broderick Boys members.

         On February 17, 2007, police stopped (defendant) Timothy Acuna driving a stolen car, with (defendant) Alex Estrada as passenger. Acuna was convicted of vehicle theft with a gang enhancement in case No. 07-0982.

         Cesar Lara-Morales was convicted of a March 2, 2007, assault with a firearm and a gang enhancement as well as battery and gang activity in case No. 07-1438.

         Daniel Bonge, Austin Nunez, and Pauliton Nunez were convicted of assault with gang enhancements in case No. 07-2135, for their April 16, 2007, attack on an Amtrak train engineer. The engineer testified he stopped the train because a person was on the tracks. The engineer got off the train, saw a group of people, and told them to leave. They instead kicked the engineer and struck him with rocks, a fire extinguisher, and a vodka bottle, leaving him with a concussion, broken finger, bruised ribs, sprained ankle and shoulder, and a head wound requiring 13 staples to close. They tried to take his wallet and cell phone. Appellants claim the record is unclear whether this incident occurred within the safety zone, but they fail to cite to the transcript where the location was described as “the eastern perimeter of the Safety Zone, right at the edge of the western bank of the Sacramento River and I Street” near the I Street Bridge. Plaintiff also submitted photos of Bonge and both Nunezes making the letters “B” and “N” with their fingers, and folding their arms to form “XIV.” The Amtrak incident occurred after oral argument in Broderick Boys, supra, 149 Cal.App.4th 1506, and a week before we filed the April 23, 2007, opinion overturning the default injunction. (See id at pp. 1517, 1521 [referencing oral argument].)

         On August 15, 2007, police photographed graffiti on houses under construction -- e.g., “BRK” in red paint, a red B painted on a door, X4 painted on a wall, “FUCK X3 [Surenos], ” and “Don't fuck with BRK.”

         On September 28, 2007, police assisting a parole check found (defendant) Michael Hernandez in possession of marijuana and methamphetamine. He pleaded no contest to a drug offense and admitted a gang enhancement in case No. 07-5524.

         In October 2007, police found drugs in a car driven by Daniel Orozco accompanied by Thomas Mendes and, in a separate incident found stolen property in a car driven by Orozco.

         On November 9, 2007, police encountered in the street two wounded and agitated juveniles who reported they had just been attacked by Lorenzo Castanon (whom they knew) and another male, who demanded money from them. Police located Castanon in the company of Benito Morales, Jr., and Shawn Ruiz.

         On December 11, 2007, police took photos of cars painted with graffiti including “BRK” and “X4.”

         In March 2008, gang graffiti was spray-painted on cars, public sidewalks, trees, and residences on Portsmouth Way in West Sacramento.

         The preliminary injunction issued in May 2008.

         A police officer testified that, on September 7, 2008, a victim reported that a person, later identified as Manuel Diaz, approached the victim, called him a “scrap, ” said, “I [Diaz] am a Norte, ” hit the victim several times with a wrench, kicked the victim when he fell to the ground, and stole the victim's bike. Manuel Diaz was convicted of grand theft with a gang enhancement.

         Richard Dazo, Hillario Estrella, and Joshua Osborne were each convicted of a January 2009 assault with bodily injury and a gang enhancement in case No. 09-0110 for assaulting a female and stealing her backpack. A police officer asked Estrella if he “put in work” for Broderick Boys, which is a term of art in gang culture, meaning doing something to benefit the gang or further the gang, such as committing a criminal act like robbery, assault, or car theft. The officer did not define “put in work” when speaking with Estrella, but Estrella answered the question by saying he fought rival gang members.

         On February 11, 2009, police conducted a parole search at the residence of Michael Fragoso and Joseph Freed and found marijuana, methamphetamine, cocaine salt, a red hat with the word “Norte, ” several hats with “B” or “N” on them, and red clothing. Freed had a “1” and “4” tattooed on his chest. Fragoso had a “B” with a crown tattooed on his arm and shoulder. (5RT 1388-1394)

         Christopher Castillo was convicted of a March 6, 2009, gang activity offense in case No. 09-1349. He and his brother -- minor J.C. -- attacked the victim, leaving small puncture wounds on his back and lacerations on his torso. The following day, police responded promptly to a dispatch about a fight and spoke with victim J.R., who related that “Cricket” (Christopher Castillo) and two others approached the victim and his friends in the street and asked if they were “scraps” (Surenos). J.R. said no. Castillo or one of his companions said, “Well, this is Broderick, Homey, ” and all three struck J.R., leaving him with a swollen lip and forehead, and took his bicycle.

