People Ex Rel. Reisig v. Acuna

Filed 2/28/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE EX REL. JEFF W. REISIG, AS C068868
DISTRICT ATTORNEY, etc.,
(Super. Ct. No.
Plaintiff and Respondent, CVCV04002085)
v.
TIMOTHY ACUNA et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Yolo County, 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.
Eight individuals appeal from a civil judgment granting a permanent (seven-year)
injunction enjoining public nuisance activities of a criminal street gang.
1
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
1 The trial court dismissed Thomas Cedillo, Robert Cortez, Victor Ferreira, Rudy
Tafoya, and William Ybarra, Jr. But the trial court found Ferreira, Tafoya, and Ybarra
were active Broderick Boys members at relevant times. The court severed the case as
against defendant Rudy Ornelas, finding him unavailable because of his pending criminal
case and withdrawal of his attorney in this civil case. The judge considered Ornelas’s
activity on the question of Broderick Boys’ pattern of criminal activity. The trial court
found Ornelas was a Broderick Boys member, noted he was convicted of offenses
including attempted murder in trial court case No. CRF 07-005385, and ordered plaintiff
to proceed against Ornelas or dismiss him; it is not clear what choice plaintiff made.
2
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
3
(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
4
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.
5
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.”
6
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
7
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.
8
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
9
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.
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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.
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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-
12
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.
13
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
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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.”
15
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
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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
17
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
18
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.)
19
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
20
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 legal authority that deferred ruling constitutes reversible
error.
The trial judge has inherent and statutory authority to control the order of
proceedings, regulate the order of proof, provide for the orderly conduct of the
proceedings, and control the litigation. (Evid. Code, § 320 [court in its discretion shall
regulate order of proof]; Code Civ. Proc., § 128, subd. (a)(3) [court has power to provide
for orderly conduct of proceedings]; Rayii v. Gatica (2013) 218 Cal. App. 4th 1402 (Rayii)
[allowing defense witnesses to be called out of order was not abuse of discretion].) The
trial court’s exercise of such powers will not be disturbed on appeal absent a clear
showing of abuse of discretion. (Rayii, supra, 218 Cal.App.4th at p. 1413.)
Appellants fail to acknowledge the trial judge’s authority and fail to show abuse of
that authority. Appellants assert the court “never did rule” on the objections “except
impliedly” in the statement of decision where the court stated plaintiff had proved
specified persons were Broderick Boys and therefore admitted their statements. So
appellants admit the court did rule.
Appellants say they did a word search of the trial transcript and found 145
references to “defer[red] ruling” or “connect[ing] dots.” They claim the court
21
erroneously admitted 43 incidents with no conceivable bearing on this case. They then
simply tell us to “See, Crimes Addendum for list of ‘continuing objections’ based upon
relevance and hearsay admissions.” A list of their continuing objections does not meet
their burden on appeal to demonstrate prejudice warranting reversal of the judgment.
Appellants argue the deferred rulings prejudiced them in four ways. First, they
had to decide whether or not to cross-examine the witnesses on the incidents whose
relevance and admissibility was undetermined, thereby potentially inviting damaging
testimony. Second, appellants assert they did not know until the conclusion of trial
whether it would be necessary to introduce rebuttal evidence on the admissibility of
which the court deferred ruling. Third, appellants never knew on what evidence the court
would base its decision. Fourth, appellants say they could not craft a final argument or
briefing in support of a decision without knowing what evidence had been admitted
during trial.
However, appellants (1) fail to show they were forced to elicit damaging
testimony, (2) fail to show they were precluded from introducing any rebuttal evidence
they wanted to adduce, (3) fail to show the trial court was required to give advance notice
of what evidence it would find persuasive, and (4) fail to show that they were denied the
opportunity to make whatever points they wanted to make.
We conclude appellants fail to show grounds for reversal based on the deferred
rulings.
Moreover, we note appellants use the deferral to misrepresent matters on appeal.
They argue they were prejudiced by evidence of nuisance activities committed by persons
who ultimately were not included on the court’s list of active gang members. However,
the exclusion of those people from the list means the trial court found they were not
active gang members and therefore disregarded that evidence.
22
C. Hearsay Statements of All Alleged Gang Members
Without addressing any specific evidence in the discussion portion of their
opening brief (other than massive footnotes listing objections without context or
analysis), appellants claim the trial court erred in allowing all hearsay statements of all
alleged gang members.
On this point and others, appellants ignore basic rules of appeal: “[T]he trial
court’s judgment is presumed to be correct, and the appellant has the burden to prove
otherwise by presenting legal authority on each point made and factual analysis,
supported by appropriate citations to the material facts in the record; otherwise, the
argument may be deemed forfeited. [Citations.] [¶] It is the appellant’s responsibility to
support claims of error with citation and authority; this court is not obligated to perform
that function on the appellant’s behalf. [Citation.] [¶] . . . And the appellant must
present each point separately in the opening brief under an appropriate heading, showing
the nature of the question to be presented and the point to be made; otherwise, the point
will be forfeited. [Citations.] This rule is ‘designed to lighten the labors of the appellate
tribunals by requiring the litigants to present their cause systematically and so arranged
that those upon whom the duty devolves of ascertaining the rule of law to apply may be
advised, as they read, of the exact question under consideration, instead of being
compelled to extricate it from the mass.’ [Citation.]” (Keyes v. Bowen (2010)
189 Cal. App. 4th 647, 655-656 (Keyes).)
Despite the defects in appellate presentation, we attempt to discern whether
appellants present any viable claim of reversible evidentiary error. There are two
categories of gang-member hearsay declarants: (1) individuals named as defendants and
found by the trial court to be Broderick Boys active members, and (2) individuals not
named as defendants but who were found by the trial court to be active members of
defendant Broderick Boys at the relevant times.
23
1. Hearsay of Individuals Named as Defendants
Evidence Code section 1220 provides, “Evidence of a statement is not made
inadmissible by the hearsay rule when offered against the declarant in an action to which
he is a party in either his individual or representative capacity, regardless of whether the
statement was made in his individual or representative capacity.”
Appellants present no analysis showing error in the court allowing evidence of
statements made by the people named as party defendants.
2. Hearsay Statements of Gang Members Not Named as Individual Defendants
The gang experts testified to various hearsay statements by alleged Broderick
Boys members not named as defendants: (1) self-admissions of membership verbally to
police and in written jail intake questionnaires, (2) perpetrators’ pronouncements during
commission of crimes (adduced through victim/witness testimony and/or police
testimony relating victim/witness statements), and (3) declarants’ conversations with
police about gang culture.
As noted in the statement of decision, “[d]uring trial, the court allowed plaintiff to
present certain out-of-court statements of alleged Broderick Boys members. The court
permitted these statements on the condition that plaintiff prove by the close of its case
that the declarants were members of the Broderick Boys and that the statements were,
therefore, admissions by party-declarants under Evidence Code section 1220. For the
limited purpose of admitting statements in this trial under Evidence Code section 1220,
plaintiff has proved, by clear and convincing evidence, that the following [94] persons
[including named defendants] were, at the relevant times, Broderick Boys.”
The statement of decision does not reference Evidence Code section 1222
(admissibility of hearsay statements by authorized agents), but during trial the court said
with respect to one nonparty, “he’d have to be established to be a member of the
24
Broderick Boys. It would have to be an admission of an agent for the Broderick Boys,
the Broderick Boys being a named defendant.”
The trial court also ruled the nonparties’ hearsay statements were separately
admissible to the extent the experts relied on them in forming expert opinions -- a ruling
now called into question by Sanchez, supra, 63 Cal. 4th 665, as we discuss post.
Appellants argue the trial court erred in applying Evidence Code section 1220 to
declarations of non-party individuals, because there was no proof that the gang is an
“unincorporated association” or that any declarant was a member as defined by the
Corporations Code, or that any declarant was authorized to speak as an agent of
Broderick Boys under Evidence Code section 1222. Appellants fail to offer any legal
authority conditioning admissibility on the Corporations Code.
Evidence Code section 1220 allows hearsay “when offered against the declarant in
an action to which he is a party in either his individual or representative capacity,
regardless of whether the statement was made in his individual or representative
capacity.” On its face, this provision requires that the declarant be a party. The statute
thus appears inapplicable to the non-party gang members here, because they were not
parties at all, and therefore were not parties in an individual or representative capacity.
(But see, Colarossi v. Coty US Inc. (2002) 97 Cal. App. 4th 1142, 1150 [in wrongful
termination action against employer-corporation, hearsay statements of corporation’s
merchandising director expressing animus against plaintiff were admissible as statements
of a party under section 1220].)
Assuming for the sake of argument that the hearsay statements should not have
been admitted under Evidence Code section 1220, they may have been admissible under
other statutes. We do not discuss plaintiff’s suggestion that they were admissible under
Evidence Code section 1230 as declarations against interest by persons unavailable as
witnesses, because plaintiff does not show unavailability (other than Angel Sanchez).
But Evidence Code section 1224 provides: “When the liability, obligation, or duty of a
25
party to a civil action [here, named-defendant Broderick Boys] is based in whole or in
part upon the liability, obligation, or duty of the declarant, . . . evidence of a statement
made by the declarant is as admissible against the party as it would be if offered against
the declarant in an action involving that liability, obligation, duty, or breach of duty.”
Here, statements by nonparty Broderick Boys members would be admissible against them
had they been named as defendants and thus were admissible because Broderick Boys’
liability was based in part on liability of their active members. Evidence Code section
1223 makes hearsay admissible if the statement was made by the declarant while
participating in a conspiracy to commit a crime or civil wrong and in furtherance of the
objective of that conspiracy.
The trial court impliedly referenced the latter statute by stating admission of the
hearsay statements would be subject to plaintiff “connecting dots” to show the declarants
were indeed Broderick Boys members, and “This is not unlike a case where parties
attempt to prove a conspiracy, and we can’t get all the facts in through one witness or one
piece of evidence, and it’s the totality of the evidence that will permit it.”
Appellants argue that, according to rules of vicarious liability for conspiracy, a
gang member’s hearsay statement cannot be used to impose liability on another gang
member for pursuit of a common purpose in the absence of independent evidence of
concerted action. Although appellants present this as a claim of evidentiary error, it is
really a claim of insufficiency of the evidence. Either way, it fails. Appellants quote
from Davis v. Superior Court of Marin County (1959) 175 Cal. App. 2d 8: “The fact of
conspiracy cannot be proved by evidence of extra judicial declarations of an alleged
conspirator. [Citation.] Only after and upon the proof of the conspiracy itself can such
declarations be admitted . . . . The conspiracy cannot be built upon imposed vicarious
responsibility for other persons’ declarations to whom a defendant has not been related
by some showing of common action.” (Id. at pp. 24-26 [criminal case alleging attorney
26
conspired with incarcerated client to remove from prison and publish a manuscript
written by client]; italics added.)
Appellants fail to show that any of them was found to be subject to the injunction
based on hearsay of another gang member. Appellants claim they “demonstrate in the
analysis of the hearsay admitted and its impact on their defenses, the use of statements by
other named defendants, as well as non-parties against them, in the absence of common
action, was highly prejudicial, since it tended to show that there was complicity between
identified gang members in creating or contributing to a public nuisance.” (Orig. italics.)
We see no such analysis of hearsay or impact on defenses in appellants’ 114-page
opening brief, or in their addenda for that matter. For example, their Crimes Addendum
Objections Index asserts, “[appellant] Billy Wolfington’s home searched [in March
2008], pills found. Admitted over Defendants’ continuing objection that the incident was
irrelevant [citation to record] and hearsay not qualifying as a party admission.”
(Orig. emphasis.) This assertion on its face involves no hearsay by Billy Wolfington.
Moreover, the only citation to the record involves police officer testimony about a
different person at a different time.
