In re A.D.
Filed 3/7/13 In re A.D. CA1/5
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
Juvenile Court Law.
and Respondent,
and Appellant.
A131450
(Contra Costa County
Super. Ct. No. J0901539)
A.D.
(appellant), born in August 1993, appeals the juvenile court’s jurisdictional
and dispositional orders. The case
involves an incident in which appellant fired a firearm at a car occupied by
five other minors. Among other things,
appellant contends that, because there was no substantial evidence he committed
the charged offenses in concert with another gang member, there was
juvenile court’s order sustaining a charge of active participation in a
criminal street gang (Pen. Code, § 186.22, subd. (a))
and gang sentencing enhancements (§ 186.22, subd. (b)(1)) attached to six
counts. Following the Supreme Court’s
recent decision in People v. Rodriguez
(2012) 55 Cal.4th 1125 (Rodriguez),
we conclude the evidence was insufficient to support the gang participation
charge but sufficient to support the sentencing enhancements. We reject appellant’s other claims.
Procedural Background
A
January 2010 supplemental petition under section 602 of the Welfare and
Institutions Code, filed in
County Superior Court, alleged that appellant, already a ward of the court,
committed the following offenses: five counts of assault with a firearm (§ 245,
subd. (a)(2); counts one through five) involving personal use of a firearm (§
12022.5, subd. (a)(1)) for the benefit of a
(b)(1)), each count corresponding to a different victim; one count of active
participation in a criminal street gang (§ 186.22, subd. (a); count six); and
one count of shooting at an occupied motor vehicle (§ 246; count seven) for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
On
November 24, 2010, the juvenile court sustained all allegations of the petition
after a contested jurisdictional hearing.
In January 2011, the court continued appellant’s juvenile wardship and
set the maximum term of confinement at eight years.
This
appeal followed.
Factual Background
On
November 12, 2009, M.N., a student at Antioch High School, got a ride home from
school with L.F. Also in the car, a
green Honda Civic, were R.D., J.R., and A.V.
After leaving the school, they encountered appellant and an unidentified
companion and got into an argument; L.F. was in the driver’s seat of his car
and appellant and his companion were walking on the other side of the
street. Appellant’s companion produced a
machete and used it to threaten L.F.
L.F. began to drive away, and appellant removed a gun from his waist
area.
M.N.
saw appellant run towards the car with the gun, ducked, and heard two
gunshots. Before the shooting, J.R. saw
appellant make a hand movement by placing his four fingers sideways and tucking
his thumb in his palm, indicating the number four. Appellant told L.F., “let’s go to 14th
[Street]. And there we’ll kick some
ass.†J.R. saw appellant draw a
gun. J.R. ducked and he heard two shots
as L.F. drove the car away.
At
2:56 p.m. on November 12, 2009, Antioch Police Officer Ryan Andelin was parked
in a patrol car when he heard two gunshots.
He then saw a green Honda Civic speed by his location. Officer Andelin drove up behind the Honda,
and the Honda pulled over. The front
passenger exited the Honda and told the officer someone had shot at the
car. The officer could see bullet holes
in the rear left window and the back of the car. Officer Andelin searched all of the occupants
of the car but found no weapons.
Later
that day, Officer Andelin searched appellant’s bedroom. He found a white piece of paper with the word
“Norte†written twice in red and a rum bottle with the words “Norte XIV†marked
in red. Antioch Police Detective James
Stenger, an expert on gangs, testified he believed appellant was a Norteño gang
member. He based his opinion on a four
dots tattoo on appellant’s hand, appellant’s “Norteño-specific haircut,†the
hand sign appellant flashed before the shooting, appellant’s reference to 14th
Street, the Norteño symbols found in appellant’s bedroom, appellant’s frequent
association with Norteño gang members, and information that appellant had
relatives who were Norteño gang members.
Discussion
I.
to the Competency Determination
Appellant
contends the juvenile court made several reversible errors in relation to the
determination of his competency to stand
trial. He contends he was
constitutionally entitled to appointment of a neuropsychologist, the trial
court abused its discretion in concluding the appointed psychologist was
qualified, and the determination that appellant was competent is not supported
by substantial error and based on an incorrect legal standard.
>
A. Background
On July 12, 2010, counsel for
appellant expressed doubt about appellant’s competency to assist in his defense
due to information counsel had received regarding an injury suffered by
appellant in December 2003. In
particular, counsel informed the juvenile court that appellant was struck in
the forehead with a bat on that occasion, and appellant informed a police
officer that he suffered from headaches as a result of the injury. Counsel indicated his interactions with
appellant also underlay his request, although he did not provide any specific
information. Counsel concluded, “I do
believe that there’s enough information here that should lead us
. . . to appoint a neuropsychologist to perform the necessary tests
to determine whether he is competent to proceed in the jurisdictional
hearing.†The juvenile court suspended
proceedings and ordered the appointment of an expert to evaluate appellant’s
competency. After counsel reviewed a
list of experts, the court appointed psychologist Dr. Paul Good to evaluate
appellant and provide a report.
