Filed 3/27/14 In re Bernardo M. CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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


In re BERNARDO M., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
                                                                                       F065906
         Plaintiff and Respondent,
                                                                         (Super. Ct. No. JJD062587)
                   v.
BERNARDO M.,
                                                                                    OPINION
         Defendant and Appellant.
                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
         Kelly Babineau, 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, Eric L. Christoffersen and John
G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

                                                        -ooOoo-

*        Before Levy, Acting P.J., Franson, J., and LaPorte, J.†
†       Judge of the Kings Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
       The court readjudged appellant, Bernardo M., a ward of the court after it sustained
allegations charging him with willful violation of a court order (Pen. Code, § 166,
subd. (a)(10)).1
       On appeal, appellant contends: 1) he was denied procedural due process because
the underlying petition cited the wrong code section; and 2) the evidence is insufficient to
sustain the court’s finding that he violated a court order. We affirm.
                                          FACTS
       On September 4, 2012, at appellant’s jurisdictional hearing, the prosecutor
requested judicial notice that on July 19, 2011, appellant admitted allegations in a prior
petition that he violated the association clause of an injunction issued against the Norteño
gang. (§ 166, subd. (a)(9).) The court granted the prosecutor’s request for the purpose of
showing appellant was served with the injunction and his knowledge and understanding
of its terms.
       The prosecution then presented evidence establishing that on February 15, 2012, at
approximately 9:49 p.m. in Cutler, Tulare County Sheriff’s Deputy Carlos Lara stopped a
Honda Accord driven by Bernardo Pena (Pena) because the light on the license plate was
out. Appellant was seated in the front passenger’s seat, Alberto Zavala (Alberto) was
seated in the rear seat behind appellant, and Alejandro Zavala (Alejandro) was seated in
the rear behind Pena.
       When Deputy Lara approached Pena, he noticed Pena’s eyes were red and watery,
his speech was slurred, and there was an odor of an alcoholic beverage coming from the
interior of the car. Lara recognized appellant from at least two previous contacts,
including one a few months earlier when appellant was arrested in Orosi by the gang unit
because he was intoxicated and belligerent. After having the back seat passengers roll

1      All further statutory references are to the Penal Code.


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down their windows, Lara saw a case of beer in the middle of the two rear passengers and
an open container on the floorboard between the feet of each of them.
       Deputy Lara further testified that Alejandro was wearing gang-related clothing
consisting of a red belt with the number 14 on it, a gray and red striped Pendleton jacket
that was mostly red, and black Nike Cortez shoes. Additionally, Alejandro told the
deputy he associated with northern gang members. Deputy Lara arrested Alejandro for
public intoxication and resisting arrest and appellant for violating the gang injunction by
associating with Alejandro. Appellant admitted to Lara he had been served with the
injunction and was aware of it.
       Tulare County Sheriff’s Deputy Joel Sanchez assisted Deputy Lara with the traffic
stop. Deputy Sanchez had 10 to 15 prior contacts with appellant, the majority of them
gang related. One contact occurred when appellant and another subject assaulted a
Sureño gang member.
       Tulare County Sheriff’s Detective Steve Sanchez testified as a gang expert that the
Sureño gang was created in the prison system in the mid-1950’s and was known as the
Mexican Mafia. In the late 1960’s some members broke off and formed the Nuestra
Familia gang, which ultimately became the Norteño gang and rivals of the Sureños. In
the early 1980’s Sureño gang members moving in from Southern California precipitated
conflict between the Norteños and the Sureños. According to Sanchez, there are
currently over 4,000 documented Norteño gang members in Tulare County. Further, in
Tulare County different subsets of the Norteño gang often align themselves together for
protection against the increasing number of Sureño gang members in the county.
Norteño gang members identify themselves with the letters NF, the number 14, and the
color red.
       Detective Sanchez further testified that in order to be validated as a documented
gang member a person must meet three of ten criteria that include admitting gang

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affiliation, being named as a gang member by a reliable source, wearing gang clothing,
having gang-related tattoos, possessing gang photos, being involved in a gang-related
crime, and writing or possessing gang material. Sanchez testified Pena met four of the
ten gang criteria, Alberto met three or more gang criteria, and Alejandro met three gang
criteria, including wearing clothing or attire associated with the Norteño gang.
According to Sanchez, all four car occupants were active Norteño gang members.
       Detective Sanchez also testified that there is a certain level of trust among gang
members, like a brotherhood. Because of this, it is common for gang members to
associate with members of their own gang even when not committing crimes, for them to
drive in vehicles together, and to congregate and drink alcohol together. According to
Sanchez, if one of four people in a car is a gang member it is more common for the other
people in the car to be fellow gang members than rival gang members.
                                       DISCUSSION
The Procedural Due Process Issue
       In 2011 former section 166 provided, in pertinent part: “(a) .... every person guilty
of a contempt of court, or any of the following kinds, is guilty of a misdemeanor: [¶ ] ...
[¶ ] (9) Willful disobedience of the terms of any injunction that restrains the activities of a
criminal street gang or any of its members, lawfully issued by any court, including an
order pending trial.” (Stats. 2010, ch. 677, § 1, p. 3688.) Effective January 1, 2012,
former section 166 subdivision (a)(9) was renumbered section 166 subdivision (a)(10),
but was not amended substantively. (Stats. 2011, ch. 181, § 4, pp. 2278-2279.)
       On May 17, 2012, the district attorney filed a petition alleging that on or about
February 15, 2012, Bernardo committed the crime of disobeying a court order, “in
violation of ... section 166(a)(9) ... by willful disobedience of a process and order
lawfully issued by a court, to wit, ASSOCIATION CLAUSE (#1) OF PRELIMINARY
NORTENO GANG INJUNCTION CASE #VCU237163.”

