Lincoln J., In re

• Decision Date: 31 August 1990
• Docket Number: No. B042463,B042463
• Citation: 272 Cal.Rptr. 852,223 Cal.App.3d 322
• Court: California Court of Appeals Court of Appeals
• Parties: In re LINCOLN J., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. LINCOLN J., Defendant and Appellant.

Page 852

272 Cal.Rptr. 852

223 Cal.App.3d 322

In re LINCOLN J., A Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. LINCOLN J., Defendant and Appellant.

No. B042463.

Court of Appeal, Second District, Division 3, California.

Aug. 31, 1990.

Certified for Partial Publication ^*.

[223 Cal.App.3d 324] Paul Anthony Stabile, Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Donald E. De Nicola, Supervising Deputy Atty. Gen., and Lauren E. Dana, Deputy Atty. Gen., for plaintiff and respondent.

DANIELSON, Associate Justice.

Lincoln Rudolph J., a minor, (defendant) appeals from an order of wardship (Welf. & Inst.Code, § 602).

We reverse the order and remand the matter to the trial court for further proceedings.

ISSUES PRESENTED

This appeal presents issues of first impression with respect to the elements of the relatively new offense of participation in a criminal street gang (Pen.Code, ^{1 1} 186.22, subd. (a) (§ 186.22(a)) and the concomitant criminal street gang sentence enhancement (Pen.Code, § 186.22, subd. (b)(1) (§ 186.22(b)(1)).

FACTUAL STATEMENT

On March 28, 1989, around 3:25 p.m., the victim, Robert C., drove his sister, Jessie C., from school to Foy Park, Burbank. After he left the vehicle, a group of people approached within six feet of him carrying stick bats. He then started running towards the baseball diamond to get away from them. As he ran, a second group of people also armed with bats followed him. They stopped chasing him after seeing the people at the baseball diamond.

Robert C. could not identify defendant at trial as one of those who chased him. Jessie C. identified defendant in court as one of the group who chased Robert C. while screaming "BTR." She did not see anything in defendant's hands during that time.

At trial defendant, age 16 at the time of the charged offenses, admitted chasing Robert C. for "like a couple of seconds" before turning away; however, he explained that he did this to prevent Robert C. from hitting defendant's car and defendant with a crowbar in his hands.

After the chase, a group of people approached Robert C.'s vehicle. Jessie C., who was nearby, saw several people, including defendant, hit the vehicle. Defendant hit one window, which broke, with "a little blade" or a "crowbar." Defendant denied breaking the window and testified that it was someone else who smashed the window with a baseball bat.

PROCEDURAL STATEMENT

On April 6, 1989, a petition was filed seeking an order that defendant be declared a ward of the Juvenile Court (Welf. & Inst.Code, § 602). The petition charged six counts. Counts I-III and V were felonies while counts IV and VI were misdemeanors.

Count I charged a violation of section 245, subdivision (a)(1) (assault with a deadly weapon, i.e., bats and crowbar, and by On May 1, 1989, at the conclusion of the adjudication proceeding on the petition, the juvenile court found counts II and V to be true. The court also found to be true the criminal street gang enhancement allegation under section 186.22(b)(2) in count II.

means of force likely to produce great bodily injury) and a criminal street gang enhancement allegation under section 186.22(b)(2). Count II charged defendant with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and alleged a criminal street gang sentence enhancement under [223 Cal.App.3d 326] section 186.22(b)(2). In count III defendant was charged with a violation of section 594, subdivision (b)(2) (damage or destruction of personal property belonging to another), and in count IV he was charged with a violation of Vehicle Code section 10852 (vandalism of another's vehicle). Count V charged defendant with the substantive offense of participation in a criminal street gang (§ 186.22(a)). On count VI he was charged with a violation of section 148 (obstruction of officer).

Counts I and VI of the petition were dismissed on defendant's motion (Welf. & Inst.Code, § 701.1.) The court dismissed counts III and IV without prejudice.

On May 17, 1989, the court declared defendant a ward of the court and ordered him committed to the Department of the Youth Authority. The court ordered defendant confined for four years on the assault offense charged in count II.

On the criminal street gang enhancement allegation in count II, the court imposed an additional 180 days of custody but stayed the execution of that time.

The court imposed a three-year term with regard to the substantive criminal street gang participation offense (§ 186.22(a)) charged in count V, to be served concurrently with the term imposed as to count II.

I. Defendant's Contentions Concerning Section 186.22

Defendant challenges the sufficiency of the evidence to support the court's finding that defendant committed the offense of participation in a criminal street gang, as charged in count V (§ 186.22(a)), and the court's finding that the sentence enhancement allegation, under section 186.22(b)(2) in count II, was true.

Based on our review of the record and applicable law we find defendant's contentions to be meritorious.

DISCUSSION

A. Offense of Participation in A Criminal Street Gang (§ 186.22(a))

In Count V of the petition defendant was charged with the substantive offense of participation in a criminal street gang under section 186.22(a). Section 186.22(a) provides: "Any person who actively participates 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 felonious criminal conduct by members of that gang, shall be punished by imprisonment in the county jail for a period not to exceed one year, or by imprisonment in the state prison for one, two, or three years."

The elements of the offense of participation in a criminal street gang are: (1) the existence of a "criminal street gang"; (2) defendant's "active" participation in that gang; (3) defendant's knowledge that "its members engage in or have engaged in a pattern of criminal gang activity"; and (4) defendant's willful promotion, furtherance, or assistance "in any felonious criminal conduct by members of that gang."

1. There Was Not Sufficient Evidence to Show The Existence of a "Criminal Street Gang"

In order to establish the first element the People must prove that the group with which the defendant participated was a "criminal street gang" within the meaning of the statute which created the offense. Testimony adduced at the trial implies that the criminal street gang with which defendant actively participated was a group known as "BTR."

A "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether In this case, the People failed to establish that "BTR" was a "criminal street gang" within the meaning of section 186.22, subdivision (f) in that, as our analysis, post, reveals, there was insufficient evidence to show that "BTR" "members individually or collectively engage in or have engaged in a pattern of criminal gang activity."

formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (8), inclusive, of subdivision (e), which has a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).)

2. There Was No Evidence to Show A "Pattern of Criminal Gang Activity" By BTR Gang Within The Meaning of The Law

With respect to the first and third elements, the record is devoid of any evidence that the BTR gang members "engage in or have engaged in a pattern of criminal gang activity." A "pattern of criminal gang activity" is defined as: "the commission, attempted commission, or solicitation of two or more of the following offenses, provided at least one of those offenses occurred after the effective date of this chapter 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: [p] (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245. [p] (2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1. [p] (3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1. [p] (4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code. [p] (5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246. [p] (6) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13. [p] (7) The intimidation of witnesses and victims, as defined in Section 136.1. [p] (8) Grand theft of any vehicle, trailer, or vessel as described in Section 487h." (§ 186.22, subd. (e)(1)-(8).)

In this case, the requirement that "at least one of those offenses occurred after the effective date of this chapter [i.e., September 26, 1988]" ² is satisfied by the evidence establishing the offense charged in count II, i.e., assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), which occurred on March 28, 1989. However, there is no evidence in the record to establish this offense "occurred within three years after a prior offense" which was committed on a separate occasion, or by two or more gang members. No evidence was presented to show that members of the BTR gang had engaged in any of the eight enumerated offenses within three years previous to the charged offense.

At the...