In re F.M.

Filed 1/5/10 In re F.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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F.M., the minor, was adjudged a ward of the court under Welfare and Institutions Code section 602 based on the juvenile courts finding that he committed robbery (Pen. Code,  211)[1] and assault with force likely to cause great bodily injury ( 245, subd. (a)(1)), both with gang ( 186.22, subd. (b)) and great bodily injury ( 12022.7) enhancements, and participation in a criminal street gang ( 186.22, subd. (a)). The court set a maximum confinement period of 18 years and ordered general out-of-home placement.

On appeal, the minor challenges the gang offense and enhancements. He contends there is insufficient evidence of participation in a criminal street gang because the gang experts testimony and the minute orders of other cases used to prove the pattern of criminal activity are hearsay. He contends there was insufficient evidence of the primary activities of the gang or of his specific intent to benefit the gang to sustain the gang enhancements. Finally, he contends the matter must be remanded for a reunification plan under Welfare and Institutions Code section 727.2.

We affirm. There is sufficient evidence to sustain both the gang charge and the gang enhancements. The record is inadequate to determine if the minor was placed in foster care, thus triggering the requirement of a reunification plan.

FACTS

On an evening in August 2008, 46-year-old Corey Willfred was riding his BMX bicycle on the east side of Pacific Avenue in Stockton. There was a group of kids on the sidewalk; they split so he could pass through the middle. He slowed down to pass and heard one say, Whats up, homie? The speaker hit Willfred and knocked him off his bicycle.

Willfred felt several feet kicking him and he was told to let go of the bike. He did not and a tug of war ensued. In the struggle, Willfred lost his cigarettes, lighter and wallet. He saw the youth who knocked him down take his cigarettes and his wallet.

Noelia Mancera was driving home from work when she saw a group of kids pounding on someone. She pulled over, as did a truck. When the man from the truck approached, the kids dispersed. The man stayed with Willfred and Mancera followed the assailants in her car. One of them said, Bitch, what are you looking at? I have your drivers plate, your license plate number. Ill kill you. She saw them walk down the levee path to Northbank Court apartments.

When the police arrived, they found Willfred dripping blood from his face. After speaking to the man from the truck, the police went to the levee looking for four Hispanics in white T-shirts. They saw three suspects near the Northbank Court apartment complex carrying white T-shirts. Two were in the complex and the third, the minor, was on the levee.

Willfred identified the minor as one of the assailants. The minors heart was pounding when the police found him. He had scrapes on his back and was wearing a hat with 209 on it and 14 on the bill.

The other two suspects were Jorge Riberal and Frederick Almendarez. Riberal had a purple cigarette lighter, similar to the one taken from Willfred. His tank top was torn. Almendarez had a pack of cigarettes and a red bandanna. His T-shirt was torn and had blood on it. There was an abrasion on his neck.

Jim Ridenour, a detective in the gang violence suppression unit, testified as a gang expert. In his opinion, Norteos are a gang under section 186.22. There were over 1,600 documented Norteos in Stockton. They used the letter N and the number 14. He testified the gangs primary activities were crimes listed in section 186.22, subdivision (e); he had personally investigated homicides and attempted homicides, carjackings, robbery, auto theft, drug sales, burglary, identification theft and fraud, and assault, all involving the Norteos.

The juvenile court took judicial notice of its own files, minute orders, showing that in 2005, R.G. admitted committing an assault with a deadly weapon ( 245, subd. (a)(1)) and street terrorism ( 186.22, subd. (a)) and in 2008, F.G. admitted committing an assault ( 245, subd. (a)(1)) with a weapon enhancement ( 12022, subd. (b)(1)).[2] Ridenour opined that both these minors were Norteos based on their clothing, their statements to officers, their crimes and police reports.

Ridenour opined that the minor was a Norteo based on his claiming he was a south side Norteo, the Stocktone tattoo on his back, his being in the company of gang members, and his hat with 209 and 14 on it. In Ridenours opinion the group robbery was gang related because of the association of gang members and the benefit to the gang of the robbery.

In defense, Almendarez testified he committed the robbery, but the minor was not involved. The minor also testified he was not involved and did not know Almendarez or Riberal. He claimed he was playing handball at Kentfield Park.

DISCUSSION

I.

There was Sufficient Evidence of Participation in a Criminal Street Gang ( 186.22(a))

The minor contends there is insufficient evidence of count four, participation in a criminal street gang, because both the minute orders and the gang expert testimony used to prove the predicate offenses are hearsay. This contention has no merit.

Section 186.22, subdivision (a) provides in 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 the county jail or state prison.

Subdivision (e) defines pattern of criminal gang activity: As used in this chapter, pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. First of the listed offenses is assault with a deadly weapon or by means of force likely to produce great bodily injury. ( 186.22, subd. (e)(1).) The minute orders showed two juvenile petitions were sustained for assaults by two Norteo gang members.

