Opinion
Review Granted May 20, 1998.
Previously published at 62 Cal.App.4th 703
[62 Cal.App.4th 704] Sharon L. Rhodes, under appointment by the Court of Appeal , Chula Vista, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Keith I. Motley and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, Associate Justice.
Juan Carlos Castenada appeals his conviction for participation in a criminal street On October 16, 1995, Pimienta Castillo and Juan Venegas were walking home after dinner at the Pizza Loca restaurant, which is located near the intersection of Sullivan and McFadden Streets in Santa Ana. While walking down Sullivan, Castillo noticed three young men following. When Castillo and Venegas crossed the street to their apartment complex, two of the young men also crossed the street, while the third stayed on the other side.
One of the two young men, later identified as Castenada, asked Venegas for the time, then pointed a chrome-handled handgun at him and demanded money. Venegas said he had none. The second young man told Castillo not to move and also demanded money. Castillo also said he did not have any money. Castenada then took Venegas's watch from his wrist and attempted to wrest a gold chain from Venegas's neck. Venegas pushed Castenada away and ran screaming for help, while the robbers also fled.
Because of their fear of gang retaliation, neither Venegas nor Castillo reported the robbery to police the night it occurred. The next day, however, Castillo was walking near Pizza Loca at approximately 7 p.m. when he saw Castenada and another man, whom he did not recognize, walking away from the restaurant. Castillo then approached a police officer whose car was parked in the Pizza Loca parking lot, and informed him one of the men walking away had committed a robbery the night before. The police officer showed Castillo pictures which had just been taken of six young men, including Castenada, in connection with investigating a different robbery near Pizza Loca just that evening. Based upon the photographs, Castillo identified Castenada. That same evening, police contacted Venegas, who also identified Castenada as one of the robbers. Castenada's accomplices were never identified.
Castenada was charged with second degree robbery (count one), attempted second degree robbery (count two), and participation in a criminal street gang (count three). He was also charged with enhancements for personal use of a firearm and commission of the robbery crimes in association with a criminal street gang.
At a court trial, the prosecution relied upon police records of prior contacts with Castenada, as well as the testimony of a "gang expert," to establish both Castenada's relationship with a street gang, known as "Goldenwest," and the fact Castenada committed the offenses in question for the [62 Cal.App.4th 706] benefit of Goldenwest. Specifically, police records demonstrated Castenada had been given written notification by police, on three separate occasions between August of 1994 and May of 1995, that Goldenwest was considered to be a criminal street gang pursuant to section 186.22 of the Penal Code. On each of these occasions, Castenada denied that he "claimed" membership in Goldenwest or had ever been "jumped in." Instead, he stated variously that he "backed them up" or "kicked back" with the gang. In addition to the three instances when Castenada was given written notification, police records also revealed he was seen in the company of Goldenwest gang members on at least four other occasions between August of 1994 and October of 1995.
Investigator Thomas Serafin, a member of the Santa Ana Police Department gang unit, was the prosecution's "gang expert." Based upon years of experience and hundreds of hours of classroom training, Serafin testified about the culture of criminal street gangs, the status of Goldenwest as a street gang, and the significance of Castenada's conduct in connection with Goldenwest.
According to Serafin, the phrase "kicking back" is commonly used to indicate association with or membership in a gang, and is used much the way the phrase "I claim" was used in the 1970s and early 1980s. Serafin explained gang members, in general, avoid Serafin also testified Goldenwest gang members had committed many crimes, and Castenada's numerous contacts with them evidenced his knowledge of the criminal conduct. Gang members talk about their crimes in order to establish their own credentials within the gang, and because knowledge of each other's criminal exploits is crucial to gang members' safety. Finally, based upon the testimony of Castillo and Venegas, Serafin also concluded the robbery in this case was committed for the benefit of Goldenwest. Castenada offered no evidence or expert testimony to rebut Serafin's testimony. The court found Castenada guilty on all counts.
Although Castenada concedes the evidence at trial was sufficient to establish his membership in Goldenwest, he argues his conviction on count [62 Cal.App.4th 707] three, participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a), must nonetheless be reversed because the court lacked substantial evidence he "actively participated" in the Goldenwest gang. Relying upon People v. Green (1991) 227 Cal.App.3d 692, 278 Cal.Rptr. 140, and Scales v. United States (1961) 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, Castenada argues "active participation" requires that the defendant devote "all, or a substantial part of his time and efforts" to the gang, and that he occupy a leadership role. While the first portion of that statement is true, the second is not.
Section 186.22, subdivision (a) provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
In Green, the court analyzed whether section 186.22, subdivision (a) was unconstitutionally vague, and held it was not, if properly construed. Among other things, the court reasoned the phrase "actively participates" should be construed similarly to a jury instruction approved by the United States Supreme Court in Scales. Drawing from that instruction, the Green court concluded "actively participates" means "a defendant must have a relationship with a criminal street gang which is (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang." (People v. Green, supra, 227 Cal.App.3d at p. 700, 278 Cal.Rptr. 140.)
The instruction in Scales, relating to membership in the Communist Party, was "'[I]t is not sufficient that he be simply a member. It must be more than a nominal, passive, inactive, or purely technical membership. In determining whether he was an active or inactive member, consider how much of his time and efforts he devoted to the Party. To be active he must have devoted all, or a substantial part, of his time and efforts to the Party."' (People v. Green, supra, 227 Cal.App.3d at p. 700, 278 Cal.Rptr. 140.)
Thus, nothing in Green requires the defendant occupy a leadership role, as Castenada suggests. That contention is apparently based upon an analogy to the facts of Scales itself, in which the defendant found guilty of criminal activity apparently was the leader of his local Communist Party. However, the Supreme Court in Scales did not conclude that such a leadership role was required to be considered an "active" member, instead simply noting that on the facts presented, Scales's "active" membership was indisputable. (Scales v. United States, supra, 367 U.S. at p. 254, 81 S.Ct. at p. 1499.)
Turning to the issue of whether Castenada devoted "all or a substantial portion of his time" to Goldenwest, we reject his argument such a determination cannot be made without quantifying the amount of time
CROSBY, Acting P.J., and RYLAARSDAM, J., concur.