IN RE: WILMER M.

Reset A A Font size: Print

Court of Appeal, Second District, California.

IN RE: WILMER M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. WILMER M., Defendant and Appellant.

B210434

Decided: February 24, 2010

Mary Bernstein, 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, Senior Assistant Attorney General, Kenneth C. Byrne, Michael C. Keller and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The juvenile court found that Wilmer M. had committed the crimes of second degree robbery, and assault by means likely to produce great bodily injury, and that Wilmer had committed the offenses for the benefit of a criminal street gang.   The court ordered Wilmer placed in a camp program, with an order that his maximum term of confinement was not to exceed 15 years, 4 months.   The court also ordered that a series of probation conditions imposed in a prior juvenile proceeding were to remain in full force and effect, and added two additional conditions.   We affirm the juvenile court's findings that Wilmer committed a robbery and an assault, but find the evidence is insufficient to sustain the court's gang benefit finding, and, for that reason, remand for a new disposition hearing.   In addition, we find a probation condition which commands Wilmer not to participate in gang activity should be modified to include a “knowingly” element, a matter which may be addressed in new disposition orders.

FACTS

On May 14, 2008, at about 3:30 p.m. in the afternoon, five male Hispanics approached Jose I. while he was riding his skateboard, listening to his iPod. One of the males demanded Jose's iPod. When Jose said that he did not have one, the male hit him in the nose.   A second assailant grabbed Jose by the backpack and began punching him in the head.   A third assailant, wearing a black long-sleeved T-shirt, hit Jose in the head with a hammer and took his skateboard.   The fourth and fifth assailants blocked Jose's escape.   Once the beating ended, Jose ran home, from where an ambulance transported him to the hospital.

Los Angeles County Sheriff's Deputy Roberto Reyes was on patrol at around 3:30 in the afternoon when he received a radio call regarding five Hispanic robbery suspects, with a specific description that one of the suspects was wearing checkered shorts and a white T-shirt.   At a location “about three blocks or so” from the reported robbery scene, Deputy Reyes saw of group of five males matching the description he had received over his radio.   As Deputy Reyes approached the quintet, he saw one of the males drop “what looked like some objects from his hand.”   Deputy Reyes immediately detained the group, and, after talking to them for about 15 minutes, and obtaining their identification, found a hammer and brass knuckles in the location where he had seen the one male drop the “objects.”   Deputy Reyes and other officers transported the five males to a street near Jose's house, where Jose (sitting in the ambulance) separately identified each male's attire and described what each identified assailant had done during the robbery.

Los Angeles County Deputy Sheriff Ericka Gooseberry interviewed Jose in the emergency room at the hospital.   Jose gave specific descriptions of the attire of each of the five assailants who had attacked him.

In June 2008, the People filed an amended petition (Welf. & Inst.Code, § 602) alleging that Wilmer had committed the crimes of robbery and assault by means likely to produce great bodily injury.1  At a hearing in June 2008, Jose testified regarding the nature of the attack and robbery, and Deputies Gooseberry and Reyes testified about their actions on the day of the incident.   Booking photographs, which corresponded with Jose's specific descriptions of the clothing of his assailants, were introduced into evidence.   For his part, Jose maintained that that he could not identify any of the assailants in court, but acknowledged that, about a week before the hearing, he had received a threat from an unknown individual warning him that he would be beaten up if he identified anybody in court.   Los Angeles County Deputy Sheriff Daniel Leon testified as a gang expert.   His testimony is discussed more fully below.   Wilmer did not present any defense evidence.   The juvenile court found the allegations against Wilmer to be true.

DISCUSSION

I. The Gang Finding “Intent” Element

Wilmer contends the juvenile court's gang benefit finding must be reversed because it is not supported by substantial evidence.   More specifically, Wilmer argues the evidence does not support a finding that he had the required “specific intent” to promote, further, or assist in criminal conduct by his gang at the time he committed his robbery and assault offenses.   We disagree.

