In re Adrian R.

• Decision Date: 22 October 2002
• Docket Number: No. H022999.,H022999.
• Citation: 127 Cal.Rptr.2d 211,103 Cal.App.4th 1046
• Parties: In re ADRIAN R., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Adrian R., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

127 Cal.Rptr.2d 211

103 Cal.App.4th 1046

In re ADRIAN R., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Adrian R., Defendant and Appellant.

No. H022999.

Court of Appeal, Sixth District.

October 22, 2002.

As Modified November 21, 2002.

Review Granted January 22, 2003.

Mitri Hananis, under appointment by the Court of Appeal, for Appellant: Adrian R.

Bill Lockyer, Atty. Gen., Robert R. Anderson, Chief Asst. Atty. Gen., Ronald A. Bass, Senior Asst. Atty. Gen., Gerald A. Engler, Supervising Deputy Atty. Gen.,

George F. Hindall III, Deputy Atty. Gen., for Respondent: The People.

BAMATTRE-MANOUKIAN, Acting P.J.

Minor Adrian R. was charged along with two other juveniles with committing misdemeanor "ASSAULT AND BATTERY for the benefit of, at the direction of or in association with a criminal street gang in violation of section 186.22(d) of the Penal Code" on March 6, 2001. After a jurisdictional hearing, the court sustained the assault charge as to all three juveniles and continued minor as a ward of the juvenile court.

At the dispositional hearing, the court placed minor with his grandparents and imposed a number of probation conditions, including the following: no contact with the other two juveniles involved in the offense or the victim; "you are not to be present at any known gang gatherings, ... You're not to be around anyone whom you know is in a gang." Over minor's constitutional objections, the court found that the crime was gang-related and it ordered minor to register pursuant to Penal Code sections 186.30 and 186.32.

On appeal minor contends that the gang registration statutes are unconstitutional. He contends the initiative that enacted them violated the single-subject rule. He also contends the statutes are vague and overbroad and infringe on his rights to due process, privacy, free speech, association, and counsel and his protections against self-incrimination, unreasonable search and search, and cruel and unusual punishment. For the reasons stated below, we will affirm the dispositional order after adopting a narrowing construction of the statutes.

THE OFFENSE

On March 6, 2001, Gerardo M., took the school bus home from Aptos High School. He got off the bus at H.A. Hyde, an elementary school in Watsonville near a Department of Motor Vehicles (DMV) office.

According to Deputy Sheriff Raymond Hernandez, a gang expert, the bus stop is in the middle of a Norteño neighborhood. Hernandez can tell by the graffiti and by Norteñno crimes in the neighborhood. Norteñnos and Surenos are rival Hispanic gangs in prison and on the streets who fight for territory. Aptos High School has a reputation for being a Sureno school.

As Gerardo walked home with his friend, Miguel, a group of four or five guys walked after them. As Gerardo crossed the street, one of the guys yelled, "Norte Califas.... [¶] We go down [¶] Right here for it." Someone yelled, "Puro Norte," and, "This is our barrio. Here everything goes for Norte." They asked Gerardo to approach. He responded that he claimed nothing and did not care. He was telling them that he was not related to a gang.

Gerardo continued to walk away. He ran when he saw them running after him. Gerardo went into the DMV office for safety and looked back at the juveniles. Gerardo called his mother from the DMV office. When he got home they called the police.

Later that day a police officer apprehended four juveniles meeting Gerardo's description. Gerardo identified three of them in the field as among his pursuers, including minor, Luis E., and Albert R. Gerardo recognized Albert R. from Aptos High.

According to gang expert Hernandez, the words used amounted to gang challenges claiming the area for Norteños and asking Sureños to fight. A gang member cannot back down from a challenge. A gang member cannot refrain from aiding a fellow gang member in a fight.

According to Hernandez, minor is a documented member of a gang called Clifford Manor Locos (CML), one of a number of Watsonville Norteno gangs. Minor was involved in a misdemeanor assault two or three blocks away at the end of the prior year. Minor and another individual approached a fellow who was walking home to Clifford Manor Apartments from the Aptos High bus stop. They asked him what he claimed. He said, "Nothing." He was beaten, kicked, and stabbed with a pen, while they said, "It's all about CML" and "Norte."

