In re Michael D.
Filed 9/12/13 In re Michael D. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
In re MICHAEL D., a Person Coming Under the Juvenile Court
Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL D.,
Defendant and
Appellant.
G046783
(Super. Ct.
No. DL041566)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Jacki C. Brown, Judge.
Affirmed.
Susan L. Ferguson, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Elizabeth M. Carino,
Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found
true allegations Michael D. committed vandalism (Pen. Code, § 594)
at the direction of, or in association with a criminal street gang and with the
specific intent to promote, further, or assist in criminal conduct by gang
members. (§ 186.22, subd. (d)
(section 186.22(d)). The juvenile court
declared Michael a ward of the court and granted supervised probation.
Michael challenges the
sufficiency of the evidence to support the primary activities and specific
intent elements of the section 186.22(d) gang enhancement. He also argues the gang expert’s reliance on
hearsay violates his Sixth Amendment
right to confront adverse witnesses.
(Crawford v.
36, 51-53 (Crawford).) In addition, Michael asserts the
defense expert testimony, and by not expressly declaring the vandalism
conviction to be a felony as required by Welfare and Institutions Code section
702 (section 702). We agree with his
final contention but conclude the error is harmless and affirm the judgment.
FACTS
In late 2011 and early
2012, Michael was detained in juvenile hall on a petition (petition 001)
alleging he committed various crimes for the benefit of, and he was an active
participant in, Orange Varrio Cypress (OVC).
During this incarceration, Michael and other minors caused two major
disruptions by banging on the doors of their units and yelling. On both occasions, Michael was heard yelling,
“OVC.†Michael also caused a third
disruption by engaging in what is known as a gang rollcall, in which he
repeatedly yelled out his room number and gang affiliation and asked the other
juveniles to do the same.
In early January 2012, a
juvenile correctional officer found “OVCX3†carved into the window in Michael’s
cell. She knew these letters had not
been on the window the night before, and that Michael was the sole resident in
the cell. As a result, the Orange County
District Attorney filed a second petition (petition 002) alleging Michael
committed an act of vandalism by carving these letters into the window, and he
committed this criminal act with the specific intent to promote, further, and
assist in criminal conduct by members of OVC.
At trial, the
prosecution called Detective Miguel Cuenca as its gang expert. Cuenca,
a 12-year veteran of the Orange Police Department with three years of
experience in the department’s gang unit, testified he was very familiar with
the criminal street gangs in Orange. He had personally investigated OVC related
vandalisms, assaults, and assaults with deadly weapons. He had also talked to numerous OVC members
and associates, and their family members, girlfriends, and boyfriends. Through work-related courses and various
assignments, Cuenca had come into
contact with many other Hispanic gang members, including members of the Mexican
Mafia. In all, Cuenca
estimated he had talked to hundreds of active gang members during his career.
Cuenca
testified OVC is an offshoot of Santa Ana’s
F-Troop gang. In the 1970’s several
members of F-Troop moved to Orange
and started other gangs including OVC.
OVC claims the west side of Orange
as its territory. OVC has many gang
rivals, including the Orange County Criminals, Pearl
Street, V.M.L., Dark Side, and Brown
Town. They also have allies in gangs known as Bartel
Small Town,
Anaheim, Highland
Street, San Anita, and Walnut
Street.
According to Cuenca,
as of February 2012, OVC had 20 to 30 members.
OVC gang members use various symbols to signify allegiance to their
gang, including the names Orange Varrio Cypress, Old
Town, Old Towners, Kilifore Park
Killers, Los Royal Dukes, Dukes, and Orange,
and the letters “OVC, OVECE.†Cuenca
had found these words, names, and phrases in graffiti, in gang member’s
tattoos, and on their cell phones, pieces of paper, books, computers, laptops,
and MySpace and Facebook pages and postings.
Cuenca testified “OVCX3†is
frequently used by gang members to denote allegiance to OVC and the Mexican
Mafia. This is a common marking that
represents “the name of the gang, and the X3 promotes the Mexican Mafia or the Southern
California gang subculture.â€
Based on his knowledge
and experience gained through investigating OVC-related crimes, speaking to OVC
members and associates and people in the community OVC claims as its turf, and
by reviewing police reports and talking to other police officers, Cuenca
testified OCV’s primary activities are the commission of assaults with deadly
weapons, illegal possession of firearms, and sales of methamphetamine. He also testified to two crimes committed by
other members of OVC. In 2009, OVC
member Josh Alvin Branch was convicted of possession for sale of
methamphetamine with a gang enhancement and active participation in a
gang. In 2010, OVC member Angela Laura
Navarro was convicted of possession of a firearm by a felon and active
participation in a gang.
