Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL026110, Ronald P. Kreber, Judge.
Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin J. Phillips, Assistant Public Defender, and Martin F. Schwarz, Senior Deputy Public Defender, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Omar B. appeals from a judgment rendering him a ward of the juvenile court (Welf. & Inst. Code, § 602) after the juvenile court found true he violated a court order, a gang abatement injunction, for the benefit of a criminal street gang. Omar argues the juvenile court erroneously found true he violated the gang abatement injunction for the benefit of a criminal street gang because the factual basis for the injunction was used to elevate the crime from a misdemeanor to a felony.
After briefing was complete, this court issued its decision in Lopez v. Superior Court (2008) 160 Cal.App.4th 824 (Lopez). We requested the parties file supplemental letter briefs addressing the affect of Lopez on this case. As we explain below, this court’s decision in Lopez requires we reverse the juvenile court’s finding Omar violated the gang abatement injunction for the benefit of a criminal street gang, which elevated the offense from a misdemeanor to a felony.
FACTS
On November 17, 2006, Judge Daniel J. Didier issued an amended preliminary injunction in Orange County Superior Court case No. 06CC10916, prohibiting Omar, and numerous other “Boys From the Hood” criminal street gang members, including Francisco Nunez, from engaging in a range of conduct within the “safety zone,” which was defined and depicted on an accompanying map.
A few days later, Officer James Elliott and another officer responded to a brandishing a firearm call. When they arrived at the location, they saw a car matching the description of the vehicle—a silver Chevrolet Cobalt with four occupants. Elliott activated his patrol car’s overhead lights and siren to stop the vehicle. The driver of the car turned into an alley, accelerated, and eventually collided with two vehicles and an apartment building. The four people got out of the car and ran. Elliott chased and caught Francisco Nunez, and the other officer chased and caught Omar.
In their appellate briefs, the parties agree that when Elliott initiated the stop, the silver Cobalt was not in the safety zone, but when the car crashed, it was in the safety zone.
A petition alleged Omar committed a felony in that he willfully disobeyed a lawfully issued court order (Pen. Code, § 166, subd. (a)(1)), for the benefit of a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (d)). The juvenile court overruled Omar’s demurrer.
The petition references Penal Code section 166, subdivision (a)(1), which concerns disrupting a court proceeding, and not Penal Code section 166, subdivision (a)(4), which concerns disobeying a court order. Although the petition referenced the incorrect subdivision, the petition recited the correct language. Omar does not complain about the discrepancy on appeal. All further statutory references are to the Penal Code, unless otherwise indicated.
At a contested jurisdictional hearing, the district attorney offered the testimony of Elliott, as detailed above, and Bryan Janocha, a gang expert. Based on their prior contacts with police officers and prior investigations, Janocha opined Omar and Nunez were “active participant[s] in Boys From the Hood criminal street gang.” Based on a hypothetical mirroring the facts of this case, he also opined that when gang members associate in public it benefits the gang because it intimidates residents of the neighborhood. After the hearing, the court found the allegations true. The court declared Omar a ward of the court and placed him in the custody of the county probation department for 90 days to be stayed so long as he abided by the probation terms and conditions.
DISCUSSION
Omar argues “piggybacking a gang allegation to a contempt charge based on a violation of a gang-abatement injunction constitutes illegal bootstrapping.” He contends that to obtain the injunction, the People had to demonstrate Boys From the Hood was a criminal street gang as defined in section 186.22, subdivision (f). He asserts “because the injunction was issued on the basis that the conduct enjoined was gang[]related, the People are precluded from further increasing the punishment for contempt by charging an allegation that the contempt was (again) gang[]related.” Before we address the merits of Omar’s claim, we must first discuss a procedural issue raised by the supplemental briefing.
In his supplemental briefing, Omar argues Lopez, supra, 160 Cal.App.4th 824, which we will discuss anon, is dispositive here. The Attorney General initially conceded Lopez is controlling in this case. However, the Attorney General subsequently filed a second supplemental brief, 25 days after the deadline for filing supplemental briefs had passed, withdrawing its concession. Despite the fact this brief was late, and the Attorney General did not file an application for filing a late brief (Cal. Rules of Court, rule 8.50), we accepted the brief for filing and considered it.
“‘An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.’ [Citation.] ‘“[W]hile briefs and argument are outside the record, they are reliable indications of a party’s position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.”’ [Citations.]” (People v. Cox (1990) 221 Cal.App.3d 980, 993 (dis. opn. of Nares, J.); Williams v. Superior Court (1964) 226 Cal.App.2d 666, 673-674 [Attorney General conceded mandamus should issue to compel appointment of counsel for defendant]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 597, p. 631.) We caution the Attorney General against making hasty concessions and then withdrawing them long after the time has passed to respond. We note, the petition for review which the Attorney General relies on for its change of heart was filed well before we ordered supplemental briefing. And now on to the merits of Omar’s claim.
Section 166, subdivision (a)(4), states: “Except as provided in subdivisions (b), (c), and (d), every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor: [¶] . . . [¶] . . . Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial.”
Section 186.22, subdivision (d), provides: “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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 be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days.” Section 186.22, subdivision (d), is an alternate penalty provision applicable “when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang.” (Robert L. v. Superior Court (2003)30 Cal.4th 894, 898-899 (Robert L.).)
