In re Steven L. CA4/1 ( 2024 )

Filed 9/30/24 In re Steven L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re STEVEN L., a Person Coming
Under the Juvenile Court Law.
D083082
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J245145)
v.
STEVEN L.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Tilisha Martin, Judge. Affirmed.
Elisa A. Brandes, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Joshua Trinh, Deputy Attorneys General, for Plaintiff and
Respondent.
Minor Steven L. pled guilty to assault by means of force likely to cause
great bodily injury (Pen. Code, § 245, subd. (a)(4))1 after an incident where he
and three others punched, kicked, and threw a glass bottle at another minor.
The People further alleged that Steven committed the assault for the benefit
of a gang within the meaning of section 186.22, subdivision (b)(1). Following
a bench trial on the gang enhancement allegation, the juvenile court found
the allegation to be true.
Steven appeals only the gang enhancement, contending that there was
insufficient evidence that one of the alleged predicate offenses commonly
benefitted a criminal street gang as required under the recently enacted
changes to section 186.22. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution’s Case in Chief
In May 2023, C.P. and his friend had just exited a trolley station in
San Ysidro when four boys approached them and asked where they were
from. C.P. did not initially respond, but when the group asked whether he
and his friend were “from a neighborhood,” C.P. responded, “no, no, sir.” The
four boys then jumped C.P., punching and kicking him all over his body. C.P.
did not remember what happened after that because he was on the ground,
but he agreed that the video surveillance footage that captured the incident
accurately showed what happened to him that day. C.P. told a police officer
he spoke with the day after the incident that he heard one of his attackers
say “this is Nestor” as they walked away.
The investigating detective identified Steven as one of the attackers.
Steven used a cell phone to record C.P. during the attack and sent it in a
1 Undesignated statutory references are to the Penal Code.
2
group chat afterwards, bragging about the assault. The cell phone video
recorded one of the attackers, seemingly Steven, saying, “fuck shit yard.”
Steven also threw a glass bottle at C.P. during the attack. C.P. interpreted
“shit yard” as referring to the San Ysidro neighborhood where he was from
and understood that phrase was meant to “disrespect” his neighborhood.
San Diego Police Detective Michael Muniz also testified that the phrase
“ ‘shit yard’ ” is “a term of disrespect to the San Ysidro criminal gang . . . that
comes from a rival gang.”
The San Ysidro gang is a traditional Hispanic gang that is a rival of the
Nestor gang, another gang in San Diego. The Nestor gang’s territory is the
Nestor neighborhood. A gang member entering a rival gang’s territory is
disrespectful, and gang members are expected to defend their territory from
disrespect. Nestor gang members sometimes wear particular colors, brands,
and types of clothing, have specific tattoos, and use certain hand signals, all
of which represent their affiliation with the gang. The detective opined that,
since Nestor was formed in the 1980s, Nestor members have collectively
engaged in a pattern of criminal activity, including violent crime, such as
robbery, assault, and attempted murder.
After the incident, Steven was arrested at his home. Police officers
found a firearm, narcotics, the sweatshirt Steven wore during the incident,
clothing affiliated with Nestor, and journal sketches depicting Nestor graffiti
and gang signs in the bedroom Steven shared with his brother. The
investigation of Steven’s social media also revealed several photographs of
Steven and Nestor gang members throwing up hand signs. Detective Muniz
opined that Steven was a Nestor gang member based on this evidence as well
as his previous investigations of Nestor. He further opined that the other
three attackers were also Nestor gang members and that the assault was
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committed at the direction of, for the benefit of, or in association with the
Nestor gang. Detective Muniz stated that the assault benefitted the gang
because it allowed the younger members to gain acceptance by “putting in
work,” improved the gang’s reputation, and disrespected their rival gang by
going into their rivals’ territory and confronting them to exert their
dominance.
In closing, the prosecutor argued that Steven and his fellow
perpetrators were all documented Nestor gang members who assaulted a
“perceived Sidro rival in Sidro territory. . . . By beating on a perceived rival
in the rival’s own territory it exploits the rival’s weakness and intimidates
that rival and other rivals. And when a rival’s weakness is exploited, the
rival is susceptible to being absorbed to losing territory, to losing members,
and to losing strength by having injured members. Those are just some of
the tangible benefits that Nestor ga[in]s from that collective assault, Nestor
being a neighboring rival to Sidro.”
