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Filed 3/16/11 In re D.D. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re D.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A128775 D.D., Defendant and Appellant. (Contra Costa County Super. Ct. No. J0901446) D.D. (appellant) appeals after the juvenile court sustained one count of assault with a deadly weapon or by means of force likely to produce great bodily injury and found true a gang enhancement allegation in a juvenile wardship proceeding (Welf. & Inst. Code, § 602), and removed him from his home for placement. Appellant contends (1) the evidence is insufficient to support the juvenile court s true finding on the assault count, and (2) the evidence is insufficient to support the juvenile court s true finding on the gang enhancement allegation. We shall affirm the order. PROCEDURAL BACKGROUND On October 20, 2009, a juvenile wardship petition was filed alleging that appellant had committed assault with a deadly weapon and by means of force likely to produce great bodily injury on two other juveniles (Pen. Code, § 245, subd. (a)(1) count 1 1 [A.O.] and count 2 [J.O.]).1 The petition further alleged that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang, and with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). On April 22, 2010, following a contested jurisdictional hearing, the juvenile court sustained the petition as to count 2 and the related gang enhancement, but found that count 1 and its enhancement were not proven. At the May 13, 2010, dispositional hearing, the court declared wardship and ordered appellant placed in the Orin Allen Youth Rehabilitation Facility for a nine-month term. On May 21, 2010, appellant filed a notice of appeal. FACTUAL BACKGROUND Michael Fisher testified that, on the afternoon of October 16, 2009, he was getting lunch at a Jack in the Box restaurant in Antioch. When he arrived, two males were already inside. Fisher heard one of them ask an employee if he could use the phone to get a ride out of the area. He went behind the counter and the employee gave him a cell phone. He then placed a call and spoke to someone in Spanish, which Fisher could not understand. The other male was around the corner by the bathrooms when four other males rushed into the restaurant and ran to the male by the bathroom. The male behind the counter kept trying to come out to help his friend, but one of the four males kept throwing chairs at him every time he made the attempt. Everyone was yelling and screaming in Spanish, so Fisher could not understand what they were saying. He could not see what was happening between the four males and the male who had been around the corner, although he did hear a bottle break. He also saw fists flying as the males took turns moving in and out to hit the male who was by the bathroom. He saw no weapons. Periodically, one of the four males would step away from the melee to throw a chair at the male behind the counter. The chairs were made of 1 All further references are to the Penal Code unless otherwise indicated. 2 metal and weighed more than five pounds and no more than 10 pounds. The person threw the chairs overhand over his head, like an inbound soccer pass. The chairs came forward at about waist height, and landed within a foot of the male behind the counter. The chairs knocked the cash register and other items off of the counter. Fisher saw the four males leave the restaurant. When they got to the end of the driveway, a police officer pulled up and stopped them.2 As they left, the male who had been behind the counter said, They stabbed my brother. They stabbed my brother. A.O., who testified under a grant of immunity from prosecution pursuant to section 1324, testified that he was an associate with the Sureño gang, specifically with the subset known as South Side Locos in Concord. He wears the color blue, which is associated with the Sureño gang. The Norteños are a rival gang to the Sureños and are associated with the color red. On the afternoon of October 16, 2009, A.O. and his brother J.O. were walking to the BART Park and Ride in Antioch. A.O. was wearing khaki shorts, a white shirt, and Vans shoes with a blue bandana design on them. Because they were blue, his shoes were of a type associated with the Sureño gang. J.O. had tattoos all over his body, including three dots on his neck behind his right ear; this tattoo was associated with the Sureños. A.O. had a similar tattoo on his fingers. Both brothers had tattoos reading RIP Shiny, which referred to a friend who had died. As A.O. and J.O. were walking, four guys drove up in a red Buick automobile and started to mess with them. J.O. said they were Norteños. A.O. saw one of them gesture in a way that made A.O. think he had a gun, and A.O. got scared and panicked. He saw the faces of a couple of the people in the car and, at the hearing, identified appellant as one of those people. Appellant was seated in the back of the car next to the person who gestured as if he had a gun. A.O. did not see anyone in the car flash signs at him and J.O. and did not recall hearing any of them say anything to them, although it is 2 Fisher did not recognize anyone from the incident in the courtroom. He said, he didn t take a look at anybody because he did not want to get involved. 