In re J.B. CA1/1

Filed 5/29/15 In re J.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re J.B., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, A142586
Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J13-00638)
J.B.,
Defendant and Appellant.
Appellant J.B. pled no contest to felony possession of a firearm by a minor. At a
dispositional hearing, the juvenile court found appellant is a member of Family Over
Everything (FOE), and that FOE is a criminal street gang within the meaning of Penal
Code1 section 186.22. The court imposed gang conditions as a part of appellant’s parole.
The conditions prohibit appellant from participating in gang activities and associating
with known gang members, among other things. Appellant now appeals the gang
conditions, arguing the court erred in finding FOE is a criminal street gang. Specifically,
appellant asserts there is insufficient evidence to demonstrate that one of FOE’s primary
activities is the commission of criminal acts. We affirm.
1
All statutory references are to the Penal Code.
I. BACKGROUND
In May 2013, a police officer located a stolen car and then spotted two boys
leaving the area. The officer recognized the boys as appellant and B.C., who he believed
to be members of FOE, and commanded them to stop. After a chase, the officer
apprehended appellant and discovered a firearm tucked in his shorts. Appellant waived
his Miranda2 rights and stated he carried the gun for protection.
The district attorney filed a juvenile wardship petition, alleging counts for
(1) possession of a firearm in a school zone (§ 626.9), and (2) possession of a firearm by
a minor (§ 29610). Pursuant to an agreement with the prosecutor, appellant pled no
contest to the second count and the first count was dismissed. The parties also agreed the
conviction would be reduced to a misdemeanor after a year, so long as appellant satisfied
the terms of his probation. The juvenile court subsequently adjudged appellant a ward of
the court, placed him on probation, and committed him to a six-month rehabilitation
program.
At a June 2013 disposition hearing, the court set the terms of appellant’s
probation, and prohibited him from participating in any gang activity or visiting any
location known to be an area of gang-related activities. Appellant’s counsel noted FOE
was located in appellant’s apartment building. The court clarified appellant could
continue residing at his home, but he could not be at that address with members of FOE.
The court also specified that for the purposes of these conditions, the term “gang” means
a criminal street gang as defined by section 186.22. Appellant agreed to the general gang
terms, but asserted FOE is not criminal street gang. The juvenile court granted appellant
a hearing on the issue.
The prosecution’s sole witness at the hearing on the dispute over FOE was
Probation Officer Amy Decker. During voir dire, Decker testified she had received close
to 200 hours of training on the investigation of gang cases and regularly spoke with
police and members of the local community about gang issues. Only 15 minutes of
2
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2
Decker’s training related to FOE in particular. Decker had also gathered information
about FOE members from social media Web sites, police reports, and probation searches.
She also spoke with three members of the group. The court approved Decker as a gang
expert.
Decker testified she became aware of FOE sometime in the summer of 2012, and
the group currently had at least seven members. She opined the primary activities of
FOE included possession of firearms and robbery. As a basis for this opinion, Decker
stated “most of [FOE’s] members that are on probation are on probation for possession of
firearms and/or robbery or grand theft.” Decker also described three incidents involving
suspected FOE members. First, in October 2011, A.J. was arrested and later convicted of
robbery. Decker was not sure if A.J. was a member of FOE at that time, because she only
became aware of the group in the summer of 2012. Second, in February 2012, M.J. was
arrested for robbery of a cell phone. Again Decker was not certain whether M.J. was a
member of FOE at the time. Third, B.C., who founded FOE sometime in 2012, was
arrested for carrying a loaded firearm in public on August 31, 2013, and was
subsequently convicted.3 Another member of FOE, M.M., was at the scene with B.C.,
but he managed to escape the police.
After the hearing, the court issued a written order concluding FOE is a criminal
street gang for purposes of probation conditions. Among other things, the court found
FOE’s primary activities included robberies and possession of firearms.
