In re I.M.

• Decision Date: 20 January 2005
• Docket Number: No. A105503.,A105503.
• Citation: 125 Cal.App.4th 1195,23 Cal.Rptr.3d 375
• Parties: In re I. M., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. I. M., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

23 Cal.Rptr.3d 375

125 Cal.App.4th 1195

In re I. M., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. I. M., Defendant and Appellant.

No. A105503.

Court of Appeal, First District, Division 1.

January 20, 2005.

Rehearing Denied February 15, 2005.

Review Denied May 11, 2005.^*

Irma Castillo, Counsel for Defendant and Appellant.

Bill Lockyer, Attorney General, Christopher Grove, Deputy Attorney General, Counsel for Plaintiff and Respondent.

STEIN, J.

On July 11, 2003, a Welfare and Institutions Code section 602 petition was filed against defendant I. M., then 15 years old, alleging that he had acted as an accessory after the fact in connection with a murder. (Pen.Code, § 32.) The petition also contained the enhancing allegation that defendant had committed the offense with the specific intent to benefit, promote, further or assist the unlawful conduct of a criminal street gang. (Pen.Code, § 186.22, subd. (b)(1).) The juvenile court found the petition's allegations to be true, placed defendant on probation, and committed him to the Orin Allen Youth Rehabilitation Facility for 270 days. In addition, as a further condition of probation, the court ordered defendant to pay $15,184.43 in restitution to cover the expenses for the victim's funeral.

This appeal followed.

EVIDENCE

Evidence of Shootings and Defendant's Arrest

Thomas B. testified that on June 4, 2003, he and his friend Jorge H. were hanging out in a park, talking and drinking. At some point, several people came up to them to talk in a friendly manner and shake hands. At about 8:00 p.m., they left their bottles at the bench, or threw then away, and began to walk through the park to a store. Thomas noticed two individuals running, or walking quickly, towards them. Thomas heard someone talk or yell something in Spanish. One of the individuals, later identified as Victor C., said something along the lines of "Sur Trece," and put up his hands as if he wanted to fight. The two individuals moved together. Victor pulled a gun partway out of a backpack. Thomas said something along the lines of "What, you can't fight like a man, one on one?" Victor responded by pulling the gun all the way out of the backpack and shooting Thomas, hitting him in the arm. Thomas and Jorge turned and began to run, Jorge right behind Thomas. Thomas looked back. Jorge was lying on the ground and Victor and the other individual, defendant, were running side-by-side out of the park.

On the evening of June 9, Detective Eric Nilsson was involved in a forced entry into Victor's residence, a trailer, where he found defendant, Victor, and another young man. Police found a number of articles of clothing, writings, and other items suggesting an affiliation with the Sureños 13 street gang, including a notebook bearing the words "Ese Queso Varrio Sur Trece Richmond" and a drawing of a block of cheese with a flag on which was written "X13."

Victor admitted that he did the shooting. He told the police that Thomas walked by him and gave him a dirty look. Victor pulled out his gun and said, "Sur Trece 13 here, fool." Thomas said, "What?" and Victor responded, "What, are you a chapete?"¹ Thomas threw down his 40-ounce bottle of alcohol and challenged Victor to a fight, reaching his hand toward his waistband. Victor then pulled out his gun and fired twice towards Thomas. Victor at first said that he shot Jorge after Jorge rushed him, but later stated that he shot Jorge in the back after Jorge tried to run.

Defendant's statements

Defendant at first gave the police a false name, telling them his true name only after Detective Nilsson told him that there was no record of anyone with the first name he gave. Defendant told the police that he used the false name because he was afraid that he was going to be arrested for his tattoos and wanted to avoid prosecution.

Defendant stated that he had been sitting with some friends at the park. Thomas and Jorge, who defendant believed to be Nortenos, walked up, said hello, and moved on. Victor arrived a short time later, seeming to be upset that defendant had been speaking with Thomas and Jorge. Victor yelled "fucking chaps" at Thomas and Jorge. Thomas and Jorge walked towards Victor. Thomas was in the lead, and was carrying a 40-ounce glass bottle in his hand. Victor walked toward the other men. Thomas threw the bottle onto the ground, and reached into his waistband area as if to pull out a gun. Victor pulled a gun out of his backpack and fired two or three shots at Thomas, who ran off. Jorge, who had not run, raised his hands, saying, "Hey, I have no problem," turned around and started to walk away. Victor then fired one to two shots into Jorge's back. Defendant had a pellet gun in a bag that he was carrying, but he never pulled it out.

