In re Abraham R.
Filed 12/24/12 In
re Abraham R. CA4/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ABRAHAM R.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ABRAHAM R.,
Defendant and Appellant.
D060753
(Super. Ct. No. J229413)
APPEAL
from a judgment of the Superior Court of
County, Carlos O. Armour, Judge. Affirmed as modified.
I.
INTRODUCTION
Abraham
R. appeals from a disposition order
declaring him a ward of the juvenile court pursuant to Welfare and Institutions
Code section 602. Abraham argues that
the evidence is insufficient to establish his identity as one of the
perpetrators of the offenses charged, or, alternatively, that the evidence was
insufficient to prove that the conduct in which he engaged was gang related,
such that the court could have found him guilty of committing
gang enhancement allegation. Abraham
also argues that the probation condition that the court imposed pertaining to
his possession of weapons and ammunition failed to include an express knowledge
requirement, and must therefore be stricken or modified.
We
agree that the probation condition must be modified to include a scienter
element. We disagree with Abraham's
other contentions on appeal. We
therefore modify the trial court's probation order with respect to the
challenged probation condition, and otherwise affirm the judgment.
II.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
At
approximately 4:00 p.m. on May 16, 2011, Natalie Lohrey was
walking down the street in Escondido with her boyfriend, Brandon Phoenix, and a friend, Robert
Perry. As the group walked around the
corner of a building, they nearly ran into two Hispanic men. The men wore long, plain-colored shirts,
"Dickies" brand pants, and hats with the letter "D" on
them. Lohrey thought the two men looked
like "gangsters."
The
men in the hats asked the group, "Do you guys bang?" Perry responded, "No." The men then said, "D Boys, D Boys. Fuck weak shit." One of the men displayed a wooden bat, while
the other pulled out a machete. As the
men moved closer to Lohrey, Phoenix and Perry one of them asked, " 'Are you guys trying to get crazy
or what?' " Perry replied, "
'No, we don't bang, but if you want to get crazy, we can handle it.'
" Perry took a step toward the two
men. At that time, a black Nissan Altima
suddenly pulled up to the curb across the street. Four or five men, including Abraham, jumped
out of the car and headed toward Lohrey, Phoenix and Perry. The men appeared to be Hispanic, in their
early 20s, and were dressed "pretty much the same" as the two men who
initiated the confrontation. Abraham and
another man were carrying small wooden bats.
Perry
reached for his cell phone and began dialing a number. All of the men, including the first two, got
into the car and the car drove off.
Lohrey, Phoenix and Perry went to Lohrey's house, which was nearby. Someone had called the police, who arrived at
Lohrey's house within a matter of minutes.
Escondido
Police Department Gang Unit Officer Omar Mondragon was one of the officers who
responded to Lohrey's house. Mondragon
broadcasted a notice for officers to be on the lookout for a black Nissan
Altima.
Within
an hour, Officer Marco Fuentes noticed a black Nissan Altima in the parking lot
of an apartment complex located in territory claimed by a gang called
"Diablos." Officer Fuentes saw
Abraham and a group of six or seven young Hispanic men congregating a few
parking spaces away from the car.
Officer Fuentes recognized Abraham and knew his name. The car was registered to an individual with
the same last name as Abraham, at the same address where Abraham lived. Officer Fuentes detained the young men,
including Abraham, and radioed Officer Mondragon.
Officer
Mondragon was interviewing Lohrey when he received Officer Fuentes's radio
call. Mondragon and his partner took
Lohrey, Phoenix and Perry to the apartment complex where Fuentes was detaining
the group of men, in order to conduct a curbside lineup.
After
the curbside lineup,
name="_ftnref1" title="">[1] officers arrested Abraham and Felix Castaneda
and placed them in the back of a patrol car for between 10 and 15 minutes while
officers searched the Nissan Altima. The
patrol car was equipped with an audio recorder that recorded the conversation
between Abraham and Castaneda. The young
men "plann[ed] out what they were going to say [when] questioned by the
police." Abraham initially
suggested that they deny knowing one another.
