Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07JQ0135, George L. Orndoff, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.
INTRODUCTION
On October 5, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Rafael C., feloniously brought a folding knife onto a school campus (Pen. Code, § 626.10, subd. (a), count one) and that the appellant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The petition further alleged appellant brought a knife onto school grounds for the benefit of a criminal street gang (§ 186.22, subd. (d), count two). After a contested jurisdictional hearing on November 2, 2007, the juvenile court found the allegations to be true.
Unless otherwise indicated, all statutory references are to the Penal Code.
On August 24, 2007, appellant admitted a misdemeanor violation of section 626.10, subdivision (a).
Hereinafter we will refer to this Penal Code section as section 186.22(d).
At the disposition hearing on November 19, 2007, appellant was continued as a ward of the court and placed in the Kings County Boot Camp Alpha program. The court found both counts to be felonies. The court found that appellant’s maximum term of confinement on count one, including the gang enhancement, was seven years. The court found appellant’s maximum term of confinement on count two was three years but it stayed any potential future punishment on count two because such punishment was based on the same facts as count one.
On appeal, appellant contends there was insufficient evidence that he possessed a knife at school with the specific intent to promote a criminal street gang. Appellant contends, and respondent concedes, that the juvenile court erred in staying count two rather than ordering it stricken. Appellant argues the court erred in failing to give a detailed recitation of all the fines and fees imposed. Respondent replies that any error concerning the imposition of fines and fees was harmless.
FACTS
On October 2, 2007, Moses Hernandez, an officer with the Kings County Probation Department, received a phone call from a parent reporting that a student at Avenal Community Day School had been possibly cut with a knife the previous day and that something might happen the next day. Hernandez went to the school the next day to conduct probation searches.
Hernandez searched appellant, patting him down and checking his pockets. As appellant took off a shoe, Hernandez retrieved a folded knife that fell to the floor. Hernandez noticed a “gang scratching” on the knife. Deputy Jerry Blackburn of the Kings County Sheriff’s Department was given the knife retrieved by Hernandez and arrested appellant.
Deputy Charles Buhl testified as an expert on criminal street gangs. Buhl was familiar with the Norteno street gang and one of its subsets, the Avenal Varrio Lomas gang, or AVL. Buhl had spoken with members of the AVL and had over 100 contacts with them. Buhl explained that in Kings County, there were about 200 members in AVL. They used the color red, the number 14, the initials AVL, and the Huelga or Farmero Bird, four dots, the number 4 and Roman numeral XIV for the number 14.
The primary activities of the AVL are committing homicides, attempted homicide, felony assaults, and selling narcotics. Buhl was familiar with Arturo Torres and Jose Vaca Soria as members of the AVL. Convictions for both of these individuals were admitted into evidence as abstracts of judgment. Buhl explained that gang members gain greater respect by using fear and intimidation as weapons. Gang members primarily carry knives for protection against rival gang members. Often, gang members mark their weapons. Marked weapons can be status symbols. Buhl had seen a knife marked with Brown Pride, a Huelga bird, and X-4.
Buhl was shown a photograph of the knife found on appellant. It had the Roman numeral XIV engraved onto the body of the knife. Because the knife had the number 14 etched on it, Buhl was of the opinion that the knife was gang-related. A school resource officer, Deputy Parker, reported that appellant was orchestrating other kids having knives available for an upcoming gang fight.
Parker wrote in a report that appellant said he was a Norteno associate. Parker wrote that appellant said he had the knife for protection against Scraps, a term used by Nortenos to identify members of the Sureno gang. Parker contacted three other students who were passing a knife around and he located several other knives scattered and hidden around the campus.
Buhl said that appellant was not yet a full member of the gang, but an associate. Buhl was asked hypothetically if he found a knife on a student with the number XIV marked on it, who in the past identified himself with the Norteno gang, would he opine that the student carried the knife for the benefit of the gang? Buhl replied affirmatively to the question and explained that he believed that such a student was acting at the direction of, in association with, or for the benefit of a criminal street gang by having in his possession a knife engraved with “XIV.”
Buhl stated that the Nortenos would benefit by having more people on the school campus than the Surenos. The Nortenos were benefited by having members on campus armed with weapons because it would give them greater power over the Surenos. When rival gang members confront each other, they respond with equal or greater force. Although the rival gangs do not claim the school as their own territory, they do try to assert areas of control on the school campus by marking them with their symbols. Buhl explained that there is a constant struggle between the two gangs at school that leads to fighting breaking out across the street from the school.
EVIDENCE OF INTENT TO PROMOTE CRIMINAL STREET GANG
Appellant contends there was insufficient evidence that he had the specific intent to act on behalf of the AVL 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.). As we explain, Frank S. is factually distinguishable. The record contains foundational evidence supporting the gang expert’s opinions and she did not stray beyond the bounds of permissible expert testimony.
In Frank S., we reversed the gang enhancement and published the case “to emphasize that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (Frank S., supra, 141 Cal.App.4th at p. 1195.) We concluded that the gang expert was improperly allowed to offer an opinion concerning the minor’s specific intent in possessing the knife and found that the record lacked substantial evidence supporting the specific intent element. We explained:
“In the present case, the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact.… [U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang ....’ (§ 186.22, subd. (b)(1).) The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Frank S., supra, 141 Cal.App.4th at p. 1199.)
This case is distinguishable from Frank S. in two important respects. First,counsel and the court were aware of the limits on expert testimony to prove a gang enhancement and Buhl, the gang expert, did not offer an impermissible opinion concerning an issue reserved for the trier of fact. Buhl was asked a hypothetical question concerning the marking on the knife and its use at a community day school. Buhl stated that in his opinion, possession of the weapon would benefit the gang. Buhl did not proffer an opinion encompassing the ultimate facts at issue. An expert is not precluded from offering an opinion that is premised on a hypothetical about the way certain conduct could benefit a gang. Such an opinion was not tantamount to an opinion of guilt or that the allegation was true because there were other elements to the allegation that had to be proved. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-509.)