A. The Standard of Review

When a party presents a claim on appeal that the evidence is insufficient to support a finding in a criminal case, we follow well settled rules.   We review the evidence in the record in the light most favorable to the finding, and presume the existence of every fact the trier of fact could reasonably deduce from the evidence.   We may not substitute our own conclusions for those reached by the jury.  (People v. Bolin (1998) 18 Cal.4th 297, 331;  and see People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322 [the standard is the same on review of a gang benefit finding].)   With regard to the element of specific intent, this standard of review adduces a more specific rule:  because a party's specific intent is rarely admitted or otherwise susceptible of direct proof, it may be inferred from evidence of the circumstances of a charged offense;  reasonable inferences drawn by the trier of fact from the circumstances of the offense are sufficient to constitute substantial evidence of intent.  (People v. Pre (2004) 117 Cal.App.4th 413, 420;  People v. Bloom (1989) 48 Cal.3d 1194, 1208.)

B. The Evidence

In addition to Jose's testimony establishing a five-on-one assault and robbery, the remaining evidence at Wilmer's juvenile hearing, largely presented through the testimony of the People's gang expert, Deputy Leon, further established the following facts:  (1) The attack occurred within the “territory or turf” of the Surenos 13 gang;  (2) Four of the five assailants were self-admitted members of the Surenos 13 gang, and the fifth assailant also had to be a member of gang because the gang's members “will not allow other individuals to commit ․ crimes or to hang out with them without being a member.  [¶] And they have very explicit guidelines, so to speak, in their culture.   And they would not allow another individual or an outsider to commit their crimes with them;” (3) Wilmer was a self-admitted member of the Surenos 13 gang with a gang moniker of “Ese smokes;” (4) Surenos 13 gang members commit “strong-armed” street robberies, narcotics sales, and “lots of vandalisms;” and (5) A hypothetical crime with facts similar to the attack on Jose would have been committed in the interests of the Surenos 13 gang because “the act was committed within the territory that the gang claims.   The act [was] not only to gain some monetary value, but [it was] also to gain intimidation and fear with the community in the territory that they were claiming.”

C. Analysis

The evidentiary elements summarized above are sufficient to support the juvenile court's reasonable inference that, at the time he committed his crimes, Wilmer did so with the specific intent to promote his gang's criminal activities.

We agree with Wilmer's abstract statement of law that a gang expert may testify regarding the nature of a gang's culture and criminal activities, but may not testify that a specific individual possessed a specific intent in committing a in committing an offense. (see, e.g., In re Frank S. (2006) 141 Cal.App.4th 1192, 1196, citing People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658.)   But that is not what happened at Wilmer's hearing.   We simply disagree with Wilmer's assessment that, “instead of presenting substantial evidence of [his] specific intent to promote, further, or assist in the criminal conduct by gang members, the prosecution provided ․ speculations and suspicions as to what may have motivated [Wilmer] to commit the robbery․”  It is not correct, as Wilmer suggests, to say that Deputy Leon essentially testified that “no gang member could do anything wrong in the company of other gang members without having committed a gang-related offense ․ even encompass [ing] infractions such as jaywalking.”

Deputy Leon painted a broad panorama of the Surenos 13 gang, then placed a particularly described crime into that picture, and then tied the specific crime together with the gang's known nature, all to explain how the actors in such a crime would have acted with the intent to further the gang's interests.   The prosecutor did not ask Deputy Leon whether every crime in the Surenos 13's territory would be “gang-related,” and Deputy Leon did not make such an assertion.   Deputy Leon testified that an attack and robbery by five gang members, acting in coordinated concert, against a lone victim, in the gang's territory, would be accompanied by the actors' specific intent to benefit the gang.   We find that a reasonable inference.

Wilmer's reliance on Garcia v. Carey (9th Cir.2005) 395 F.3d 1099 (Garcia ), and Briceno v. Scribner (9th Cir.2009) 555 F.3d 1069 (Briceno ), do not persuade us to reach a different result.   In Garcia, the Ninth Circuit Court of Appeals affirmed the district court's decision to grant a defendant's petition for writ of habeas corpus on the ground that the prosecution had failed to present substantial evidence showing the defendant had intended, at the time he committed his robbery offense, to advance his gang's further criminal activities.  (Garcia, supra, at pp. 1102-1104.)   As the Ninth Circuit saw the evidence:  “The expert's testimony [was] singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery ․,” and evidence showing merely that the robbery had been committed within the boundaries of gang's “turf” was not sufficient to prove an intent to promote the gang's further criminal activities.  (Id. at p. 1103.)   Basically, Garcia stands for the proposition that the evidence must show a defendant had the specific intent for his or her current crime to have the effect of promoting his or her gang's future criminal endeavors.   Briceno is much the same.

