IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A121535

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1 Filed 4/13/09 In re E.G. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE In re E.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.G., Defendant and Appellant. A (Sonoma County Super. Ct. No. J-34871) The juvenile court found that defendant E.G. had committed gang-related assaults and felony vandalism, and placed him on probation with home supervision. Defendant raises two issues on appeal. First, he contends the court erroneously admitted a hearsay statement attributing to him a gang slogan spoken before the assaults. Second, he contends there was insufficient evidence of felony vandalism and a related gang participation charge and gang benefit enhancement. We reject the first contention, but agree with the second. Accordingly, we affirm in part and reverse in part, and remand for disposition in accordance with this opinion. I. FACTS Under applicable standards of appellate review, we must view the facts in the light most favorable to the delinquency findings, and presume in support of the judgment the 1

2 existence of every fact which the juvenile court could reasonably find from the evidence. (In re Roderick P. (1972) 7 Cal.3d 801, [holding principles of appellate review in adult criminal trials apply to delinquency proceedings]; see People v. Redmond (1969) 71 Cal.2d 745, 755.) The victims in this case are Alvaro M. and his girlfriend, Michelle E. On the afternoon of December 10, 2007, Alvaro and Michelle were walking on Sunny Manor Way in Santa Rosa, on their way to Michelle s house. Alvaro was wearing a red shirt and a red and black San Francisco 49er s cap. Before the two arrived at Michelle s house, a group of five to seven juveniles came out of another house and began to say things. Alvaro testified he heard them say PSC, which is a Sureño gang, and Sur 13, which is a Sureño gang expression. He also heard them say Sur trece, 13, and West Apple, as well as What s up, fool? [J]ust about all of them yelled PSC or Sur trece. 1 Michelle testified that the encounter first began when a juvenile on a cell phone called out to Alvaro, Hold on, fool because Alvaro was wearing red. She also heard one juvenile shout PSC and Sur trece. At least three of the juveniles were wearing blue. The juveniles surrounded Alvaro and Michelle. According to Alvaro, they began to hit him. One juvenile hit him across the back with a five-foot stick that looked like a broom or a rake handle. Another stabbed Michelle on her right elbow. When a car drove by, the juveniles ran off. Alvaro identified defendant in court as one of the juveniles in the group that attacked him. Michelle identified defendant in court as being part of the group, but said defendant didn t say anything to her and she did not think he said anything at all. She 1 Alvaro testified that at first he could not hear voices because he was listening to his ipod. But then he heard the gang expressions because one of the juveniles yanked out his ipod earpiece. Apparently, trece means 13. 2

3 said she was 50 percent sure of her identification. But when showed a picture of defendant wearing shorter hair than he did in court, she admitted he look[ed] more familiar as being a person involved in the assault. But she then testified that defendant was just watching. The People filed a delinquency petition charging defendant with two counts of assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)); 2 and one count of active participation in a criminal street gang ( , subd. (a)). The assault counts were enhanced by allegations that the assaults were committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members ( , subd. (b)(1)(b)). 3 On the afternoon of December 13, 2007, Alvaro and Michelle were sitting in Alvaro s parked car on Sunny Manor Way. Three gang bangers walked by; one was talking on a cell phone. Alvaro testified that the same group who were involved in the assaults came out of the same house, armed with bats and metal bars. Alvaro guessed they had been called out by the person on the cell phone. One of the group broke the right rear passenger side window of Alvaro s car, apparently by throwing a bat. Alvaro started the car and drove off. Alvaro identified defendant in court as part of the group, but did not know whether defendant was carrying a bat or bar. Michelle wasn t sure if defendant was a part of the group. Alvaro did not replace the window or get an estimate of the cost of replacement. A few days after the vandalism incident, the police took Alvaro and Michelle to a location on West 9th Street for a possible identification of two individuals who had been detained. One of them was defendant. Alvaro identified defendant as being involved in 2 Subsequent statutory citations are to the Penal Code unless otherwise indicated. 3 The petition also alleged a misdemeanor count of giving false identification to a police officer, which is not at issue on appeal. 3

