Opinion
A129156 Super. Ct. No. RG10-498901)
10-31-2011
THE PEOPLE ex rel. JOHN A. RUSSO, as City Attorney, etc., Plaintiff and Respondent, v. NORTH SIDE OAKLAND et al., Defendants and Respondents; YANCIE YOUNG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff, the City Attorney of the City of Oakland, initiated this action against the North Side Oakland gang (NSO), an alleged criminal street gang, and 70 Doe defendants alleged to be NSO members. The complaint seeks to enjoin as a public nuisance the NSO's activities within a defined geographic area of the City of Oakland. The trial court granted plaintiff's request for a preliminary injunction and Yancie Young, one of the alleged gang members, appealed. We conclude sufficient, credible evidence supports the trial court's conclusion that the NSO is a criminal street gang whose activities have created a public nuisance in the designated area. We also conclude the trial court did not err in including Young within the scope of the injunction.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
On February 18, 2010, plaintiff filed a complaint for injunctive relief to abate a public nuisance caused by the conduct and activities of defendant the NSO. The complaint alleges the NSO is a criminal street gang within the meaning of Penal Code section 186.22, subdivision (f), otherwise known as the Street Terrorism Enforcement and Prevention Act. The complaint contains a single cause of action alleging a public nuisance exists in a "Safety Zone" located within an area in the northern part of Oakland that, roughly, is bordered to the east by Telegraph Avenue, to the south by West Macarthur Boulevard, to the west by San Pablo Avenue, and to the north by Alcatraz Avenue.
Penal Code section 186.22, subdivision (f), provides: "As used in this chapter, 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
The complaint alleges NSO members have staked out portions of the Safety Zone as their "turf by shooting at members of other street gangs, defacing property, and intimidating residents in the community. They sell and use illegal controlled substances, and create a threatening atmosphere by engaging in violent, aggressive, and destructive behavior, including threatening victims and witnesses who are suspected of having reported their activities to the police. The complaint seeks injunctive relief to restrain the NSO from engaging in certain activities within the Safety Zone, including associating with fellow gang members (except under limited circumstances), intimidating witnesses, possessing firearms, defacing property, and selling, possessing, or using illegal drugs. The complaint also seeks to impose a night time curfew.
On March 2, 2010, plaintiff filed an application for an order to show cause for a preliminary injunction. Plaintiff included written declarations from multiple police officers in support of the application. Oakland Police Officer John Cunnie, acting as an expert witness, stated that the NSO came into existence after the murder of a well-known Oakland drug dealer in 2001. NSO members primarily sell cocaine base and marijuana, and they often possess and discharge firearms in public while they are dealing drugs in the Safety Zone. NSO members mark their territory with graffiti and defend it from rival gang members, leading to violent incidents and discouraging residents from cooperating with police. The drug dealing also spawns ancillary crimes such as robberies and burglaries, as chronic users seek to gather money to pay for these drugs. Other declarations provide detailed descriptions linking NSO gang members to crimes committed in the Safety Zone, including "rat pack" robberies. Between 2006 to 2009, there were at least 17 gang-related shootings and homicides in the Safety Zone area. At least five bystanders were killed. One NSO member, Nguyen Ngo, was shot and killed in 2009 in the Safety Zone by members of a rival Berkeley gang.
On March 3, 2010, Young was served with the complaint and a notice of hearing.
On April 22, 2010, Young filed a declaration in opposition to the City's ex parte application for a preliminary injunction. He denied he had ever been part of a gang, and claimed he was being retaliated against for having filed a federal lawsuit alleging an illegal strip search by an Oakland police officer. He also claimed items taken from his home during an allegedly illegal search were not gang-related, contrary to statements made by police officers in their declarations. He also argued the proposed injunction would cause him substantial hardship as he resides within the Safety Zone, attends night classes, and takes care of his younger brother who is confined to a wheelchair.
It appears Young was specifically named in plaintiffs ex parte application, though he is not named in the complaint. Our review is hampered by the absence of the application from the record submitted on appeal.
On May 21, 2010, Young filed a 132-page document detailing his objections to the evidence submitted in conjunction with plaintiff's application for the preliminary injunction.
On May 25, 2010, plaintiff filed a reply to Young's evidentiary objections.
On June 2, 2010, the trial court issued its order granting a preliminary injunction against 15 alleged NSO members, including Young. This appeal followed.
Page 4
DISCUSSION
Young claims the injunction is unconstitutional, both on its face and as applied to him, and that he should not have been named in the injunction because plaintiff failed to establish he is a member of the NSO. He also claims the evidence plaintiff submitted to show his alleged gang membership is inadmissible as hearsay, lacks foundation, and calls for speculation.
I. Standard of Review
As our state Supreme Court explained in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (AcunaI): "At this initial stage in the proceeding, the scope of our inquiry is narrow. We review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.] Review is confined, in other words, to a consideration whether the trial court abused its discretion in ' "evaluating] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued." ' [Citation.] And although we will not ordinarily disturb the trial court's ruling absent a showing of abuse, an order granting or denying interlocutory relief reflects nothing more than the superior court's evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute." (Id. at p. 1109.)
