Opinion
F049859
12-12-2006
In re OMAR L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. OMAR L., Defendant and Appellant.
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court sent Omar L. to a youth facility for a period of 365 days after admissions or findings that he had committed six separate violations of the law, including three felonies. Omar also admitted (no contest) to a criminal street gang enhancement, and the juvenile court found two additional criminal street gang enhancements true. Two of the felony counts were "wobblers," for which the juvenile court imposed felony periods of confinement.
Omar argues the juvenile court erred (1) in failing to exercise its discretion and declare the two wobblers to be felonies or misdemeanors; (2) in declaring the maximum period of confinement at the disposition hearing; and (3) because substantial evidence did not support the two criminal street gang enhancements found true by the juvenile court.
We agree that the juvenile court failed to comply with Welfare and Institutions Code section 702 because it did not specifically declare the two wobbler offenses to be felonies or misdemeanors. We will remand the matter to the juvenile court to allow it to exercise its discretion and to modify the maximum period of confinement should it declare either or both of the wobblers to be misdemeanors. We reject the remainder of Omars arguments and otherwise affirm the orders of the juvenile court.
FACTUAL AND PROCEDURAL SUMMARY
Two petitions were filed against Omar. We will discuss in detail the significant facts in the Discussion portion of this opinion. As a result of a plea agreement, Omar admitted (1) a misdemeanor violation of Penal Code section 12020, subdivision (a)(1) (possession of a deadly weapon); (2) a misdemeanor violation of section 415 (disturbing the peace); and (3) a felony violation of section 415 (disturbing the peace). Omar also pled no contest to the allegation that the second count of disturbing the peace was committed for the benefit of a criminal street gang with the specific intent to promote the gang. (§ 186.22, subd. (d).) Omar was placed on probation with a maximum period of confinement set at three years five months.
All further statutory references are to the Penal Code unless otherwise noted.
After a contested jurisdiction hearing on the second petition, the juvenile court found true the allegations that Omar violated (1) section 12101, subdivision (a)(1) (possession of a firearm by a minor); (2) section 12101, subdivision (b)(1) (possession of ammunition by a minor); and (3) section 496, subdivision (a) (receiving stolen property). In addition, the juvenile court also found that each crime was committed for the benefit of a criminal street gang with the specific intent to promote the gang. (§ 186.22, subds. (b)(1)(B) & (d).) Omar was committed to the probation youth facility for a period of 365 days. The maximum period of confinement was determined to be nine years nine months.
A violation of probation petition also was filed against Omar for a variety reasons. The juvenile court found the allegation that Omar violated his probation true because he failed to attend school on a regular basis. The disposition for this count is not relevant to the issues on appeal.
DISCUSSION
I. The Wobblers
A wobbler is a criminal offense that may be punished as either a misdemeanor or a felony, in the discretion of the trial court. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 902.) The second petition alleged Omar committed felony violations of sections 12101, subdivision (a)(1), and 496. A violation of section 12101, subdivision (a)(1) is punishable by imprisonment either in county jail or state prison (§ 12101, subd. (c)(1)(C); In re Jose T. (1997) 58 Cal.App.4th 1218, 1221), the classic description of a wobbler. (People v. Bury (1996) 50 Cal.App.4th 1873, 1875-1876.) Similarly, a violation of section 496 may be punished by imprisonment either in the state prison or county jail, with one exception not relevant to this case.
The petition alleged that Omar committed a misdemeanor violation of section 12101, subdivision (b)(1), but requested the matter be treated as a felony pursuant to section 186.22, subdivision (d).
If the prosecutor or the grand jury determines the interests of justice require the crime be charged as a misdemeanor, and the value of the stolen property is less than $400, the matter is then considered a misdemeanor.
If the juvenile court finds true the allegation that a minor committed a wobbler offense, then it is required to "declare the offense to be a misdemeanor or felony." (Welf. & Inst. Code, § 702, 2d par.) The juvenile court failed to make an express declaration that these two offenses were either felonies or misdemeanors.