3 possible they used the term scraps. Because the males looked suspicious, A.O. told J.O. they should go make a phone call to get out of here. They therefore turned around and ran to Jack in the Box. Once inside the restaurant, J.O. borrowed a phone and made a call so that they could get picked up; he was in front of the cash register. A.O. went and stood near the restrooms. The four people from the car then came inside the restaurant; one was holding a vodka bottle in his hand. Appellant was one of the four people. As they approached A.O., he said, You all going to do this in here? What? What? You going to beat my ass and do something? Two of the people then attacked him. At first, they used their fists and then one of them hit him on the head with a bottle. He ended up in the bathroom, where two of the attackers brought out knives. He defended himself with his fists and fought to take away the knives, but one of the attackers stabbed him in the chest. He did not see appellant with a knife and appellant did not stab him. After he was stabbed, A.O. felt dizzy. He did not see what happened to his brother, but when he came out of the bathroom, he saw his brother by the cash register and there were broken bottles, chairs, and tables all over the place. He also saw the four attackers run out of the restaurant. He identified the four individuals shortly thereafter. A.O. was taken by ambulance to the hospital. J.O. also testified under a grant of immunity from prosecution. He was a member of the Sureño gang; his subset was the South Side Locos of Concord. He was jumped into the gang at age 12. As a Sureño, he wears blue, and also wears Dickies and flannel. On October 16, 2009, he was wearing a black and white checked shirt over a dark blue shirt, a black canvas belt, black Dickies, and black and white shoes. As he and his brother A.O. were walking near the BART Park and Ride, a burgundy car came by and the people inside the car yelled things at them, like All you asses, scrap, whoop, whoop, and also flipped them off. J.O. told A.O. they were in the wrong area and the people in the car were going to catch them slipping, which means getting caught by rival gang members. J.O. thought he and A.O. were probably going to get shot or 4 stabbed, so he said they should go to the Jack in the Box to get away from them, and also to borrow a phone to call his mother to pick them up. They ran to the Jack in the Box, and J.O. saw the people in the car looking for them. Once inside, he went by the register to use the phone and A.O. went by the bathrooms. He then saw the four or five people who had been in the car come into the restaurant. Appellant was one of them. Three of them started attacking A.O. and then two of them, including appellant, went toward J.O. and started hitting him with their fists in his shoulder and chest area. J.O. was swinging back. Then the two people backed away from J.O. and started throwing chairs at the register, where J.O. and the restaurant workers were standing. The other person went to where other two individuals were attacking A.O., but appellant kept throwing chairs toward J.O. At some point, all of the attackers ran outside and J.O. saw police detaining them. On the day of the incident, appellant was baldheaded with a [M]ongo, with like a braid on it, a haircut that only Northerners have.3 J.O. knew that the people from the red car who attacked them were Northerners because two of them had Mongos and most of them were dressed like northerners, with white shirts, black pants, and red belts. Antioch Police Officer Tara Nissen testified that she was less than a block away when she was dispatched to the Jack in the Box. When she arrived, she saw four young men running from the front of the restaurant toward the restaurant next door. She detained the four individuals, one of whom was appellant. She found two knives nearby, one in a grassy area between the two restaurants and one in a dirt area closer to the Jack in the Box. She also found a third knife on one of the people she detained. She searched appellant, but found nothing illegal in his possession. Antioch Police Officer James Stenger, a gang investigator since January 2008, testified as an expert on Hispanic criminal street gangs in East Contra Costa County. Norteños identify with the color red and Sureños identify with the color blue. The red belt that appellant was wearing at the time of the incident of October 16, 2009, was a 3 A.O. also testified that the Mongolian hairstyle is associated with Norteños. 