However, they realized that this would not be plausible because they had
been arrested together. Abraham then
indicated that he would tell officers that he had been at home all day. As the young men watched the officers search
the car, Castaneda said, " 'They are probably looking for
fingerprints. I told you that's what
they would be doing.' " Abraham
responded, " 'Well, I didn't touch the car, so I'm okay.' " As the officers appeared to be concluding
their search, Abraham laughed and said, " 'They didn't find anything. That thing I took out is still under the
car.' "
Officer
Jay Norris of the Escondido Police Department Gang Unit testified as a gang
expert. As a Gang Enforcement Officer,
Norris came into contact with Escondido gang members on a daily basis and had
extensive experience with gangs. Norris
testified that there are two main criminal street gangs in Escondido—Westside
and Diablos. The two gangs fight over
territory in the city. Gang members will
confront people whom they encounter in their territory and challenge them by
asking questions like, " 'Where are you from,' " or, " 'Do you
bang?' " If the person does not
respond with what the gang member believes to be the proper gang name, the gang
member will often respond in a violent manner.
According to Norris, "[I]t could be as simple as a fight, or it
could be to the extreme[] [of] a homicide."
Gang
members want their gang to be feared because to them fear translates to
respect. Fear also discourages neighbors
and other citizens from reporting gang members to the police and/or testifying
against them. For this reason, gang
members will sometimes attack, rob, or even kill individuals who do not respond
properly to a gang challenge, even if the individual is not a member of a rival
gang. The escalation of violence works
to increase the status of both the gang, in general, as well as that of
particular gang members who engage in more violent acts. In addition, gang members know each other and
tend to back each other up, so if one gang member sees another member about to
get in a fight, the previously uninvolved gang member will join in the fight.
Officer
Norris explained that the Diablos tend to wear baggy "Dickies" brand
pants, baggy shirts, and long white socks.
He said that they also often wear some article of clothing with the
letter "D" on it. Diablos
members also often carry small bats as weapons and refer to themselves as
"D Boys."
Officer
Norris knew Abraham, and had met him "on occasion." Norris had investigated Abraham's "prior
contacts with police and the circumstances of those contacts." Abraham was not a documented member of the
Diablos gang as of May 16, 2011.
However, he had been contacted by law enforcement officers in Diablos
territory and in areas particularly known to be frequented by Diablos
members. In addition, Abraham had been
in "close association" with known Diablos members during some of
those contacts. Castaneda was an active
Diablos gang member who had previously been prosecuted for gang-related
crimes. On the day of this incident,
Castaneda was wearing a black-and-white checkered jacket and Abraham was
wearing black-and-white checkered shorts.
Officer
Norris believed that Abraham knew of the Diablos gang members' pattern of
criminal activity, that Abraham was an active gang member, and that he had
acted on behalf of and in association with the Diablos gang when he jumped out
of the car to aid the two Diablos gang members who accosted Lohrey and her
friends. In Norris's opinion, in jumping
out of the car to help the other Diablos members, Abraham was promoting the
gang and his own status within the gang.
The
parties stipulated that Diablos is a criminal
street gang as defined in Penal Code
of Diablos have engaged in a pattern of criminal activity; that among the
gang's primary activities are attempted murder, robbery, assault with a deadly
weapon, and vandalism; and that the gang has a common name or identifying sign
or symbol.
B.
The
San Diego County District Attorney filed a juvenile wardship petition (Welf.
& Inst. Code, § 602) against Abraham, alleging that Abraham was an active
participant in a criminal street gang (§ 186.22, subd. (a); count 1) and that
he had fought and challenged another person to fight in a public place (§ 415,
subd. (1); count 2). The petition
alleged that count 2 was committed in association with a criminal street gang
(§ 186.22, subd. (b)).
On
September 26, 2011, the juvenile court made true findings on counts 1 and 2, as
well as the allegation attached to count 2, and sustained the petition in its
entirety. On October 18, 2011, the court
declared Abraham a ward of the court, and placed him on probation in the
custody of his parents.
Abraham
filed a timely notice of appeal.
III.
DISCUSSION
A.
trial court's finding that Abraham was one of the perpetrators of the crime
against Lohrey, Phoenix and Perry
Abraham
contends that this court should reverse the trial court's findings against him
because the evidence is insufficient to support the finding that he was one of
the participants in the confrontation.
In determining
the sufficiency of the evidence to support a guilty verdict, "the relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt."
(Jackson v. Virginia (1979)
443 U.S. 307, 319 (Jackson).) "[T]he court must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt." (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
" 'Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.