According to Hernandez, different Norteños gangs used to fight with each other, but a few years ago the word came down from the prison gangs that all Norteños should get along. Now members of different Norteño gangs commit joint assaults on perceived Sureños. Albert R. belongs to Watsonville Varrio Norte (WVN), another Norteño gang. Luis E. is a Norteño associate.

According to Hernandez, assaulting perceived Sureños is a primary activity of CML. Hernandez provided evidence of an assault conviction of Sergio Hernandez, a CML member, an assault conviction of Carlos Hernandez, a CML member, and an assault conviction of Mike DeAnda, a WVN member. In Raymond Hernandez's opinion, the current crime was committed "under that umbrella for Norteño, or Norte," and specifically to benefit CML.

At the end of the dispositional hearing, the juvenile court stated, "The People have sustained their burden regarding the gang elements." The court concluded that minor had committed an assault. "[H]ad we not had the gang elements, three fifteen-sixteen-year-old individuals saying things like this without the gang overtures, it would be a completely different matter."

THE STATUTORY SCHEME

Penal Code sections 186.30 through 186.33 were enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998.¹ Upon a court's finding that a person was involved in a gang-related crime (§ 186.30, subd. (b)), the court is required to notify the person of his or her duty to register (§ 186.31) "with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first." (§ 186.30, subd. (a); cf. § 186.32, subd. (a)(1)(A).) Registration requirements are spelled out in section 186.32. The registration requirements last for five years. (§ 186.32, subd. (c).) A registrant must keep law enforcement apprised of any change of address. (§ 186.32, subd. (b).) It is a misdemeanor to knowingly violate the registration requirements. (§ 186.33, subd. (a).)

1. THE SINGLE SUBJECT RULE

Manduley v. Superior Court (2002) 27 Cal.4th 537, 117 Cal.Rptr.2d 168, 41 P.3d 3 among other things concluded that "Proposition 21 does not violate the single-subject rule, set forth in article II, section 8, subdivision (d), of the California Constitution, applicable to initiative measures." (Id. at p. 546, 117 Cal.Rptr.2d 168, 41 P.3d 3.) This answers minor's claims that the proposition violates the single-subject rule. (Id. at pp. 573-582, 117 Cal.Rptr.2d 168, 41 P.3d 3.)

2. VAGUENESS OF "GANG-RELATED" CRIMES

The statute applies by its terms to three types of crimes. Section 186.30 provides in part: "(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses:

"(1) Subdivision (a) of Section 186.22.

"(2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true.

"(3) Any crime that the court finds is gang related at the time of sentencing or disposition."

Here the juvenile court ordered registration after finding that minor's crime was a gang-related crime under section 186.30, subdivision (b)(3). On appeal minor renews his contention that "gang-related" is unconstitutionally vague. Minor argues that the word "gang" has no fixed or established meaning and means different things in different jurisdictions, thereby encouraging arbitrary enforcement.

People v. Castenada (2000) 23 Cal.4th 743, 97 Cal.Rptr.2d 906, 3 P.3d 278 explained: "Recently, the United States Supreme Court had this to say on the topic: `Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.' (Chicago v. Morales (1999) 527 U.S. 41, 56 [119 S.Ct. 1849, 144 L.Ed.2d 67].)" (Id. at p. 751, 97 Cal.Rptr.2d 906, 3 P.3d 278.) "[V]ague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." (U.S. v. Batchelder (1979) 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755.)

The word "gang" in isolation has many and varied meanings. (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453-455, 59 S.Ct. 618, 83 L.Ed. 888; People v. Lopez (1998) 66 Cal.App.4th 615, 631, 78 Cal. Rptr.2d 66.) Without further definition it may be unconstitutionally vague. (Lanzetta v. New Jersey, supra, 306 U.S. at p. 458, 59 S.Ct. 618; see People v. Lopez, supra, 66 Cal.App.4th at p. 631, 78 Cal.Rptr.2d 66.)

As we shall explain, in its statutory context "gang" in section 186.30, subdivision (b)(3) has a specific and limited meaning. We observe that the offense described in related section 186.30, subdivision (b)(1) and the enhancement described in related section 186.30, subdivision (b)(2) are concerned specifically with one type of gang, a criminal street gang. Section 186.22, subdivision (a), mentioned in section 186.30, subdivision (b)(1), prohibits active participation "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...