Defendant and Victor ran out of the park together. Victor handed the gun and the backpack to defendant. Defendant put the gun in the backpack and ran with it. They reached a parking lot, where Victor grabbed the backpack, pulled out the gun and pointed it at someone who was following them, saying, "Get back" or "You want some?" Defendant and Victor ran off in different directions. Defendant went to Victor's trailer. Victor showed up about 30 minutes later.

Defendant admitted that he was a member of the Sureno gang, explaining that he belonged to the Richmond Sur Trece subset of that gang, and that his gang nickname was "Queso." Victor belonged to the Mexican Locos, another subset of the Sureno gang that got along with the Sur Trece gang. Defendant told the police that he felt a close, brother-like relationship with fellow gang members.

Physical Evidence

The physical evidence was inconsistent with the statements by defendant and Victor that suggested that Thomas acted in a threatening manner by throwing down his beer bottle and reaching towards his waistband. The only bottle found in the general area was a plastic soda bottle which police collected from a picnic area approximately 20-25 feet away.

Evidence of Street Gang Culture and Habits

The prosecution's theory was that both Victor and defendant were members of the Sureno street gang, and that the shootings were gang related. Harold Keck, a Contra Costa County probation officer and an expert on the culture and habits of criminal street gangs, testified in support of this theory. Officer Keck explained that the number 13, or the word "trece," is an identifier used by the Sureño street gang. The Surenos also identify with the color blue or some other dark color. Mexican Loco (ML) and Richmond Sur Trece (RST) are subsets of the Sureños, and it is not unusual to find MLs and RSTs together.

Violence is a primary activity of the 13 Surenos. Violent acts demonstrate the strength of the gang, and members will commit violent acts as a means of obtaining "stripes," which signify status within the gang. In order to earn a stripe, a member not only has to commit a violent act, but has to commit it in the presence of another gang member. The other gang member is supposed to provide assistance to the member committing the violent act, and is supposed to do whatever he can to prevent the offender from being criminally prosecuted for the offense. A member gains respect within the gang by lying to the police, fabricating defenses misidentifying people, hiding evidence or aiding in the escape of a gang member who commits a crime.

Officer Keck stated his opinion that defendant is a member of the 13 Sureno gang, basing that opinion on defendant's tattoos, his associations and his statements. The notebook recovered from Victor's trailer indicated that the owner identified himself as "queso," or "cheese" and as a member of the Sureno 13 gang.

June 9 Incident

On June 9 (the same day that defendant and Victor were arrested), Detective Nilsson was in an unmarked vehicle near a market in San Pablo, when he noticed a wall with red graffiti painted over with blue and black graffiti. The blue and black graffiti included the number 187, the words, "kill a slob,"² "sur 13," "187 on Chaps" and "ML." Three Hispanic males, wearing blue, were walking on the side of the street across from the wall. Two black males were walking on the same side of the street as the wall. They started looking at the graffiti. The Hispanic males held up their hands with one finger showing on one hand, and three on the other, and started yelling "Sur Trece" and "slob." Detective Nilsson approached. Two of the Hispanic males ran off. Detective Nilsson made contact with the third. As they were speaking, defendant approached, asking, "Why are you messing with my homeboy?" Defendant gave the detective a false name and birthdate. He had "RST" tattooed on his left hand, and told the detective that he had been a Sureno for about three years.

DISCUSSION

I. Corpus Delicti

Defendant contends that his conviction violates the corpus delicti rule.

"Distilled to its essence, the corpus delicti rule requires that the prosecution establish the corpus delicti of a crime by evidence independent of the defendant's extrajudicial inculpatory statements before he or she may be held to answer a criminal complaint following a preliminary examination, be convicted of an offense, or hear the statements repeated as evidence in court. [Citation.] The corpus delicti in turn consists of at least slight evidence that somebody committed a crime." (People v. Ochoa (1998) 19 Cal.4th 353, 450, 79 Cal.Rptr.2d 408, 966 P.2d 442.) The rule in California is that the prosecution cannot meet its burden of proving the corpus delicti of a crime by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, 119 Cal.Rptr.2d 903, 46 P.3d 372.) Appellate courts, therefore, have entertained direct claims that a conviction cannot stand because the trial court lacks independent evidence of the corpus delicti. (Id. at p. 1170, ...