         On March 18, 2009, Angel Sanchez and Jesse Sanchez assaulted a victim at his home. In this civil case, plaintiff called Angel Sanchez as a witness, but he invoked the Fifth Amendment on the witness stand. The trial court found him unavailable as a witness and admitted into evidence his testimony from his prior criminal trial for the March 2009 assault (case No. 09-1474). The defense in this case objected that Sanchez's prior testimony did not constitute declarations against interest because they were motivated by his desire to receive a lower sentence. The court ruled Angel's statements about being in a gang and getting tattoos were “part of the larger pattern that could be considered against his interests.” In his testimony in the criminal case, Angel Sanchez said he was then a Broderick Boy and had gang tattoos on his face, arms, and hands, and one way to join was to be “jumped in” to the gang, though he was not jumped in but joined because he had family members involved in the gang. Angel Sanchez testified he “put in work” for the gang by fighting members of other gangs. Plaintiff's gang expert testified Angel Sanchez contributes to the nuisance but at the time of this trial was in custody awaiting sentencing on his criminal case.

         On April 3, 2009, a probation search of the residence of Manuel and Carlos Guzman revealed a shotgun, ammunition, items with gang graffiti, and marijuana. In case No. 09-1660, Carlos Guzman pleaded no contest to active participation in a criminal street gang and was sentenced to 16 months in prison, and Manuel Guzman (who less than two years earlier told police he was a Broderick Boy), pleaded no contest to possession of a firearm with a prior conviction and active participation in a criminal street gang.

         Shortly before trial began in July 2010, a series of incidents inside the safety zone culminated in a violent attack in March 2010 at a pre-arranged location outside the safety zone -- Memorial Park. Victim J.H. and his father Mr. H. testified about the initial events. In early January 2010, J.H.'s brother, minor R.H., got into a fight with Brandon Lanzi (identified as minor B.L. in the statement of decision), cousin of then-Broderick-Boy Abel Morales. In mid-January 2010, R.H. got into a fight at school with the brother of validated Broderick Boys gang member Alexander Valadez. Mr. H., arrived at the school to pick up his sons. Alexander Valadez and his girlfriend, J.L., were standing nearby, and J.L. said to Mr. H., “what are you looking at n*****, ” and “we know you live [at a specified street and apartment number].” As the H. family headed home, Alexander Valadez drove past, with his brother, J.L., and Abel Morales in the car, yelling, “Broderick.” They were sitting in their car outside the H. family's home when the H. family arrived. Alexander Valadez yelled, “it's on, n*****. We got clips. We got nines. I am going to call my uncle. I got my uncle, and he's bigger than you, you know.” Alexander Valadez also said something about “kill” and “we all own this area; we are Broderick.” Later that day, Valadez, J.L., and Abel Morales drove by again. A few days later, Valadez and a companion were sitting in a car when Mr. H. arrived home. Valdez made eye contact and then drove away.

         Arrangements were made for a fight between R.H. and Abel Morales at Memorial Park -- outside the safety zone -- on March 19, 2010. On their way to the park, J.H. and R.H. were accosted by Broderick Boy Christopher Castillo, who rode up on his bike and said, “you got funk with my cousin.” At the park, Castillo looked at R.H. and said, “this is Broderick.” J.H. said Castillo, who was an adult, was too old to fight teen R.H. Castillo swung at J.H., and they did battle. Several cars arrived, and about 10 people got out and attacked J.H. and R.H. while using racial slurs and yelling, “this is Broderick.” Abel Morales and Benny Hammond hit J.H. and, when he fell to the ground, hit and kicked him. J.H. got up, and Castillo hit him on the head with a hammer several times, causing bleeding. R.H. was kicked, stomped on, and had a knife thrown at him. The attackers drove away as police arrived. An officer testified that, of the crowd of bystanders, only two were willing to give a statement. Others said they were afraid to get involved. Victim J.H.'s father testified he had to move his family away from the home they loved, out of fear of the Broderick Boys gang.

         The trial court took judicial notice that Charles Dalby Dykes, Benny Hammond, Brandon Lanzi, and Alexander Valadez were convicted of gang activity offenses or assault with gang enhancements in connection with the Memorial Park incident. Abel Morales was convicted of assault with great bodily injury. (Pen. Code, § 245.) On our own motion, we take judicial notice that Christopher Castillo was later convicted of conspiracy, assault with a deadly weapon by force likely to produce great bodily injury, participation in a criminal street gang, plus gang enhancements, and we affirmed the judgment in an unpublished opinion, People v. Castillo, C073250, filed June 11, 2015 (rev. denied).

         On June 4, 2010, police contacted Jesse Contreras, a validated gang member, about his violating a probation condition that he not associate with gang members. Contreras had a fresh “BRK” tattoo on his stomach.

         In early August 2010, police stopped Scott Delgado and two others, all of whom were subject to the injunction, violating the 10:00 p.m. curfew provision of the injunction.