4 the assaults and the vandalism. He did not tell police that defendant was the one who threw the bat at his window. Apparently, Michelle also identified defendant on West 9th Street, but in court she testified only that she thought defendant was one of the West 9th Street duo. The People filed another delinquency petition charging defendant with one count of felony vandalism for the damage to the window of Alvaro s car ( 594, subd. (a)), and one count of active participation in a criminal street gang on December 13, 2007 ( , subd. (a)). The felony vandalism count was enhanced by an allegation that the vandalism was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members ( , subd. (b)(1)(a)). There were three witnesses at the jurisdictional hearing on the petitions: Alvaro, Michelle, and Detective Eric Swift of the Santa Rosa Police Department gang unit. Alvaro and Michelle testified as set forth above. Detective Swift qualified as an expert on criminal street gangs. He was familiar with the Sureño gang, which was active in Santa Rosa. The gang s common color was blue and their common number was 13. The common color of their rival, the Norteños, is red. PSC stands for Puro Sureños Cholo, a subset of the Sureño gang very active in Sonoma County. Prospective Sureño members must prove themselves worthy by putting in work, i.e., committing crimes ranging from vandalism to assault to murder. The Santa Rosa Sureños engage in those crimes. Swift was assigned to investigate the assaults on Alvaro and Michelle. In the course of that investigation, he learned that defendant had a gang moniker: P-nut. It was Swift who took the victims to the in-field show-up on West 9th Street. Defendant was one of the two individuals who had been detained. Swift testified, over a hearsay objection, that Alvaro told him defendant actually shouted PSC, what s up? during the assaults. Swift also testified that Alvaro told him defendant tried to break his window. 4

5 Michelle told Swift that defendant was present for both incidents, but she could not recall what he did or said. Swift interviewed defendant and, after proper Miranda warnings, defendant admitted being present for both the assaults and the vandalism, but denied any involvement. Swift testified it was common for gang members to maintain Web sites. The prosecutor presented Swift with several documents, which were printouts from defendant s MySpace page. Defendant made a hearsay objection, which the court overruled on the ground that the documents were being used as the basis for Swift s expert opinion. Defendant s Web site printouts depicted local street signs with Sureño graffiti, and a picture showing defendant burning a red and white flag. The Web site of another person, identified by the victims as being involved in the assaults and the vandalism, bore a picture of three individuals including defendant making gang signs. The prosecutor asked Swift: Based on your training and experience... and the information that you ve obtained from MySpace pages, information from the defendant and your knowledge of the events that occurred on December 10th and December 13th, do you have an opinion as to whether [defendant] is a member of a gang? (Italics added.) Swift replied that in his opinion defendant was a member of the Sureño criminal street gang. He based his opinion on the totality, including the facts of the case, the fact that defendant was on MySpace with other gang members, and the fact that defendant admitted he associates with Sureño gang members. The prosecutor then asked Swift detailed hypotheticals, which we need not set forth verbatim, which tracked the facts of the assaults and the vandalism. Swift expressed an opinion that the crimes were done for the benefit of a criminal street gang. 5

