In re Travis R.

Filed 10/4/07 In re Travis R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Shep Zebberman, Referee. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

Travis R. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed two instances of criminal threats (Pen. Code, 422), felonies, with the findings that the offenses were committed for the benefit of a street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(B).[1]Appellant was placed in a camp community placement program and contends the record does not support the juvenile courts finding that he committed violations of Penal Code section 422. For reasons stated in the opinion, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On October 13, 2006, at approximately 5:30 or 6:00 p.m., Juan Sanchez was with his employees Jose Leyva and Jose Roberto Lopez at 406 North Bixel Street in the County of Los Angeles. Appellant was also present at the location. The property at that location had been vandalized approximately two weeks before and Mr. Sanchezs workers were attempting to weld a gate.[2] Mr. Sanchez did not attempt to close the gate because he was afraid. He had been told by the police not to close the gate until an officer was present to protect Mr. Sanchez and his workers. Prior to October 13, Mr. Sanchez had seen appellant at the above location and feared him. On October 10, Mr. Sanchez heard appellant say, If you try to weld that shit, youll be fucking sorry. At the time the statement was made, Mr. Sanchez was in fear.

While at the property, Mr. Sanchez and his workers were vulnerable. Mr. Sanchez was also afraid of what could happen to his workers and the tenants of his apartment at this location. Mr. Sanchez knew appellant prior to October 11 because appellants father lived in Mr. Sanchezs apartment. Mr. Sanchez had no doubt that he saw appellant at the location on October 13 between 5:00 and 6:00 p.m.

Mr. Leyva testified that on October 13, 2006 between 5:00 and 6:00 p.m., he was working on the gate at 406 North Bixel Street. Also present were kids from around there. The kids were young kids to older kids, and he considered the older kids to be about 25 years old. There were approximately eight older kids. The kids never said anything personally to Mr. Leyva. He spoke to police officers with the Los Angeles Police Department, who took him to the street in back of the property, where young men were being detained. Mr. Leyva identified these young men as people he had seen inside a vacant apartment and had asked to leave.

On one occasion, one young man, as he was walking along, said, Dont even think of welding. Mr. Leyva did not know who said it and it was not said directly to him. Mr. Leyva was cutting plywood and was approximately 10 meters from the gate. Mr. Leyva feared going back to 406 North Bixel because maybe they will take reprisals. [P]erhaps they will think that [Mr. Leyva] was the one. Mr. Leyva testified he [didnt] have a problem with any of them. He was asked if they had gone into the apartment and he said yes. He did not recognize appellant as someone who had gone into the apartment. He did not recognize appellant as someone who was at 406 North Bixel on that day. He recognized appellant as someone who would pass by the gate while he was working. Appellant did pass by the area of the gate on October 13 while he was working. He saw appellant with the police on October 13 and remembers telling the police he recognized him. Mr. Leyva did not tell the police that appellant said anything. He did not think and did not know if appellant was a member of a gang. He never told the police appellant threatened him.

Jose Lopez was at the subject location, fixing apartments and making repairs that needed to be made. On October 13 he was there with Mr. Leyva to weld the gate. About 10 or 12 individuals were in the street behind the building. They yelled that as soon as they welded the door, something was going to happen to [them.] Mr. Leyva was present when these individuals yelled at them. He and Mr. Leyva were working inside the apartment and Mr. Lopez could hear the screams all of the way inside. Mr. Lopez was not sure if appellant was in the group outside of the apartment because there were so many individuals. Appellant was there on several occasion. When asked if appellant ever made any threats to him, Mr. Lopez responded that appellant would make a gesture. The court described the gesture as a kind of flicking his shoulder or elbow outward. This happened way before October 13. Mr. Lopez was afraid of appellant and all of them. He was very nervous while working and about shutting the gate on October 13. He was nervous the whole day and could not concentrate on his work. When he needed to go into the street to pick up a tool, he looked around to make sure no one was there. On October 13 between 2:00 and 4:00 p.m., he saw appellant with one other young man near the gate. Mr. Lopez told the police he recognized appellant. He testified he mixed this young man, him, up with somebody else because [he] saw him in a distance. Mr. Lopez feared for his safety by testifying because he thought they know where [he] live[s], and you know how kids are. Mr. Lopez was referring to appellant and his siblings who were in the hallway of the courthouse. On October 13, he told the police that appellant said something to him, but testified he was confused. Mr. Lopez was now looking at appellant from a closer distance. He did not hear anyone say anything about a gang. Appellant never threatened or intimidated him. Mr. Lopez claimed that even though he was afraid to testify, he was telling the truth and not changing his story.

