Opinion
A127655
08-30-2011
In re L.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. 34785J)
In a Welfare and Institutions Code section 602 proceeding, the juvenile court sustained allegations that appellant fought or issued a challenge to fight in public (Pen. Code, § 415), for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (d)). Appellant contends the court's evidentiary rulings were erroneous, the prosecutor committed misconduct in releasing a potential witness, the court should have dismissed the petition or excluded evidence due to prosecutorial discovery violations, and the jurisdictional order was not supported by substantial evidence. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
A juvenile wardship petition under Welfare and Institutions Code section 602 charged appellant with fighting in public, challenging another to fight in public, maliciously disturbing another by loud and unreasonable noise, and using offensive words inherently likely to produce an immediate violent reaction. (Pen. Code, § 415.) The petition further alleged that appellant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang. (Pen. Code, § 186.22, subd. (d).). The underlying incident pertained to a fight on November 12, 2009, between purported members of the Norteño and Sureño criminal street gangs on Apple Valley Lane in Santa Rosa.
A. Jurisdictional Hearing
The juvenile court issued rulings on defense counsel's numerous in limine motions, including those seeking dismissal of the petition or preclusion of evidence on the ground that the prosecution had not provided timely discovery. At least some of these rulings are the subject of appellant's claims of error, as we discuss at greater length post. The evidence admitted at the contested jurisdictional hearing included the following.
1. Witness [Redacted]
Although respondent refers to this witness as Jose, appellant refers to him as [Redacted], and the witness stated at the hearing that he preferred to go by [Redacted]. We therefore refer to him as [Redacted]. [Redacted] was 12 years old at the time of the hearing.
On the morning of November 12, 2009, [Redacted] was approached by a "kid" who said he was going to "take over Apple Valley with some of his friends." [Redacted] did not know whether the youth was a member of the Norteño street gang, but [Redacted] had participated in Sureño gang activity and knew that Norteños were enemies of the Sureños.
While walking home to his Apple Valley neighborhood after school, [Redacted] and his friend Gabriel saw a large group of youths from another neighborhood, including the youth who said he was going to "take over Apple Valley." When [Redacted] and Gabriel arrived in Apple Valley, they met up with friends Jovanni and Brian. Two or three girls, including appellant, were also there.
Between 11 and 15 youths, including the one who had threatened to "take over Apple Valley," then appeared at the entrance to Apple Valley Lane, a dead-end street. They were wearing red and white clothing, and [Redacted] knew them to be Norteños. Concerned that the Norteños had weapons and would hurt or kill someone in his neighborhood, [Redacted] retrieved a weapon. So did one of his friends.
The Norteños ran into Apple Valley Lane. Many of them were carrying weapons, such as a hammer or a crowbar. The Norteños yelled "gang stuff," like "14" and "Norte" and "fuck up Apple Valley," and were making "VSRN" gang signs. [Redacted] and his friends yelled gang slogans in response, such as "Sur" and "one three." The girls were "saying gang stuff too."
Appellant was standing about six feet behind [Redacted] when the Norteños entered the neighborhood. [Redacted] heard a voice to the side of him, shouting something to the effect of "they're not going to take over our hood" or "they're not going to take it [Apple Valley] over." When interviewed by the police after the incident, [Redacted] said it was a girl's voice. At the hearing, [Redacted] first testified it was a girl's voice, but later claimed it was a boy's voice.
[Redacted] testified as follows. "[PROSECUTOR]: Q. . . . Did you hear [appellant] yell anything at that time? [¶] A. I don't know if it was her or the other girls. [¶] Q. Okay. What did you hear at that time? [¶] A. Something about Apple Valley. [¶] Q. What about Apple Valley? [¶] A. That they weren't going to take it over. [¶] Q. Where did the voice come from? [¶] A. Like on the side of me. [¶] Q. Was it a boy's voice or a girl's voice? [¶] A. I think it was a girl's. I don't know. [¶] Q. You don't know if it was a boy or a girl? [¶] A. I'm probably like - I think it was a girl, yeah. [¶] Q. Could it have been a boy? [¶] A. I think it was a boy, yeah. It was a boy, yeah. [¶] Q. You think it was a boy? [¶] A. Yeah, it was. [¶] Q. Where were the other two girls at that time? [¶] A. I don't know. I wasn't with them. [¶] Q. So [appellant] was the only girl that was close to you, is that right? [¶] A. Yeah, kind of, yeah. [¶] Q. And she was just behind you? [¶] A. Yeah. [¶] Q. Where was Brian at that time? [¶] A. I don't know. I was only with one of - my friend Gabriel. That's the only person I was with. [¶] Q. Where was Gabriel at that time? [¶] A. Right next to me. [¶] Q. So let's do this again. If I'm you, and Detective Isachsen is Gabriel, was he in front of you? [¶] A. Like three feet in front of me. . . . Q. Okay. Where was [Jovanni] at that time? [¶] A. I don't know."
The day after the incident, [Redacted] told the police that there were a couple of girls at the scene. When the police showed him photographs, he picked out appellant. At the hearing, he identified appellant as one of the girls who was there.
2. Witness Shaffer
Shawna Shaffer, the resident manager of Apple Valley Apartments, witnessed the "big, huge gang fight [they] had on the property" on November 12, 2009.
Specifically, Shaffer observed a group of Norteños enter the neighborhood and run down Apple Valley Lane, armed with weapons such as hammers and wrenches and wearing red. It looked like they meant to cause harm and were capable of doing so. Shaffer heard them "yelling stuff" like "we're going to kick your ass, Brian . . . you punk." Shaffer also saw "a couple of . . . young male boys that live in the neighborhood" who are "known as Sureños." One of the boys was Brian, who was "yelling and talking all kinds of stuff" and "[k]ind of provoking the whole incident." When the Norteños came running, Brian ran and hid.
Shaffer called the police. When she returned outside, she saw a bleeding youth who had apparently been stabbed.
At the time of the hearing, Shaffer had known appellant for about two years from the Apple Valley neighborhood and was familiar with her. Shaffer did not see appellant on the day of the gang fight, but she heard afterwards from "a couple people" that appellant was present during the incident.
3. Appellant's Friend Daniella and Probation Officer Lewis
Daniella, a friend of appellant's, testified that she was at the fight in Apple Valley with friends including Brian and Jovanni, but appellant was not there. She told the police that appellant was in a different county at the time. At the hearing, she testified that appellant was not in the area at all that day.
Probation officer Rebecca Lewis, however, testified that Daniella had placed appellant at the scene in an interview conducted after Daniella admitted the allegations of a petition filed against her regarding the incident. Daniella said she and appellant cut school on the day of the incident and went to a party on Apple Valley Lane, where they consumed alcohol. At the hearing, Daniella denied making the statement.
4. Detective Isachsen
Detective Tommy Isachsen, a veteran Santa Rosa police officer and member of the Santa Rosa Police Department Gang Crimes Team, was stipulated to be an expert on criminal street gangs. In addition to his training, Isachsen had interviewed Sureño gang members more than a hundred times. He described the history, territories, signs, insignia, tattoos, clothing, colors, membership requirements, rivalries, and activities of the Sureño and Norteño gangs, including their subsets and affiliates in Sonoma County.
a. Sureños as a criminal street gang
Detective Isachsen testified that the Sureño gang constituted a criminal street gang, and had been found to be a criminal street gang hundreds of times in court within the previous three years.
Based on his training, conversations with other experts, interviews of gang members, reports he read, and field investigation cards he reviewed, Detective Isachsen opined without objection that the Sureño's primary activities "range from assault with deadly weapons, which is typically their most common, ranging all the way from homicides to drug sales to possession of . . . weapons."
Detective Isachsen also testified about three "predicate offenses" of the Sureño criminal street gang, within the meaning of Penal Code section 186.22, each of which he personally helped to investigate. On October 17, 2008 (Santa Rosa police case number 08-15594), eight Sureños followed a Norteño, forced their way into his apartment, and assaulted and stabbed him several times before he jumped off his second-floor balcony to escape. Three of the Sureños pleaded guilty to assault with a deadly weapon and admitted a gang enhancement (Pen. Code, § 186.22, subd. (b)); the other five pleaded to lesser charges with gang enhancements. On March 2, 2007 (Santa Rosa police case number 07-3789), five Sureños assaulted a Norteño with a bat. The Sureños pleaded guilty to assault with a deadly weapon and admitted a gang enhancement. On April 8, 2007 (Santa Rosa police case number 07-6082), appellant and other Sureños stabbed and beat two Norteños. One of the participants accompanying appellant admitted membership in the Sureño gang. One of the participants pleaded guilty to assault with a deadly weapon and admitted a gang enhancement. The prosecutor in the instant case admitted into evidence certified copies of the dockets for each of these predicate offenses.