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B. Predicate Crimes
For the gang enhancement, the People relied on evidence of two
predicate crimes committed in November 2021 and December 2020.
In the November 2021 incident, five Nestor gang members confronted
two non-gang members outside a house in Nestor territory. One Nestor gang
member instigated a fight with the non-members outside the house, and
when he began to lose the fight, the four other Nestor gang members
attacked the victims with a tire iron and hammer. One of the Nestor gang
members then pulled out a firearm and fired multiple shots at the victims.
One of the gang members pled guilty to assault by means likely to produce
great bodily injury and was sentenced to two years in prison.
Approximately 20 to 30 minutes before the fight, a video recording
captured an incident where the gang member who initiated the fight
approached one of the victims. The two men exchanged words, but it is
unknown what specifically was said.
One of the investigating police officers opined that this crime was
committed for the benefit of the Nestor gang because reputation and respect
are most important when it comes to the gang, and the expectation is for
members to respect their fellow gang members and come to their aid. In
closing, the prosecutor stated that this predicate offense showed the gang
members’ loyalty to Nestor, arguing that when a Nestor member “was losing
a fight to a non-gang member, [] what followed was four other Nestor
members rushing to the aid of their member. In that moment there was an
expectation almost compulsory to defend Nestor’s territory.”
In the December 2020 incident, four people entered a Circle K gas
station wearing face masks and blue and black clothing and stole various
nicotine products. One man brandished a hammer towards the cashier while
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the others grabbed the nicotine products, including $400 worth of e-cigarettes
and $40 worth of swishers. The group then retreated to a vehicle outside the
gas station where a fifth suspect drove the group away.
The incident was captured on video surveillance. Based on the
suspects’ clothing, gang signs, tattoos, and social media, police investigators
determined they were associated with the Nestor gang. Investigators also
uncovered videos showing the members wearing the same clothing in the
surveillance footage, flashing gang signs, and showing the stolen items. The
driver pled guilty in the case and was sentenced to ten years in state prison.
A detective opined that the robbery benefited Nestor primarily due to
financial gain. He testified that “[w]hether they intend to sell the items or
pocket them and not have to spend money on them, it would immediately
result in financial gain.” He further opined that “when you have younger
members of the gang trying to put in work to make a name for themselves, to
earn respect of other gang members and to establish dominion amongst other
gangs, all of those things together lead me to believe they did this in
association with the Nestor gang and for the benefit of them.” The detective
also testified that the fact that the gang members later recorded videos of the
stolen items while throwing up gang signs consistent with Nestor supported
his belief that the robbery was committed for the benefit of the Nestor gang.
In closing, the prosecutor argued that the “most obvious benefit” was
“the financial motive or financial gain,” but the gang also benefited because
“the collective use of the Nestor members committing these crimes enhances
the loyalty among the members to one another. It cements memories within
that gang that could be used to educate, to embolden, and to commit further
crime.”
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C. Juvenile Court Adjudication and Disposition
At the conclusion of closing arguments, the juvenile court found that
the prosecution proved beyond a reasonable doubt the truth of the section
186.22, subdivision (b)(1) gang allegation. The court made the following
comments regarding the instant offense: “First, you can actually use the
videotape of this attack as a training video as to what constitutes a gang
challenge and subsequent beat down. In this case we have a classic verbal
gang challenge. Four Nestor gang members then proceed, and proceed
quickly, to engage in a group beat down of a perceived rival. In this case the
beat down occurred in rival gang territory. The minor was an active
participant in the beating.” As to the 2021 predicate offense, the court found:
“One does not have to use your imagination to see that the 11/14/21 incident
was once again a gang beat down, except this time they used a gun, a tire
iron, and a hammer.” The court did not make any express finding as to a
common benefit. Regarding the 2020 predicate offense, the court found:
“Similarly, the December 15, 2020 second predicate offense was a videotaped
robbery of the Circle K, gang members acting in association with one another
for financial [gain] and certainly for reputational benefit for their gang.”