Omar complains of the above omission and also argues the trial court erred because, under the circumstances of this case, the matter must be considered a misdemeanor. We begin by rejecting Omars second argument.
A violation of section 12101, subdivision (a)(1) is always a wobbler. (§ 12101, subd. (c)(1)(C).) Omar contends that such a violation must be a misdemeanor if certain conditions are met. He bases his argument on an erroneous reading of section 12101, subdivision (c). Subdivision (c) describes the punishment for a violation of section 12101. Paragraph (1) of subdivision (c) provides for punishment in the state prison or county jail (a wobbler) if (1) the minor has previously violated section 12101; (2) the minor has previously been convicted or adjudicated of an offense listed in sections 12021.1, subdivision (b), 12020, 12220, 12520, or 12560; or (3) the minor violated section 12101, subdivision (a)(1). If the provisions listed section 12101, subdivision (c)(1) do not apply, the offense will be a misdemeanor. (§ 12101, subd. (c)(2).)
The third provision of section 12101, subdivision (c)(1) establishes that every minor who is found to have possession of a firearm that can be concealed on his or her person will always have committed the wobbler offense; this offense will never be simply a misdemeanor. (In re Jose T., supra, 58 Cal.App.4th at p. 1221.) Therefore, Omars argument that this offense must be a misdemeanor because he did not commit any of the predicate offenses listed in paragraph (1) of section 12101, subdivision (c) has no application to this case.
The People concede the wobbler status of the two crimes and that the juvenile court failed specifically to declare the crimes felonies. They argue, however, that because the juvenile court also found section 186.22, subdivision (b)(1)(B) gang enhancements true on each count, and the gang enhancements can be imposed only on felonies, the juvenile court impliedly determined each crime was a felony.
The parties agree that In re Manzy W. (1997) 14 Cal.4th 1199 is controlling. The Supreme Court held that when the juvenile court fails to comply with the mandatory requirements of Welfare and Institutions Code section 702, remand is necessary unless "the record ... show[s] that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Manzy W., at p. 1209.)
We have reviewed the record and agree with Omar that nothing in the record definitively establishes that the juvenile court knew it had discretion to declare the violations to be misdemeanors or felonies. Nothing in the probation report, minute order, or reporters transcript reveals the juvenile court was aware of its discretion.
We reject the Peoples argument that we can imply from imposition of gang enhancements that the juvenile court found the crimes to be felonies. It seems to us that if imposition of a felony-length maximum period of confinement does not eliminate the need for remand, then imposition of enhancements that can be imposed only on felonies is also an insufficient record. The difficulty in both cases is that we simply cannot tell from the record whether the juvenile court knew it could declare a specific violation to be a misdemeanor and chose not to do so, or it simply did not realize the violation was a wobbler. Although it seems unlikely that the juvenile court will find the offenses to be misdemeanors, we must remand to permit it to make that determination in the first instance and to make any adjustments in the maximum period of confinement if either violation is deemed a misdemeanor.
II. Maximum Period of Confinement
Omar argues the juvenile court erred in declaring the maximum period of confinement to which he was exposed, or, if a declaration was proper, by failing to exercise its discretion to declare a maximum period of confinement less than that required by statute. Omars argument is based on an erroneous reading of the recent amendments to Welfare and Institutions Code section 731, subdivision (b).
Omar cites several cases to support his argument (In re Ali A. (2006) 139 Cal.App.4th 569; In re Sean W. (2005) 127 Cal.App.4th 1177; In re Carlos E. (2005) 127 Cal.App.4th 1529), and points out other cases that he suggests are contrary to his argument but that we should not follow (In re Danny H. (2002) 104 Cal.App.4th 92; In re Joseph G. (1995) 32 Cal.App.4th 1735). Omars arguments and citations evidence a misunderstanding of the law.