In any event, there was ample evidence of common action, and the record shows,
as to each appellant, evidence other than hearsay of another gang member. For example:
(1) Timothy Acuna admitted to police his membership in Broderick Boys, pleaded no
contest to vehicle theft with intent to assist the criminal street gang, and has a BRK
tattoo; (2) Alex Estrada had multiple guns and ammunition in his home in January 2007,
was in a stolen car with Timothy Acuna in February 2007, and in 2007 “self-admitted” at
jail that he is a “Northerner” (aka Norteno); (3) Jesse Garcia wrote “Broderick Boys” on
a jail intake form that asked him about his gang membership; (4) Robert Montoya has
Broderick Boys tattoos and told his parole agent as recently as five months before trial
that he is a Broderick Boys leader; (5) Michael Morales in jail intake forms admitted
being a Broderick Boys member; (6) Guillermo Rosales was apprehended by police in
27
possession of a firearm in a car with three other Broderick Boys, and he admitted being a
Northerner in jail questionnaires; (7) Felipe Valadez, Jr., pleaded no contest to criminal
street gang activity in March 2007; and (8) Billy Wolfington admitted gang membership
to police, was arrested with drugs in the company of gang member Raymond Corona, has
a 2002 criminal conviction for drugs with a gang enhancement, and has Broderick Boys
tattoos.
While appellants want us to disregard this evidence and credit their evidence that
they recanted or explained away their admissions (e.g., that jail intake forms do not prove
membership), that violates the standard of review on appeal. (Gallo v. Acuna, supra,
14 Cal.4th at pp. 1109-1110; Acuna I, supra, 182 Cal.App.4th at pp. 878-879.)
Assuming evidentiary error, appellants fail to show grounds for reversal because
they fail to show prejudice. Appellants acknowledge there is no prejudice under state law
unless it appears reasonably probable they would have obtained a more favorable result
absent the errors. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354;
Winfred D. v. Michelin North America, Inc. (2008) 165 Cal. App. 4th 1011, 1038.)
Appellants’ prejudice argument blends different issues. They assert under a
separate heading labeled “prejudice” that “There can be little question that the hearsay
statements of the identified non-party Broderick Boy/Norteno gang members, gang
members identified as Defendants, and the spontaneous statements of crime victims were
crucial to the People’s case, and prejudicial to the Defense.” Appellants drop a footnote
exhorting us to “See, Crimes Addendum Objections Index and Gang Members
Addendum Objections Index for identification of most of the hearsay statements.”
Appellants then argue the experts’ use of “self-admission” of gang membership to infer
existence of a gang entity to which such persons belonged and were complicit in each
others’ activities, used “entirely circular” inferences -- gang membership was used to
prove the existence of a gang entity, which led to the further inference that individuals
knew of its existence and were therefore members. Appellants argue that, without self-
28
admissions, plaintiff’s case would have been “considerably weakened, even though there
was other evidence, such as tattoos or association, which were used to link individuals to
the supposed gang.” Moreover, say appellants, the hearsay statements were important in
showing the various crimes committed by such “self-admitted” members were relevant to
the “pattern of conduct” which was found to constitute the nuisance attributed to the gang
and its members, whether or not they were gang related. Appellants again invite us to
“See” their addenda.
Appellants’ prejudice argument is abysmally deficient. They fail to show that any
nonparty’s self-admission was the sole evidence of membership. For example, the
Objections Index says with regard to Christopher Castillo: “Admitted he is a member of
the Broderick Boys and his moniker is ‘Cricket;’ in 2009, a police report alleges that he
assaulted a victim and stated ‘Hey, are you scraps? And you fuckers think you’re hard.
Broderick bitch.’ [Citation to record.] Admitted over Defendants’ objection that the
statements were hearsay not qualifying as party admissions. [Citation to record.]”
(Emphasis omitted.) However, appellants’ prejudice argument ignores other evidence
involving Castillo, such as his criminal conviction of a March 2009 gang activity offense
(case No. 09-1349) and victim testimony about being assaulted by Castillo in the March
2010 fight at Memorial Park. Appellants cite no authority that Memorial Park’s location
outside the safety zone precludes consideration of this crime in determining whether
Castillo is a Broderick Boys gang member engaging in public nuisance activities.
Appellants cite no instance where membership was based solely on self-
admission. In each instance of an admission of gang membership by a person not named
as defendant, there was also other evidence, such as criminal convictions or gang tattoos.
Appellants acknowledge tattoos but sweep under the rug the compelling, unchallenged,
multiple final criminal convictions -- including for gang activity and gang enhancements.
Appellants fail to support their claim that, without self-admissions, the convictions lose
relevance. Even convictions for crimes without gang-related offenses or enhancements
29
are relevant. As we have stated, “conduct not amounting to a gang crime under Penal
Code section 186.22 may be the subject of an action to abate a nuisance. [Citation.]”
(Acuna I, supra, 182 Cal.App.4th at pp. 879-880; italics added.) Additionally, absence of
prejudice is apparent in that the trial court did not accept plaintiff’s evidence wholesale
but made individual determinations that some individuals were not Broderick Boys
members despite plaintiff’s allegations that they were.
Appellants fail to demonstrate that any evidence was used in an improper way that
prejudiced appellants. They direct us to their “Objections Index,” which is exceedingly
unhelpful. For example, one entry states: “William Ybarra, Tyson Ybarra, and Gregory
Osio[] contacted standing near a shotgun. Admitted over Defendants’ continuing
objection that the incident was irrelevant [citation to record] and hearsay not qualifying
as a party admission [citation to record.]” (Emphasis omitted.) On its face, this entry
contains no hearsay. If we follow the trail to the reporter’s transcript, we find police
officer testimony that William Ybarra (whom the court noted was no longer a defendant,
having being dismissed) admitted he possessed the gun. However, the officer also
testified he saw William Ybarra drop the gun. So any error regarding Ybarra’s admission
was clearly harmless.
As another example, the Objections Index states: “Benny Macias and William
McFadden present at a stabbing, search of home and persons located red clothing and
marijuana. Admitted over Defendants’ continuing objection that the incident was
irrelevant and hearsay not qualifying as a party admission.” (Emphasis omitted.) Again,
the entry on its face contains no hearsay. The entry fails to cite to the reporter’s
transcript.
Additionally, appellants’ Objections Index includes items related to individuals
who do not appear on the court’s list of gang members, which means the trial court
disregarded that evidence due to plaintiff’s failure to “connect the dots.” Yet appellants
include those items in the Objections Index prepared for this appeal, as if they could
30
constitute grounds for reversal. Also, some of the items in the Objections Index contain
no citation to the reporter’s transcript.
Appellants fail to show reversible error.
Appellants claim erroneous admission of the evidence of gang members not
named as defendants violated federal constitutional due process rights and rendered the
trial fundamentally unfair (Albarran, supra, 149 Cal.App.4th at pp. 229-230), but
appellants fail to show a due process violation or fundamental unfairness. They “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.]” (Albarran, supra, 149 Cal.App.4th at
p. 229.)
Appellants make catch-all arguments that the trial court erroneously allowed
“virtually all evidence” regardless of its irrelevance, inflammatory nature, and prejudicial
effect. Appellants offer no specifics of prejudice. They cite Albarran, supra,
149 Cal. App. 4th 214, as having reversed a conviction, but they fail to acknowledge
distinguishing features. Albarran reversed a conviction for attempted murder, shooting at
a dwelling, and attempted kidnapping for carjacking, with gang enhancements, where the
trial court improperly allowed certain gang evidence (about Mexican Mafia, threats to
police, and unrelated crimes by other gang members). (Id. at p. 217.) The trial court
believed the evidence was relevant to motive or intent for the charged offenses, even
though it was insufficient to prove the gang allegations. (Ibid.) The appellate court held
that the specific evidence had “no legitimate purpose” in the trial, and “there was a real
danger that the jury would improperly infer that whether or not Albarran was involved in
these shootings, he had committed other crimes, would commit crimes in the future, and
31
posed a danger to the police and society in general and thus he should be punished.” (Id.
at p. 230.)
No such danger appears in this case, and the evidence did have a legitimate
purpose in this public nuisance trial.
We see no basis for reversal for evidentiary error regarding statements by
Broderick Boys members.
D. Hearsay Statements of Victims/Witnesses
Appellants acknowledge Evidence Code section 1240 authorizes admissibility of a
hearsay statement if it “(a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.” They
acknowledge case law (e.g., People v. Pirwani (2004) 119 Cal. App. 4th 770, 789) that
such statements are admissible because they are presumptively reliable due to lack of
opportunity for reflection, and the declarant’s state of mind is crucial.
Appellants then argue: “While in many cases the People’s police witnesses
testified that the declarants [crime victims and witnesses] looked upset, all the hearsay
statements were made in response to police questioning of victims/witnesses. [Italics
omitted.] (See, Crimes Addendum, Objections Index.) [¶] Early in the trial, the Defense
objected to the court’s spontaneous statement rulings and provided formal briefing on the
subject. (3AA 595-597) After consideration of the Defense briefing, the court denied the
objections ([2]RT 369:4-374:25 [sic 376]) and continued to admit hearsay statements as
spontaneous statements[,]” which “constitutes reversible error [citation] because it
resulted in the improper admission of evidence that was prejudicial and unfair.”
Appellants forfeit any challenge to hearsay statements of crime victims and
witnesses by failing to present any factual or legal analysis. If appellants mean to
suggest, without analysis, that statements in response to police questioning presents a
32
Confrontation Clause issue, the point fails because the Confrontation Clause applies only
in criminal cases (People v. Otto (2001) 26 Cal. 4th 200, 209, 214 (Otto)), and this is a
civil case. Moreover, appellants’ reference to their 16-page “Objections Index” is
insufficient. It is not limited to victim/witness statements and merely says victims
“alleged” things (e.g., that an appellant punched a victim and stole his bike) over defense
objections that the hearsay statements did not qualify as spontaneous statements. This
does not satisfy appellants’ burden to demonstrate error, much less reversible error. The
pages of the reporter’s transcript referenced in appellants’ brief reveal only one incident,
in July 2006, where a victim told police -- about 10 minutes after it happened -- that
defendants Rainey Martinez and Robert Sanchez assaulted the victim in his home, broke
a stereo speaker, and stole some items. The trial court found it qualified as a spontaneous
statement, reconsidered at defense request, and again found it qualified as a spontaneous
statement. The appellate brief does not discuss these facts or present any analysis as to
why the ruling was wrong. The reference to a trial brief in the clerk’s transcript is
improper appellate briefing (Garrick Development Co. v. Hayward Unified School Dist.
(1992) 3 Cal. App. 4th 320, 334 (Garrick) [appellant cannot simply incorporate by
reference arguments made in trial court]). Moreover, the document is merely a request
for reconsideration arguing there was insufficient indicia of reliability of statements in
response to police questioning after opportunity to reflect.
Appellants develop no legal analysis or authority regarding their point that victims
and witnesses were responding to police questioning. Forty pages later in their opening
brief, appellants assert in a subheading (under a heading about due process violations
rendering trials “fundamentally unfair”) that the hearsay statements from crime victims
deprived defendants of the opportunity for cross-examination. The single paragraph
under this subheading in their appellate brief contains no legal analysis or authority
whatsoever. The matter is forfeited. (Kim v. Sumitomo Bank (1993) 17 Cal. App. 4th 974,
979.)
33
As we admonished this same attorney in Acuna I, supra, 182 Cal.App.4th at
p. 879: “It is not the function of this court to comb the record looking for the evidence or
absence of evidence to support defendants’ argument. [Citations.]” It is also not the
function of this court to comb through hundreds of pages of scorched-earth briefing to try
to make appellants’ case for them. (Lewis, supra, 93 Cal.App.4th at p. 116.)
Since appellants fail to show any evidentiary error regarding victim statements,
i.e., that the statements were inadmissible hearsay, any reliance by the gang experts on
such statements would not be problematic under Sanchez, because Sanchez restricts only
reliance on inadmissible hearsay.
E. Hearsay as Basis for Expert Opinion (Sanchez)
The trial court allowed hearsay of nonparties alleged to be Broderick Boys
members as a basis for expert opinions that the declarants were Broderick Boys members
and engaged in nuisance activities and that Broderick Boys had organization and
structure.
The trial court overruled defense objections pursuant to the rule that experts may
rely on hearsay in forming their opinions. (Evid. Code, §§ 801-802; People v. Gardeley
(1996) 14 Cal. 4th 605, 618-619 (Gardeley) [hearsay statements used as a basis for expert
opinion are not offered for their truth but instead are offered merely to evaluate the
expert’s opinion].)
