Elodio O., In re
| Decision Date | 31 July 1997 |
| Docket Number | No. FO26659,FO26659 |
| Citation | 66 Cal.Rptr.2d 95,56 Cal.App.4th 1175 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 6095, 97 Daily Journal D.A.R. 9973 In re ELODIO O., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ELODIO O., Defendant and Appellant. |
In the published portion of this opinion we address a question not yet reached directly by any court concerning the Street Terrorism Enforcement and Prevention Act. (PEN.CODE, §§ 186.201, et seq.) We determine the provision of section 186.22, subdivision (f), that a criminal street gang have as one of its primary activities the commission of certain enumerated crimes, requires proof of such crimes by evidence other than the current crimes. We also hold, based on established authority, that the requirement of showing engagement in a pattern of criminal gang activity may be established by proof of current offenses.
In the unpublished portion of the opinion we conclude substantial evidence establishes appellant's commission of a robbery, and we agree with appellant section 654 requires a stay of confinement time for a second offense, assault by means of force likely to produce great bodily injury.
In the early evening of March 25, 1996, Dimas Rodriguez was riding his bicycle through Camacho Park in Reedley when a group of boys attacked him with sticks and baseball bats. Rodriguez suffered serious injuries and his bicycle was stolen.
John Carrillo, a caretaker for the park, witnessed the attack. He testified nine boys in a truck drove up to Rodriguez and attacked him. Three assailants used weapons; the rest beat Rodriguez with their hands and feet. He recognized appellant as one of the assailants. Moments later, another truck arrived. Two or three people got out and joined the group of boys. During the attack, Carrillo saw someone take Rodriguez's bicycle.
Detective Wright investigated the attack. He testified appellant told him the assault was meant as retaliation for an incident that had occurred hours earlier in which he and some friends were chased by members of the Scraps gang. Mistaking Rodriguez for a member of that gang, appellant admitted he and his fellow gang members beat Rodriguez and stole his bicycle.
As a member of the local gang task force, Wright testified as an expert on gang activity. He opined the attack on Rodriguez was gang related and noted a school near Camacho Park was a dividing line between rival groups. Wright also testified appellant identifies with the Brown Pride gang, a subgroup of the VESR gang. Other youths involved in the attack on Rodriguez are members of the VESR gang.
An amended petition in the juvenile court alleged appellant came within the provisions of Welfare and Institutions Code section 602 because he committed two offenses, to wit: felony robbery (§ 211) and felony assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)). Both counts further alleged the violations were committed to benefit a criminal street gang. (§ 186.22, subd. (b)(1).)
The court found both allegations and enhancements true and ordered appellant committed to the California Youth Authority for a term not to exceed eight years: five years for robbery with an additional three years for the gang enhancement. The court ordered a three-year concurrent term for the assault, with a stayed gang enhancement term.
SUFFICIENCY OF EVIDENCE TO ESTABLISH ROBBERY **
GANG ENHANCEMENT
Section 186.22, subdivision (b)(1) provides:
"[A]ny person who is convicted of a felony 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, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the court's discretion."
Section 186.22, subdivision (f) defines a criminal street gang. In re Nathaniel C. (1991) 228 Cal.App.3d 990, 279 Cal.Rptr. 236 (Nathaniel C.) separates out the four elements required by the definition:
(228 Cal.App.3d at p. 1000, 279 Cal.Rptr. 236; italics original, underscoring added.)
Appellant argues the record fails to prove the gang enhancement allegations against him in two respects: (1) it lacks the element designated as No. 4 by the Nathaniel C. court, because only the current offenses establish a pattern of gang activity, and (2) it lacks the element designated as No. 2, because the prosecutor failed to prove one of the primary activities of his gang was the commission of certain enumerated crimes.
To establish a pattern of criminal gang activity, the prosecution must prove gang members individually or collectively committed two or more of the twenty-three offenses set forth in section 186.22, subdivision (e). Appellant contends the evidence is insufficient because only the current offenses establish that pattern. We disagree.
Recent case law holds current offenses will suffice to establish a pattern of criminal activity. Of course, whether the offenses relied upon are current or past, they must be of the type listed within the statute. (Nathaniel C., supra, 228 Cal.App.3d at p. 1003, 279 Cal.Rptr. 236, italics added.) Use of the current offense for the purpose of establishing a pattern has been uniformly upheld and approved. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1383, 37 Cal.Rptr.2d 596; In re Lincoln J. (1990) 223 Cal.App.3d 322, 328, 272 Cal.Rptr. 852; In re Jose T. (1991) 230 Cal.App.3d 1455, 1463, 282 Cal.Rptr. 75.) Here, the prosecution adequately established a pattern of criminal activity by proving the commission of both the robbery and the assault with a deadly weapon. They were committed during a single incident involving multiple participants and both are offenses that may be used to prove a pattern of criminal gang activity. (§ 186.22, subds. (e)(1) and (e)(2).)
Appellant also challenges the sufficiency of the evidence proving one of the primary activities of his gang is criminal conduct of the type described in section 186.22, subdivision (e). 2 Case law is unclear what type of evidence is necessary to prove this element of the statute.
Our analysis begins with People v. Gardeley (1996) 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713. Gardeley was convicted of attempted murder and assault with a deadly weapon. The jury also found the crimes had been committed to benefit a criminal street gang, thus triggering imposition of the gang enhancement. On review, the Supreme Court found the prosecution adequately proved a pattern of criminal gang activity by reference to the current offenses--just as we did in subpart A, above. To establish primary activity, however, the court apparently disregarded the current offenses and turned instead to the sufficiency of the testimony of Detective Boyd, an expert on gang activity who interviewed Gardeley.
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