         The trial court allowed Officer Labin Wilson to testify as a gang expert in plaintiff's rebuttal case, regarding an assault that occurred in the safety zone on November 6, 2010 (during trial). As we discuss post, for purposes of this appeal, we will assume the trial court erred in allowing this evidence but will conclude any error was harmless.

         The Defense Case

         The defense presented gang experts who opined neither Nortenos nor Broderick Boys are a criminal street gang. A former prison warden testified that jail intake classification does not necessarily mean the person is a member of a criminal street gang. The defense called as witnesses numerous residents of the community, including defendants' friends and family, who testified they did not witness any public nuisance activity in the safety zone and did not fear for their safety.

         Statement of Decision and Judgment

         In a statement of decision and judgment filed June 16, 2011, the trial court granted an injunction to restrain appellants' activities within the safety zone.

         Applying the standard of clear and convincing evidence, the trial court found Broderick Boys is a criminal street gang whose members have created a public nuisance, and appellants are active members. The court found credible the testimony of plaintiff's witnesses. The court found “less credible” defense witness denials of the existence of the Broderick Boys gang, because of some witnesses' relationships to named defendants, apparent motive to minimize defendants' actions, lack of personal knowledge regarding certain events, and use of the phrase “I don't recall” and/or gaps in their knowledge or recollection.

         The court found defendants' conduct “has obstructed the free use of property in the Safety Zone, interfered with the comfortable enjoyment of life and property in the Safety Zone, and unlawfully obstructed the free passage and use, in the customary manner, of public parks and places.” The conduct “has affected and continues to affect a substantial number of people who live and work in the Safety Zone.” “Without the injunction, defendants, and each of them, will continue to maintain the nuisance by participating in and encouraging their criminal and nuisance activities, irreparably harming the community and the individuals who live and work in the Safety Zone.” “The nuisance is ongoing, and although attenuated somewhat since the issuance of the preliminary injunction, it still exists.”

         The court noted WSPD evidence that a process exists for persons to be removed from the list of active members by inactivity or by “opting out.”

         The court found it appropriate to limit the term of the injunction to seven years, because younger members typically “age out” of the youthful criminality; older members move away or are incarcerated long-term; and it is speculative whether new members will replace old members (in light of the decline in activity while the preliminary injunction has been in effect and absence of evidence of recruitment). The injunction has been in place in various iterations since February 3, 2005, and seven more years “is sufficient for law enforcement to use the injunction to further attenuate the nuisance activity in the Safety Zone until the injunction is no longer necessary, and the residents of the Safety Zone who oppose the injunction will not suffer what they perceive to be a permanent blemish on their neighborhood.” The court retained continuing jurisdiction in equity over the terms and duration of the injunction. (Civ. Code, § 3424.) Unless modified, the injunction will expire in 2018 -- seven years after entry of judgment.

         The judgment enjoined and restrained Broderick Boys and its active members from:

(1) appearing in public with any known member of Broderick Boys, except when in school on school business or church (the non-association order);
(2) intimidating any person known to be a witness or victim or complainant concerning Broderick Boys activity (the no-intimidation order);
(3) possessing or knowingly being in the presence of any gun, ammunition, or dangerous weapon (the no-weapons order);
(4) damaging, defacing, or marking any public or private property (the no-graffiti order);
(5) possessing or using any controlled substance without a prescription or selling or knowingly participating in the sale of any controlled substance (the stay-away-from-drugs order);
(6) possessing or knowingly remaining in the presence of anyone possessing an open container of alcohol, where such possession occurs in a place accessible to the public, except on the premises of establishments licensed to serve or sell alcohol (the stay-away-from-alcohol order);
(7) remaining in a public place or establishment open to the public or vacant lot between 10:00 p.m. and 6:00 a.m., except when attending certain events, working, or in case of emergency (the curfew order);
(8) being present on or in property not open to the general public except with prior written consent of the owner, owner's agent, or person in lawful possession of the property, or in the presence of and with the voluntary consent of the owner, owner's agent, or person in lawful possession (the no-trespassing order);
(9) failing to obey laws prohibiting violence or interference with property rights or commission of acts creating a nuisance.

         Discussion

         I

         Summary of Gang Injunction Legal Principles and Standard of Review

         A gang injunction to abate a public nuisance may be issued under the Civil Code (§§ 3479-3480) or under the STEP Act (Pen. Code, § 186.22a). (People ex rel. Gallo v. [Carlos] Acuna (1997) 14 Cal.4th 1090, 1119 (Gallo v. Acuna) [public nuisance under the Civil Code].) This case was brought under the Civil Code, which defines a nuisance as “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of... any public park, square, street, or highway.” (Civ. Code, § 3479.) A public nuisance is a nuisance “which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) Public nuisances are misdemeanors. (Pen. Code, §§ 372-373a.) A civil action to abate a public nuisance may be brought by a district attorney on behalf of the people. (Code Civ. Proc., § 731.)