While this appeal was pending, the California Supreme Court disapproved
Gardeley “to the extent it suggested an expert may properly testify regarding case-
specific out-of-court statements without satisfying hearsay rules.” (Sanchez, supra,
63 Cal.4th at p. 686, fn. 13.) “Case-specific facts are those relating to the particular
events and participants alleged to have been involved in the case being tried.” (Id. at
p. 676.) An expert may be asked to assume hypothetically a set of case-specific facts for
which there is independent competent evidence, and then be asked what conclusions the
34
expert would draw from those assumed facts. But if no competent evidence of a case-
specific fact has been, or will be, adduced, the expert cannot be asked to assume it. (Id.
at pp. 676-677.) Sanchez restored the common law rule the expert is not permitted to
supply case-specific facts. (Ibid.) This aspect of Sanchez concerning state evidentiary
rules for expert testimony applies in civil cases such as this nuisance lawsuit.
Sanchez also held that in criminal cases, the Sixth Amendment right to confront
and cross-examine witnesses (Crawford v. Washington (2004) 541 U.S. 36) limits an
expert witness from relating case-specific hearsay content in explaining the basis for his
or her opinion. (Sanchez, supra, 63 Cal.4th at pp. 679-686.) However, Sanchez
expressly stated its constitutional rule does not extend to civil cases. “Because Crawford
is based on the Sixth Amendment right to confrontation, its rule has not been extended to
civil proceedings . . . .” (Sanchez, at p. 680, fn. 6.)
Sanchez reversed the street gang enhancements because of the Confrontation
Clause violation, not because of the state Evidence Code. (Id. 63 Cal.4th at p. 699.)
We allowed supplemental briefing on what effect, if any, Sanchez has on this case.
Our order calling for supplemental briefs alerted the parties, by citation to Otto, supra,
26 Cal.4th at pp. 209, 214 (involuntary commitment of sexually violent predator), that the
Confrontation Clause does not apply to civil cases, though there may be a confrontation
component to due process principles applicable in civil litigation. Appellants’
supplemental brief did not develop a due process argument.
Appellants’ supplemental brief mentions multiple hearsay about a crime, to which
Officer Labin Wilson testified as a gang expert in plaintiff’s rebuttal case, to support his
opinion that nonparty Chris McDaniel was an active Broderick Boys member. The crime
was an assault that occurred in the safety zone on November 6, 2010 (during trial) that
later caused the death of the victim. Wilson reviewed police reports and participated in
the investigation. In the early morning on November 6, 2010 (about five weeks before
completion of this trial), police found a bloody, unconscious male in a parked vehicle on
35
Fremont Street. He later died. Police learned the victim had been at a party at the
Fremont Street home of validated Broderick Boys member Juan Zinzun.
Over defense objection, the trial court allowed Officer Wilson to testify to case-
specific facts that included hearsay. Witnesses at the party told police that (Rumaldo)
Samuel Rios punched the victim in the face at the party, after being given the “green
light” to “take out” the victim by Chris McDaniel, who said the victim had been talking
about “snitching” on McDaniel at the market where they both worked. Gang-related
graffiti threats (“BRK” and “You’re next D”) were found written at the market. Rios was
on a Yuba City Police Department’s list of validated Norteno gang members. A witness
told police that Rios said, “it was either Chris or I had to do it.”
Officer Wilson opined McDaniel is a Broderick Boys gang member based on the
following facts. When Wilson and other officers arrested McDaniel, McDaniel was
wearing red clothing and a hat with a red “B”; he had a “B” tattooed on his neck, four
dots on his arm, “S” and “K” on his calves (which the expert opined stood for “scrap
killer” despite the demur of some that it stands for Sacramento Kings). McDaniel told
jail staff he was an active Norteno gang member and a validated Broderick Boy (though
he was not at that time on WSPD’s list). Wilson testified: “And then just the
circumstance. That’s all supporting indicators that he’s a Broderick Boys gang member.
[¶] But again, going to the facts of this case, when the subject is at a Broderick Boy[s]-
sponsored party, being at Juan Zinzun’s house, who is a validated Broderick Boys gang
member, and it was for his birthday party, and you have somebody that you’ve deemed
by the gang as a snitch, and then you have an individual who tells somebody else to -- or
gives somebody a green light to take that, quote/unquote, snitch out, well, if you have the
status within the gang to give an order like that and have it be carried out at this party
where other gang members are present, you are displaying a level of status in that gang. I
mean, he is giving out orders to somebody to put in work for the gang. [¶] So all that
36
goes together, in my opinion, he [McDaniel] is an active Broderick Boy[s] gang
member.”
Plaintiff’s counsel asked the expert for his opinion as to what a Norteno gang
member would have to do if he wanted to transfer from one region to another. The expert
said, “It’s not defined. You know, he could know people from that region, but basically
you have to -- to be accepted by that new set, they would have to believe that you were
loyal and committed to the gang and somebody they could trust. [¶] So whether your
reputation preceded you or you had to do something to prove your loyalty and your
trustworthiness, you know, it would depend case by case.” The common term for
proving trustworthiness is “putting in work” for the gang. “[S]omebody who is trying to
put in work to prove themselves to the gang, if the gang members told you to take
somebody out and you didn’t, well, one, that would definitely discredit you as being a
member of that gang and, in my opinion, you wouldn’t be accepted by the gang.
However, conversely, if you did follow through with that work and took that person out,
you would prove yourself in a gang -- status within the gang. [¶] So I believe that’s the
circumstances that took place. There was a group of Norteno gang members having a
party. An assignment was given to this guy [Rios] from Yuba City who is already a
Norteno gang member, but to put in work for the local set of Broderick Boys, they told
him -- they assigned him to take out this person they were looking at as a snitch, and he
did it.”
The trial court in this nuisance case took judicial notice that criminal charges had
been filed for the November 6, 2010, matter -- case No. CRF-10-5649, charging Rios
with involuntary manslaughter, aggravated battery, plus gang enhancements, and
charging McDaniel with a substantive gang offense as well as the battery and gang
enhancement. Though not determinative of this appeal, we note McDaniel filed an
appeal from his December 2012 conviction in case No. CRF-10-5649 but abandoned the
appeal after we received the trial court record. (C072865) The jury found McDaniel
37
guilty of battery with bodily injury but was unable to reach a verdict on the gang offense
or enhancement. The trial court sentenced McDaniel to four years in prison and granted
the prosecution’s motion to dismiss the gang charge and allegation without prejudice.
Rios did not file an appeal, but the clerk’s transcript in McDaniel’s appeal indicates the
jury found Rios guilty of battery with serious bodily injury and assault.
In light of Sanchez, much of Officer Wilson’s testimony appears problematic,
because he assumed the truth of and relied on case-specific facts for which no competent
evidence was adduced, i.e., that McDaniel gave a “green light” to Rios to assault the
victim for snitching, which meant McDaniel had high status in the gang, and Rios did as
directed in order to “put in work” so he could transfer to the Broderick Boys subset.
Nevertheless, assuming the trial court erred in allowing this evidence, we see no
prejudice warranting reversal of the judgment. The standard for prejudice applicable to
state law error in admitting hearsay evidence is whether it is reasonably probable the
appellant would have obtained a more favorable result absent the error. (Cal. Const., art.
VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354; Winfred D., supra, 165 Cal.App.4th
at p. 1038; Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 866-867 [erroneous
introduction of hearsay through expert’s testimony was harmless where non-hearsay
supported expert’s conclusions], disapproved on another ground in People v. Ault (2004)
33 Cal. 4th 1250, 1272, fn. 15.)
Due to the abundance of other evidence that Broderick Boys was a criminal street
gang engaged in nuisance activities, Officer Wilson’s testimony in plaintiffs’ rebuttal
case was unnecessary. Its main value was to show that nuisance activity was still
ongoing at the time of trial. However, even disregarding Wilson’s testimony, other
evidence demonstrated that nuisance activity continued despite the preliminary injunction
-- particularly the Memorial Park incident which occurred only a few months before trial
began.
38
Appellants argue we cannot know how the trial court would have ruled had it
excluded the testimony about the November 2010 killing. They quote case law: “If
improper evidence under objection has been admitted, it is impossible for this [appellate]
court to say how much weight and influence it had in the mind of the trial court in
framing its findings of fact. The improperly admitted evidence may have been all-
powerful to that effect. As far as this court knows it may have been that particular
evidence which turned the scale and lost the case to the appellants. This must of
necessity be the rule wherever improper evidence has been admitted which upon its face
tends in any degree to affect the final conclusion of the court. [Italics added.]” (Estate of
James (1899) 124 Cal. 653, 655; accord, Wilson v. Manduca (1965) 233 Cal. App. 2d 184,
189-190.)
However, the quotation specifies it is referring to evidence which on its face tends
to affect the trial court’s decision. Appellants fail to argue or demonstrate that the
hearsay about the November 2010 incident, or any other evidence, would on its face
affect the trial court’s decision, particularly in light of the wealth of other evidence.
Appellants’ supplemental brief lists expert opinions to which appellants objected,
but they list opinions about general gang culture, not case-specific facts. Appellants’
supplemental brief complains the trial court allowed a summary of 108 crimes, which
included hearsay, as a basis for expert opinion about the existence of a public nuisance,
not being admitted for the truth of the matter. However, evidence of the crimes also
included admissible evidence such as criminal court records and victim testimony.
Appellants complain the trial court allowed the expert to opine whether
individuals were Broderick Boys members and contributed to a nuisance based on a
“power point” collection of information about 52 alleged gang members, including some
appellants, culled from various resources, police reports, field interview cards, contacts,
photographs, and investigations in which the expert was involved. Appellants fail to
show that the judgment results from inadmissible hearsay.
39
F. Other Claims of “Fundamentally Unfair” Evidentiary Rulings
1. Appellants claim the trial court demonstrated bias -- assisting plaintiff and
obstructing defendants -- by allowing evidence of events that occurred outside the safety
zone, i.e. Memorial Park and “maybe” the Amtrak train. Appellants offer no legal
analysis or authority on this point. Evidence of these recent events was clearly relevant
and probative to refute the defense claim that gang activity had stopped, rendering a
permanent injunction unnecessary. That one or both events happened outside the safety
zone was relevant and probative of plaintiff’s point that the relative lull in activity within
the safety zone covered by the injunction was attributable to the deterrent effect of the
preliminary injunction rather than a voluntary, good-faith termination of misconduct.
2. Appellants complain the trial court in this 2010 trial denied their motion to
exclude events remote in time (before January 2008) and allowed evidence of events
dating back to Acuna’s car theft in 1997. However, appellants fail to mention the trial
court allowed older incidents to prove a history of gang activity in order to rebut defense
claims of the nonexistence of a gang. Moreover, remote activities are relevant to the
issue whether the persistent and prolonged nature of defendants’ activities before
issuance of the preliminary injunction support a conclusion that misconduct is likely to
recur unless permanently enjoined. (Feminist, supra, 32 Cal.App.4th at p. 1659.) The
court acknowledged remoteness would go to the weight of the evidence. To the extent
appellants believe that exclusion of remote incidents would strip the case of substantial
evidence of “active” membership as to any particular appellant, they fail to demonstrate
it, as we discuss, post.
3. Appellants complain the trial court included in the judgment the individual
defendants’ “alleged” nick-names or “gang names” (Cartoon, Little Vic, Otter, Kiko,
Smokey, Snoopy, Billy, Little Rob, Duke, Rabbit, Savage, Gangster, Shug, and Bouncer),
40
putting them in a bad light without substantiating evidence. However, there was
evidence about the monikers, and they were relatively innocuous.
4. Appellants complain the trial court refused to order plaintiff to produce a list of
“validated” Broderick Boys members and associates, which gang expert Winger
maintains and revises weekly. We agree with plaintiff that appellants forfeit this point by
failing to present any legal authority. (In re S.C. (2006) 138 Cal. App. 4th 396, 408.)