Instead of a long explanation, we will simply recite the current state of the law, which is clearly established in the cited cases. When a juvenile is not removed from the custody of his parents, it is unnecessary and superfluous to include in the record a maximum period of confinement. (Welf. & Inst. Code, § 726, subds. (a)-(c); In re Ali A., supra, 139 Cal.App.4th at p. 573; In re Danny H., supra, 104 Cal.App.4th at p. 106; In re Joseph G., supra, 32 Cal.App.4th at p. 1744.) When a minor is removed from the physical custody of his parent or guardian but not placed with the Department of Corrections and Rehabilitation, Juvenile Justice (the Department) (formerly the California Youth Authority) (Gov. Code, §§ 12838, subd. (a) & 12838.3; In re Anthony C. (2006) 138 Cal.App.4th 1493, 1499, fn. 1), the juvenile court must fix the maximum period of confinement as required by law. (Welf. & Inst. Code, § 726, subd. (c); Ali A., at p. 573.) When the juvenile court places a juvenile with the Department, it must fix the maximum period of confinement as required by law and fix the maximum period of the commitment to the Department pursuant to the discretion recently provided to the juvenile courts in Welfare and Institutions Code section 731, subdivision (b). (In re Sean W., supra, 127 Cal.App.4th at pp. 1183-1185; In re Carlos E., supra, 127 Cal.App.4th at pp. 1542-1543.)
Omar was removed from the physical custody of his parents but not placed with the Department. Therefore, the juvenile court was required to, and did, fix the maximum period of confinement pursuant to Welfare and Institutions Code section 726, subdivision (c). Omar does not argue the calculation was erroneous. There was no error.
III. Substantial Evidence
Omar contends there was insufficient evidence to support the juvenile courts findings that the crimes committed by Omar were for the benefit of a criminal street gang and with the specific intent of promoting the gang. Specifically, Omar argues there was no evidence that he possessed the stolen property or the firearm for the benefit of a criminal street gang.
Our review of the sufficiency of the evidence is deferential. We "`review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witnesss credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] `Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. "`If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.] [Citation.] `"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) The same standard applies to juvenile appeals. (In re Michael M. (2001) 86 Cal.App.4th 718, 726.)
Section 186.22, subdivision (b)(1), the statute at issue here, provides that a person convicted of a felony for the benefit of, at the direction of, or in association with any criminal street gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall have his or her sentence enhanced. The length and type of enhancement depends on the crime committed. (§ 186.22, subd. (b)(1)(A)-(C).)
The statute defines a criminal street gang as an ongoing organization or group of three or more persons that has as "one of its primary activities the commission of one or more" crimes from a list of enumerated offenses. The group also must have a common name or identifying sign or symbol, and the members must "individually or collectively engage in ... a pattern of criminal gang activity." (§ 186.22, subd. (f).) A pattern of criminal gang activity is defined as "the commission of ... two or more of the [enumerated] offenses, provided ... the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).)
For the section 186.22, subdivision (b)(1) enhancement to apply, therefore, all of the following must appear in the record:
(1) The defendant was convicted of a felony;
(2) The felony was committed for the benefit of, at the direction of, or in association with a criminal street gang;
(3) The felony was committed with the specific intent to promote, further, or assist in criminal conduct by gang members;
(4) The criminal street gang must have as one of its primary activities the commission of one or more of the enumerated offenses;
(5) The criminal street gang must have a common name, or identifying sign or symbol; and
(6) The criminal street gang must engage in a pattern of criminal activity, which means group members must have committed two or more offenses from those listed in the statute on separate occasions or by two or more persons, and no more than three years elapsed between the two offenses.
