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People v. George M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 5, 2011
No. F060697 (Cal. Ct. App. Aug. 5, 2011)

Opinion

F060697 Super. Ct. No. 510686

08-05-2011

In re GEORGE M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GEORGE M., Defendant and Appellant.

Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Gomes, Acting P.J., Poochigian, J., and Franson, J.

APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D. Siefkin, Judge.

Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, for Plaintiff and Respondent.

Pursuant to a plea agreement, appellant admitted juvenile wardship petition allegations that he came within the jurisdiction of the juvenile court (Welf. & Inst. Code, § 602) in that he committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and auto theft (Veh. Code, § 10851, subd. (a)). He also admitted an allegation that he in fact inflicted great bodily injury upon the victim in the commission of the assault (§ 12022.7, subd. (a)). Appellant was 16 years of age when he committed the offenses.

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

At a dispositional hearing, the court committed appellant to the Division of Juvenile Justice and determined his maximum term of confinement to be seven years and eight months. This consisted of 48 months for the assault, plus an additional 36 months on the great bodily injury enhancement, plus eight months for the auto theft. The court also ordered that "[t]he minor shall register as a gang member pursuant to Penal Code Section 186.30." It is this registration order appellant now challenges on this appeal.

The quoted registration order was pronounced orally by the court at the dispositional hearing, but it does not appear in the court's written dispositional order. Thus although, as we shall explain, we will order the registration order stricken, it does not appear that any actual amendment to the written August 6, 2010, dispositional order need be made.

APPELLANT'S CONTENTION

Appellant contends that the court's order directing him to register as a gang member is not supported by substantial evidence, and that the court's disposition order should be reversed insofar as it requires appellant to so register. As we shall explain, we agree with appellant.

FACTUAL AND PROCEDURAL BACKGROUND

Because appellant admitted the allegations and no jurisdictional hearings were held, our brief recitation of the facts of each incident is taken from the dispositional social study (hereafter report) considered by the court at the dispositional hearing. As to the assault incident, the report stated:

"The Principal, Mr. Tognetti, reported the following. All five students involved in this incident were on the 'At Risk', Norteno list. Students who are on this list all have documented gang issues and are on the verge of being expelled due to their involvement in gang activities on school campus. These documentations come from prior schools they have attended, and additional issues documented while at Elliott. Mr. Tognetti stated that the victim had just transferred from Peter Johansen High School due to his poor grades and the victim's association with the Sureno gang.
"The police report indicated that minor, George [M.], and three other students were observed waiting outside of the victim's classroom. They were instructed twice by the teacher's aide, to leave the area. However, they refused to leave. The campus supervisor had to escort them to the lunch area.
"Once the period ended, as the victim was walking to his next class, he was jumped by another student, also known to be on the 'At Risk' list. The victim was kicked in the head and throat when he was on the ground. This student then got on top of the victim and punched him in the head and face area continually while he was on the ground and in the 'cover' position. Minor [George M.], and three of the students who had left the area previously, had returned to help in the fight. They were shouting gang words at the victim and were interfering with the teachers who were attempting to stop the fight. One of the students was calling the victim a 'scrap' and telling him, 'This is how we handle it on the North Side.' When one of the teachers attempted to break up the fight, the minor came up next to him and said, 'I've got this.' [George M.] then started to pull another teacher away from the fight, so the fight could continue. Another student also attempted to prevent the teachers from breaking up the fight. [George M.] yelled 'This is how we do it in the west side fool.' [George M.] then punched the victim in the head and face area at least five times with a closed fist while the victim was still on the ground in a 'cover' position. When teaching staff attempted to pull [George M.] away from the victim, [George M.] spun him around. While being escorted from the fight, [George M.] flashed 'W' with his fingers and repeatedly yelled out, 'This is
how we do it in the west side fool.' Minor [George M.], also had blood on his shoes.
"The report stated that this fight appeared to have been planned."
As to the auto theft, the report stated:
"According to the Modesto Police Department, report #09102616, on December 7, 2009, the officer ran two license plates as Honda Accords are commonly known to be stolen vehicles. Both plates returned as stolen vehicles. A traffic stop was initiated. Both vehicles yielded. Minor [George M.], was identified as the driver of one of the stolen vehicles. In the vehicle with minor [George M.], were Andre [N.], Kevin [S.], and Nico [B.]. The minor and co-responsibles were arrested without incident. Minor [George M.], was determined to be diabetic and in need of insulin. Therefore, he was cited and released to his mother's care. He was released on a promise to appear. The co-responsibles were also cited and released to their parents."