Moreover, we see no merit on the facts. Appellants claim the document should have
been disclosed in response to their discovery request, and they did not learn of its
existence until trial. The trial court ruled: “From what I hear this witness saying is that
list is a tickler list. It is not the source material on which he’s rendered his opinion. It is
not the material on which he’s based his opinion, and at best would be cumulative.
Overruled. Request denied.” Appellants argue the ruling denied them the opportunity to
cross-examine the experts effectively, to discover and present rebuttal witnesses, and
denied them “impeaching material.” Appellants fail to explain these supposed
deprivations. Appellants speculate the document may have described an individual as
only an “associate” of the gang, which would have undercut plaintiff’s proof that the
person was an active gang member. Speculation does not demonstrate error.
We conclude appellants fail to show reversible evidentiary error.
III
Broderick Boys is a Criminal Street Gang
A. “Jural Entity” Subject to Being Sued
Appellants contend plaintiff failed to introduce substantial evidence that
membership in the Broderick Boys gang was by “mutual consent” between the gang and
the members which -- according to appellants -- is a prerequisite for Broderick Boys
being a “jural entity” capable of being sued and thus capable of being the subject of an
injunction. (Code Civ. Proc., § 369.5 [partnership or other unincorporated association
41
may sue and be sued and members may be joined as a parties]; Corp. Code, § 18035
[unincorporated association means a “group of two or more persons joined by mutual
consent for a common lawful purpose”].)
However, defendant Broderick Boys defaulted and is not an appellant. Appellants
are individuals. The individuals’ susceptibility to a civil injunction enjoining a gang’s
public nuisance activities is not dependent on the gang being a party. Thus, Gallo v.
Acuna, supra, 14 Cal. 4th 1090, upheld a civil injunction where the complaint named only
gang members, not the gang. The Supreme Court said the City’s evidence demonstrated
it was the gang itself, acting through its membership, that was responsible for the public
nuisance, and “[b]ecause the City could have named the gangs themselves as defendants
and proceeded against them, its decision to name individual gang members instead does
not take the case out of the familiar rule that both the organization and the members
through which it acts are subject to injunctive relief.” (Id. at p. 1125.) Gallo v. Acuna
thus indicated in dictum that injunctive relief may be granted against a criminal street
gang.
We applied the Corporations Code to Broderick Boys in a different and limited
context in Broderick Boys, supra, 149 Cal. App. 4th 1506, where we held Broderick Boys
street gang 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” under Corporations Code section 18035. We noted case law has treated
gangs as unincorporated associations but also noted those cases did not address “lawful
purpose.” (Id. at p. 1522.) An entity could have both lawful and unlawful purposes, but
the People submitted a gang expert’s declaration that the gang had no social benefits. (Id.
at pp. 1512, 1521.)
The Second Appellate District, Division Six, later disagreed with our reasoning in
Totten v. Colonia Chiques, supra, 156 Cal.App.4th at p. 39, fn. 6. There, the gang was
the only defendant. Two individuals who had been served with the injunction intervened,
42
arguing the gang was not a jural entity capable of being sued, and the judgment could not
operate against nonparties. (Id. at p. 35.) The appellate court disagreed. It considered
persuasive the dictum in Gallo v. Acuna, and held that even if a gang had not been
formed for a lawful purpose, it still would be capable of being sued as an unincorporated
association under Code of Civil Procedure section 369.5. (Id. at p. 39.) The
Corporations Code definition does not necessarily apply, because Corporations Code
section 18000 states definitions in that chapter govern the construction of that title of the
Corporations Code. (Id. at pp. 39-41.) Totten v. Colonia Chiques considered it “highly
unlikely” that the Legislature intended criminal street gangs to use Corporations Code
section 18035 as a shield against a gang injunction. (Id. at p. 40.) The Legislature made
criminal street gangs subject to gang injunctions under Penal Code section 186.22a and
even authorizes the court to award money damages to be paid from assets of the gang or
its members when the court issues an injunction under the general nuisance statute of
Civil Code section 3479. (Pen. Code, § 186.22a, subd. (c).) Totten v. Colonia Chiques
said the criteria applied to determine whether an entity is capable of being sued as an
unincorporated association “ ‘are no more complicated than (1) a group whose members
share a common purpose, and (2) who function under a common name under
circumstances where fairness requires the group be recognized as a legal entity.’ ” (Id. at
pp. 38-39.)
Without any supporting legal authority or analysis (and without acknowledging
Totten v. Colonia Chiques on this point), appellants assume in their opening brief that
Corporations Code section 18035 applies in this context. Even assuming for the sake of
argument that it does, plaintiff alleged and the trial court found “mutual consent,” and
appellants fail to offer any authority or legal analysis on interpretation of the
Corporations Code provision that would render the evidence of mutual consent
insufficient. They argue that “while individuals indicated their allegiance to the
Broderick Boys/Nortenos gang by distinctive regalia and tattoos, as well as, at times,
43
association, admissions and criminal actions, there was no evidence of mutuality - no
evidence that anyone had been (or had to be) accepted into the gang; that the identified
gang members shared property or profits with other identified members; that any
individual crime was adopted or ratified by those who were not immediate participants;
or that supposed members met any requirements or had any obligations whatsoever -
other than the ‘generational thing’ of having family members with similar allegiance or
identity. Membership was casual, spontaneous, and self-elective.” (Orig. italics.)
However, appellants cite no authority requiring formal acceptance into the gang or
that members must share property or affirmatively ratify crimes, or imposing any specific
requirements as the sine qua non of an unincorporated association. They cite DeMott v.
Board of Police Commissioners (1981) 122 Cal. App. 3d 296, 305-306, which held a
purported “film club” was not an unincorporated association so as to escape an ordinance
regulating picture arcades open to the public. Anyone could join without restriction by
paying one dollar. DeMott, which did not even discuss mutual consent, is inapposite.
Appellants note DeMott cited a Massachusetts case that a purported residential
swim club did not qualify as an unincorporated association, because there were no criteria
or restrictive requirements for membership and no mutual relationship of contemplated
permanence. (Ibid.) Again, however, the court found the purported club was an artifice
to avoid regulation as a commercial amusement place, and the case has no bearing here.
(Ibid.)
Appellants cite another inapposite case, Motta v. Samuel Weiser, Inc. (D. Me.
1984) 598 F. Supp. 941, which said in a copyright case that a purported organization did
not qualify as a jural entity capable of owning copyrights, where it had no definite
membership but was just an amorphous set of ideas and rituals which could be
appropriated by anyone so inclined. (Id. at pp. 950-951.)
Here, the evidence amply shows “mutual consent” under a common sense
understanding of that term. The members share a common purpose and function under a
44
common name under circumstances where fairness requires the group be recognized as a
legal entity. (Totten v. Colonia Chiques, supra, 156 Cal.App.4th at pp. 38-39.)
Appellants’ reply brief cites White v. Cox (1971) 17 Cal. App. 3d 824, 826-828, for
the proposition that the unincorporated association must be distinct from its membership.
However, that case held a condominium homeowners’ association was a separate entity
from the homeowners such that a homeowner who tripped over a sprinkler in the
common area could pursue a tort action against the association. Appellants fail to show
how that case helps them in this appeal.
B. Substantial Evidence of Criminal Street Gang
Sanchez does not bar a gang expert from relying on hearsay for general
background information. (Sanchez, supra, 63 Cal.4th at pp. 676-677.) Substantial
evidence about gang culture might consist of expert opinion testimony “based . . . on
conversations [the gang expert] had with . . . gang members, and on ‘his personal
investigations of hundreds of crimes committed by gang members,’ together with
information from colleagues in his own police department and other law enforcement
agencies. [Citation.]” (People v. Sengpadychith (2001) 26 Cal. 4th 316, 323-324, citing
Gardeley, supra, 14 Cal.4th at pp. 617-618.) Additionally, the expert’s relevant personal
observations are admissible. (People v. Nguyen (2015) 61 Cal. 4th 1015, 1034.)
Appellants argue the evidence was insufficient to support expert opinions
regarding the gang’s alleged organization and collective activity, because the opinions
lacked a factual basis. (In re Alexander (2007) 149 Cal. App. 4th 605, 612-613 [expert
testimony without an adequate foundation does not constitute substantial evidence].) But
appellants fail to show absence of a factual basis. They split their argument into separate
issues of (1) organization, subdivided as (a) history/structure and (b) membership
(tattoos/regalia, jumping in, and putting in work); and (2) concerted or collective activity
(intimidation, rivalry, and defense of turf). But the issues overlap.
45
Appellants note Villanueva’s testimony about Broderick Boys being a sort of
“franchise” of the Nortenos street gang, which developed from the Nuestra Familia
prison gang and has policies of hierarchy and collective activity. Appellants posit that,
after all these years and countless searches of homes, computers, and cell phones, WSPD
has no “evidence of internal organization.” But appellants cite no authority requiring
documentary proof. Appellants’ statement of facts asserts there was little evidence
connecting Broderick Boys to the Nuestra Familia prison gang but acknowledges there
was evidence connecting Broderick Boys to the Nortenos street gang.
We invited supplemental briefing on the effect, if any, of recent criminal case law
regarding gang subsets. (People v. Prunty (2015) 62 Cal. 4th 59 [prosecution must show
connection between gang and subsets where it relies on crimes committed by members of
subsets for predicate offenses to prove gang enhancement in criminal case].) Appellants’
position is that Prunty is inapplicable because that was a criminal case and this is a civil
case. We therefore need not consider Prunty.
In a two-page footnote, appellants give “examples” of purported lack of factual
basis. They claim that no evidence supports Villanueva’s testimony that McFadden, as a
non-Hispanic, had to do a little bit more to gain membership. Appellants offer no
possible way this testimony could have prejudiced them.
Appellants’ footnote next complains about evidence of the November 2010 assault
where McDaniel gave Yuba City transplant Sam Rios the “green light” to “take out” the
victim. As indicated, we do not rely on this evidence to affirm the judgment.
Appellants’ footnote goes on to claim expert Villanueva engaged in speculation by
opining that Alex Estrada maintained a “weapons cache” for the gang, based on his
misdemeanor conviction for possession of ammunition. However, appellants misstate the
record. Villanueva based his opinion on the multiple firearms found in Estrada’s
residence, not on the ultimate conviction. Nuisance activities need not result in criminal
46
convictions in order to constitute evidence warranting a gang injunction. (Acuna I, supra,
182 Cal.App.4th at pp. 879-880.)
Plaintiff’s experts testified -- based on contacts with Broderick Boys members
(which appellants fail to show was improperly allowed into evidence) -- that individuals
join Broderick Boys in a variety of ways, e.g., by legacy of having family members in the
group, by “jumping in” (allowing themselves to be beaten), and females could join by
having sex with members. New members move up within the gang by “putting in work”
for the gang, e.g., by selling drugs or committing acts of violence to foster fear of
Broderick Boys and avenge disrespect by rivals. Gang expert Winger said Broderick
Boys does not have a formal organizational structure but has an informal structure in that
members who have put in years of work or committed significant crimes on behalf of the
gang have more influence and higher standing in the gang, enabling them to give orders
to commit crimes. A significant or violent crime requires the approval of a more senior
member. Winger opined Broderick Boys has an informal code of conduct, and senior
members determine the course of the informal policy. The expert opinions were
supported by other evidence, e.g., Angel Sanchez testified in his criminal trial that he put
in work for the gang by fighting members of other gangs.
Appellants argue there was no evidence that anyone knew that anyone else was
“putting in work.” Appellants argue that, while being “jumped in” was a familiar concept
“to at least one identified gang member” (Angel Sanchez), only one person “claimed”
that she was “jumped in” when she was 11 years old. Appellants argue the
“insubstantiality of this childhood incident, based entirely on hearsay by someone who
apparently had no history of active gang involvement, hardly needs elaboration. [Citation
to addendum.]”
Again, appellants have failed to show prejudicial evidentiary error, and they
ignore the multiple final criminal convictions involving joint activities. The evidence
supports an inference that members understood Broderick Boys’ informal structure and
47
acted upon it. Indeed, there was direct evidence from a member -- the transcript of Angel
Sanchez’s testimony from his criminal case -- in which he admitted being a Broderick
Boy and said he had gang tattoos on his face, arms, and hands, and one way to join was to
be “jumped in” to the gang, though he himself 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.
