People ex rel. Reisig v. Broderick Boys

• Decision Date: 23 April 2007
• Docket Number: No. C051707.,C051707.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. Jeff W. REISIG, as District Attorney, etc., Plaintiff and Respondent, v. The BRODERICK BOYS, Defendant, Keith Edwards et al., Movants and Appellants.

59 Cal.Rptr.3d 64

149 Cal.App.4th 1506

The PEOPLE ex rel. Jeff W. REISIG, as District Attorney, etc., Plaintiff and Respondent, v. The BRODERICK BOYS, Defendant, Keith Edwards et al., Movants and Appellants.

No. C051707.

Court of Appeal, Third District.

April 23, 2007.

David C. Henderson and Jeff W. Reisig, Yolo County District Attorneys, for Plaintiff and Respondent.

No appearance for Defendant.

ACLU Foundation of Northern California, Ann Brick, Alan L. Schlosser, San Francisco, and Jory C. Steele, for Movants and Appellants.

MORRISON, J.

By default the Yolo County District Attorney obtained a permanent injunction against The Broderick Boys, a street gang. Four men served with the injunction moved to set it aside, alleging the injunction was void for lack of proper notice. The trial court found they lacked standing to attack the injunction because they did not admit gang membership, and they appealed.

The evidence reveals a level of gang criminality plaguing West Sacramento which might well justify injunctive relief. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596.)

However, the injunction cannot stand because, under the facts of this case the district attorney failed to show that The Broderick Boys is an unincorporated association for the purpose of service (Corp. Code, §§ 18035, subd. (a), 18220) and, in any event, the district attorney did not take steps "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v. Central Hanover B. & T. Co. (1950) 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (Mullane).) It is not necessary to actually inform the other party, but the "means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (Id. at p. 315, 70 S.Ct. at p. 657; reaffirmed in Jones v. Flowers (2006) 547 U.S. 220, ___, 126 S.Ct. 1708, 1715, 164 L.Ed.2d 415, 427 (Jones).)

The district attorney served only Billy Wolfington, a single gang member of unknown rank, trusting that he would spread the word. However, when he was served, Wolfington immediately said we would not appear in the proceeding, i.e., he would not oppose the People's request for an injunction against The Broderick Boys. Under these circumstances, even if service on Wolfington complied with state law regarding service of process, the service on him alone was not reasonably calculated to apprise the gang and its other members of the pending action.

The fact appellants are not named in the complaint and did not admit membership in the gang does not mean they lack standing to challenge service. The district attorney has alleged that appellants are gang members, which is why they were served with the injunction. In fact, one appellant has been arrested for allegedly violating the injunction. California Supreme Court decisions allow a nonparty who has been "aggrieved" by a judgment to move to vacate it and appeal from the denial of that motion, thereby achieving party status. This is the procedure used by appellants in this case. Other cases explain that a nonparty served with an injunction may challenge the injunction in the court that rendered, it. Appellants were sufficiently aggrieved by the injunction served on them to confer standing to attack it.

We reverse with directions to grant the motion to set aside the judgment granting the permanent injunction.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint and Preliminary Injunction

On December 30, 2004, the district attorney filed a complaint to enjoin a nuisance, namely, The Broderick Boys, a Norteno criminal street gang, known by various aliases, alleged to be an unincorporated association. Does 1-100 were named, and the complaint described, but did not name as defendants, 10 alleged members, including "Billy Wolfington (Bouncer)." The complaint sought an injunction to create a "Safety Zone" within West Sacramento which would in part prohibit gang members and agents from associating with other "known" members and would impose a curfew on gang members, with exceptions, such as for travel to work, school and church activities.

When he filed the complaint, the district attorney also sought a preliminary injunction, supported by a request for judicial notice of criminal records of 12 alleged gang members, some of whom were among the 10 named in the complaint, including Billy Wolfington, who had been required by a court order to register as a gang member after he was convicted of drug and weapons charges.

