In re George T.

Filed 9/22/08 In re George T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Ronald P. Kreber, Judge. Affirmed.

Catherine White, 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, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Minor George T. (defendant) was charged by an amended petition with conspiracy, in violation of Penal Code section 182, subdivision (a)(1) (count one), to commit the crime of vehicle burglary, and with street terrorism, in violation of Penal Code section 186.22, subdivision (a) (count two). It was also alleged as to count one that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. (Pen. Code,  186.22, subd. (b).) The court dismissed count one and the gang enhancement allegation. It found the allegations of count two true beyond a reasonable doubt. The court ordered that defendant continue as a ward of the juvenile court. (Welf. & Inst. Code,  602.) It also granted custody of him to the probation officer for commitment to an appropriate juvenile facility for 180 days, with credit for 102 days served.

Defendant argues that the Peoples only theory was conspiracy, and that the courts finding that he aided and abetted a gang member in attempting to steal a car constituted reliance on a new theory that was neither noticed nor litigated at trial. He claims the courts action was tantamount to state interference resulting in ineffective assistance of counsel. We disagree. Notice was given in the charging section of the amended petition. We affirm.

I

FACTS

Jonathan Radus, a police officer with the City of Fullerton Police Department, testified at trial. On February 3, 2007, at about 10:00 p.m., he was conducting surveillance with regard to a burglary suspect. In furtherance of the surveillance, he was sitting on the floorboard of an unmarked police van that had tinted windows and no license plates. The van was parked in a high crime area, in gang territory.

Defendant and Mario Moreno, who was known to Radus, approached the van. Radus saw each of them peek into the van and pull on the front passenger door to ascertain whether it was unlocked. He heard Moreno say, Lets jack it. After that, defendant and Moreno each pulled on the front passenger door again, multiple times. They continued to peer inside the van. Radus heard defendant say, Is anybody looking? Moreno then threw a rock the size of a softball at the passenger side window. Although the rock hit the window, the window did not break. Defendant and Moreno ran away.

Detective Vincent Mater, assigned to the City of Fullerton Police Department gang unit, also testified, as an expert witness on gangs. He was familiar with the Fullerton Toker Town gang, and with both defendant and Moreno. Mater expressed the opinion that defendant and Moreno were each members of the Fullerton Toker Town gang. He also opined that defendant was a gang member who had committed the crime for the benefit of the gang.

After the People completed the presentation of their evidence, defendant made an oral motion under Welfare and Institutions Code section 701.1 to dismiss the charges, contending that the evidence did not show beyond a reasonable doubt that defendant had committed conspiracy. The court granted the motion as to count one only.

Defense counsel argued that count two could not stand alone. He requested an opportunity to research the issue and file a brief on it. The court granted the request. Defendant thereafter filed a motion to dismiss count two, together with points and authorities in support thereof. He argued, inter alia, that there was no constitutional notice sufficient to inform him of the charges against him and to allow him to prepare a defense.

The court ruled that Penal Code section 186.22, subdivision (a) was a substantive offense, and that the People were required to prove each element of the crime beyond a reasonable doubt. It found that notice had been given in the charging section of the amended petition. The court also found that defendant aided and abetted a gang member in attempting to steal a car. In addition, it found true beyond a reasonable doubt the allegations of count two that defendant had violated Penal Code section 186.22, subdivision (a). Defendant appeals.

II

DISCUSSION

A. Introduction:

Defendant asserts that conspiracy was the only theory noticed and litigated at trial. He argues that when the court relied on a different theory, that is, aiding and abetting, it deprived him of the effective assistance of counsel. Defendant characterizes the courts action as state interference that deprived his counsel of the ability to respond to the Peoples case and to conduct a defense. He explains that his entire defense was that no conspiracy had been shown. No other defense was presented because the People had never specified any other felonious conduct.

B. Analysis:

Defendant in essence argues that count one limited count two. That is, in order to prevail on his argument, one would have to conclude that the only felony conceivably charged under count two was conspiracy, because that was the felony charged in count one. This is not the case. As the trial court correctly observed, Penal Code section 186.22, subdivision (a) establishes a separate substantive offense. (People v. Robles (2000) 23 Cal.4th 1106, 1112; In re Jose P. (2003) 106 Cal.App.4th 458, 466.)

Penal Code section 186.22, subdivision (a) provides: Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

The requirements for a Penal Code section 186.22, subdivision (a) conviction are criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang. (People v. Castenada (2000) 23 Cal.4th 743, 752.) While section 186.22, subdivision (a) does not specify a particular felony, it has been construed . . . as covering only conduct which is clearly felonious, i.e., conduct which amounts to the commission of an offense punishable by imprisonment in state prison. [Citation.] (In re Alberto R. (1991) 235 Cal.App.3d 1309, 1320.) Furthermore, the words promotes, furthers, or assists, as used in the statute, have been consistently used by the courts to describe aiding and abetting [citations] . . . . (Id. at p. 1322.) It has been said that to be guilty of violating section 186.22(a), a person must have had more than a nominal or passive involvement with the gang, knowing of the gangs pattern of criminal activity, and must have aided and abetted a separate felony committed by gang members. [Citation.] (In re Jose P., supra, 106 Cal.App.4th at p. 466.)