The defense was provided with a police report summary, which "essentially encapsulates exactly what Detective Isachsen just testified to" concerning case number 08-15594 and the other predicate offenses.
b. Appellant's involvement in the Sureños
Detective Isachsen knew appellant by name and was aware of her involvement with the Sureño criminal street gang. She associated with Sureño members, notably her brother, who "represents" the PSC subset of the Sureños and goes by the moniker "Gerber." Appellant has a tattoo of three dots on her hand, which signifies membership in or identification with the Sureño gang.
During the previous three years, appellant was contacted by police on at least five documented occasions when she was in the company of Sureños. Isachsen described three of these contacts in greater detail: on January 14, 2008, appellant was arrested for her involvement in a gang-related stabbing of a rival Norteño, after she confronted the victim in Apple Valley, which she claimed for the Sureños; on April 8, 2007, appellant was with three other Sureños who initiated a fight with two Norteños who had passed through a Sureño neighborhood, throwing bottles at, beating, and stabbing the Norteños; on January 16, 2007, after a report from Shawna Shaffer, appellant and two other Sureño gang members were found trespassing in one of the Apple Valley apartments. In addition, individuals at the scene when appellant committed the current offense were members of the Sureño criminal street gang.
During cross-examination, Detective Isachsen observed that the police officer who wrote the report summarizing the April 8, 2007, incident stated that appellant "admit[ted] Sureño gang participation."
After cross-examination of Isachsen and before commencement of redirect, the juvenile court took judicial notice of part of appellant's court file pertaining to one of her past wardship proceedings. The documents showed that appellant admitted a violation of Penal Code section 415, subdivision (1) and a violation of Penal Code section 186.22, subdivision (a) [active participation in a criminal street gang], and was subsequently retained a ward of the court with "gang conditions."
c. Appellant's involvement in the incident
Detective Isachsen was the lead investigator in the instant case pertaining to the November 2009 incident on Apple Valley Lane. In an interview of appellant's friend Daniella, Isachsen asked if Daniella had been with appellant (and "Karina") on Apple Valley Lane on November 12, 2009. Daniella replied that she and appellant "were not 'together together,' but they were there." (Italics added.) Daniella also said she did not see appellant or Karina because they were in the back apartment complex. At that location, the detective explained, appellant would have been at the fight.
Detective Isachsen also interviewed appellant about the incident, after advising her of her Miranda rights. When he began to ask her about a stabbing incident - without telling her the date or anything else about it - appellant immediately "tried to disassociate herself from" the incident and said she was not there and was at another location at least five miles away. Appellant was asked for, but could not provide, the names of anyone who could corroborate her story. Isachsen concluded from her response that she knew about the incident.
Miranda v. Arizona (1966) 384 U.S. 436.
d. Benefit to the Sureño criminal street gang
As an expert in criminal street gangs, Isachsen opined that yelling to the effect of "you're not going to take over the hood," as [Redacted] had testified at the hearing, would benefit the Sureño gang "without a doubt," because it "clearly sends the message that this is a Sureño neighborhood." Isachsen explained: "It's very common that you have yelling back and forth of various gang epithets as a form of challenging one another, and a sign of respect versus disrespect." Based on the investigation of the incident, "it was very clear that there were two distinct sides[,] . . . one being Sureños and one being Norteños, working in association with and for the benefit of each of their gangs, and for the furtherance of [them]."
Detective Isachsen confirmed his testimony on cross-examination. Defense counsel posed a hypothetical in which a female Sureño yelled "they're not going to take over our neighborhood" and asked Isachsen why the statement would benefit the gang. Isachsen responded that his opinion was based on the fact that "Apple Valley is well known within Sonoma County as being a heavily dominated neighborhood by Sureños," as well as the "totality of everyone she's with, what is said, the actions that take place, how many people are involved."
Defense counsel also posed a hypothetical in which three Sureños confronted 15 armed Norteños approaching from about 20 feet away, and one of the Sureños was "just standing there watching." Detective Isachsen opined that the Sureño just watching was nevertheless benefitting the gang by virtue of enhancing the "strength in numbers" of the gang. Isachsen noted on redirect examination that "this incident was based not only on strength in numbers but also [on] the fact that people got weapons and that was kind of why there was a lopsided amount of numbers."
5. Jurisdictional Order
The juvenile court found true the allegations of fighting in public and committing the offense for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (d).
B. Dispositional Hearing
On February 11, 2010, the juvenile court continued appellant's wardship, ordered out-of-home placement, and ordered appellant, among other things, to register with law enforcement authorities as a gang member.
This appeal followed.
II. DISCUSSION
Appellant contends: (1) the court erred in taking judicial notice of her previously sustained offenses and gang allegations; (2) the court erred in sustaining an objection to defense counsel's question seeking the basis for Detective Isachsen's opinion that predicate offenses were committed by Sureños; (3) the prosecutor committed misconduct in releasing a potential prosecution and defense witness; (4) the court improperly denied defense motions and overruled defense objections alleging discovery violations; (5) the gang enhancement finding under Penal Code section 186.22, subdivision (d) is not supported by substantial evidence; and (6) the public fighting allegation under Penal Code section 415 is not supported by substantial evidence.
We address each of these contentions, but in a different order.
Except where otherwise indicated, all statutory references hereafter are to the Penal Code.
A. Substantial Evidence To Support Public Fighting
Section 415 makes it a misdemeanor to (1) unlawfully fight, or challenge another person to fight, in a public place; (2) maliciously and willfully disturb another person by loud and unreasonable noise; or (3) use "offensive words in a public place which are inherently likely to provoke an immediate violent reaction."
In the matter before us, the prosecutor sought to establish that it was appellant who yelled something like "they're not going to take over our hood" and that this act was prohibited by section 415. We review for substantial evidence, presuming the truth of every fact supporting the judgment that the trier of fact could have reasonably deduced from the evidence, and without reweighing the evidence or evaluating a witness's credibility. (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
Substantial evidence supported the conclusion that appellant was the one who yelled "they're not going to take over our hood." According to Probation Officer Lewis, Daniella said that appellant was on Apple Valley Lane that day. According to Detective Isachsen, Daniella said appellant was in the back apartment complex, which, the detective explained, located her at the fight. [Redacted] testified that appellant was indeed at the scene, just about six feet behind him as the Norteños entered the neighborhood, and he had told the police she was there as well. [Redacted] also testified that he heard a female voice to the side of him yell something like "they're not going to take over our hood," and appellant was the only female near him. Although he later stated it was a male voice, there was no evidence that any male was in the area from which the yell came: Gabriel was three feet in front of [Redacted], and [Redacted] did not know where Jovanni or Brian were. Furthermore, it is logical to assume that [Redacted] would have recognized the voice if it had been one of his friends Jovanni, Brian, or Gabriel, but was unable to recognize it because he had met appellant just that day. A reasonable inference from the evidence was that appellant, perhaps stepping forward as the Norteños approached, yelled the epithet.
Substantial evidence also supported the conclusion that appellant's words constituted a challenge to fight within the meaning of section 415, subdivision (1). Although appellant did not directly challenge the Norteños to a fight, she implicitly did so by proclaiming their inability to overrun Sureño turf. Alternatively, the statement might be viewed as a challenge to her own gang to fight the Norteños, in the sense of a rallying call of encouragement to the outnumbered Sureños.
For the same reason, appellant's words could also be reasonably construed by the trier of fact to constitute "offensive words in a public place which are inherently likely to provoke an immediate violent reaction" under section 415, subdivision (3). "[T]hey're not going to take over our hood" - in the context of this case - would be offensive to the opposing gang in its defiance and disrespect. As Detective Isachsen explained, the yelling of epithets to another gang not only constitutes a challenge, but is a show of disrespect as well. In light of the relationship between the Sureños and their Norteño rivals, and the circumstances in which appellant shouted her provocative taunt, there was substantial evidence that appellant created a clear and present danger that violence would immediately erupt. (See In re John V. (1985) 167 Cal.App.3d 761, 770 [in light of the parties' relationship, calling neighbor a vulgar name created a clear and present danger of violence]; In re Alejandro G. (1995) 37 Cal.App.4th 44, 48 [obscenities and challenge to police officer to fight constituted violation of § 415, subd. (3)].)