DISCUSSION

Section 186.30 states:

"(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.
"(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses:
"(1) Subdivision (a) of Section 186.22.
"(2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true.
"(3) Any crime that the court finds is gang related at the time of sentencing or disposition."

Appellant did not have a petition sustained for a violation of subdivision (a) of section 186.22 (participation in a criminal street gang), so subdivision (b)(1) of section 186.30 is not applicable here. "[T]he enhancement specified in subdivision (b) of Section 186.22" (the so-called "gang enhancement") was not "found to be true" in this case, and in fact as part of appellant's plea agreement a section 186.22, subdivision (b) allegation was stricken from the juvenile wardship petition alleging the assault, so subdivision (b)(2) of section 186.30 is likewise not applicable here. The issue in this case is thus whether the registration requirement imposed by the court is justified under subdivision (b)(3) of section 186.30 ("[a]ny crime that the court finds is gang related at the time of sentencing or disposition"). As we shall explain, it is not.

Subdivision (b)(1) of section 186.22 provides in pertinent part that "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" with a sentence enhancement provided for in that same subdivision. The sentencing provisions of the subdivision are elaborate, and for some specified crimes the defendant may even receive a life sentence (see § 186.22, subd. (b)(4)), but generally speaking the defendant will receive an enhancement of two, three, or four years (§ 186.22, subd. (b)(1)(A)), five years if the crime is a serious felony as defined in section 1192.7, subdivision (c), or ten years if the crime is a violent felony as defined in section 667.5, subdivision (c).

Section 186.30 was added to the Penal Code in March of 2000 when the California electorate passed an initiative measure known as Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897; and In re Eduardo C. (2001) 90 Cal.App.4th 937, 940.) "Upon a court's finding that a person was involved in a gang-related crime (§ 186.30, subd. (b)), the court is required to notify the person of his or her duty to register (§ 186.31) 'with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.' (§ 186.30, subd. (a); cf. § 186.32, subd. (a)(1)(A).) Registration requirements are spelled out in section 186.32. The registration requirements last for five years. (§ 186.32, subd. (c).) A registrant must keep law enforcement apprised of any change of address. (§ 186.32, subd. (b).) It is a misdemeanor to knowingly violate the registration requirements. (§1 86.33, subd. (a).)" (People v. Martinez (2004) 116 Cal.App.4th 753, 759, fn. 2.)

In In re Jorge G. (2004) 117 Cal.App.4th 931 (Jorge G.) we construed the meaning of the term "gang related" in subdivision (b)(3) of section 186.30. We concluded: "A crime is gang related if it is related to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of: (a) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons." (Jorge G., supra, 117 Cal.App.4th at p. 944.)

We also held that "gang-member registration under section 186.30 is not punishment for due process purposes" (Jorge G., supra, 117 Cal.App.4th at p. 942), and that "[i]n light of our decision that registration pursuant to section 186.30 is not punishment for purposes of due process ..., the fact that the subject crime was gang related need be proved only by a preponderance of the evidence." (Id. at p. 944.) When an appellant asserts there is insufficient evidence to support a trial court's finding that an offense was gang related, "'our review is circumscribed.'" (Id. at p. 941.) "'We review the whole record most favorably to the judgment to determine whether there is substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.'" (Id. at pp. 941-942.)

Applying that standard here, we agree with appellant that there is insufficient evidence to support a finding that either the auto theft or the assault was "gang related" as we have construed that term in Jorge G. Reduced to its essence, the argument appellant makes is not that there is insufficient evidence that he committed an assault on a Sureno victim with three other Nortenos. His argument is that there is insufficient evidence that the Nortenos are a "gang" as that term is used in section 186.30, subdivision (b)(3), and therefore there is insufficient evidence that his assault or auto theft was "gang related" (§ 186.30, subd. (b)(3)). Specifically, appellant argues that elements "(3)" ("having as one of its primary activities the commission of the crimes enumerated in section 186.22, subd. (e) ..." (Jorge G., supra, 117 Cal.App.4th at p. 944)) and "(5)" ("whose members individually or collectively have engaged in a pattern of criminal gang activity" (ibid.))of our (and of section 186.22's) definition of a "gang" are not supported by substantial evidence.