In Cuenca’s
opinion, Michael was an active participant in OVC at the time of the instant
offense, and he committed the crime with the specific intent to benefit the
gang. Cuenca testified the gang benefits
from Michael’s act of vandalism because it claims his cell as OVC territory and
instills fear in rival gang members and jail staff. He based this opinion on personal knowledge
of OVC, conversations he had with rival gang members, and his review of
Michael’s prior contacts with law enforcement.
Michael called Tracey
Silveira-Zaldivar (Zaldivar), a school psychologist and an expert behavioral
analyst to testify. She said she met
Michael and his family when Michael was an elementary school student. In 2012, achievement tests indicated
Michael’s academic skills were that of a nine year old when he was in fact 15
years old. He was diagnosed with
Attention Deficit Hyperactivity Disorder (ADHD) and was attending school under
an individualized education plan.
Zaldivar explained ADHD is a neurological development disorder that
affects the prefrontal cortex and temporal lobe of a person’s brain. These two areas regulate impulse and
inhibition centers of the brain.
In Zaldivar’s opinion
Michael met the criteria for a “combined type,†or someone who manifests both
hyperactivity and impulsivity. In
addition, the results of his IQ test suggest he has below average reasoning
skills and could be referred to as mildly retarded. Although Michael knows the difference between
right and wrong, Zaldivar said he has difficulty assessing the cause and effect
of his own actions. In Zaldivar’s
interactions with Michael, she noticed his ADHD manifesting in his blurting out
words, acting out, poking, and playing with objects, constant movement, and
tendency to throw things. Although
Zaldivar recommended Michael receive medication for this condition, his parents
had not followed her recommendation. In
Zaldivar’s opinion, Michael’s act of carving OVCX3 was a manifestation of the
impulsive behavior associated with ADHD, although it may have occurred for
other reasons.
DISCUSSION
Primary Activities
Michael first challenges
the sufficiency of the evidence to prove the primary activities of OVC. (§ 186.22, subds. (e) and (f).) Specifically, he claims Cuenca’s testimony
about OVC’s primary activities was impermissibly based on unreliable hearsay
and insufficient to show the chief or principal occupations of the gang.
“When an appellant
challenges the sufficiency of the evidence to support a conviction, the
appellate court reviews the entire record to see ‘“whether it contains
substantial evidence—i.e., evidence that is credible and of solid value—from
which a rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.’†[Citation.] We view the facts in the light most favorable
to the judgment, drawing all reasonable inferences in its support. [Citations.]
We do not reweigh the evidence, resolve conflicts in the evidence, or
reevaluate the credibility of witnesses.
[Citations.]†(
Cal.App.4th 8, 12-13, overruled on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
Michael challenges Cuenca’s
testimony concerning OVC’s primary activities and argues Cuenca relied solely
on “unreliable hearsay†to form his opinion OVC members consistently and
repeatedly committed assaults with deadly weapons, illegally possessed
firearms, and sold methamphetamine. It
is true Cuenca based his opinion, at least in part, on hearsay evidence. However, it is also true otherwise
inadmissible evidence, like hearsay, can provide a proper basis for a gang
expert’s opinion so long as it is reliable.
(People v. Gardeley (1996) 14
Cal.4th 605, 618-619.) And, while
Michael questions the reliability of Cuenca’s hearsay sources, there is nothing
in the record to support this argument.
Leaving aside hearsay,
Michael ignores the fact Cuenca testified he personally investigated OVC
crimes, and had other personal knowledge about the gang’s origins, culture, and
criminal activities. Cuenca also testified about two specific
predicate crimes involving other OVC members, and the prosecutor submitted
court documents supporting this testimony.
Thus, this is not a case where the expert provided only conclusory
testimony as in In re Alexander L. (2007)
149 Cal.App.4th 605, 611-612, or vague, nonspecific hearsay as in
Cal.App.3d 990 and In re Leland D. (1990)
223 Cal.App.3d 251.
In short, substantial
evidence shows the primary activities of OVC include the commission of one or
more of the crimes listed in section 186.22, subdivision (e).
