In Re: Walter v. The People

Decision Date06 June 2001
Citation89 Cal.App.4th 946,107 Cal.Rptr.2d 752
CourtCalifornia Court of Appeals Court of Appeals
Parties(Cal.App. 2 Dist. 2001) In re WALTER S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. WALTER S., Defendant and Appellant. B144386 SECOND APPELLATE DISTRICT DIVISION TWO Filed

(Los Angeles County Super. Ct. No. YJ19704)

APPEAL from orders of the Superior Court of Los Angeles County. Robert D. Mackey, Judge. Order of wardship affirmed. Dispositional order modified and affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan D. Martynec and Scott J. Quan, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

BOREN, P.J.

Walter S. appeals from the order declaring him a ward of the court (Welf. & Inst. Code, 602) by reason of his possession of a sawed-off shotgun (Pen. Code, 12020, subd. (a)(1)) for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)). He also appeals from the dispositional order placing him in a camp-community-placement program with physical confinement not to exceed six years and ordering him to make restitution to the person in whose stolen car appellant possessed the shotgun and to register pursuant to Penal Code section 186.30 as a gang offender.

Appellant contends (1) that there was insufficient evidence to support the finding that he possessed the sawed-off shotgun with the specific intent to promote, further, or assist any criminal conduct by gang members; (2) that the provision in Penal Code section 186.32, subdivision (a)(1)(C) that a juvenile required to register as a gang offender must sign a written statement "giving any information that may be required by the law enforcement agency" is unconstitutionally vague; (3) that the same provision is overbroad because (a) it violates the right of privacy under the California Constitution, (b) it violates the First Amendment right to freedom of association, and (c) it violates the privilege against self-incrimination; (4) that the registration requirement constitutes cruel or unusual punishment in violation of the California Constitution; (5) that the registration order and use of the gang enhancement to calculate appellant's maximum period of confinement constitute multiple punishment in violation of Penal Code section 654; and (6) that the trial court erred in ordering appellant to make restitution to the victim of the car theft.

FACTS

Ovidio Rivas Rauda (Rivas) testified that about 2:40 a.m. on June 30, 2000, when he was sitting in his car in his garage in Northridge, a car drove by and stopped. Two people got out. Both people approached Rivas. Rivas noticed that one of the people was male. The male pointed a gun at Rivas. One of the people said, "[']I need your car.[']" The male placed the gun against his shoulder and held the end of the gun with his other hand. Rivas was ordered out of his car. He got out of the car, leaving the engine running. Rivas was then told to hold onto the posts of the garage and not to move. Rivas's wallet, which contained about $50, was taken, and his car was driven away. When Rivas got his car back, the steering column was damaged, the windshield was cracked, the car was dented, and Rivas's tools, cassettes, lamp, briefcase, and eyeglasses were missing.

Rivas had to pay $300 to get the steering column repaired, and he received an estimate that repairs for the other damage would cost about $800. Rivas's tools were worth about $700. Rivas lost wages because of the car theft, and he had to pay $225 to get his car "out of impound." His total loss was $2,700.

Inglewood Police Officer Marie Becerra testified that about 6:17 p.m. on June 30, 2000, she saw appellant and Steven P.-G. driving by in Rivas's car. Appellant, the passenger, waved at Officer Becerra and her partner. Officer Becerra's partner began to make a U-turn to stop Steven and appellant for not wearing seatbelts. Steven accelerated at a high speed and ran a stop sign. The vehicle stopped in the middle of the road, and Steven and appellant ran in opposite directions. A sawed-off shotgun was on the floorboard in the front on the passenger side, and a red rag was wrapped around a broken steering column.

After appellant was arrested, he was advised of and waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Appellant said that Steven, also known as Little Payaso, was the driver. Appellant was not involved in the taking of the car. He knew, however, that Malditos gang members had taken the car. Appellant is a member of the Malditos gang, and he is also known as Toker. About 12:30 p.m. on June 30, 2000, when appellant was in front of his home in Inglewood, Steven drove up in the car. A group of Malditos gang members were in the car with Steven, and appellant got into the car and "went cruising around." The shotgun was already in the car. Later, other homeboys got out of the car until Steven and appellant were the only occupants. The shotgun belonged to appellant's homeboy Oso.