II. DISCUSSION
To qualify as a criminal street gang, FOE must satisfy four criteria: (1) it must be
an “ongoing organization, association, or group of three or more persons”; (2) the group
must have “as one of its primary activities the commission of one or more of the criminal
acts” enumerated in section 186.22, subdivision (e)(1)–(25), (31)–(33), including robbery
and possession of a firearm; (3) the group must have “a common name or common
3
The Attorney General asserts B.C.’s file shows he sustained two weapons
charges in August and September 2013, but it appears those charges arose out of the same
incident.
3
identifying sign or symbol”; and (4) its members must “individually or collectively
engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
Appellant concedes the prosecution met its burden as to the first, third, and fourth
criteria, and he does not deny he is a member of FOE. However, he asserts there is
insufficient evidence to support the court’s finding that FOE’s primary activities include
the commission of crimes listed in section 186.22, subdivision (e), namely robbery and
possession of firearms.
We must affirm the court’s finding regarding FOE’s primary activities if it is
supported by substantial evidence. (See In re Alexander L. (2007) 149 Cal.App.4th 605,
612 (Alexander L.).) On substantial evidence review, we “ ‘view the whole record in a
light most favorable to the judgment, resolving all evidentiary conflicts and drawing all
reasonable inferences in favor of the decision of the trial court.’ ” (DiMartino v. City of
Orinda (2000) 80 Cal.App.4th 329, 336.) “ ‘We may not substitute our view of the
correct findings for those of the trial court; rather, we must accept any reasonable
interpretation of the evidence which supports the trial court’s decision.’ ” (Ibid.)
“Substantial evidence, of course, is not synonymous with ‘any’ evidence.” (Toyota
Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) Rather, it is
“evidence of ponderable legal significance, evidence that is reasonable, credible and of
solid value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) The focus
is on the quality, not the quantity, of the evidence. (Ibid.)
“Proof that a gang’s members consistently and repeatedly have committed
criminal activity listed in section 186.22, subdivision (e) is sufficient to establish the
gang’s primary activities. On the other hand, proof of only the occasional commission of
crimes by the gang’s members is insufficient. [Citation] Past offenses, as well as the
circumstances of the charged crime, have some tendency in reason to prove the group’s
primary activities, and thus both may be considered by the [court] on the issue of the
group’s primary activities.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1464–1465.)
The group’s primary activities may also be proven through the “testimony of a gang
expert, founded on his or her conversations with gang members, personal investigation of
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crimes committed by gang members, and information obtained from colleagues in his or
her own and other law enforcement agencies.” (Id. at p. 1465.)
Sufficient evidence to support the primary activity element was found in People v.
Gardeley (1996) 14 Cal.4th 605 (Gardeley), and People v. Vy (2004) 122 Cal.App.4th
1209. In Gardeley, a police detective, testifying as an expert, opined the primary activity
of the gang in question was the sale of narcotics. (14 Cal.4th at pp. 619, 620.) The
detective based his opinion on “conversations with the defendants and with other [gang]
members, his personal investigations of hundreds of crimes committed by gang members,
as well as information from his colleagues and various law enforcement agencies.” (Id.
at p. 620.) In People v. Vy, the gang in question had been existence for about two years,
and the evidence showed its members had committed three serious and violent crimes
over a period of less than three months. (122 Cal.App.4th at p. 1225.) “[T]hat [the
gang’s] level of criminal activity lay dormant for most of its existence d[id] not preclude
a finding that it was a gang under the enhancement statute, where there was evidence of
consistent and repeated criminal activity during a short period before the subject crime.”
(Id. at pp. 1225–1226, fn. omitted.) Proof of the gang’s primary activities was also
satisfied by a police gang expert, who “gave significant expert testimony that [the gang]
was engaged in criminal actions that constituted predicate crimes under the gang statute.”
(Id. at p. 1226.)