Specific Intent
Michael next challenges
the sufficiency of the evidence he acted with the specific intent to promote,
further or assist any criminal conduct by gang members as required by section
186.22(d). Michael contends “where a
defendant acts alone, it cannot be inferred from the mere commission of the
current offense that he intends to facilitate the criminal conduct of other
gang members.†Furthermore, he contends
the prosecution was required to present evidence “explaining what criminal
conduct the etching is intended to facilitate.â€
He cites People v. Rodriguez (2012)
55 Cal.4th 1125 (Rodriguez) in
support of these contentions. Michael’s
reliance on Rodriguez is misplaced.
In Rodriguez, our Supreme Court held the substantive offense of active
participation in a criminal street gang (§ 186.22, subd. (a)) may not be
committed by a lone gang member. (
the statutory purpose and language of the substantive offense with that of the
enhancement. The court stated, “Section
186.22(a) and section 186.22(b)(1) strike at different things. The enhancement under section 186.22(b)(1)
punishes gang-related conduct, i.e. felonies committed with the specific intent
to benefit, further, or promote the gang.
[Citation.] However, ‘[n]ot every
crime committed by gang members is related to a gang.’ [Citation.]
As such, with section 186.22(a), the Legislature sought to punish gang
members who acted in concert with
other gang members in committing a felony regardless of whether such felony was
gang related. [Citation.]†(Rodriguez,
Thus, the substantive offense requires evidence the defendant acted with
at least one other gang member, but not evidence the defendant acted with the
specific intent required for the enhancement.
(Ibid.)
The Rodriguez court also noted a lone gang member may be subjected to
the enhanced penalties provided under Section 186.22, subdivision (b)(1)
(section 186.22(b)(1)). (
the enhanced penalties provided under section 186.22(d). All of the points quoted above contrasting the
section 186.22(b)(1) enhancement from the section 186.22 subdivision (a)(1)
substantive offense, are equally applicable to the section 186.22(d)
enhancement. Both enhancements apply to
persons convicted of crimes “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 . . . .â€
(§ 186.22, subds. (b)(1) and (d).)
Accordingly, we reject Michael’s claim a gang member acting alone may
not be subjected to the section 186.22(d) enhancement. Michael also argues due process required the
prosecution to prove he committed vandalism with the intent to facilitate some
other specific identifiable gang-related criminal conduct. However, Rodriguez
expressly rejected this argument as to the section 186.22(b)(1) enhancement,
and held due process is satisfied by the statutory requirements “that the
felony be gang related and that the defendant act with a specific intent to
promote, further, or assist the gang . . . .†(Rodriguez,
This holding also applies with equal force to the section 186.22(d)
enhancement.
In this case, while
Michael acted alone, the evidence supports the jury’s determination the vandalism
was gang related and he committed it with the specific intent to promote,
further, or assist criminal conduct by OVC members. He had previously incited other gang members
to yell their gang’s name in a rollcall fashion. Then, he decided to etch one of OVC’s
identifying symbols in his cell window.
It is difficult to conceive of any non-gang-related reason for this
particular act of vandalism, or that he acted without the requisite specific
intent. Hence, substantial evidence
supports the jury’s true finding on the section 186.22(d) enhancement.
Crawford
Michael also claims
Cuenca’s expert testimony violated Crawford,
to the extent he relied on hearsay. As a
threshold matter, we note Michael did not object on confrontation grounds at
trial and, as the Attorney General points out, the issue was thus
forfeited. (Evid. Code, § 354;
Cal.4th 758, 801.) On the merits,
the use of hearsay by experts in criminal street gangs has long been
condoned. (Gardeley, supra, 14 Cal.4th at pp. 618-620.)
Nothing in
rules concerning the use of expert testimony.
(People v. Thomas (2005) 130
Cal.App.4th 1202, 1209-1210.) As the
undermine the established rule that experts can testify to their opinions on
relevant matters, and relate the information and sources upon which they rely
in forming those opinions. This is so
because an expert is subject to cross-examination about his or her opinions and
additionally, the materials on which the expert bases his or her opinion are
not elicited for the truth of their contents; they are examined to assess the
weight of the expert’s opinion. Crawford
itself states that the Confrontation Clause ‘does not bar the use of
testimonial statements for purposes other than establishing the truth of the
matter asserted.’ (Crawford, supra, 541 U.S. at p. 59,
fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.)†(People
v. Thomas, supra, 130 Cal.App.4th at p. 1210.)