Officer Becerra's partner, Inglewood Police Officer Marya Kametani, testified that after appellant was advised of and waived his rights under Miranda, appellant said that Little Payaso had asked appellant to use the shotgun to "blast" the officers. Appellant had then been holding the shotgun between his legs. Appellant decided not to shoot the officers, because he was afraid that, if he did so, he would be killed. He therefore told Little Payaso, "[']Let's just run.[']"

Officer Kametani checked the shotgun and noted that the safety was off and that there were two ".00 shotgun rounds" in the chamber. Those shotgun rounds are extremely powerful.

Inglewood Police Detective Nelson Arriaga, a gang expert, testified that the Malditos gang is a Hispanic gang in Inglewood, Lancaster, and Long Beach with about 200 members. The Malditos gang is involved in many crimes, including robberies, murders, attempted murders, narcotics deals, weapons violations, carjackings, and other auto thefts. One Malditos member, Alberto M., also known as Droopy, has two brothers who are Malditos gang members and have been arrested on at least two occasions for narcotics and assault weapons violations. In March 2000, it was adjudicated that he possessed cocaine base for sale. Saul R., another Malditos gang member, was adjudicated to have committed attempted murder. Appellant and Steven had admitted to Officer Arriaga that they are Malditos gang members.

The prosecutor asked Detective Arriaga to assume the following facts: About 2:40 a.m. on June 30, 2000, two people believed to be Malditos gang members used a sawed-off shotgun to take a vehicle from a male. About 6:17 p.m. that same day, two Malditos gang members who knew the car had been carjacked by fellow Malditos gang members drove by the police in that vehicle, and the passenger waved at the police. When the police followed the vehicle, the driver sped away and ran a stop sign. The driver told the front seat passenger to take the sawed-off shotgun in his lap and "blast" the officers. The passenger suggested that they run instead. There was a red bandanna wrapped around a broken steering column.

Assuming those facts to be true, Detective Arriaga opined that the driver took the vehicle in association with, at the direction of, or for the benefit of the Malditos gang, because the driver and passenger were active participants in the gang.

The prosecutor then asked Detective Arriaga to assume that the front seat passenger held the shotgun and disobeyed a command to "blast" the officers. Detective Arriaga opined that, under those circumstances, the passenger possessed the sawed-off shotgun in the presence of other Malditos gang members in association with, at the direction of, or for the benefit of the Malditos gang despite the passenger's refusal to shoot the officers, because the passenger participated in and associated with the gang and the possession benefited him by earning him respect from fellow gang members.

The court received in evidence by reference certified court documents reflecting a finding that Saul R. was declared a ward of the court (Welf. & Inst. Code, 602) because he committed attempted murder in 1999 and a finding that in another case Alberto M. was declared a ward of the court (ibid.) because on February 18, 2000, he possessed cocaine base for sale, possessed marijuana or hashish for sale, and committed firearm offenses.

DISCUSSION
1. Substantial Evidence That Appellant Possessed the Sawed-off Shotgun to Promote, Further, or Assist Criminal Conduct by Gang Members

We view the evidence in the light most favorable to the juvenile court's findings. (In re Dennis B. (1976) 18 Cal.3d 687, 697.) So viewed, the evidence that appellant held a loaded sawed-off shotgun between his legs while riding with another Malditos gang member in a car appellant knew had been carjacked earlier that day by Malditos gang members and Detective Arriaga's testimony constitute substantial evidence that appellant possessed the sawed-off shotgun for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. (See People v. Ortiz (1997) 57 Cal.App.4th 480, 484-485; In re Ramon T. (1997) 57 Cal.App.4th 201, 207-208; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1383.)

2. Vagueness

Penal Code section 186.30 was added by the initiative measure Proposition 21 in the March 7, 2000, Primary Election (Proposition 21).1 Penal Code section 186.30 provides in pertinent part that a minor who has had a petition sustained in ...

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1 cases
  • In re Walter S., B144386.
    • United States
    • California Court of Appeals Court of Appeals
    • June 6, 2001
    ... 107 Cal.Rptr.2d 752 ... 89 Cal.App.4th 946 ... In re WALTER S., a Person Coming Under the Juvenile Court Law ... The People", Plaintiff and Respondent, ... Walter S., Defendant and Appellant ... No. B144386 ... Court of Appeal, Second District, Division 2 ... June 6, 2001 ... As Modified on Denial of Rehearing July 2, 2001 ... Review Granted September 19, 2001 ... [107 Cal.Rptr.2d 754] ...      \xC2" ... ...

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