On
August 27, 2010, Dr. Good submitted his report.
The doctor reported that appellant conversed appropriately and gave no
indication of severe mental illness or gross cognitive deficits. Appellant’s “thought process was clear,
coherent and goal directed.†Appellant
was “engrossed†in his case and the testing showed he demonstrated an awareness
and adequate understanding of the proceedings.
The doctor commented, “Whatever cognitive impairment he may have, they
do not appear to be of such proportion as to be grossly interfering with his
thinking on the issues.†The doctor
concluded that appellant “is competent to be adjudicated at the present time.â€
On
September 17, 2010, appellant moved for the appointment of a neuropsychologist,
to “conduct[ ] necessary psychological evaluations and assessments, and
testify, if necessary, at the competency hearing or other proceedings in this
case.†Counsel submitted a declaration
in support of the motion. The
declaration relayed information provided by Dr. Patricia Weiss, a
neuropsychologist, that the type of head injury suffered by appellant “may
result in significant long-term damage, including, but not limited to,
[appellant’s] ability to exercise judgment, engage in rational thinking,
evaluate cause and effect, and develop normally, which would comprise overall
functioning.†Counsel asserted that
appellant “has struggled in structured school environments since his head
injury†and “experiences migraines on [a] regular basis that he attributes to
his head injury.†On October 1, it was
agreed that the juvenile court would rule on the motion after Dr. Good had
testified at appellant’s competency hearing.
On
November 15, 2010, the date of the competency hearing, appellant moved “for
reconsideration [of] appointment of [a] qualified expert.â€
from appellant’s counsel that repeated many of the averments in his September
17 declaration. Regarding the 2003
injury, the declaration asserted that appellant “received no treatment for his
head injury†and that he stayed home from school for two months.
At
the competency hearing, Dr. Good testified he is a clinical and forensic
psychologist, but not a neuropsychologist.
He does not do neurological testing.
For 15-20 years he has been on the court panel of psychologists and
psychiatrists in six Bay Area counties.
He has conducted 700-1,000 competency evaluations and testified
regarding competency 40-50 times, 5-10 of which were juvenile cases. He has not testified regarding traumatic
brain injury, although he has worked on cases involving such injury; he could
not recall whether any of those were juvenile cases. He had specialized training in the late 1990s
regarding juvenile competency and he keeps abreast of published works on
juvenile competency issues. He was
familiar with the published work suggesting that “there are developmental
immaturities that can interfere with a juvenile’s understanding of competency.†He also pointed out that he has had a “lot
of experience with adolescence,†in both forensic and clinical contexts. He was not familiar with a specific test to
assess juvenile competency, but he did not think his opinion would be any
different had he used such a test. He
stated, “if you consider [appellant] as an adult, he would have been competent
without any shadow of a doubt in my mind.â€
Dr. Good did not keep abreast of developments in California case law on
competency, but he was familiar with the standard of Dusky v. United States (1960) 362 U.S. 402 (Dusky) (see part I(D), post).
Dr.
Good testified that the tests he administered in evaluating appellant for
competency were “not developed to identify a neurological deficit. However, if a person has a deficit that
impairs their competence, then I would pick it up in terms of the -- the data
showing incompetence on a particular answer.â€
Dr. Good reviewed the medical report describing appellant’s injury to
the head from a bat. From the
description of the injury in the report, it did not appear likely appellant had
suffered neurological injury.
The
juvenile court deemed Dr. Good qualified as an expert in the evaluation of
competency. Dr. Good testified that
appellant is competent. In particular,
appellant has the ability to consult with counsel and assist in his defense,
and he has a rational understanding of the proceedings and the nature of the
charges against him. In fact, Dr. Good
testified appellant is “more competent than many adults that I have found
competent.†Dr. Good did not see any
signs of developmental immaturity that would interfere with his
competence. Regarding the possibility of
neurological injury, he testified appellant’s counsel did not provide him
anything that suggested there was such injury, and even if there were such
injury it did not interfere with appellant’s competence.
The
juvenile court denied the motion for reconsideration regarding appointment of a
neuropsychologist. The court found
appellant was competent based on Dr. Good’s undisputed testimony. Among other things, the court stated, “I
think Dr. Good’s testimony . . . was quite clear -- that if there was
some neurological damage . . . then that damage would have shown up
somehow in his assessment and there was no evidence that there was such damage
that would impair his competence. [¶]
And so I think that Dr. Good did take into account assessing for neurological
problems that might impair [appellant’s] competency, but his testimony is that
he found none.â€
>
B. Appellant
Did Not Have a Right To Appointment of a Neuropsychologist
Appellant
contends he was constitutionally entitled to appointment of a neuropsychologist
to determine his competency. His claim
is based on two established constitutional rights.
First,
the criminal trial of an incompetent defendant violates due process. (Medina
v. California (1992) 505 U.S. 437, 453.)
