In re Edwin P.

Filed 1/11/17 In re Edwin P. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re EDWIN P., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWIN P.,
Defendant and Appellant.
G052488
(Super. Ct. No. DL044119)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, Donna
Crandall, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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Minor Edwin P. (Edwin) appeals from the order of the juvenile court on a
petition brought pursuant to Welfare and Institutions Code section 602. He argues there
was insufficient evidence to find that he received a stolen vehicle, did so for the benefit
of a street gang, and committed the substantive street terrorism offense. In a
supplemental brief, he argues the enactment of Proposition 47 requires, at a minimum,
the stolen vehicle count to be reduced to a misdemeanor and the street terrorism offense
to be dismissed.
We find there is sufficient evidence to support the true findings on both
charges and the gang enhancement. We also conclude that because Proposition 47 does
not apply to the offense of receiving a stolen vehicle, it is not relevant here.
I
FACTS
At the time the current petition was filed, Edwin had already been declared
a ward of the court and was on supervised probation.1
The current petition, filed in May
2015, was the seventh filed in this case. It alleged Edwin had committed the following
offenses: unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count one);
receiving stolen property (Pen. Code, § 496d, subd. (a),2
count two); street terrorism
(§ 186.22, subd. (a), count three); driving without a valid license (Veh. Code, § 12500,
subd. (a), count four); resisting or obstructing an officer (§ 148, subd. (a)(1), count five);
and driving with a blood-alcohol level of .01 percent or greater while under the age of 21
(Veh. Code, § 23136, subd. (a), count six). It was further alleged Edwin had committed
counts one and two for the benefit of, or in association with, a criminal street gang with
1
Edwin was just over 18 years old at the time.
2
Subsequent statutory references are to the Penal Code unless otherwise indicated.

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the intent to promote, further or assist in the gang members’ criminal conduct. (§ 186.22,
subd. (b)(1).)
On January 16, 2015, Fullerton Police Officer Nicholas Dempkowski was
on patrol when he saw a white two-door Honda Accord speeding down a street with
approximately four to five Hispanic males inside. He turned around and followed the
Honda. As he drove, he ran the license plate and the vehicle came back as stolen.
The vehicle first sped up, then stopped, “almost like a double-park
situation.” The details are somewhat ambiguous, but the occupants of the vehicle began
to exit the vehicle shortly after it stopped. Before exiting, the two front seat occupants,
with the doors open, were in the vehicle as if they were trying to retrieve something from
the console before exiting. Edwin was the person who exited from the driver’s seat.
Edwin was wearing jeans, white shoes, and a blue hoodless sweatshirt with printing in
white on the front. This mode of dress was consistent with Baker Street gang attire.
Dempkowski exited his own vehicle and yelled, “Police. Show me your
hands.” All the vehicle’s occupants, except one, fled on foot. Dempkowski sent out a
radio call to other officers in the area, providing a description of Edwin. The individual
still in the vehicle was Gabriel Jimenez, a documented member of the Baker Street gang.
Dempkowski approached Jimenez, who appeared intoxicated, and found a small amount
of methamphetamine in his possession. Jimenez was arrested.
Officer Ryan Warner, who had set up a perimeter nearby, saw Edwin about
30 minutes later. Warner approached and told Edwin to sit down, but he refused to
comply. After Edwin ignored multiple demands, Warner handcuffed him. Dempkowski
went to Warner’s location and identified Edwin as the driver.
Also detained that night was William Ashlock, another Baker Street gang
member. He was uncooperative. A search found a shaved key in his possession that was
later used to start the Honda. Ashlock was related to the owner of the car, Jeremy
Henderson, and also had a paystub with Henderson’s name on it at the time he was

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searched. Dempkowski later stated Ashlock was not the driver he saw at the time the
vehicle stopped.
Later investigation revealed that Ashlock was Henderson’s cousin, lived
with him for some time, and sometimes drove the Honda with Henderson’s permission.
A few weeks before the night in question, Henderson refused Ashlock permission to
drive the vehicle. Henderson also kicked Ashlock out of the house. The Honda was
stolen that night. Henderson did not know Edwin and had never given him permission to
drive the vehicle.
At the jurisdiction hearing, Officer Kenneth Edgar testified as the
prosecution’s gang expert. He was familiar with the Baker Street gang. He described
their territory, and the vehicle stop in this case took place just north of that territory. He
also described their typical clothing and tattoos. Edwin has a tattoo consistent with the
Baker Street gang tattoos. Based on his criminal history, tattoo, prior police contacts, and
the locations and people he has been involved with in documented incidents, Edgar
opined that Edwin was a Baker Street gang member. He stated the primary activities of
the gang were assaults, weapons possession, vehicle theft, and robbery.
When presented with a hypothetical based on the facts of this case, Edgar
stated the possession and unlawful taking of the vehicle benefitted the gang. It provided
transportation that was not associated with the gang members. It also bolstered the
gang’s reputation and the reputation of the individuals who were “putting in work” for
the gang. Even stealing a car when it is not intended for use in other crimes can benefit
the gang member’s reputation. He also testified that gang members mostly commit
crimes together, and share in the profits of those crimes.
At the close of evidence, the prosecution dismissed count six (minor’s
blood-alcohol level over .01 percent). The court, although it was “pretty sure” that
Edwin was the driver of the vehicle, could not make that finding beyond a reasonable