[Citation.]' [Citation.] We ' " 'presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence.' " [Citation.]' [Citation.]" (People
v. Clark (2011) 52 Cal.4th 856, 943.)
Abraham
contends that the record does not disclose evidence that is reasonable,
credible and of solid value to establish that he was one of the persons who
arrived in the vehicle prepared to fight.
He acknowledges, however, that Lohrey identified him in court as one of
the people who got out of the car that day.
"Unless it describes facts or events that are physically impossible
or inherently improbable, the testimony of a single witness is sufficient to
support a conviction.
[Citation.]" (
585.) Moreover, "[i]dentification
of the defendant by a single eyewitness may be sufficient to prove the
defendant's identity as the perpetrator of a crime." (People
v. Boyer (2006) 38 Cal.4th 412, 480.)
Lohrey's testimony in this case, in which she identified Abraham as one
of the perpetrators despite admitting that she was scared to do so out of fear
of retaliation, was strong evidence of Abraham's role in the crimes charged.
Abraham
suggests that Lohrey's testimony at trial identifying him as one of the
perpetrators of the crime is simply not sufficient. He maintains that she did not identify him at
the curbside lineup. Abraham appears to
at the curbside lineup, based on what was perhaps inelegant examination by the
prosecutor in failing to directly ask Lohrey whether she had in fact identified
Abraham at the curbside lineup. However,
a reasonable reading of the testimony at trial, including that of Lohrey and
Officers Fuentes and Mondragon, indicates that Lohrey did indeed identify both
Abraham and Castaneda during the lineup.
For example, Officer Mondragon acknowledged that neither Perry nor Phoenix
was able to identify any of the men in the curbside lineup to a degree
sufficient to warrant any arrests.
However, Officer Fuentes testified that Abraham and Castaneda were
arrested after someone positively identified them. The only reasonable inference from this
testimony is that Lohrey positively identified Abraham prior to trial, since
there were three victims and neither of the other two was able to identify the
perpetrators from the lineup to a degree sufficient to warrant any
arrests. Lohrey's identification of
Abraham, both at trial and prior to trial, constitutes more than sufficient
evidence to support the trial court's findings that Abraham was one of the
young men who aided and abetted the other men who challenged Lohrey's group to
fight that day. Further, even if Lohrey
identified Abraham only at trial and not at the curbside lineup, that would
still be sufficient to support a true finding.
B.
trial court's true finding on the substantive gang offense alleged in count 1
and the gang enhancement allegation attached to count 2
Abraham
contends that the evidence is insufficient to support the trial court's true
finding that he committed the substantive offense of street terrorism under
section 186.22, subdivision (a), as well as the true finding with respect to
the gang enhancement allegation under section 186.22, subdivision (d). According to Abraham, there was no evidence
showing that he knew that the Diablos gang members regularly engage in criminal
behavior, or that he willfully promoted, furthered, or assisted his fellow gang
members' felonious conduct.
We
apply the same standards outlined in section III.A., ante, to Abraham's sufficiency of the evidence argument with
respect to the gang offense and the gang enhancement.
1. The
substantive offense
The trial court
found true the allegation that Abraham was an active participant in a criminal
street gang under subdivision (a) of section 186.22. That provision states in pertinent part: "Any person who actively participates in
any criminal street gang with knowledge that its members engage in or have
engaged in a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of that gang,
shall be punished by imprisonment in a county
jail . . . or . . . state
prison . . . ."
(§ 186.22, subd. (a).)
Abraham asserts
that the gang expert offered no "facts" in support of his opinion
that Abraham was affiliated with the Diablos gang sufficient to support the
conclusion that Abraham "actively participates" in that gang. The record belies Abraham's assertion. Although Abraham was not yet a
the incident, there was plenty of evidence from which a fact finder could
conclude that Abraham was indeed participating in the Diablos street gang at
that point in time. Abraham had been
contacted repeatedly in Diablos gang territory and at known gang hangouts. Many of these contacts occurred while Abraham
was in the company of, or in "close association" with, known gang
members. Officer Norris, the gang expert
who was very familiar with the Diablos gang in Escondido, had personally
"documented" Abraham as a member of the Diablos gang and believed him
to be a member associating with that gang at the time of the incident. Officer Fuentes also recognized Abraham and
knew his name. On the day of the
incident, Abraham was arrested with Castaneda, a known Diablos member, just after
he and Castaneda had armed themselves and taken part in a confrontation that
was initiated by two men wearing Diablos gang attire and who issued a gang
challenge. Abraham was dressed similarly
and was carrying a weapon of a type that members of that gang typically carry. Based on all of this evidence, it would be
reasonable to conclude that Abraham was an active participant of the Diablos
street gang.
