Delinquency Case Law

In re Jose P. (Feb. 21, 2003) 106 Cal.App.4th 458 [130 Cal.Rptr.2d 810]. Court of Appeal, Sixth District.

The juvenile court found that the youth had committed home invasion robbery, false imprisonment, and first degree burglary. It further concluded that the youth was an active participant in a street gang and that the crimes were associated with gang activity, in violation of Penal Code section 186.22(a) and (b)(1).

Two men were observed entering a Salinas residence carrying a wheeled dolly. A third person, wearing a Nike baseball cap, was positioned across the street. The men left the residence with two safes containing about $17,000 in cash, payroll checks, and jewelry. Two children were home alone when the robbery occurred. One of the children, a seven-year-old boy, identified one of the assailants as the youth, referring to him as "Ruben," his sister's ex-boyfriend.

The facts associating the youth with a gang were the following: (1) the sister's diary referred to her relationship with the youth and referred to the "Norteños"; (2) officers searching the youth's residence found two photographs depicting Hispanic males flashing gang signs; (3) in a police interview, the youth admitted that he associated with the "Norteño" gang, that the 12-year-old was his girlfriend, that he used the name "Ruben" around her family so they would not know who he was, and that if the gang were to "do something," he would not "be a chicken"; and (4) after the family received subpoenas requiring testimony, a note was found on their doorstep that referred to "Norteño" and threatened the father.

A member of the Salinas Police Department, who was an expert on criminal street gangs, testified that the "Norteño" gang had about 600 members in Salinas, of which there were several subgroups, and that Norteños identified with the color red and the number 14. She believed that the youth was an active member of the Norteños. She recounted several incidents over the previous two years in which the youth had been in the company of a Norteño gang member or someone who associated with the Norteño gang. In addition, the youth had been arrested for both attempted robbery and connection with a stolen vehicle. The youth's high school records indicated that he was put on a "gang contract" by which he agreed not to wear red or associate with other known members of the Norteño gang. He was subsequently expelled from the school for using the word "Norteños" during a fight.

The juvenile court concluded that the youth had committed robbery, false imprisonment, and first degree burglary. It found true the allegation that he had committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang. (Pen. Code, § 186.22(b)(1).) The juvenile court also found that the youth had committed the substantive offense of active participation in a criminal gang. (Pen. Code, § 186.22(a).) It committed the youth to the California Youth Authority, authorizing the sentence of 9 years for the robbery, increased by 10 years for the gang enhancement. Additionally, it assessed 8 months for the substantive gang crime. On appeal, the youth claimed that there was insufficient evidence of both his active participation in a criminal street gang and that his commission of the crimes for the benefit of the street gang. He further claimed that Penal Code section 654 prohibited imposition of punishment for violation of section 186.22(a).

The Court of Appeal affirmed the judgment of the juvenile court, concluding that there was substantial evidence to support a finding that the youth was an active participant in the Norteño street gang; that the robbery was committed for the benefit of, or in association with, the Norteño gang; and that the youth had the specific intent to promote the gang's criminal conduct. The appellate court further concluded that section 654 did not bar punishment for both the gang crime and the robbery.

Section 186.22(a) requires punishment of "[a]ny 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 … ." While a person need not be a gang member, he or she must have had more than passive involvement with the gang and must have aided and abetted a separate felony committed by gang members. Section 1866.22(b)(1) provides for a separate enhancement upon the conviction of a felony committed for the benefit of or in association with any criminal street gang, with the specific intent to promote or assist in any criminal conduct by gang members, which is "in addition and consecutive to" the felony or attempted felony the person was convicted for. The existence of a criminal street gang is an unquestionable element of both the enhancement and the substantive offense. The prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol, (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute, and (3) includes members who either individually or collectively engage in a pattern of criminal gang activity by committing, attempting to commit, or soliciting at least two of the enumerated offenses during the statutorily defined period.

The appellate court concluded that there was sufficient evidence to establish that Norteño was a criminal street gang, based on the police officer's testimony concerning the number of Norteño members, their identifying characteristics, and their pattern of criminal activity. It further concluded that there was substantial evidence that the youth was an active participant in the gang. Finally, the appellate court concluded that there was sufficient evidence to support a finding that the robbery was committed for the benefit of, or in association with, the Norteño gang and that the youth had the specific intent to promote or assist the gang's criminal conduct based on (1) evidence of the youth's ongoing involvement with the Norteño gang, (2) the youth's prior arrests for gang-related crimes, (3) evidence that the 12-year-old had written about the youth in her diary with repeated references to Norteños, and (4) evidence that the family received a note from the Norteños attempting to dissuade them from testifying in the case.

The appellate court further concluded that section 654 did not bar punishment for both the gang crime and the robbery. Section 654 is intended to ensure that punishment is proportionate with a defendant's criminal culpability. It expressly prohibits multiple sentences where a single act violates more than one statute or where multiple acts violate different statutes but are incident to one objective. However, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. The principal inquiry is whether the defendant's criminal intent and objective were single or multiple. The youth contended that punishment for both the section 186.22(a) offense and the robbery was double punishment. He further suggested that his objective and intent in both crimes were the same because the gang enhancement applied to the robbery required a finding of specific intent to further the gang's criminal conduct. Relying on People v. Herrera (1999) 70 Cal.App.4th 1456, the appellate court stated that a violation of section 186.22(a) is distinct from the intent and objective of the underlying felony because the gravamen is the intent to actively participate in the gang itself. The appellate court further noted that there was abundant evidence of the youth's intent to participate in the gang. Even if his criminal liability for the gang offense depended upon his participation in the robbery, the record supported a finding that he harbored the separate intent and objective to participate in a gang. In contrast, his intent and objective in committing the robbery was to take the property located in the home. Therefore, while he pursued the objectives simultaneously, the objectives were nevertheless independent of each other. As such, section 654 does not bar punishment for both the gang crime and the robbery.