In re Ruben F.

Filed 3/13/07 In re Ruben F. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from an order of the Superior Court of Los Angeles County.

Shep A. Zebberman, Juvenile Court Referee. Affirmed in part and stricken in part.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF PROCEDURAL AND FACTUAL HISTORY

On March 6, 2006, the Los Angeles County District Attorney filed a petition alleging that appellant came within the provisions of Welfare and Institutions Code section 602 in that he unlawfully possessed a concealable firearm. (Count 1, Pen.Code

12101, subd. (a)(1).) It was further alleged that the offense was committed for the benefit of, at the direction or, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. Appellant denied the allegations contained in the petition.

An adjudication hearing was held on March 28, 3006. The juvenile court found the allegations of the petition to be true and sustained the petition. The court ordered that appellant remain a ward of the court, and that he be placed in a nine-month camp community placement program, and that the maximum term of confinement was seven years, eight months. Appellant was awarded 128 days of predisposition credit and was ordered not to associate with anyone known to him to be a member of a criminal gang, especially the Drifters.

Appellant filed a timely notice of appeal from the order sustaining the petition.

STATEMENT OF FACTS

Around 4:00 p.m. on March 2, 2006, Los Angeles Police Officer Danny Arrona, a member of the Rampart Division Gang Enforcement Detail, and eight other gang unit officers went to an apartment complex on Magnolia in Los Angeles. Four individuals who were in front of the building were immediately detained outside. Officer Arrona then opened the front door and saw appellant in the hallway. Appellant stopped, looked in the officers direction, made furtive movements to his waistband area with both hands and ran away from the officer and out a back door. As appellant ran, his hands remained at this waistband.

Officer Arrona and another officer followed appellant. The back door led to a basement stairway to a laundry room. As the officers approached, appellant was ascending the stairs from the laundry room. Officer Arrona detained and handcuffed appellant. Later, Officers Arrona and Faber searched the laundry room, where Faber recovered a .38 caliber handgun from inside a hole to the side of the wall of the laundry room. The gun had three live rounds in the chamber.

In the police vehicle, Officer Arrona read appellant his Miranda rights. Appellant stated he understood his rights and that he wished to waive them. Officer Arrona asked appellant why he ran away from the officer. Appellant said that he was scared and acknowledged the fact that he had a handgun. Appellant stated: I got the gun from a black guy on 20th Street. Later, appellant was interviewed at the police station by Officer Edgar Hernandez. Officer Hernandez advised appellant of his Miranda rights. Appellant agreed to speak to the officer and wrote, dated and signed the following statement: On the date of the 28th, some black guy was walking down 15th Street. And he told me has had a gun. And he said he need [sic] to get rid of it. And I took it and stashed it in the laundry room. Me and my homies were outside. And the cops found it.

Officer Daniel Cota was a police officer for six years currently assigned to the Rampart Division Gang Enforcement Detail. For the past year and one-half, he had been working the Longwood Drifters gang. He received 40 hours of gang training at the Los Angeles Police Academy, attended a five-day narcotics school that touched on gangs and was a member of the California Gang Investigator Association. During his four years at Rampart Division, Officer Cota either assisted in or conducted over 500 active investigations regarding gang crimes within the Division, which resulted in 300 to 400 gang arrests. Officer Cota also worked with and spoke with ten-year gang detail officers regarding Rampart Division gang crimes. Officer Cota also read literature and watched videos relating to gang crimes and gang culture, especially relating to Hispanic gangs in Los Angeles. Officer Cota had qualified as a gang expert in criminal court 10 to 15 times.

For a year and one-half preceding the hearing in this case, Officer Cota had been working with the Drifters gang. He qualified approximately three times as a gang expert regarding the Drifters gang. During this time, he was able to build expertise about the Drifters gang. According to Officer Cota, the Drifters have been a gang in Los Angeles since the early 1960s. The Drifters started out as a car club, then became a gang and started committing crimes within the city to protect themselves from surrounding gangs.