The court adjudged Steven a ward of the court per Welfare and
Institutions Code section 602, placed him in the custody of his mother,
ordered probation and to comply with probation orders, and imposed a
curfew, gang conditions, and a restitution fine of $100.
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DISCUSSION
Steven appeals only the gang enhancement conviction under section
186.22, subdivision (b)(1), contending there was insufficient evidence that one
of the alleged predicate crimes, the December 2020 robbery, commonly
benefitted the gang in a way that was more than reputational.
Standard of Review
Our review of a claim of insufficiency of the evidence is limited. We
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (People v. Albillar
(2010) 51 Cal.4th 47, 59–60 (Albillar).) We presume every fact in support of
the judgment that could have reasonably been deduced from the evidence.
(Id. at p. 60.) If the circumstances reasonably justify the court’s findings,
reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. (Ibid.)
Analysis
The Penal Code provides enhanced punishment for someone “convicted
of a felony committed for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote, further, or
assist in criminal conduct by gang members[.]” (§ 186.22, subd. (b)(1);
People v. Clark (2024) 15 Cal.5th 743, 751–752 (Clark).) The Legislature first
enacted section 186.22 in 1988 as part of what is known as the STEP Act.
(Clark, at p. 751.) In 2021, the Legislature substantially amended the STEP
Act by enacting Assembly Bill No. 333, which went into effect January 1,
2022 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699, § 1) (Assembly Bill 333).
(Clark, at p. 752.) The new legislation, which became effective on January 1,
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2022, made several changes to the statutory definitions relating to gang
enhancements in section 186.22.
As now more narrowly defined, a “criminal street gang” is an “ongoing,
organized association or group of three or more persons” that: (1) has a
common name or common identifying sign or symbol; (2) has, as one of its
primary activities, the commission of the offenses listed in section 186.22,
subdivision (e)(1); and (3) whose members collectively engage in or have
engaged in a pattern of criminal gang activity. (§186.22, subd. (f).) To
establish a pattern of criminal gang activity, the People have to prove at least
two predicate offenses. (§ 186.22, subd. (e)(1).) With respect to the predicate
offenses, the People must meet the following requirements: (1) the offenses
must have commonly benefited a criminal street gang; (2) the last predicate
offense must have occurred within three years of the date of the currently
charged offense; (3) the predicate offenses must be committed on separate
occasions or by two or more gang members, as opposed to persons; and (4) the
charged offense cannot be used as a predicate offense. (People v. Tran (2022)
13 Cal.5th 1169, 1206; § 186.22, subd. (e)(1), (2).)
Assembly Bill 333 also “narrowed what it means for an offense to have
commonly benefitted a street gang, requiring that any common benefit be
more than reputational.” (Clark, supra, 15 Cal.5th at p. 752 [cleaned up];
§ 186.22, subd. (g).) Examples of such benefits “include, but are not limited
to, financial gain or motivation, retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or previous
witness or informant.” (§ 186.22, subd. (g).)
At issue on appeal here is whether there was sufficient evidence of a
common benefit that was more than reputational from the December 2020
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predicate crime.2 The parties agree that the robbery was committed by
Nestor gang members and that those individual members received a financial
benefit. Steven contends, however, that there was no evidence the Nestor
gang as a whole received anything other than a possible reputational benefit
from committing the Circle K robbery, and his gang enhancement conviction
must therefore be reversed. The People argue that because the detective
opined that the gang benefited financially from the robbery and the gang
members collectively gained the value of nicotine products as a result of their
Nestor gang association, it was reasonable for the court to determine that the
robbery provided a common financial benefit to the gang.
The People rely heavily on the Supreme Court’s decision in People v.