Appellants fail to show grounds for reversal concerning Broderick Boys as a
criminal street gang subject to suit.
IV
Broderick Boys Engages in Public Nuisance Activities
Appellants contend the “pattern of conduct” (Pen. Code, § 186.22(f)) found by the
trial court to constitute a public nuisance warranting a gang injunction was not
attributable to “DEFENDANTS/APPELLANTS” because they did not “act in concert”
with the gang to create the pattern. Appellants claim the result is a due process violation
imputing guilt by association.
Appellants raise a variety of contentions conflating two separate but overlapping
issues: (1) whether the gang, through its members, commits public nuisance activities,
and (2) whether these eight appellants are active gang members who participate in or act
in concert with the gang so as to make them subject to the injunction. (Acuna I, supra,
182 Cal.App.4th at p. 880; Englebrecht, supra, 88 Cal.App.4th at pp. 1260-1261.) We
address the latter point, post. For the first point: “It is the collective action of the gang,
not that of any individual member, that determines whether a public nuisance exists.”
(Acuna I, supra, at p. 880.)
As to some of appellants’ arguments, we already addressed them in Acuna I,
supra, 182 Cal. App. 4th 866 -- a controlling opinion virtually ignored in appellants’
opening brief in this appeal. The “law of the case” doctrine dictates that an appellate
48
court’s holding, on a rule of law necessary to an opinion, must be adhered to throughout
the case’s subsequent progress in the trial court and on subsequent appeal, as to questions
of law (though not as to questions of fact). (Gunn v. Mariners Church, Inc. (2008)
167 Cal. App. 4th 206, 213.) We need not address appellants’ arguments about Acuna I
raised for the first time in the reply brief. (Garcia v. McCutchen (1997) 16 Cal. 4th 469,
482, fn. 10.)
A. Relative Lull in Activity
Appellants argue that prior nuisance activities are remote, and there was
insufficient evidence of current ongoing nuisance activities at the time of trial in 2010 to
justify injunctive relief. Appellants argue plaintiff thus failed to show the presence of
conditions warranting equitable relief. We disagree.
In Acuna I, supra, 182 Cal.App.4th at page 879, the defendants argued that most
of the crimes were committed years ago. We said: “As to the relative dearth of recent
criminal offenses presented in support of the [preliminary] injunction, it must not be
overlooked that during all of 2006 and much of 2007 [the default] injunction was in place
restricting the activities of the Broderick Boys in the Safety Zone. Also, [gang expert]
Investigator Villanueva indicated the crimes he mentioned in his declaration were only ‘a
sampling of some of the crimes committed by the Broderick Boys in the Safety Zone’
that he personally investigated. The trial court was presented with the criminal records of
the 23 named defendants, but not other gang members. Furthermore, the other
intimidating conduct of the Broderick Boys tends to paralyze the community, which
diminishes their need to actually commit further assaults to maintain control.” (Id. at
p. 881.)
The same lulling effect applies in this appeal, where the preliminary injunction has
been in place from April 2007 to the present.
49
Moreover, a permanent injunction is appropriate if the misconduct is ongoing or
likely to recur and, while a permanent injunction may be inappropriate where the
defendant voluntarily and in good faith discontinues the wrongful conduct, compliance
with a court order (here, the preliminary injunction) does not constitute voluntary
discontinuation. (Feminist, supra, 32 Cal.App.4th at pp. 1658-1659.) Additionally,
remote activities are relevant to the issue whether the persistent and prolonged nature of
defendants’ activities before issuance of the preliminary injunction support a conclusion
that misconduct is likely to recur unless permanently enjoined. (Id. at p. 1659.)
In Feminist, we upheld issuance of a permanent injunction imposing time, place,
and manner restrictions on antiabortion demonstrations at a medical clinic. The
demonstrators -- pointing to lack of evidence of the prohibited conduct for more than a
year before trial -- argued no evidence suggested the conduct supporting the preliminary
injunction would be resumed unless permanently enjoined. (Id. 32 Cal.App.4th at
p. 1658.) They argued the testimony of one demonstrator that he “would like to resume”
did not establish he would resume. (Id. at pp. 1658-1659.) We rejected the argument.
“Because injunction is an extraordinary remedy, the remedy should not be exercised
unless it is reasonably probable the acts complained of will recur. ‘Injunctive power is
not used as punishment for past acts and is ordered against them only if there is evidence
they will probably recur. . . . A court of equity will not afford an injunction to prevent in
the future that which in good faith has been discontinued in the absence of any evidence
that the acts are likely to be repeated in the future.’ [Citation.]” (Id. at p. 1658.) We
concluded “it was reasonable for the trial court to conclude that the prohibited conduct
would resume unless permanently enjoined. . . . The nature of the issue involved, plus
the persistent and prolonged nature of defendants’ activities at the clinic before issuance
of the temporary restraining order and preliminary injunction, indicate such conduct was
discontinued at least in part because of the legal prohibition. Compliance with a court
order is not voluntary discontinuance of prohibited conduct. [Citation.]” (Ibid.)
50
Here, the record supports a conclusion that the relative lull in nuisance activity in
recent years is attributable to the existence of the preliminary injunction, which plaintiff
sought in July 2007 (Acuna I, supra, 182 Cal.App.4th at p. 870), and which the trial court
issued in May 2008, and which we affirmed for the most part in our opinion in the prior
appeal, filed March 8, 2010.
Plaintiff at trial adduced evidence of additional crimes and other nuisance
activities showing nuisance activity was continuing, though to a lesser extent than before
the injunction. Villanueva testified he observed a reduction in nuisance activity when the
injunction was in place and an increase in subjects openly displaying gang tattoos and
clothing when the injunction was overturned in the prior appeal in April 2007.
Appellants claim there was no basis for the expert to opine cause and effect between the
injunction and the level of activity. However, appellants ignore Villanueva’s testimony
that Billy Wolfington (a named defendant) told Villanueva the injunction was driving
Broderick Boys “under ground.” Moreover, Villanueva’s personal observations about the
level of activity and his continued contact with gang officers support an inference the
injunction at least partially achieved its purpose of deterring nuisance activity.
Appellants offer nothing to render such inference unreasonable.
Winger testified he had the opportunity to observe gang activity before and after
the first (default) injunction issued, between 2004 and 2007. Before the first injunction,
police commonly encountered Broderick Boys members openly displaying gang tattoos
and the red color and openly acknowledging membership. In Winger’s personal
observations as well as his review of police reports, such overt signs were less common
after the injunction issued. After the first injunction was overturned, Winger personally
observed an increase in the number of persons openly wearing red and displaying gang
tattoos. Winger opined, based on his involvement in and review of drug investigations,
that the injunction had no effect on the amount of Broderick Boys’ drug activity -- which
was ongoing -- but the injunction caused the drug dealing to be less overt, less visible.
51
Winger also said of the injunction “[a]s a tool, it helped us to combat drug trafficking or
drug dealing in the Safety Zone.”
Appellants deceptively cite Winger’s opinion that Austin Nunez and Pauliton
Nunez are not “presently” (at the time of trial) contributing to a public nuisance.
However, Winger also testified those individuals are presently (at the time of trial)
incarcerated.
Additionally, the trial court in this case expressly stated remoteness would go to
the weight of the evidence. Appellants fail to show any error.
B. Inside or Outside the Safety Zone
If appellants mean to argue that nuisance activities taking place outside the safety
zone cannot be considered -- and it is not at all clear that they do -- they forfeit the point
by failing to develop any legal analysis. While the default injunction and preliminary
injunctions were in place, the Broderick Boys’ stepping outside the safety zone boundary
for some of their nuisance activities supports an inference of an attempt to evade the
reach of the injunction, hence supports the ongoing need for the injunction.
C. Collective Action Versus Isolated Acts by Sole Actors
1. Issues Concerning Legal Standard
Appellants argue the trial court erred in considering any crime committed by a
single person acting alone. Appellants appear to believe that isolated acts by individuals
acting alone cannot be used to find a public nuisance justifying a gang injunction, absent
proof the acts are gang-related and each member committed multiple acts. Appellants
cite no authority supporting their position that each member must commit multiple acts.
In Acuna I, the defendants contended that plaintiff failed to demonstrate the
activities of alleged gang members were anything other than isolated instances of bad
conduct, and some of the crimes were relatively minor and only six involved a gang-
related conviction. (Id., supra, 182 Cal.App.4th at p. 879.)
52
We said, “conduct not amounting to a gang crime under Penal Code section
186.22 may be the subject of an action to abate a nuisance. [Citation.]” (Acuna I, supra,
182 Cal.App.4th at pp. 879-880; italics added.) “[I]n the context of a gang injunction, it
is not necessary to prove the commission of criminal acts. Rather, it must be shown gang
members ‘participate[] in or act[] 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.’ [Citation.]
Thus, conduct not amounting to a gang crime under Penal Code section 186.22 may be
the subject of an action to abate a nuisance. [Citation.]” (Ibid.; italics added, orig. italics
omitted.) We said the evidence showed that individual Broderick Boys members
vandalize property with gang graffiti, intimidate residents with gang signs, tattoos and red
clothing, and patrol the safety zone in small groups, thereby reinforcing their control of
the area. (Id. at p. 880.) The individual crimes were merely the more serious types of
conduct used by the Broderick Boys to “maintain control of their turf.” (Ibid.) There
was no need to link any particular gang member to the gang graffiti in the safety zone for
purposes of a gang injunction. (Ibid.) It may reasonably be assumed such graffiti was
the work product of some member of the gang, even if that member cannot be identified.2
(Ibid.) “It is the collective action of the gang, not that of any individual member, that
determines whether a public nuisance exists.” (Ibid.) We also said the defense argument
presupposed that a crime that is not charged as a gang offense is not gang-related, but
there were many reasons why a prosecutor may choose not to add a gang charge. (Id. at
p. 881.) “Even crimes that were not technically committed for the purpose of benefitting
2 At trial, the defense objected to relevance of graffiti of unknown authorship but
acknowledged our prior opinion as law of the case.
53
a gang may nevertheless have that effect. Furthermore, a gang injunction may properly
prohibit conduct of gang members irrespective of whether that conduct is undertaken to
further the purposes of the gang. [Citation.]” (Ibid.)
In this appeal, appellants appear to suggest that Gallo v. Acuna, supra, 14 Cal. 4th
1090, stands for the proposition that only collective activities can constitute a public
nuisance. We disagree. There, the defendants -- who admitted gang membership or
whom police identified as gang members -- argued they could not be subject to a gang
injunction (which differs from the question whether a public nuisance exists) unless they
possessed a specific intent to further the gang’s unlawful purpose. (Id. at pp. 1122-1123.)
The Supreme Court instead concluded it was enough that sufficient evidence supported
the conclusion that the gang and its members were responsible for the nuisance and that
each individual defendant admitted gang membership or was identified as a gang
member. (Id. at p. 1125.)
Englebrecht, supra, 88 Cal.App.4th at page 1261, said it does not appear that
Gallo v. Acuna requires for a sufficient demonstration of membership any showing the
individual had engaged in nuisance activities.
Appellants cite People v. Rodriguez (2012) 55 Cal. 4th 1125, for the proposition
that membership in a gang is not enough to establish in an individual vicarious liability
for a gang’s pattern of conduct, because of constitutional concerns about guilt by
association. Rodriguez -- which was published after the bench trial in this case -- was not
a civil gang injunction case, but rather a criminal conviction for attempted robbery and
the separate felony of gang participation under Penal Code section 186.22, subdivision
(a). The Supreme Court, affirming our reversal of the gang participation conviction, said
the defendant’s commission of attempted robbery while acting alone did not fall within
the elements of the gang participation offense, which requires willful promoting,
furthering, or assisting in felonious criminal conduct by “members” of the gang.
(Rodriguez, supra, 55 Cal.4th at pp. 1130-1132, citing Pen. Code, § 186.22, subd. (a).)
