Filed 9/12/13 In re Michael D. CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re MICHAEL D., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
                                                                       G046783
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL041566)
         v.
                                                                       OPINION
MICHAEL D.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Jacki C.
Brown, Judge. Affirmed.
                   Susan L. Ferguson, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
              The juvenile court found true allegations Michael D. committed vandalism
(Pen. Code, § 594)1 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) (section 186.22(d)). The juvenile court declared
Michael a ward of the court and granted supervised probation.
              Michael challenges the sufficiency of the evidence to support the primary
activities and specific intent elements of the section 186.22(d) gang enhancement. He
also argues the gang expert’s reliance on hearsay violates his Sixth Amendment right to
confront adverse witnesses. (Crawford v. Washington (2004) 541 U.S. 36, 51-53
(Crawford).) In addition, Michael asserts the juvenile court erred by excluding certain
defense expert testimony, and by not expressly declaring the vandalism conviction to be a
felony as required by Welfare and Institutions Code section 702 (section 702). We agree
with his final contention but conclude the error is harmless and affirm the judgment.


                                           FACTS


              In late 2011 and early 2012, Michael was detained in juvenile hall on a
petition (petition 001) alleging he committed various crimes for the benefit of, and he
was an active participant in, Orange Varrio Cypress (OVC). During this incarceration,
Michael and other minors caused two major disruptions by banging on the doors of their
units and yelling. On both occasions, Michael was heard yelling, “OVC.” Michael also
caused a third disruption by engaging in what is known as a gang rollcall, in which he
repeatedly yelled out his room number and gang affiliation and asked the other juveniles
to do the same.


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


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              In early January 2012, a juvenile correctional officer found “OVCX3”
carved into the window in Michael’s cell. She knew these letters had not been on the
window the night before, and that Michael was the sole resident in the cell. As a result,
the Orange County District Attorney filed a second petition (petition 002) alleging
Michael committed an act of vandalism by carving these letters into the window, and he
committed this criminal act with the specific intent to promote, further, and assist in
criminal conduct by members of OVC.
              At trial, the prosecution called Detective Miguel Cuenca as its gang expert.
Cuenca, a 12-year veteran of the Orange Police Department with three years of
experience in the department’s gang unit, testified he was very familiar with the criminal
street gangs in Orange. He had personally investigated OVC related vandalisms,
assaults, and assaults with deadly weapons. He had also talked to numerous OVC
members and associates, and their family members, girlfriends, and boyfriends. Through
work-related courses and various assignments, Cuenca had come into contact with many
other Hispanic gang members, including members of the Mexican Mafia. In all, Cuenca
estimated he had talked to hundreds of active gang members during his career.
              Cuenca testified OVC is an offshoot of Santa Ana’s F-Troop gang. In the
1970’s several members of F-Troop moved to Orange and started other gangs including
OVC. OVC claims the west side of Orange as its territory. OVC has many gang rivals,
including the Orange County Criminals, Pearl Street, V.M.L., Dark Side, and Brown
Town. They also have allies in gangs known as Bartel Small Town, Anaheim, Highland
Street, San Anita, and Walnut Street.
              According to Cuenca, as of February 2012, OVC had 20 to 30 members.
OVC gang members use various symbols to signify allegiance to their gang, including the
names Orange Varrio Cypress, Old Town, Old Towners, Kilifore Park Killers, Los Royal
Dukes, Dukes, and Orange, and the letters “OVC, OVECE.” Cuenca had found these
words, names, and phrases in graffiti, in gang member’s tattoos, and on their cell phones,