The district attorney also submitted declarations from peace officers describing the activities of The Broderick Boys. The Evidence Code allows expert evidence on the workings and hierarchy of a gang. (Evid.Code, § 801; People v. Williams (1997) 16 Cal.4th 153, 193-194, 66 Cal. Rptr.2d 123, 940 P.2d 710; see United States v. Easter (9th Cir.1995) 66 F.3d 1018, 1020-1021.) For purposes of this appeal we accept as true the following facts.

The Broderick Boys is the largest street gang in West Sacramento, numbering over 350 members of mixed race—mostly Hispanic and Caucasian—and mixed gender, ranging in age from 12 to mid-40's. The gang is connected to the Nuestra Familia prison gang and uses the color red and certain symbols in clothing, graffiti and accessories. Its principal enemy is an affiliate of the Mexican Mafia prison gang, in the Sureno family of gangs.

The Broderick Boys has a hierarchical structure. The "foot soldiers" are typically younger men and women. Members who are a bit older and perhaps have served time for crimes, up to their mid-20's in age, are "hommies." Still older members, up to mid-30's in age, are "veteranos" who generally have families and are no longer on the street, but "they're kind of controlling and watching over things in the shadows.... [T]hey've earned the right to lean back and to supervise." "The top guys that make the major decisions, all the way up, they are ... your shot callers." Entry into the gang for males is by being "jumped in," that is, beaten up by several members; for females entry is by being "sexed [in]," that is, by submitting to sex with multiple members. Some relatives or friends of members may bypass these rituals. No nonmember would have a gang tattoo, because "that's going to get you shot or beaten or both." Members may move away and there is a procedure for "jumping out," but it is rarely used.

The declarations show that Billy Wolfington is a member of The Broderick Boys, but say nothing about his rank.

The lead investigator declared that gang members communicate by cell phones and share information about "probation searches or other police activity, or rivalries with other gangs[.]" The communications extend to members in county jail and state prison. "What I've seen is that as soon as we start hitting a specific gang with parole or probation compliance searches, at the beginning we're seeing a lot of good information, intelligence, guns, so forth, and then toward the end all of a, sudden we're coming up dry, everything is gone." "Gangsters definitely have a very active network. They let each other know if heat is coming down from police or from other gangs. You can talk to one gangster about a feud that they're having with a particular gang and go on the other side of town and run into another gangster and he'll know." "[I]f I wanted to contact [The Broderick Boys], the way I'd do it is to go out and find a gang member on the street. They'll pass the word quickly."

The declarations showed that The Broderick Boys is not registered as a California corporation, limited liability company or partnership, and it has no address.

A declaration from District Attorney Jeff W. Reisig, then a deputy district attorney, describes his experience in gang suppression and states "I have reviewed numerous gang injunctions issued by Superior Court Judges throughout California. It is the well established practice to allow service on the gang by service on one or more gang members." In support, he attached orders from two separate Los Angeles County Superior Court gang injunction cases—known as the Krazy Ass Mexicans and Canoga Park Alabama cases—in which Judge Dzintra Janavs ordered service "on any one or more" named gang members of an order to show cause (OSC).

On January 3, 2005, the trial court issued an OSC for a preliminary injunction. The trial court ordered service "on any one or more" of the 10 persons described in the complaint. On January 5, 2005, the district attorney filed a proof of service on Billy Wolfington.

On January 24, 2005, the trial court issued a preliminary injunction. Only the district attorney appeared.

B. The Permanent Injunction

On February 3, 2005, the district attorney, dismissed Does 1-400, the court clerk entered a default, and the trial court signed a permanent injunction, as requested. The judgment recites that The Broderick Boys is a criminal street gang and the injunction runs against "Defendant Broderick Boys aka BRK aka BSK aka Norteno aka Norte aka XIV, its members, agents, servants, employees, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them[.]"

C. Motion to Set Aside

On July 28, 2005, Keith Edwards, Angelo Velazquez, Jason Swearengin and Benjamin Juarez moved to set aside the default judgment and the default. None was named in the district attorney's papers. Each declared he lived in the safety zone and had not heard of this action until being served with the permanent injunction; Edwards was later arrested for allegedly violating the curfew. Each declared that had he known of the action and that the authorities believed the injunction would apply to him, he would have contacted an attorney. When served, none was told by what criteria their alleged gang membership had...