54
Interpreting the plural “members” to include the singular (Pen. Code, § 7) would not be
reasonable in the context of the due process concerns raised by a gang participation
statute that does not require the underlying felony to be gang-related. (Rodriguez, supra,
55 Cal.4th at pp. 1132-1139.) However, a person acting alone is still subject to the gang
enhancement under Penal Code section 186.22, subdivision (b). (Rodriguez, supra,
55 Cal.4th at pp. 1138-1139; People v. Rios (2013) 222 Cal. App. 4th 542, 545-546.)
Rodriguez is inapposite here, where the lack of gang enhancement or gang charge
in connection with a given criminal prosecution is not determinative for purposes of a
civil gang injunction. (Acuna I, supra, 182 Cal.App.4th at p. 881.) We are mindful,
however, of the constitutional concerns about guilt by association, and we address them
post in our discussion of active membership.
2. Substantial Evidence Issues
If appellants mean to argue insufficiency of the evidence of a public nuisance, we
disagree.
Appellants say gang expert Villanueva testified Broderick Boys “ ‘patrol’ (drive
around the neighborhood)” to maintain control, but there was insufficient evidence of
actual patrolling because there were only two incidents of Broderick Boys “driving
around” and one incident of Broderick Boys “flamed out” in gang colors 10 years earlier.
However, appellants offer no citation to the record and instead misstate the record.
Villanueva testified “patrolling” means “these guys are out and about on the streets,
whether by vehicle or on foot . . . .” (Emphasis added.)
In Acuna I, the defendants argued there was no evidence of actual sightings of
numerous gang members together in public places within the safety zone. (Id.
182 Cal.App.4th at p. 879.) We said, “we need look no further than the declaration of
Investigator Villanueva [who] indicated Broderick Boys members typically patrol areas
within the Safety Zone in small groups, because a ‘guy on the corner isn’t going to get
55
the message of fear and intimidation across to the community and to rival gangs.’ Unless
we are to conclude Investigator Villanueva simply made this up, it is reasonable to
assume he observed this activity within the Safety Zone or it was reported to him by
others.” (Id. at p. 880.) We indulged all reasonable inferences in support of the
judgment. (Ibid.)
In this appeal, the experts acknowledged they had not seen much patrolling lately.
However, there was also evidence that gang members admitted to police that the
existence of the preliminary injunction had forced them to go “under ground.”
Additionally, there was some evidence of recent group activity spreading fear in the
community, i.e., the 2010 Memorial Park incident. The trial court believed the testimony
of the victims of that incident, that fear of the Broderick Boys forced them to move away.
In addition to the victim testimony, plaintiff’s experts testified about the reluctance of
victims to testify against perpetrators who are gang members, due to the victims’ fear of
retaliation. This evidence was proper, as recently reaffirmed in People v. Nguyen, supra,
61 Cal. 4th 1035: “ ‘Whether members of a street gang would intimidate persons who
testify against a member of that or a rival gang is sufficiently beyond common
experience’ ” that expert opinion would assist the trier of fact. (Id. at p. 1034, citing
People v. Gonzalez (2006) 38 Cal. 4th 932, 945.)
As noted, appellants cite no authority requiring multiple nuisance activities by
each gang member and we can perceive no reason to impose such a requirement. A gang
injunction aims to stop a public nuisance -- i.e., a nuisance that affects an entire
community (Civ. Code, § 3480) -- by a criminal street “gang” which can act only through
its members. (Acuna I, supra, 182 Cal.App.4th at pp. 874-875.) It matters not to the
community whether each gang member commits multiple acts.
Moreover, this presents another instance of appellants misstating the facts.
Appellants’ opening brief states, “for those who were immediate participants in a
crime, suspected crime, or who were otherwise known to the police, the vast majority of
56
identified gang members (82 out of 94) appear only once in the record. . . . (See, Crimes
Addendum, Crimes Chart, which shows the year(s) each identified gang member appears
in the record.) . . . Therefore their nuisance activity cannot be described as ‘collective’
even with respect to the particular crime or suspected crime. (See, Crimes and Gang
Members Addenda.)”
As noted in the respondent’s brief, appellants have cited, not to the record, but to a
“Crimes Chart” appellants themselves apparently prepared for this appeal -- with no
citations to the record whatsoever -- and the chart is wrong. The chart claims Juan
Zinzun appeared in the record only once with respect to an incident in the first half of
2002 (Crimes Addendum, Crimes Chart), but Zinzun had two gang-related convictions in
two separate criminal cases. Appellants’ reply brief states: “What counsel meant is that
Zinzun was convicted of crimes on one date in the past, and there was no recurrence.
And he acted alone, as far as the record reveals.” However, “[w]hat counsel meant” is an
inadequate excuse for misrepresenting facts in appellate briefing.
Moreover, appellants fail to support their assertions that the convictions were on
one date based on one incident, and that the record is confused. Appellants cite their own
“Gang Members Addendum at p. Z-1” -- which is not part of the record but rather part of
appellants’ briefing. The Addendum does claim the offense date in both cases was July
16, 2002. However, the cited pages of the reporter’s transcript instead state Zinzun was
convicted of assault with a deadly weapon with a gang enhancement in trial court case
No. CRF-02-0429, violation date January 16, 2002, plea date July 10, 2002. And he was
convicted in case No. CRF-02-5286 of a substantive gang offense committed on July 16,
2002, to which he entered a plea on September 26, 2002. Over defense objection, the
trial court allowed these convictions as rebuttal evidence to defense testimony of the
nonexistence of the gang.
Appellants’ reply brief claims respondent’s brief admits on page 13 that the two
cases were from the same date. However, page 13 contains no such admission.
57
Appellants also (mis)cite their own Crimes Addendum, which summarizes that police
contacted Zinzun about an assault, and then states there were two convictions in the two
separate cases. The addendum cites to pages of the reporter’s transcript, which merely
state he was convicted in one case and was later convicted in the second case.
We conclude appellants fail to show reversible error with respect to the trial
court’s conclusion that Broderick Boys engages in public nuisance activities.
V
Appellants are Active Members of Broderick Boys
A. Legal Definition of Active Member
In Acuna I, we said the defendants failed to make individualized argument
regarding their active membership, thereby forfeiting the matter. (Id. 182 Cal.App.4th at
p. 879.) Here, the argument has been made.
Insofar as appellants complain the judgment’s list of active members includes
persons other than appellants, appellants “lack standing to challenge that definition [of
active member] on behalf of parties not before the court.” (Acuna I, supra,
182 Cal.App.4th at pp. 883-884.) Appellants may challenge the trial court’s findings of
non-appellants’ active membership insofar as the non-appellants’ activities were used to
conclude the gang engages in public nuisance activities warranting the injunction to
which appellants are subjected, but appellants fail to show reversible error on that
ground.
Gallo v. Acuna considered who was bound by the preliminary injunction. (Id.
14 Cal.4th at pp. 1122-1125.) The Supreme Court concluded for “present purposes”
(preliminary injunction), it was enough that sufficient evidence supported the conclusion
the gang and its members were responsible for the nuisance and that each of the
individual defendants either admitted gang membership or were identified as gang
members. (Id. at p. 1125.) Gallo v. Acuna did not have to decide on a test for
58
determining whether an individual is a member of a gang responsible for nuisance
activity such that he may be enjoined or ultimately found in contempt for engaging in
enjoined behavior in the target area, as noted in Englebrecht, supra, 88 Cal.App.4th at
page 1261. Englebrecht said, “It does not appear, however, [Gallo v.] Acuna requires for
a sufficient demonstration of membership any showing the individual had engaged in
nuisance activities.” (Englebrecht, supra, 88 Cal.App.4th at p. 1261, citing Gallo v.
Acuna, supra, 14 Cal.4th at p. 1125.) “[F]or the purposes of a gang injunction an active
gang member is a person who 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.” (Englebrecht, supra, 88 Cal.App.4th at p. 1261.)
We applied Englebrecht’s definition in Acuna I, supra, 182 Cal.App.4th at p. 875.)
Appellants argue the injunction’s use of Englebert’s definition of “active gang
member” as someone who “participates in or acts in concert” with the Broderick Boys, is
unconstitutionally vague and overbroad and impermissibly penalizes activity protected
under the First Amendment and the liberty interests protected under the due process
clause.
We already rejected this argument in Acuna I. We said that “[o]f necessity, the
definition cannot be much more specific. It is not likely criminal street gangs maintain
rosters of their active members.” (Id. 182 Cal.App.4th at pp. 875, 884.) 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.)
59
We held the definition of active gang member was not unconstitutionally vague.
(Acuna I, supra, 182 Cal.App.4th at pp. 883-884.) Two principles guide evaluation of
whether a law is unconstitutionally vague. (Id. at p. 884.) First, abstract legal commands
must be applied in a specific context. (Ibid.) A contextual application of otherwise
unqualified legal language may supply the clue to a law’s meaning, giving facially
standardless language a constitutionally sufficient concreteness. (Ibid.) Second, only
reasonable specificity is required. (Ibid.) “In the context of a gang injunction, only a
reasonably specific definition of ‘active member’ is possible in order to give adequate
notice while encompassing those who primarily contribute to creation of the public
nuisance. We conclude the definition at issue here is sufficiently specific.” (Ibid.)
Appellants argue due process prohibits guilt by association and requires proof they
acted in concert before they can be held vicariously liable for a pattern of conduct
attributed to a gang. Recognition of the constitutional concerns is reflected in that a
heightened standard of clear and convincing evidence applies to civil gang injunction
cases. (Englebrecht, supra, 88 Cal.App.4th at pp. 1254-1255.)
Appellants cite Scales v. United States (1961) 367 U.S. 203 [6 L. Ed. 2d 782]
(Scales), which upheld constitutionality of a statute making it a crime to be a member of
an organization (the Communist Party), knowing it advocates the overthrow of the United
States government by force or violence. Scales said, “we can perceive no reason why
one who actively and knowingly works in the ranks of that organization, intending to
contribute to the success of those specifically illegal activities, should be any more
immune from prosecution than he to whom the organization has assigned the task of
carrying out the substantive criminal act.” (Id. at pp. 226-227.) Scales added in a
footnote: “The problems in attributing criminal behavior to an abstract entity rather than
to specified individuals, though perhaps difficult theoretically, as a practical matter
resolve themselves into problems of proof. Whether it has been successfully shown that
a particular group engages in forbidden advocacy must depend on the nature of the
60
organization, the occasions on which such advocacy took place, the frequency of such
occasions, and the position within the group of the persons engaging in the advocacy.
[Citation.] Understood in this way, there is no great difference between a charge of being
a member in a group which engages in criminal conduct and being a member of a large
conspiracy, many of whose participants are unknown or not before the court. Whatever
difficulties might be thought to inhere in ascribing a course of criminal conduct to an
abstract entity are certainly cured, so far as any particular defendant is concerned, by the
requirement of proof that he knew that the organization engages in criminal advocacy,
and that it was his purpose to further that criminal advocacy.” (Id. at p. 226, fn. 18.)
Here, there is no due process problem or guilt by association, because the
injunction applies only to active participants. Even if the definition could be construed to
be ambiguous in the abstract, that did not happen to any of these appellants, and they
therefore fail to show grounds for reversal.
B. Substantial Evidence of Active Membership
Under the heading of evidentiary claims, appellants argue:
“Defendants/Appellants have not been engaging in current, ongoing nuisance activity;
their crimes are in the past, mostly years before the trial. Therefore the prohibition on
guilt by association bars the imposition of the restrictions of the injunction upon persons,
including Defendants/Appellants, who are only related by supposed gang membership,
rather than ongoing action in concert, unless each such person had been shown to be
engaged in current, ongoing, nuisance activity that justifies and necessitates the particular
restriction. ‘[I]njunction is not the proper remedy to prevent a person from doing an act
which he has never undertaken or threatened to undertake . . . .’ ” (38 Cal.Jur.3d
Injunctions § 44 (2013); see also, Pezold v. Amalgamated etc. Workmen (1942)
54 Cal. App. 2d 120, 127; San Francisco v. Market S.R. Co. (1950) 95 Cal. App. 2d 648,
655.)