When defendant was charged with a violation of Penal Code section 186.22, subdivision (a), a crime defined to include promoting, furthering, or assisting the commission of a felony, he was on notice that if he were found to have aided and abetted the commission of a felony, and the other statutory requirements were met, he could be found guilty of street terrorism under section 186.22, subdivision (a). The amended petition did not need to specify the particular legal theory underlying the section 186.22, subdivision (a) charge. (Cf. People v. Gurule (2002) 28 Cal.4th 557, 629 [no need to specify theory of murder]; People v. Lucas (1997) 55 Cal.App.4th 721, 737 [same].)

In any event, the amended petition specifically described the alleged criminal acts. It charged, with respect to count one, that defendant unlawfully conspired with Moreno to commit the crime of vehicle burglary. It alleged that the following overt acts were made in furtherance of the conspiracy: (1) looking around to ensure no one was nearby or watching; (2) trying the car door handles to an effort to open them; and (3) standing by as a lookout while the coconspirator threw a rock at the car window in an attempt to break it.

While these allegations were not repeated in support of count two, defendant nonetheless was on notice of the alleged criminal acts, just as he was on notice that he was alleged to have promoted, furthered or assisted in the commission of a felony. Since case law indicates that proof of aiding and abetting the commission of a felony would also constitute proof of promoting, furthering or assisting in the commission of a felony within the meaning of Penal Code section 186.22, subdivision (a), defendant should have been prepared, at trial, to address aiding and abetting in connection with the alleged criminal acts. He had every opportunity to prepare for trial and to present his case with this notice in mind.

In finding that defendant aided and abetted a gang member in attempting to steal a car, the court did not deprive defendant of the effective assistance of counsel by relying on a new theory raised only after the close of the presentation of evidence. [T]he conduct forming the factual basis for an [aiding and abetting] finding was crystal clear . . . . The range of potential offenses was in no way mysterious. (People v. Lucas, supra, 55 Cal.App.4th at pp. 738-739.)

The cases defendant cites to show state interference are distinguishable. In Geders v. United States (1976) 425 U.S. 80, the court barred the defendant from consulting with his lawyer during a 17-hour overnight recess in the middle of trial.

(Id. at p. 91.) In Herring v. New York (1975) 422 U.S. 853, the court denied defendants counsel the right to make a closing argument. (Id. at pp. 856, 864-865.) Defendant in the case before us alleges no comparable action on the part of the trial court that actually restrained his counsels actions.

In Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, an information charged the defendant with one court of murder and with the use of a firearm. (Id. at p. 1235.) The concept of felony murder was not raised, either directly or indirectly, before the parties rested or even when jury instructions were submitted and settled. Not until the day scheduled for final arguments did the prosecution request instructions on felony murder. (Ibid.) Over the defendants objection, the court gave the requested instructions. (Id. at pp. 1235-1236.) The jury returned a verdict of first degree murder with the use of a firearm. It gave no indication of the legal theory on which it relied. (Id. at p. 1236.)

On appeal, the People conceded that the defendant had been denied adequate notice of the felony-murder charge. (Sheppard v. Rees, supra, 909 F.2d

at p. 1236.) The court thereafter concluded that the defendant had been ambushed. (Ibid.) It reversed the denial of defendants petition for a writ of habeas corpus.

(Id. at p. 1238.)

Sheppard v. Rees, supra, 909 F.2d 1234, is distinguishable on several grounds. In the case before us, the Penal Code section 186.22, subdivision (a) violation was charged in the amended petition. Defendant was not ambushed. He knew about the charge before trial. He had every opportunity to prepare and present a defense to it. To the extent he suffered surprise when his motion to dismiss the amended petition was granted only as to count one, and not also as to count two, he still had an opportunity to regroup and present new arguments. Defendant informed the court that he did not intend to present any evidence directed towards count two and that he would rest testimony. However, he expressed the opinion that count two could not stand alone and asked for permission to file a brief addressing the point. The court granted his request. In defendants brief, filed before the court ruled, he argued not only lack of notice of the charge, but also lack of sufficient evidence to support a conviction under Penal Code section 186.22, subdivision (a). The facts of this case are dissimilar to those in Sheppard v. Rees, supra, 909 F.2d 1234.

Furthermore, we observe that Sheppard v. Rees, supra, 909 F.2d 1234 has been criticized by California state courts as being at odds with California Supreme Court precedent. (See, e.g., People v. Lucas, supra, 55 Cal.App.4th at p. 738; People v. Crawford (1990) 224 Cal.App.3d 1, 8.) Consequently, the case is narrowly construed and limited to its facts. (People v. Lucas, supra, 55 Cal.App.4th at p. 738.) It does not support defendants position here.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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