Insufficient evidence was presented on the primary activities element in
Alexander L., supra, 149 Cal.App.4th 605, and In re Nathaniel C. (1991) 228 Cal.App.3d
990. In Alexander L., the prosecution’s expert testified he knew the gang in question had
been involved in certain crimes, but did not provide any specifics or foundation for his
opinion. (149 Cal.App.4th at pp. 611–612.) Nor did he opine on whether criminal
activities constituted the gang’s primary activities. (Id. at p. 612.) The expert also stated
two of the gang’s members had been convicted of assault. (Id. at pp. 612–613.)
However, the court found that, without more, these two convictions did not prove the
gang members had “ ‘consistently and repeatedly’ ” committed criminal activity
enumerated in section 186.22, subdivision (e). (Alexander L., at p. 614.) Likewise, in In
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re Nathaniel C., the court found insufficient an expert’s statement “that the primary
activity of all of the gangs in his area is criminal.” (228 Cal.App.3d at p. 1004.) The
expert made a point of stating the gang in question was not located in his jurisdiction, and
only gave a general list of the crimes he had in mind. (Id. at pp. 1004–1005.)
The prosecution’s case here was stronger than in Alexander L. and In re
Nathaniel C., and though it is a close question, we find substantial evidence supports the
juvenile court’s finding that the primary activities of FOE included one or more of the
crimes listed in section 186.22, subdivision (e). Here, Amy Decker opined without
objection, based on her 200 hours of training, discussions with police, gathering of
information about FOE members from social media Web sites, police reports, and
probation searches, and conversations with three members that FOE’s primary activities
included possession of firearms and robbery. Decker’s testimony was sufficient to
establish the primary activity element. (People v. Sengpadychith (2001) 26 Cal.4th 316,
324 [expert opinion permissible to prove primary activity, based on conversations with
gang members and law enforcement]; Gardeley, supra, 14 Cal.4th at p. 620 [expert
opinion, based on conversations with gang members, personal investigation, and
information from law enforcement, may provide sufficient basis to establish primary
activity of gang].)
In addition to Decker’s expert testimony, however, the prosecution introduced
evidence four of FOE’s seven known members, including appellant, committed the
crimes of robbery or firearm possession between 2011 and 2013. Appellant argues two
of those individuals, A.J. and M.J., were not members of FOE when they committed the
crimes in question. As appellant points out, the police did not become aware of FOE
until the summer of 2012, while A.J. and M.J. were arrested in October 2011 and
February 2012, respectively. But the court could have reasonably inferred their
membership in FOE predated the discovery of the group by police. Even if FOE was
formed in the summer of 2012, appellant and B.C. were arrested for firearm charges
during a four-month period in 2013, and FOE members fled the scene at their arrests. In
light of these facts, the small size of FOE, and the gang’s recent inception, appellant’s
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and B.C.’s crimes are probative of FOE’s primary activities. Based on this evidence, as
well as Decker’s expert opinion that FOE’s primary activities included illegal possession
of firearms, the juvenile court had reason to conclude the prosecution satisfied its
burden.4, 5
III. DISPOSITION
The terms of probation imposed by the trial court, including the gang conditions,
are affirmed.
_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Dondero, J.
4
Appellant also argues three current FOE members, including M.M., admit they
are members of the well-established Norteño street gang, and thus may have committed
crimes as Norteño gang members rather than as FOE gang members. But it was
reasonable for the juvenile court to have drawn contrary inferences.
5
Appellant asserts the gang conditions impinge on his constitutional rights to
travel and freedom of association. He reasons they prohibit him from associating with
some of his closest friends and neighbors. The argument was forfeited since appellant
failed to raise it below. (See In re Sheena K. (2007) 40 Cal.4th 875, 885 [“Applying the
[forfeiture] rule to appellate claims involving discretionary sentencing choices or
unreasonable probation conditions is appropriate, because characteristically the trial court
is in a considerably better position than the Court of Appeal to review and modify a
sentence option or probation condition that is premised upon the facts and circumstances
of the individual case.”].)
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