Renteria (2022) 13 Cal.5th 951 (Renteria). There, the court noted that its
prior decision in Albillar “established that in cases where multiple gang
members were involved in the charged offense, the fact of their joint
involvement in a crime often provides sufficient evidence of association and
benefit, as well as circumstantial evidence of an intent to promote the
criminal activity of other gang members, in connection with the very same
criminal offense.” (Renteria, at p. 963.) But these two cases offer little
assistance in construing the “common benefit” requirement of Assembly
Bill 333. Albillar predated the enactment of Assembly Bill 333 by over a
decade, and Renteria explicitly declined to decide the effect of the new law
and instead “focus[ed] on the law as it existed before the enactment of
Assembly Bill 333.” (Renteria, at p. 961 & fn. 6.)
2 We assume without deciding that the evidence was sufficient to
demonstrate such a benefit for the current offense and the November 2021
predicate offense. Steven does not contest this on appeal.
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We find more instructive two recent Supreme Court cases finding
prejudicial error arising from the absence of jury instructions on the new
requirements for gang enhancements under Assembly Bill 333. In People v.
Cooper (2023) 14 Cal.5th 735 (Cooper), the court observed that, “the grand
total of evidence relied on by the Attorney General for proving that the
alleged predicate offenses provided a common benefit that is more than
reputational to the gang is that there was a robbery and a sale of narcotics by
gang members and that a primary activity of the gang is to commit robberies
and the sale of narcotics.” (Id. at p. 746.) The record in that case, however,
did “not disclose the circumstances surrounding the predicate offenses and
the prosecution never introduced any evidence about how the gang commonly
benefited from them. While robbery and the sale of narcotics typically
provide a financial benefit to the offender, the record contains evidence that
could rationally lead to a contrary finding regarding whether the fruits of the
offenses were intended to or did benefit the gang as a whole,” as opposed to
for each offender’s personal gain alone. (Id. at pp. 743–744.) The court thus
rejected the argument “that crimes that have an inherent financial benefit
and that are identified as the gang’s primary activities qualify as a common
benefit to the gang that is ‘more than reputational’ under Assembly Bill 333,”
finding that “the Attorney General’s interpretation would render superfluous
much of the new amendment that requires both that predicate offenses
‘commonly benefited’ the gang and that the common benefit is ‘more than
reputational.’ ” (Ibid.)
More recently, the Supreme Court reversed a gang enhancement
allegation for instructional error because “other than general testimony
concerning how gang members could benefit the gang through criminal acts,
there was no other evidence ‘about how the specific predicate offense actually
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benefited the gang.’ ” (People v. Lamb (2024) 16 Cal.5th 400, 451 (Lamb)
[record of a predicate crime offender’s convictions for financial crimes failed
to “prove that the gang benefited financially or otherwise in a manner that
was more than reputational”], citing People v. E.H. (2022) 75 Cal.App.5th
467, 473, 478–480 [concluding that although the predicate offenses included
crimes that could theoretically provide a monetary benefit to the gang, the
evidence did not show that these offenses actually benefited the gang] and
Cooper, supra, 14 Cal.5th at pp. 743–744.) The court found that because
there was no evidence as to how the predicate offenses, including certain
financial crimes, “actually provided a common benefit that was more than
reputational,” the instructional error was prejudicial and the jury’s true
findings on the gang enhancements had to be reversed for retrial. (Lamb, at
p. 451, italics added.) Although the “financial crimes could in theory have
offered a common benefit that was more than reputational,” the court
concluded that “the record here does not establish that benefit.” (Id. at
pp. 453–454.)
We recognize that Cooper and Lamb involved instructional error rather
than sufficiency of evidence, but we nevertheless find the Supreme Court’s
reasoning helpful. As we read those cases, it is not enough that a robbery or
other financial crime committed by gang members could theoretically confer a
common benefit on the gang that is more than reputational. Rather, there
must be some evidentiary basis for the trier of fact to find that the gang
actually received such a common benefit from the predicate crime. (See
Cooper, supra, 14 Cal.5th at p. 743 [“the question about a common benefit
asks about how the specific predicate offense actually benefited the gang”];
Lamb, supra, 16 Cal.5th at p. 453 [“there is a lack of evidence as to how the
specific predicate offenses at issue actually commonly benefited the gang”].)
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Thus, the question before us is whether there is evidence in the record from
which a factfinder could reasonably infer that the Circle K robbery actually
conferred a common benefit on the gang in a way that was more than
reputational.