On October 13 between 5:00 and 6:00 p.m., Los Angeles Police Officer Joseph Getherall responded to a call at 406 North Bixel with his partner Tom Loera. Approximately 12 to 14 individuals, including appellant, were there. Officer Getherall spoke to Mr. Sanchez who stated that on October 13 he and his workers had been threatened. He said there were a few people making threats towards him and several people were trespassing on his grounds. Officer Getherall spoke to Mr. Lopez and Mr. Leyva. After speaking to Mr. Sanchez, Officer Getherall saw appellant behind the property on Furman Street. Officer Getherall was shown the gate at the back of the property at 406 North Bixel because the gate was the main reason police were brought onto the property. Mr. Sanchez wanted the police to come because people were threatening him and his workers that if the gate was shut, certain things were going to happen. Mr. Sanchez stated he was in fear because he had seen these individuals spray paint on his walls and knew they were gang members. Mr. Sanchez told him that appellant threatened him on October 13. Each of the victims, Mr. Sanchez, Mr. Levya and Mr. Lopez, were taken separately in a car to a field show up. Mr. Sanchez was approximately 15 yards from appellant, the lighting was good and when he identified appellant, there was no hesitation. Mr. Leyva identified appellant and stated he had been brought to 406 North Bixel to weld a gate shut. Mr. Leyva stated appellant was making threats towards him. He stated he was in fear; they made threats towards him if he welded the gate shut.

Los Angeles Police Officer Iris Romero was at the subject location at approximately 4:00 p.m. on October 13 and saw appellant. When Officer Romero arrived at the scene appellant was lined up with several other juveniles. Officer Romero speaks and writes Spanish and is often used to translate. She worked with Officers Getherall and Loera. She spoke with Mr. Lopez in Spanish in front of the location where he was threatened. Mr. Lopez went with Officer Romero to the field identification and he identified appellant as threatening him regarding the gate. Mr. Lopez stated appellant threatened him stating, If they were to close the gate, the iron gate, that the minor said, Youd be sorry. Appellant stated, If you close the gate, we will fuck you up.

Los Angeles Police Officer Brent Phillips was assigned to Rampart Gang Enforcement Detail. He was familiar with Diamond Street gang. The gang has three or more members, a hand symbol, and has adopted articles of clothing or hats. Diamond Street gang uses Dallas Cowboys and Detroit Tigers hats. Common activities of this gang are drug sales, assault with a deadly weapon, attempted murder, murder, criminal threats and grand theft auto. The gang has a certain territory and rival gangs. Officer Phillips had known appellant for three years and knows him to be a Diamond Street gang member. On 10 or 20 occasions, appellant admitted being a Diamond Street gang member. Officer Phillips also knew appellant to be a member of that gang due to his tattoos, being arrested with other gang members and associating with numerous gang members in their territory. Appellant uses the street moniker of Little Sweepy. Officer Phillips is familiar with the subject gate. The gang members do a lot of their activity on Furman, tagging, narcotics use, vandalism. There is a direct correlation in the amount of gang activity between Bixel and Furman when the gate is opened or locked. Crime goes up dramatically when the gate is open. When the gate was locked by the owner with the assistance of the police, crime went down because gang members could not hang out on the crest of the hill. The gang members have to go down the street and it makes it easier for the police to see them. It was Officer Phillips opinion if the property owner and/or handyman employees were trying to weld shut the gate that leads to Furman at 406 North Bixel Street and individual members in a group of approximately 9 or 10 male individuals approached these workers and threatened them if they closed the gate, the threats were done in furtherance of a criminal street gang.

In defense, appellants brothers testified they and appellant were at a funeral the morning of October 13, 2006 and then at a family dinner. They arrived at Furman Street approximately 10 minutes before the police arrived. There were about 11 people there just talking. One of the brothers testified he was a member of the Diamond Street Gang.

In finding count 2 (victim Lose Leyva) and count 3 (victim (Jose Lopez) and the special allegations with regard to those counts, true, the court stated it believed the failure of an in-court identification was due to fear.

DISCUSSION

Appellant contends the evidence was insufficient to establish he violated Penal Code section 422 in counts 2 and 3. He claims there was no immediacy to the threats and the victims were not in sustained fear. We disagree. The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court must review the whole record in the light most favorable to the judgmentbelow to determine whether it discloses substantial evidence--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.] (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)

This standard applies to cases based on circumstantial evidence. [Citation.] The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.] The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witnesss testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Penal Code section 422 provides in pertinent part, Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties history can also be considered as one of the relevant circumstances. [Citations.] [Citation.] (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

Appellant threatened Mr. Lopez and Mr. Leyva that if they proceeded with the work they were hired to do, they would be fucking sorry, and that appellant and his fellow gang members would fuck [them] up. Previously, Mr. Lopez and Mr. Leyva had been threatened and told not even to think about welding the gate shut. As a result of the threats, Mr. Lopez and Mr. Leyva were in sustained fear for their safety. They feared appellant and his fellow gang members would retaliate if they continued working on the gate and decided not to finish the work on the gate until police were present. Mr. Lopez testified he was afraid of appellant and his fellow gang members. He was nervous the whole day and could not concentrate on his work. When he needed to go into the street to pick up a tool, he looked around to make sure no one was there. Mr. Leyva testified he was still too frightened to return to Mr. Sanchezs apartment building. The evidence here was more than sufficient to support the courts findings that appellant violated Penal Code section 422 with reference to victims Lopez and Leyva.

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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[1] A third count of criminal threats was dismissed.

[2] Mr. Sanchez testified that the locks and safety device had been cut and that they could not place the locks back. They had to actually weld it back. The gate led to Furman Street. The property had access to both streets, Bixel and Furman. As a result of the locks and security measures being removed, there was free access between 406 North Bixel and Furman.