In Re D.R.

GRIMES, J.

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Robert J. Totten, Commissioner. Affirmed as modified.

Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

The juvenile court found the minor, D.R., guilty of vandalism for defacing the wall of a jail cell "holding tank" with gang-related symbols, and of giving false information to a police officer. The court also found true an allegation that the vandalism offense was committed for the benefit of a criminal street gang. D.R. appeals, contending there was insufficient evidence to support the true finding on the gang allegation. He also contends he is entitled to additional predisposition custody credits. On the latter point D.R. is correct (as respondent concedes), but substantial evidence supported the juvenile courts true finding on the gang allegation.

The District Attorney filed a two-count petition alleging D.R. came within the provisions of section 602 of the Welfare and Institutions Code, in that he committed the crime of vandalism over $400 (Pen. Code, § 594, subd. (a)), a felony, and the crime of false information to a police officer (Veh. Code, § 31), a misdemeanor. The petition was amended to add an allegation that the vandalism was committed for the benefit of a criminal street gang ("to wit, Black P Stone"), with the specific intent to promote, further and assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (d).)

It is unnecessary to recite much of the evidence presented to the juvenile court, as D.R. does not contest the true findings on the vandalism and false statement counts of the petition. Suffice it to say that D.R., then 15 years old, was detained by Los Angeles Police Officer Thomas Onyshko one evening in September 2009; Onyshko transported D.R. to the police station after D.R. (who said he was on probation for "A.D.W.") gave Onyshko an incorrect birth date and Onyshko was unable to obtain information on D.R. through the computer in his vehicle.

Onyshko placed D.R. in a juvenile "holding tank." D.R. commented on a large "18" symbol on the wall, which stands for 18th Street, an Hispanic gang that is a direct rival of the Black Peace Stones. Onyshko told D.R., "Dont mess with it [the 18]. Leave it as it is," and that there would be additional charges if D.R. did "mess with it." D.R. replied, "If I do, its not my fault."

While Onyshko was using the stations computers to try to positively identify D.R., another officer approached Onyshko and told him D.R. was "etching on the walls of the holding tank...." Onyshko returned to the holding tank and saw D.R.s right hand on the wall; D.R. immediately removed his hand when he saw Onyshko. Onyshko went into the cell, and saw, etched on the wall, "W.S.V.P.S.," which stands for "Westside Peace Stones." In addition:

"There was a C and a K, underneath which with the C crossed out for Crip killer, there is 18K for 18 killer, and then there was 30K with the three crossed out which stands for 30 killer, for Rolling 30 Harlem Hits which are all enemies of the Black Peace Stones."

There were fresh paint chips, consistent with the paint on the wall, on D.R.s clothing, and D.R., who was alone in the cell, was picking paint chips from his fingernails. When Onyshko asked him why he had written on the wall, D.R. said, "Yeah, I did it, so what, can I go now."

D.R. denied the allegations in the petition. At the jurisdictional hearing, the prosecutor presented testimony as to the facts described above from Officer Onyshko. Onyshko also testified as a gang expert for the first time. He testified about the Black Peace Stones gang, including its geographic boundaries, number of members, common hand symbols, primary activities, and so on. Onyshko testified that D.R. was a member of the Black Peace Stones:

"Hes self-admitted to myself that he is an active member. He gave two monikers Little Lunch Meat along with Red Flag. He admitted that he is a member of the [clique] referred [to] as The Bitty Stones."

The prosecutor then asked hypothetically whether an individual in a holding cell who etched graffiti indicating Black Peace Stones, and crossing out the names of rival gangs, would be doing so for the benefit of a street gang. Onyshko replied:

"Yes, it would, because the gang members utilize the taggings on the walls as a way of community indicating--saying, who they are feuding with, to instill fear in both the community and other gang members claiming the acts of crime or allegations that theyre going to commit, and such in this case, where hes claiming 30 killer, 18 killer, Crip killer, it would be to instill fear for other gang members coming from those gangs to show the--to show the superiority of Black Peace Stones and claiming that they would carry out and kill members of the other rival gangs."

