Monday, July 19, 2004
Page 3
Appeals Court Rules on Intent Required Under Gang Loitering Ordinance
By a MetNews Staff Writer
A conviction under Los Angeles County’s gang loitering ordinance requires evidence of intent beyond gang membership and presence in an area in which the gang seeks to publicize its dominance, this district’s Court of Appeal ruled Friday.
Justice Lawrence D. Rubin said Div. Eight’s ruling was the first published appellate decision to construe Los Angeles County Code Sec. 13.44.010, which prohibits loitering by gang members to assert territorial dominance. Nor, he said, had the court located any reported rulings addressing evidentiary requirements under similar laws.
Sec. 13.44.010 provides that criminal street gang members may be charged with a misdemeanor if they “loiter or idle” in a public place “[w]ith the intent to publicize a criminal street gang’s dominance over certain territory in order to intimidate nonmembers of the gang from entering, remaining in, or using” the public place or adjacent areas.
The case involved an alleged juvenile member of the Mad Ass Gangster Crips who was arrested by sheriff’s deputies after complaints from a neighbor. A deputy warned him to leave the area or face arrest.
The deputy returned about 20 minutes later and took the boy, identified in the court’s opinion only as Daniel G., into custody. At trial, the deputy testified he had previously seen the minor “hanging out” with MAGC members known to engage in intimidating activity.
On cross-examination, however, he could not identify specific intimidating behavior in which he had observed Daniel G. engaged. When asked why the arrest was made on that particular night, the deputy said gang activity had “gotten so out of control that residents were unable to leave their house.”
He added:
“They were absolutely scared to death to leave. And it’s time for us to start taking some action.”
Rubin said the testimony amounted “to no more than this: because the minor belonged to MAGC, and because MAGC members often intimidated others and publicized their dominance of the area, the minor’s mere presence at the location was enough to show that the minor shared that intent on that occasion.”
He added:
“Although there was evidence that MAGC members in general had engaged in prohibited conduct, there was no evidence that the minor had ever done so in the past. Nor was there evidence to suggest that despite the absence of past participation, the minor was on this occasion either taking part in or was close by while other gang members did or said anything that could lead to an inference that they had the intent to intimidate or publicize.”
That, he said, was insufficient under the standard adopted for loitering bans unrelated to gang activity in People v. Frazier (1970) 11 Cal.App.3d 174 and People v. Superior Court (Caswell) (1988) 46 Cal.3d 381.
He explained:
“The common thread running through both Frazier and Caswell is the confluence of the past and present conduct of a specific individual.”
The deputy did not testify that Daniel G. used gang signs or symbols, indicated his affiliation through “seemingly benign jewelry, words, or clothing,” or engaged in “intimidating conduct such as menacing looks or threatening body language,” Rubin observed.
Since the evidence of intent was inadequate, Rubin said, it was unnecessary for the appellate court to consider the boy’s challenges to the ordinance’s constitutionality or to the evidence of his gang membership.
But Rubin said Los Angeles Superior Court Referee Stephanie M. Davis properly adjudged Daniel G. a ward of the court based on a charge he possessed an assault weapon. That charge was based on a neighbor’s testimony she saw him and several other youths passing around an assault rifle four months before the loitering arrest.
The justice rejected the boy’s argument that evidence he briefly handled the weapon, which was later recovered by police, was insufficient to support the possession charge.
The case is In re Daniel G., B167064.
Copyright 2004, Metropolitan News Company