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doubt, and accordingly, dismissed counts one and four (unlawfully taking the vehicle and
driving without a valid license).
The court then found the allegations true that Edwin had received a stolen
vehicle, committed street terrorism, and resisted a peace officer (counts two, three and
five). The court also found true the gang enhancement on the stolen vehicle allegation.
Edwin was sentenced to 540 days of custody less time served, with his probation to
terminate upon release from custody. Edwin now appeals.
II
DISCUSSION
Substantial Evidence of Receiving a Stolen Vehicle
“Our role in considering an insufficiency of the evidence claim is quite
limited. We do not reassess the credibility of witnesses [citation], and we review the
record in the light most favorable to the judgment [citation], drawing all inferences from
the evidence which supports the jury’s verdict. [Citation.]” (People v. Olguin (1994) 31
Cal.App.4th 1355, 1382.) Before a verdict may be set aside for insufficiency of the
evidence, a party must demonstrate “that upon no hypothesis whatever is there sufficient
substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755;
People v. Bolin (1998) 18 Cal.4th 297, 331.) We neither reweigh nor resolve conflicts in
the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The standard of review is
the same where the prosecution relies primarily on circumstantial evidence. (People v.
Miller (1990) 50 Cal.3d 954, 992.)
Section 496d, subdivision (a) states, in relevant part: “Every person who
buys or receives any motor vehicle . . . that has been stolen or that has been obtained in
any manner constituting theft or extortion, knowing the property to be stolen . . ., . . .
shall be punished by imprisonment . . . .” Thus, to sustain the petition on this count, the
prosecution was required to prove (1) the vehicle was stolen; (2) the defendant knew it

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was stolen; and (3) the defendant had possession of it. (People v. King (2000) 81
Cal.App.4th 472, 476.) “The requisite possession of the stolen property may be either
actual or constructive, and need not be exclusive. In fact, physical possession is not
required, as it is sufficient if the defendant acquires a measure of control or dominion
over the stolen property. However, mere presence near the stolen property in and of itself
is insufficient evidence of possession to sustain a conviction for receiving stolen
property.” (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
Edwin first argues there was not substantial evidence to demonstrate he
knew the vehicle was stolen. But there was strong circumstantial evidence to support
such an inference. He was present on the night at the border of Baker Street gang
territory in a vehicle with two other gang members. Ashlock had possession of a shaved
key that later successfully started the vehicle, and he was the cousin of the owner of the
stolen vehicle. Edwin also fled from the scene when the police officer approached. All
of these facts, along with the testimony of the gang expert regarding gang habits, strongly
support the inference that Edwin knew the vehicle was stolen.
Next, Edwin claims he did not have possession of the vehicle. While
possession cannot be inferred from mere presence, additional facts can support an
inference of possession. (People v. Land (1994) 30 Cal.App.4th 220, 228.) “[T]here is
no single factor or specific combination of factors which unerringly points to possession
of the stolen vehicle by a passenger. [T]he question of possession turns on the unique
factual circumstances of each case.” (Ibid.) In Land, the court determined that from “the
facts of appellant’s close relationship to the driver, use of the vehicle for a common
criminal mission, and stops along the way before abandoning it (during which appellant
apparently made no effort to disassociate himself from his friend or the stolen vehicle) a
reasonable juror could infer appellant, as the passenger, was in a position to exert control
over the vehicle. This inference, in turn, would support a finding of constructive
possession.” (Ibid.)

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Here, unlike the authority upon which Edwin relies, there was evidence that
at least three Baker Street gang members were riding around in the vehicle. Vehicle theft
was one of the gang’s primary activities, and the gang expert also testified that such
vehicles are used to commit crimes together and benefit the gang in multiple ways.
Edwin fled from the vehicle after being stopped by police. Evidence of constructive
possession can be “‘rather slight,’” and that low bar is easily cleared here. (People v.
Land, supra, 30 Cal.App.4th at p. 225.) Edwin’s presence, whether as a driver or
passenger, when taken together with the other relevant facts, reasonably supported an
inference of possession.
Substantial Evidence Supporting the Gang Enhancement
Edwin next contends the evidence was insufficient to support a true finding
on the gang enhancement, section 186.22, subdivision (b)(1), in connection with the
receiving a stolen vehicle count. The same standard of review discussed ante applies to
section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362,
371.) As we also discussed, our review of sufficiency of the evidence claims is quite
limited. (People v. Olguin, supra, 31 Cal.App.4th at p. 1382.)
The California Street Terrorism Enforcement and Prevention Act (STEP
Act; § 186.20, et seq.) criminalizes specified acts when committed in connection with a
criminal street gang. It also provides for enhanced punishment for any misdemeanor or
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 in any criminal
conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)
This enhancement has two essential elements: the crime must be
committed for the benefit of, at the direction of, or in association with, a criminal street
gang, and it must be committed with the intent to promote, further, or assist in criminal
conduct by gang members. (People v. Albillar (2010) 51 Cal.4th 47, 55-56 (Albillar).)