Questions directed at
the reliability of Cuenca’s sources of information were a proper basis for
cross-examination, but those questions go to the weight to be given his
opinion, not its admissibility. There
was no violation of Crawford.
Defense Expert Testimony
In an effort to prove
Michael acted impulsively by carving OVCX3 into his cell window, and to negate
his ability to form the requisite specific intent, defense counsel sought to
introduce evidence of his mental disorders.
During a pretrial discussion on the matter, the juvenile court ruled
Zaldivar could testify about the most recent studies and understanding of how
the brain processes information, and analyze Michael’s test results and
diagnosis. But the juvenile court
precluded the defense from presenting evidence Michael could not “entertain
such thoughts.†On appeal, Michael
claims the juvenile court improperly limited the scope of his expert’s
testimony. We disagree.
subdivision (a) provides, “Evidence of mental disease,
shall not be admitted to show or negate the capacity to form any
limited to, purpose, intent, . . . or malice aforethought,
with which the accused committed the act.
Evidence of mental disease, mental
defect, or mental disorder is admissible solely on the
issue of whether or not the accused actually formed a required specific
intent, . . . when a specific intent crime is
charged.†Section 28 “precluded jury
consideration of mental disease, defect, or disorder as
evidence of a defendant’s capacity to form a requisite criminal intent,
but it did not preclude jury consideration of mental
condition in deciding whether a defendant actually formed the requisite
criminal intent.†(People v. Williams
(1997) 16 Cal.4th 635, 677.)
Section
29 provides, “In the guilt phase of a criminal action, any expert testifying
about a defendant’s mental illness, mental
disorder, or mental defect shall not testify as to
whether the defendant had or did not have the required mental
states, which include, but are not limited to, purpose,
intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had
or did not have the required mental states
shall be decided by the trier of fact.â€
illness when relevant to whether a defendant actually formed a mental
state that is an element of a charged offense, but do not
permit an expert to offer an opinion on whether a defendant had the
state or whether the defendant actually harbored such a
Cal.4th 529, 582, fns. omitted, overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046.)
here, the juvenile court properly limited the scope of the defense expert’s
testimony to providing background information on Michael’s ADHD diagnosis, and
the possible effects of this condition on his impulse control. In fact, Valdez testified the condition
causes severe inhibition deficiencies, which means those affected have poor
self-control and lack understanding of the cause and effects of the actions. The only limitation placed by the juvenile
court was that Valdez could not testify whether Michael had or did not have the
mental state required by the offense charged.
That determination is for the trier of fact to decide. (People
v. Smithey (1999) 20 Cal.4th 936, 968-969.)
Welfare and Institutions Code Section 702
Section 702 states in
part, “If the minor is found to have committed an offense which would in the
case of
alternatively as a felony or a misdemeanor, the court shall declare the offense
to be a misdemeanor or felony.†Michael
claims, the Attorney General concedes, and we are convinced the juvenile court
failed to make the required section 702 declaration with respect to the
gang-related vandalism in petition 002.
In spite of this
failure, “the record as a whole establishes the juvenile court was aware of its
discretion to treat the offense as a misdemeanor and to state the
misdemeanor-length confinement†(In re
Manzy W. (1997) 14 Cal.4th 1199, 1208 (Manzy)), but instead stated the felony-length confinement. During the disposition hearing, the juvenile
court did declare a separate vandalism charge in a separate petition (petition
003) was to be treated as a misdemeanor.
This convinces us the court was aware it had discretion to likewise
treat the vandalism charged in petition 002 as a misdemeanor, but instead
treated the matter as a felony.
For all of these reasons
here, unlike in Manzy, it would be
redundant to remand the matter to the juvenile court for an express declaration
under section 702 and the error is harmless.
(Id. at pp. 1210-1211.)
DISPOSITION
The judgment is
affirmed.
THOMPSON,
J.
WE CONCUR:
ARONSON,
ACTING P. J.
FYBEL, J.
name="_ftn1" title=""> [1] All further statutory references are
to the Penal Code, unless otherwise indicated.