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pieces of paper, books, computers, laptops, and MySpace and Facebook pages and
postings. Cuenca testified “OVCX3” is frequently used by gang members to denote
allegiance to OVC and the Mexican Mafia. This is a common marking that represents
“the name of the gang, and the X3 promotes the Mexican Mafia or the Southern
California gang subculture.”
              Based on his knowledge and experience gained through investigating OVC-
related crimes, speaking to OVC members and associates and people in the community
OVC claims as its turf, and by reviewing police reports and talking to other police
officers, Cuenca testified OCV’s primary activities are the commission of assaults with
deadly weapons, illegal possession of firearms, and sales of methamphetamine. He also
testified to two crimes committed by other members of OVC. In 2009, OVC member
Josh Alvin Branch was convicted of possession for sale of methamphetamine with a gang
enhancement and active participation in a gang. In 2010, OVC member Angela Laura
Navarro was convicted of possession of a firearm by a felon and active participation in a
gang.
              In Cuenca’s opinion, Michael was an active participant in OVC at the time
of the instant offense, and he committed the crime with the specific intent to benefit the
gang. Cuenca testified the gang benefits from Michael’s act of vandalism because it
claims his cell as OVC territory and instills fear in rival gang members and jail staff. He
based this opinion on personal knowledge of OVC, conversations he had with rival gang
members, and his review of Michael’s prior contacts with law enforcement.
              Michael called Tracey Silveira-Zaldivar (Zaldivar), a school psychologist
and an expert behavioral analyst to testify. She said she met Michael and his family
when Michael was an elementary school student. In 2012, achievement tests indicated
Michael’s academic skills were that of a nine year old when he was in fact 15 years old.
He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was
attending school under an individualized education plan. Zaldivar explained ADHD is a

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neurological development disorder that affects the prefrontal cortex and temporal lobe of
a person’s brain. These two areas regulate impulse and inhibition centers of the brain.
              In Zaldivar’s opinion Michael met the criteria for a “combined type,” or
someone who manifests both hyperactivity and impulsivity. In addition, the results of his
IQ test suggest he has below average reasoning skills and could be referred to as mildly
retarded. Although Michael knows the difference between right and wrong, Zaldivar said
he has difficulty assessing the cause and effect of his own actions. In Zaldivar’s
interactions with Michael, she noticed his ADHD manifesting in his blurting out words,
acting out, poking, and playing with objects, constant movement, and tendency to throw
things. Although Zaldivar recommended Michael receive medication for this condition,
his parents had not followed her recommendation. In Zaldivar’s opinion, Michael’s act
of carving OVCX3 was a manifestation of the impulsive behavior associated with
ADHD, although it may have occurred for other reasons.


                                      DISCUSSION


1. Primary Activities
              Michael first challenges the sufficiency of the evidence to prove the
primary activities of OVC. (§ 186.22, subds. (e) and (f).) Specifically, he claims
Cuenca’s testimony about OVC’s primary activities was impermissibly based on
unreliable hearsay and insufficient to show the chief or principal occupations of the gang.
              “When an appellant challenges the sufficiency of the evidence to support a
conviction, the appellate court reviews the entire record to see ‘“whether it contains
substantial evidence—i.e., evidence that is credible and of solid value—from which a
rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’”
[Citation.] We view the facts in the light most favorable to the judgment, drawing all
reasonable inferences in its support. [Citations.] We do not reweigh the evidence,

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resolve conflicts in the evidence, or reevaluate the credibility of witnesses. [Citations.]”
(People v. Cochran (2002) 103 Cal.App.4th 8, 12-13, overruled on other grounds in
People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
              Michael challenges Cuenca’s testimony concerning OVC’s primary
activities and argues Cuenca relied solely on “unreliable hearsay” to form his opinion
OVC members consistently and repeatedly committed assaults with deadly weapons,
illegally possessed firearms, and sold methamphetamine. It is true Cuenca based his
opinion, at least in part, on hearsay evidence. However, it is also true otherwise
inadmissible evidence, like hearsay, can provide a proper basis for a gang expert’s
opinion so long as it is reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 618-619.)
And, while Michael questions the reliability of Cuenca’s hearsay sources, there is nothing
in the record to support this argument.
              Leaving aside hearsay, Michael ignores the fact Cuenca testified he
personally investigated OVC crimes, and had other personal knowledge about the gang’s
origins, culture, and criminal activities. Cuenca also testified about two specific
predicate crimes involving other OVC members, and the prosecutor submitted court
documents supporting this testimony. Thus, this is not a case where the expert provided
only conclusory testimony as in In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612,
or vague, nonspecific hearsay as in In re Nathaniel C. (1991) 228 Cal.App.3d 990 and In
re Leland D. (1990) 223 Cal.App.3d 251.
              In short, substantial evidence shows the primary activities of OVC include
the commission of one or more of the crimes listed in section 186.22, subdivision (e).