Appellant also relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) to support his claim that a gang expert’s testimony may not include an opinion on the presence or absence of specific intent. In People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez), which was decided after Killebrew and Frank S., the California Supreme Court stated: “… we read Killebrew as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.] ... ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.”’ [Citations.]” (Gonzalez, supra, 38 Cal.4th at p. 946, fn. omitted.) The court explained: “[T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.… [U]se of hypothetical questions is proper.” (Id. at p. 946, fn. 3.)
Second, there is substantial evidence in the record before us from which a trier of fact reasonably could infer that appellant possessed the firearm with the requisite specific intent. The school resource officer, Deputy Parker, prepared a report that Buhl relied on which stated that appellant was organizing other kids having knives available for an upcoming gang fight. Parker wrote in a report that appellant said he was a Norteno associate. Parker wrote that appellant said he had the knife for protection against Scraps, a term used by Nortenos to identify members of the Sureno gang. Parker contacted three other students who were passing a knife around and he located several other knives scattered and hidden around the campus.
Furthermore, Buhl explained the Nortenos would benefit by having more people on the school campus than the Surenos. The Nortenos were benefited by having members on campus armed with weapons because it would give them greater power over the Surenos. When a rival gang members confront each other, they respond with equal or greater force. Buhl explained that there is a constant struggle between the two gangs at school that led to fighting breaking out across the street from the school. This evidence went far beyond the evidence presented in Frank S. and demonstrated appellant’s specific intent to advance the purposes of the Nortenos gang.
Appellant argues in his opening and reply briefs that statements he made to the probation officer indicate he possessed the knife for personal reasons, not gang-related reasons. This information was not presented to the juvenile court during the jurisdiction hearing. Even had this information been before the juvenile court, it does not refute the evidence that appellant was organizing members of the gang to possess and hide knives at the school and that the knife he possessed had a gang moniker. This constituted substantial evidence from which the court could reasonably infer appellant’s specific intent to advance the purposes of the gang.
STRIKING SECTION 186.22(d) ALLEGATION
Appellant contends, and respondent concedes, that the juvenile court erred in staying the section 186.22(d) allegation rather than striking it.
In People v. Arroyas (2002) 96 Cal.App.4th 1439, 1440-1442 (Arroyas), a trial court denied a demurrer by a defendant challenging allegations that he committed misdemeanor vandalism which was increased to a felony pursuant to section 186.22(d) and then made subject to a gang enhancement pursuant to section 186.22, subdivision (b)(1). Arroyas held that section 186.22(d) provides an option to punish a misdemeanor more severely, however, this subdivision does not allow the prosecutor to bootstrap misdemeanors into section 186.22, subdivision (b)(1) felonies as a means of applying a double dose of harsher punishment. (Arroyas, supra, 96 Cal.App.4th at pp. 1445, 1448-1449.) Arroyas was cited with approval by our Supreme Court. (People v. Briceno (2004) 34 Cal.4th 451, 465 (Briceno).) The California Supreme Court has further found that section 186.22(d) is not a sentencing enhancement but an alternative sentencing scheme. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-900.)
In Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 827-829 (Lopez), the defendant was charged with contempt for violating the terms of an injunction issued to abate a public nuisance. The same conduct was used as the basis for an allegation pursuant to section 186.22(d). Following Briceno and Arroyas, the court in Lopez found that the gang-related conduct was being used both to constitute the violation of the injunction (leading to the contempt allegations) and to elevate the misdemeanor to a felony under section 186.22(d). (Lopez, supra, 160 Cal.App.4th at p. 831.) Lopez found that this was an improper dual use of the same facts to obtain an additional form of punishment. (Id. at pp. 831-832.)
Here, the imposition of a gang enhancement to count one as well as the imposition and then stay of the alternative sentencing scheme of section 186.22(d) was based on the same conduct by appellant. This is the same type of sentencing bootstrapping found to be improper in Arroyas. We find that there was sufficient evidence to support the juvenile court’s findings that appellant illegally and feloniously brought a knife to school in violation of section 626.10, subdivision (a) and that he committed this offense with the separate and specific intent to promote the purposes of a criminal street gang which subjected him to an additional penalty pursuant to section 186.22, subdivision (a)(1)(A). The juvenile court, however, could not further punish appellant pursuant to section 186.22(d) for the identical conduct. Accordingly, on remand, we will order the juvenile court to strike count two, the section 186.22(d) allegation.
The parties agree that this issue is not subject to forfeiture by defense counsel’s failure to object. As respondent points out, the claim is preserved on appeal because the juvenile court’s sentence constitutes an unauthorized disposition capable of correction absent objection. (See People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
DETAILED RECITATION OF FINES, FEES, AND PENALTIES
Appellant finally challenges the juvenile court’s imposition of a fine of $100 and a state restitution fine of $100. Appellant acknowledges that the state restitution fine was imposed pursuant to Welfare and Institutions Code section 730.6 but that the other fine was not justified by a particular statute. Relying on People v. High (2004) 119 Cal.App.4th 1192, 1200-1201, appellant challenges the second fine as not satisfying the specificity required for the imposition of fines.
We agree with the position of respondent that the purpose of the second $100 fine is set forth in the probation officer’s recommendation that appellant pay this fine to the probation department. Reading the record as a whole, we find that the purpose of the second $100 fine is set forth in the record and the juvenile court’s failure to state a reason for this particular fine, if it was error at all, is harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The case is remanded to the juvenile court with directions that it strike count two. In all other respects, the judgment is affirmed.