NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

THE COURT*

Following a contested jurisdiction hearing, the juvenile court found true allegations that appellant, Ismael V., a minor, (1) unlawfully fought in a public place, in violation of Penal Code section 415, subdivision (1),1 a misdemeanor (count 1), and (2) unlawfully fought in a public place for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§§ 415(1), 186.22(d) (count 2)).2

Following the subsequent disposition hearing, the court adjudged appellant a ward of the court, declared the count 2 offense to be a felony and ordered appellant committed to the care, custody and control of the probation officer.

On appeal, appellant contends the evidence was insufficient to support the instant adjudications. We will affirm.

FACTS

In January 2010, appellant and Javier M. (Javier) were students at the same high school (the school). John Velasquez, a school district employee whose duties include "investigating gang crimes that have occurred on school premises" and who testified as an expert on criminal street gangs, testified that the Nortenos and the Surenos are criminal street gangs with members in Madera; the two gangs are "enemies" of each other; appellant is a member of the Surenos; and Javier is a member of the Nortenos.3

Velasquez also testified as a percipient witness. He was at the school on January 25, 2010, when he observed a fight "between members of rival gangs." After school was out for the day, Javier was "[just] standing there" by himself in the school parking lot when appellant and Freddy O. (Freddy), who was also a member of the Surenos, walked toward Javier.

After the fight, Velasquez spoke with appellant, who told him the following: Javier "initiated contact." He said to appellant, "`What did you say?"' Appellant responded, "`What are you talking about? What did you say? I'm not talking about you.'"

When Javier spoke to appellant, appellant "stopped dead in his tracks" and "turned around." When appellant responded to Javier, "[a]n argument ensued." Javier pushed appellant, appellant "pushed back," and Javier "started striking" appellant, at which point Freddy "jumped in to help [appellant] to jump on [Javier] ...." Velasquez ran toward the combatants, "repeatedly yell[ing] at the top of [his] lungs ... to stop fighting," but "they refused." Velasquez "pulled [Javier] off of [appellant] and attempted to restrain him," but he (Velasquez) "got hit from behind" and fell to the ground. He got back to his feet, at which point appellant, Javier and Freddy were "striking each other." "[T]here was another group," consisting of an "associate" of the Sureno gang and "two Nortenos," fighting "right next to" the fight between appellant, Javier and Freddy.

During the fight Velasquez did not see Javier "throw any gang signs," or hear Javier "use any gang terminology ...." Appellant did not "display any gang-related colors during the fight."

The fight "stemmed from" an incident "[t]he weekend before," that Velasquez learned about from students at the school, in which a vehicle drove by a party attended by "known Norteno gang members," at least one of the vehicle's occupants "opened fire," and a student from the school was shot. On January 25, the next school day, "the Norteno population" at the school discussed the incident. "[T]hey weren't sure who did it," but over the course of the day "they talked about it" and became increasingly angry. "So when school was out that day Javier ... was lying in wait ... for any Sureno to come through."

The question Javier posed to appellant was, "[i]n the gang culture," a "challenge" and a "sign of disrespect." Once Javier spoke to appellant in this manner, appellant "was up to answering anything [Javier] had to deliver then." At that point, members of appellant's gang were watching appellant, and therefore he "had to fight." Had appellant not responded to Javier, appellant would have been viewed by members of his gang as "punk[ing] out," i.e., "back[ing] off, not do[ing] anything." If appellant had "back[ed] out of a fight," other gang members would see him as "no good." "[I]f somebody says something to [a gang member, that gang member is] not going to punk out." If a person "associated with gangs" does not fight when challenged, "[his] own gang is going to come after [him]."

It is "part of their culture" that gang members "don't put up with people disrespecting them[.]" If "someone is disrespecting" a gang member, "it is important ... that they make an example of that person, that you don't do that to us[.]" Gang members become "involved in fights or acts of violence" to "stick[] up for the honor of their organization" and to "earn respect within their organization, as well[.]"

