In re David V.
Filed 1/14/13 In
re David V. CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DAVID
V., a Person Coming Under the Juvenile Court Law.
B238628
(Los Angeles County
Super. Ct. No. FJ49637)
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID V.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, Philip K. Mautino, Judge. Affirmed as modified.
Bruce
G. Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________
Appellant David V. appeals from an order of wardship entered
following findings he was a minor in possession
of a concealable firearm for the benefit of a criminal street gang. He was ordered home on probation. Appellant contends the recovered handgun and
his statements to police were the product of an
insufficient to support the gang enhancement findings.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles
County District Attorney filed a Welfare and Institutions Code section 602
petition alleging in count 1 that appellant, then 14 years old, had possessed a
concealed firearm in violation of former Penal Code
(a)(1).
title="">[3] The petition further alleged pursuant
to section 186.22, subdivision (b)(1)(A) that appellant had possessed the
weapon “for the benefit of, at the direction of, and in association with a
intent to promote, further and assist in criminal conduct by gang
members.†In count 2, the petition
alleged that appellant had carried a loaded firearm as “an active participant
in a criminal street gang†in violation of former section 12031, subdivisions
(a)(1) and (a)(2)(C)).
name="_ftnref4" title="">[4] Appellant filed a motion to
suppress under Welfare and Institutions Code section 700.1.
At the hearing
on the suppression motion, which was held concurrently with the jurisdiction
hearing, Carlos Cruz, the arresting officer, testified he was part of the Gang
Enforcement Detail of the Los Angeles Police Department. One of his primary duties was to suppress
gang activity. According to Cruz, at 7:30 p.m. on November 10, 2011, he and his
partner officer saw appellant and two other individuals leaving an alley at Vermont Avenue
and James M. Wood Boulevard in Los Angeles. The area was a high crime
area and the “stronghold†of the Francis Avenue
clique of the Mara Salvatrucha (M.S. 13) gang.
It was also the subject of a gang injunction which, among other things,
prohibited M.S. 13 gang members from associating with one another in public.
From prior
contacts, Officer Cruz identified one of appellant’s companions as Dennis B.,
an active M.S. 13 gang member, who had been served with the injunction. Cruz did not recognize appellant and the
third individual, although he believed they were members of the M.S. 13 gang
based upon their baggy clothing, and presence in the area with a known gang
member. Appellant also had the
close-cropped hair of a gang member.
Cruz noticed appellant was carrying a black backpack over his
shoulders.
Cruz and his
partner decided to stop Dennis B. to investigate whether he was associating
with gang members in violation of the injunction. As the officers were stepping out of their
car, Dennis B. and appellant immediately looked in Cruz’s direction and
sprinted rapidly northbound, splitting up with the third individual. The officers returned to the patrol car and
drove around the block in an attempt to cut them off. In the meantime, appellant and Dennis B. ran
through a restaurant, out onto Francis Avenue and continued down the block
before the officers drove up and ordered them to stop. Appellant complied and was detained. Apparently, neither Dennis B. nor the third
individual was detained.
Officer Cruz
searched the backpack appellant had been wearing, and retrieved a loaded
nine-millimeter firearm, fully cocked and operable, with one bullet in the
chamber. The officer noted appellant was
wearing an El Salvador belt buckle, which was affiliated with the founding members of M.S. 13.
At the police
station, appellant was advised of his right to remain silent, to the presence
of an attorney, and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d
694]), which he waived. Appellant told
officers the third individual with him was Largo, an M.S. 13
member, who had given appellant the gun “to hold.†Appellant also admitted he was a “future†for
M.S. 13 or an aspiring gang member.
Officer Cruz,
who had several years of experience investigating the M.S. 13 gang, testified
as a gang expert. He described the
history, territory and identifying symbols of the M.S. 13 gang and the
200-member Francis Avenue clique, and their primary activities, which included vandalism,
robbery, extortion, aggravated assault, criminal threat, possession of a
concealed firearm, shooting and murder.
Cruz testified to prior crimes committed by two different M.S. 13
members.
Officer Cruz
opined appellant was an active member of M.S. 13 because of his haircut,
attire, including the El Salvador belt buckle, association with two known gang
members, presence in gang-controlled territory, and admission of his gang
affiliation. Cruz further opined that
carrying a loaded gun at the behest of another M.S. 13 gang member benefitted
the gang, because the younger gang member would be expected to use the weapon
to protect the gang, and to commit crimes and to intimidate the community on
behalf of the gang.
Dennis B.
testified for the defense that he was at the Ventura Division of the Juvenile
Justice Correctional Facility on November 10, 2011. Dennis B. had been at the
facility since March 20, 2011 and was not to be
released before April 5, 2019. He was never outside the facility on the
night that appellant was arrested.
After hearing
the evidence and argument of counsel, the court denied appellant’s
allegations had been proved beyond a reasonable doubt and sustained the
petition.
DISCUSSION
I.