The relevant testimony was provided by Visalia Police Officer Mike Verissimo. He testified that he assisted in a probation search of Omars home and that the officers found in Omars bedroom (1) a short rifle (approximately 17 inches); (2) six shotgun shells; and (3) a checkbook belonging to Leashawn Ayala. These items formed the basis of the allegations in the second petition. In addition, the officers also found approximately nine pages of notebook-size paper that contained writings that appeared to be gang related.
Verissimo also testified as an expert on criminal street gangs in the Visalia area. He identified Omar as a member of the North Side Visa (NSV) criminal street gang, a subset of the Nortenos. He stated the primary activities of the NSV criminal street gang are possession of firearms, possession of ammunition, possession of stolen property, vandalism, robberies, shootings, murders, and carjackings.
Verissimo also responded to hypothetical questions posed by the prosecutor. Through these questions, Verissimo testified that concealing contraband, whether it be a firearm, stolen property, or drugs, for another gang member benefits the gang because the contraband is concealed from law enforcement and parents, thus helping other gang members to avoid law enforcement involvement and because the location at which it is concealed may be more secure than other locations. The reputation within the gang of the person holding the contraband also will be enhanced because he or she is demonstrating that he or she is willing to assist the gang. The whole gang benefits because it provides the gang with a network to conceal items it is attempting to hide from the authorities. On cross-examination Verissimo admitted that to his knowledge the practice of passing stolen checks is not a primary activity of the gang, but it could do so to generate money.
Omar argues Verissimos testimony did not adequately establish that one of the principal activities of the NSV or the Nortenos was to commit an enumerated crime. He does not suggest that gang members did not commit crimes, but instead argues there was insufficient evidence that the commission of crimes was one of their principal activities.
The Supreme Court provided us with guidance to resolve this issue in People v. Sengpadychith (2001) 26 Cal.4th 316. The Supreme Court held that evidence of past and current offenses by gang members was relevant to the issue of the principal activities of the gang.
"Would such evidence alone be sufficient to prove the groups primary activities? Not necessarily. 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 groups `chief or `principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. As the Court of Appeal cautioned in People v. Gamez (1991) 235 Cal.App.3d 957, 970-971, disapproved on another point in [People v.] Gardeley [(1996)] 14 Cal.4th 605, 624, footnote 10: `Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22 ... requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s].... Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the [25] enumerated crimes found within the statute.
"Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on `his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)" (People v. Sengpadychith, supra, 26 Cal.4th at pp. 323-324.)
This case is analogous to Gardeley. Verissimo testified as a police gang expert. He had at least one conversation with Omar where Omar admitted he was a member of NSV for at least three years. Verissimo found numerous papers with gang-related writing on them in Omars room. Verissimo had had contact with Nortenos and NSV gang members, arrested such gang members, read reports on such gang members, and interviewed such gang members. He estimated he had spoken with over 400 such gang members. He estimated there were over 600 Norteno gang members and over 200 NSV gang members in Visalia. His opinion on the primary activities of the Norteno and NSV gangs was based on his contacts with gang members, reports he had read, conversations with other officers, and on the training in gangs he had received. Verissimo testified the two predicate crimes introduced by the prosecution were both committed by Norteno gang members.
The basis of Verissimos expert opinion was as solid as the basis of the expert opinion in Gardeley. Therefore, we reach the same conclusion as the Supreme Court in Gardeley and conclude there was sufficient evidence that one of the primary activities of the Norteno and NSV gangs was committing crimes specified in section 186.22.
The cases on which Omar relies do not assist his argument. People v. Perez (2004) 118 Cal.App.4th 151, In re Jose T. (1991) 230 Cal.App.3d 1455, In re Nathaniel C. (1991) 228 Cal.App.3d 990, and In re Leland D. (1990) 223 Cal.App.3d 251 are all distinguishable on their facts. In Perez the People did not present any expert testimony to support the principal activities of the gang requirement, and the only prior bad act testimony related to activity over a short period of time. (Perez, at p. 160.) The issue in Jose T. was whether two crimes committed on the same day, but arguably during the same course of conduct, satisfied the two separate offenses requirement of section 186.22. (Jose T., at pp. 1462-1463.) The issue in Nathaniel C. was a complete lack of evidence to support one of the two predicate offenses relied on by the prosecution to establish the two separate offenses requirement. (Nathaniel C., at pp. 1003-1004.) Similarly, Leland D. involved the failure of the prosecution to present evidence that two predicate offenses were committed to establish the two separate offenses requirement. Here, the prosecution adequately established these elements.