DISCUSSION

Self-Defense

Appellant contends the evidence does not support the finding that he committed the offense of unlawfully fighting in a public place in violation of section 415(1). He argues that the undisputed evidence shows that Javier struck the first blow and that the People failed to meet their burden of proving that appellant did not act in lawful self-defense. We disagree.

Standard of Review

In general, in determining whether the evidence is sufficient to support a finding in a juvenile court proceeding, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of adult criminal convictions. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following: "In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury [or trier of fact] reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)

Self-Defense: Legal Background

Self-defense is a defense to an allegation of violating section 415(1). (People v. Adrian (1982) 135 Cal.App.3d 335, 340 ["Self-defense negates culpability for assaultive crimes"].) "`To justify an act of self-defense ... the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], and `... any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]'" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, italics omitted.) A person who meets these requirements is not required to retreat in order to claim self-defense. (People v. Hatchett (1942) 56 Cal.App.2d 20, 22; CALCRIM No. 3470.)

As indicated above, self-defense negates an element of section 415(1), viz., that appellant fought "unlawfully" within the meaning of the statute. (§ 415(1).) Therefore, "[a]s a matter of constitutional due process, [the accused] need only raise a reasonable doubt regarding [self-defense], and in this situation the burden of persuasion is on the People to show the nonexistence of the defense beyond a reasonable doubt.... Typically, the prosecution has the burden to prove a defendant did not act in self-defense, because self-defense negates an element of the offense. [Citations.]" (People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571.)

However, involvement in mutual combat precludes reliance on self-defense unless the party claiming self-defense "actually and in good faith tries to stop fighting; [¶] ... [¶] [h]e indicate[s] by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he want[s] to stop fighting and that he ha[s] stopped fighting[,] [¶] and [¶] [h]e [gives] his opponent a chance to stop fighting." (CALCRIM No. 3471; see People v. Ross (2007) 155 Cal.App.4th 1033, 1043, fn. 9 (Ross).) "Mutual combat" includes an express or implied agreement to fight. (Ross, at pp. 1046-1047.) "The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at p. 1047.)

Analysis

Substantial evidence supports the conclusion that appellant engaged in mutual combat and was therefore precluded from raising a claim of self-defense.

The "claimed occasion for self-defense arose" (Ross, supra, 155 Cal.App.4th at p. 1047) when Javier pushed appellant. The court reasonably could have concluded that prior to that point, appellant intended to fight Javier. The People presented evidence of the following. Appellant is a member of the Surenos, a criminal street gang. Moments before he pushed appellant, Javier asked appellant, in the presence of other Surenos, "`What did you say?'" Such a question addressed to a gang member is a sign of disrespect and a "challenge." Respect is extremely important to gang members. When Javier posed his question, appellant virtually "had to fight." Had appellant failed to fight, other Surenos would conclude appellant failed to respond appropriately to a challenge and that therefore he was "no good." From this evidence, the court reasonably could conclude that appellant formed the intention to fight as soon as Javier spoke to him, i.e., before he was pushed, and that therefore appellant engaged in mutual combat. (Ibid.)

Appellant contends the People did not meet their burden of proving that he did not act in self-defense because, he argues, (1) expert testimony presented by the People established that a gang member will conclude he has been challenged and will respond with violence only if he knows the person issuing the challenge is a member of a rival gang, and (2) the evidence was not sufficient to establish that appellant knew Javier was a member of the Norteno gang. In support of the second part of his contention, appellant asserts that there was no evidence either appellant, Javier or any of the other combatants were wearing "gang colors" and that Velasquez observed no "gang signs" or "threatening gestures." (Unnecessary capitalization and emphasis omitted.) Appellant rejects the People's argument that it reasonably can be inferred that appellant knew Javier was a gang member from the evidence that the two were members of rival gangs and went to the same school.

However, even assuming for the sake of argument that the evidence was not sufficient to establish appellant was aware of Javier's gang affiliation, appellant's argument fails. First, Velasquez testified that it is a basic tenet of gang "culture" that gang members "don't put up with people disrespecting them," and will respond with violence if "someone" does or says anything gang members view as evincing disrespect.