2. Specific Intent
              Michael next challenges the sufficiency of the evidence he acted with the
specific intent to promote, further or assist any criminal conduct by gang members as
required by section 186.22(d). Michael contends “where a defendant acts alone, it cannot

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be inferred from the mere commission of the current offense that he intends to facilitate
the criminal conduct of other gang members.” Furthermore, he contends the prosecution
was required to present evidence “explaining what criminal conduct the etching is
intended to facilitate.” He cites People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez)
in support of these contentions. Michael’s reliance on Rodriguez is misplaced.
              In Rodriguez, our Supreme Court held the substantive offense of active
participation in a criminal street gang (§ 186.22, subd. (a)) may not be committed by a
lone gang member. (Rodriguez, supra, 55 Cal.4th at p. 1132.) In reaching this result, the
court contrasted the statutory purpose and language of the substantive offense with that of
the enhancement. The court stated, “Section 186.22(a) and section 186.22(b)(1) strike at
different things. The enhancement under section 186.22(b)(1) punishes gang-related
conduct, i.e. felonies committed with the specific intent to benefit, further, or promote the
gang. [Citation.] However, ‘[n]ot every crime committed by gang members is related to
a gang.’ [Citation.] As such, with section 186.22(a), the Legislature sought to punish
gang members who acted in concert with other gang members in committing a felony
regardless of whether such felony was gang related. [Citation.]” (Rodriguez, supra, 55
Cal.4th at p. 1138.) Thus, the substantive offense requires evidence the defendant acted
with at least one other gang member, but not evidence the defendant acted with the
specific intent required for the enhancement. (Ibid.)
              The Rodriguez court also noted a lone gang member may be subjected to
the enhanced penalties provided under Section 186.22, subdivision (b)(1) (section
186.22(b)(1)). (Rodriguez, supra, 55 Cal.4th at p. 1139.) We believe the same is true
with respect to the enhanced penalties provided under section 186.22(d). All of the
points quoted above contrasting the section 186.22(b)(1) enhancement from the section
186.22 subdivision (a)(1) substantive offense, are equally applicable to the section
186.22(d) enhancement. Both enhancements apply to persons convicted of crimes
“committed for the benefit of, at the direction of, or in association with any criminal

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street gang, with the specific intent to promote, further, or assist in any criminal conduct
by gang members . . . .” (§ 186.22, subds. (b)(1) and (d).) Accordingly, we reject
Michael’s claim a gang member acting alone may not be subjected to the section
186.22(d) enhancement. Michael also argues due process required the prosecution to
prove he committed vandalism with the intent to facilitate some other specific identifiable
gang-related criminal conduct. However, Rodriguez expressly rejected this argument as
to the section 186.22(b)(1) enhancement, and held due process is satisfied by the
statutory requirements “that the felony be gang related and that the defendant act with a
specific intent to promote, further, or assist the gang . . . .” (Rodriguez, supra, 55
Cal.4th at p. 1139.) This holding also applies with equal force to the section 186.22(d)
enhancement.
               In this case, while Michael acted alone, the evidence supports the jury’s
determination the vandalism was gang related and he committed it with the specific intent
to promote, further, or assist criminal conduct by OVC members. He had previously
incited other gang members to yell their gang’s name in a rollcall fashion. Then, he
decided to etch one of OVC’s identifying symbols in his cell window. It is difficult to
conceive of any non-gang-related reason for this particular act of vandalism, or that he
acted without the requisite specific intent. Hence, substantial evidence supports the
jury’s true finding on the section 186.22(d) enhancement.


3. Crawford
               Michael also claims Cuenca’s expert testimony violated Crawford, to the
extent he relied on hearsay. As a threshold matter, we note Michael did not object on
confrontation grounds at trial and, as the Attorney General points out, the issue was thus
forfeited. (Evid. Code, § 354; People v. Riccardi (2012) 54 Cal.4th 758, 801.) On the
merits, the use of hearsay by experts in criminal street gangs has long been condoned.
(Gardeley, supra, 14 Cal.4th at pp. 618-620.)