In People v. Englebrecht (2001) 88 Cal.App.4th 1236 (Englebrecht), the Court of Appeal concluded the importance of the interests affected by a gang injunction "requires that the finding of facts necessary to justify its issuance be proved by clear and convincing evidence." (Id. at p. 1256.) Under that standard, "our task is to determine if the trial court abused its discretion in concluding the evidence established a high probability (1) plaintiff will prevail on the merits, and (2) the interim harm plaintiff is likely to sustain if the preliminary injunction is denied is not exceeded by the interim harm defendants are likely to suffer if the injunction is issued." (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 873-874 (Acuna II).)
The review on appeal of the issuance of an injunction follows the traditional review standard even where the trial court used a clear and convincing evidence standard " ' "The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." [Citations.]' [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' [Citation.]" (SheilaS. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
While constitutional issues are always subject to independent review (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433), we do not reweigh the evidence before the trial court or determine the credibility of witnesses on appeal. " '[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts.' [Citation.] Our task is to ensure that the trial court's factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order." (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625.)
II. The Preliminary Injunction
The order granting plaintiff's request for a preliminary injunction states that the injunction is "intended to protect the safety of the general community by abating the public nuisance caused by the gang and its members in a Safety Zone located in the City of Oakland." The order finds that the NSO is an "unincorporated association" subject to suit under Code of Civil Procedure section 369.5. The order also finds members of the
Code of Civil Procedure section 369.5, subdivision (a), provides: "A partnership or other unincorporated association, whether organized for profit or not, may sue and be sued in the name it has assumed or by which it is known."
Page 6 NSO have caused a public nuisance in the Safety Zone under Civil Code sections 3479and 3480 (and relevant case law), and concludes plaintiff is entitled to injunctive relief.
Civil Code section 3479 provides: "Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance."
Civil Code section 3480 provides: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal."
The injunction prohibits Young and 14 other named individuals from associating in public with any "known member" of the NSO gang within the Safety Zone except when traveling to or from schools, churches, legitimate business activities, social services providers, or community meetings. The injunction also prohibits these individuals from (1) intimidating witnesses, (2) possessing or knowingly remaining in the presence of firearms, (3) creating graffiti or possessing graffiti tools, (4) selling, possessing, using, or being in the presence of controlled substances, (5) trespassing, (6) and being in a public place between the hours of 10:00 p.m. and 5:00 a.m. except under certain defined circumstances. The injunction further provides that the NSO gang members are required to obey all laws, to avoid taking any actions to recruit gang members, and to refrain from loitering under circumstances prohibited by Health and Safety Code section 11352 (transportation or sale of controlled substances). It includes an expedited administrative opt-out process whereby persons who dispute they are gang members may petition to be removed from the scope of the injunction.
III. The Injunction Is Not Overbroad On Its Face
Young first claims the injunction is unconstitutionally overbroad on its face. This argument is not well taken.
Among the items cited in support of this argument, Young refers us to an amici curiae brief that is not included in the record on appeal.
Our Supreme Court in Acuna I fully addressed the overbreadth issue. The court first looked to United States Supreme Court jurisprudence, observing "The source of the high court's concern in the overbreadth cases . . . and the foundation of the doctrine itself, is the perceived danger to the constitutionally protected interests of those who, because they are not before the court, lack a judicial forum in which to litigate claims that a statute 'sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech' [citation], and thus 'may inhibit the constitutionally protected speech of [such] third parties' [citation]." (Acuna I, supra, 14 Cal.4th 1090, 1113, italics added.) The court noted that the gang injunction at issue was addressed to "identifiable parties" and that "the enjoined acts [were] particularly described in the trial court's order." (Id. at p. 1114.) The court concluded that a facial overbreadth challenge was not a viable theory by which to contest the gang injunction: "Unlike the pervasive 'chill' of an abstract statutory command that may broadly affect the conduct of an absent class and induce self-censorship, the decree here did not issue until after these defendants had had their day in court, a procedure that assures ' "a prompt and carefully circumscribed determination of the issue." ' [Citation.] In short . . . 'An injunction may be more effective at stopping the activity at which it is aimed, but it is also more narrowly confined. There is less risk of deterring activities beyond the adjudicated target of suppression—activities plainly outside the injunctive ban but arguably within the necessarily more general prohibition of a penal law.' [Citation.]" (Ibid.)
Young claims the court in Acuna I did not have before it a proper overbreadth challenge because the injunction at issue in that case applied only to the named defendants. While nothing in the record confirms Young has been specifically named as a defendant, it is clear that the injunction, by its terms, applies only to the 15 persons identified in it. The injunction states: "The Court finds the persons included below are active gang members, as that phrase is defined by case law. Accordingly, upon being personally served with the injunction issued by this Court, they shall be bound by its terms and conditions. The injunction shall become binding and enforceable against them within the area of the Safety Zone: ([List of 15 persons, including Young])."