5 common piece of paraphernalia that s worn by Norteño criminal street gang members. The area in which the attack took place is more associated with Norteños than Sureños. Crimes that constitute the primary activities of Norteños in East Contra Costa County include aggravated assault, drug distribution, homicide, and auto theft. Based on the prosecutor s hypothetical example involving the facts of this case, Stenger opined that such an assault would be committed for the benefit of or in association with the Norteño criminal street gang as well as to promote, further, or assist in criminal conduct by Norteño members. Stenger also opined that this is a very typical gang-related assault, given the attack on two Sureños by four Norteños, the words and hand gestures used, and the colors worn. He believed the motivation for the crime was gang rivalry. Based on appellant s involvement in prior cases and the circumstances of the present matter, Stenger believed that appellant was an active member of the Norteño gang. He believed that the other three participants in the attack were also active Norteños. Stenger interviewed A.O. at the Jack in the Box on the day of the incident. A.O. said that someone in the car had yelled, Norte and Fuck you, Scraps at him and J.O. A.O. also said he later saw appellant and another person throwing chairs at J.O. inside the Jack in the Box. A.O. told him that all four of the people who chased him into the Jack in the Box had knives. Stenger also interviewed J.O., who told him that someone in the vehicle had yelled, Fuck you, Scraps and someone also yelled Norte. He also said that he saw one of the car s occupants throw up a number 4 sign, which is a hand sign for the Norteño gang. Inside the Jack in the Box, J.O. saw all four of the people from the car swinging their knives at A.O. J.O. went to help his brother, but two people began throwing chairs at him and he went behind the counter. At the conclusion of the hearing, following the argument of counsel, the juvenile court dismissed count 1, which had alleged assault with a deadly weapon and by means of force likely to produce great bodily injury on A.O., as well as the related gang enhancement. The court, however, found beyond a reasonable doubt that the allegations 6 of count 2 assault with a deadly weapon and by means of force likely to produce great bodily injury on J.O., along with the gang enhancement had been proven. DISCUSSION I. Sufficiency of the Evidence as to the Assault Appellant contends the evidence is insufficient to support the juvenile court s true finding on the assault count. In assessing the sufficiency of the evidence, [o]ur review is governed by the same principles applicable to adult criminal appeals. [Citation.] Our function is to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding. [Citation.] (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) Section 245, subdivision (a)(1), makes it a crime to commit an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . . One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. (People v. Aguilar (1997) 8 Cal.App.4th 1023, 1028; see also People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.) In the present case, appellant argues that the court s finding cannot be upheld on either ground alleged because the chairs appellant threw at J.O. do not constitute deadly weapons, nor were they thrown with force likely to produce great bodily injury. (See § 245, subd. (a)(1).)4 Because we conclude that the evidence supports the court s 4 Although the juvenile court did not specify whether it relied on one or both parts of section 245, subdivision (a)(1), in making its finding on count 2, appellant focuses on the assault by any means of force likely to produce great bodily injury alternative of the statute. Since, as we shall discuss, post, we agree that the court s finding as to this 7 conclusion that the force and manner in which appellant threw the chairs were likely to produce great bodily injury, we need not address whether the chairs could also constitute deadly weapons within the meaning of section 245, subdivision (a)(1). Section 245, subdivision (a)(1), covers a wide range of offenses. At one end of the spectrum there is conduct virtually indistinguishable from premeditated murder, while at the other there is a mere attempt to seriously injure which lacks any specific intent and is completely futile. (People v. Wingo (1975) 14 Cal.3d 169, 176 (Wingo).)5 Great bodily injury, as described in the statute, is bodily injury which is significant or substantial, not insignificant, trivial or moderate. (People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.) It does not, however, require permanent or protracted impairment, disfigurement, or loss of function. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.) It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the [trier of fact]. [Citation.] If there is sufficient evidence to sustain the [trier of fact s] finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding. [Citations.] (People v. Escobar (1992) 3 Cal.4th 740, 750.) Here, the evidence in the record shows that appellant repeatedly threw metal chairs at J.O. during the incident. Mr. Fisher, an eyewitness who did not know any of the parties involved, testified that every time J.O. attempted to come out from behind the counter, one of the attackers threw a chair at him. The chairs were made of metal and second part of section 245, subdivision (a)(1), was supported by substantial evidence, we need not address whether appellant also committed assault with a deadly weapon. 5 The court in Wingo offered the example of a person who is heavily intoxicated [and] is present when a fight breaks out in a barroom. In the excitement of the fray he strikes out at an intended victim with his fists, but because of his impaired faculties completely misses his target. The use of hands or fist alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. (Wingo, supra, 14 Cal.3d at p. 176, fn. omitted.) 