Even assuming we ignored the decisions by our state's Courts of Appeal which have observed that the Ninth Circuit's Garcia opinion rests on a misinterpretation of the gang benefit statute (see. e.g., People v. Hill (2006) 142 Cal.App.4th 770, 773-774), we would find that the Ninth Circuit's requirements for the quantum of evidence needed to support a gang finding are satisfied in Wilmer's current case.   Viewed in the light of the substantial evidence test, Deputy Leon's gang testimony at Wilmer's trial filled in the types of evidentiary holes which the Ninth Circuit dug up in the Garcia case.   Deputy Leon testified that a five-on-one crime of the nature committed by Wilmer and his cohorts would “gain intimidation and fear within the community in the territory that [the gang was] claiming.”   The reasonable inference is that the current crime would facilitate the gang's further/future criminal activity by intimidating local residents into submitting to further/future crimes, and/or into declining to report, or assist in the investigation and prosecution of further/future crimes.

II. The Gang Finding's “Primary Activities” Element

In a supplemental brief filed with permission, Wilmer contends the juvenile court's gang benefit finding must be reversed because substantial evidence does not support the court's implicit, requisite, sub-finding that one of the “primary activities” of the Surenos 13 is the commission of crimes delineated in the gang benefit statute.  (See Pen.Code, § 186.22, subds. (e) & (f).)  We agree.

A. The Evidence

As noted above, Deputy Leon testified as an expert on the Surenos 13 gang.   During Deputy Leon's testimony, the following series of questions and answers were asked and provided:

“[The Prosecutor]:  When you say this is your ‘assigned gang,’ are you therefore then personally familiar with the types of crimes that this particular gang commits?

[Deputy Leon]:  Yes, I am.

[The Prosecutor]:  What are some examples of those types of crimes?

[Deputy Leon]:  They're very well known for street robberies, strong-armed.

[The Prosecutor]:  Anything else?

[Deputy Leon]:  Narcotics sales.

[The Prosecutor]:  Anything else?

[Deputy Leon]:  Lot's of vandalisms as well.”

B. Analysis

We agree with Wilmer that the testimony reproduced above does not establish that one of the “primary activities” the Surenos 13 gang is the commission of crimes specified in the gang benefit statute.   The prosecutor did not ask Deputy Leon to identify any of the “primary activities” of the gang.   At best, Deputy Leon was asked about, and provided evidence regarding “the types of crimes that this particular gang commits.”   In our view, there is a material difference between the “types of crimes committed” by the members of a gang, and whether one of the “primary activities” of the gang is the commission of any particular crimes.  (In re Alexander L. (2007) 149 Cal.App.4th 605, 612-614.)   Deputy Leon's statement that he had investigated “numerous” crimes involving the Surenos 13 gang does not overcome the evidentiary void for the same reason.  “Numerous” acts by a group does not, in our view, equate with the “primary activities” of the group.   Numerous means many in number, whereas primary means constituting a principal part.   Because the deputy was not asked to explain the “primary activities” of the Surenos 13 gang, that evidentiary foundation for the juvenile court's finding is lacking.   We do not suggest that certain talismanic testimony is required to establish the “primary activities” element, but, whatever language is employed, it must impart grounds for a finding to the effect that one of the principal part of the gang's activities is the commission of crime-related acts.

III. The Probation Condition Issue

Wilmer contends, the People largely agree, and we find that a probation condition should be modified.   Probation condition No. 15A states:  “Do not participate in any type of gang activity.”   This condition should provide:  “Do not knowingly participate in any type of criminal street gang activity.”  (See, e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 629-631.)

DISPOSITION

The juvenile court's findings that Wilmer committed the crimes second degree robbery, and assault by means likely to produce great bodily injury, are affirmed.   The court's finding that Wilmer committed the offenses for the benefit of a criminal street gang is reversed.   The cause is remanded to the juvenile court with directions to reconsider Wilmer's disposition, and, in that context, and in accord with this opinion, to modify the probation condition directing him not to knowingly participate in any type of criminal street gang activity.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

MOHR, J.1

FOOTNOTES

FN1. Allegations of criminal offenses were tried against all five assailants at a joint hearing in the juvenile court.   Only Wilmer is involved in the current appeal..  FN1. Allegations of criminal offenses were tried against all five assailants at a joint hearing in the juvenile court.   Only Wilmer is involved in the current appeal.

FN1. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution..  FN1. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

FLIER, J.

Copied to clipboard