Young does not dispute that all 15 persons listed in the injunction were served with plaintiff's application and thus had an opportunity to secure their "day in court." Moreover, as to any NSO members who may become subject to the injunction in the future, the order provides they must first be served with process and notice of hearing. Further, as noted above, the injunction itself provides for an expedited administrative "opt-out" procedure for alleged gang members to dispute any gang affiliation. This administrative procedure applies to both persons already named in the injunction and to those who believe they may be named in the future. Thus, the injunction does not broadly impact the rights of third parties not before the court. Accordingly, Young's overbreadth claim is not cognizable. (See Acuna I, supra, 14 Cal.4th 1090, 1114.)
IV. The Injunction Is Not Unconstitutionally Vague
Young contends the injunction is unconstitutionally vague because it fails to distinguish between innocent conduct and conduct intended to cause harm, does not provide criteria to establish gang membership, fails to contain guidelines for determining whether an accused person is an active member of the alleged gang, and leaves the determination of whether a person is a "known gang member" to the discretion of the police. He also claims the injunction fails to properly define " 'gang,' leaving subjects of the injunction to figure out their own definition from 'the STEP Act and the prevailing law' and 'as defined by case law.' " In support of his argument, he cites to Lanzettav. New Jersey (1939) 306 U.S. 451 (Lanzetta) and Chicago v. Morales (1999) 527 U.S. 41 (Morales).
"Two principles guide the evaluation of whether a law . . . is unconstitutionally vague. First, 'abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness.' [Citation.] Second, only reasonable specificity is required. [Citation.] Thus, a statute 'will not be held void for vagueness "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." ' [Citation.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez))
In Morales the United States Supreme Court invalidated a Chicago ordinance that allowed police officers to order persons " 'reasonably believe[d]' " to be members of a " 'criminal street gang' " to disperse if found " 'loitering' " with one or more person in any public place. (Morales, supra, 527 U.S. 41, 47, fn. 2.) The offending language was the definition of the term " 'loitering,' " which the ordinance defined as " 'to remain in any one place with no apparent purpose.' " (Ibid.) Recognizing that this language failed to provide any objective limitations on law enforcement officials charged with enforcing the ordinance, the Supreme Court held that "the broad sweep of the ordinance . . . violates ' "the requirement that a legislature establish minimal guidelines to govern law enforcement." ' [Citation.]" (Id. at p. 60).
There are substantial differences between the terms of the Chicago ordinance and the preliminary injunction at issue here. Unlike the ordinance in Morales, which prohibited "remain[ing] in any one place with no apparent purpose," the NSO injunction provides law enforcement officers with specific guidelines as to the conduct being regulated and the persons who are subject to the injunction's restrictions. It also applies to a limited geographic area, and not the entire city. Thus, Morales is inapposite.
Justice O'Connor's concurring opinion in Morales reiterates that the majority opinion "properly and expressly" distinguished the Chicago ordinance from laws that target only gang members and from laws that incorporate limits on the area and manner in which the laws may be enforced. (Morales, supra, 527 U.S. 41, 67 (conc. opn. of O'Connor, J.).) To argue Acuna I is not applicable to this appeal because of the United States Supreme Court decision in Morales, as was contended by appellant at oral argument, is, in a word, misguided.
Young's objection to the "known gang member" language also lacks merit. In Acuna I, the Supreme Court noted the Court of Appeal had concluded that a provision of the injunction forbidding association with " 'any other known [named gang] member' " was unconstitutionally vague as it could be construed to apply when a defendant engaged in one of the prohibited activities with someone known to the police—but not known to the defendant—to be a gang member. (14 Cal.4th 1090, 1117.) The Supreme Court advised that in order to enforce the injunction, the local entity "would have to establish a defendant's own knowledge of his associate's gang membership to meet its burden of proving conduct in violation of the injunction." (Ibid.) The court also suggested that the element of a defendant's knowledge fairly was implied in the injunction, and if any attempt were made to enforce that provision, the trial court could limit its construction by inserting a knowledge requirement. "With that minor emendation, the text . . . passes scrutiny under the vagueness doctrine." (Id. at pp. 1117-1118.) As the United States Supreme Court has observed: "[T]he Court has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 499.) For similar reasons, we conclude the use of the phrase "known gang member" in the NSO injunction also passes constitutional muster.
The injunction also satisfies the standards set forth in Lanzetta, supra, 306 U.S. 451, 453-455). In Lanzetta, the United States Supreme Court invalidated an anti-gang statute. The New Jersey statute in question made criminal a person's membership in a "gang," which was defined simply as a group of two or more persons. (Id. at pp. 452453.) The United States Supreme Court held that, because it "condemns no act or omission" and because "the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain," the statute "must be condemned as repugnant to the due process clause of the Fourteenth Amendment." (Id. at p. 458.) The court noted the "numerous and varied" definitions of the word "gang" in dictionaries and "historical and sociological writings," as well as its own inability to locate any definition of the word in the statutory, case, or common law. (Id. at pp. 453, 454, 455.) The court noted it could not conclude the word " 'gang' has ever been limited in meaning to a group having purpose to commit any particular offense or class of crimes, or that it has not quite frequently been used in reference to groups of two or more persons not to be suspected of criminality or of anything that is unlawful. The dictionary definitions . . . extend to persons acting together for some purpose, 'usually criminal,' or 'mainly for criminal purposes.' So defined, the purposes of those constituting some gangs may be commendable, as, for example, groups of workers engaged under leadership in any lawful undertaking." (Id. at p. 457.)
