People v. Englebrecht, D033527.

CourtCalifornia Court of Appeals
Writing for the CourtBenke
Citation106 Cal.Rptr.2d 738,88 Cal.App.4th 1236
PartiesThe PEOPLE, Plaintiff and Respondent, v. David A. ENGLEBRECHT, Jr., Defendant and Appellant.
Docket NumberNo. D033527.,D033527.
Decision Date09 May 2001

ACLU Foundation of San Diego & Imperial Counties, Jordan C. Budd; Sullivan, Hill, Lewin, Rez & Engel and Candace M. Carroll, San Diego, for Defendant and Appellant.

Paul J. Pfingst, District Attorney, Susan K. Mazza and Terri A. Perez, Deputy District Attorneys, for Plaintiff and Respondent.


In this case the trial court enjoined 28 named members, including David A. Englebrecht, Jr., and all other members of the Posole street gang from engaging in various activities, e.g., possessing weapons, associating with other gang members, within a designated area of the City of Oceanside. Englebrecht appeals, arguing the trial court erred in denying him a trial by jury on the issue of his gang membership, in deciding the case on a preponderance of evidence rather than a clear and convincing standard of proof and in using an incorrect definition of active gang membership. In addition, he contends the injunction is more burdensome than necessary and that it infringes on his right of free association. Finally, he argues that particular provisions of the injunction are unconstitutional.1


In November 1997, the District Attorney of San Diego County sought a permanent injunction to abate a public nuisance. The complaint alleged that members of the Posole street gang were engaged in illegal, terrorizing and harassing behavior in a defined one-square mile "target area" in the "Eastside" section of the City of Oceanside.

After a bench trial the court found, based on a preponderance of the evidence standard of proof, that Posole was a criminal street gang that claimed the target area as its territory. The court found that within that area its members engaged in acts of violence, intimidation, destruction of property and public disruption and that these activities amounted to a public nuisance. The court found the target area sufficiently defined geographically and restricted to an area minimally necessary to protect the Eastside community. The court found a nexus between the gang members' described activities and the acts to be enjoined. The court also found that Englebrecht was an active member of the Posole gang.

Members of the Posole gang were enjoined from engaging in various stated criminal and crime-related activities in the target area. Specifically, provision "s" of the injunction enjoined gang members from "Using words, phrases, physical gestures, or symbols commonly known as hand signs which describe or refer to the gang known as Posole...." The provision specifically described those signs and gestures. Provision "t" enjoined the members from "Wearing clothing which bears the name or letters that spell out the name of the gang known as Posole or associated with the gang known as Posole, such as, but not limited to, any variations or combinations of: `Posole'; `Posoles'; `P'; `PT'; `M'; `Erne'; `Varrio Posole'; "Varrio Posole Locos'; `Varrio Posole Loco'; `Posole Town'; `VP'; `VPL'; `VPLS'; `13'; `20'; `13 20'; `16'; `16 20'; `22'; `22 16'; `22 16 12'; `22 16 12'; `22 16 12 19.'"2

A. Jury Trial

Englebrecht contends the trial court erred in denying his request for a jury trial on the issue of whether he was an active member of the Posole gang. He makes two arguments: first, he asserts that while the People sought an equitable remedy to which no right of jury trial applies, his defense of nonmembership in the Posole gang raised legal issues which should, under the California Constitution, have been decided by a jury; second, he argues that under the due process clauses of both the California and federal Constitutions he was entitled to a jury trial since the granting of the injunction involved a serious curtailment of liberty and imposed the stigma of being found a member of a criminal association.

1. California Constitutional Right to Trial by Jury

"In California, our Constitution [art. I, § 16 ] guarantees the right to a jury trial in actions at law, not those in equity. [Citations.] If the action deals with ordinary common law rights cognizable in courts of law, it is to that extent an action at law. [Citation.] To determine whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by its nature, and a jury trial must be granted only "where the gist of the action is legal.' [Citation.] If the action is essentially one in equity and the relief sought depends upon the application of equitable doctrines, the parties are not entitled to a jury trial. Although the legal or equitable nature of a cause of action ordinarily is determined by the relief sought, the prayer for relief in a particular case is not conclusive—and the inclusion of a request for damages as one of a full range of possible remedies does not guarantee the right to a jury trial. [Citation.]" (American Motorists Ins. Co. v. Superior Court (1998) 68 Cal.App.4th 864, 871, 80 Cal.Rptr .2d 621.)

