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iLaw Dictionary
California
Law Dictionary
Criminal Law-Probable Cause Could be Inferred From the Circumstances.
(In re Daniel G.)
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Criminal Law-Probable Cause of Intent May Inferred From the Circumstances.
(In re Daniel G.)

2. Gang Loitering

Los Angeles County Code section 13.44.010 provides in relevant part that it is a misdemeanor “for any person who is a member of a ‘criminal street gang’ as that term is defined in California Penal Code section 186.22(f) or who is in the company of or acting in concert with a member of a criminal street gang to loiter or idle in a ‘public place’ as defined in Section 13.44.010 B under any of the following circumstances: [¶] 1. With 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 area; . . .” The minor contends that that there is insufficient evidence that he loitered with the intent to publicize the gang’s presence or to intimidate others. We agree.[4]

There are no reported decisions construing the County’s ordinance. The parties have not cited, and we are unable to find, reported decisions considering whether there was sufficient evidence to find a violation of any other gang loitering ordinances. Decisions construing other types of loitering ordinances are instructive, however. The court in People v. Frazier (1970) 11 Cal.App.3d 174 (Frazier) considered the convictions of three defendants for violating Penal Code section 653g, which prohibits loitering in or about the area of a public school. In order to pass constitutional muster, the school loitering statute had been construed to include a specific intent requirement – proof that the defendant loitered with the intent to commit a crime should the opportunity arise. (Id. at pp. 182-183.) Proof of the defendant’s intent did not require any specific kind of evidence and could be inferred from the circumstances. (Id. at p. 183.)

The evidence in Frazier showed that three hot dog stands within a block of a public high school had become a magnet for large numbers of juveniles and adults, who would congregate there to gamble, fight, drink, disturb the peace, or take drugs. This prompted numerous complaints from school officials and nearby residents. Two of the defendants were unemployed and had a history of being in or around the school grounds without reason. One had been spotted at a hot dog stand under the influence of alcohol. On other occasions he had been illegally parked and was present when gambling was going on. The other had also been present while gambling occurred. Both had been warned to leave the area before, and had done so. Right before the arrests, one of the defendants was 10 feet from and possibly taking part in gambling activity, playing his car radio loudly enough to disturb the peace. After being arrested, he twice tried to escape. On appeal from his conviction, the appellate court held the evidence was sufficient to show the defendant loitered with the intent to commit several crimes, including gambling, disturbing the peace, and resisting arrest. (Frazier, supra, 11 Cal.App.3d at pp. 183-184.) When the second defendant was arrested, he was also seen close to or taking part in gambling and also twice escaped from the arresting officers, evidence which supported his conviction as well. (Id. at p. 184.) Although the third defendant had a history of being in the area and close to the conduct of illegal activity, when he was arrested he was not near to or engaging in any illegal activity. Instead, he was standing with a group of minors “doing nothing.” The appellate court reversed that defendant’s conviction, holding the evidence was insufficient to support a finding of the required intent. (Id. at pp. 182, 184.)

The court in People v. Superior Court (Caswell) (1988) 46 Cal.3d 381 (Caswell), considered the constitutionality of Penal Code section 647, subdivision (d), which prohibits loitering in or around public toilets with the intent to commit a lewd or lascivious act. In arguing that the statute was unconstitutionally vague, the defendant contended it impermissibly allowed police officers to make arrests based on their observations of noncriminal conduct. The Supreme Court rejected that contention, holding that apparently lawful conduct could well give rise to probable cause to believe an individual had violated the statute. “For example, an officer may personally know an individual and may be aware that the individual has repeatedly solicited or committed lewd acts at the same location in the past. Under such circumstances, if the officer observes the individual linger suspiciously in the restroom for an inordinately long period of time, he might properly infer that the suspect did not have an innocent intent. In other cases, a police officer may have information from a reliable informant that a particular individual has disclosed his intent to frequent a particular public restroom to attempt to solicit acts in the restroom; in that situation too, the officer may well have probable cause to infer the suspect’s intent even if the suspect has not yet committed indecent exposure or an actual solicitation. Similarly, complaints by citizens who have used a certain restroom that an individual was lingering inside engaging in suggestive conduct – not amounting to actual solicitation or indecent exposure – may legitimately give rise to a reasonable inference that the individual harbors the illicit intent.” (Caswell, supra, at pp. 395-396, italics added and fn. omitted.)

The common thread running through both Frazier and Caswell is the confluence of the past and present conduct of a specific individual. In Frazier, all three defendants had been spotted near the high school on past occasions either engaged in or in very close proximity to ongoing criminal activity. In determining whether there was sufficient evidence that the three defendants intended to look for the opportunity to commit a crime, the convictions were sustained as to only the two defendants who were observed nearby or in the process of committing criminal acts at the time of their arrests. (Frazier, supra, 11 Cal.App.3d at pp. 183-184.) The defendant who was “doing nothing” at the time of his arrest – who was seen simply standing with a group of juveniles – had his conviction reversed. In Caswell, the Supreme Court held that evidence of an individual’s prior conduct, when coupled with evidence of other suspicious but noncriminal conduct occurring right before the arrest, might be enough to show the required intent to commit a lewd act. (Caswell, supra, 46 Cal.3d at pp. 395-396, and fn. 5.)

Such evidence is missing here. Gangs will often maintain their dominance through fear and intimidation by the use of gang signs and symbols. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1266 [considering validity of civil anti-gang injunction].) They may also do so by way of seemingly benign jewelry, words, or clothing. (Stephenson v. Davenport Community School Dist. (8th Cir. 1997) 110 F.3d 1303, 1311 [construing constitutionality of Iowa school district regulation banning gang-related clothing and symbols].) Other evidence might include observations of intimidating conduct such as menacing looks or threatening body language.[5] When Deputy Row’s testimony is distilled, however, it amounts 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. 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. Row testified that he had not received any reports of trouble in the area and that the minor was doing nothing more than standing on the sidewalk talking to a fellow gang member. He did not testify that the minor or Kelly were dressed in gang attire, throwing signs, or otherwise demonstrating their gang affiliation. In short, there was no evidence that either one had done anything more which could lead to an inference that they were intimidating others or publicizing their gang at that time. We therefore hold that the evidence was insufficient to sustain the petition.

In re Daniel G. B167064Possession may be actual or constructive

Jul 16 2004

B167064
[PDF] [DOC]

In re Daniel G. 7/16/04 CA2/8

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