         Where the action is based on gang activity, plaintiff must show (1) the group is a criminal street gang, (2) its members engage in public nuisance activities, and (3) the individuals being subjected to the injunction are active members of the gang. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1258 (Englebrecht) [permanent injunction], citing Gallo v. Acuna, supra, 14 Cal.4th at p. 1125 [preliminary injunction].)

         A criminal street gang is “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 including assault, robbery, and felony vandalism], 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).) For the purposes of a gang abatement injunction, the test is public nuisance activity rather than criminal activity (Englebrecht, supra, 88 Cal.App.4th at p. 1258), but in this case the public nuisance activity consisted mainly of crimes. “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. [Citation.]” (Acuna I, supra, 182 Cal.App.4th at pp. 874-875, citing Englebrecht, supra, 88 Cal.App.4th at pp. 1260-1261.)

         “[I]n 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.' [Citation.]” (Acuna I, supra, 182 Cal.App.4th at p. 875, citing Englebrecht, supra, 88 Cal.App.4th at pp. 1260-1261.) Of necessity, the definition of active membership cannot be very specific. (Acuna I, supra, 182 Cal.App.4th at p. 884.) It is not likely criminal street gangs maintain rosters of their active members. (Ibid.) Some factors to consider are self-identification, gang tattoos, crimes committed with other gang members, information from reliable informants, clothing, accessories, photographs, and close association with known gang members. (Ibid.) We held this definition of active gang member is not unconstitutionally vague. (Acuna I, supra, 182 Cal.App.4th at pp. 883-884.)

         The injunction may not burden the constitutional right of association more than is necessary to serve the significant governmental interest at stake. (Gallo v. Acuna, supra, 14 Cal.4th at pp. 1115, 1120-1122.)

         The importance of the interests affected by the injunction, i.e., constitutional due process and general public policy considerations, requires that the finding of facts necessary to justify its issuance be proved by clear and convincing evidence. (Acuna I, supra, 182 Cal.App.4th at p. 873; Englebrecht, supra, 88 Cal.App.4th at pp. 1254-1256.) Here, the trial court correctly applied the clear and convincing evidence standard.

         On review of a trial court's decision to grant an injunction, we apply the abuse of discretion standard, but we review the trial court's factual findings under the substantial evidence standard, resolving all factual conflicts and credibility questions in favor of the prevailing party and indulging all reasonable inferences in support of the injunction. (Gallo v. Acuna, supra, 14 Cal.4th at pp. 1109-1110; Acuna I, supra, 182 Cal.App.4th at pp. 878-879.) We review questions of law de novo. (People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 38 (Totten v. Colonia Chiques).) While constitutional issues are always subject to independent review, we do not on appeal reweigh the evidence before the trial court or determine the credibility of witnesses. (Acuna I, supra, 182 Cal.App.4th at pp. 878-879.)

         II

         Claims of Evidentiary Error

         While appellants describe the challenged gang evidence as inflammatory, we are mindful that this case does not involve a jury, but rather a bench trial in which the trier of fact was a judge capable of weighing the evidence without being influenced by its inflammatory nature. (In re Hernandez (1966) 64 Cal.2d 850, 851.) The trial court expressly noted this point.

         Appellants claim the trial court made multiple prejudicial evidentiary errors. We generally review the trial court's evidentiary rulings for abuse of discretion, though when the issue is whether admission of evidence violated the federal Constitution, we review the matter de novo. (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)

         Under a heading that erroneous admission of evidence in violation of federal constitutional due process rights renders a trial “fundamentally unfair, ” appellants make catch-all arguments that the trial court erroneously allowed “virtually all evidence” regardless of its irrelevance, inflammatory nature, and prejudicial effect and allowed all victims' hearsay statements as spontaneous utterances. Appellants “must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the [trier of fact] may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that the [trier of fact] must have used the evidence for an improper purpose.' [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 229 (Albarran).)

         A. Appellants' “Standing” Re: Non-appellants

         In its respondent's brief, plaintiff argues the eight appellants lack standing to challenge hearsay statements of other gang members. Plaintiff cites Acuna I, where we said the appellants -- named defendants found to be “active members” -- lacked standing to challenge the definition on behalf of persons not before the court. Here, however, the issue is different. Appellants are entitled to challenge use of evidence of other people's out-of-court statements to prove as a factual matter that Broderick Boys is a criminal street gang whose members engage in public nuisance activities -- facts which are necessary to the permanent injunction to which appellants are being subjected.

         B. Deferred Ruling

         Appellants complain the trial court improperly deferred ruling on hearsay objections until the end of trial, allowing plaintiff to “connect the dots” linking actors to the gang. Appellants present no ...


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