In re Raul

Page 1

In re RAUL O., a Person Coming Under the Juvenile Court Law THE PEOPLE, Plaintiff and Respondent, v. RAUL O., Defendant and Appellant.

D040170.

Court of Appeals of California, Fourth Appellate District, Division One.

Filed July 29, 2003.

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J196546. Charles R. Gill, Judge.

Affirmed.

NARES, J.

In this juvenile proceeding, defendant Raul O. pleaded guilty to one count of unlawful carrying and concealing of a knife under Penal Code¹ sections 12020, subdivision (a), and 17, subdivision (b)(4). As part of that plea agreement the court dismissed a charge under Health and Safety Code section 11357, subdivision (b) of possession of marijuana. Raul was declared a ward of the court under Welfare and Institutions Code section 602. He was granted probation and placed with his mother. Moreover, because the court found that he committed an offense involving criminal street gangs, Raul was required to register as a gang member under sections 186.30, subdivision (a), and 186.32, subdivision (a)(1)(C), with law enforcement in the city or county in which he resided.

On appeal, Raul challenges the court's probation condition that he register as a gang member. Raul asserts that there was insufficient evidence of his gang activities for him to be required to register. Further, Raul contends that the gang offender registration requirement of section 186.30 (1) is unconstitutionally vague and overbroad; (2) violates his constitutional right against self-incrimination; (3) violates the separation of powers doctrine; (4) violates equal protection guarantees; (5) violates his right to privacy; (6) constitutes cruel and unusual punishment; and (7) violates procedural due process rights. We conclude that substantial evidence supports the court's imposition of the gang registration condition of probation and that none of Raul's constitutional challenges to section 186.30 has merit.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background²

In January 2002 officers of the San Diego Police Department Gang Suppression Unit contacted individuals suspected to be gang members who were coming out of a residence in the 2600 block of F Street. When officers contacted Raul, he claimed to be a "Lomas" gang member and told officers that he was carrying a knife. He told police that he carried the knife for "protection" as he had been "jumped by 38th Street Shelltown" gang members. Further, while Raul later denied being a gang member when interviewed by the probation officer for his probation report, he admitted to associating with members of the Lomas gang and stated that his gang moniker was "Cuero." Raul was arrested for carrying a concealed weapon and taken to juvenile hall. Once at juvenile hall a small bag of marijuana was discovered in his pocket.

B. Procedural Background

The probation department recommended that Raul be required to register as a gang member as a condition of being granted probation. At the sentencing hearing the court indicated that it was inclined to accept that recommendation.

Raul's counsel objected to the gang registration requirement, asserting that Raul did not admit he was a gang member and was not involved in any gang activity at the time of his arrest. The prosecutor responded that Raul had admitted to police when he was stopped that he was a gang member and that he was carrying the knife as protection against a rival gang. Defense counsel argued that Raul's possession of a knife did not constitute a "gang-related" offense.

The court pointed to Raul's statement to the probation officer that he associated with Lomas gang members, that he had been "jumped" by members of a rival gang and that he was carrying a knife for that reason. The court ruled that gang registration was appropriate because Raul "was carrying the knife as a result of his association with gang members and his perceived need for self-protection."

This timely appeal follows.

DISCUSSION

I. Sufficiency of Evidence on Gang Registration Requirement

Raul asserts that the gang registration condition of probation must be stricken as there is insufficient evidence to show that the crime to which he pleaded guilty was "gang related." We reject this contention.

