Nathaniel C., In re
| Citation | 228 Cal.App.3d 990,279 Cal.Rptr. 236 |
| Decision Date | 22 March 1991 |
| Docket Number | No. A049524,A049524 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re NATHANIEL C., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. NATHANIEL C., Defendant and Appellant. |
Paula W. Schlichter, San Mateo, under appointment by the Court of Appeal, for defendant and appellant.
Renee L. Berenson, San Mateo, under appointment by the Court of Appeal, John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Violet M. Lee, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Appellant challenges the sufficiency of the evidence to sustain the findings in his juvenile court proceeding. The court found appellant conspired to violate Penal Code sections 240 (assault), 245 (assault with a deadly weapon), and 415, subdivision (1) (). 1 The overt act alleged and found was that appellant entered a van with members of a gang and traveled to a park to fight a rival gang. 2 The court also found the evidence supported a sentence enhancement allegation under section 186.22, subdivision (b), part of the California Street Terrorism Enforcement and Protection Act, section 186.20 et seq., enacted to deal with criminal street gang activity. 3 Appellant was adjudged a ward of the court but was allowed to remain in his parents' home under a probation officer's supervision. No enhancement was imposed under section 186.22, subdivision (b).
We find that substantial evidence supports the conspiracy and overt act findings. However, the evidence failed to establish all of the elements required by section 186.22, the criminal street gang enhancement. Therefore, the finding on the enhancement is reversed, and the judgment is affirmed in all other respects.
Appellant asserts there was insufficient evidence to support the findings. Therefore, we have reviewed the whole record in the light most favorable to the judgment, and presume every fact reasonably deducible from the evidence in support of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) The conclusions of a trier of fact are upheld if supported by substantial evidence, evidence that is reasonable, credible, and of solid value. (Id., at pp. 576, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) Circumstantial evidence can, of course, constitute substantial evidence. (In re Andre R. (1984) 158 Cal.App.3d 336, 343, 204 Cal.Rptr. 723.)
On the evening of October 12, 1989, a group of juveniles traveled by van to a dance at South San Francisco High School. The group included members of a gang known as the "Tongan Family," or just the "Family" (Family). On the way to the dance, there was talk in the van about finding members of a rival gang, known as the "B-Wingers" or "South City Boyz [sic ]" (B-Wingers), and whether they would be at the dance. There also was a lot of talk that if the B-Wingers got caught, there was going to be a fight. As one admitted Family member testified: "Everybody knew what was going on and stuff." They wanted to fight that night because they believed B-Wingers had recently stabbed a Family member. The gang member who had been stabbed also was in the van. Before the group went to the dance, two baseball bats and a stairway handrail segment three and one-half feet long were put in the van.
No B-Wingers were found at the dance or at the school. But the group, which had grown to 18 people, heard that B-Wingers were at Cypress Park. Appellant joined the assembled group, which decided to go to the park. Eleven people, including appellant, got in the van, and six more got in an accompanying car to go find the B-Wingers at the park. In the van, the stabbing incident was recounted, and there again was talk about fighting and beating up the B-Wingers to get even for the stabbing. Appellant rode in the van to the park. The group in the van included at least two Family members, and at least one Family member was in the car.
Before leaving for the park, the group concocted a plan to attack any B-Wingers found there. The plan was also reviewed en route. The van dropped off three groups, one at each end of the park and one in the middle. The group in the car proceeded to the other side of the park from the van. This deployment was intended to catch any B-Wingers who tried to escape.
The second and third groups from the van saw B-Wingers and chased them. One group from the van was dropped off about thirty feet away from several B-Wingers. Two members of this group were armed with the baseball bats from the van, and a member of the Family was armed with the handrail piece. They got out of the van to beat up the B-Wingers they saw, and the Family member would have used the handrail to do it if he had caught them. They chased the B-Wingers until one of the B-Wingers turned and pointed what looked like a gun at them, which prompted a retreat.
After the last chase, the various groups got back into the van, including one Family member who went to the park in the car. An officer summoned to the scene by a report of gang violence stopped the van nearby. Appellant was arrested along with the other van occupants.
Appellant did not testify at the hearing on the petition, and no witness attributed any incriminating statements to him. The court stated the evidence did not prove appellant got out of the van at the park to fight, or that he chased and attempted to fight the B-Wingers. 4
To establish the elements of the enhancement charge, the prosecution relied primarily on the testimony of an expert witness, a South San Francisco police officer responsible for maintaining gang activity intelligence reports. 5 Other evidence regarding the enhancement charge came from juvenile witnesses concerning the Family and the October 12 incident.
One admitted member of the Family testified that the gang resorted to violence when it chose, committed crimes if pushed, and "... turned into a real big gang" if there was a fight. Another witness, whose brother was in the gang, testified that when a gang member was hurt, "they go down and hurts [sic ] the person that hurts them." This would-be gang member also said a roll of gang members was written on a friend's wall.
The officer stated the primary activity of all gangs in his area was criminal, including assaults and batteries, weapons possession offenses, assaults with deadly weapons, resisting or obstructing police, and fighting. However, the Family was based in San Bruno rather than South San Francisco.
In the officer's opinion, the Family was an active gang having more than three members. The officer believed that four or five boys attending South San Francisco High School were or had been members. There was no particular color or clothing that identified a Family member, though there were some graffiti that signified the gang. Members of the B-Wingers told him they disliked the Family because they had been "jumped" by Family members at a shopping center in San Bruno.
The officer testified that since January 1, 1988, the Family was responsible for an assault with a deadly weapon case, and that another such offense was committed by the Family during the two years he had handled gang intelligence. The officer did not know of any convictions for these offenses, and his information about them was obtained from police reports.
One of the assaults the officer attributed to the Family was the October 12 incident in Cypress Park. The officer learned about the other assault from talking with San Bruno police officers. There was more than one suspect in this latter assault, which occurred after the October 12 events. The incident involved the shooting of a person the San Bruno police believed to be a member of the Family, according to the officer. The officer said the San Bruno police believed the person that did the shooting also was a Family member, and that the shooting was gang-related.
A criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement. (§§ 182, 184; People v. Cockrell (1965) 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116.) Appellant asserts there was no substantial evidence that he was a party to such an agreement. Appellant argues that the conspiratorial agreement to fight the B-Wingers and the planning for the assault occurred before he got in the van. Appellant claims there is no evidence of such discussions in his presence, or that he had any interest or participation in committing the offenses. However, to buttress his position, appellant presents a selective view of the evidence and disregards the reasonable inferences supporting the judgment.
We are not free to follow appellant's carefully winnowed approach to the evidence. We must review the entire record in the light most favorable to the judgment. Whether the evidence is direct or circumstantial, our inquiry is to determine if any reasonable trier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Towler (1982) 31 Cal.3d 105, 118-119, 181 Cal.Rptr. 391, 641 P.2d 1253.) An appellate court's belief that the circumstantial evidence can reasonably be reconciled with innocence does not warrant interference with the determination of the trier of fact. (Id., at p. 118, 181 Cal.Rptr. 391, 641 P.2d 1253.) Under these rules, we believe that the evidence is contrary to the view espoused by appellant.
Circumstantial evidence often is the only means to prove conspiracy. (People v. Osslo (1958) 50 Cal.2d 75, 94, 323 P.2d 397; People v. Kobey (1951) 105 Cal.App.2d 548, 562, 234 P.2d...
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