We find this to be a close question. At the outset, we reject the gang
expert’s theory that a common benefit may be established from the mere fact
that the robbery was committed by several gang members acting together.
Specifically, the gang expert testified: “Well, it is my opinion that these
subjects are members of the Nestor gang, so the fact that they left the store
with the items is immediate grounds for me to believe that them being a part
of the gang benefited from those stolen items . . . . “[T]he fact that they
worked together as four or five leads me to believe that they did do the act to
benefit the gang, and it directly shows that the second they walk out with the
items, in my opinion.” (Italics added.)
This opinion testimony impermissibly conflates the collective
engagement and common benefit requirements. (See In re Daniel C. (2011)
195 Cal.App.4th 1350, 1364 [opinion testimony may not “expand[] the gang
enhancement statute to cover virtually any crime committed by someone
while in the company of gang affiliates, no matter how minor the crime, and
no matter how tenuous its connection with gang members or core gang
activities”].) Though the facts necessary to prove the two requirements often
overlap, the requirements are still “conceptually distinct.” (Clark, supra, 15
Cal.5th at p. 763; see also id. at p. 759 [“What the [legislative] history does
indicate, however, is that the collective engagement language in section
186.22(f) was intended to have independent significance, separate and apart
from the requirements for proving predicate offenses in section 186.22(e),
such as the requirement to prove a common benefit to the gang.”].)
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Not every crime committed by gang members results in a common
benefit to the gang, much less one that is more than reputational. (See
Albillar, supra, 51 Cal.4th at p. 60.) Robberies may often be committed for
financial gain, but that general principle does not establish that a particular
robbery committed by gang members financially benefited the gang as a
whole. (See Cooper, supra, 14 Cal.5th at p. 743.) Under the gang expert’s
theory, any time two or more gang members collectively engage in theft,
there is automatically a common benefit to the gang based on financial gain,
regardless of whether there is any evidence the gang actually benefitted from
the crime—financially or otherwise. “[S]uch an interpretation is inconsistent
with the legislative history [of Assembly Bill 333] indicating the Legislature
was concerned with ‘lax’ interpretations of the prior law that allowed for
overly expansive application of gang enhancements (Stats. 2021, ch. 699, § 2)
and therefore sought to amend the law by ‘making the standards for applying
a gang enhancement more rigorous.’ ” (Cooper, supra, 14 Cal.5th at pp. 744–
745.)3
We nevertheless conclude there is additional evidence in this record
that supports an inference of common benefit to the gang. Specifically, after
3 The Supreme Court further explained the Legislature’s concern
underlying the recent changes to section 186.22 in Clark: “Although the
STEP Act was originally enacted to target crimes committed by violent,
organized criminal street gangs, and was only meant to apply in the most
egregious cases where a pattern of criminal gang activity was clearly shown,
the STEP Act has been continuously expanded through legislative
amendments and court rulings. The result, the Legislature found, was that
current gang enhancement statutes criminalize entire neighborhoods
historically impacted by poverty, racial inequality, and mass incarceration as
they punish people based on their cultural identity, who they know, and
where they live.” (Clark, supra, 15 Cal.5th at pp. 760–761 [cleaned up].)
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the robbery, the robbers posted videos of themselves throwing Nestor gang
signs along with their stolen loot on social media. Moreover, the quantity of
nicotine products stolen in the robbery supports a reasonable inference that
they were not just for personal use. The gang expert testified that these
videos supported his opinion that the robbery was committed for the benefit
of the Nestor gang. Although the reputational benefit to the gang from these
boastful videos may no longer be considered, the trier of fact could
nevertheless infer from the quantity of the stolen goods depicted in the videos
and the gang signs used by the robbers that they committed the robbery for
the gang and shared the proceeds with the gang in some form. The evidence
is not overwhelming, but we conclude it at least supports a reasonable
inference that the gang actually received a common benefit that was more
than just reputational. As a reviewing court, we cannot second-guess the
inference drawn by the trier of fact on this question. Accordingly, there is
sufficient evidence in the record to support the juvenile court’s true finding on
the gang enhancement.
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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