“Similarly, a child subject to delinquency proceedings has a due process
right to a competency hearing.†(
Cal.App.4th 462, 468 (Christopher F.);
see also Timothy J. v. Superior Court
(2007) 150 Cal.App.4th 847, 857 (Timothy
J.).)
Second,
“[a] criminal defendant has the due process right to the assistance of expert
witnesses, including the right to consult with a psychiatrist or psychologist,
if necessary, to prepare his defense.
[Citation.] The Sixth and
Fourteenth Amendments to the United States Constitution also guarantee a
defendant’s right to present the testimony of these expert witnesses at
trial. [Citation.]†(People
v. San Nicolas (2004) 34 Cal.4th 614, 661-662.) That right is rooted in the proposition that
“a criminal trial is fundamentally unfair if the State proceeds against an
indigent defendant without making certain that he has access to the raw materials
integral to the building of an effective defense.†(Ake v.
Oklahoma (1985) 470 U.S. 68, 77.)
Thus, the United States Supreme Court “has often reaffirmed that
fundamental fairness entitles indigent defendants to ‘an adequate opportunity
to present their claims fairly within the adversary system,’ [citation]. To implement this principle, [the Court has]
focused on identifying the ‘basic tools of an adequate defense or appeal,’
[citation], and [has] required that such tools be provided to those defendants
who cannot afford to pay for them.†(
The right to the assistance of a psychiatric expert applies equally in
California juvenile delinquency proceedings.
(Tyrone B. v. Superior Court
(2008) 164 Cal.App.4th 227, 231 (Tyrone
B.).)
Applied
in the juvenile delinquency context, those two rights—to a competency
determination and to the assistance of a psychiatric expert where
necessary—require the appointment of a psychiatric expert to assess a minor’s
competency where it is in doubt. (
“ ‘ “Counsel cannot effectively represent a defendant who is unable to
understand the proceedings or to rationally assist him.†[Citations.]’ [Citation.]â€
(Ibid.)
But
appellant goes further. He contends his
constitutional right to the assistance of a psychiatric expert to determine
competency obligated the trial court to appoint a neuropsychologist to assess his competency. Appellant’s authorities do not support his
argument. The most pertinent case cited
by appellant, Doe v. Superior Court
(1995) 39 Cal.App.4th 538 (Doe),
disapproved on another ground in James G.
v. Superior Court (2000) 80 Cal.App.4th 275, 283-284, does not suggest that
a defendant has the right to determine the specific qualifications of appointed
experts. In Doe, a death penalty case, the defendant sought appointment of an
expert on Battered Woman Syndrome (BWS) and Post Traumatic Stress Disorder
(PTSD). (Doe, supra, 39
Cal.App.4th at p. 541.) The Court of
Appeal held that, where the defense counsel “presented facts sufficient to
demonstrate [defendant’s] need for a psychiatrist or psychologist with
expertise in the fields of BWS and PTSD,†the defendant’s constitutional right
to “ ‘access to a competent
psychiatrist’ †who “ ‘will conduct an appropriate
examination and assist in evaluation, preparation, and presentation of the
defense,’ †required the trial court to appoint an expert with some expertise
in those areas, even if such an expert could not be found on the court’s
panel. (Id. at pp. 543, 546, quoting Ake
v. Oklahoma, supra, 470 U.S. at
p. 83.)
In
the present case, appellant was entitled to an expert regarding competency, and
the trial court found that Dr. Good had the requisite expertise. (Cf. Doe,
supra, 39 Cal.App.4th at p. 546 [no
evidence showed whether any panel experts had experience with BWS and/or
PTSD].) Although the record shows that
appellant suffered a serious head injury as a child, unlike the defendant in
neurological testing was necessary to the competency determination. His motion for appointment of a
neuropsychologist was supported only by a declaration from his counsel
including hearsay statements about what Dr. Weiss told counsel. As described in the declaration, Dr. Weiss’
hearsay opinion that appellant’s injury could affect his competency was not
based on any current behavior by appellant suggestive of neurological
damage. Defense counsel’s declaration
did not indicate that appellant had demonstrated any difficulty in assisting in
the defense. (Cf. Tyrone B., supra, 164
Cal.App.4th at p. 230 [“Counsel explained that petitioner did not have a
‘complete or even near complete grasp’ of court processes, participants, or
potential ramifications.â€].) Appellant
did not show that any neurological problems resulting from a head injury would
examination conducted by a psychologist not specialized in neurology.
Moreover,
before denying the request for appointment of Dr. Weiss, the juvenile court
heard the testimony of Dr. Good on the issue of competency. Dr. Good testified appellant was competent
with a significant degree of certainty.
Also, although he admitted his assessment was not designed to identify
neurological deficits, he testified that if any such deficits existed and
impaired appellant’s competency, he would have seen the impact of such deficits
in his examination.
In
essence, appellant contends he was entitled to a neuropsychologist to assess his competency simply because he
suffered a significant head injury seven years earlier, which hypothetically
could affect competency, regardless of whether there is any present indication
he is not competent to assist in his defense.
