THE PEOPLE v. CURTIS LEE MOORE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

A jury convicted appellant Curtis Lee Moore of challenging a person to fight in a public place (Pen.Code, § 415, subd. (1)),¹ and found true that appellant committed the offense for the benefit of, 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)).  On appeal, appellant contends sufficient evidence supports neither the substantive violation nor the gang allegation.   We find sufficient evidence supports the section 415 conviction, but insufficient evidence supports the gang allegation finding.   We affirm the section 415 conviction, vacate the gang allegation finding, and remand to the trial court for resentencing in accordance with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In early February 2008, a high-ranking member of the Eastside Crips gang shot a Bakersfield Police Department gang unit officer.   Several gang-related fights and acts of violence occurred during the following week.   Appellant was known to the police as a high-ranking member of the Eastside Crips.

On February 15, 2008, Bakersfield police officers were dispatched to McGee's at the Ice House (McGee's), a bar and nightclub, on reports of a possible gang fight.   Officer Brent Stratton arrived on the scene and noticed appellant standing in the parking lot, in an “angry” stance, with fists clenched, yelling at someone to “quit being a bitch” and “come back here.”   Appellant also stood out because he was well over six feet tall and Officer Stratton estimated about 240 pounds.

Officer Stratton looked in the direction appellant was yelling and saw Charles Bell, a known member of the Country Boy Crips gang, which has a violent rivalry with the Eastside Crips.   Bell was 20 to 25 feet away from appellant and entering a vehicle, which then immediately fled the scene.   Officer Stratton arrested appellant without incident for challenging Bell to fight in a public place.

At trial, both parties stipulated to the Eastside Crips being a “criminal street gang” for purposes of section 186.22, subdivision (d).  The prosecution also presented a gang expert who opined, based on a hypothetical with facts parallel to the case, that someone in appellant's position performing appellant's actions would be doing so for the benefit of a gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members, because a challenge to fight indicates authority and gains respect from both the challenger's gang and the rival gang, as well as the community.   The true finding on the gang allegation gave the trial court discretion to sentence appellant to a state prison term for what would otherwise have been a misdemeanor conviction. (§ 186.22, subd. (d).)  The trial court sentenced appellant to the upper term of three years in state prison, based on aggravating factors of appellant's numerous prior convictions, sustained juvenile petitions, and associated prior prison terms and juvenile commitments served, his unsatisfactory performance on parole, and the fact he committed another crime while court proceedings were pending for an earlier offense.

DISCUSSION

Appellant challenges the sufficiency of the evidence presented at trial to support his conviction both for challenging a person to fight in a public place, and the associated gang allegation.

Standard of Review

“In considering a challenge to the sufficiency of the evidence ․ we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.  [Citation.]  If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.  [Citation.]  ‘A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.’  [Citation.]”  (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar ).)

I. SUFFICIENT EVIDENCE SUPPORTS THE SECTION 415 CONVICTION FOR CHALLENGING A PERSON TO FIGHT IN A PUBLIC PLACE

Appellant contends his section 415 conviction must be reversed because the evidence fails to show Bell actually heard appellant's words.   We fail to find section 415 imposes a subjective requirement that the challenged person actually hear the challenge.

Section 415 states in pertinent part:  “Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:  [¶] (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.” ²

When construing statutes, our goal is “ ‘ “ ‘to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.’ ” '  [Citation.]”  (Albillar, supra, 51 Cal.4th at pp. 54–55.)   We give the words of the statute their ordinary and usual meaning and view them in their statutory context, “ ‘ “because the statutory language is usually the most reliable indicator of legislative intent.” ’  [Citation.]”  (Id. at p. 55.)   If the statutory language is clear and unambiguous, the plain meaning controls and courts neither need, nor should indulge in, statutory construction.  (Ibid.;  People v. Gardeley (1996) 14 Cal.4th 605, 621 (Gardeley ).)

As noted above, section 415, subdivision (1) imposes a misdemeanor punishment on “[a]ny person who unlawfully fights in a public place or challenges another person in a public place to fight.”   Under the plain meaning rule, there is no requirement the challenge be heard, responded to by the person challenged, or even be “inherently likely to provoke an immediate violent reaction.” (§ 415, subd. (3).)  Had the Legislature intended to add additional qualifications to the offense proscribed in subdivision (1), it would have done so.  (See Gardeley, supra, 14 Cal.4th at p. 622.)

Officer Stratton testified he saw appellant in an aggressive stance, with fists clenched, yelling “quit being a bitch” and “come back here” toward Bell in a public parking lot.   Substantial evidence supports the jury's finding that appellant was challenging a person in a public place to fight and we affirm the conviction.  (See In re Cesar V. (2011) 192 Cal.App.4th 989, 999 (Cesar V.).)

