In re I. M., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
I. M., Defendant and Appellant.
Court of Appeal, First District, Division 1.
*377 Irma Castillo, Counsel for Defendant and Appellant.
Bill Lockyer, Attorney General, Christopher Grove, Deputy Attorney General, Counsel for Plaintiff and Respondent.
*376 STEIN, J.
On July 11, 2003, a Welfare and Institutions Code section 602 petition was filed against defendant I. M., then 15 *378 years old, alleging that he had acted as an accessory after the fact in connection with a murder. (Pen.Code, § 32.) The petition also contained the enhancing allegation that defendant had committed the offense with the specific intent to benefit, promote, further or assist the unlawful conduct of a criminal street gang. (Pen.Code, § 186.22, subd. (b)(1).) The juvenile court found the petition's allegations to be true, placed defendant on probation, and committed him to the Orin Allen Youth Rehabilitation Facility for 270 days. In addition, as a further condition of probation, the court ordered defendant to pay $15,184.43 in restitution to cover the expenses for the victim's funeral.
This appeal followed.
EVIDENCE
Evidence of Shootings and Defendant's Arrest
Thomas B. testified that on June 4, 2003, he and his friend Jorge H. were hanging out in a park, talking and drinking. At some point, several people came up to them to talk in a friendly manner and shake hands. At about 8:00 p.m., they left their bottles at the bench, or threw then away, and began to walk through the park to a store. Thomas noticed two individuals running, or walking quickly, towards them. Thomas heard someone talk or yell something in Spanish. One of the individuals, later identified as Victor C., said something along the lines of "Sur Trece," and put up his hands as if he wanted to fight. The two individuals moved together. Victor pulled a gun partway out of a backpack. Thomas said something along the lines of "What, you can't fight like a man, one on one?" Victor responded by pulling the gun all the way out of the backpack and shooting Thomas, hitting him in the arm. Thomas and Jorge turned and began to run, Jorge right behind Thomas. Thomas looked back. Jorge was lying on the ground and Victor and the other individual, defendant, were running side-by-side out of the park.
On the evening of June 9, Detective Eric Nilsson was involved in a forced entry into Victor's residence, a trailer, where he found defendant, Victor, and another young man. Police found a number of articles of clothing, writings, and other items suggesting an affiliation with the Sureños 13 street gang, including a notebook bearing the words "Ese Queso Varrio Sur Trece Richmond" and a drawing of a block of cheese with a flag on which was written "X13."
Victor admitted that he did the shooting. He told the police that Thomas walked by him and gave him a dirty look. Victor pulled out his gun and said, "Sur Trece 13 here, fool." Thomas said, "What?" and Victor responded, "What, are you a chapete?"[1] Thomas threw down his 40-ounce bottle of alcohol and challenged Victor to a fight, reaching his hand toward his waistband. Victor then pulled out his gun and fired twice towards Thomas. Victor at first said that he shot Jorge after Jorge rushed him, but later stated that he shot Jorge in the back after Jorge tried to run.
Defendant's statements
Defendant at first gave the police a false name, telling them his true name only after Detective Nilsson told him that there was no record of anyone with the first name he gave. Defendant told the police that he used the false name because he was afraid that he was going to be arrested for his tattoos and wanted to avoid prosecution.
*379 Defendant stated that he had been sitting with some friends at the park. Thomas and Jorge, who defendant believed to be Nortenos, walked up, said hello, and moved on. Victor arrived a short time later, seeming to be upset that defendant had been speaking with Thomas and Jorge. Victor yelled "fucking chaps" at Thomas and Jorge. Thomas and Jorge walked towards Victor. Thomas was in the lead, and was carrying a 40-ounce glass bottle in his hand. Victor walked toward the other men. Thomas threw the bottle onto the ground, and reached into his waistband area as if to pull out a gun. Victor pulled a gun out of his backpack and fired two or three shots at Thomas, who ran off. Jorge, who had not run, raised his hands, saying, "Hey, I have no problem," turned around and started to walk away. Victor then fired one to two shots into Jorge's back. Defendant had a pellet gun in a bag that he was carrying, but he never pulled it out.
