People ex rel. Reisig v. Acuna

• Decision Date: 28 February 2017
• Docket Number: C068868
• Citation: 9 Cal.App.5th 1,214 Cal.Rptr.3d 781
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE EX REL. Jeff W. REISIG, as District Attorney, etc., Plaintiff and Respondent, v. Timothy ACUNA et al., Defendants and Appellants.

9 Cal.App.5th 1

214 Cal.Rptr.3d 781

The PEOPLE EX REL. Jeff W. REISIG, as District Attorney, etc., Plaintiff and Respondent,

v.Timothy ACUNA et al., Defendants and Appellants.

C068868

Court of Appeal, Third District, California.

Filed February 28, 2017

As Modified March 10, 2017

Law Office of Mark E. Merin and Mark E. Merin, Sacramento, Cathleen A. Williams and Paul H. Masuhara, Sacramento, for Defendants and Appellants.

Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney

General, Eric L. Christoffersen, Deputy Attorney General, Robert C. Nash, Deputy Attorney General, for Plaintiff and Respondent.

HULL, J.

Eight individuals appeal from a civil judgment granting a permanent (seven-year) injunction enjoining public nuisance activities of a criminal street gang.

Yolo County District Attorney Jeff W. Reisig on behalf of the People of the State of California (plaintiff), filed this civil action against the Broderick Boys criminal street gang (a/k/a BRK a/k/a BSK a/k/a Norteno a/k/a Norte a/k/a XIV) and 23 of its members, to enjoin as a public nuisance (Civ. Code, §§ 3479 -3480 ) activities in a 2.98-square-mile area (safety zone) of West Sacramento. The safety zone is bounded by Harbor Boulevard to the west, the Sacramento River to the north and east (but not including the area previously known as the Lighthouse Marina and Golf Course), and by Highway 50/Business Loop 80/State Route 275 to the south.

In a prior appeal, we affirmed, for the most part, a preliminary injunction. (People ex rel. Reisig v. [Timothy] Acuna (2010) 182 Cal.App.4th 866, 106 Cal.Rptr.3d 560 (Acuna I ).)

This appeal by eight individual defendants (appellants) comes after a bench trial during which the eight appellants were represented by various attorneys. The trial served as a prove-up hearing as to defaulting defendant Broderick Boys. The trial court issued a judgment and permanent (seven-year) injunction against defendant Broderick Boys, its a/k/a's, and its "active members" including but not limited to 17 individual defendants—Timothy Acuna, Victor Dazo, Jr., Alex Estrada, Ramon Esquilin, Jesse Garcia, Michael Hernandez, Rainey Martinez, William McFadden, Robert Montoya, Michael Morales, Guillermo Duke Rosales, Robert Sanchez, Paul Savala, Abel Trevino, Felipe Valadez, Jr., Billy Wolfington, and Tyson Ybarra. Several of the original defendants were dismissed.¹

The trial court found Broderick Boys is a criminal street gang which, through its members, creates a public nuisance in the safety zone by engaging in violent assaults, robberies, trespass, theft, illegal possession of weapons, possession of drugs for sale, "tagging" public and private property with gang symbols, displaying gang symbols and signals to intimidate residents, and threatening and retaliating against persons perceived to have disrespected the gang. The injunction enjoins the gang and its active members from engaging in nuisance activities and also restrains them from other activities including (1) associating with known members (standing, sitting, walking, driving, gathering, or appearing in public) except inside or traveling to or from school or church, and (2) being out in public between 10:00 p.m. and 6:00 a.m., subject to exceptions.

This appeal from the permanent injunction is limited to the eight defendants/appellants—Timothy Acuna, Alex Estrada, Jesse Garcia, Robert Montoya, Michael Morales, Guillermo Duke Rosales, Felipe Valadez, Jr., and Billy Wolfington. We have no need in this appeal to address enforceability of the injunction as to anyone else.

Appellants argue evidentiary error, insufficiency of evidence, constitutional claims, and miscellany. They fail to show prejudicial evidentiary error, yet appear to assume in their substantial evidence argument that we should disregard the evidence they challenged. Appellants misstate facts and law (despite taking almost a year to prepare the opening brief) and fail to support each factual assertion in their brief with a citation to the record, as required by California Rules of Court, rule 8.204(a)(1)(C). Appellants' reply brief acknowledges the opening brief's factual misstatements and defects but dismisses them as inconsequential and nonprejudicial to plaintiff. Appellants thus miss the point that they have the duty on appeal to state the evidence fairly, in the light most favorable to the trial court's ruling, and record citations are for the benefit of the reviewing court as well as the respondent. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362 (Foreman ); Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 112-114, 113 Cal.Rptr.2d 90 (Lewis ).) Appellants' neglect is particularly burdensome, given that they submitted 380 pages of initial briefing (114-page opening brief plus 266 pages of addenda of purported facts and objections). Appellants' 71-page reply brief rounds out the mass. Despite appellants' defects, we nevertheless endeavor to address their contentions.