In this case, the underlying offenses were carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)), and carrying a concealed firearm (§ 12025, subd. (a)(2)).
In Lopez, supra, 160 Cal.App.4th at pages 827, 831, footnotes omitted, this court, in the context of a writ proceeding after the trial court overruled defendant’s demurrer, addressed the same issue we face here: may the same gang-related conduct be used as the violation of the injunction and then used again to elevate that offense from a straight misdemeanor to the wobbler under section 186.22, subdivision (d)’s alternate penalty provision. The court stated: “[c]ontempt is a misdemeanor, but it is elevated to a wobbler when committed for the benefit of a [criminal street] gang under section 186.22, subdivision (d)[,]” and “can . . . be charged as a felony under section 186.22, subdivision (d).” (Lopez, supra, 160 Cal.App.4th at p. 830.) The court explained the intent of the Gang Violence and Juvenile Crime Prevention Act “Proposition 21 does not permit ‘a defendant [to] receive double punishment because his or her crime fell within the scope of two statutes. Rather, [ . . . Proposition 21] advises that where a crime does fall within the scope of two statutes, only the statute yielding the longer period of punishment should apply.’” (Ibid.) The court continued: “The question remains whether obtaining an injunction against gang-related conduct by a gang member and then enhancing said conduct because it is gang related under section 186.22, subdivision (d), imposes the ‘double punishment.’” (Ibid.)
Relying on the California Supreme Court’s decision in People v. Briceno (2004) 34 Cal.4th 451 (Briceno), the Lopez court stated, “the ‘same gang-related conduct’ cannot be used twice in the same sentencing scheme without violating the concept of double punishment for the same act. [Citations.]” (Lopez, supra, 160 Cal.App.4th at p. 831.) The court opined that in defendant’s case “[t]he same ‘gang-related conduct’ [wa]s being used first as the violation of the injunction and then used again to elevate that offense from a straight misdemeanor to the wobbler under section 186.22, subdivision (d).” (Ibid.) The court explained, “The crux is if a single fact is used to prove both of the enhancing provisions. Whether double punishment is inflicted is not resolved simply because the jury must first find the underlying offense and then find the enhancement true. The dual use of the same fact of gang-related conduct is the pivotal point that constitutes the impermissible bootstrapping.” (Id. at pp. 831-832.) The court concluded, “the prosecution cannot legally criminalize behavior due to the sole fact that it is gang related and then increase punishment for that behavior simply by again alleging the same gang-related fact.” (Id. at p. 833.)
The same gang-related conduct was first used to prove Omar violated the gang-abatement injunction and then used again to elevate the crime from a misdemeanor to a felony. This is the same impermissible bootstrapping the court in Lopez, supra, 60 Cal.App.4th 824, forbade. The juvenile court’s elevation of the contempt charge from a misdemeanor to a felony pursuant to section 186.22, subdivision (d), is reversed.
The Attorney General, after withdrawing its concession Lopez, supra, 160 Cal.App.4th 824, is controlling in this case, relies on the district attorney’s petition for review in Lopez, and argues this court’s holding in Lopez is inconsistent with Robert L., supra, 30 Cal.4th 894, Briceno, supra, 34 Cal.4th 451, and People v. Arroyas (2002) 96 Cal.App.4th 1439 (Arroyas). As we explain below, we addressed the Attorney General’s claims in Lopez, supra, 160 Cal.App.4th 824, and need not do so here again.
On June 11, 2008, the California Supreme Court denied the district attorney’s petition for review in Lopez.
Relying on Robert L., supra, 30 Cal.4th 894, the Attorney General argues section 186.22, subdivision (d), is an alternate penalty provision that “is separate from contempt of court and does not set forth the elements of contempt of court or a greater degree of contempt of court.” Although this court in Lopez, supra, 160 Cal.App.4th 824, did not discuss Robert L., section 186.22, subdivision (d)’s alternate penalty provision for conduct benefiting a criminal street gang is not separate from a violation of a court order prohibiting gang-related misconduct. As this court explained in Lopez, supra, 160 Cal.App.4th at page 831, the “‘same gang-related conduct’ cannot be used twice in the same sentencing scheme without violating the concept of double punishment for the same act.”
Relying on Briceno, supra, 34 Cal.4th 451, and Arroyas, supra, 96 Cal.App.4th 1439, the Attorney General contends section 186.22, subdivision (d), is an alternate penalty provision, and “[t]he limitation on the use of gang-related evidence applie[s] only to the current proceeding.” The Attorney General claims that limitation is inapplicable here because the gang-related conduct that resulted in the issuance of the injunction was in a prior proceeding to gang-related conduct that resulted in the charge of violating a court order. This court addressed this same claim in Lopez, supra, 160 Cal.App.4th at page 831, and the Attorney General offers no compelling justification for revisiting the issue.
DISPOSITION
The juvenile court’s finding Omar violated section 166, subdivision (a)(4), is affirmed. The juvenile court’s finding he violated section 166, subdivision (a)(4), within the meaning of section 186.22, subdivision (d), is reversed. We remand the matter to the juvenile court for further proceedings consistent with this opinion.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.