Defendant and Victor ran out of the park together. Victor handed the gun and the backpack to defendant. Defendant put the gun in the backpack and ran with it. They reached a parking lot, where Victor grabbed the backpack, pulled out the gun and pointed it at someone who was following them, saying, "Get back" or "You want some?" Defendant and Victor ran off in different directions. Defendant went to Victor's trailer. Victor showed up about 30 minutes later.
Defendant admitted that he was a member of the Sureno gang, explaining that he belonged to the Richmond Sur Trece subset of that gang, and that his gang nickname was "Queso." Victor belonged to the Mexican Locos, another subset of the Sureno gang that got along with the Sur Trece gang. Defendant told the police that he felt a close, brother-like relationship with fellow gang members.
Physical Evidence
The physical evidence was inconsistent with the statements by defendant and Victor that suggested that Thomas acted in a threatening manner by throwing down his beer bottle and reaching towards his waistband. The only bottle found in the general area was a plastic soda bottle which police collected from a picnic area approximately 20-25 feet away.
Evidence of Street Gang Culture and Habits
The prosecution's theory was that both Victor and defendant were members of the Sureno street gang, and that the shootings were gang related. Harold Keck, a Contra Costa County probation officer and an expert on the culture and habits of criminal street gangs, testified in support of this theory. Officer Keck explained that the number 13, or the word "trece," is an identifier used by the Sureño street gang. The Surenos also identify with the color blue or some other dark color. Mexican Loco (ML) and Richmond Sur Trece (RST) are subsets of the Sureños, and it is not unusual to find MLs and RSTs together.
Violence is a primary activity of the 13 Surenos. Violent acts demonstrate the strength of the gang, and members will commit violent acts as a means of obtaining "stripes," which signify status within the gang. In order to earn a stripe, a member not only has to commit a violent act, but has to commit it in the presence of another gang member. The other gang member is supposed to provide assistance to the member committing the violent act, and is supposed to do whatever he can to prevent the offender from being criminally prosecuted for the offense. A member gains respect within the gang by lying to the police, fabricating defenses, *380 misidentifying people, hiding evidence or aiding in the escape of a gang member who commits a crime.
Officer Keck stated his opinion that defendant is a member of the 13 Sureno gang, basing that opinion on defendant's tattoos, his associations and his statements. The notebook recovered from Victor's trailer indicated that the owner identified himself as "queso," or "cheese" and as a member of the Sureno 13 gang.
June 9 Incident
On June 9 (the same day that defendant and Victor were arrested), Detective Nilsson was in an unmarked vehicle near a market in San Pablo, when he noticed a wall with red graffiti painted over with blue and black graffiti. The blue and black graffiti included the number 187, the words, "kill a slob,"[2] "sur 13," "187 on Chaps" and "ML." Three Hispanic males, wearing blue, were walking on the side of the street across from the wall. Two black males were walking on the same side of the street as the wall. They started looking at the graffiti. The Hispanic males held up their hands with one finger showing on one hand, and three on the other, and started yelling "Sur Trece" and "slob." Detective Nilsson approached. Two of the Hispanic males ran off. Detective Nilsson made contact with the third. As they were speaking, defendant approached, asking, "Why are you messing with my homeboy?" Defendant gave the detective a false name and birthdate. He had "RST" tattooed on his left hand, and told the detective that he had been a Sureno for about three years.
DISCUSSION
I.
Corpus Delicti
Defendant contends that his conviction violates the corpus delicti rule.
