In re Alfredo L. CA4/3 ( 2014 )

Filed 6/27/14 In re Alfredo L. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re ALFREDO L., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
G049391
Plaintiff and Respondent,
(Super. Ct. No. DL037087)
v.
OPINION
ALFREDO L.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Minor Alfredo L. has been a ward of the court under Welfare and
Institutions Code section 602 since 2010. The current petition alleged he possessed a
dirk or dagger (Pen. Code, § 21310; all further statutory references are to this code), a
felony, for the benefit or direction of, or in association with FOLKS (Family of Latin
Kings Surenos), a criminal street gang, with the specific intent to promote, further, or
assist in criminal conduct by members of the gang. (§ 186.22, subd. (b).) During the
adjudication hearing, the court denied minor’s motion to dismiss the criminal street gang
enhancement due to insufficient evidence. It found the felony allegation and the gang
enhancement to be true, declared minor a ward of the court, and sentenced him to
juvenile hall for 120 days with 61 days credit.
Minor contends insufficient evidence supports the gang enhancement. We
disagree and affirm the judgment.
FACTS
One morning, police officer James Pietras and gang investigator Ryan
Killeen were patrolling an area documented as FOLKS claimed gang territory when they
saw minor. Minor was alone, riding his scooter on his way home. Pietras remembered
he had completed a Street Terrorism and Enforcement and Prevention (STEP) card for
minor, who had admitted he was a member of the FOLKS gang.
When minor stopped next to the patrol car, Pietras asked if he was on
probation and minor said he was. Minor initially denied possessing anything illegal on
his person, but after consenting to a search, admitted having a knife under his shirt tucked
into his waistband. Killeen removed a knife with a six-inch blade from minor’s
waistband.
Upon waiving his rights under Miranda v. Arizona (1996) 384 U.S. 436,
6478-479 [88 S. Ct. 1602, 16 L. Ed. 2d 694], minor admitted he had been a FOLKS gang
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member since the age of 13, and will be for life. He had gang tattoos, although they were
not initially visible to Killeen, and the moniker of “Little Termite.” Minor said he had
the knife because his gang was in a feud with another gang and several shootings had
occurred between the two gangs. He knew possessing the knife was unlawful and in
violation of his probation, but said he needed the knife to protect himself because he is
small. If minor was confronted by a rival gang member, he would brandish it, but was
unsure if he would use it.
Killeen testified as a gang expert, about gangs in general and FOLKS in
particular. FOLKS gang members typically wear black and gold colors. Minor was
wearing dark colors, including a black t-shirt.
Killeen opined minor was an active member of the FOLKS criminal street
gang who possessed the knife “for the benefit of the FOLKS gang.” He arrived at this
opinion because gang members often carry knives or guns, which are used to commit
crimes, “as well as protect themselves and their gang.” Here, minor was a self-admitted
lifetime FOLKS member with gang tattoos who carried the knife for protection from a
rival gang in an ongoing conflict with his own gang. Although he carried the knife “for
his protection, . . . he’s got to live up to the expectations of his gang, which is to back it
up through means of violence.” By possessing the knife, whether he uses it or merely
displays it, minor will “gain respect within the [gang] for himself,” and create fear in the
rival gang, which “in gang culture equals respect.” He would then be able to brag about
brandishing or using the knife and elevate his status within the gang. An act of violence
to protect himself can also benefit the gang because of how information travels.
DISCUSSION
Minor contends insufficient evidence supports the court’s finding he
possessed the knife for the benefit of a criminal street gang. In reviewing sufficiency of
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the evidence claims, we do not reweigh the evidence or assess the credibility of
witnesses, but examine the entire record and draw all rational inferences from the record
in favor of the judgment to determine whether there is reasonable and credible evidence
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Albillar (2010) 51 Cal. 4th 47, 60.) We conclude there is.
For the gang enhancement to be established, minor must have possessed the
knife (1) “for the benefit of, at the direction of, or in association with any criminal street
gang” (2) “with the specific intent to promote, further, or assist in any criminal conduct
by gang members . . . .” (§ 186.22, subd. (b)(1); People v. Albillar, supra, 51 Cal.4th at
pp. 59-60.) “Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the inference that the
conduct was ‘committed for the benefit of . . . a[ ] criminal street gang’ within the
meaning of [the first prong of] section 186.22[, subdivision] (b)(1).” (Albillar, at p. 63.)
The second prong can be established by evidence “the defendant act[ed] with a specific
intent to promote, further, or assist the gang.” (People v. Rodriguez (2012) 55 Cal. 4th
1125, 1139.)