Substantial evidence supported the finding that appellant violated section 415.
B. Substantial Evidence Supporting the Gang-Benefit Allegation
Section 186.22, subdivision (d) states: "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," with a minimum sentence of 180 days.
Section 186.22, subdivision (d) is in material respects identical to subdivision (b) of the statute: subdivision (b) pertains to defendants convicted of a felony, while subdivision (d) pertains to defendants convicted of a misdemeanor or a felony; the punishments prescribed by the subdivisions are accordingly different. As the parties do, we rely on cases decided under subdivision (b) in our analysis of subdivision (d).
For section 186.22, subdivision (d) to apply to appellant, the prosecution had to prove that appellant committed the offense of public fighting (1) for the benefit of, at the direction of, or in association with, a gang; (2) the gang was a criminal street gang, and (3) she acted with the specific intent to promote, further, or assist in any criminal conduct by gang members. Appellant challenges the sufficiency of the evidence as to each of these elements.
1. "For the Benefit Of" or "In Association With"
Ample evidence supported the conclusion that appellant committed the section 415 offense for the benefit of, or in association with, the Sureño gang.
Based on police reports and his personal knowledge in investigating Sureño crimes, Detective Isachsen testified that he knew appellant by name and knew of her association with Sureño gang members, including her own brother. She had three dots tattooed on one of her hands, signifying she was an active participant in or member of the Sureño gang. During the past three years, she was contacted by police on at least five documented cases in the company of Sureños, two of which involved criminal assaults against Norteños. Further, certified court records indicated that in February 2008 appellant admitted a violation of section 415 and section 186.22, subdivision (a), for being an active participant in a criminal street gang.
In addition to these past gang activities and personal affiliations, evidence concerning the instant offense confirms that she committed it to benefit the Sureños, or in association with them. (See People v. Martinez (2004) 116 Cal.App.4th 753, 762 [requiring evidence of circumstances of the crime itself].) She committed the offense in the accompaniment of other known Sureños, who were yelling out Sureño gang slogans, in the Apple Valley neighborhood known to be Sureño territory, as the rival Norteños commenced their invasion. The nature of her yell suggests she was calling fellow Sureños to defend their turf, benefitting the gang by her encouragement and exhortation. Indeed, Detective Isachsen testified that, in his expert opinion, a yell of the kind uttered by appellant would create a benefit to the gang "without a doubt," because it "clearly sends the message that this is a Sureño neighborhood." Due to the gang concept of "strength in numbers," he added, a member of a gang in close proximity to an altercation would "[a]bsolutely" be "aiding or assisting the gang." From this evidence, the trier of fact could reasonably conclude that appellant committed her crime for the benefit of the Sureño gang, and in association with it.
Appellant's arguments to the contrary are meritless. She first contends that, in testifying about her prior contacts with the Sureños, Detective Isachsen had no personal knowledge and relied on reports, including a "gang report" by another officer. She argues that hearsay evidence may be relied upon by an expert in providing his opinion, but it cannot be used to prove the truth of the matter asserted.
Appellant's argument is unavailing. First, contrary to appellant's assertion, Detective Isachsen did have personal knowledge of her prior contacts with the Sureños; for example, he had personal knowledge of the April 8, 2007 incident because it was one of the predicate crimes he investigated. Second, in rendering his opinion, he did not rely solely on inadmissible hearsay, but on matters within his own personal knowledge as well. Third, appellant did not make a contemporaneous objection to Detective Isachsen's testimony on the ground that hearsay evidence was being elicited to prove the truth of the statements rather than to support the detective's opinion. It is too late for her to make that assertion now. Fourth, even if she could, the prosecution did not elicit testimony of the hearsay police reports in order to prove the facts asserted in those reports; they were, instead, properly offered as the basis for Isachsen's expert opinions. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618-619 (Gardeley); People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385 (Olguin);accord People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1137.)
In particular, Detective Isachsen relied on hearsay and his own investigation to form an opinion that appellant was a gang member - a proper subject of expert witness testimony. (People v. Duran (2002) 97 Cal.App.4th 1448, 1464 (Duran).)This opinion, along with other evidence, provided substantial evidence of her gang membership. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402 (Bragg).) Detective Isachsen also opined that appellant's act was a type that could benefit a gang - another proper subject of expert witness testimony. (Olguin, supra, 31 Cal.App.4th at pp. 1370-1371 [opinion that gangs generally react violently to crossing out of their graffiti and shouting geographical names was proper subject of expert testimony, and was adequately supported by the expert witness's personal observations, interviews with gang members, and review of police reports].) From this evidence - and the rest of the evidence described ante - a reasonable inference may be drawn that appellant was indeed acting to benefit the Sureños gang when she committed her particular offense on the day in question. (See Albillar, supra, 51 Cal.4th at p. 63 [expert testimony that conduct benefitted a gang is sufficient to raise the inference that the crime was committed for the benefit of the gang within the meaning of § 186.22, subd. (b)(1)]; Gardeley, supra, 14 Cal.4th at p. 619 [expert opinion may provide substantial evidence that the crime was committed for the benefit of the gang]; see also People v. Ochoa (2009) 179 Cal.App.4th 650, 657, 664 [expert may not opine whether the defendant's particular crimes were committed to benefit the defendant's gang, and expert testimony does not in itself constitute substantial evidence they were; but expert may give his opinion of the benefit of a crime to a gang based upon a hypothetical, which may be sufficient if combined with evidence about the defendant's specific crime].)
Appellant also claims that Detective Isachsen's testimony regarding the benefit to the Sureños of a yell like appellant's was improper testimony regarding appellant's intent to benefit the gang or her specific intent to promote the criminal activities of gang members. Not so. Isachsen opined that what appellant yelled was the type of statement that would benefit a gang or be made in association with a gang. In other words, he focused on the benefit to the gang from the act, not the intent of the actor.
Indeed, the reporter's transcript of the hearing confirms that Detective Isachsen's testimony was not admitted as direct evidence of appellant's intent. At one point the prosecutor asked Isachsen, "did the person who yelled that epithet act in association with any other members of the Sureño criminal street gang," and Isachsen answered affirmatively. Defense counsel objected: "This is, I think, going to intent, and so I'm going to object, if he's going to testify as to what the intent was in yelling out that statement." The prosecutor responded, "I'm not asking the question of what the intent of the person yelling was." The court overruled defense counsel's objection, indicating that the testimony would not be considered for that purpose. Later in the examination, the prosecutor asked Isachsen: "And based on your review of this particular incident, not the hypothetical, and the reports contained in this incident, do you have an expert opinion as to whether or not [appellant's] presence was simply mere presence or was there for the benefit of in association with the Sureño gang?" Defense counsel objected on the ground that the question "calls for a specific intent and specific knowledge." The court overruled the objection because "[t]he question did not ask him what her intent was." Whether the court perceived the prosecutor's question accurately or not, the salient point is that the court - as the trier of fact - did not receive the testimony as direct evidence of appellant's intent.
Lastly, the cases on which appellant relies are distinguishable from the matter at hand. In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), an expert opined that when one gang member in a car has a gun, every other gang member in the car (and in two other cars) knows of the gun and intends to possess the gun for protection. The court ruled the opinion was inadmissible because it was nothing more than the expert's view on how the trier of fact should decide the case. (Id. at pp. 652 & fn. 7, 658.) In In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), the court ruled that an expert's opinion of the benefit a gang received from the defendant's possession of a weapon was insufficient to establish that the crime was committed to benefit the gang or that the minor possessed the requisite specific intent, without other evidence such as the minor being in gang territory with other gang members and having a reason to expect to use the weapon. (Id. at pp. 1195-1196, 1199.) In People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), the prosecution expert witness opined that, based on the fact that defendants were gang members and stopped in gang territory, and their gun and stolen vehicle could be used to commit a crime, the defendants committed the crimes for the benefit of their gang and had the specific intent to promote the gang. (Id. at p. 849.) The court found the facts insufficient to form the basis of an opinion that the defendant acted with specific intent to benefit the gang. (Id. at pp. 851-852; see also id. at p. 853 ["The issue in the gang enhancement context was whether [defendant] was acting with the specific intent of assisting his criminal street gang"].)