"Distilled to its essence, the corpus delicti rule requires that the prosecution establish the corpus delicti of a crime by evidence independent of the defendant's extrajudicial inculpatory statements before he or she may be held to answer a criminal complaint following a preliminary examination, be convicted of an offense, or hear the statements repeated as evidence in court. [Citation.] The corpus delicti in turn consists of at least slight evidence that somebody committed a crime." (People v. Ochoa (1998)
Defendant here was charged with the crime of being an accessory after the fact to a murder committed by Victor, a crime that required the prosecution to prove that after the murder had been committed, and with knowledge of Victor's wrongful conduct, defendant harbored, concealed or aided Victor with the intent that Victor might avoid or escape from arrest, trial, conviction or punishment.[3]
*381 Defendant does not dispute that evidence apart from his extrajudicial statements adequately established that he and Victor belonged to subsets of the Sureño 13 street gang, that Victor shot Thomas and Jorge, and that he knew that Victor had shot both victims. He correctly points out, however, that his own inculpatory statements are the only evidence that he accepted the backpack, placed the gun in it, and carried it until Victor took it back in order to remove the gun and threaten a witness. It follows that the corpus delicti rule would not allow defendant's conviction to stand on that evidence, and if this were the only evidence that defendant sought to aid Victor after the shootings, the court's finding of defendant's guilt could not stand. There is, however, other evidence.
A person may aid, or attempt to aid, the principal to a crime by making false or misleading statements to the authorities, and such conduct will support a conviction of accessory after the fact. (E.g., People v. Duty (1969)
It is true that the evidence of defendant's attempt to mislead police is in the form of a statement made by him to the investigating officers. Defendant's statement, however, was not a description of the corpus delicti. As an attempt to mislead, the statement itself was a part of the corpus delicti. Statements that, although extrajudicial, are themselves a part of the conduct of the crime, are not subject to the corpus delicti rule. (See People v. Carpenter (1997)
In addition, there is evidence, albeit inferential, that defendant was present during the shootings in order to support a fellow gang member, to aid his escape and to report his violent conduct to the gang. "The independent proof [of corpus delicti] may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence `of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency." (People v. Alvarez, supra,
Defendant cites U.S. v. Lopez-Alvarez (9th Cir.1992)
II.
Sufficiency of the Evidence
Defendant contends that irrespective of the applicability of the corpus delicti rule, the evidence was insufficient to support the trial court's finding of guilt. Against such a contention, we review the whole record in the light most favorable to the judgment, and presume every fact reasonably deducible from the evidence in support of the judgment. (People v. Johnson (1980)
Defendant is correct that the evidence he acted as an accessory after the fact is not overwhelming, and is consistent with his claim that he acted only to protect himself. The issue, however, is not whether the evidence supports a finding of innocence, but whether it supports a finding of guilt. Defendant casts himself as an innocent bystander, who was taken by surprise when his fellow gang member began to shoot. Defendant, however, approached with Victor while Victor was yelling or saying "Sur Trece." Instead of staying to render aid to the victim, defendant ran away, suggesting knowledge of guilt and fear of apprehension. When he ran, he ran with Victor, from which it can be inferred that he was not simply trying to distance himself from the crime, but was intending to help Victor escape. Defendant accepted the backpack and the gun from Victor and concealed the gun in the backpack. It can be inferred that defendant was acting on Victor's behalf by hiding the weapon and by switching identifiable objects from Victor to himself as a means of confusing witnesses. It makes no difference whether defendant took the gun and backpack from Victor, as the prosecution suggested, or whether Victor thrust them at him. Either way, defendant accepted the weapon and hid it, and carried it until Victor took it back.
In addition, while it is true that defendant's statements to the police that Victor *383 shot Jorge in the back were not exculpatory, defendant's claim that Thomas acted as the first aggressor could be viewed as an attempt to show that Victor shot under heat of passion, or that Victor thought he was acting in self-defense. It is not required that an accessory's attempt to aid the principal be effective or well thought out. It is enough that there is evidence of an intent to aid.
Substantial evidence supports defendant's conviction of acting as an accessory after the fact.
III.