6 After oral argument, the court indicated it was going to sustain both petitions in their entirety. Defendant moved to reduce the felony vandalism count to a misdemeanor, on the ground that there was no proof of $400 damage, the necessary amount to make vandalism a felony. The court denied the motion, suggesting the repair cost had to be more than $400, and the vandalism was at the felony level. People in a car being charged with bats, possibly tire irons, this is felony level behavior. The court sustained the petitions. At the dispositional hearing, the court declared defendant a ward of the court and placed him on probation in the home of his mother, and imposed numerous conditions. The court set defendant s maximum commitment time at 194 months, less 123 days of custody credit. II. DISCUSSION A. Defendant contends that the juvenile court should have sustained his hearsay objection to Swift s testimony that Alvaro told him defendant actually shouted PSC, what s up? during the assaults. The prosecutor responded to the objection by arguing it was a prior identification and was rehabilitative because... the earlier witness could not recall. The court replied that it would allow the hearsay testimony, but did not state reasons. Defendant argues that Alvaro s out-of-court statement was not admissible as a prior identification or as a prior consistent or inconsistent statement. The People oppose these arguments, but also note that the statement was not admitted for the truth but only as a basis for Swift s expert opinion. We need not reach defendant s evidentiary arguments because the People are correct. Alvaro s statement was part of Swift s knowledge of the case, which was one of the bases for his expert opinion that defendant is a gang member. Evidence Code section 801, subdivision (b) allows an expert witness to base his opinion on a wide variety of material, even if not normally admissible. (See People v. Gardeley (1996) 14 Cal.4th 6

7 605, 618.) This material can include statements of the defendant. (Id. at p. 620.) Alvaro s out-of-court statement relaying defendant s use of gang slogans need not be formally admissible to form a basis of a gang expert s opinion. B. Defendant also contends that the felony vandalism charge and accompanying gang benefit enhancement, as well as the separate charge of active gang participation on December 13, the date of the vandalism, must be reversed because there is no evidence the vandalism was a felony. Section 594, subdivision (a) defines vandalism. Section 594, subdivision (b)(1) provides that vandalism can be punishable as a felony if the property damage is $400 or more. Section 594, subdivision (b)(2)(a) makes vandalism a misdemeanor if the damage is less than $400. In the present case, there is a complete failure of proof of the amount of the damage. There is no evidence the damage to Alvaro s window was $400 or more a necessary element of felony vandalism. Therefore, we must reduce the finding of felony vandalism to a finding of misdemeanor vandalism. The gang benefit enhancement to the vandalism charge, as well as the substantive offense of gang participation, require felony behavior. Section , subdivision (b)(1) provides that, with exceptions not applicable here, any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be subject to enhanced punishment. (Italics added.) Section , subdivision (a) provides that [a]ny 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, 7

8 or assists in any felonious criminal conduct by members of that gang, shall be punished as set forth in the statute. Since the vandalism is not a felony, the related gang benefit enhancement must be stricken, and the finding of gang participation flowing from the December 13 vandalism must be reversed. The People argue that section , subdivision (d) acts to elevate the vandalism and the gang participation offenses to felonies for purposes of sentencing. As here pertinent, that section provides that [a]ny person who is convicted of a public offense punishable as a felony or as a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members may be punished as a felon. 4 This section makes a misdemeanor committed for the benefit of a criminal street gang a felony for sentencing purposes, in the judge s discretion. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, ; People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) The difficulty with the People s argument is that section , subdivision (d) was not pleaded or in any way relied upon by the prosecutor or the juvenile court in this case. As far as we can tell, the subdivision is not even mentioned in the record. Defendant was entitled to notice of this statutory provision, which would have invoked the judge s discretion at disposition but the Attorney General has raised it for the first time on appeal. 4 In this opinion, we have used the versions of sections , subdivisions (b) and (d) which were in effect at the time defendant committed his crimes and at the time of the proceedings below. Amendments to the two subdivisions, some of them minor grammatical changes, were made by Proposition 6, as approved by the voters at the General Election of November 4, (See 47 West s Ann. Pen. Code, (2009 supp.) pp. 189, 194.) 8

9 III. DISPOSITION The jurisdictional and dispositional findings regarding the crimes committed December 10, 2007 are affirmed. The jurisdictional finding of felony vandalism is reduced to a finding of misdemeanor vandalism. The gang benefit enhancement to the vandalism charge is stricken. The jurisdictional finding of active gang participation on December 13, 2007 is reversed. The matter is remanded for proper disposition. Marchiano, P.J. We concur: Margulies, J. Graham, J. Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 9