We disagree. Absent a sufficient
showing of circumstances making clear the need for a neurological examination,
the juvenile court did not err in failing to appoint a neurological
psychologist to assess appellant’s competency.
(See Ake v. Oklahoma,
numerous circumstances that made it “clear†that the defendant’s mental state “was
a substantial factor in his defenseâ€].)
Appellant
does not have a “constitutional right to choose a psychiatrist of his personal
liking[.]†(Ake v. Oklahoma, supra,
470 U.S. at p. 83.) Instead, he has the
right to access an expert who is “competent†to address the relevant
psychological question at issue, in this case his competency. (Ibid.) Appellant has not shown, in the circumstances
of this case, he was constitutionally entitled to the assistance of a
neuropsychologist to address the issue of competency.
C. The
Juvenile Court Did Not Err in Finding Dr. Good Qualified
Appellant
contends that, even if he was not entitled to appointment of a
neuropsychologist, the juvenile court abused its discretion in concluding that
Dr. Good was qualified to render an expert opinion regarding juvenile
competency. In support of his argument,
appellant asserts there have been major changes in California law governing
juvenile competency resulting from “advances in scientific understanding of
development of the human brain during adolescence.†He argues Dr. Good was not qualified to
render an opinion on competency that took into consideration those
developments.
We
disagree. “A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training,
or education sufficient to qualify him as an expert on the subject to which his
testimony relates.†(Evid. Code, § 720,
subd. (a); People v. Catlin (2001) 26
Cal.4th 81, 131.) The trial court is
given considerable latitude in determining the qualifications of an expert; its
ruling will not be disturbed on appeal unless an abuse of discretion is
shown. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) A reviewing court
may find error only if the witness “ ‘clearly
lacks qualification as an expert[.]’ â€
(People v. Hogan (1982) 31
Cal.3d 815, 852, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836.)
As
detailed previously, Dr. Good has been a panel psychologist for 15-20 years,
conducted 700-1,000 competency evaluations, and testified regarding competency
40-50 times. He has received specialized
training on juvenile competency, has kept abreast of developments in juvenile
competency, and is experienced in working with adolescents. That Dr. Good could have demonstrated greater
familiarity with the recent developments in research does not mean he was
clearly unqualified to render an opinion on appellant’s competency.
It
is not significant that Dr. Good was not familiar with three California Court
of Appeal decisions inquired about by appellant’s counsel during the competency
hearing, because those cases did not change the Dusky standard (see part I(D), post). Moreover, Dr. Good testified he did not see
any signs of developmental immaturity that would interfere with appellant’s
competency, which was the matter addressed in one of those decisions,
847. Another decision,
held only that the juvenile court erred in failing to appoint an expert after
the minor’s counsel expressed a doubt as to the minor’s competency; the
juvenile court here did appoint an
expert to assess competency. The final
decision, In re Ricky S. (2008) 166
Cal.App.4th 232, 236 (Ricky S.), held
the juvenile court erred in concluding that the minor was competent because he
could gain an adequate understanding “ ‘over time.’ †In this case, Dr. Good testified that
appellant had a present understanding of the charges and proceedings. Notably, all three decisions applied the
competency; Dr. Good demonstrated familiarity with that standard. (Timothy
J., supra, 150 Cal.App.4th at p.
857; Tyrone B., supra, 164 Cal.App.4th at pp. 230-231; Ricky S., supra, 166
Cal.App.4th at p. 234.)
The
juvenile court did not abuse its discretion in finding Dr. Good qualified.
D. Substantial
Evidence Supports the Juvenile Court’s Competency Finding
Finally,
appellant contends that the juvenile court’s order finding appellant competent
was not supported by substantial evidence.
The claim is without merit.
The
standard for determining a defendant’s competency to stand trial was set forth
in Dusky, supra, 362 U.S. 402, and the same standard applies in juvenile
delinquency proceedings. “Under that
standard, the inquiry is whether the defendant ‘ “has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual understanding of
the proceedings against him.†’ †(
p. 402.) The test “does not define
incompetency in terms of mental illness or disability . . . The question is cognitive, whether the
defendant’s mental condition is such that he or she lacks that degree of
rationality required by law [citation] so as to have ‘the mental acuity to see,
hear and digest the evidence, and the ability to communicate with counsel in
helping prepare an effective defense.’
[Citation.]†(
The juvenile court’s competency determination is reviewed for
substantial evidence. (
at p. 471; In re Alejandro G. (2012)
205 Cal.App.4th 472, 480 (Alejandro G.).) Substantial evidence is evidence that
“inspires confidence and is of ‘ solid value.’ †(People
v. Marshall (1997) 15 Cal.4th 1, 34.)
It is not clear which party bears the burden of proof of competency (
Cal.App.4th at pp. 481-482); for the purposes of this appeal we assume
respondent bore the burden.