Gang Enhancement
Penal Code section 186.22, subdivision (b), requires an enhancement when the defendant is convicted of a crime "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." In order to subject a defendant to the enhancement, the prosecution must prove, among other things, that the gang includes members who either individually or collectively engaged in a pattern of criminal activity by committing, attempting to commit or soliciting two or more predicate offenses during the statutorily defined period (at least one offense committed after September 26, 1988, and the last of the offenses committed within three years after a prior offense), by two or more persons, committed on separate occasions. (Pen.Code, § 186.22, subd. (e); People v. Gardeley (1996)
The prosecution relied largely on the testimony of Probation Officer Keck, the expert on street gang culture and habit. Officer Keck's testimony was based on police reports. He explained that one police report described the December 25, 2002 shooting of a man driving down a street in central Richmond, looking for his dog. Mr. Keck testified that "it appears" that a member of the Sureño 13 gang, with a street name of "Monstro," "was in fact the shooter." Officer Keck believed that Monstro was in custody and that the case "is being prosecuted still. I'm not one hundred percent certain." Officer Keck testified that a second report described an altercation between Monstro and his girl-friend's father during which Monstro struck the victim with a shotgun. A third report concerned a vehicle found in the driveway of another individual who Officer Keck believed to be a member of the Sureño 13 street gang. The vehicle had been stolen out of El Cerrito. Monstro "subsequently was driving the vehicle, was pulled over by San Pablo police department. A firearm was located in the vehicle.... [Monstro] was aware it was stolen, and he admitted the firearm was his because he needed it for protection." Officer Keck stated, further, that he believed that Monstro had been convicted in that case. "I know he's just getting out of custody on that case."
Defendant cites Nathaniel C., supra,
In Leland D., supra,
Respondent counters by citing People v. Gardeley, supra, where the court found sufficient evidence of a predicate offense in an Information and other official court records showing that a gang member had been convicted of shooting at an inhabited building. (People v. Gardeley, supra, 14 Cal.4th at pp. 624-625,
The evidence here, while less compelling than that in People v. Gardeley, supra,
We need not decide if Officer Keck's testimony adequately established that Monstro committed a second predicate offense, as a second predicate offense was established either by Victor's commission of the assault against Thomas or Victor's murder of Jorge. (People v. Gardeley, supra,
IV.
Restitution
Defendant contends he was erroneously ordered to pay restitution to Jorge's family for the costs of his funeral. Defendant points out that no statute mandates restitution in cases such as this, where some other person was the immediate cause of economic loss to the victim or the victim's family, and the defendant's criminal liability was based on conduct taking place only after the loss was sustained.[4] Defendant also points out that since orders for restitution are tools for rehabilitation, there is no justification for ordering a defendant to pay restitution for some other person's conduct, as no rehabilitative purpose can be served by forcing a person to confront tendencies which differ from those which induced his crime. (E.g., People v. Richards (1976)
That no statute requires restitution in cases such as this does not mean that the court lacked the power to grant it. To the contrary, Penal Code section 1203.1 confers broad power on the courts to impose conditions to foster rehabilitation and to protect public safety. (People v. Carbajal (1995)
That a defendant was not personally or immediately responsible for the victim's loss does not render an order of restitution improper. To the contrary, "California courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]." (People v. Carbajal, supra,
It is true that there is little if any rehabilitative purpose in requiring a defendant to pay restitution for loss due to some other person's conduct when the defendant's criminal tendencies were not the same as those that motivated the other person to act. In In re Maxwell C., supra,
The Supreme Court, in People v. Carbajal, supra, disapproving People v. Richards, supra,
Defendant also complains of a denial of due process, noting that the court in In re Maxwell C. recognized that "[a] minor cannot be found to have committed an offense neither specifically alleged nor necessarily included in the alleged offense without his consent." (In re Maxwell C., supra,
Due process requires only that a defendant in such cases be afforded an opportunity to present evidence on the issue of his ability to pay. (People v. Campbell, supra,
CONCLUSION
The order is affirmed.
We concur: MARCHIANO, P.J., and MARGULIES, J.
NOTES
Notes
[*] KENNARD J., and WERDEGAR, J., dissented.
[1] The terms "chapete" or "chap" are derogatory terms for members of rival gangs.
[2] The term "slob" also is a derogatory term for a member of a rival gang.
[3] Penal Code section 32 provides: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
[4] Welfare and Institutions Code section 730.6 requires a juvenile court to order a minor to pay restitution to any victims or families of victims who suffered economic loss as a result of the minor's conduct. Similarly, Penal Code section 1202.4, subdivision (f) requires the court to order a defendant to pay restitution to any victim who suffered economic loss as a result of the defendant's conduct.