The cases on which appellant relies are not germane in two respects. First, unlike the expert witness testimony in those cases, Detective Isachsen's testimony was not admitted to show what appellant was thinking or whether she harbored the requisite specific intent, but merely to explain how the act of yelling could be of benefit to the gang, leaving it to the trier of fact to determine if, based on the totality of the evidence, appellant yelled to benefit the Sureño gang. Second, unlike the cases on which appellant relies, the prosecutor introduced evidence supporting Detective Isachsen's opinion, and evidence in addition to Detective Isachsen's opinion, from which the trier of fact could reasonably conclude that appellant committed the crime for a purpose prohibited by section 186.22, subdivision (d). (See People v. Hunt (2011) 196 Cal.App.4th 811, 821-822 [distinguishing Killebrew, Frank S., and Ramon and holding that an expert's opinion and additional evidence were sufficient to prove that the crime was committed in association with, or at the direction of, the gang].)
2. Criminal Street Gang
To prove the existence of a criminal street gang, the prosecution had to show that: (1) an "ongoing organization," involving three or more participants, has a "common name or common identifying sign or symbol"; (2) the group has as "one of its primary activities" the commission of one or more enumerated crimes; and (3) the group's members either separately or as a group have "engaged in a pattern of criminal gang activity." (§ 186.22, subds. (e), (f), (j).) A "pattern of criminal gang activity" may be shown by proof of the commission or attempted commission of two or more enumerated offenses (predicate offenses) within a specified time period, either on separate occasions or by two or more separate persons. (§ 186.22, subd. (e).)
Appellant contends there was insufficient evidence as to the primary activity and predicate offense elements. We review for substantial evidence. (Albillar, supra, 51 Cal.4th at pp. 59-60.)
a. Primary activity
The prosecution may prove that the group "has as one of its primary activities the commission of one or more of the enumerated crimes" by introducing evidence that the gang consistently and repeatedly committed criminal activity listed in section 186.22, subdivision (e), or, as here, by eliciting admissible expert witness testimony that the gang's primary activity is the commission of one or more of the enumerated offenses. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith).)
Here, Detective Isachsen opined without objection, based on his training, conversations with other experts, interviews of gang members, reports he read, and field investigation cards he reviewed, that the Sureño gang's primary activities "range from assault with deadly weapons, which is typically their most common, ranging all the way from homicides to drug sales to possession of . . . weapons." Assault with deadly weapons, homicides and sale of specified controlled substances qualify as predicate offenses for purposes of section 186.22, subdivision (d). (See § 186.22, subd. (e)(1), (3), (4).) Detective Isachsen's testimony was sufficient to establish the primary activity element. (Sengpadychith, supra, 26 Cal.4th at p. 324 [expert opinion permissible to prove primary activity, based on conversations with gang members and law enforcement]; Gardeley, supra, 14 Cal.4th at p. 620 [expert opinion, based on conversations with gang members, personal investigation, and information from law enforcement, may provide sufficient basis to establish primary activity of gang].)
Appellant's arguments are meritless. Noting Detective Isachsen's testimony that there were about 1500 Sureños in Sonoma County, she argues that Isachsen's description of just three criminal incidents does not establish a ratio sufficient to demonstrate consistent and repeated conduct. Detective Isachsen, however, did not testify that the Sureños only committed three crimes, but described three predicate offenses as mere examples of their primary activity of enumerated offenses. Appellant provides no authority for the proposition that the primary activities element should require the prosecutor to prove a particular ratio of gang members to predicate crimes.
Just as untenable is appellant's complaint that Detective Isachsen did not specifically use the words "often or consistently and repeatedly or ongoing" when describing the criminal activities of the Sureños. Detective Isachsen explicitly testified that the Sureños' "primary activities" included assault with deadly weapons, which was typically their "most common." This testimony was sufficient. (See, e.g., Duran, supra, 97 Cal.App.4th at pp. 1465-1466 [in establishing gang's primary activities, expert need only testify that gang engaged in requisite crimes on more than an occasional basis].)
b. Predicate offenses
Detective Isachsen testified to three predicate offenses committed by members of the Sureño gang, occurring on March 2, 2007, April 8, 2007, and October 17, 2008. Appellant does not dispute the sufficiency of the evidence with respect to the predicate offense of April 8, 2007. She argues, however, that there was no sufficient expert testimony or other evidence to show that the March 2, 2008, and October 17, 2008 offenses were actually perpetrated by gang members.
As to the October 17, 2008 predicate offense, Isachsen testified that the crime was perpetrated by Sureños, and three Sureños pleaded guilty to assault with a deadly weapon and admitted a gang enhancement under section 186.22, subdivision (b). As to the March 2, 2007 predicate offense, Isachsen testified that the crime was perpetrated by Sureños, who pleaded guilty to assault with a deadly weapon and admitted a gang enhancement. Isachsen's testimony was based not only on the records he reviewed, but on his personal knowledge from his investigation of the incidents as well. Also admitted into evidence were certified copies of the dockets pertinent to each case.
The evidence was sufficient. Certified records may be used to establish the convictions for each predicate offense. (Duran, supra, 97 Cal.App.4th at pp. 1460-1462.) This evidence, plus the evidence that the perpetrator of the crime was a gang member, constitutes substantial evidence of the predicate offense. (Gardeley, supra, 14 Cal.4th at pp. 624-625 [predicate offense established by documentary evidence of individual's conviction, where expert testified that the individual was a gang member]; Duran, supra, 97 Cal.App.4th at pp. 1455-1456, 1458, 1460-1462 [minute order of conviction, plus gang expert's testimony based on personal experience, discussions with other officers, and discussion with defendant, was sufficient to prove predicate offense].)
Appellant notes that the gang members' admissions to enhancements under subdivision (b)(1) of section 186.22 does not necessarily constitute proof that they were active participants in or members of the gang, since subdivision (b)(1) does not contain that element. (In re Ramon T. (1997) 57 Cal.App.4th 201, 207.) Here, however, the prosecutor did not rely solely on the perpetrators' admissions to establish they were Sureños; he also had the testimony of Detective Isachsen, based on his investigation of the crimes.
Substantial evidence supported a finding that the Sureños were a criminal street gang for purposes of section 186.22, subdivision (d). (See Gardeley, supra, 14 Cal.4th at p. 621.)
3. Specific Intent
Lastly, the prosecutor had to prove that appellant acted with the "specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (d).) Ample evidence supported this element as well.
As discussed ante, there was substantial evidence to support a finding that appellant yelled "they're not going to take our hood" for the benefit of, and in association with, the Sureño criminal street gang. That same evidence - including both Detective Isachsen's expert opinion and the case-specific evidence pertaining to appellant's particular crime - supports the conclusion that appellant also acted with the required specific intent: "if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members." (People v. Vasquez (2009) 178 Cal.App.4th 347, 353-354; see also Albillar, supra, 51 Cal.4th at pp. 64-67 [specific intent requirement of section 186.22, subd. (b)(1) requires only the specific intent to promote, further, or assist any criminal conduct by gang members, not criminal conduct other than the current offense].)
In sum, substantial evidence supported the finding that appellant violated section 186.22, subdivision (d). Accordingly, appellant fails to establish that the true findings on the gang allegation violated her federal constitutional rights.
C. Judicial Notice of Appellant's Sustained Offenses and Gang Allegations
We turn now to appellant's complaints about certain evidentiary rulings, beginning with her assertion that the court erred in taking judicial notice of her admission that she was an active participant in a criminal street gang.
1. Background
After the direct and cross examinations of Detective Isachsen had concluded, the juvenile court took judicial notice, pursuant to Evidence Code section 452, subdivision (d), of certain records in "Volume 1 of [appellant's] case file." Specifically, the court stated: "Before we begin this afternoon, I wanted to point something out to counsel. During the recess of the proceedings I had an opportunity to look at Volume 1 of [appellant's] case file. Pursuant to Evidence Code section 452(d) the Court is allowed to take judicial notice of the records of this Court, and in so doing I found that a petition was filed on January 8th, 2008, and that petition alleged a violation of Penal Code section 242 and the 186.22(d) enhancement. [¶] On February 19th, 2008, that petition was amended to add a misdemeanor violation of Penal Code section 415(1) and a misdemeanor violation of Penal Code section 186.22(a). [Appellant] admitted that petition on February 19th, 2008. She was subsequently retained as a ward of the Court and given gang conditions as part of the terms of the wardship on March 4th, 2008." (Italics added.) The court concluded: "So at this point I think that the file has established her admission as a gang member. And to the extent that Detective Isachsen had more testimony in that regard, I don't believe it will be necessary." (Italics added.) The prosecutor acknowledged that he would have fewer questions on redirect.