Where, however, a provision explicitly defines the context in which the term "gang" is being used, appellate courts have had little difficulty in concluding the language passes constitutional muster. In considering whether a probation condition was unconstitutionally vague, the appellate court in Lopez observed: "Here, when 'gang' is considered in the context in which it is found in [the probation condition], and with regard for the purpose of the provision in which it is found, it is apparent the word was intended to apply only to associations which have for their purpose the commission of crimes." (Lopez, supra, 66 Cal.App.4th 615, 631-632.) Citing to Acuna I, the court in Lopez further stated: "The contextual construction of the word 'gang' to mean a group primarily engaged in the pursuit of criminal activities tends to give it a 'constitutionally sufficient concreteness.' [Citation.] Activities of an association which deprive third parties of their lawful rights fall outside the constitutional pale. [Citation.] The commission of crimes is the most apparent manifestation of such unprotected conduct. The performance of acts that constitute a civil nuisance is another." (Lopez, supra, at p. 632.)
Here, the injunction provides: "Defendant [NSO] gang constitutes a criminal street gang as defined in Penal Code section 186.22 (the Street Terrorism Enforcement and Prevention 'STEP' Act) and the prevailing law; defendant constitutes a gang for the purpose of a gang abatement injunction, per the authority of People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1258." The California Supreme Court in People v. Gardeley (1996) 14 Cal.4th 605, 622-623 upheld Penal Code section 186.22, subdivisions (e) and (f), against a constitutional vagueness challenge, concluding that the statute sufficiently informs the public of what is a criminal street gang. (See also Lopez, supra, 66 Cal.App.4th 615, 634.)
Since the decision in Gardeley, the California Supreme Court has had occasion to review the validity of section 186.22. (See People v. Castenada (2000) 23 Cal.4th 743; People v. Zermeno (1999) 21 Cal.4th 927; and People v. Loeun (1997) 17 Cal.4th 1.) In Castenada, the court was asked to assess the vagueness of certain terms in light of relevant constitutional principles. For our purposes, Castenada made this assessment post-Morales. Our Supreme Court found the statute makes it "reasonably clear what conduct is prohibited." (Castenada, supra, at p. 752.) This statutory language was expressly incorporated by Judge Freedman in his challenged preliminary injunction. Thus, the weight of authority supports the conclusion that the term as modified in the injunction is not unconstitutionally vague. In fact, we have difficulty envisioning how a trial court could craft a more specific and informative definition of the word "gang" than the one contained in the injunction here.
As to whether the injunction sweeps within its language arguably innocent conduct, Young's contentions are not persuasive. In our view, the injunction states the conduct that it seeks to prohibit with sufficient clarity, especially when its language is taken in context. Further, "a claim that a law is unconstitutionally vague can succeed only where the litigant demonstrates, not that it affects a substantial number of others, but that the law is vague as to [him or] her or 'impermissibly vague in all of its applications.' [Citations.]" (Acuna I, supra, 14 Cal.4th 1090, 1116.) Young has not shown the injunction is impermissibly vague in all of its applications. The injunction is thus not void for vagueness.
V. Young's Other Constitutional Challenges Lack Merit
A. Prohibition On Gang Association
The injunction prohibits Young and the 14 other named individuals from driving, standing, sitting, walking, gathering, or appearing anywhere in public view or in any place accessible to the public in the Safety Zone, with any "known member" of the NSO except when traveling to or from (1) educational facilities where they are attending class or on school business, (2) places of worship, (3) places where they are "actively engaged in a legitimate business, employment, trade, training, profession or occupation," or (4) locations for counseling sessions, community meetings, or social services.
Young argues that the prohibition on gang association is overly broad because it has no requirement that the members be engaged in any criminal purpose and, again, because it does not specify the criteria for objectively determining who is a "known gang member." He also claims the provision violates NSO members' First Amendment right to "expressive association." He asserts a variety of legitimate associative activities are prohibited by the injunction, and that gang associations are protected by the First Amendment as long as the members do not incite imminent lawlessness.
The Supreme Court addressed this issue in Acuna I: "Without minimizing the value of the gang to its members as a loosely structured, elective form of social association, that characteristic is in itself insufficient to command constitutional protection, at least within the circumscribed area [designated by the injunction]." (14 Cal.4th 1090, 1111.) The court also observed: " '[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one's friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.' " (Ibid., citing to Dallas v. Stanglin (1989) 490 U.S. 19, 25.) Similarly, in Englebrecht the court stated: "Insofar as the injunction's restrictions are nonfamilial, nonpolitical and nonreligious association, in whatever location, it does not touch associations protected by the Constitution." (88 Cal.App.4th 1236, 1262.)