Officer Cota explained that gangs are territorial and that the Drifters territory is in the area covered by the Rampart Division. The gangs north border in Olympic, their east border is Hoover, their south border is Venice, and their west border is Vermont. The location on Magnolia is within the Drifters territory. Officer Cota stated that its a stronghold of the Drifters gang within those boundaries. Officer Cota had stopped numerous Drifters gang members in front of and inside that location.

Drifters gang member have a gang sign: making the shape of a D by using your pointer finger and thumb create a circle with all the other fingers appointing straight up in the air. Another Drifters gang symbol is created by gang members putting their hand over their head with their fist up. Officer Cota has seen Drifters gang members flash both signs.

Officer Cotas job duties include gathering information as to the number of active participants in a gang. His data sources include: Cal Gangs [a data base program]; I cards which include name, address, moniker, school, and photo; and FI cards, maintained from field interviews which contain, identification numbers, names addresses, schools, monikers, and gang affiliations. According to these sources, there are currently about 30 to 40 active members of the Drifters gang. Officer Cota has investigated between 75 and 100 crimes allegedly committed by the Drifters gang. These crimes have included vehicle thefts, robbery, criminal threats, murder, ADWs, narcotics violations, and weapons violations.

Officer Cota spoke with appellant on the day of his arrest and formed the opinion that appellant is a member of the Drifters gang. His opinion was based on the following: appellant was seen being dead center in the boundaries of the Drifters gang two times on the day he was arrested; appellant was seen with other Drifters gang members; when Officer Cota spoke with appellant at the Rampart station, appellant admitted that he was from the Drifters gang; and appellant had the gang moniker Goofy.

From prior contacts, Officer Cota also recognized the four individual detained in front of the Magnolia location as admitted Drifters gang members. Officer Cota knew that Miguel Mayorga, one of the four individuals, had a conviction for stealing vehicles. Officer Cota had stopped Mayorga on several occasions and detained him for a number of violations. During one of these conversations, Mayorga told Officer Cota about his arrest and conviction. Walter Fernandez was another individual detained and then released at the scene. Fernandez was a documented Drifters gang member with the moniker of Blocks. Officer Cota had numerous contacts with Fernandez who told Officer Cota that he is currently on parole for vehicle theft.

Officer Cotas partner arrested another Drifters gang member, Juan Garcia, in February 2006. Garcia was known to carry firearms and suffered a firearms conviction. Garcia, whose moniker was Silence, was charged with the firearm allegation in February 2006. Officer Cota testified as an expert in Garcias case. Officer Cota did not recall the make and model number of the weapon that Garcia was alleged to have carried, the precise firearm allegation involved, or the section of the Penal Code to which the conviction related.

Officer Cota testified that the primary activity of the Drifters street gang is committing crimes ranging from murder to robbery, ADWs, weapons charges, carrying concealed weapons, narcotics violations, drinking in public and municipal code violations. Officer Cota gave the opinion that on March 2, 20026, appellant carried a .38 caliber, loaded with three rounds, with the specific intent to benefit the Drifters. The officer based his opinion on the following factors: the area in which appellant was arrested; the manner in which he was observed holding his waistband; the fact that the location he was at was a Drifters gang stronghold; the fact that appellant admitted being a Drifters member and having a moniker; and the fact that the other individuals appellant was with were documented Drifters gang members. Officer Cota testified that since the location was a stronghold for Drifters, gang members usually carry weapons to protect their turf due to ongoing street wars with bordering gangs. The act of carrying a weapon shows allegiance to the gang, promotes the gang member within the gang and benefits the gang because it provides protection and allows the weapon-holder to commit other crimes against other gangs and other citizens. Specifically, it allows them to commit robberies and carjackings.

Appellant did not present any witnesses.

