Filed 8/29/14 In re David V. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

In re DAVID V., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F067994

         Plaintiff and Respondent,                                             (Super. Ct. No. JL004639)

                   v.
                                                                                         OPINION
DAVID V.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from an order of the Superior Court of Merced County. David W.
Moranda, Judge.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Plaintiff and
Respondent.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell Acting P.J., Gomes, J., and Kane, J.
                                    INTRODUCTION
       On July 9, 2013, a petition was filed pursuant to Welfare and Institutions Code
section 602, alleging that David V., appellant, possessed a concealable firearm (Pen.
Code, § 29610, count 1),1 possessed live ammunition (§ 29650, count 2), and actively
participated in a criminal street gang (§ 186.22, subd. (a), count 3). An enhancement was
alleged on count 1 that appellant committed the offense for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(A)).
       At the conclusion of a contested jurisdictional hearing on August 6, 2013, the
juvenile court found all of the allegations in the petition true beyond a reasonable doubt.2
At the disposition hearing on August 13, 2013, the juvenile court placed appellant on
probation upon various terms and conditions including that he serve 39 days in juvenile
hall with 39 days credit for time already served and perform 32 hours of community
service in the Juvenile Work Program.
       Appellant contends there was insufficient evidence to sustain the gang
enhancement on count 1 and insufficient evidence of count 3. Respondent replies that
there was substantial evidence to support the gang enhancement but concedes there was
insufficient evidence to support count 3.
                                            FACTS
       Merced Police Officer Reynaldo Alvarez was assigned to the Gang Violence
Suppression Unit in July 2013. Alvarez had been a police officer for six and a half years.
Alvarez had specific training for gang investigations, including over 120 hours of
classroom training. This training included gang lifestyles, prison gangs, street gangs,


1      Unless otherwise indicated, statutory references are to the Penal Code.
2    The juvenile court also took judicial notice that appellant had admitted he
committed a robbery (§ 211) in an unrelated action.


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gang crimes, and trends in gang lifestyle. Alvarez has performed over 100 gang
investigations, has interviewed gang members to learn about gang philosophy, and has
studied gang tattoos and signs. Alvarez has studied gang graffiti and has talked to gang
members about gang rivalries and alliances. Alvarez has also testified in the past as a
gang expert.
       On July 6, 2013, Alvarez went with other police officers to an address on Easy
Street to serve a search warrant. They were traveling in a police van. Alvarez saw three
males standing in front of the residence on Easy Street. When the three men saw the van,
they took off running away from the street. Alvarez recognized one of the males as
appellant and the other as Mario J. When he exited the van, Alvarez contacted Mario J.
and appellant who were standing in the driveway in front of the residence on Easy Street.
       Alvarez ordered appellant, Mario J., and Robert Ortiz, who came out of the
garage, to the ground. The three were handcuffed. As Officer Drum was searching
appellant, Alvarez heard a metallic object hit the ground. Alvarez turned around and saw
a .380-caliber handgun on the ground. The gun was loaded with seven rounds of
ammunition. Appellant told Alvarez that the gun belonged to him. Appellant also said
he was at the residence because he considered Robert Ortiz to be his family. Appellant
denied any gang affiliation.
       Inside the residence, officers found a Mossberg shotgun loaded with five shotgun
shells, a .40-caliber Glock handgun, and ammunition inside a lunchbox located in the
garage.
       Alvarez described gang world culture as having a skewed definition of respect.
For gang members, respect equals fear. The more crimes gang members commit, the
more they show their dedication to the gang and the more respect they will get from
fellow gang members. Fear also equals power for gang members. When a gang member
beats up someone, that person gets more respect from fellow gang members. When a