We see nothing in the present case to distinguish it from Acuna I and Englebrecht. The nonassociation provision applies only within the Safety Zone and only in public places other than schools, places of worship, legitimate businesses, community meetings, and counseling or social service providers. Although it places an incidental burden on social relationships, such burden is necessary under the circumstances in order for the injunction to be effective. Finally, we again note Young's complaint regarding the possible ambiguity in the phrase "known gang member" was fully answered by the court in Acuna I We find no error.
"Far from being a 'classic' instance of constitutional vagueness, however, we think the element of knowledge is fairly implied in the decree." (AcunaI, supra, 14 Cal.4th 1090, 1117.)
B. Prohibition on Witness Intimidation
Young claims the injunction's prohibition against " 'confronting, intimidating, annoying, harassing, threatening, challenging, [and] provoking' any person 'known to be' a witness' " or complainant against the NSO is an unconstitutional limit on gang members' freedom of speech. He argues that "alleged gang members have free speech rights, including the right to 'confront, annoy, challenge and provoke' others."
We note, again, that a similarly worded provision was upheld in Acuna I. (14 Cal.4th 1090, 1118.) The provision in that case enjoined the defendants from " 'confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering any residents or patrons, or visitors to [the designated area] . . . known to have complained about gang activities.' " (Ibid.) The Supreme Court observed "[i]t has long been the rule, of course, that physical violence and the threat of violence are not constitutionally protected . . . ." (Id. at p. 1122, citing to NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 916.) For the reasons set forth in Acuna I, we find no error.
C. Prohibition on Firearms
Young claims the injunction's prohibition on possessing firearms violates accused gang members' right to lawful possession of firearms under the Second Amendment of the United States Constitution. The sole case he relies on is District of Columbia v. Heller (2008) 554 U.S. 570, a case in which the United States Supreme Court struck down a local ordinance banning handguns. The court in Heller held that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (Heller, supra, at p. 635, italics added). However, the court also noted that "the right secured by the Second Amendment is not unlimited." (Id. at p. 626.)
By being specifically named in a gang injunction that seeks, in part, to decrease the illegal use of firearms in the Safety Zone, the NSO members manifestly are not the kind of "law-abiding, responsible citizens" whose rights the Supreme Court in Heller sought to vindicate. Accordingly, Young's Second Amendment claim fails.
D. Ban on Possession of Graffiti Tools
The injunction provides "Damaging, defacing, or marking any public property or private property of another, or possessing any spray paint container, felt tip marker, or other graffiti tool as defined in Penal Code section 594.2 is prohibited."
Young claims the ban on graffiti tools, such as spray paint, felt tip markers, drill bits, glass cutters, awls and chisels, violates the due process liberty interest in pursuing one's chosen profession and unconstitutionally limits the gang members' First Amendment rights to engage in lawful artistic expression. He also notes possession of these items with the intent to commit vandalism or graffiti is already a crime under Penal Code section 594.2.
"[T]he liberty interest in pursuing one's chosen profession has been recognized only in cases where (1) a plaintiff challenges the rationality of government regulations on entry into a particular profession, [citation] or (2) a state seeks permanently to bar an individual from public employment, [citation]." (Guzman v. Shewry (9th Cir. 2009) 552 F.3d 941, 954.) Nothing in the injunction here prohibits gang members from pursuing a chosen lawful profession. Moreover, Young presents little evidence that the gang members covered by the injunction are, in fact, seeking to do so. He himself claims that he has attended construction classes, but offers little to show how his right to do so will be curtailed by the injunction.
As to the alleged limit on the NSO members' artistic expressive rights, we again note the injunction applies to a specified geographic area only. Gang members are free to engage in all forms of legitimate expressive activity outside of the Safety Zone. Thus, this case is distinguishable from the case on which Young relies, Vincenty v. Bloomberg (2d Cir. 2007) 476 F.3d 74, a case that involved a city-wide ban on the sale to, and possession by, all adults between the ages of 18 and 21 of aerosol spray paint containers and broad tipped indelible markers. Young's claim of error fails.
E. Ban on Controlled Substances
Young claims the injunction's prohibition on remaining in the presence of anyone who possesses or uses controlled substances and driving under the influence of any controlled substance "extensively" prohibits otherwise innocent and lawful conduct.
The injunction prohibits: "(1) participating in the illegal sale, possession, or use of any controlled substance as defined in Health and Safety Code section 11007, or related paraphernalia, as defined in Health and Safety Code Section 11364, including but not limited to rolling papers and pipes used for illegal drug use, (2) knowingly remaining in the presence of anyone illegally selling, possessing, or using any controlled substance or such related paraphernalia, (3) knowingly remaining in the presence of any controlled substance or such related paraphernalia, other than inside a location which legally stores and sells such items, (4) driving under the influence of any controlled substance, or (5) without a prescription, being under the influence of any controlled substance in public
The injunction at issue in Acuna II prohibited " '[w]ithout a prescription, (1) selling, possessing, or using any controlled substance or related paraphernalia, including but not limited to rolling papers and pipes used for illegal drug use, (2) knowingly remaining in the presence of anyone selling, possessing, or using any controlled substance or such related paraphernalia, or (3) knowingly remaining in the presence of any controlled substance or such related paraphernalia.' " (AcunaII, supra, 182 Cal.App.4th 866, 887.) The appellate court stuck this provision: "Reasonably read, paragraph (1)(e) would prohibit gang members from entering a public store where prescription drugs are sold. The provision is also vague as to whether the "'w]ithout a prescription' language applies to each clause and whether it means a prescription held by the gang member or the person in possession of a controlled substance in the gang member's presence. Paragraph (1)(e) therefore cannot stand." (Id. at p. 888.)