Appellant
contends Dr. Good’s report and testimony do not reflect that he “inquired into
or analyzed [appellant’s] cognitive development with an eye to his ability to
rationally assist his counsel.†But the
report and testimony did address
cognitive development. For example, the
report stated that appellant’s “thought process was clear, coherent and goal
directed. His thought content was
appropriate to the situation and contained no preoccupations, obsessions,
compulsions, delusions or exaggerated concerns.
[Appellant’s] perceptions contained no abnormalities such as auditory or
visual hallucinations. His immediate
memory was good and he recalled remote events easily. He displayed a concrete ability for abstract
thought.†In his testimony, Dr. Good
specifically stated he did not see
any signs of developmental immaturity that would interfere with appellant’s
competency. There is no evidence to the
contrary, showing that appellant has defects in his cognitive development that
affect his competency. Appellant also disputes Dr. Good’s
statement that any neurological damage would have manifested itself in his
testing of appellant. To wit, Dr. Good
explained that “if a person has a deficit that impairs their competence, then I
would pick it up in terms of the . . . data showing incompetence on a
particular answer.†Even if Dr. Good was
not qualified to identify any
neurological defects, he was qualified to determine whether appellant was
incompetent, regardless of the cause
of any incompetency. As the doctor
explained, “you’re competent or not regardless of why[.]†Appellate counsel’s skepticism is not
evidence that can undermine Dr. Good’s testimony.
As
explained above, Dr. Good’s report and testimony showed that appellant was
competent under the Dusky
standard. Dr. Good’s evaluation showed
that appellant had sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding, and he had a rational as well as
factual understanding of the proceedings against him. (Dusky,
supra, 362 U.S. at p. 402;
In fact, Dr. Good testified appellant was more competent than many adults he had concluded met the competency
standard, and the doctor related a story of how appellant had conducted his own
legal research to determine the maximum possible sentence applicable to the
charges. This was not a close case on
competency, and the record is devoid of any
evidence showing that appellant is incompetent.
Instead, appellant’s claim on appeal depends entirely on speculation
that his childhood injury caused a neurological defect that rendered him
incompetent in a manner entirely invisible to the competency assessments
employed by Dr. Good. We reject that
speculation and conclude substantial evidence supports the trial court’s
finding that appellant is competent.
>
II.
and Sentencing Enhancements
Appellant
next challenges the sufficiency of the evidence to support the juvenile court’s
findings on the count 6 charge of active participation in a criminal street
gang (§ 186.22, subd. (a); hereafter § 186.22(a)) and on the gang sentencing
enhancements (§ 186.22, subd. (b)(1); hereafter § 186.22(b)(1)) attached to
counts one through five and seven. He
contends that, in the circumstances of this case, the charge and enhancements
could only be sustained if he committed the charged offenses in concert with
another Norteño gang member, and there was insufficient evidence his companion
was a gang member.
title="">[6]
“We
review claims of insufficient evidence by examining the entire record in the
light most favorable to the judgment below.
[Citation.] We review to determine
if substantial evidence exists for a reasonable trier of fact to find the
counts against the minor true beyond a reasonable doubt. [Citation.]
Substantial evidence must be reasonable, credible, and of solid
value. [Citation.] We also presume the existence of every fact
the lower court could reasonably deduce from the evidence in support of its
judgment. [Citation.]†(In re
Frank S. (2006) 141 Cal.App.4th 1192, 1196.)
A.
Legal
Background to Sections 186.22(a) and (b)(1)
Section
186.22 is part of the California Street Terrorism Enforcement and Prevention
Act, also known as the STEP Act. (§
186.20.) Section 186.22 contains two
relevant provisions, a substantive offense in subdivision (a) and a sentence
enhancement in subdivision (b)(1).
Section 186.22(a) 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 as a felony or misdemeanor. Section 186.22(b)(1) provides, with
exceptions not relevant here, that “any person who is convicted of a felony
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 an enhanced
penalty consecutive to the punishment for the felony.
B. Under
Rodriguez, Section 186.22(a) Required
Proof of Action in Concert
The
substantive offense defined in section 186.22(a) has three elements: [1]
“Active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive. . . . [2] ‘[K]nowledge
that [the gang’s] members engage in or have engaged in a pattern of criminal
gang activity,’ and [3] . . . that the person ‘willfully promotes,
furthers, or assists in any felonious criminal conduct by members of that
gang.’ (§ 186.22(a).)†(
523.) In People v. Castenada (2000) 23 Cal.4th 743 (Castenada), the Supreme Court considered the meaning of the phrase
“actively participates†in section 186.22(a).
The court said the Legislature was cognizant of the holding in
203 (Scales) “that ‘mere association
with a group cannot be punished unless there is proof that the defendant knows
of and intends to further its illegal aims.’ â€
(Castaneda,
required in section 186.22(a) that a defendant not only ‘actively participates’
in a criminal street gang . . ., but also that the defendant does so
with ‘knowledge that [the gang’s] members engage in or have engaged in a
pattern of criminal gang activity,’ and that the defendant ‘willfully promotes,
furthers, or assists in any felonious criminal
conduct by members of that gang.’