Abraham also
contends that there is insufficient evidence that he knew that Diablos members
" 'engage[d] in or have engaged in a pattern of criminal gang
activity.' " Abraham complains
that there was no testimony that he was either generally or specifically
despite the fact that the parties stipulated that the Diablos gang members did
engage in a " 'pattern of criminal gang activity.' " However, it is reasonable to infer that since
Abraham was actively participating in the gang, he knew about the gang's
criminal activities. The events
underlying the charges in this case support this inference. Abraham, Castaneda, and other men appeared suddenly
and apparently unbidden at a gang confrontation that started when the first two
men challenged Lohrey's group. When it
appeared that at least one of the three victims might resist, Abraham and three
or four others materialized, armed and ready to fight. It appears that these men were nearby, ready
to become involved, and, when it appeared they were needed, they got out of the
car armed with weapons and headed straight for the confrontation. Based on these events, it is reasonable to
infer that Abraham and the other men with whom he arrived were members of the
gang and that they knew what their fellow gangsters were up to. Indeed, one could reasonably infer that they
were there, waiting to help out if necessary.
One could further infer that Abraham knew what was going on without
having to ask because he was very familiar with how the gang conducted this
type of criminal activity.
Finally, Abraham
challenges the sufficiency of the evidence that he intended to promote, further
or assist in felonious gang
conduct. He notes that challenging a
person to fight is "merely a misdemeanor offense," not a felony, and
contends that the only evidence on which the prosecution could have relied was
evidence of Abraham's involvement in the street confrontation. Although Abraham was charged with and found to
have committed only a misdemeanor offense, the evidence presented at his
hearing was sufficient to support a finding that he intended to promote or
assist in felonious conduct.
Specifically, the two gang members who challenged Lohrey and her friends
pulled out a machete and a bat and advanced toward the victims. The confrontation appears to have come to an
end only because Perry started to call for help on his cell phone. These facts are sufficient to constitute an
assault with a deadly weapon. Further,
even if an assault with a deadly weapon was not completed, all of these
circumstances are sufficient for a fact finder to reasonably conclude that when
Abraham jumped out of the car, armed with a bat, he intended to promote or
assist the two men in completing what was clearly a felony assault.
In sum, the
evidence is sufficient to support the juvenile court's determination that
Abraham was guilty of street terrorism as charged in count 1 of the petition.
2.
The trial court
found true the gang enhancement allegation associated with the offense charged
in count 2, challenging another person to a fight in a public place. Subdivision (d) of section 186.22 provides in
pertinent part: "Any person who is
convicted of a public offense punishable as a felony or a misdemeanor, which is
committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members, shall be punished by imprisonment in
the county jail . . . , or by imprisonment in the state
prison . . . ."
Subdivision (d) of section 186.22 is an alternative penalty provision
that is substantively similar to the gang enhancement provision under
subdivision (b) of section 186.22.
(Compare § 186.22, subd. (d) with subd. (b)(1).)
In order to
prove the enhancement, the prosecution must establish (1) that the defendant
committed the underlying offense "for the benefit of, at the direction of,
or in association with any criminal street gang," and (2) that the
defendant had "the specific intent to promote, further, or assist in any
criminal conduct by gang members."
(§ 186.22, subd. (d).)
Abraham first
asserts that there was no evidence that he committed the underlying offense for
the benefit of, at the direction of, or in association with the Diablos
gang. We disagree.
"Expert
opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the
conduct was 'committed for the benefit of . . . a[]
criminal street gang' . . . .
[Citations.]" (
63 (Albillar).) The gang expert testified that Diablos
members often engage in assaults with deadly weapons and street fighting as a
way to increase the gang's reputation and create fear in the community. He also was of the opinion that the
confrontation that occurred in this case was initiated for this very reason—to
increase the status of the gang as something to be feared. A reasonable fact finder could reach this
conclusion based on the other evidence, as well. The two men whom Lohrey and her friends
encountered initiated a confrontation without any prompting or provocation,
pulled out weapons and issued a gang challenge, all while wearing typical
Diablos gang clothing. When at least one
of the three intended victims indicated that he would not retreat from a fight,
another group of assailants appeared with weapons in their hands, and headed
straight for the victims. This was
clearly a coordinated, targeted attack, and was unquestionably gang
related. Based on these events, one
could reasonably infer that all of the perpetrators undertook this attack, at a
minimum, "in association" with the Diablos gang, and that they
engaged in this confrontation "for the benefit" of the gang.