The controlled substance provision here does not suffer from the same drafting flaws as the one in Acuna II. The NSO provision specifically references illegal use of controlled substances and would not apply to a store where prescription drugs are sold. Further, Young does not explain how the prohibition against driving while under the influence of a controlled substance unfairly impinges on his rights. The challenge thus fails.
F. Ban on Trespassing
The injunction contains a provision that states: "Being present on or in any property not open to the general public, except (1) with the prior written consent of the owner, owner's agent, or the person in lawful possession of the property, or (2) in the presence of and with the voluntary consent of the owner, owner's agent, or the person in lawful possession of the property is prohibited."
Young claims the ban on trespassing is flawed in that it compels residents of North Oakland either to execute a document prior to allowing NSO members to enter their homes, or to remain in their homes whenever NSO members are visiting. He claims this provision violates the resident's right to residential privacy and the right to be free from compelled speech. He also claims it violates gang members' rights to association, liberty, travel and privacy. We are not persuaded.
In Acuna II, the appellate court sustained a similar provision, finding it did not impose a greater burden on gang members' association rights than is necessary to serve the public interest involved. (Acuna II, supra, 182 Cal.App.4th 866, 888-889.) As to the claim that the injunction violates the constitutional rights of others living in the Safety Zone, it does not appear Young has standing to assert their rights. " 'A party must assert his own legal rights and interests and cannot rest his claim to relief on the rights or interests of third parties. [Citation.]' [Citations.]" (People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 42.) We find no error.
G. Curfew
The injunction provides: "Being present in a public place or in any place accessible to the public, between the hours of 10:00 p.m. on any day and 5:00 a.m. of the following day, or going directly to or from those public places is prohibited, unless (1) actively engaged in a legitimate business, trade, profession, occupation, political event, church (or other place of worship) event or educational program requiring the enjoined person's presence, (2) actively engaged in a lawful entertainment event, or (3) in response to a legitimate emergency, such as a fire, natural disaster, automobile accident, medical emergency or situation that requires being present in public to address a serious situation involving injury or loss of life. For purposes of this provision, 'public place' means any place to which the public has access, including but not limited to sidewalks, alleys, streets, highways, parks and the common areas of schools, hospitals, office buildings, and transport facilities. For purposes of this provision, 'entertainment event' means an amusement activity that occurs at a commercial establishment and includes only events for which admission is charged, such as movies, plays, public performances or sporting events."
Young claims this curfew provision in the injunction impermissibly prohibits lawful activity and is overbroad, arguing it prohibits alleged gang members from attending free concerts, street fairs, candlelight vigils, or participating in lawful union picketing during the curfew time period. He relies on Nunez v. City of San Diego (9th Cir. 1997) 114 F.3d 935 (Nunez), a case in which a juvenile curfew ordinance was invalidated.
In Nunez, the ordinance in question provided: " 'It shall be unlawful for any minor under the age of eighteen (18) years, to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots or other unsupervised places, between the hours of ten o'clock P.M. and daylight immediately following . . . ." (114 F.3d 935, 938.) The appellate court concluded the " 'loiter, wander, idle, stroll or play' " language was unconstitutionally vague because it did not provide reasonable notice as to what conduct was illegal and allowed the police excessive discretion in deciding whether to stop and arrest juveniles after curfew hours. (Id. at p. 943.)
The injunction here does not suffer from the same flaws as the ordinance at issue in Nunez. It clearly provides that the NSO members are not to be present in any public place, unless one of the enumerated exceptions applies. We note a similarly worded injunction provision was approved by the Court of Appeal in Acuna II. That injunction (with exceptions similar to those in the NSO injunction) restricted gang members from " '[r]emaining upon public property, a public place, on the premises of any establishment, or on a vacant lot, between the hours of 10:00 p.m. on any day and 6:00 a.m. the following day. . . .' " (Acuna II, supra, 182 Cal.App.4th 866, 889.) The appellate court in Acuna II concluded the provision was not ambiguous because it clearly applied to public places only, and its exceptions were stated with sufficient precision. (Id. at pp. 890-891.) For similar reasons, we conclude the curfew provision is valid.