The minor contends the minute orders are inadmissible hearsay when offered to prove the offense was in fact committed, citing People v. Wheeler (1992) 4 Cal.4th 284. He contends the contrary authority of People v. Duran (2002) 97 Cal.App.4th 1448 is unsound. In Duran, the court held a certified minute order may be used to prove a predicate offense under section 186.22 without violating the hearsay rule because the Legislature had created a hearsay exception in Evidence Code section 452.5.[3] Evidence Code section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred. (People v. Duran, supra, at p. 1460.) Thus, we conclude that Evidence Code section 452.5 states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of conviction, but the commission of the underlying offense. (Id. at p. 1461, fn. omitted.)

The minor contends Evidence Code section 452.5 was intended to simplify proof of a prior conviction only under the three strikes law. He fails, however, to point to any language in the statute which so limits its effect.

The minors contention fails for another reason. The Duran court noted that even without Evidence Code section 452.5, the minute order would be admissible because under section 186.22 proof of a pattern of criminal activity may be proved by a sustained juvenile petition for, or conviction of two or more predicate offenses. (People v. Duran, supra, 97 Cal.App.4th at p. 1461, fn. 5, original italics.) Even before Evidence Code section 452.5, documentary evidence was admissible to prove a conviction occurred. (People v. Wheeler, supra, 4 Cal.4th 284, 300, fn. 13.)

The minor contends Detective Ridenours testimony about these prior juvenile offenses was hearsay and violated the Confrontation Clause under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].) He contends the minors in the prior cases had to testify.

A police gang expert may give his opinion based upon hearsay, including conversations with gang members, the experts personal investigation of past crimes by gang members and information about gangs learned from the experts colleagues or from other law enforcement agencies. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gardeley (1996) 14 Cal.4th 605, 620.)

II.

There was Sufficient Evidence of the Gang Enhancements ( 186.22(b))

The minor contends there was insufficient evidence to prove the gang enhancements of section 186.22, subdivision (b) because two elements were not proven. First, he again asserts the minute orders and Detective Ridenours testimony were inadmissible hearsay and therefore insufficient to prove the primary activities of the Norteo gang are those set forth in section 186.22, subdivision (e). As set forth above, both the minute orders and Ridenours testimony were admissible. This evidence established the primary activities of the gang. We reject this contention.

Second, the minor contends there was insufficient evidence that he had the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).) He contends there was no evidence the assault and robbery were committed on Norteo turf, against a rival gang member, or that the victim or witnesses were made aware of the gang nature of the attack by gang signs or verbal proclamations. The minor contends Detective Ridenours testimony that the robbery was gang related is insufficient because a gang expert cannot testify as to a defendants specific intent. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199; People v. Killebrew (2002) 103 Cal.App.4th 644, 658.)

We find sufficient evidence that the minor specifically intended to promote, further or assist criminal conduct by other gang members. This is not a case where the only evidence of gang involvement was the minors gang membership. The attack was carried out by a group and at least three of the assailants, including the minor, were gang members. The minor wore gang insignia, a hat with 209 and 14 on it; the instigator of the assault wore a red shirt. Immediately after the attack, the minor claimed he was south side Stocktone. The minors witness, Almendarez, explained the gang mentality. After the first person hit Willfred, he just hopped in and did not think about injury to the victim.

III.

The Record Is Inadequate to Determine if the Minor Was Placed in Foster Care, Thus Triggering the Need for a Reunification Plan Under Welfare and Institutions Code Section 727.2

The minor contends the juvenile court failed to provide for either a reunification plan or a case plan as required by Welfare and Institutions Code section 727.2.

Welfare and Institutions Code section 727.2 provides in part: The purpose of this section is to provide a means to monitor the safety and well-being of every minor in foster care who has been declared a ward of the juvenile court pursuant to Section 601 or 602 and to ensure that everything reasonably possible is done to facilitate the safe and early return of the minor to his or her home or to establish an alternative permanent plan for the minor.

(a) If the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for placement pursuant to subdivision (a) of Section 727, the juvenile court shall order the probation department to ensure the provision of reunification services to facilitate the safe return of the minor to his or her home or the permanent placement of the minor, and to address the needs of the minor while in foster care, except as provided in subdivision (b).

The Attorney General asserts no reunification plan is required because the minor was not placed in foster care. The minor retorts his placement in Rites of Passage was foster care.

For purposes of articles 15 through 18 ( 625-742) of the Welfare and Institutions Code, foster care means residential care provided in any of the settings described in Section 11402. (Welf. & Inst. Code,  727.4, subd. (d)(1).) Welfare and Institutions Code section 11402 sets forth a list of licensed and nonlicensed settings, including a licensed group home. The question, then, is whether the minor was placed in one of these listed settings.

The parties presume that the minor was placed in Rites of Passage, based on the record reference to ROP. We find this brief reference too ambiguous for us to take judicial notice that it is Rites of Passage. (See Evid. Code,  452, subd. (h).) Further, nothing in the record reveals whether Rites of Passage is a licensed group home, or another of the settings listed in section 11402 of the Welfare and Institutions Code. It is appellants burden to provide a sufficient record to show error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Because the parties failed to litigate this issue before the juvenile court, the record is inadequate to determine if there was error.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P. J.

NICHOLSON , J.

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[1] Hereafter, undesignated statutory references are to the Penal Code.

[2] The court took judicial notice of a third case, but there was no admissible testimony it was gang related.

[3] Evidence Code section 452.5, subdivision (b) provides: An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.