Abraham next
challenges the sufficiency of the evidence that he specifically intended to
promote, further, or assist in criminal conduct by Diablos gang members. "[I]f substantial evidence establishes
that the defendant intended to and did commit the charged [offense] with known
members of a gang, the jury may fairly infer that the defendant had the
specific intent to promote, further, or assist criminal conduct by those gang
members." (Albillar, supra, 51
Cal.4th at p. 68.) There was ample
evidence from which a fact finder could reasonably infer that the two men who
initially accosted Lohrey's group were members of the Diablos gang. The two men were armed, were wearing Diablos
gang colors, and made gang-related statements essentially identifying
themselves as Diablos members. In
addition, Abraham acted in concert with Castaneda, a known Diablos member, in
this unprovoked armed confrontation. One
can infer from these circumstances that Abraham had the specific intent to
promote or assist Diablos gang members in criminal conduct by participating in
the confrontation that day. Substantial
evidence therefore supports the trial court's finding that the second prong of
the gang enhancement allegation was met.
3. The
gang registration order is valid
"Section
186.30 provides that 'any person convicted in a criminal court or who has had a
petition sustained in a juvenile court' of either participating in a
section 186.22, subdivision (a) or a 'crime that the court finds is gang
related,' or where a gang enhancement pursuant to section 186.22, subdivision
(b) has been found to be true, shall 'register' with the local law enforcement
agency as a criminal street gang member."
(People v. Martinez (2004) 116
Cal.App.4th 753, 758-759.)
Abraham argues
that the trial court's order that he register as a criminal street gang member
should be reversed for lack of sufficient evidence to support a finding that he
met the requirements for imposing such an order. Because we have concluded that the evidence
is sufficient to support the trial court's true findings that Abraham committed
the crime of active participation in a criminal street gang (§ 186.22, subd.
(a)) and that he committed the crime of challenging a person to fight in
association with a criminal street gang, with the specific intent to promote, further
or assist Diablos members (§ 186.22, subd. (d)), the trial court's decision to
impose the gang registration order was valid.
C.
from possessing weapons should
be modified
Abraham
contends that his probation condition relating to weapons and firearms must be
modified to include a knowledge requirement.
The People concede that a scienter requirement is necessary, but urge us
to adopt the approach of the Third District and "construe every probation
condition proscribing a probationer's presence, possession, association, or
similar action to require the action be undertaken knowingly." (People
v. Patel (2011) 196 Cal.App.4th 956, 960-961.)
Rather than
declaring that a knowledge requirement shall be read into all probation
conditions, we choose instead to modify the challenged probation condition in
this case. We reiterate that the
superior court should revise its standard probation conditions form to meet
constitutional requirements.
IV.
DISPOSITION
The
probation condition stating that "[t]he minor shall not use, possess,
transport, sell, or have in or under his/her control any firearm, replica,
ammunition or other weapon, including a knife, any explosive or any item
intended for use as a weapon, including hunting rifles or shotguns" is
modified to read: "The minor shall
not knowingly use, possess, transport, sell, or have in or under his/her
control any firearm, replica, ammunition or other weapon, including a knife,
any explosive, or any item intended for use as a weapon, including hunting
rifles or shotguns." The trial
court is directed to forward a copy of the corrected order to the probation
authorities. As so modified, the
judgment is affirmed.
AARON, J.
WE CONCUR:
BENKE,
Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] The trial court sustained defense counsel's objection to
Officer Fuentes's response to the prosecutor's question regarding what he did
after conducting the curbside lineup because Fuentes had started to state which
of the young men had been identified during the curbside lineup. As a result, Fuentes did not testify about
Abraham's identification at the curbside lineup. However, at the adjudication hearing, Lohrey
testified that Abraham was one of the men who had gotten out of the car on the
day of the incident.
name="_ftn2" title="">[2] Further statutory references are to the Penal Code unless
otherwise indicated.