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              Nothing in Crawford undermined well-established rules concerning the use
of expert testimony. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) As
the Thomas court observed, “Crawford does not undermine the established rule that
experts can testify to their opinions on relevant matters, and relate the information and
sources upon which they rely in forming those opinions. This is so because an expert is
subject to cross-examination about his or her opinions and additionally, the materials on
which the expert bases his or her opinion are not elicited for the truth of their contents;
they are examined to assess the weight of the expert’s opinion. Crawford itself states that
the Confrontation Clause ‘does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.’ (Crawford, supra, 541 U.S. at p.
59, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.)” (People v. Thomas,
supra, 130 Cal.App.4th at p. 1210.)
              Questions directed at the reliability of Cuenca’s sources of information
were a proper basis for cross-examination, but those questions go to the weight to be
given his opinion, not its admissibility. There was no violation of Crawford.


4. Defense Expert Testimony
              In an effort to prove Michael acted impulsively by carving OVCX3 into his
cell window, and to negate his ability to form the requisite specific intent, defense
counsel sought to introduce evidence of his mental disorders. During a pretrial
discussion on the matter, the juvenile court ruled Zaldivar could testify about the most
recent studies and understanding of how the brain processes information, and analyze
Michael’s test results and diagnosis. But the juvenile court precluded the defense from
presenting evidence Michael could not “entertain such thoughts.” On appeal, Michael
claims the juvenile court improperly limited the scope of his expert’s testimony. We
disagree.



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              Section 28, subdivision (a) provides, “Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate the capacity to form
any mental state, including, but not limited to, purpose, intent, . . . or malice aforethought,
with which the accused committed the act. Evidence of mental disease, mental defect, or
mental disorder is admissible solely on the issue of whether or not the accused actually
formed a required specific intent, . . . when a specific intent crime is charged.” Section
28 “precluded jury consideration of mental disease, defect, or disorder as evidence of a
defendant’s capacity to form a requisite criminal intent, but it did not preclude jury
consideration of mental condition in deciding whether a defendant actually formed the
requisite criminal intent.” (People v. Williams (1997) 16 Cal.4th 635, 677.)
              Section 29 provides, “In the guilt phase of a criminal action, any expert
testifying about a defendant’s mental illness, mental disorder, or mental defect shall not
testify as to whether the defendant had or did not have the required mental states, which
include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the
crimes charged. The question as to whether the defendant had or did not have the
required mental states shall be decided by the trier of fact.” Together, “Sections 28 and
29 permit introduction of evidence of mental illness when relevant to whether a
defendant actually formed a mental state that is an element of a charged offense, but do
not permit an expert to offer an opinion on whether a defendant had the mental capacity
to form a specific mental state or whether the defendant actually harbored such a mental
state.” (People v. Coddington (2000) 23 Cal.4th 529, 582, fns. omitted, overruled on
another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.)
              Applying these principles here, the juvenile court properly limited the
scope of the defense expert’s testimony to providing background information on
Michael’s ADHD diagnosis, and the possible effects of this condition on his impulse
control. In fact, Valdez testified the condition causes severe inhibition deficiencies,
which means those affected have poor self-control and lack understanding of the cause

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and effects of the actions. The only limitation placed by the juvenile court was that
Valdez could not testify whether Michael had or did not have the mental state required by
the offense charged. That determination is for the trier of fact to decide. (People v.
Smithey (1999) 20 Cal.4th 936, 968-969.)


5. Welfare and Institutions Code Section 702
              Section 702 states in part, “If the minor is found to have committed an
offense which would in the case of an adult be punishable alternatively as a felony or a
misdemeanor, the court shall declare the offense to be a misdemeanor or felony.”
Michael claims, the Attorney General concedes, and we are convinced the juvenile court
failed to make the required section 702 declaration with respect to the gang-related
vandalism in petition 002.
              In spite of this failure, “the record as a whole establishes the juvenile court
was aware of its discretion to treat the offense as a misdemeanor and to state the
misdemeanor-length confinement” (In re Manzy W. (1997) 14 Cal.4th 1199, 1208
(Manzy)), but instead stated the felony-length confinement. During the disposition
hearing, the juvenile court did declare a separate vandalism charge in a separate petition
(petition 003) was to be treated as a misdemeanor. This convinces us the court was
aware it had discretion to likewise treat the vandalism charged in petition 002 as a
misdemeanor, but instead treated the matter as a felony.
              For all of these reasons here, unlike in Manzy, it would be redundant to
remand the matter to the juvenile court for an express declaration under section 702 and
the error is harmless. (Id. at pp. 1210-1211.)




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                                  DISPOSITION


            The judgment is affirmed.




                                             THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




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