Velasquez did not indicate that the "people" and the "someone" to which he referred were limited to gang members. Velasquez's use, without qualification, of the general terms "people" and "someone" indicate that gang members will respond with violence to signs of disrespect from gang members and non-gang members alike.

Second, we note the following. Defense counsel asked Velasquez on cross-examination if, when appellant, in response to Javier, stated that he had not said anything, appellant had been "trying to stop a potential fight ...." Velasquez answered, "No," and the following exchange ensued:

From this testimony, the court reasonably could reach two conclusions: First, it was "especially" likely that if a member of a rival gang had confronted appellant in the way Javier confronted appellant, appellant would have felt obligated to fight. Second, appellant's reaction would have been the same if "somebody," i.e., anybody, gang member or not, had confronted him in that manner.

Thus, the testimony summarized above, considered in conjunction with testimony that appellant would have viewed Javier's act as disrespect and as a challenge, was sufficient to establish that appellant formed the intent to fight before Javier pushed him, regardless of whether the evidence showed that appellant knew Javier was a member of a rival gang, and that therefore when appellant struck back he was engaged in mutual combat. On this record, the People have met their burden of showing that appellant did not act in self-defense.

Section 186.22(d)

Appellant also argues that the evidence was insufficient to establish that "the fight was gang-related ...." It is unclear what appellant means by the term "gang-related," but as best we can determine, appellant's contention here is that the evidence was insufficient to establish that appellant committed the count 2 offense, "for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members" within the meaning of section 186.22(d).4 We disagree.

As indicated above, establishing that section 186.22(d) applies requires a two-part showing, i.e., the offense must be committed (1) "for the benefit of, at the direction of or in association with any criminal street gang," and (2) "with the specific intent to promote, further or assist in any criminal conduct by gang members ...." (§ 186.22(d).)

As to the first prong of the required showing, we find instructive People v. Morales (2003) 112 Cal.App.4th 1176 (Morales). In that case three gang members committed a robbery together. In upholding a true finding of an enhancement allegation that required proof that the offense was gang-related, the court acknowledged that arguably, evidence that one gang member committed a crime in association with other gang members, without more, would be insufficient to show that the crime was committed for the benefit of the gang. But, the court stated: "The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." (Id. at p. 1198.) Here, there was evidence appellant committed the instant offense in association with three other gang members—Freddy, a member of the Surenos, accompanied him as he approached Javier, and another Sureno gang member was fighting with two Norteno gang members in close proximity to and at the same time as the fight in which appellant, Javier and Freddy were engaged when Velasquez arrived on the scene—and, as in Morales, there was no evidence that appellant and his fellow gang members were engaged in activity unrelated to the gang. Therefore, as in Morales, the court reasonably could have inferred appellant acted in "association with" his gang. (§ 186.22(d).)

The evidence was also sufficient to establish the second prong of the required showing, i.e., that appellant acted with the requisite specific intent. In interpreting section 186.22(b)(1), which provides for a sentence enhancement for a person convicted of a felony when requirements identical to those set forth in section 186.22(d) are met,5 the court in People v. Albillar (2010) 51 Cal.4th 47 stated, "The enhancement already requires proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Id. at p. 67.) In other words, section 186.22(b)(1) "applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar, supra, 51 Cal.4th at p. 68.) The Albillar court further stated, "[I]f substantial evidence establishes that the defendant intended to and did commit the charged offense with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Ibid.)

Thus here, where substantial evidence establishes that appellant acted in association with several gang members, the juvenile court reasonably could assume that appellant acted with the specific intent promote, further, or assist criminal conduct by those gang members. Moreover, it can also reasonably be inferred appellant had the specific intent to promote and/or further criminal conduct by another gang member—himself. Therefore, on this record, substantial evidence establishes that section 186.22(d) applies.

DISPOSITION

The judgment is affirmed.