The prosecutor then asked, "Is there something particularly strong... with regard to doing it within the police station?" and Onyshko responded:

"... Yes, because it shows the Black--or members of the Black Peace Stones or the individual that carries these out, showing complete disregard, one, for the police saying we cant control them, that theyre even above us, and attempting to show the superiority over the other gangs, because its common for gang members, from those rival gangs to come through the police station when they commit crimes and be placed into the same cell that they would see the writing and to make a statement to them."

Onyshko also testified that gang graffiti in a holding cell for minors could have an impact on minors who were not involved in gang-related crime at the time: "It could instill fear that theyre going to be placed with individuals that are gang members and that instills fear further down the line if they would be detained and placed with these individuals." In addition, "It can show Black Peace Stones are superior and act as a recruiting tool for other individuals that are coming through the city and lean towards joining that gang."

D.R. also testified. He said that he had given the officer his birth date, did not understand why he was being taken to the police station, was upset, and scratched the wall. When asked why he did so, D.R. replied, "I was upset, just angry." His counsel asked him, "What did you mean by it?" and D.R. replied, "I didnt mean anything about it." Counsel asked D.R. if the etching on the wall was "code for telling other [Black Peace Stones] members to go commit other crimes," and whether D.R. had "any specific intention to somehow benefit [Black Peace Stones] or its members," and whether D.R. was "thinking about what you were doing when you did it," and whether he thought "that somehow the gang would benefit []," to all of which D.R. responded in the negative.

The juvenile court sustained the petition, finding both counts, and the gang allegation with respect to the vandalism count, to be true (with the vandalism count reduced to a misdemeanor). The court scheduled a dispositional hearing, meanwhile releasing D.R. to his grandmother on electronic surveillance. After two more hearings, D.R. was "still [wreaking] havoc" at school, and his grandmother told the court, "Ill go for the six months [in camp]." The court detained D.R., who insisted on a contested dispositional hearing.

At the dispositional hearing on December 31, 2009, no one was present from D.R.s school, and for that reason the trial court offered and D.R. accepted three months in camp. The juvenile court then placed D.R. in the custody of the probation officer for placement in the camp community placement program, and stated that the maximum confinement was one year. (The courts minute order states the maximum period of confinement to be "1 YR 2MO AGGREGATED.") D.R. received predisposition credit of 14 days.

D.R. filed this timely appeal.

D.R. challenges the true finding on the gang allegation and contends that he was not awarded the proper amount of presentence custody credit. We find the evidence was sufficient to sustain the gang allegation. Respondent concedes that D.R. was detained for 46 days, rather than the 14 days, prior to the disposition of his case, and is entitled to custody credit accordingly.

1. The gang allegation

Penal Code section 186.22, subdivision (d) (section 186.22(d)) provides an alternate sentence for a person convicted of a misdemeanor (or a felony) committed for the benefit of a criminal street gang. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897, 900 (Robert L.) ["section 186.22(d) prescribes an alternate penalty when the underlying offense is committed under specified circumstances; here, for the benefit of, at the direction of, or in association with, a criminal street gang"].)

D.R. asserts the evidence was insufficient to support the gang allegation in his case. Specifically, he asserts there was insufficient evidence of his mental state, that is, that he had "the specific intent to promote, further, or assist in any criminal conduct by gang members...." (Section 186.22(d).) We disagree.

We review claims of insufficient evidence by examining the record in the light most favorable to the judgment, to determine if substantial evidence exists for a reasonable trier of fact to find the gang allegation true beyond a reasonable doubt. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 660.)

It may be helpful to reiterate a few basic principles.

First, the street terrorism statute (Pen. Code, § 186.20 et seq.) "does not criminalize mere gang membership"; it imposes increased penalties only when the criminal conduct is committed "not only for the benefit of, at the direction of, or in association with... a criminal street gang, but also with the specific intent to promote, further, or assist in any criminal conduct by gang members. " (People v. Gardeley (1996) 14 Cal.4th 605, 623-624, quoting § 186.22, subd. (b)(1).) Thus, the evidence must support an inference of specific intent to promote or assist criminal gang conduct, in addition to an inference the crime was committed for the benefit of a gang.

Second, the trier of fact "may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation," but the expert opinion testimony allowed under this principle does not include "testimony that a specific individual possessed a specific intent." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196, 1197, 1199 (Frank S.).) Thus, some evidence besides expert testimony on gang culture and habits is necessary to establish the specific intent to promote or further criminal conduct by gang members.