The essence of an action to abate a public nuisance and for injunctive relief is equitable and there is no right to a jury trial. (People v. One 1941 Chevrolet Club Coupe (1951) 37 Cal.2d 283, 298, 231 P.2d 832; Stell v. Jay Hales Development Co. (1992) 11 Cal.App.4th 1214, 1221, 15 Cal. Rptr.2d 220; Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353, 235 Cal.Rptr. 422; People v. Frangadakis (1960) 184 Cal. App.2d 540, 545-546, 7 Cal.Rptr. 776.)

Relying on Pacific Western Oil Co. v. Bern Oil Co. (1939) 13 Cal.2d 60, 68, 87 P.2d 1045, and Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 125, 21 Cal. Rptr.2d 127, Englebrecht nonetheless argues he was entitled to trial by jury on the issue of whether he was a member of the Posole gang, citing the rule that if a plaintiff seeks an injunction to restrain the violation of a "common law right," i.e., a right establishable in an action at law, and either the existence of the right or the fact of its violation is disputed, that dispute must be resolved by a jury.

Englebrecht argues our Supreme Court in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1102-1104, 60 Cal.Rptr.2d 277, 929 P.2d 596 held that the public right violated by the acts alleged in the People's complaint are "common law rights." He reasons that since he denies being a member of the gang that committed those acts, there is a dispute concerning whether he violated the community's "common law rights" and a jury must decide the dispute.

Contrary to Englebrecht's argument, Acuna does not hold that the underpinnings of an equitable action to abate a public nuisance arise from "common law rights." It merely holds that Anglo-American law has long recognized equitable actions to abate "interfer[ence] with the community's exercise and enjoyment of rights common to the public." (Id. at p. 1109, 60 Cal.Rptr.2d 277, 929 P.2d 596, italics added.) In such equitable matters, no "legal action" is necessary to establish a disputed "legal right." There is no requirement under the California Constitution for a trial by jury on the issue of Englebrecht's gang membership.

2. Due Process

Englebrecht argues that even if the People's action to abate a nuisance is an equitable one to which article I, section 16 of the California Constitution does not grant a right of trial by jury, he was nonetheless entitled to such a trial based on the federal and California Constitutions' guarantees of due process of law. He relies on a series of cases dealing with various civil or special proceedings that can result in lengthy involuntary confinement and social stigmatization, cases in which California courts concluded that, in general, the full panoply of due process rights, including trial by jury, applicable in criminal cases are applicable to certain noncriminal proceedings. (See Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, 152 Cal.Rptr. 425, 590 P.2d 1 [due process requires unanimous jury verdict in "gravely disabled" civil commitment conservatorship proceeding under the Lanterman-Petris-Short Act (LPS Act)]3; People v. Thomas (1977) 19 Cal.3d 630, 644, 139 Cal.Rptr. 594, 566 P.2d 228 [due process requires unanimous jury and proof beyond a reasonable doubt in "narcotics addict" civil commitment proceedings]; People v. Feagley (1975) 14 Cal.3d 338, 376, 121 Cal.Rptr. 509, 535 P.2d 373 [due process requires unanimous jury verdict in "mentally disordered sex offender" civil commitment proceedings]; People v. Burnick (1975) 14 Cal.3d 306, 332, 121 Cal.Rptr. 488, 535 P.2d 352 [due process requires proof beyond a reasonable doubt in "mentally disordered sex offender" commitment proceedings].)

Englebrecht readily concedes that unlike the situation in the cited cases, he did not face lengthy confinement as a direct result of the proceeding. He argues, however, this is not determinative since he did face an actual loss of liberty in the target area, e.g., he could not associate with any known member of the Posole gang, could not possess weapons or wear gang-related clothing, etc. He further argues that the injunction and the findings supporting it stigmatized him as a member of a criminal association.

a. Cases

The key due process cases in California dealing with the required application of criminal law procedures to noncriminal proceedings are People v Burnick and People v. Feagley. Both cases deal with the now-repealed Mentally Disordered Sex Offender Law (former Welf. & Inst.Code, § 6300 et seq.). Under that law when a defendant was convicted of a crime, the trial court, if it found probable cause to believe the defendant was a mentally disordered sex offender (MDSO), could adjourn the criminal proceedings and institute MDSO proceedings. If the defendant was found to be an MDSO, he was committed to a maximum-security mental...

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