Suspicion
Appellant’s
sole challenge is to the propriety of the detention, arguing the police lacked
reasonable suspicion to detain him.
neither his mere presence in a high crime area at night, nor his attempt to
avoid having contact with police was sufficient to justify a detention, nor was
Officer Cruz’s identification of Dennis B. credible. Appellant does not separately contest the
lawfulness of the arrest or the search.
A. The Law Governing Detentions
Police contacts with
individuals fall into “three broad categories ranging from the least to the
most intrusive: consensual encounters
that result in no restraint of liberty whatsoever; detentions, which are
seizures of an individual that are strictly limited in duration, scope, and
purpose; and formal arrests or comparable restraints on an individual’s
liberty.†(In re Manuel G.
(1997) 16 Cal.4th 805, 821.)
A detention occurs within
the meaning of the Fourth Amendment when the officer, by means of physical
force or show of authority, in some manner temporarily restrains the
individual’s liberty. (
341; Wilson v. Superior Court (1983) 34 Cal.3d 777, 789-790; People
v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) Although a police officer may approach an
individual in a public place and ask questions if the person is willing to listen,
the officer may detain the person only if the officer has a reasonable,
articulable suspicion the detainee has been, currently is or is about to be
engaged in criminal activity. (Terry v. Ohio (1968)
392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889]; see In re Tony C. (1978) 21 Cal.3d 888, 893.) To satisfy this requirement, the police
officer must “point to specific articulable facts that, considered in light of
the totality of the circumstances, provide some objective manifestation that
the person detained may be involved in criminal activity.†(Souza, supra, 9 Cal.4th at
p. 231; United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct.
1581, 104 L.Ed.2d 1] [“the police can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer
lacks probable causeâ€].) In evaluating
whether that standard has been satisfied, we examine the “totality of the
circumstances†in each case to determine whether a “particularized and
objective basis†supports the detention.
(United States v. Cortez (1981) 449 U.S. 411, 417 [101 S.Ct. 690,
66 L.Ed.2d 621].) The inferences
from conduct required to establish a reasonable suspicion ultimately rest on
commonsense judgment about human behavior, rather than on scientific
studies. (Illinois v. Wardlow (2000) 528 U.S. 119, 124 [120 S.Ct. 673, 145
L.Ed.2d 570] (Wardlow)
B. Appellant’s
Detention Was Lawful
Appellant
refutes each piece of evidence in arguing the detention was unlawful. However, as discussed, in evaluating the
propriety of appellant’s detention, we are not concerned with the various
pieces of evidence each considered in isolation, but with the totality of the
circumstances confronting the officers after appellant and his companions
emerged from the alley, and with the juxtaposition and cumulative effect of the
various pieces of evidence. (See
From
the totality of circumstances there is sufficient evidence the officers had a
reasonable suspicion to detain appellant.
When the officers first noticed appellant wearing gang attire and
walking with a known gang member in a high-crime area, their contact of him at
that point would have been casual and consensual, with no restraint on
appellant’s liberty. (
194, 201-202 [122 S.Ct. 2105, 153 L.Ed.2d 242]; In re Manuel G., supra,
16 Cal.4th at p. 821.) Appellant was
free to avoid the encounter and to “go on his way,†which he did by running
away. (Florida v. Royer (1983) 460 U.S. 491, 498 [103 S.Ct. 1319, 75
L.Ed.2d 229].) However, while a person
may decline to speak to officers and go about his or her business, without
providing grounds for a detention, “obvious attempts to evade officers can
support a reasonable suspicion.†(
422 U.S. 873, 884-885 [95 S.Ct. 2574, 45 L.Ed.2d 607].) “[F]light from police is a proper
consideration – and indeed can be a key factor – in determining whether in a
particular case the police have sufficient cause to detain.†(People
v. Souza, supra, 9 Cal.4th at p. 235; Illinois
v. Wardlow, supra, 528 U.S. at p. 124.)
In Wardlow, officers were driving in a caravan of vehicles through an
area known for heavy narcotics trafficking when they saw the defendant standing
near a building holding an opaque bag. (
pp. 121-122.) Upon seeing the officers,
the defendant fled. (
The Supreme Court held the defendant’s “unprovoked flight,†triggered by
his observation of the police caravan, justified the officers’ decision to
detain him. (Id. at pp. 124-125.)
Similarly, in
concluded the manner in which a person avoids police contact can be considered
by officers and courts in assessing the propriety of a detention. (People
v. Souza, supra, 9 Cal.4th at p. 234.)
There, an officer on night patrol in a high-crime area encountered the
defendant speaking to the occupants of a parked car. (Id.
at p. 240.) As the officer approached,
the defendant fled, and the car’s occupants ducked down. (Ibid.) In finding the officer had reasonable
suspicion to detain the defendant, the court explained, “Any temporary
detention includes factors that, considered together, may suggest either
criminal or innocent behavior to trained police officers. No single fact -- for instance, flight from
approaching police -- can be indicative in all
detention cases of involvement in criminal conduct. Time, locality, lighting conditions, and an
area’s reputation for criminal activity all give meaning to a particular act of
flight, and may or may not suggest to a trained officer that the fleeing person
is involved in criminal activity.†(Id.
at p. 239.)