Section 186.22, subdivision (a), provides that any person who "actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang" commits a misdemeanor or felony. (Italics added.)
The following colloquy between defense counsel and the court then occurred: "[DEFENSE COUNSEL]: And just for the record, because I'm not familiar with 452(b), is that Rule of Court? [¶] THE COURT: No, that's the Evidence Code. [¶] [DEFENSE COUNSEL]: Evidence Code. Okay. I'm going to object, that the Court took judicial notice of a past crime as the fact-finder. I'm not sure that's—well, I just object to that." The court permitted redirect examination to proceed. Defense counsel added: "I also need to object and move to strike the Court's knowledge of the past conviction for the substantive gang crime, and object on relevance basis too. I don't think it's relevant in this case." The court overruled the objection.
2. Evidence Code Section 452, Subdivision (d)
Evidence Code section 452, subdivision (d) permits a court to take judicial notice of the records of a California court. There is no dispute that documents in appellant's "case file" constitute such records. Appellant argues, however, that although a court may take judicial notice of the existence of a document, it cannot take judicial notice of hearsay allegations for their truth simply because they are contained in the court record. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1560-1571.) Therefore, appellant urges, the court could not take judicial notice of the fact that she was an admitted gang member.
Appellant's argument is unavailing, for two reasons. First, defense counsel did not object on this ground at the hearing. Instead, he objected "that the Court took judicial notice of a past crime as the fact-finder," moved to strike the court's "knowledge of the past conviction for the substantive gang crime," and further objected on a "relevance basis too." While counsel may have preserved a challenge on the ground that the court prematurely considered appellant's past offenses (see discussion of section 1204.5, post) or that her prior offenses were irrelevant, he did not adequately bring to the court's attention the entirely different assertion appellant makes now - that her prior admission was not the proper subject of judicial notice under Evidence Code section 452. Indeed, defense counsel was apparently not even familiar with the judicial notice provisions of the statute. Appellant's challenge is therefore waived and forfeited. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 431-439.)
Second, appellant is wrong on the merits. A court may properly take judicial notice of a record that memorializes a defendant's act of admitting in court that she violated a statute. (Cote v. Henderson (1990) 218 Cal.App.3d 796, 802-803 [filing of complaint, magistrate's finding of sufficient cause to believe defendant committed the violation, information, entry of plea, and placement on probation] (Cote); Sosinsky, supra, 6 Cal.App.4th at p. 1567 [Cote is a "good example of a proper taking of judicial notice of court records"].) As applied here, a court may properly take judicial notice that a defendant admitted the allegation that she was an active participant in a criminal street gang in violation of section 186.22, subdivision (a). And that is what the court did in this case, stating: "[T]he file has established [appellant's] admission as a gang member." (Italics added.)
From the judicially-noticed fact that the defendant made this admission, the trier of fact might (or might not) proceed to infer - from this and other evidence - that the defendant not only made the admission, but was in fact a member or active participant in the gang. Given Detective Isachsen's extensive testimony regarding appellant's association with and participation in Sureño activities, such an inference in this case was certainly reasonable. Thus, when the court advised the parties - after defendant had concluded its cross-examination - that the prosecutor did not have to expend any further time proving appellant's association with the Sureños, it did not abuse its discretion.
Appellant's other arguments lack merit as well. She raises the concern defense counsel apparently had in mind when he objected at the hearing: that the juvenile court, in taking judicial notice of appellant's admission, violated section 1204.5. Section 1204.5 precludes a court from considering "any information reflecting the arrest or conviction record of a defendant" without the defendant's consent in open court, "except as provided in the rules of evidence applicable at the trial." (§ 1204.5, subd. (a), italics added; see also Cal. Rules of Court, rule 5.780, subd. (b) [admission and exclusion of evidence in Welf. & Inst. Code § 602 matter must be in accordance with the Evid. Code as it applies in criminal cases].) No error occurred here: because the juvenile court acted properly in taking judicial notice of appellant's admission, the court considered the information in appellant's case file according to the "rules of evidence applicable" at the jurisdictional hearing. (§ 1204.5, subd. (a).)
Respondent defends the court's action on the basis of Evidence Code section 452.5, subdivision (b), which makes admissible "[a]n official record of conviction certified in accordance with subdivision (a) of Section 1530" to prove not only the fact of the conviction but also that the offense reflected in the record occurred. (Duran, supra, 97 Cal.App.4th at pp. 1460-1461; see also People v. Wesson (2006) 138 Cal.App.4th 959, 968-969 [trial court properly admitted court documents to prove not only that defendant had suffered prior conviction, but also to prove he committed the underlying offense].) Appellant counters that the record does not indicate the petition and amended petition were "certified" as an official record of the conviction - a curious argument since the court was reading from appellant's court file, which would contain the original. Although it is true that the prosecutor did not purport to introduce a certified copy into evidence, the point is that, if appellant had adequately objected on the ground that her prior admission was not the proper subject of judicial notice, the prosecutor could have pursued the matter further and obtained admission of the evidence under Evidence Code section 452.5. For this and other reasons stated in the text, any error in taking judicial notice was harmless.
3. Harmless Error
Even if the court had erred in taking judicial notice of appellant's admission, the error (and any error under section 1204.5) would be harmless. The fact that appellant was a member of the Sureño criminal street gang was overwhelmingly established by the testimony of Detective Isachsen. Furthermore, it was unnecessary for the prosecution to prove that appellant was an actual gang member. (Bragg, supra, 161 Cal.App.4th at p. 1402 [§ 186.22 does not require that the defendant be an active or current member of the gang that benefits from the crime]; In re Ramon T., supra, 57 Cal.App.4th at p. 207 [§ 186.22, subd. (b) does not require proof that appellant is an active or current participant in the gang].) The prosecutor needed to prove only that appellant committed the section 415 offense "for the benefit of, at the direction of or in association with" a criminal street gang. (§ 186.22, subd. (d).) As discussed ante, overwhelming evidence supported the conclusion that she did.
There is no probability that the juvenile court would have found the gang enhancement untrue if it had not taken judicial notice of appellant's criminal history or looked at her prior record. Appellant fails to establish error.
D. Defense Inquiry Into Basis for Isachsen's Opinion
Appellant contends the juvenile court erred, and violated her due process and confrontation rights, in precluding defense counsel from cross-examining Detective Isachsen as to the basis for his opinion that the perpetrators of one of the predicate offenses were actually members of the Sureño street gang. The argument is meritless.
1. Background
On cross-examination of Detective Isachsen, defense counsel asked how Isachsen "determined that the suspects in the [October 17, 2008] stabbing [Santa Rosa police case no. 08-15594] were Sureño." The prosecutor objected on the grounds of relevance, arguing that "we're not trying a case within a case here" and, in addition, "several [of the perpetrators] have pled guilty and admitted their Sureño affiliation."
The court asked defense counsel the relevance of his question, noting there was already "in evidence the certified copies of court minutes in which the individuals identified in this report were convicted of felonies with gang enhancements." Defense counsel argued that "this is not a predicate crime within the meaning of the criminal street crime act" because, in essence, it was not clear to him if it was perpetrated by Sureños, and a predicate offense must be committed by an actual gang member.
The court asked defense counsel: "So . . . your argument is that although the Court has admitted these exhibits, which clearly indicate that based on these three police reports individuals were arrested, convicted and sentenced for criminal street gang activity in conjunction with various felonies, that your position is that you need further cross-examination of the witness to determine whether it involved the Sureño street gang?" Defense counsel responded that "none of those convictions are . . . the substantive crime . . . 186.22(a). [¶] Those are not members of a criminal street gang, and therefore they cannot constitute a predicate street crime . . .. [W]e're talking about needing to show or at the direction of. We're talking about needing to prove that these acts were committed by the particular criminal street gang that my client is alleged to have benefited on November 12th. And to do that they need to have predicate crimes of actual members."
The court sustained the prosecutor's objection, stating: "[Defense counsel], if you have other cross-examination you can proceed with that, but as far as your questioning of Detective Isachsen with regard to the Sureño involvement in these offenses, that questioning is irrelevant at this point."