Appellants appear to advocate a standard whereby an individual cannot be subject to a gang injunction unless he personally commits multiple nuisance activities. We explain the correct standard is that an individual can be subject to the injunction if he is an active member of a gang whose members commit nuisance activities, and active membership does not mean personal commission of multiple nuisance activities.

Additionally, much of appellants' briefing hinges on the flawed premise, unsupported by authority, that the relative success of the preliminary injunction in reducing nuisance activity must inure to appellants' benefit, commanding a conclusion that there is no longer an ongoing need for injunctive relief. However, a permanent injunction is appropriate where the misconduct is ongoing or likely to recur and, while a permanent injunction may be inappropriate where the defendant discontinued the misconduct voluntarily and in good faith , compliance with a court order (here, the preliminary injunction) does not constitute voluntary discontinuation. (Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1658-1659, 39 Cal.Rptr.2d 189 (Feminist ).)

While this appeal was pending, the California Supreme Court held a gang expert cannot base an opinion on the assumed truth of case-specific facts that are inadmissible hearsay for which no independent competent evidence is adduced. (People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13, 204 Cal.Rptr.3d 102, 374 P.3d 320 (Sanchez ), disapproving People v. Gardeley (1996) 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713 (Gardeley ).) This aspect of Sanchez concerning state evidentiary rules for expert testimony (Evid. Code, §§ 801 -802 ) applies in civil cases such as this nuisance lawsuit. We allowed supplemental briefing, as we discuss post . To avoid potential complications that might otherwise arise in light of Sanchez , we focus in this appeal on evidence that did not depend on experts' assuming the truth of case-specific hearsay not proven by independent competent evidence or subject to a hearsay exception—, e.g., records of criminal convictions, trial testimony or spontaneous statements by victims, and non-case-specific hearsay about gang culture. We reject post appellants' suggestion that evidence improperly admitted may have been the deciding factor in the trial court's decision.

We affirm the judgment.

PRIOR PROCEEDINGS AND APPEALS

Plaintiff filed the original complaint in December 2004, naming only Broderick Boys (with a/k/a's) as defendant. The trial court issued a default injunction in February 2005. (People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506, 1514, 59 Cal.Rptr.3d 64 (Broderick Boys ).) On April 23, 2007, we reversed the default injunction, holding that (1) four individuals served with the injunction had standing to challenge it; (2) Broderick Boys was not an "unincorporated association" for purposes of service of process (Code Civ. Proc., § 416.40, subd. (b) ; Corp. Code, § 18220 ), because the gang had no "lawful purpose" (Corp. Code, § 18035 ); and (3) even if the gang were an unincorporated association, service of the complaint on only one member of unknown rank was insufficient. (Broderick Boys , at p. 1511, 59 Cal.Rptr.3d 64.)

Plaintiff filed the operative amended complaint in July 2007, seeking an injunction against Broderick Boys (with a/k/a's) and 23 individuals. The court entered default judgments in 2007 against nine individuals (none of whom are appellants in this appeal)—Victor Dazo, Jr., Ramon Esquilin, Michael Hernandez, Rainey Martinez, William McFadden, Robert Sanchez, Paul Savala, Abel Trevino, and Tyson Ybarra. The judgment at issue in this appeal finds these nine are still Broderick Boys active members responsible for the public nuisance.

After submission of declarations and a hearing, the trial court granted a preliminary injunction in May 2008. The court entered default against defendant Broderick Boys in October 2009. In an appeal from the preliminary injunction (Acuna I, supra, 182 Cal.App.4th 866, 106 Cal.Rptr.3d 560 ), we upheld the preliminary injunction, except for (1) an overbroad restriction on controlled substances that would have prohibited gang members from entering pharmacies, and (2) a vague restriction on alcohol that would have barred members from being in the presence of someone drinking alcohol in a restaurant. (Id . at pp. 888, 892, 106 Cal.Rptr.3d 560.) We held substantial evidence supported the trial court's conclusion that plaintiff was likely to prevail in showing Broderick Boys is a criminal street gang and engages in public nuisance activities. (Id . at p. 879, 106 Cal.Rptr.3d 560.) We said defendants forfeited their challenge to the findings of their active membership, because they made no individualized arguments and did not explain how the evidence was insufficient. (Ibid . )

FACTS AND PROCEEDINGS OF CURRENT APPEAL

At the bench trial in 2010, plain...