H. Order to "Obey All Laws"
Young claims the order to obey all laws is unnecessary, citing to Cook v. Craig (1976) 55 Cal.App.3d 773, 786. In Cook, the plaintiffs sought, in part, to compel the California Highway Patrol (CHP) to promulgate its regulations in accordance with the Administrative Procedure Act (APA). The trial court sustained the defendant's demurrer to this cause of action and the court of appeal affirmed, stating: "Under these circumstances, there is no relief available to plaintiffs. Even if there exist certain regulations of the CHP which should have been promulgated pursuant to the APA, we have no way of identifying them. All we could do therefore would be to order the CHP to literally comply with the APA, in the face of the CHP's assertion that it has so complied and continues so to comply. We may just as readily order the CHP to 'obey all laws.' It is elementary, of course, that such broad orders are not available to plaintiffs or to anyone else." (Cook, supra, at p. 786.) Manifestly, Cook in no way concerns gang injunctions. Young's reliance is therefore misplaced.
I. Restriction on Gang Membership or Recruitment
Young claims the injunction unconstitutionally retaliates against alleged gang members for mere membership in a gang and prohibits the recruitment of members. He claims the government may not forbid or proscribe advocacy of force or violation of the law except where such advocacy is " 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action,' " citing to Brandenburg v. Ohio (1969) 395 U.S. 444, 447.
In the context of a criminal street gang such as the NSO, we are hard pressed to think of scenarios in which gang recruitment efforts would not be "directed to inciting or producing imminent lawless action." We also note our Supreme Court has stated: "In the public nuisance context, the community's right to security and protection must be reconciled with the individual's right to expressive and associative freedom. Reconciliation begins with the acknowledgment that the interests of the community are not invariably less important than the freedom of individuals. Indeed, the security and protection of the community is the bedrock on which the superstructure of individual liberty rests." (Acuna I, supra, 14 Cal.4th 1090, 1102.) The court in Acuna I also found that relevant United States Supreme Court cases "stand for the proposition that, in a proper case, an organization and its individual members are enjoinable without meeting the 'specific intent to further unlawful group aims' standard applied in Claiborne Hardware [citation]." (Id. at p. 1124.) We find no error.
J. Ban on Loitering
The injunction provides: "Loitering in a public place in a manner and under circumstances manifesting the purpose and intent to commit an offense specified in Chapter 6 of the Health and Safety Code, commencing with Section 11400, in accordance with Health and Safety Code Section 11532(b) is prohibited." Young claims the ban on loitering is unnecessary because loitering with intent to commit a crime is already illegal. He claims any other conduct that would fall within the loitering provision would be unconstitutional under Morales, a case we have already discussed above.
Young does not cite to any authority for the proposition that an injunction may not seek to prohibit conduct that may also be prohibited by existing penal provisions. Further, the language of this provision is much more specific than the language faulted in Morales. Young's claim fails.
VI. "As Applied" Challenges
Young claims the injunction is unconstitutional as applied to him. As plaintiff notes in its brief on appeal, Young does not have standing to bring an "as applied" challenge to the injunctions. "Whether the particular application of a statute declaring conduct criminal is constitutionally permissible can be determined only after the circumstances of its application have been established by conviction or otherwise. [Citation.] Only then is an as applied challenge ripe. To obtain mandate or other relief from penalties imposed under a past application of the law, the defendant must presently be suffering some adverse impact of the law which the court has the power to redress." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1085.) In any event, Young's challenge appears to primarily be addressed to the trial court's finding that he is an active member of the NSO.
In Englebrecht the appellate court defined "active gang member" as follows: "We conclude for the purposes of a gang injunction an active gang member is a person who participates in or acts in concert with an ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of acts constituting the enjoined public nuisance, having a common name or common identifying sign or symbol and whose members individually or collectively engage in the acts constituting the enjoined public nuisance. The participation or acting in concert must be more than nominal, passive, inactive or purely technical." (88 Cal.App.4th 1236, 1261.)
Viewed in the light most favorable to the trial court's order, there is substantial evidence to support the conclusion that the NSO is a criminal street gang operating in the Safety Zone. Along with declarations from officers who were experts on gang conduct, plaintiff presented statements from 96 police officers who were percipient witnesses to the conduct of the gang in question. These declarations, some of which we summarized at the outset of this opinion, provide compelling evidence of the existence of the NSO as well as the detrimental effect the gang has had on the community in the Safety Zone area. As to Young himself, we summarize the evidence contained in the declarations below.
Officer Cunnie's declaration states that Young had suffered three misdemeanor convictions: a conviction in 2008 for possession of a firearm, and two convictions dating to 2000 for domestic battery and for possession of marijuana over 28.5 grams. Cunnie reported that in 2005 Young had been arrested for selling crack cocaine. A search of his home uncovered five bags of marijuana, a .38-caliber revolver, ammunition, a stun gun, digital scale and packaging materials.
In June 2009, Young was arrested after a probation search of his home, during which officers recovered a .40-caliber semi-automatic firearm, a large amount of marijuana and currency, body armor, an automatic weapon magazine, three digital scales and several boxes of ammunition. The search also produced a Christmas stocking with the words "North Pole" written on it, a beanie with the words "North Pole Savage 456," six T-shirts with NSO gang-related writing and pictures on them, and photographs of other persons believed to be involved in NSO street gang activity. The photographs of other gang members were found in a pamphlet that memorialized Nguyen Ngo, the NSO member who was killed in 2009. Later that year, a woman called the police to report Young had hit her on the forehead with a Mac-10 submachine gun and was giving his firearms to his uncle who lived across the street. Officers responded and a search of the residences uncovered a large amount of marijuana and currency, handgun and assault rifle ammunition, a silencer, loaded high-capacity magazines and NSO gang clothing. Young was arrested for unlawful possession of ammunition, possession of a silencer, and possession of marijuana for sale with a gang enhancement. In short, Young presents a personal history of conduct compatible with the goals and interests of NSO and the paraphernalia of tools designed to achieve such intentions.