A. Standard of Review

On an appeal contending there is insufficient evidence to support a verdict or order of the court, we review the evidence in the light most favorable to the judgment and, in so doing, determine whether there is substantial evidence such that a rational trier of fact could make the challenged finding. (People v . Hill (1998) 17 Cal.4th 800, 848-849, 952 P.2d 673.) The reviewing court will presume in support of the trial court's judgment the existence of every fact the trier of fact could reasonably infer from the evidence. (People v . Iniguez (1994) 7 Cal.4th 847, 854, 872 P.2d 1183.) "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on '"isolated bits of evidence."' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 906 P.2d 1290 , 260-261.) That the evidence might lead to a different ruling does not warrant a conclusion that the evidence is insubstantial. (People v. Holt (1997) 15 Cal.4th 619, 669, 937 P.2d 213; People v. Berryman (1993) 6 Cal.4th 1048, 1084, 864 P.2d 40, overruled in part on another point in People v. Hill, supra, 17 Cal.4th 800.)

Moreover, it is not our function to reweigh the evidence. (People v. Perry (1972) 7 Cal.3d 756, 785, 103 Cal. Rptr. 161, 499 P.2d 129, overruled in part on another point in People v. Green (1980) 27 Cal.3d 1, 164 Cal. Rptr. 1, 609 P.2d 468.) Thus, a judgment will not be overturned even if we might have made contrary findings or drawn different inferences, as it is the trier of fact, not the appellate court, that must be convinced beyond a reasonable doubt. (People v . Perez (1992) 2 Cal.4th 1117, 1126, 831 P.2d 1159.)

B. Analysis

Section 186.30 provides in part:

"(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first. [P] (b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [P] . . . [P] (3) Any crime that the court finds is gang related at the time of sentencing." (Italics added.)

Substantial evidence supports the court's finding that Raul's crime was "gang related" so as to require that he register with authorities as a condition of probation. At the time of his arrest, Raul admitted that he was a member of the Lomas gang. He also told officers that he had a knife on his person. Raul told officers that he was carrying the knife for protection as he had been "jumped" by a rival gang recently. Further, although he later denied he was a member of a gang when interviewed by the probation officer, he did admit to associating with Lomas gang members and told the probation officer that his gang moniker was "Cuero."

The foregoing evidence shows that Raul was carrying a concealed weapon for "gang-related" purposes: to protect himself in any altercations with rival gangs. Raul asserts that the evidence shows only that he was merely a resident of a neighborhood where street gangs were common and that he associated with a gang and carried a knife for protection. However, we may not reweigh the evidence on this issue, even if we would come to a different conclusion on whether it showed Raul's crime was gang related. (People v. Perez, supra, 2 Cal.4th at p. 1126.)

Raul cites In re Eduardo C. (2001) 90 Cal.App.4th 937 as demonstrating that there was no substantial evidence here to show that Raul's crime was gang related. In that case, the Court of Appeal reversed a finding under section 186.30 as the only evidence the crime was gang related was that a gang activity box in the probation report was marked "Yes" and the minor had a gang tattoo on his arm. (Id. at pp. 941, 943.)

Here, however, Raul admitted he was a gang member. He also admitted that the reason for his crime of carrying a concealed weapon was gang related. In In re Eduardo C., by contrast, there was no evidence tying the juvenile's crime to any gang-related activity. We conclude that substantial evidence supports the court's finding that Raul's crime of carrying a concealed weapon was gang related.

II. Constitutional Challenges³

A. Waiver

The People argue in response to Raul's constitutional challenges to the gang registration requirement of section 186.30 that he has waived these issues by not making such challenges at the trial court. This argument is unavailing.

The failure to object in the trial court to a probation condition precludes review of the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237, 851 P.2d 802 (Welch).) This waiver rule applies in both adult proceedings and juvenile proceedings. (Ibid.; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 970-971.) Moreover, the rule applies even where the condition is challenged on constitutional grounds. (In re Josue S. (1999) 72 Cal.App.4th 168, 170 [probation condition challenged as being vague and overbroad]; see also People v. Gardineer (2000) 79 Cal.App.4th 148, 151 (Gardineer ).) "A defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal. [Citation.]" (Gardineer, supra, 79 Cal.App.4th at p. 151, italics added.)

Raul asserts that he did not waive his constitutional challenges as he objected to the sufficiency of the evidence to support the gang registration as a...