2. Law and Application
Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) We review the exclusion of evidence on relevance grounds for an abuse of discretion. (People v. Scheid (1997) 16 Cal.4th 1, 14.)
Appellant argues that the excluded evidence was relevant to Detective Isachsen's credibility as the prosecution gang expert. Defense counsel, however, did not advise the trial court that his question was intended to probe Isachsen's credibility. Appellant cannot raise that challenge now. (Evid. Code, § 354.)
Appellant also argues that defense counsel's inquiry was relevant because the prior crimes would not constitute predicate offenses unless they were, in fact, perpetrated by members of the Sureño gang. Appellant fails to show, however, that asking Detective Isachsen how he determined that the perpetrators were Sureños would have cast doubt on his prior testimony that they were Sureños (or, for that matter, created any significantly different impression of Isachsen's credibility).
In concluding that the October 17, 2008 predicate offense was perpetrated by members of the Sureño criminal street gang, Isachsen relied on his personal knowledge gained from participating in the investigation of the case and the police report of the incident. (See Duran, supra, 97 Cal.App.4th at p. 1464 [gang expert may opine on an individual's membership in a gang, relying on conversations with gang members and law enforcement records].) A summary of the predicate offenses, prepared by other officers, described the adult defendants as "Sureño gang participants" who attacked Norteño victims. According to the summary, those defendants pleaded guilty to the predicate crime of assault with a deadly weapon and admitted committing the offenses for the benefit of a criminal street gang under section 186.22, subdivision (b). In addition, certified copies of the court dockets for the perpetrators, indicating their conviction of felonies with gang enhancements under section 186.22, subdivision (b)(1)), were admitted into evidence. An inquiry into the basis by which Isachsen determined that the perpetrators were Sureños would have disclosed these facts to which Isachsen already testified. Appellant does not specify how further inquiry would have brought into question Isachsen's credibility, the accuracy of his testimony, or the accuracy of the certified copies of the dockets or information Isachsen gleaned from the police reports. (See also People v. Augborne (2002) 104 Cal.App.4th 362, 371, 373-375 [where a member of a gang commits a predicate offense, the prosecutor does not have to prove he was a gang member at the time of the predicate offense].)
This summary was provided to defense counsel, but was apparently not admitted into evidence. It formed the basis of some of Detective Isachsen's testimony.
Assuming there was probative value, the court still did not abuse its discretion in foreclosing the cross-examination. The court has wide latitude to exclude evidence under Evidence Code section 352 on the ground that it would require an undue consumption of time, and this was what the prosecutor was no doubt alluding to when, in explaining his relevance objection, he noted the specter of conducting mini-trials on whether the participants in each of the predicate offenses were Sureño gang members. Questioning Detective Isachsen on the basis for his opinion - which he already said was based on personal investigation and police reports - and questioning him further on whether or not the individuals were indeed Sureños, would obviously consume time; it was not an abuse of discretion for the court to conclude that the time so consumed would be undue in light of the overwhelming evidence that the perpetrators were Sureños and appellant's failure to articulate any possible evidence that could cast doubt on that conclusion.
The court did not abuse its discretion. Appellant has therefore failed to establish a denial of her due process right to present a full and fair defense. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [a "criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness," but the court has broad discretion to restrict cross-examination and may impose reasonable limits on the introduction of such evidence].)
E. Prosecutor's Release of Potential Witness
Appellant contends the prosecutor committed misconduct by cancelling the prosecution subpoena of a potential witness named Brian, whom Shaffer had described as a Sureño instigator or target in the incident. Appellant, who had also subpoenaed Brian, complains that the prosecutor's action caused Brian not to be transported to court on the first day of the jurisdictional hearing. We find no merit to appellant's contention.
1. Background
At the arraignment on January 4, 2010, defense counsel mentioned Brian as a potential witness. At the master calendar hearing on January 21, 2010, defense counsel asked whether the prosecution could "inform me whether Brian . . . has been subpoenaed in the matter" and was told to check with the prosecutor handling the case. On January 22, 2010, defense counsel issued his own subpoena for Brian's attendance at the jurisdictional hearing on January 25.
On January 25, 2010, Brian did not appear. Defense counsel moved to dismiss the case, contending that he had asked the prosecutor not to release Brian from the prosecution's subpoena because defense counsel believed that Brian could exculpate the appellant. Defense counsel did not know whether Brian was released from that subpoena before or after counsel's request.
The prosecutor explained to the court that "trial" for both appellant and a co-participant had been set for that day, and Brian was subpoenaed to be a potential witness in each of those trials. When it subsequently became clear that the trial of the co-participant, who was charged with more serious offenses, was not going forward, the prosecutor called off the subpoena. Nonetheless, the prosecutor noted, Brian would have been at the jurisdictional hearing on January 25 pursuant to the defense subpoena, had it not been for the weather or some issue that precluded his transportation to the court, and Brian could be in court the next day (January 26).
Defense counsel acknowledged that the defense subpoena had been served and it appeared that Brian could be brought to the hearing on January 26.
The court denied the dismissal motion, finding that "it appears that the witness may be available tomorrow."
Appellant does not contend the court erred in denying the motion to dismiss. Nor can there be error, since the parties agreed at the time of the court's ruling that it seemed Brian would be available to testify at the jurisdictional hearing on January 26.
At the conclusion of the People's case on January 27, 2010, the defense rested its case without calling Brian as a witness, requesting a continuance, or complaining about any difficulty in securing his attendance at the hearing.
2. Law
" 'A defendant's constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant's right to present witnesses. [Citations.]' " (People v. Lucas (1995) 12 Cal.4th 415, 456.)
"To prevail on a claim of prosecutorial violation of the right to compulsory process, a defendant must establish three elements. ' "First, he must demonstrate prosecutorial misconduct, i.e., conduct that was ' "entirely unnecessary to the proper performance of the prosecutor's duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.' " Second, he must establish the prosecutor's misconduct was a substantial cause in depriving the defendant of the witness's testimony. The defendant, however, "is not required to prove that the conduct under challenge was the 'direct or exclusive' cause. Rather, he need only show that the conduct was a substantial cause. The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force and is soon followed by the witness's refusal to testify." Finally, the defendant must show the testimony he was unable to present was material to his defense.' " ' " (People v. Jacinto (2010) 49 Cal.4th 263, 269-270 (Jacinto), citations omitted, italics added.) Appellant fails to establish at least two of these three elements.
3. No Prosecutorial Misconduct
Appellant has not shown that the prosecutor's release of Brian from the prosecution subpoena constituted prosecutorial misconduct. The prosecutor explained to the court that the subpoena for Brian, who was a potential witness in two cases on January 25, was called off because the other more serious proceeding was not going forward. The prosecutor's decision to release Brian from the prosecution subpoena was thus based on a reasonable prosecutorial decision that he was not needed to prove the public-fighting charge and gang-benefit allegation filed against appellant. It was not "entirely unnecessary to the proper performance of the prosecutor's duties." (Jacinto, supra, 49 Cal.4th at pp. 269-270.)
Moreover, the prosecution's decision to release Brian from the prosecutorial subpoena did not transform Brian from a "defense witness willing to testify into one unwilling to testify." (Jacinto, supra, 49 Cal.4th at pp. 269-270.) There is no evidence whatsoever that Brian was unwilling to testify, let alone that he was unwilling to testify because the prosecutor released him from the prosecutorial subpoena (or because he had been transferred to another facility as a result).
4. No Substantial Cause of the Deprivation of Brian's Testimony
The authorities received the defense subpoena for Brian's appearance, and the record indicates they were able to transport him to court on January 26, 2010, notwithstanding the prosecutor's release of the prosecutorial subpoena. The prosecution did not rest its case until January 27, 2010. When the defense had the opportunity to proceed with witnesses, the defense rested without calling Brian or complaining about his unavailability. Appellant cites nothing in the record showing that the prosecutor's action was a substantial cause of Brian's absence from the jurisdictional hearing (as opposed to his absence on January 25 alone).
We also question whether appellant demonstrated that Brian's testimony was material to the defense. At the hearing on the dismissal motion, defense counsel asserted his belief that Brian had "affirmatively state[d] to the arresting officer that [appellant] was not present during the fight and that she had no part in it." However, the prosecutor disagreed with defense counsel's characterization. The fact that appellant rested her case without calling Brian as a witness, or complaining of his unavailability, suggests that the evidence Brian could provide was not exculpatory.