We need not and do not address the issue of whether element "(5)" has been satisfied because, as we shall explain, element "(3)" clearly has not, and thus there is insufficient evidence to support the court's implied finding that either of appellant's current offenses were "gang related" within the meaning of section 186.30, subdivision (b)(3).

"To support element (3), there must be substantial evidence that the commission of offenses enumerated in section 186.22, subdivision (e), is a primary activity of the gang. 'Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities.' (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) However, evidence sufficient to show only one offense is not enough.
"'The phrase "primary activities," as used in the gang statute, implies that the commission of one or more of the statutorily enumerated
crimes is one of the group's "chief" or "principal" occupations. (See Webster's Internat. Dict. (2d ed. 1942) p. 1963 [defining "primary"].) That definition would necessarily exclude the occasional commission of those crimes by the group's members. ... [¶ ] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.' (People v. Sengpadychith, supra, 26 Cal.4th at pp. 323-324.)
"We recognize that a gang's primary activities may be shown though expert testimony (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Gardeley [(1996)] 14 Cal.4th [605,] 620); however, no expert testimony was presented on this subject." (Jorge G., supra, 117 Cal.App.4th at pp. 944-945.)

On the record before us we have no expert testimony on the primary activities of the Norteno gang, and no evidence that any Norteno other than appellant has ever been convicted of any crime listed in subdivision (e) of section 186.22. There is thus no evidence in the record before us that "'the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.'" (Jorge G., supra, 117 Cal.App.4th at p. 945.) This absence of supporting evidence is not surprising because, as outlined below, the section 186.22, subdivision (b)(1) gang enhancement allegation was dismissed as part of the plea agreement under which appellant admitted committing the assault.

We briefly address two other matters raised by respondent. First, we reject respondent's argument that because appellant failed to object in the juvenile court to the gang registration requirement, appellant has waived or forfeited the issue on appeal. The reasonableness of a condition of probation is an issue that is waived or forfeited on appeal if the appellant fails to raise it in the lower court. (In re Sheena K. (2007) 40 Cal.4th 875, 883, fn. 4; In re Ramon M. (2009) 178 Cal.App.4th 665, 676.) The gang registration order at issue here was not a condition of probation. Appellant had already been on probation, and his probation was in fact revoked at the dispositional hearing in this case. The registration order in this case was imposed not as a condition of probation, but rather as a direct result of the court's implied finding under section 186.30, subd. (b)(3), that his crime was "gang related." Whether a finding is supported by substantial evidence is an issue of law that is never waived or forfeited on appeal. (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561.) Respondent's reliance on In re Abdirahman S. (1997) 58 Cal.App.4th 963, is unavailing because that is a case involving a condition of probation.

Second, we deny respondent's request that we "remand this matter to allow the prosecutor to develop a sufficient evidentiary basis" for a finding of gang relatedness. Although doing so would not violate the prohibition against double jeopardy (Jorge G., supra, 117 Cal.App.4th at p. 947), it would violate the terms of the plea agreement reached by the parties and approved by the juvenile court. The People moved to dismiss the section 186.22, subdivision (b)(1) gang enhancement allegation as part of a plea agreement, "in the interest of justice for the plea." This agreement was relied on by appellant and accepted by the juvenile court. Gang-related registration was not listed by the court as one of the consequences of appellant's plea. Pursuant to the plea agreement, the court ordered the gang enhancement dismissed. The People thus now request, in essence, an opportunity to prove an allegation they agreed to dismiss in exchange for the plea. Although the juvenile court noted that appellant maybe "strongly gang affiliated," we must hold the parties to the bargain they struck, which was approved by the juvenile court.

A crime is "gang related" within the meaning of section 186.30, subdivision (b)(3), "when it was 'committed, in the words' of subdivision (b)(1) of section 186.22, '"for the benefit of, at the direction of, or in association with" a street gang.' [Citations.]" (People v. Martinez (2004) 116 Cal.App.4th 753, 761-762.)

DISPOSITION

The court's August 6, 2010, order that "[t]he minor shall register as a gang member pursuant to Penal Code Section 186.30" is ordered stricken. In all other respects, the court's August 6, 2010, dispositional order is affirmed.


Summaries of

People v. George M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 5, 2011
No. F060697 (Cal. Ct. App. Aug. 5, 2011)
Case details for

People v. George M.

Case Details

Full title:In re GEORGE M., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Aug 5, 2011

Citations

No. F060697 (Cal. Ct. App. Aug. 5, 2011)