Jose T., In re
| Decision Date | 05 June 1991 |
| Docket Number | No. B048457,B048457 |
| Citation | 230 Cal.App.3d 1455,282 Cal.Rptr. 75 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of JOSE T., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. JOSE T., Defendant and Appellant. |
Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., and Zaven V. Sinanian, Deputy Atty. Gen., for plaintiff and respondent.
In this juvenile court case, we are asked to decide whether there was sufficient evidence to sustain a petition as to a robbery allegation and to support a finding that a criminal street gang sentence enhancement was true. We conclude that substantial evidence exists to support both the robbery allegation and the criminal street gang enhancement.
After an adjudication, the juvenile court sustained a petition as to attempted murder and robbery. It also found to be true a criminal street gang sentence enhancement under Penal Code section 186.22, subdivision (b)(1), part of the California Street Terrorism Enforcement and Prevention Act (Pen.Code, § 186.20 et seq.). 1 Appellant, a minor, was committed to the California Youth Authority for a maximum period of nine years for the attempted murder, plus two years consecutive for the criminal street gang sentence enhancement, for a total of eleven years. The term on the robbery allegation was stayed pursuant to section 654. Appellant received 82 days of pre-disposition credit. Appellant appeals from the order and judgment of the juvenile court declaring him to be a ward of the court, under section 602 of the Welfare and Institutions Code.
At approximately 1:30 a.m., on September 26, 1989, John Cooper was at a market buying milk. At the same time, appellant and Antonio D., who are members of the Florencia Treca gang, and other members of the Florencia Treca gang were driving nearby when they saw Cooper getting into his 1985 silver Toyota Celica. Appellant saw one of the other gang members give Antonio D. a gun. As Cooper left the market, Cooper saw Antonio D. and appellant running across the parking lot wearing white T-shirts and Levis. Cooper entered his parked car on the driver's side and placed his key in the ignition when he heard a tap on his window. Cooper looked up and saw Antonio D. with a loaded gun standing next to the driver's window.
Antonio D. gestured with his hand at Cooper to get out of the car. Cooper rolled down the window and gave Antonio D. some change. Cooper rolled the window back up. Antonio D. took the change and continued to gesture at Cooper, motioning him to get out of the car. Cooper told Antonio D. that he had no money and hesitated in getting out of the car.
Antonio D. again gestured to Cooper to get out of the car and told Cooper that he wanted Cooper's car. Antonio D. ordered Cooper to get out of the car and leave his keys in the ignition. When Cooper still hesitated, Antonio D. cocked the gun and pointed it at Cooper. Cooper began to get out of the car. Antonio D. pointed the gun away from Cooper and Cooper hesitated again. Antonio D. pointed the gun at Cooper a second time. Cooper finally got out of the car and gave his keys to Antonio D.
This encounter lasted approximately five minutes. During that entire time, appellant stood beside the passenger's window. Cooper ran to call the police and heard his car start up. Appellant and Antonio D. got in the car and drove off. Later that morning, they picked up Ignacio G., also a member of the Florencia Treca gang.
At approximately 8:00 a.m., Jose M., a member of the Florencia Treca gang, met appellant, Ignacio G. and Antonio D. at a local park. Appellant gave Jose M. the keys to Cooper's Toyota Celica. Jose M. drove off in the car with Antonio D. and a third gang member. They drove to John Muir Junior High School where Antonio D. shot and killed Donald Alvarado, a member of a rival gang, the Street Villains.
At approximately 10:00 a.m., Alberto Avila was walking with his girlfriend behind Bethune Junior High School. Avila is a member of the Carnales gang, a rival gang to Florencia Treca. Cooper's Toyota Celica, driven by appellant, passed by and Ignacio G., sitting in the back seat, made the sign of the Florencia Treca gang out the window. The car made a U-turn and drove slowly alongside Avila. Antonio D., who was riding in the front passenger seat, shouted, An tonio D. took out a gun and shot the gun five or six times, hitting Avila in the arm.
At approximately 1:00 p.m., Officer Dennis Kato saw Cooper's Toyota Celica in the parking lot of a local park. Appellant was trying to get out of the car on the driver's side. Officer Kato saw ammunition and six spent casings in the car. Officer Kato detained appellant.
Florencia Treca, also known as Florencia 13, is a county-wide Hispanic gang whose main area is located east of Central Avenue between Slauson and Florence Avenues. Gang members frequently congregate at Harvard Park located on Halldale Street between 59th and 62nd Streets. The gang has a sign which is an inverted "F." Gang members have been involved in murders, attempted murders, drive-by shootings, robberies, thefts, burglaries, rapes, vandalism, and assaults.
Appellant's contention that there was insufficient evidence that he was an aider and abettor to the robbery is meritless.
In reviewing the sufficiency of the evidence on appeal, the appellate court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)
An aider and abettor is one who acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.) Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287, 42 Cal.Rptr. 676.)
On the date in question, appellant, Antonio D. and other members of the Florencia Treca gang were driving around when they saw Cooper getting into his car. One of the other gang members gave Antonio D. a gun. Appellant knew that Antonio D. had a gun. Antonio D. and appellant approached Cooper when Cooper was seated in his car. Antonio D. stood by the driver's window. Appellant stood beside the passenger's window. Antonio D. pointed the gun at Cooper and ordered him to get out of his car and leave the keys. Cooper left the car and Antonio D. and appellant drove off in it. The encounter with Cooper lasted approximately five minutes. Later that day, appellant was driving Cooper's car at the time of the drive-by shooting of Avila. The juvenile court found that the car was stolen for the purpose of the drive-by shooting. Appellant was driving Cooper's car at the time of his arrest. Earlier, appellant also gave the keys of the vehicle to Jose M. 2
The evidence establishes that appellant was not merely "present" at the scene of the robbery but instead acted with the requisite knowledge of criminal purpose and intent, and as an aider and abettor, acted in facilitating the robbery of Cooper. We conclude that the evidence was sufficient to support the sustaining of the petition as to the robbery allegation.
The juvenile court found that the attempted murder of Avila was "committed 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" within the meaning of section 186.22, subdivision (b)(1). Appellant contends that the evidence is insufficient to support this finding.
A "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [the offenses specified in § 186.22, subdivision (e) ] which has a common name or common identifying sign or symbol, whose members individually or collectively engage in ... a pattern of criminal gang activity." (Pen.Code, § 186.22, subd. (f).)
Section 186.22, subdivision (e), defines a "pattern of criminal gang activity" as "the commission, attempted commission, or solicitation of two or more of the following offenses, provided at least one of those offenses occurred after [September 26, 1988, the effective date of the statute] and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons." Included in the offenses specified in section 186.22, subdivision (e), are robbery and unlawful homicide.
In order for a criminal street gang sentence enhancement to be found true, there must be substantial evidence to support a finding of the existence of a "criminal street gang" whose members engage in a "pattern of criminal gang activity." (In re Lincoln J. (1990) 223 Cal.App.3d 322, 272 Cal.Rptr. 852; In re Leland D. (1990) 223 Cal.App.3d 251, 260, 272 Cal.Rptr. 709.)...
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