These statutory elements necessary to prove a violation of section
186.22(a) exceed the due process requirement of personal guilt that the United
States Supreme Court articulated in Scales[.]†(Castenada,
supra, 23 Cal.4th at p. 749.)
In
Rodriguez, the Supreme Court
considered whether a gang member who acts alone in committing a felony violates
section 186.22(a). (Rodriguez, supra, 55
Cal.4th at p. 1128.) The Court overruled
two Court of Appeal decisions, People v.
Salcido (2007) 149 Cal.App.4th 356 and People
v. Sanchez (2009) 179 Cal.App.4th 1297, that held that a gang member acting
alone could violate section 186.22(a) by promoting or furthering his own
felonious conduct. (Rodriguez, supra, 55
Cal.4th at p. 1137 & fn. 8.)
Instead, the Supreme Court focused on the Legislature’s use of the
plural noun “members,†reasoning:
“Section 186.22(a) speaks of ‘criminal conduct by members of that gang.’
(Italics added.) ‘[M]embers’ is a
plural noun. The words ‘promotes,
furthers, or assists’ are the verbs describing the defendant’s acts, which must
be performed willfully. The phrase ‘any
felonious criminal conduct’ is the direct object of these verbs. The prepositional phrase ‘by members of that
gang’ indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help
criminal conduct. The plain meaning of
section 186.22(a) requires that felonious criminal conduct be committed by at
least two gang members, one of whom can include the defendant if he is a gang
member. (See § 186.22, subd. (i).)†(Rodriguez,
supra, 55 Cal.4th at p. 1132.)
Although
the Supreme Court stated the statutory language was plain, it also considered
the Legislature’s intent. Referencing
the due process concerns discussed in Castaneda
and Scales, the court stated, in
“requiring that a person commit an underlying felony with at least one other
gang member,†the Legislature “sought to avoid punishing mere gang
membership[.]†(Rodriguez, supra, 55
Cal.4th at p. 1134.)
established . . . that one need not have the specific intent to
promote, further, or benefit the gang to violate section 186.22(a), nor must
one commit a gang-related felony. . . . [I]n considering the
STEP Act, ‘the Legislature was careful to observe that “mere membership [in a
gang] is not punishable under the bill.
The United States Supreme Court has held that mere association with a
group cannot be punished unless there is proof that the defendant knows of and
intends to further its illegal aims.
[Citation.] This bill imposes
sanctions on active participation in the gang only when the defendant knows
about and specifically intends to further the criminal activity; or where he
knows of the criminal activity and willfully promotes, furthers, or assists
it.†’ [Citation.] The Legislature thus recognized the
constitutional prohibition against punishing mere gang membership, and its use
of the plural ‘members’ in section 186.22(a) reflected the Legislature’s
attempt to provide a nexus between the felonious conduct and gang activity that
avoided the concerns raised in Scales. [Citation.]
The Attorney General’s interpretation that a gang member may satisfy the
statute simply by committing a felony alone reads out of the statute the nexus
between defendant’s conduct and gang activity that the Legislature put in the
statute by requiring one act with another gang member.†(Rodriguez,
supra, 55 Cal.4th at p. 1135.)
In
the present case there was no substantial evidence appellant’s companion was a
Norteño gang member. There was no
evidence he wore any gang indicia, flashed gang signs, or made comments
including gang references. Even if the
juvenile court could reasonably infer the companion was aware appellant was a
member of the Norteños based on comments made by appellant and the gang sign
flashed by appellant, that did not provide an adequate basis for the court to
infer appellant’s companion was a gang member,
rather than merely a friend of appellant’s or a nonmember affiliate of the
gang. (See In re Daniel C. (2011) 195 Cal.App.4th 1350, 1362 [referring to
finding that minor was a gang “affiliate†rather than a “gang memberâ€].) Gang expert Stenger’s testimony that a police
detective told him a certain Norteño gang member “was identified as possibly
being the subject with the machete†also did not constitute substantial
evidence. Although the trial court
qualified Stenger as an expert on criminal gang activity (see Evid. Code, § 720,
subd. (a)), that did not encompass rendering an opinion on whether appellant’s
companion was a particular individual.
In any event, Stenger did not render any such opinion, and the
uncertain, unexplained, and uncorroborated hearsay related in his testimony did
not constitute substantial evidence.
(See In re Lucero L. (2000) 22
Cal.4th 1227, 1244-1245 [“Except in those instances recognized by statute where
the reliability of hearsay is established, ‘hearsay evidence alone “is
insufficient to satisfy the requirement of due process of law, and mere
uncorroborated hearsay does not constitute substantial evidence. [Citation.]†’ [Citations.]â€].)
Because
there was no substantial evidence appellant’s companion was a gang member, we
must reverse the juvenile court’s finding sustaining the gang participation
charge.
C.