II. INSUFFICIENT EVIDENCE SUPPORTS THE SECTION 186.22 GANG ALLEGATION FINDING

Appellant next contends his section 186.22, subdivision (d) gang allegation true finding must be vacated because the evidence fails to show he had the specific intent to promote, further or assist the criminal conduct of gang members when he challenged Bell to fight.   We agree.

Section 186.22, subdivision (d) states in pertinent part:  “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years․”  The jury may infer from a defendant's acts that the defendant acted with the requisite intent, if such an inference is warranted by the evidence.  (People v. Hood (1969) 1 Cal.3d 444, 458, fn. 7.) However, “[n]ot every crime committed by gang members is related to a gang.”  (Albillar, supra, 51 Cal.4th at p. 60.)

In People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon ), this court found insufficient evidence supported a true finding for a section 186.22, subdivision (b)(1) gang enhancement to a defendant's conviction for receiving stolen property (a truck), and possession of an unregistered gun.³  A gang expert testified that driving a stolen truck in one's own gang's territory, or possession of an unregistered gun, furthered the gang's activities because any number of crimes could be conducted and then the stolen vehicle or the gun, as applicable, could be disposed of easily without being tied to the person committing the crime.   The gang expert's testimony was the only evidence on the gang enhancement issue.   We noted the gang expert simply informed the jury, improperly, of how he felt the case should be resolved and no facts could support an opinion as to whether the defendant and his passenger were acting on their own behalf the night they were arrested, or were acting on behalf of their gang.  (Ramon, supra, 175 Cal.App.4th at p. 851.)  “While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation.   Speculation is not substantial evidence.   [Citation.]”  (Ibid.) Expert testimony must be based on reliable materials (id. at p. 852.), and standing alone it is insufficient to establish the offense was gang-related.  (Ibid.;  People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez ).)   We concluded in Ramon, “in order to sustain the People's position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang.   Such a holding would convert section 186.22[, subd.] (b)(1) into a general intent crime.   The statute does not allow that.  [Citations.]”  (Ramon, supra, 175 Cal.App.4th at p. 853.)

Similarly here, the jury could only have relied on the gang expert's testimony for evidence that appellant had the specific intent that his challenge promote, further or assist the criminal conduct of gang members.⁴  This is insufficient to support the gang allegation finding.  (Ramon, supra, 175 Cal.App.4th at p. 852;  Ferraez, supra, 112 Cal.App.4th at p. 931;  see also In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [“To allow the expert to state the minor's specific intent ․ without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.”].) No other evidence was presented as to actions indicating appellant's specific intent.   Appellant declined to testify.   Officer Stratton made no mention of appellant flashing any gang signs (see Cesar V., supra, 192 Cal.App.4th at pp. 992, 1000), of other Eastside Crips participating in the challenge to fight, or of any other gang-related activity except from the dispatch.   The scene was “chaotic,” with no evidence of delineated gang rivalry activity.

Respondent's argument would put this court in the untenable position of finding, as a matter of law, that a gang member yelling a challenge to fight in a parking lot at a member of a rival gang, was doing so to promote, further, or assist in criminal conduct by gang members, rather than for any personal motivations.  (See Ramon, supra, 175 Cal.App.4th at p. 853) We decline to do so.

DISPOSITION

The section 415 conviction is affirmed.   The true finding on the section 186.22 gang allegation is vacated.   The matter is remanded to the trial court for resentencing in accordance with this opinion.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Section 415 continues with two more categories:  “(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.  [¶] (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”.  FN2. Section 415 continues with two more categories:  “(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.  [¶] (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”

FN3. Section 186.22, subdivision (b)(1), sets forth identical criteria for a true finding as subdivision (d), deviating only in requiring the underlying conviction to be a felony, and in the punishment prescribed.   Subdivision (b)(1) states in pertinent part:  “․ any person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows․”.  FN3. Section 186.22, subdivision (b)(1), sets forth identical criteria for a true finding as subdivision (d), deviating only in requiring the underlying conviction to be a felony, and in the punishment prescribed.   Subdivision (b)(1) states in pertinent part:  “․ any person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows․”

FN4. We note our Supreme Court's recent holding in Albillar, that “the scienter requirement in section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.”  (Albillar, supra, 51 Cal.4th at p. 66.).  FN4. We note our Supreme Court's recent holding in Albillar, that “the scienter requirement in section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.”  (Albillar, supra, 51 Cal.4th at p. 66.)