CONTENTIONS ON APPEAL

Appellant raises contentions on appeal in two specific areas: 1) alleged discovery violations by the prosecutor resulting in an unfair trial on gang enhancement allegations[1]and 2) insufficiency of the evidence relating to the gang activity enhancement. Specifically, relating to the sufficiency of the evidence, appellant contends that the evidence failed to prove there was primary gang activity during statutorily defined period and the evidence of a predicate offense may not be established based on hearsay alone.

The petition alleged, pursuant to Penal Code[2]section 186.22, subdivision (b) (1)(A), that appellants gun offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. A criminal street gang is defined as any ongoing association of three or more persons that shares a common name or common identifying sign or symbol; has as one of its primary activities the commission of specified criminal offenses; and engages through its members in a pattern of criminal gang activity. ( 186.22, subd. (f).)

The phrase pattern of criminal gang activity is defined in subdivision (e) of section 186.22 as the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the offenses enumerated in that subdivision, provided at least one of these offenses occurred after the effective date of this chapter (September 26, 1988) 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.[3]( 186.22, subd. (e).) Whether gang related or not, past crimes by members of the same gang, qualify as proof of predicate offenses. Additionally, the charged crime may also serve as a predicate offense. In fact, a pattern of criminal gang activity can be proven through evidence pertaining to the charged offense and one other offense committed on a prior occasion by the defendants fellow gang member. (People v. Loeun (1997) 17 Cal.4th 1, 4-5; People v. Gardeley (1996) 14 Cal.4th 605.) However, [c]onclusional testimony that gang members have previously engaged in the enumerated offenses, based on nonspecific hearsay and arrest information which does not specify exactly who, when where and under what circumstances gang crimes were committed, does not constitute substantial evidence. [Citation.] (In re Jose T (1991) 230 Cal.App.3d 1455, 1462.)

During the juvenile court hearing, the evidence offered on the predicate offenses consisted of the following: Miguel Mayorga told Officer Cota about his arrest and conviction for stealing vehicles. Walter Fernandez told Officer Cota that he was on parole for vehicle theft, and Officer Cota knew Juan Garcia suffered a firearms conviction in February 2006. The evidence also was that Officer Cota did not recall the make and model number of the weapon that Garcia was alleged to have carried, the precise firearm allegation involved, or the section of the Penal Code to which the conviction related.

Respondent concedes that based on this evidence, it would be sheer speculation to assume that the [predicate] offense was committed within the relevant three-year period. As a result, neither Mr. Mayorgas nor Mr. Fernandezs offense can be considered a predicate offense for purposes of the gang enhancement statute. The remaining evidence of a predicate offense was regarding a firearm conviction for Mr. Garcia. As to this offense, respondent acknowledges there was no evidence presented as to the nature of the firearm offense involved in that case. In other words, there was no evidence that Mr. Garcia committed a statutorily enumerated offense. (Emphasis in original.)

We are in agreement with the contention made by the appellant and the concession by respondent regarding the sufficiency of the evidence to sustain the gang activity enhancement. In addition, because of this resolution, we will not address appellants initial contention regarding the failure to provide discovery. We will note, however, that more timely and complete discovery regarding the predicate offenses and the witnesses who would have been presenting the evidence to support this proof might have led to a different result in the juvenile court and eliminated the need for this appeal.

DISPOSITION

The judgment of the trial court that appellant unlawfully possessed a concealable firearm is affirmed. The trial court is directed to strike the criminal street gang enhancement.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

BOLAND, J.

FLIER, J.

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Analysis and review provided by Carlsbad Property line Lawyers.

[1] Respondent concedes that the gang enhancement finding must be stricken due to the insufficient evidence to support it. Therefore, respondent felt it unnecessary to address appellants related contention that the gang enhancement should be stricken because he was denied a fair trial as a result of discovery violations on the part of the prosecutor.

[2] All further undesignated statutory references are to the Penal Code.

[3] These are what are often referred to as the predicate offenses.