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       Appellant contends he was denied procedural due process because although the
instant petition alleged he violated section 166, subdivision (a)(9), he was prosecuted for
violating section 166, subdivision (a)(10) and the evidence does not support a conviction
under section 166, subdivision (a)(9). We will reject this contention.

              “‘[D]ue process requires that a minor, like an adult, have adequate
       notice of the charge so that he may intelligently prepare his defense.
       [Citation.]’ [Citation.] Compliance with this requirement has been held by
       the Supreme Court to mandate that the minor ‘be notified, in writing, of the
       specific charge or factual allegations to be considered at the hearing, and
       that such written notice be given at the earliest practicable time, and in any
       event sufficiently in advance of the hearing to permit preparation.’
       [Citation.]” (In re Robert G. (1982) 31 Cal.3d 437, 442.)

             ‘“Under the generally accepted rule in criminal law a variance is not
       regarded as material unless it is of such a substantive character as to
       mislead the accused in preparing his defense, or is likely to place him in
       second jeopardy for the same offense.’ [Citation.]” (In re Michael D.
       (2002) 100 Cal.App.4th 115, 128.)
       Appellant made no argument in the trial court and did not contend in his opening
brief that the petition did not adequately put him on notice of the charge against him. He
merely claims the evidence does not support a violation of section 166, subdivision
(a)(9). Since appellant, in effect, concedes he had adequate notice of the charges against
him, we conclude the variance between the petition and the evidence is inconsequential.2




2       In his reply brief appellant for the first time appears to argue that variance was
significant because “although the [petition] does mention willfully disobeying a court
order, that alleged conduct could have violated [subdivisions (a)(4) and (10) of section
166]” and “a defendant should not have to guess as to what charge he is defending.” We
summarily reject this contention because we will not address arguments raised for the
first time in the reply brief. (Provost v. Regents of University of California (2011) 201
Cal.App.4th 1289, 1295.)


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The Sufficiency of the Evidence Claim
         Appellant contends the evidence is insufficient to sustain the court’s finding he
violated the gang injunction because the evidence failed to establish he was aware any
other occupants of the Honda he was riding in were gang members. We disagree.

                 “Our review of [appellant’s] substantial evidence claim is governed
         by the same standard applicable to adult criminal cases. [Citation.] ‘In
         reviewing the sufficiency of the evidence, we must determine “whether,
         after viewing the evidence in the light most favorable to the prosecution,
         any rational trier of fact could have found the essential elements of the
         crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘“[O]ur role on
         appeal is a limited one.” [Citation.] Under the substantial evidence rule,
         we must presume in support of the judgment the existence of every fact that
         the trier of fact could reasonably have deduced from the evidence.
         [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s
         findings, the opinion of the reviewing court that the circumstances might
         also reasonably be reconciled with a contrary finding does not warrant
         reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51
         Cal.4th 1020, 1026.)
         Further, in order to prove appellant engaged in conduct that violated a gang
injunction one element the prosecutor had to prove was appellant’s knowledge of his
associate’s gang membership. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090,
1117.)
         Here, it was undisputed that appellant was a Norteño gang member. On the night
of February 15, 2012, appellant was the front seat passenger in a car occupied by three
other Norteño gang members. An open case of beer was on the back seat between the
rear passengers and each of these passengers had an open beer located on the floorboard
between their legs. Additionally, one rear seat passenger, Alejandro, was wearing a red
belt with a 14 on the buckle and a gray shirt with red stripes that was predominantly red.
         Detective Sanchez testified as a gang expert that Norteño gang members wear red
and identify with the number 14, and that when not committing crimes, they congregate,
ride in vehicles, and drink alcoholic beverages together. He also testified that because of

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the influx of Sureño gang members into Tulare County, members of one subset of
Norteño gang members will often align themselves with Norteño gang members from
other subsets for protection from Sureño gang members.
       The court could reasonably infer from appellant’s presence in the car where some
of its occupants were openly drinking from a case of beer in the back seat that he was
friends with some or all of the occupants. It could also reasonably infer that as a Norteño
gang member, appellant would know which of his friends were fellow gang members.
Further, given the rivalry between Norteño and Sureño gang members, the court could
have found it unlikely appellant would have gotten into a car or would have been allowed
by the car occupants to board if they had not all determined they were fellow Norteño
gang members. The court could also have found that as a Norteño gang member
appellant would have recognized Alejandro as a fellow Norteño gang member from the
red and gray Pendelton jacket, the red belt and the belt buckle with the number 14 that
Alejandro was wearing. Further, appellant’s conduct in riding around in a car with some
of the occupants drinking beer was consistent with behavior attributed to Norteño gang
members by Detective Sanchez. Accordingly, since the evidence amply supports the
court’s implicit finding that appellant was aware the other occupants of the Honda were
Norteño gang members, we reject appellant’s sufficiency of the evidence claim.
                                     DISPOSITION
       The judgment is affirmed.




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