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gang member possesses a firearm, it benefits the gang because that gang member is able
to provide protection and to attack rivals or enemies.
       When a gang member has a firearm, he gets respect from peers and fright from
rival gang members because the rivals know their enemies are willing to commit violent
assaults and shootings. This culture applies to adult and juvenile gang members. Older
gang members are aware that if they are caught with firearms, especially if they have a
prior criminal record, they are looking at serious time. Younger gang members do not
face the same severe punishment. Older gang members therefore have younger gang
members sell drugs, possess firearms, and commit shootings to show loyalty to the gang
and to older gang members.
       Alvarez has talked to over 500 Norteño gang members and is familiar with their
colors and number. The Norteños wear red and are committed to violent crimes
including shootings, stabbings, robberies, assaults, narcotic sales, and firearms. Apolonio
Serena, a Norteño gang member, was convicted in 2013 of robbery. Another member of
the Norteños, Raymond Rodriguez, was convicted of assault by means likely to cause
great bodily injury in June 2012. Both crimes are listed in section 186.22, subdivision
(e). Appellant is a member of the Norteño gang.
       Alvarez is aware of appellant’s membership because appellant told juvenile hall
staff of his affiliation when he was booked in the past into juvenile hall. Alvarez opined
that appellant was an active member of the Norteño gang because he was committing
crimes with other members of the Norteño gang at the residence of an older Norteño gang
member, Robert Garcia. Robert Ortiz is also a member of the Norteño gang. Alvarez
opined that appellant possessed the handgun for the benefit of the Norteño gang.
       Elaborating on the reasons for his opinion that appellant’s possession of the gun
was for the benefit of and at the direction of a criminal street gang, Alvarez stated there
were three gang members at the residence associating together. They were in possession

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of firearms as directed by the Norteños. As a younger gang member, appellant was
proving himself and showing loyalty to the gang by committing crimes for the gang, in
this case, possession of a firearm for self-protection and to attack rivals.
             SUBSTANTIAL EVIDENCE OF GANG ENHANCEMENT
       Appellant contends there is insufficient evidence of the specific intent requirement
to uphold the section 186.22, subdivision (b) enhancement. We disagree.
       Section 186.22 is part of the California Street Terrorism Enforcement and
Prevention Act, also known as the STEP Act. (§ 186.20.) Section 186.22, subd. (b)(1)
provides in relevant 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”
further punished.
       When the sufficiency of the evidence to sustain a gang enhancement is challenged
on appeal, we review the whole record in the light most favorable to the judgment to
determine whether it contains substantial evidence, 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. (People v. Hill (1998) 17 Cal.4th 800, 848-849; People v. Duran
(2002) 97 Cal.App.4th 1448, 1456-1457; People v. Villalobos (2006) 145 Cal.App.4th
310, 321-322.) This same standard applies in juvenile cases. (In re Macidon (1966) 240
Cal.App.2d 600, 607.)
       Appellate courts do not determine the facts in reviewing a challenge to the
sufficiency of the evidence. We examine the record as a whole in the light most
favorable to the judgment and presume the existence of every fact the trier of fact could
reasonably deduce from the evidence in support of the judgment. (People v. Guerra

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(2006) 37 Cal.4th 1067, 1129 [questioned on another ground in People v. Rundle (2008)
43 Cal.4th 76]; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a
single witness is physically impossible or inherently improbable, it is sufficient for a
conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
       An appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before
setting aside the judgment of the trial court for insufficiency of the evidence, it must
clearly appear that there was no hypothesis whatever upon which there was substantial
evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453;
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
       Appellant contends that there was no evidence presented that, by possessing the
loaded handgun, he had the specific intent to promote or to engage in any criminal
conduct for the benefit of the Norteño criminal street gang. Appellant argues the present
case is indistinguishable from the factual situation before this court in In re Frank S.
(2006) 141 Cal.App.4th 1192 (Frank S.). In Frank S., a police officer detained a minor
for failing to stop at a red traffic light while riding a bicycle. The officer found a
concealed knife on the minor, who explained he carried the knife for protection against
the “southerners,” a local gang. The minor later admitted he was affiliated with a rival
gang. The prosecution’s gang expert testified the minor’s possession of the knife
benefitted his gang because members would use the knife for protection or to assault rival
gangs. (Id. at pp. 1195-1196.)
       This court reversed the true finding on the enhancement in Frank S., explaining
the prosecution presented no evidence other than the expert’s general opinion regarding
gangs, and the expert’s inadmissible opinion on the ultimate issue, to establish that
possession of the weapon was committed for the benefit of or at the direction of a
criminal street gang. The prosecution presented no evidence that the minor was in gang