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The evidence supports the finding that both prongs are satisfied. First, the
evidence demonstrated Edwin’s receiving of the stolen vehicle was committed in
association with one or more Baker Street gang members. Ashlock, in possession of the
shaved key, and the cousin to the victim, was discovered nearby when Edwin fled from
the scene. Jimenez, another Baker Street gang member, was also in the vehicle. The
presence of other gang members creates an inference the crime was committed in
association with a street gang. (See People v. Morales (2003) 112 Cal.App.4th 1176,
1198.)
With respect to the intent to promote, further or assist criminal conduct by
gang members, the court had both evidence of the involvement of other gang members
and the gang expert’s testimony to rely upon. Evidence that Edwin was with other gang
members is also evidence the crime was intended to promote, further or assist gang
members’ criminal conduct. (See People v. Miranda (2011) 192 Cal.App.4th 398, 413.)
The gang expert testified that the vehicle was near Baker Street territory and the three
known gang members were wearing clothing consistent with the gang’s colors. He also
testified about the nature of gang crimes and that vehicle theft was one of Baker Street’s
primary activities. Taken together, there was sufficient evidence for the juvenile court to
conclude the crime was intended to promote, further or assist criminal conduct by gang
members under section 186.22, subdivision (b)(1).
Substantial Evidence of Street Terrorism
Edwin argues that the evidence is insufficient to support a true finding
under section 186.22, subdivision (a), the street terrorism statute. Unlike the gang
enhancement under section 186.22, subdivision (b)(1), the street terrorism offense is not a
sentence enhancement, but a substantive crime. While similar to the enhancement, the
language of the statute is slightly different.

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Section 186.22, subdivision (a), provides: “Any person who actively
participates in any criminal street gang with knowledge that its members engage in or
have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang, shall be
punished . . . .”
Edwin again argues there was insufficient evidence that his actions
promoted, furthered, or assisted the Baker Street gang. “The gravamen of the substantive
offense set forth in section 186.22[, subdivision] (a)[,] is active participation in a criminal
street gang. . . . Accordingly, the Legislature determined that the elements of the gang
offense are (1) active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive; (2) knowledge that the gang’s members engage in
or have engaged in a pattern of criminal gang activity; and (3) the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.
[Citation.] All three elements can be satisfied without proof the felonious criminal
conduct promoted, furthered, or assisted was gang related.” (Albillar, supra, 51 Cal.4th
at pp. 55-56.)
He raises two contentions on this point on the third element. The first is
there was insufficient evidence of the underlying crime of receiving a stolen vehicle, a
claim which we have already rejected. The second is there was insufficient evidence the
felonious criminal conduct was committed by at least two gang members. (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1130.)
Edwin seems to believe this requires certainty as to who stole the vehicle or
who was driving. We disagree. Edwin, as we have already discussed, had at least
constructive possession of the vehicle. There was evidence beyond a reasonable doubt
that Jimenez, one of the vehicle’s other occupants, was a member of the Baker Street
gang. The gang expert testified with respect to the tendency of gang members to commit

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crimes together and to use stolen vehicles for the benefit of the gang. Together with
Jimenez’s presence in the vehicle, this creates a strong inference that the stolen vehicle
was being used to promote, further, or assist gang activities. There was also substantial
evidence of Ashlock’s involvement, both as a principal in the vehicle theft and as a
member of the gang. Accordingly, the requirement of two gang members acting together
was satisfied. Taken as a whole, we find the evidence sufficient to support the true
finding on the street terrorism allegation.
Proposition 47
In a supplemental brief, Edwin argues that the true finding on receiving a
stolen vehicle should be reduced to a misdemeanor under Proposition 47. This issue is
currently pending review before the California Supreme Court. (See cases cited in
People v. Varner (2016) 3 Cal.App.5th 360, 365, review granted Nov. 22, 2016,
S237679.) In the absence of guidance from the Supreme Court, however, and as we have
stated on numerous occasions, we continue to conclude that receiving a stolen motor
vehicle in violation of section 496d is not an eligible offense under Proposition 47, and
find that interpreting Proposition 47 to exclude section 496d is not an equal protection
violation. (See id. at pp. 367, 370.)

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III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.

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