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Name: In re Cesar V.
Case #: H035504
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/15/2011

Penal Code section 415, subdivision (1), making a challenge to fight in a public place, is not a specific intent offense. An officer in an unmarked car saw two teenagers making hand gestures at either a person in a car or across the street. The officer believed the hand signs became more aggressive and saw the boys move toward someone, as if challenging the person to a fight. He detained them. One boy said he had been displaying a gang sign at someone in car who was throwing a gang sign corresponding to another gang. That minor took the sign as a form of disrespect and a challenge, but did not think a fight was likely because there was a girl in the car, and gang fights typically do not happen in their presence. The second boy also admitted throwing a gang sign, but claimed to be “holding his ground and not trying to challenge” the car’s occupants. The juvenile court found both boys violated Penal Code section 415, subdivision (1) and also found true a corresponding gang allegation (Pen. Code, sec. 186.22, subd. (d)). They challenged the sufficiency of evidence of both findings. They argued that they did not initiate the challenge, but rather responded to it, and also argued they lacked the specific intent to commit the offense. Based on the standard of review on appeal, the court presumed the trial court disbelieved appellants’ claim of response instead of initiation as self-serving statements. The court also held the crime does not require the specific intent to cause a fight. Where, as here, a statute does not contain an express or implied reference to a mental state, it is deemed to have a general intent. This interpretation is consistent with the legislative intent of the statute which is to curtail the inherent danger that a challenge to a fight will result in violence, regardless of whether the instigator naively thinks it will not.
A gang allegation under section 186.22, subdivision (d) does not require proof of intent to assist specific crimes. (People v. Albillar (2010) 51 Cal.4th 47.) Appellants claimed insufficient evidence supported the gang allegation because there was no proof of what criminal conduct they intended to promote or assist. The court rejected the claim. First, this is not required in light of Albillar. Moreover, there was no other reason to throw a gang sign except to promote the gang. One boy even admitted he did so to “stand up for” his gangster friends.
Failure to declare the offense a felony or misdemeanor requires reversal. While a violation of Penal Code section 415, subdivision (1) is normally a misdemeanor, the gang finding under section 186.22, subdivision (d) made it punishable either as a felony or misdemeanor. Appellant argued and respondent conceded that remand for a determination of felony or misdemeanor classification was required. (See Welf. & Inst. Code, sec. 702; In re Manzy W. (1997) 14 Cal.4th 1199.)