Third, the specific intent element does not require evidence of intent to promote criminal conduct other than the charged crime. (See People v. Hill (2006) 142 Cal.App.4th 770, 774 ["[t]here is no requirement in section 186.22, subdivision (b),-that the defendants intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits"].)

In this case, there is evidence that D.R. was a member of the Black Peace Stones gang--Onyshko so testified, and so did D.R. Onyshko gave expert opinion testimony to the effect that gang members in general "utilize the tagging on the walls as a way of... indicating... who they are feuding with, to instill fear in both the community and other gang members"; that etching gang graffiti within a police station "shows... complete disregard, one, for the police[,] saying [the police] cant control them, that theyre even above [the police]"; and that gang graffiti in a holding cell for minors could instill fear in minors not involved in gang activities and could act as a "recruiting tool" for others. And finally, there is the nature of the crime itself, that is, vandalism in the form of gang graffiti.

From this, a trier of fact may reasonably infer that D.R. had "the specific intent to promote, further, or assist" in criminal conduct by gang members; indeed, the inference is not only rational, it is virtually ineluctable.

D.R. insists his case is analogous to Frank S., where the court found the evidence insufficient to support a gang allegation. (FrankS., supra, 141 Cal.App.4th 1192.) In Frank S., the minor was charged with possession of a concealed knife. The only evidence purporting to show the minors possession of the knife was gang-related was the minors affiliation with a gang, and the experts opinion that the minor possessed the knife "to protect himself and that his possession of the knife benefited the gang by "help[ing] provide them protection should they be assaulted." (Id. at pp. 1195-1196.) This was improper expert opinion because the gang expert "testified to subjective knowledge and intent of the minor," and such testimony was " much different from the expectations of gang members in general when confronted with a specific action. " (Id. at pp. 1197-1198.) The court concluded that "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife" (id. at p. 1199), observing: "The prosecution did not present any evidence that D.R. was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.... To allow the expert to state the minors specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.; see also People v. Killebrew, supra, 103 Cal.App.4th at p. 658 [expert testimony "did nothing more than inform the jury how [the expert] believed the case should be decided"].)

This case is decidedly different from Frank S. While a gang member may possess a knife (or vandalize property) without any gang-related purpose, it is difficult to see how a gang member could vandalize property using gang-related graffiti and yet have done so without "a gang-related purpose...." (Frank S., supra, 141 Cal.App.4th at p. 1199.) D.R. asserts he was engaged in "a frolic and detour unrelated to the gang when he committed the charged vandalism offense," and that he was "upset" and "angry" and "didnt mean anything about it." But the court was clearly entitled to conclude otherwise.

The trier of fact may draw reasonable inferences from D.R.s actions. The point is nicely stated in People v. Margarejo (2008) 162 Cal.App.4th 102: "[W]e routinely draw inferences about intent from the predictable results of action. We cannot look into peoples minds directly to see their purposes. We can discover mental state only from how people act and what they say. Here, [the defendant] acted like he wanted to help his gang." (Id. at pp. 110, 109-110 [defendant gang member was convicted of evading police officers on a long car chase, during which he continually made gang signs to pedestrians and police; there was ample basis for a jury to conclude defendant "was serving the criminal purposes of the... gang by turning his flight into a public display of laughing, taunting defiance"].)

In short, while D.R., an admitted gang member, was "angry" and "upset," he etched graffiti--not just any graffiti, but gang graffiti--into his holding cell wall. From this conduct—the circumstances of the crime itself--and from the expert testimony on gang-member tagging and the benefit gangs derive from it, the juvenile court could reasonably infer D.R. acted both for the benefit of the gang and with the specific intent to promote criminal conduct by gang members.

2. Predisposition credit

The record confirms that D.R. was detained on September 23, 2009, was released to his grandmother on October 20, 2009, and was detained again on December 14, 2009, until the dispositional hearing on December 31, 2009. Respondent agrees that "it does appear that [D.R.] was detained predisposition for 46 days, not 14 days...." The dispositional order should be modified accordingly.

The cause is remanded to the juvenile court with directions to modify the dispositional order to reflect D.R.s predisposition credit of 46 days. As so modified, the judgment is affirmed.

GRIMES, J.

We concur:

FLIER, Acting P. J.

OCONNELL, J.