61
The contention fails. The cited authorities are not on point but merely held there
was no basis to enjoin acts that had not happened. Appellants are trying to invent their
own standard requiring proof that each individual participates in committing public
nuisance acts, whereas the correct standard is that gang members commit public nuisance
activities and each individual subject to the injunction participates more than nominally
in the gang.
There is plenty of evidence of appellants’ active membership. Villanueva opined
each appellant is a Broderick Boys member and (unless incarcerated) contributes to an
ongoing public nuisance. Villanueva based his opinions on multiple factors, including
his training and experience, personal involvement in crime investigations, and contacts
with appellants, all of whom are named defendants.
1. Timothy Acuna
Timothy Acuna admitted Broderick Boys membership when police served him
with the injunction in 2005; admitted being a Norteno when he went to jail in February
2007; has gang tattoos (BRK on his stomach, one dot on his right hand and four dots on
his left, and XIV); was apprehended driving a stolen vehicle with Broderick Boys Alex
Estrada as passenger on February 17, 2007 (case No. CRF 07-982); and pleaded no
contest to vehicle theft with intent to assist a criminal street gang.
Appellants’ brief falsely claims, “[t]here was no evidence he [Acuna] had been
seen in the safety zone in the last several years.” However, Acuna’s parole agent testified
in December 2010 as a rebuttal witness that he saw Acuna at Fifth and C Streets in West
Sacramento (within the safety zone) three times, the most recent of which was
“[a]pproximately two years ago.” On cross-examination, Acuna’s attorney represented
that Acuna just got out of prison “a few weeks ago” after being in prison continuously for
the past four years. After the lunch recess, the parole agent testified on redirect
examination that Acuna was taken into custody in 2006 and was paroled in 2008, and the
62
agent testified from recollection refreshed by records from the Department of Corrections
and Rehabilitation, that after being paroled in 2008, Acuna was out of custody for some
period of time and then went back into custody in 2009 and was paroled in 2010.
Acuna himself testified as a defense witness in this case. He was sent to prison in
2001 for vehicle theft and had previously pleaded to “[m]aybe three” vehicle thefts.
When he went to prison for vehicle theft in 2007, Acuna had a “BRK” tattoo on his
stomach, which he got in 2002. A couple of weeks before his testimony in this trial,
Acuna was arrested when police found a BB gun in his mother’s house, but the matter
was dropped.
Appellants recite Acuna’s trial testimony that he is not a gang member, that he
committed his crimes for personal reasons, not to further gang interests, and that the jail
classified him as a gang member “just because” he is a Hispanic from Broderick and has
tattoos. We disregard Acuna’s self-serving testimony because the trial court did not
believe him, and on appellate review we resolve all factual conflicts and credibility
questions in favor of the prevailing party and indulge all reasonable inferences in support
of the judgment.
2. Alex Estrada
Alex Estrada “self-admitted” being a “Northerner” (aka Norteno) in jail in 2007.
In 2007, he was in the stolen car with Broderick Boys Timothy Acuna. Police found
multiple guns and ammunition in his residence within the safety zone, and he was
convicted of felon in possession of ammunition. Norteno gangs keep caches of weapons
in their territory for use in committing crimes.
3. Jesse Garcia
Jesse Garcia acknowledged gang membership in discovery responses. Plaintiff
called him as a witness at trial. Before invoking the Fifth Amendment, he claimed he
knows nothing about Broderick Boys and claimed he acknowledged membership because
63
that was how California Youth Authority (CYA) classified him when he was sent there in
2003 and 2005. On the facility intake form, he circled “Norteno” and wrote in Broderick
Boys because he was told to do so.
4. Robert Montoya
Montoya had numerous gang-related tattoos in 2006 and 2007. In speaking with
police in 2005, he “self-admitted” being a Broderick Boy. He identified as a Northerner
in a jail questionnaire in 2006. His parole agent testified that in 2008 Montoya said he
was “a” current leader of Broderick Boys, but the agent did not independently validate
that assertion. Five months before the 2010 trial, as the agent placed handcuffs on
Montoya (for possessing alcohol and possessing gang-related clothing -- a “Rider” shirt,
Riders being a word used for drop-outs who are sort of their own gang), Montoya said he
was a Broderick Boys leader and offered to “give up” other gang members to make a
deal.
5. Michael Morales
In May 2005, police stopped a speeding car driven by Michael Morales with gang
member Guillermo Rosales as passenger. Their presence together violated the 2004
injunction. Michael Morales pleaded no contest to carrying a concealed firearm in a
vehicle and got probation, and Rosales pleaded no contest to misdemeanor possession of
marijuana. In January 2007, police arrested Morales in a car with Rosales, and Morales
pleaded no contest to conspiracy to transport or sell methamphetamine. In jail
questionnaires in 2006 and 2007, Morales admitted being a Broderick Boy.
6. Guillermo Rosales
Rosales got probation for marijuana possession in the 2005 incident where he was
with Michael Morales. Rosales sold drugs to an informant in December 2006 and
pleaded no contest to possession of methamphetamines for sale. On an unspecified date,
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police apprehended Rosales in possession of a firearm in a car with three other Norteno
gang members. The gang expert opined the group was “patrolling,” i.e., gang members
driving around looking for a confrontation. Rosales admitted being a Northerner in jail
questionnaires. At trial, Winger opined Rosales is not “presently” contributing to the
nuisance because he is in prison.
7. Felipe Valadez, Jr.
He was one of the people involved in a fight in July 2006. Police responding to a
report of a fight on July 16, 2006, saw a group of people, one with a baseball bat and one
with a tire iron. Some fled, but police arrested Valadez and Rainey Martinez for
violating the gang injunction. Police detained others, including Christopher Castillo and
Jesse Garcia, but released them due to the victim’s unwillingness to cooperate. A police
officer testified that in February 2007, he saw Valadez writing “BRK” on a wall in the
safety zone. In July 2009, police arrested Valadez for public intoxication and possession
of methamphetamines. He yelled, “Fuck West Sac[ramento] PD. I’m Broderick.
Straight BRK. I don’t give a fuck.” Felipe Valadez has Broderick tattooed on his
stomach, and a “1” and “4” on his arms. In March 2007, he pleaded no contest to
misdemeanor criminal street gang activity.
8. Billy Wolfington
In August 2001, Wolfington pleaded no contest to possession of a controlled
substance for sale. When arrested, he was in the presence of Broderick Boys member
Raymond Corona. In May 2002, Wolfington pleaded no contest to a March 2002
incident of possessing a controlled substance while armed with a loaded gun. Wolfington
admitted being a Northerner in December 2006. When returned to jail on a parole
violation, Wolfington described himself as a “northern dropout” in a jail questionnaire,
but Villanueva opined this was a lie to gain more freedom while in custody. At the time
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of trial, Wolfington was not contributing to a public nuisance due to the fact he was in
custody.
Appellants fail to show reversible error regarding active membership.
VI
Challenges to Specific Provisions of Injunction
Appellants contend specific provisions of the injunction (1) lack substantial
evidence of a need for them, and (2) violate constitutional rights without any showing of
necessity. Under this heading, appellants argue in a first subheading that the evidence
does not support particular provisions (non-association, curfew, no-trespassing, anti-
graffiti, and the safety zone boundaries), and that the entire injunction violates the due
process prohibition on guilt by association.
Under multiple separate subheadings, appellants argue they have standing to
challenge the injunction as overbroad; the injunction violates their First Amendment and
due process rights; the definition of active gang member is vague and overbroad and
violates First Amendment and due process liberty interests; the anti-association and
curfew provisions are vague and overbroad and violate First Amendment and “intimate”
liberty interests under the due process clause; and other provisions of the injunction are
vague and overbroad. We already addressed some of these contentions in our 2010
opinion.
A. Standing
Appellants claim they have standing to challenge the injunction as overbroad as to
third parties, without showing violation of appellants’ own constitutional First
Amendment rights and liberty interests. Appellants are wrong. They cite case law
challenging overbreadth of statutes, not injunctions. (E.g., Broadrick v. Oklahoma
(1973) 413 U.S. 601, 612 [37 L. Ed. 2d 830].) The California Supreme Court expressly
discussed the distinction in Gallo v. Acuna, supra, 14 Cal.4th at pages 1112-1115. The
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“narrow and particularized focus inherent in the nature of the injunction” does not
embody “the broad and abstract commands of a statute.” (Id. at p. 1114.) “Unlike the
pervasive ‘chill’ of an abstract statutory command that may broadly affect the conduct of
an absent class and induce self-censorship, the decree here did not issue until after these
defendants had had their day in court, a procedure that assures ‘ “a prompt and carefully
circumscribed determination of the issue.” ’ [Citation.]” (Ibid.; orig. italics.)
Appellants dismiss Gallo v. Acuna on the ground that there the “only individuals
subject to the trial court’s interlocutory decree . . . are named parties to this action,
[whose] activities allegedly protected by the First Amendment have been and are being
aggressively litigated. There is accordingly no basis, legal or factual, for the professed
concern that protected speech or communicative conduct by anyone other than
defendants might be endangered by the terms of the trial court’s injunction.” (Id. at
p. 1114; orig. italics.) Here, the injunction applies to “active members” not named in the
complaint.
However, as we said in Broderick Boys, supra, 149 Cal.App.4th at page 1516, “a
nonparty [who is served with the injunction] could attack the injunction in a declaratory
relief action [citation] or in defense of contempt charges [Citation].” (Orig. italics.)
We conclude appellants lack standing to assert overbreadth challenges on behalf
of nonparties to the appeal.
B. The “Do Not Associate” Provision
The permanent injunction “enjoin[s]” and restrain[s] appellants from “engaging in
or performing, directly or indirectly, any of the following activities in the Safety Zone:
[¶] a. Do Not Associate: Standing, sitting, walking, driving, gathering or appearing,
anywhere in public view or any place accessible to the public, with any known member
of the Broderick Boys, including but not limited to those members identified by name in
this order. This non-association order shall not apply when the enjoined parties are inside
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a school attending class or on school business, or inside a church; however, the non-
association order shall apply to the enjoined parties when they are traveling to or from
school or church.”
In the prior appeal from the preliminary injunction, appellants argued that an
identical provision infringed on their constitutional right of association, by prohibiting
them from gathering in public places for lawful and peaceful purposes, and by interfering
with intimate family relationships. (Acuna I, supra, 182 Cal.App.4th at pp. 885-886.)
We held the preliminary injunction did not burden association rights more than was
necessary to serve the significant governmental interests at stake. (Ibid.) Appellants
raise the same arguments again, but we need not address them again; Acuna I is law of
the case.
In this appeal, appellants present a new argument, claiming insufficiency of
evidence of ongoing public collective activity to support the non-association restriction,
because there were only a few incidents involving multiple actors in 2010 and only seven
in 2009. As indicated, however, a permanent injunction is appropriate if the misconduct
is ongoing or likely to recur, and compliance with a preliminary injunction does not
constitute voluntary discontinuation of the wrongful conduct rendering a permanent
injunction unnecessary. (Feminist, supra, 32 Cal.App.4th at pp. 1658-1659.) Appellants
fail to confront these legal principles and fail to show insufficiency of evidence that the
nuisance activity was ongoing or likely to recur.
Appellants also contend the anti-association provision is vague and overbroad
because it prohibits association with “known” members of Broderick Boys, yet fails to
define “known.” They cite no authority other than Lanzetta v. New Jersey (1939) 306
U.S. 451, 458 [83 L. Ed. 888], as indicating that “known” was ambiguous with reference
to undefined “reputed” membership. However, Lanzetta was construing a statute, not an
injunction. As indicated, statutes and injunctions are not equivalent for constitutional
analysis. (Gallo v. Acuna, supra, 14 Cal.4th at p. 1114.) Moreover, Lanzetta is
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inapposite. There, a New Jersey criminal statute stated that any unemployed person
“known” to be a gang member, who has been convicted of a crime, is a gangster subject
to a fine or imprisonment for that status. (Lanzetta, supra, 306 U.S. at p. 452.) After
finding uncertainty in other parts of the statute, the Lanzetta court went on to say that the
phrase “known to be a member” was ambiguous, because (1) if it meant actual
membership, the word “known” would be without significance, but (2) if reputed
membership sufficed, it was unclear whether that reputation must be general or extend
only to some persons. (Id. at p. 458.) “Known” in the New Jersey statute referred to
knowledge of unknown persons. Here, no equivalent ambiguity appears, because the
injunction in context prohibits appellants from associating with people whom appellants
know are gang members. Thus, the injunction in Gallo v. Acuna, supra, 14 Cal.4th at
page 1110, enjoined the defendants from associating with “known” gang members, which
the Supreme Court said effectively forbade gang members from engaging in any form of
social intercourse with anyone “known to them” to be a gang member. (Id. at p. 1121.)