Appellant fails to establish error.
F. Discovery Issues
Contending that the prosecutor failed to provide timely discovery of police reports and witness information, appellant urges that the wardship petition should have been dismissed, or part of Detective Isachsen's testimony should have been excluded, under provisions of the California Rules of Court and Brady v. Maryland (1963) 373 U.S. 83 (Brady). We disagree.
1. Background
When defense counsel made his first appearance for appellant on December 15, 2009, the prosecutor advised there was "quite a hefty stack of reports" for defense counsel to review. The parties agreed to an arraignment date of January 4, 2010, and counsel waived time on appellant's behalf through "[January 4] plus 15 court days." On January 4, the court set the matter for a jurisdictional hearing "within the statutory time" on January 25, 2010, and a master calendar hearing for January 21, 2010.
At the master calendar hearing on January 21, 2010, the court confirmed that the contested jurisdictional hearing was set for January 25, 2010. Defense counsel noted his receipt of the police reports and dockets concerning the three predicate offenses and another packet of documents related to appellant's prior gang contacts, and he asserted he could review these materials by the time of trial. Defense counsel also had a "gang report" from 2007 and had "no problem" with Isachsen relying on it at trial.
Defense counsel noted, however, that he had not yet "seen any statements from Danielle [sic]," which he would need before trial if she was going to testify. He also asked for discovery of two police reports (numbers 07-12711 and 07-19660) pertaining to cases in which Detective Isachsen had been qualified as an expert.
On January 25, 2010, the day set for the jurisdictional hearing, defense counsel handed the court and the prosecutor a 20-page set of 26 in limine motions, which were "based all on discovery provided to [counsel] on January 22." After the court pointed out that some of the motions were "covered by the Evidence Code" and did not "need to be ruled on as motions in limine," defense counsel eliminated all but 13 of them. Some of these now form the basis of appellant's claims of error, which we will address post. In addition, during the testimony at the jurisdictional hearing, defense counsel objected to certain evidence on the ground that he had not received adequate discovery. We will address these issues as well, after considering the scope of required discovery.
2. California Rules of Court Rule 5.546
California Rules of Court, rule 5.546 requires the prosecution to disclose certain information to the minor, including police reports relating to the pending matter, information favorable to the minor, and, upon request, the charged minor's probation reports and statements, statements by any alleged co-participant, names and addresses of witnesses interviewed, and "[r]ecords of prior felony convictions of the witnesses each party intends to call." "Discovery must be completed in a timely manner to avoid the delay or continuance of a scheduled hearing." (Rule 5.546(i).)
Failure of the prosecution to make these disclosures may result in the court ordering the discovery, granting a continuance, prohibiting the introduction of undisclosed material, dismissal of the proceedings, or such other order as "the court deems just under the circumstances." (Cal. Rules of Court, rule 5.546(j).) The court may actually dismiss a juvenile petition only upon consideration of the interests of justice and the minor's welfare, not upon prosecutorial discovery abuses alone. (In re Jesus J. (1995) 32 Cal.App.4th 1057, 1059-1060.)
Appellant also relies upon Sonoma County Superior Court local rules, rule 10.6, subdivisions (A) and (C), but acknowledges that the local rule does not specify a remedy.
a. Motion to exclude predicate offense 08-15594 for incomplete report On the morning set for the jurisdictional hearing, defense counsel asked for the police case numbers of the predicate offenses the prosecutor intended to introduce in evidence, claiming he was confused about what predicate crimes the prosecutor would use to prove the gang enhancement. The prosecutor read those numbers in court (08-15594, 07-3789, and 07-6082). Defense counsel complained that he had not received the entire report in case number 08-15594 and asked that evidence of that case be excluded. The prosecutor represented that all pages had been faxed to defense counsel already, but offered to photocopy and provide the report again. The next morning, defense counsel confirmed that he had received the earlier fax of the 11-page report for case number 08-15594.
During Detective Isachsen's testimony regarding the October 17, 2008, predicate offense (case no. 08-15594), defense counsel objected on the ground that his 11 pages of the report stated "nothing about injuries," "[t]here's only reference to blood drops," and "[n]othing about actual stabbing." He moved to strike the testimony about what occurred "prior to the alleged stabbing. The eight Sureños. That the victim jumped out of the second-story window." The prosecutor pointed out that counsel had a summary of the full report that "essentially encapsulates exactly what Detective Isachsen just testified to." The court overruled defense counsel's objection.
During cross-examination of Detective Isachsen, defense counsel determined that the full report of case number 08-15594 included several supplemental reports that were not included in the 11-page report he received from the prosecutor. Defense counsel again moved to strike "any testimony as to this particular alleged predicate crime, based on nondisclosure." The prosecutor responded: "I think I have the same 11 pages that [defense counsel] has. I don't know that we have the entire supplemental package." Nonetheless, the prosecutor added, he had provided the defense with all of the documentation in the prosecutor's possession, and defense counsel had plenty of time to obtain the full report on his own, since the prosecutor had provided defense counsel with the police and court case numbers along with the summary. The court denied the motion to strike Isachsen's testimony.
We need not decide whether the court erred in declining to strike Detective Isachsen's testimony on this point, since any such error would have been harmless as a matter of law. Only two predicate offenses are required for proof of a violation of section 186.22, subdivision (d). (§ 186.22, subd. (j).) Even if the court had excluded Isachsen's testimony concerning the predicate offense of October 17, 2008, the prosecution would have met its burden because it proved the other two predicate offenses of March 2, 2007, and April 8, 2007. Appellant does not show that the denial of the motion to strike prejudiced her in any way.
b. Motion to exclude interrogation of appellant in case 07-6082
On the morning of the jurisdictional hearing, defense counsel complained that he had not received an audio-video recording of an interrogation of appellant referenced in police report number 07-6082 (the April 2007 assault, which Detective Isachsen described as both a predicate offense and one of appellant's contacts while with the Sureños). On this basis, the defense requested that the interrogation of appellant in that other proceeding not be admitted in this case.
In response, the court noted that defense counsel had had ample time to request a copy of the recording before the day of the jurisdictional hearing. The prosecutor nonetheless offered to copy the recording, and defense counsel agreed that if he received it that evening he would have time to review it.
Appellant fails to establish that a recording of her interrogation in another case falls within the scope of rule 5.546. Even if it does, the prosecutor had no obligation to produce the recording except upon request, which appellant did not make until the jurisdictional hearing. Furthermore, to the extent appellant complained about not having the recording, the parties resolved the matter, asking nothing further of the court. And while it is not clear when or whether appellant finally received the recording of her interrogation in the April 2007 assault case, defense counsel did not object on this ground when Detective Isachsen testified about the April 2007 offense at the hearing. Indeed, Detective Isachsen was not asked about the interrogation, and appellant does not identify any prejudice arising from not having the recording when the hearing began. Appellant fails to establish error.
c. Motion to exclude interrogation of appellant in case 08-00728
On the morning of the jurisdictional hearing, defense counsel acknowledged that he had received an audio-video recording of appellant's statements to police in case number 08-00728 (another one of the cases in which appellant was contacted while in the presence of other Sureños). He nonetheless sought preclusion of any evidence pertaining to the contact on the ground that the recording was untimely produced. The court denied the motion.
It is not clear exactly when defense counsel received the recording of the interview, but appellant does not point to any evidence in the record that the timing of the prosecutor's disclosure prejudiced appellant or her counsel's ability to prepare for trial and defend appellant's interests. Appellant fails to establish reversible error.
d. Motion to exclude interrogation of Daniella
During Isachsen's testimony concerning his interview of Daniella, defense counsel objected that he "was not provided the CD of this interview and [] wasn't provided the discovery in enough time to actually obtain that CD." The court overruled the objection.
Appellant fails to establish prejudicial error. Even if the court had sustained the objection, and Isachsen was not permitted to testify about Daniella's statements during the interview, there was other ample evidence from multiple sources that established appellant's presence at the scene of the incident. Any error in the court's overruling of the objection was harmless.
e. Motion to dismiss
At the hearing on in limine motions on January 25, 2010, defense counsel asserted that he had not had time to review the police report in case number 07-12711, pertaining to one of the cases in which Isachsen had been qualified as an expert. The court asked defense counsel if he wanted a continuance of the hearing so he could review the report. Counsel replied that appellant's speedy trial rights would be violated if counsel were forced to accept a continuance.