Section
186.22(b)(1) Did Not Require Proof of Action in Concert
Section
186.22(b)(1) contains two prongs: proof that a felony was committed (1) “for
the benefit of, at the direction of, or in association with any criminal street
gang,†and (2) “with the specific intent to promote, further, or assist in any
criminal conduct by gang members[.]†(§
186.22(b)(1); see also People v. Albillar
(2010) 51 Cal.4th 47, 59.) Appellant
does not dispute there is sufficient evidence on the first prong, that the
assault was committed for the benefit of the Norteños. Instead, he contends there is insufficient
evidence regarding the intent prong which, he argues, requires a showing he
promoted, furthered, or assisted criminal conduct by another gang member. Although Rodriguez
was not directly confronted with the question of whether section 186.22(b)(1)
requires a showing that the defendant acted in concert with other gang members,
the Supreme Court made it clear that no such showing is necessary to imposition
of the sentencing enhancement.
participation offense and the gang sentencing enhancement “strike at different
things.†(Rodriguez, supra, 55
Cal.4th at p. 1138.) In particular,
section 186.22(b)(1) punishes felonies committed with the specific intent to
benefit the gang, while section 186.22(a) punishes action in concert between
gang members regardless of whether the felony was gang-related. (Rodriguez,
supra, 55 Cal.4th at p. 1138.) In rejecting a contention it would be absurd
to exempt a lone actor gang member from the coverage of section 186.22(a), the
Supreme Court made it clear it did not interpret
section 186.22(b)(1) as requiring proof of action in concert. The court stated, “A lone gang member who
commits a felony will not go unpunished; he or she will be convicted of the
underlying felony. Further, such a gang
member would not be protected from having that felony enhanced by section
186.22(b)(1), which applies to ‘any person who is convicted of a felony
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. . . .’ Because the gang enhancement under section
186.22(b)(1) requires both that the felony be gang related and that the
defendant act with a specific intent to promote, further, or assist the gang,
these requirements provide a nexus to gang activity sufficient to alleviate due
process concerns. [Citation.] Furthermore, we note that the lone
perpetrator’s punishment under the sentencing enhancement would be more
substantial than that imposed for a defendant who violates section
186.22(a).†(Rodriguez, supra, 55
Cal.4th at pp. 1138-1139, fn. omitted.)
In a concurrence, Justice Baxter pointed out that the relevant language
in sections 186.22(a) and 186.22(b)(1) is not
identical, justifying different conclusions with respect to whether proof of
action in concert is required. (
Even
though Rodriguez’s comments on
section 186.22(b)(1) are dicta, the court’s dicta generally should be followed,
particularly where the comments reflect the court’s considered reasoning. (Hubbard
v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [“When the Supreme Court
has conducted a thorough analysis of the issues and such analysis reflects
compelling logic, its dictum should be followed.â€]; see also
1396, 1403.) In the present case, the
court’s construction of section 186.22(b)(1) was not tangential; it pointed to
the availability of the sentencing enhancement as reassurance that its interpretation
of section 186.22(a) would not leave gang members who commit solo gang-related
felonies inadequately punished. (
Because the court’s statements in dicta were not “inadvertent†or
“ill-considered†(Jaramillo v. State of
California (1978) 81 Cal.App.3d 968, 971), we follow Rodriguez in holding that a showing of action in concert between
gang members was not necessary to sustain the section 186.22(b)(1) gang
enhancements.
title="">[8] We affirm the juvenile court’s findings
sustaining the sentencing enhancements to counts one through five and seven.
III. Appellant’s
Discriminatory Enforcement Claim
Appellant
contends the findings on the gang participation count (§ 186.22(a)) and the
gang sentencing enhancements (§ 186.22(b)(1)) should be reversed because enforcement
of those provisions of the STEP Act (§ 186.20 et seq.) constitutes
discriminatory prosecution. A claim of
discriminatory prosecution “goes . . . to a defect of constitutional dimension
in the initiation of the prosecution.
[Citations.] The defect lies in
the denial of equal protection to persons who are singled out for a prosecution
that is ‘deliberately based upon an unjustifiable standard such as race,
religion, or other arbitrary classification.’
[Citation.]†(
Cal.4th 826, 831.) “[T]he defendant must
prove: (1) ‘that he has been deliberately singled out for prosecution on the
basis of some invidious criterion:’ and (2) that ‘the prosecution would not
have been pursued except for the discriminatory design of the prosecuting
authorities.’ [Citation.]†(People
v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 348.)
Appellant
contends the allegations under the STEP Act constituted discriminatory
prosecution because Detective Stenger had received substantial training
relating only to Hispanic gangs. We
conclude the claim is not cognizable on appeal because the issue was not raised
in the juvenile court. (See
880-881 (Sheena K.) The Supreme Court has directed that claims of
discriminatory prosecution should be raised through a pretrial motion to
dismiss. (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293-294, fn.
4.) Appellant argues this court can
resolve his claim because the forfeiture rule does not apply to “constitutional
challenges that present ‘pure questions of law[.]’ †(Sheena
K., supra, 40 Cal.4th at p.
