In re Brenden B.

Filed 2/22/08 In re Brenden B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Donna L. Crandall, Judge. Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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The juvenile court found Brenden B. committed several offenses including residential burglary (Pen. Code, 459-460),[1]street terrorism ( 186.22, subd. (a)), receiving stolen property ( 496, subd. (a)), possession of burglary tools ( 466), and misdemeanor false representation to an officer ( 148.9), and declared him a ward of the court pursuant to Welfare and Institutions Code section 602. The trial court found Brenden committed the residential burglary and receiving stolen property offenses for the benefit of a criminal street gang ( 186.22, subd. (b)[enhancement]). Brenden challenges the sufficiency of the evidence to support the conclusion he was an active participant in a criminal street gang, a necessary element of the street terrorism charge. Additionally, Brenden also argues there was no substantial evidence demonstrating he committed residential burglary or received stolen property for the benefit of a criminal street gang. We disagree and therefore affirm the judgment.

I

Facts and Procedural Background

On December 2, 2006, around 4:30 a.m., Robert Sterling heard suspicious sounds outside his bedroom window and shortly thereafter observed Brenden and his companion on his front porch unscrewing a light fixture. Warning Brenden and his companion to leave, Sterling called the police. The responding officers observed cuts to the screen on the bedroom window of Sterlings home. Concurrently, Costa Mesa Police Officer Michael Balsis responded to a call regarding three suspicious males in a nearby neighborhood. While patrolling the area, he notice Brenden driving a vehicle without its headlights on. Balsis pulled the vehicle over and approached Brenden and a male passenger.

According to Balsis, Brenden seemed nervous while responding to questioning and gave Balsis a false name and date of birth. Brenden was unable to provide a drivers license upon request. While questioning Brenden, Balsis received a bulletin over his radio concerning a residential burglary in the area, and he noted Brenden and his passenger fit the perpetrators description. Balsis ordered Brenden to step out of the vehicle and, as he exited, a knife fell to the ground. Inspecting the vehicle, Balsis found several pairs of gloves, flashlights, and a tire iron. He also discovered the ignition on the vehicle had been altered so that any key would operate it. Upon learning the vehicle was stolen, Balsis arrested Brenden and his companion.

At the police station, Brenden admitted he was present when the third suspect in the burglary, who was not in custody, stole the vehicle. Brenden conceded he was in the neighborhood to commit burglaries and that he and his companion acted as lookouts for the third accomplice. He further admitted he assisted in cutting the screen at Sterlings residence and in unscrewing his porch light. He also admitted unscrewing a light at another residence earlier that evening.

Brenden identified the third suspect as an adult known as Bouncer, and admitted he knew Bouncer belonged to the Highland Street gang. Brenden stated Bouncer had approached him and his companion earlier in the evening as they were walking down the street and asked them their gang affiliation. Brenden did not disclose to police the response he gave. He did admit, however, that Bouncer invited Brenden and his companion to a house party that evening, and they accepted. The police identified Bouncer as Jesus Mejia, whom they subsequently arrested.

Detective Aaron Parsons, a member of the gang enforcement unit in Costa Mesa, interviewed both Brenden and Mejia separately at the police station. During his discussion with Parsons, Brenden admitted he went by the moniker, Menace. He also told Parsons he and his companion were on their way to paint graffiti when they encountered Mejia. Brenden claimed he had never met Mejia before, despite his statement to Balsis he knew Mejia was a member of the Highland Street gang. Mejia displayed a handgun as he asked their gang affiliation. When Brenden told Mejia he and his friend were just taggers, Mejia invited them to go crime with him, which meant to commit crimes with the gang. Brenden and his companion agreed to do so. Brenden admitted he believed he and his companion were being crimed in to the Highland Street gang, but maintained he did not know if he would join the gang. According to Parsons, being asked to crime or being crimed in to a gang displays a level of trust between the gang member and the one he asks to crime with him. Brenden denied involvement with any gang. He and his companion nevertheless accompanied Mejia to steal the vehicle and to attempt to burglarize the homes.

Parsons observed several Highland Street gang tattoos on Mejia, who was perspiring and admitted he was suffering heroin withdrawal symptoms. Mejia admitted he belonged to the Highland Street gang and had achieved shot-caller status because he had been in the gang since he was 13 years old. After Parsons asked Mejia if Brenden and his companion were gang members, Mejia replied, Naw, they are just peewees. According to expert testimony at the trial, the term peewee refers to a person who has spent time with a gang in a sort of trial membership and commits crimes to gain the gangs acceptance. Peewee also may refer to either a younger member of a gang or a person aspiring to join the gang.

Detective Ronald Castillo, a gang expert, testified that before a gang member is crimed in, he must undergo a courtship process which requires the potential member to spend time with other gang members. Castillo also testified the Highland Street gang was an active gang as of the date of the alleged crimes. According to Castillo, gang members commit crimes to gain respect within their gang and to boost their gangs status and reputation among other gangs. He noted property crimes yield loot for the gang to use or sell for drugs or firearms. Castillo testified the Highland Street gang was known for firearms violations and robberies. Castillo recognized Mejia as a long-time gang member despite having no contact with him for over a decade.

Castillo opined Brenden and his companion were active participants in the gang since a shot-caller like Mejia would not randomly commit crimes with people he did not know and trust; a gang member only would commit the crimes with fellow gang members. Castillo also opined the crimes were committed to benefit the Highland Street gang since they involved an established gang member enrolling new members and they were to yield property for the gang to use or sell. Castillo further concluded the crime was solely for the purpose of the gang since this was an initiation, or crime in, and even if the crime was motivated in part by Mejias admitted narcotics addiction, introducing new members still served the gangs criminal interest.