Defense counsel then asked the court to dismiss the entire case against appellant, apparently based on all of the material that he claimed was untimely provided or not provided at all. The court denied the motion, noting that defense counsel was aware that "the discovery process has to be undertaken a little more expeditiously than it might in an adult matter," and that none of the "18 co-participants in this alleged offense . . . have created a situation where we needed to continue it for more discovery or additional disclosure."
Defense counsel next asserted that "[a]ny evidence not disclosed should be prohibited." The court replied: "it appears that evidence was provided. And if it wasn't, [the prosecutor], at least as to these last two items, has indicated that he's not relying on those reports and not using [them]." The court also noted: "[T]oday is not the last day for trial. [Appellant is] still within the statutory time for trial."
The court did not abuse its discretion in denying the motion to dismiss or the request to preclude evidence. In the first place, a Welfare and Institutions Code section 602 petition cannot be dismissed by the juvenile court on the basis of the prosecutor's discovery abuse alone. (Welf. & Inst. Code, § 782; In re Jesus J., supra, 32 Cal.App.4th at pp. 1059-1060 [error for juvenile court to dismiss petition for the prosecution's failure to provide discovery, without consideration of the interests of justice and the welfare of the minor, such as whether the discovery abuse would deprive the defendant of a fair trial].) Appellant failed to demonstrate that the prosecutor's disclosure or nondisclosure of material deprived her of a fair trial.
Moreover, defense counsel did not articulate any prejudice that could not have been cured by an order compelling immediate production of any appropriate material and a continuance of the hearing for just a day - until January 26, 2010 - the last day to commence the hearing given appellant's waiver of time to "January 4 plus 15 court days" and the intervening court holiday on January 18. Having rebuffed the court's invitation to request a continuance, even though the jurisdictional hearing still could have commenced without compromising appellant's speedy trial rights, appellant fails to establish reversible error.
f. Request for records of potential juvenile witnesses
As part of his in limine motions on January 25, 2010, defense requested that the People "notify the defense if any witnesses have any convictions that would be relevant to their credibility." The prosecutor responded that defense counsel was already "aware of the criminal history of anybody involved in this particular event," and pointed out that he was "not at liberty to turn over court records of minors," notwithstanding that he had already disclosed "that at least one of the minors might have a contact with law enforcement involving a crime of moral turpitude." The prosecutor observed, and the court agreed, that defense counsel had to seek disclosure of a minor's court records by filing a motion under "Judicial Council form 574."
Defense counsel objected to having to follow the rules. He stated: "the conviction records of the minors are - is a matter involving their veracity for testifying, and my client has a Sixth Amendment right and a Fifth Amendment right to that information. It's not publicly available. It's in the possession of the district attorney's office and I believe they have to disclose it."
The court responded: "Well, Mr. Milligan, actually, this will bring me to another point, which is your request for the Court to take judicial notice of certain juvenile court case numbers. The Court is not going to do that, because the minor's cases are confidential. There is a procedure for, as you know, filing a petition and having the Court rule on that and getting whatever information may be appropriate through that method. So based on California Rule of Court 5.552, the Court is not going to take judicial notice of the records that you requested and is not going to require the prosecution to disclose information which is also protected by those confidentiality provisions."
Defense counsel replied that having to abide by the notice requirements (see Cal. Rules of Court, rule 5.552(d)(1)), "would have taken us past [appellant's] right to a speedy trial. [¶] And I'm having a hard time, because the prosecution witness is going to come in here, who the district attorney has disclosed has a possible crime of moral turpitude, and I'm not being provided that on behalf of my client. I don't see how that's just." The court responded that, if defense counsel had followed the procedure set forth in the rules of court, "we could have taken things, you know, as they would develop appropriately." The court denied the motion.
Rule 5.552 of the California Rules of Court (rule 5.552) governs discovery of documents filed in a juvenile court case. (Rule 5.552(a).) While an attorney representing a juvenile in a case may review the court file in that case without a court order, an attorney must obtain an order to review the file of a juvenile who is not a client or party to that proceeding. Specifically, counsel "must petition the court for authorization using Petition for Disclosure of Juvenile Court Records (form JV-570)." (Rule 5.552(c), italics in original.) At least 10 days before filing the petition, counsel must serve notice on the prosecutor, the juvenile whose records are requested, the juvenile's attorney, and the juvenile's parents or guardian. (Rule 5.552(d)(1).)
An exception exists for attorneys authorized access under Welfare and Institutions Code section 827 or 828, which are inapplicable here. The exception does not apply to a defense attorney representing someone other than the minor whose records are being sought. (Welf. & Inst. Code, §§ 827, 828; People v. Avila (2006) 38 Cal.4th 491, 606-607 [no abuse in denying defense request for inspection of prosecution witness's juvenile court records because "[n]either defendant nor his counsel fall into any category of individuals and/or agencies authorized to inspect [prosecution witness's] juvenile case files without prior authorization to inspect them"].)
Defense counsel did not even attempt to comply with the required procedure. He represented to the court on January 4, 2010, that he had "reviewed four interview and interrogation videos and audios in this case and reviewed the police reports." (Italics added.) There is no indication that those police reports omitted the identity of potential witnesses, including those ultimately called by the prosecution at the jurisdictional hearing. Counsel had ample time before the jurisdictional hearing - three weeks later, on January 25, 2010 - to follow the procedure for obtaining the juvenile case files of those individuals.
Appellant contends that the provisions of rule 5.552 must give way where they conflict with appellant's Sixth Amendment right of cross-examination and confrontation. (Citing Pennsylvania v. Ritchie (1987) 480 U.S. 39.) Appellant's argument is misplaced. Rule 5.552 is the means by which the court may balance concerns over the privacy of a minor's records and the defendant's constitutional rights. (See Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799, 805-806 & fn. 2.) While appellant's interest in obtaining the records of non-charged juveniles might have given her a basis for obtaining the records under rule 5.552, it certainly did not give her counsel a basis for ignoring the rule by which those records could be obtained. As the trial court seemed to imply, if defense counsel had at least initiated the required procedure, any problem with the time needed to rule on appellant's request and produce the material could have been addressed. Defense counsel, however, chose instead to do nothing except complain on the day of the jurisdictional hearing.
Furthermore, appellant fails to show that she was prejudiced by not receiving the court records of the juvenile witnesses. She resorts to conclusory assertions that she was unable to prepare a full and fair defense and effective cross-examination of Detective Isachsen and was unable to impeach any juvenile prosecution witness. There is, however, no indication that any of the minors had suffered anything more than a mere "contact" with police, which is quite different than a sustained petition. Moreover, impeaching the juveniles who testified for the prosecution would not have done appellant any good. Daniella testified favorably for appellant, so there would be no point in impugning her credibility. Although [Redacted] testified that appellant was at the scene and he heard a girl's voice, he also testified that the voice belonged to a boy. The court's resolution of that discrepancy would have turned more on his demeanor while testifying than any possible prior contact concerning moral turpitude. Appellant asserts no specific way that the juvenile records could have aided counsel in cross-examining Detective Isachsen or preparing for trial under the circumstances of this case.
3. Brady
A due process violation under Brady, supra, 373 U.S. 83 requires: (1) evidence favorable to the accused, in that it is either exculpatory of the defendant or a basis for impeaching a prosecution witness; (2) suppression of the evidence by the prosecutor, either willfully or inadvertently; and (3) resulting prejudice. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) Prejudice arises only if the favorable suppressed evidence was "material," meaning " 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (Id. at p. 280.)
Appellant fails to show that the evidence she did not receive from the prosecution would have actually been favorable to her case, or that its purported suppression was material. She argues that the complete versions of the police reports of the predicate offenses and appellant's contacts with the Sureños, as well as the recordings of appellant's and Daniella's interviews, were necessary to her defense because she wanted to find out the basis for Detective Isachsen's opinion that appellant violated section 186.22, subdivision (d), the Sureños were a street gang, appellant associated with the gang, and how appellant's alleged acts on the day in question benefitted the gang. That explains why the documents were discoverable, but it does not show that they in fact contained anything exculpatory or anything that would have possibly changed the outcome of the jurisdictional hearing. Based on appellant's arguments and the record on appeal, there is no reasonable probability that, had the documents been disclosed to the defense, the result of the jurisdictional hearing would have been different.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J. We concur. SIMONS, Acting P. J. BRUINIERS, J.