884.) However, appellant’s claim does
not present a pure question of law because there are numerous facts that are
potentially relevant to his claim. For
example, the record does not disclose what training Detective Stenger received
regarding non-Hispanic gangs, whether other local law enforcement officers were
experts on non-Hispanic gangs, whether there are local non-Hispanic gangs,
whether appellant’s prosecution under the STEP Act was causally related to the
training received by Detective Stenger, and how often the STEP Act is used in
the prosecution of any non-Hispanic gangs.
Appellant’s
claim of discriminatory prosecution has been forfeited. Appellant has also forfeited his claim of
ineffective assistance of counsel for failure to support the claim with
reasoned argument and citations to authority.
(Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785.)
IV.
Disposition
Appellant
contends the juvenile court abused its discretion in committing him to the
Division of Juvenile Justice (DJJ)
name="_ftnref9" title="">[9]
because there was insufficient evidence to support a finding of probable
benefit to him.
In
reviewing a DJJ commitment for abuse of discretion (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 (
reasonable inferences to support the juvenile court’s decision and will not
disturb its findings if they are supported by substantial evidence. (In re
Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) The record must demonstrate both a probable
benefit to the minor by a DJJ commitment and the inappropriateness or
ineffectiveness of less restrictive alternatives. (Angela
M., supra, 111 Cal.App.4th at p.
1396.) These criteria must be considered
in conjunction with the purposes underlying the juvenile court law, including
the “protection and safety of the public†(Welf. & Inst. Code, § 202, subd.
(a)) and “care, treatment, and guidance that is consistent with [the minors’]
best interest, that holds them accountable for their behavior, and that is
appropriate for their circumstances.â€
(Welf. & Inst. Code, § 202, subd. (b).) (See In
re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) “Although the DJJ is normally a placement of
last resort, there is no absolute rule that a DJJ commitment cannot be ordered
unless less restrictive placements have been attempted. [Citations.]
A DJJ commitment is not an abuse of discretion where the evidence
demonstrates a probable benefit to the minor from the commitment and less
restrictive alternatives would be ineffective or inappropriate. [Citation.]â€
(In re M.S. (2009) 174
Cal.App.4th 1241, 1250.) “[I]t is not
merely the programs at DJJ which provide a benefit to [a] minor, but the secure
setting as well.†(In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.)
In
the present case, the probation report pointed out that appellant had been on
probation since he was 12 years old and had committed a range of criminal offenses. The report recommended, “Due to the minor’s
on-going criminal behavior, complete disregard for the safety of others and for
the protection of the community it is recommended the minor be removed from the
community and placed in a secure facility.
The [DJJ] offers this option and is recommended for this minor. With a commitment to the DJJ, the minor will
have the opportunity to benefit from the reformatory and educational services
offered there. While at the DJJ, the
minor will be contained in a secure, highly structured and closely supervised
environment. He will be given the
opportunity to complete his high school education and participate in counseling
to address his behaviors, the impact of crime on its victims, and other
socialization and decision making skills.
Hopefully the minor will take this opportunity to examine his behavior
and develop appropriate ways on how to handle himself in the community.†The juvenile court followed that
recommendation in stating, “I do find local resources are inappropriate in
rehabilitation of this young man. I find
he’s too dangerous. We do not have a
secure placement for a length of time that would provide the rehabilitation he needs
and the safety to the community. I do
find the mental and physical qualifications of the minor will render it
probable that he’ll be rehabilitated and helped by the reformatory and
discipline or treatment provided by the [DJJ].â€
The
court’s commitment of appellant to DJJ was well within its discretion. Appellant’s offenses and criminal history
support the court’s finding that he was too dangerous to be confined in a less
structured facility. The court also
found that DJJ would be beneficial to appellant. Appellant disputes the court’s finding that
his mental qualifications made a DJJ commitment suitable. He contends the court could not have made the
determination in the absence of results from a neuropsychological
examination. However, the juvenile court
had the benefit of a psychological examination by Dr. Good that found that
appellant was competent and uncovered no evidence of significant mental
deficiencies. Appellant failed to
present any evidence to the court to the contrary, beyond the bare fact of his
injury over seven years before the date of the disposition. Appellant has presented no authority that the
court was required to obtain a neurological report before making a disposition
in the circumstances of this case. Any
other objections to the disposition have been forfeited for lack of support by
reasoned argument with citations to authority.
(Badie v. Bank of America,
Disposition
We
reverse the juvenile court’s jurisdictional finding on count six and remand for
further proceedings consistent with
this decision.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
name="_ftn1" title="">[1]
All further undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2] On
appeal we are obligated to view the evidence in the light most favorable to the
juvenile court’s orders and to presume in their support the existence of every
fact the court could reasonably deduce from the evidence. (In re
V.V. (2011) 51 Cal.4th 1020, 1026.)
Our factual summary reflects this standard of review. (See Pool
v. City of Oakland (1986) 42 Cal.3d 1051, 1056, fn. 1.)