Next Omar argues that Verissimos testimony was insufficient to establish the crimes were committed for the benefit of, at the direction of, or in association with the Nortenos or the NSV criminal street gang. This argument is not persuasive. It is logical to conclude that when an admitted gang member conceals stolen property and a gun received from unidentified friends, he does so to benefit the gang, or in association with other members of the gang. Verissimo testified to these facts. He gave his opinion that the items were concealed for the benefit of the gang and adequately explained the basis for his opinion. His entire testimony, not just the portions of his testimony Omar finds significant, was reasonable, credible, and of solid value, thus providing substantial evidence of this element of the enhancement.
Omars final contention is that the juvenile court found true an erroneous enhancement on the receiving stolen property count. (§ 496.) The issue is the difference between section 186.22, subdivision (b)(1)(A) and (B). Subdivision (b)(1)(A) applies when a defendant is convicted of any felony and requires a sentence enhancement of either two, three, or four years. Subdivision (b)(1)(B) applies when the defendant is convicted of a serious felony as defined by section 1192.7, subdivision (c) and requires a sentence enhancement of five years.
As Omar points out, and the People concede, section 496 is not a serious felony as defined in section 1192.7, subdivision (c). Therefore, Omar should have been charged with a section 186.22, subdivision (b)(1)(A) enhancement. The confusion arises because the petition and the probation report both refer to subdivision (b)(1)(B) of section 186.22. The minute order from the adjudication hearing simply states that the subdivision (b)(1) allegation was found true. The reporters transcript reflects that the juvenile court merely found the special allegations true. While the probation report listed the enhancement in the section 496 count as a violation of subdivision (b)(1)(B) of section 186.22, it listed the sentencing triad of two, three, or four years, the enhancement provided by subdivision (b)(1)(A) of section 186.22. The maximum period of confinement imposed by the juvenile court thus is correct, as Omar concedes.
We agree with the Peoples suggested resolution of this issue. Assuming there was an error, since a violation of section 186.22, subdivision (b)(1)(A) is a lesser included offense to subdivision (b)(1)(B), we order the subdivision (b)(1)(B) enhancement stricken and order the subdivision (b)(1)(A) enhancement imposed. "Where a reviewing court finds insufficient evidence that a defendant committed the crime of which he was convicted but finds overwhelming evidence that he committed a lesser included offense, the court is empowered to reduce the conviction to the lesser offense. [Citations.] Although the weapon enhancement provisions here are not strictly `crimes or `offenses, we see no reason why the same rationale should not apply to them." (People v. Allen (1985) 165 Cal.App.3d 616, 627, overruled on other grounds in People v. Berry (1993) 17 Cal.App.4th 332, 338-339.) Nor do we see any reason the same rational should not apply to gang enhancements. Since the maximum period of confinement already correctly reflects the section 186.22, subdivision (b)(1)(A) enhancement, the minute order at the hearing required by our resolution of the wobbler issue should reflect imposition of the correct enhancement, if one or both of the crimes are found to be felonies.
DISPOSITION
The matter is remanded to permit the juvenile court to exercise its discretion and determine whether counts 1 and 3 are misdemeanors or felonies. The juvenile court is also directed to impose enhancements pursuant to section 186.22, subdivision (b)(1)(A) on the counts it determines to be felonies, if any. The disposition order is affirmed in all other respects.
We Concur:
WISEMAN, Acting P.J.
HILL, J.