II

Discussion

Brenden challenges the sufficiency of the evidence to support the juvenile courts finding he violated section 186.22, subdivision (a), as well as the gang enhancement under section 186.22, subdivision (b), for the burglary and receiving stolen property. We conclude substantial evidence supports the juvenile courts findings.

Our review of this issue is limited. If the record presents substantial evidence such that a reasonable trier of fact could find the defendant guilty, we will not disturb a lower courts finding. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The same standard of review applies in determining whether substantial evidence supports an enhancement or a conviction. (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10 (Gardeley.))

A. Substantive Gang Offense

Section 186.22, subdivision (a), makes it a criminal offense for any person to actively participate[ ] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, if the person willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . . ( 186.22, subd. (a)). The element of active gang participation requires evidence that defendants involvement is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747 (Castenada).) Brenden contends no substantial evidence exists to support the finding he belonged to the Highland Street gang or had any association with the gang. He relies on his statements to police denying membership in the gang and claiming he probably would have rejected an invitation to join. He argues the mere fact he and his companion were arrested with a purported gang member is not enough to support a finding he was actively participating in the Highland Street gang.

Brenden overlooks the expert testimony provided by Detective Castillo. Based on Castillos testimony, the juvenile court could reasonably conclude Brendens actions demonstrated active participation in the Highland Street gang, rather than nominal or passive affiliation. Castillo noted Brenden accompanied Mejia, an established member of the Highland Street gang, on his crime spree, and Castillo pointed out gang members only commit burglary with someone trusted within the gang. Notably, that person must have substantial prior contact with the gang before he will be asked to go crime. Additionally, Mejia referred to Brenden as a peewee, which, according to expert testimony, could signify a younger member of the gang. Brendens admission he was being crimed in to the gang, together with his use of a moniker, Menace, and his knowledge of Mejias status in the Highland Street gang all support the juvenile courts conclusion. In sum, committing burglary with a known gang member cannot be considered nominal or passive activity, and therefore qualifies as active participation in the gang. (Castenada, supra, 23 Cal.4th at p. 747.)

Brenden also argues insufficient evidence supports the conclusion he participated in the crimes for the benefit of the Highland Street gang. He points to evidence that Castillo had no contact with Mejia for over a decade. His implied contention is that no substantial evidence demonstrated Mejia was still a member of the Highland Street gang, and therefore the crime did not promote, further, or assist in felonious conduct by a member of a gang. In short, Brenden claims the evidence shows he was not serving the gangs interest but only, at most, helping Mejia obtain resources to feed his personal heroin addiction.

Brenden overlooks Mejias admission to Parsons that he remained a member of the Highland Street gang and had risen to shot-caller status. Balsiss testimony also confirmed Brendens knowledge Mejia was a member of the Highland Street gang. Additionally, Castillo provided his expert opinion Mejia was still a member of the Highland Street gang, based on the fact Mejia asked Brenden and his companion to go crime with him, an activity common to current gang members. Consequently, the juvenile court could have reasonably concluded Brendens actions in driving the stolen truck, assisting in cutting the screen at Sterlings residence and unscrewing his porch light constituted active participation in the gang by aiding the felonious criminal conduct of another gang member.

B. Gang Enhancement

Section 186.22, subdivision (b)(1), provides 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, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . . ( 186.22, subd. (b)(1)(A)). Brenden argues the burglary and receipt of stolen property were not done for the benefit of, at the direction of, or in association with a street gang. Specifically, he repeats his attack on Mejias status as a gang member and argues the crime was committed to finance Mejias heroin addiction, and not to benefit the Highland Street gang.

The heart of Brendens claim that Mejia was not a gang member is simply that none of the testifying gang experts had contact with Mejia since the 1990s. But, as mentioned previously, Brenden overlooks Mejias admission he was a gang member, even going so far as to call himself a shot-caller in the gang. Parsons also testified he observed gang-related tattoos on Mejias head when questioning him. Brenden admitted to Balsis he was aware Mejia was a member of the Highland Street gang and that he knew Mejias gang moniker, Bouncer. Brenden also admitted Mejia asked him to go crime, an expression employed by active gang members undertaking gang crimes. In short, the juvenile court could reasonably conclude Mejia was an active gang member.

Brenden argues the crimes were committed solely to finance Mejias heroin addiction and points to Parsonss testimony that when he spoke with Mejia the morning after the burglary Mejia was sweating profusely and appeared to be in pain. Mejia told Parsons he was a heroin addict suffering withdrawal symptoms. Brenden also relies on Parsonss testimony acknowledging addicts who are not gang members may also commit theft crimes to support their habit.

But it was the fact finders province to judge the perpetrators motivations, and we may not second guess this determination on appeal. Substantial evidence supports the conclusion the burglary served the Highland Street gangs interests. Castillo testified gangs routinely commit property crimes to produce revenue which may be used to purchase firearms or drugs for gang use, and that such crimes serve to both boost the gangs reputation and status in the gang community and, as here, to crime in or indoctrinate new members.. Expert testimony may constitute substantial evidence to support a gang enhancement under section 186.22, subdivision (b). (Gardeley, supra, 14 Cal.4th at p. 620 [experts opinion based on interviews with the defendant and his cohorts and experts personal investigations of gang crimes constituted substantial evidence to support gang enhancement].) In sum, substantial evidence supports the gang enhancement.

III

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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[1] All further statutory references are to this code unless specified otherwise.