The
circumstances of appellant’s suspected gang membership, his presence at night
in a gang controlled area, and his association with a known gang member gave
meaning to his subsequent headlong flight through a restaurant upon seeing the
officers. In this context, the officers
reasonably suspected appellant was fleeing because of a consciousness of guilt
rather than an innocent desire to avoid police contact. That the officers may have misidentified one
of appellant’s companions prior to the detention is inconsequential. Under the circumstances, it was objectively
reasonable for Officer Cruz to believe that appellant and his companions were
members of the M.S. 13 gang and were congregating in violation of the
injunction, given their attire and presence in that particular area. Finally, even if these circumstances were
consistent with innocent activity, that did not preclude the officers from
entertaining a reasonable suspicion of criminal activity, particularly in light
of Officer Cruz’s experience with the M.S. 13 gang and its conduct in the
territory it claimed. (See
II. Sufficient
Evidence Supported the Gang Enhancements
Appellant
challenges the evidentiary basis for both enhancement findings.
found appellant unlawfully possessed a concealed
firearm, and committed the offense “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†under section 186.22,
subdivision (b)(1)(A). With respect to count
2, the court found appellant had carried a loaded
firearm in a public place, as “an active participant in a criminal street gangâ€
pursuant to former section 12031, subd. (a)(2)(C). The “active participant in a criminal street
gang†element of this former statute was defined by section 186.22, subdivision
(a), as meaning “[a]ny 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.â€
Typically,
the elements required for these enhancements are established by expert
testimony provided by law enforcement professionals who have experience in the
area of gang culture and psychology.
(See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 618
[expert testimony by police detective particularly appropriate in gang
enhancement case to assist fact finder in understanding gang behavior]; People
v. Gonzalez (2006) 38 Cal.4th 932, 944-946 [reaffirming Gardeley and
admissibility of officer’s expert testimony in the area of gang culture and
psychology].)
A. There
was Sufficient Evidence of Appellant’s Participation in a Gang
Appellant
contends there was insufficient evidence he was an “active†participant in the
M.S. 13 gang to support the gang enhancement finding on count 2, arguing he
admitted to police he was only an aspiring gang member.
Section 182, subdivision (a)
does not criminalize gang membership; it targets “active participation†in a
gang’s activities.
(Cf. see People v. Castenada (2000)
23 Cal.4th 743, 747 [“we construe the statutory language ‘actively participates
in any criminal street gang’ (Pen. Code, § 186.22, subd. (a)) as meaning
involvement with a criminal street gang that is more than nominal or
passiveâ€].)
Regardless
of what he told police concerning the nature of his gang membership, which the
juvenile court was free to disbelieve, appellant overlooks the overwhelming
evidence of his active participation in the M.S. gang when he was found
carrying the firearm. Appellant was
dressed in gang attire, while walking through a gang stronghold and in the
company of at least one known gang member, which demonstrated, according to
Officer Cruz, that appellant was actively participating in the gang. Additionally, appellant told police he was
given the weapon to hold by another gang member, which Cruz testified, was a
prelude to using the weapon when necessary on behalf of the gang, thereby
elevating appellant’s status within the gang as “a shooter†and as someone
willing to “put in work†or commit crimes for the gang . The evidence is substantial that appellant’s
involvement with the gang was active, rather than nominal or passive as
appellant maintains.
B. There was
Sufficient Evidence of Appellant’s Intent to Assist Gang Members
Appellant
also contends that because he acted alone in unlawfully possessing the firearm,
there was no evidence he committed the crime with the specific intent to
willfully promote, further, or assist other gang members in any felonious
criminal conduct within the meaning of
section 186.22, subdivision (a) to prove the gang enhancement on count
1. Here, too, appellant overlooks the
expert testimony and his own admission to the contrary.
DISPOSITION
The
maximum confinement term set forth in the minute order of January 17, 2012, is
ordered stricken. In all other respects,
the order is affirmed.
WOODS,
J.
We
concur:
PERLUSS, P.J.
JACKSON, J.
[1] The court also calculated a maximum term of physical
confinement as seven years six months.
However, because appellant was placed home on probation, the court’s
calculation of that maximum term is of no legal effect. (See In
re Ali A. (2006) 139 Cal.App.4th 569, 572-574 [when minor placed home on
probation, juvenile court is not authorized to include maximum term of
confinement in disposition order; maximum term of confinement contained in such
an order is of no legal effect]; In re
Joseph G. (1995) 32 Cal.App.4th 1735, 1744 [“[o]nly when a court orders a
minor removed from the physical custody of his parent or guardian is the court
required to specify the maximum term the minor can be held in physical
confinement.â€].) Accordingly, we shall
strike this portion of the disposition order.
(See In re Matthew A. (2008)
165 Cal.App.4th 537, 541.)
name="_ftn2" title="">[2] Statutory
references are to the Penal Code, unless otherwise indicated.