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territory, was with gang members, or had any reason to expect to use the knife in a gang-
related offense. The only other evidence presented was the minor’s statement to the
arresting officer that he had been jumped two days prior and needed the knife for
protection. The Frank S. court held that to allow the expert to state the minor’s specific
intent for the knife without any other substantial evidence opened the door for
prosecutors to enhance many felonies as gang-related and extended the purpose of the
statute beyond what the Legislature intended. (Frank S., supra, 141 Cal.App.4th at
p. 1199.)
       Frank S. held that the evidence there showed no more than the minor’s affiliation
with the gang, and that membership alone did not prove a specific intent to use the knife
to promote, further, or assist in gang members’ criminal conduct. (Frank S., supra, 141
Cal.App.4th at p. 1199.) We found no substantial evidence supported the expert’s
opinion the minor acted with the requisite intent. (Ibid.)
       The facts here are distinguishable from Frank S. There is no question that
appellant was a Norteño gang member. Appellant had previously admitted gang
membership when booked into juvenile hall. He was with two other known Norteño
gang members and was at the residence of a fourth known member of the Norteño gang.
Appellant claimed one of those two, Robert Ortiz, as a friend. Other loaded weapons and
ammunition were located at the same residence. Officer Alvarez testified as a gang
expert that minors are used by older gang members to commit crimes and to possess
weapons for the benefit of the Norteño gang so the older gang members could avoid the
harsher penalties given to adults.3


3       While an expert may not testify directly whether a defendant committed an offense
for gang purposes, he or she may express an opinion based on hypothetical questions that
track the evidence, whether the offense, if it in fact occurred, would have been for gang
purposes. Expert opinion that particular criminal conduct benefited a gang is permissible

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       Circumstantial evidence of specific intent is sufficient. If substantial evidence
otherwise establishes the offense is gang-related, the trier of fact may infer that the
defendant had the specific intent to promote, further, or assist any criminal conduct by
gang members. (Albillar, supra, 51 Cal.4th at pp. 67-68.) We find there is substantial
evidence to tie appellant and his offense to the Norteño gang and that the facts of the
Frank S. case are inapposite to the instant action.
                      INSUFFICIENT EVIDENCE OF COUNT 3
       The parties concede there was insufficient evidence of count 3 because there was
no evidence appellant was committing his offense with other gang members or that he
was acting collectively when he committed his crime. The California Supreme Court has
held that a violation of section 186.22, subdivision (a) requires that the crime be
committed collectively with other gang members. In People v. Rodriguez (2012) 55
Cal.4th 1125, 1130-1139 (Rodriguez), a member of a gang committed a robbery by
himself. Our high court found crimes committed by gang members acting alone are
insufficient to sustain a conviction under section 186.22, subdivision (a). (Rodriguez,
supra, 55 Cal.4th at pp. 1130-1139.) The decisions of the Supreme Court are binding on
all lower courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, we will reverse count 3 for insufficiency of the evidence.
                                      DISPOSITION
       The juvenile court’s true finding on count 3 is reversed for insufficiency of the
evidence. The remaining orders of the juvenile court are affirmed.




and can be sufficient to support the gang enhancement. (People v. Vang (2011) 52
Cal.4th 1038, 1048, quoting People v. Albillar (2010) 51 Cal.4th 47, 63 (Albillar).)


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