NSO members are known to wear clothing with graphics depicting "NSO," "North Pole," and "4-5-6."
Young complains that much of the evidence offered against him is stale, and that the materials found in his home during the police searches are protected by Constitutional guarantees of freedom of expression, relying on Dawson v. Delaware (1992) 503 U.S. 159 (Dawson). He also notes that he does not appear in any of the photographs found in the pamphlet distributed at Ngo's funeral.
Young's reliance on Dawson is clearly misplaced. That case involved a stipulation at trial regarding the defendant's association with an Aryan group and its racist ideology. Because his relationship to the group was not relevant to the crimes he had been charged with, or as evidence of bias, the court concluded the reference to the defendant's abstract beliefs violated the First Amendment. (503 U.S. 159, 165-167.) California courts have since addressed Dawson and pointed out its limitations. (See Acuna I, supra, 14 Cal.4th 1090, 1111-1112.) Here, Young was associating with a group deemed to constitute a public nuisance after a full hearing wherein the trial court heard evidence of drug dealing and crimes of violence committed by the NSO. Again, violent acts, possession of drugs and tools associated with their dealing, and substantial weaponry were correctly found by the trial court to be something more than expressions of abstract ideology.
Finally, substantial evidence supports the inclusion of Young within the scope of the NSO injunction. Items found within his home specifically link him to the NSO. Further, the evidence indicates that he has engaged in many of the activities the injunction seeks to prohibit, including possession of prohibited firearms and the selling of illegal drugs. While he offers contrary explanations for the evidence, as a court of review we are bound to " 'interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order. [Citations.]' [Citation.]" (Acuna II, supra, 182 Cal.App.4th 866, 878-879.) Accordingly, we conclude the trial court did not err in including Young within the scope of the injunction.
We also note that Young always retains the option of requesting an administrative hearing to demonstrate that he is no longer affiliated with the NSO.
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VII. Racial Profiling
Young claims the injunction will exacerbate existing problems with racial profiling by Oakland police officers. He does not cite to any legal authority in support of his claim. A point not argued or supported by citation to authority is forfeited. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
VIII. Young's Evidentiary Objections
Young complains the trial court failed to rule on the evidentiary objections he raised to the declarations submitted by plaintiff in support of the application for a preliminary injunction. The objections asserted the evidence contained in the police officers' declarations consisted of inadmissible hearsay, lacked foundation, and called for speculation.
Young submitted voluminous objections to the trial court. While he references this material broadly, he does not specify any particular point of error in his brief on appeal. It is not the duty of this court to plow through the record to find material to substantiate his claims. Arguments that are unsupported by citations to the record are deemed waived: "It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party's position." (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.)
IX. The Trial Court Did Not Abuse Its Discretion
Because the NSO has existed since 2002, Young claims the injunction should not have issued as plaintiffs delayed too long in seeking it. He also claims incidents of crime in Oakland were significantly reduced in 2009 and 2010, indicating that the injunction was not justified by the threat of imminent irreparable harm.
As to the element of whether plaintiff is likely to succeed on the merits of his complaint, the only challenges Young raises are the ones we have already discussed and rejected above. Further, our review of the record indicates that the injunction was necessary as incidents of serious criminal activity associated with the NSO members, particularly shootings and homicides, had increased in recent years within the Safety Zone area. Young claims there was "no imminence of any irreparable injury" as "over 25% of the people whom Plaintiff [initially] alleged were creating a nuisance were in jail and unable to create any public nuisance in North Oakland." Followed to its logical conclusion, Young's argument would suggest that the residents of North Oakland must therefore wait for further violent acts to be committed and for all offending NSO members to be jailed before they are entitled to enjoy a safe community. As our Supreme Court stated in Acuna I, "The freedom to leave one's house and move about at will, and to have a measure of personal security is 'implicit in "the concept of ordered liberty" ' enshrined in the history and basic constitutional documents of English-speaking peoples. [Citations.] Preserving the peace is the first duty of government, and it is for the protection of the community from the predations of the idle, the contentious, and the brutal that government was invented." (Acuna I, supra, 14 Cal.4th 1090, 1125-1126.) The success of law enforcement in apprehending some of the "instigators" of the public nuisance detailed by plaintiff and confirmed by the trial court does not support a contention the preliminary injunction lacks a valid purpose to restrain concerns of nuisance in the future. We conclude the trial court did not abuse its discretion in granting plaintiff's application for the preliminary injunction.
DISPOSITION
The order granting the preliminary injunction is affirmed.
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Dondero, J.
We concur:
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Marchiano, P. J.
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Margulies, J.