C. The Curfew Provision
The injunction enjoins and restrains appellants from “Remaining on public
property, a public place, on the premises of any establishment open to the public, or on a
vacant lot, between the hours of 10:00 p.m. on any day and 6:00 a.m. the following day,
unless (1) going to or from a meeting or scheduled entertainment activity at a theatre,
school, church or other religious institution, or sponsored by a religious institution, local
educational authority, governmental agency or support group such as Alcoholics
Anonymous, (2) actively engaging in a business, trade, profession or employment that
requires such presence, (3) in an emergency situation that requires immediate attention;
or (4) in the side yard or back yard of his or her own residence. A ‘public place’ is
defined as any place to which the public has access, including but not limited to
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sidewalks, alleys, streets, highways, parks, hospitals, office buildings, transport facilities
and the common areas of schools.”
In the prior appeal from the preliminary injunction, appellants challenged a similar
curfew provision on the grounds that it infringed on constitutional freedom of movement
and was vague and overbroad. (Acuna I, supra, 182 Cal.App.4th at p. 889.) We held the
curfew provision did not sweep too broadly, nor did it invade protected freedoms of the
defendants and other active gang members. (Id. at p. 891.)
In this appeal, appellants challenge the trial evidence as insufficient to establish an
ongoing need for the curfew provision. Again, appellants’ arguments incorrectly assume
they benefit from the deterrent effect of the preliminary injunction.
D. The “No Trespassing” Provision
The injunction enjoins and restrains appellants from “Being present on or in any
property not open to the general public, except (1) with the prior written consent of the
owner, owner’s agent, or the person in lawful possession of the property, or (2) in the
presence of and with the voluntary consent of the owner, owner’s agent, or the person in
lawful possession of the property.”
In the prior appeal, we rejected a constitutional challenge to an identical provision
in the preliminary injunction. (Acuna I, supra, 182 Cal.App.4th at pp. 888-889.) We
noted the gang expert’s declaration that Broderick Boys use abandoned property as a
“crash pad” to drink and do drugs, take over parking lots and common areas of apartment
buildings, and use private residences to escape police pursuit. (Ibid.)
In this appeal, appellants argue “the evidence at trial did not establish that
trespassing occurred. In fact, . . . only one incident involved trespassing in the entire
record. That lone and remote incident occurred on July 25, 2006 . . . . Robert Sanchez
and Rainey Martinez were both arrested for violation of Penal Code 211 [robbery], after
they forced entry into a home and stole items therein. (RT 367:9-394:15.) There is no
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justification, and no evidence was presented at trial, to support the imposition of a ‘no
trespassing’ provision requiring written consent from an owner in order to visit a
residence.” (Orig. brackets.)
Appellants’ argument on this point misstates the record and fails to acknowledge
other evidence favorable to the judgment. For example, a trespass occurred in March
2007, when a shooting occurred after a homeowner asked three Broderick Boys gang
members, who were being loud and drinking in his driveway, to leave. In the Summer of
2009, Broderick Boys gang members threw objects into the driveway of a victim’s home,
calling the occupants “scraps” and challenging them to come out and fight. Since
appellants fail to acknowledge evidence favorable to the judgment, they forfeit their
substantial evidence claim on this point. (Foreman, supra, 3 Cal.3d at p. 881.)
Under a different subheading, appellants complain the “no trespassing” provision
prevents them from stopping by the home of a relative who is out or attending to an
emergency and requires even a renter to be present with a written lease in hand.
However, appellants misread the provision and offer no legal analysis rendering it
defective.
E. Graffiti
The injunction enjoins: “No Graffiti or Graffiti Tools: Damaging, defacing, or
marking any public or private property, or possessing any spray paint can, felt tip marker,
or other graffiti tool as defined in Penal Code section 594.2.” Appellants argue “The
evidence of graffiti in 2009 and 2010 is slight.” Another forfeiture by appellants, who
fail to show that the multitude of graffiti observed by the court and counsel in their tour
of the safety zone during trial in November 2010 were relics of an earlier time.
Moreover, since no one should be damaging or defacing property, the restriction cannot
possibly prejudice appellants.
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Appellants claim the provision prevents them from possessing markers for lawful
purposes at their own home. No, it does not. The injunction references Penal Code
section 594.2, which prohibits possession “with the intent to commit vandalism or
graffiti.”
Appellants complain the provision prevents them from marking private property
with the owner’s consent, even with non-gang markings. We disagree. The clause’s
heading (“graffiti”) and reference to the Penal Code make clear that what is being
restricted is graffiti, which the Penal Code defines as “any unauthorized inscription,
word, figure, mark, or design . . . .” (Pen. Code, § 594, subd. (e).)
Appellants complain the provision applies to all active members, even those who
have not done any graffiti. Appellants have no standing to challenge any provision as to
any gang member other than themselves. Appellants need not have personally drawn any
graffiti in order to be bound by the provision. “[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 [a gang] . . . whose members individually or collectively engage in the acts
constituting the enjoined public nuisance.’ ” (Acuna I, supra, 182 Cal.App.4th at
pp. 874-875.)
F. Safety Zone Boundaries
Appellants argue the boundaries of the safety zone are overbroad because there
has not been much “ongoing” gang activity recently. We have already explained that the
“ongoing” argument lacks merit.
G. Remaining Provisions
Under a subheading that the remaining provisions of the injunction are also vague
and overbroad, appellants complain of the “no intimidation” clause restraining them from
“Confronting, intimidating, annoying, harassing, threatening, challenging, provoking,
assaulting or battering any person known to be a witness to any activity of the Broderick
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Boys, known to be a victim of any activity of the Broderick Boys, or known to be a
person who has complained about any activity of the Broderick Boys.” Appellants argue
the terms “confronting,” “annoying,” “challenging,” and “provoking” are vague. These
exact words were upheld against a claim of vagueness in Gallo v. Acuna, supra,
14 Cal.4th at page 1118, which said the words were not unconstitutionally vague when
considered in context with the facts and the objectives of the injunction. Appellants
suggest the Supreme Court’s conclusion was dependent on the severity of the nuisance
activity in that case, which appellants view as more severe than their own activity, but
they cite nothing in Gallo v. Acuna supporting that suggestion. We reject appellants’
meritless claim that the words are vague in this case “because there is no background that
gives them contextual meaning.” Appellants also complain the “no intimidation” clause
does not say whether the “activity” must have been unlawful or by “active” members or
whether complaints must be made to a government agency, and the clause applies to all
active members even if they have never been suspected of intimidation. Appellants fail
to show that any of these points render the provision unconstitutional.
Appellants complain about the “no guns” clause, which restrains them from
“Anywhere in public view or any place accessible to the public, (1) possessing any gun,
ammunition, or illegal weapon as defined in Penal Code section 12020, (2) knowingly
remaining in the presence of anyone who is in possession of such gun, ammunition, or
dangerous weapon, or (3) knowingly remaining in the presence of such gun, ammunition
or dangerous weapon.” Appellants complain this clause applies even to those appellants
who have never had or used a gun illegally, and even when the gun is licensed or
“otherwise protected by law.” Appellants offer no analysis converting this gripe into a
meritorious constitutional claim.
Appellants assert that restrictions to “stay away from drugs” or “obey all laws”
simply reiterate the criminal law, rendering such provisions unnecessary.
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VII
Miscellany
Appellants’ brief, under a heading that the trial was fundamentally unfair, raise
other contentions, some of which we have already addressed. The remaining points have
no merit.
1. Appellants complain the trial court improperly refused to order incarcerated
defendants to be transported to court to testify, which supposedly prevented the defense
from rebutting plaintiff’s evidence and presenting affirmative defenses. They cite
authority that an indigent prisoner who is a defendant in a civil action threatening his
personal interests has a federal and state constitutional right, as a matter of due process
and equal protection, to meaningful access to the courts in order to present a defense.
(Payne v. Superior Court (1976) 17 Cal. 3d 908, 913-919.)
The appellate brief does not name names to show that any appellant was denied
the right to appear in court. Appellants again violate appellate rules by simply
incorporating by reference papers filed in the trial court. (Garrick, supra, 3 Cal.App.4th
at p. 334.) Again, we overlook the violation.
Meaningful access does not necessarily mean personal appearance, nor does it
mandate a particular remedy. (Payne v. Superior Court, supra, 17 Cal.3d at p. 923.) The
trial court has discretion which remedy to choose, including appointment of counsel for
the prisoner (when there is a bona fide threat to his personal or property interests and no
other feasible alternative exists), transfer of the prisoner to court, using depositions in lieu
of personal appearance, etc. (Id. at p. 925; Wantuch v. Davis (1995) 32 Cal. App. 4th 786,
792-794.) We will not overturn the trial court’s exercise of discretion absent a
miscarriage of justice. (Wantuch, at p. 794.)
In denying appellants’ motion for production of (appellants) Michael Morales and
Guillermo Rosales and petition for writ of habeas corpus to transport the prisoners to
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court, the trial court noted they were being represented by counsel in this trial, the
defense could have proceeded by depositions, Rosales had already invoked the Fifth
Amendment in written discovery, and the defense failed to persuade the court to exercise
discretion to order the prisoners produced in this civil case. Appellants mention none of
this in their brief but just argue that no one could testify as powerfully and persuasively
as the prisoners, as to what they mean by their identification as Broderick Boys, and their
clothing and tattoos.
Appellants fail to show grounds for reversal.
2. Appellants next claim the trial court displayed favoritism for plaintiff because
the court originally scheduled the trial to proceed every other week but at the conclusion
of plaintiff’s case ordered the defense to put on its case without benefit of “rest weeks.”
Appellants forfeit the point by failing to address the court’s fundamental power to control
litigation (Code Civ. Proc., § 128) and failing to cite any evidence whatsoever of
favoritism rather than reasonable case management of protracted litigation that ultimately
spanned five months.
3. Appellants argue the trial court denied them procedural due process by failing
to appoint counsel when defendants’ physical liberty was at stake (due to the curfew and
“do not associate” provisions of the injunction). We need not consider the point, because
appellants were all represented by counsel, and they fail to show they have standing to
raise this contention on behalf of others. Moreover, Iraheta v. Superior Court (1999)
70 Cal. App. 4th 1500, 1511-1515, held due process did not give alleged street gang
members a right to appointed counsel in an action for a gang injunction.
4. Appellants argue the trial court erroneously denied a motion to recuse the entire
Yolo County judicial branch from hearing the case. The defense theory was that
Broderick Boys’ criminal convictions in Yolo County must have poisoned all judges
against them. However, as appellants acknowledge, the motion was denied because it
was untimely and lacked a written verified statement as required by Code of Civil
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Procedure sections 170.3 and 170.4. Appellants offer no legal analysis to overcome the
defects; hence we need not consider the contention.
5. Appellants contend the trial court erred in denying a defense motion to move
the trial from the Yolo County courthouse to a courtroom in the City of West Sacramento
-- the community most directly affected by the nuisance activities. They assume this is
required by the Sixth Amendment to the United States Constitution, which says criminal
prosecutions are to be held in the state and district where the crime was committed. This
is not a criminal prosecution. Appellants champion the benefit of easy access for affected
citizens to attend trial, but they offer no evidence or legal analysis applicable here.
Appellants argue the trial court deprived them of a public trial by barring testifying
witnesses from the courtroom until after they testified. They offer no supporting
authority.
We conclude appellants fail to show grounds for reversal.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278.)
HULL , J.
We concur:
RAYE , P. J.
BUTZ , J.
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