8 weighed between five and 10 pounds. The attacker threw the chairs with two hands, over the top of his head, and they were coming at J.O. at waist height. The chairs would come within a foot of J.O. before hitting the counter and the cash register. The trial court was not unreasonable in concluding that metal chairs weighing over five pounds, thrown in the way described, would be capable of causing great bodily injury, i.e., causing significant or substantial injury, had they actually made contact with J.O. s body. (See People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.) That none of the chairs actually hit J.O. was merely fortuitous and is not dispositive. [S]ince the statute focuses on force likely to produce harm, it is immaterial that the force actually resulted in no harm whatever. (Wingo , supra, 14 Cal.3d at p. 176.) Hence, substantial evidence supports the juvenile court s finding that appellant assaulted J.O. by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1); see In re Muhammed C., supra, 95 Cal.App.4th at p. 1328.) II. Sufficiency of the Evidence as to the Gang Enhancement Appellant contends the evidence is insufficient to support the juvenile court s true finding on the gang enhancement allegation. (See In re Muhammed C., supra, 95 Cal.App.4th at p. 1328 [question on appeal is whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding ].) Section 186.22, subdivision (b)(1), provides a sentence enhancement for 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 any criminal conduct by gang members. . . . Under California law, a person with special knowledge, skill, experience, training, or education in a particular field may qualify as an expert witness and offer testimony in the form of an opinion. (Evid. Code, §§ 720, 801.) Pursuant to Evidence Code section 801, subdivision (a), such expert opinion testimony is admissible only if the subject matter of the proposed testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Expert opinion on the culture and 9 habits of criminal street gangs meets this criterion and is therefore admissible. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) In the present case, Officer James Stenger, on the basis of a hypothetical, opined that the assaults in this case were committed for the benefit of or in association with the Norteño criminal street gang. He believed that this was a very typical gang-related assault, motivated by gang rivalry, with four Norteños attacking two Sureños in Norteño territory. Stenger also believed that appellant was an active Norteño gang member, based on appellant s involvement in prior cases as well as the circumstances of the present case. He also believed the other three participants in the attack were Norteños. The evidence supported Stenger s opinion. At the time of his arrest, appellant had a Mongo or Mongolian hairstyle, which J.O. and A.O. testified were worn only by Norteños. He was also wearing a red belt, a common piece of Norteño gang member paraphernalia, at the time of his arrest. J.O. testified that he was a Sureño gang member and A.O. testified that he was a Sureño gang associate. J.O. heard the people in the red car calling them scraps and other things to disrespect them as Sureños. According to Stenger, both J.O. and A.O. told him they heard someone in the car yell, Norte and J.O. saw someone throw up a number 4 sign, which is a hand sign for the Norteño gang. Finally, according to Stenger, aggravated assault is one of the primary criminal activities of Norteño gang members. Based on this evidence, we conclude the record contains substantial evidence that appellant and the other three assailants came together as gang members to attack [J.O. and A.O.] and, thus, that [appellant] committed [this crime] in association with the gang. (People v. Albillar (2010) 51 Cal.4th 47, 62 (Albillar); see also § 186.22, subd. (b)(1); People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1199 (Morales).) Similarly, the evidence supports the conclusion that the assault was for the benefit of the Norteño gang. (§ 186.22, subd. (b)(1).) Given Stenger s testimony that the motivation for this offense was gang rivalry, it is only logical that a successful assault on Sureños encroaching on Norteño territory would benefit the Norteño gang in attempting to dominate its rival. (See Albillar, at pp. 62-64.) 10 This same substantial evidence also supports Stenger s opinion, based on a hypothetical, that the attack was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).) The evidence shows that appellant intended to assist other Norteño gang members in committing the assault on two people they believed to be Sureños. As our Supreme Court has recently confirmed, the specific intent required under this portion of the statute is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be apart from the criminal conduct underlying the offense of conviction sought to be enhanced. (Albillar, supra, 51 Cal.4th at p. 66; see also § 186.22, subd. (b)(1); Morales, supra, 112 Cal.App.4th at p. 1198.) In conclusion, substantial evidence supports the juvenile court s true finding on the gang enhancement allegation. DISPOSITION The juvenile court s order is affirmed. _________________________ Kline, P. J. We concur: _________________________ Lambden, J. _________________________ Richman, J. 11
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