People v. Garcia (2007) 153 Cal. App. 4th 1499 is instructive. There,
officers stopped the defendant, an active gang member who had committed gang crimes,
for a traffic violation and found a gun. (Id. at pp. 1502-1504.) Defendant contended he
had been shot and possessed the gun solely for self-defense. (Id. at p. 1512.) Based on
the gang expert’s testimony on the importance of guns in gangs and the respect gang
members and gangs garner from possessing guns, this court concluded sufficient
evidence supported the jury’s finding on the street terrorism enhancement. (Ibid. [while
evidence may be sufficient to support finding the defendant possessed gun out of fear, it
was also sufficient to support finding he did so to promote, further or assist gang].)
Substantial evidence exists here as well. Minor was an admitted lifetime
FOLKS gang member. Killeen testified minor possessed the knife for the benefit of
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FOLKS in order to gain respect within the gang and the rival gang with whom FOLKS
was having a continuing conflict in which gunshots had been exchanged. Killeen also
testified that in the event of a confrontation by a rival gang member, minor’s possession
of the knife would benefit the gang, whether he merely brandished or used it, by creating
fear and respect in the rival gang. Further, minor was wearing colors consistent with
those of the FOLKS gang, including a black t-shirt, which by itself may not have
amounted to substantial evidence, but when combined with the other evidence in the
case, suffices to allow the court to conclude minor committed the crime for the benefit of,
and with the specific intent to promote, further, or assist, FOLKS within the meaning of
section 186.22, section (b)(1).
Minor relies primarily on In re Frank S. (2006) 141 Cal. App. 4th 1192,
which reversed a gang enhancement because, “unlike in other cases, the prosecution
presented no evidence other than the expert’s opinion regarding gangs in general and the
expert’s improper opinion on the ultimate issue to establish that possession of the weapon
was ‘committed for the benefit of, at the direction of, or in association with any criminal
street gang . . . .’ [Citation.] The prosecution did not present any evidence that the minor
was in gang territory, had gang members with him, or had any reason to expect to use the
knife in a gang-related offense. In fact, the only other evidence was the minor’s
statement to the arresting officer that he had been jumped two days prior and needed the
knife for protection. To allow the expert to state the minor’s specific intent for the knife
without any other substantial evidence opens the door for prosecutors to enhance many
felonies as gang-related and extends the purpose of the statute beyond what the
Legislature intended.” (Id. at p. 1199.)
Here, by contrast, there was more than just an expert’s testimony about
gangs in general. Minor himself conceded he carried the knife for the specific purpose of
using it if confronted by a rival gang member. According to Killeen, that benefits and
promotes both him and FOLKS. In addition, the officers here did contact minor in
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FOLKS claimed gang territory and minor had reason to expect he might need to use the
knife in a gang-related offense, i.e., his gang had an ongoing violent feud with a rival
gang. This is sufficient to create an inference minor had the requisite specific intent.
That evidence is also what distinguishes this case from two other cases
cited by minor. In both, there was no evidence the crimes took place in the gang’s
claimed territory. (In re Daniel C. (2011) 195 Cal. App. 4th 1350, 1356-1357, 1363-1364;
People v. Ochoa (2009) 179 Cal. App. 4th 650, 662, 653-663.) Also unlike those cases,
there is no claim Killeen’s premise “was factually incorrect” (In re Daniel C., supra, at p.
1364) and Killeen based his opinion on the particular facts of the case rather than
speculation (People v. Ochoa, supra, at p. 663).
Minor asserts the reasoning in People v. Rodriguez, supra, 55 Cal.4th at pp.
128, 139, that a person acting alone cannot be convicted of violating section 186.22,
subdivision (a) (street terrorism), also supports a conclusion that a gang member acting
alone cannot violate subdivision (b) of section 186.22. It does not. (See People v. Rios
(2013) 222 Cal. App. 4th 542, 546 [“holding in Rodriguez — that a lone actor cannot
violate section 186.22, subdivision (a) — does not apply to the separate enhancement set
forth in section 186.22, subdivision (b)”].)
Minor acknowledges that a defendant acting alone “does not preclude the
imposition of the gang enhancement,” but notes Rios nevertheless considered that fact in
determining the evidence did not support the gang enhancement. (Rios, supra, 222
Cal.App.4th at pp. 572-574.) Unlike in Rios, however, substantial evidence supports the
gang enhancement notwithstanding minor being “a lone actor.” (Id. at p. 572.)
Minor maintains the court’s finding that he violated section 186.22,
subdivision (b)(1) even though he was alone and riding his scooter on his way to his
home two blocks away, was “purely speculative.” We disagree, given that minor’s
admission he was carrying the knife in case he was confronted by a rival gang member,
which benefits and promotes both him and FOLKS.
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DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
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