Brief - Association of Prosecuting Attorneys



TONY RACKAUCKAS, DISTRICT ATTORNEY

COUNTY OF ORANGE, STATE OF CALIFORNIA

STATE BAR NUMBER 051374

SANTA ANA, CALIFORNIA 92701

TELEPHONE: (714) 834-3600

Attorney for Plaintiff

THE PEOPLE OF THE STATE OF CALIFORNIA

SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

|THE PEOPLE OF THE STATE OF CALIFORNIA, | |) | |

|Plaintiff, | |) |Case No.: |

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| | |) |PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN |

|VARRIO VIEJO CRIMINAL STREET GANG (an unincorporated association), et al., | |) |SUPPORT OF AN ORDER TO SHOW CAUSE RE PRELIMINARY |

| | |) |INJUNCTION |

|Defendants. | |) | |

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I. INTRODUCTION

Plaintiff, The People of the State of California, bring this suit to abate the public nuisance caused by the criminal street gang known as the Varrio Viejo Criminal Street Gang (hereinafter referred to as “Varrio Viejo”) and its members. Plaintiff seeks an Order to Show Cause why a Preliminary Injunction should not issue against Varrio Viejo and the one hundred thirty nine named Defendants who are among its most active members. Varrio Viejo creates and maintains a public nuisance in the Safety Zone by, among other things, discharging firearms, possessing dangerous weapons, selling and using illegal narcotics, stealing vehicles, harassing residents, vandalizing and defacing property and trespassing on private property in the Safety Zone. (A map of the Safety Zone is attached as Exhibit A.)

California law is clear, when the activities and conduct of a turf-based, drug-dealing, violent criminal street gang are a cause of a public nuisance in a proposed Safety Zone, then the conduct and activities of that gang may be abated by an injunction brought by a District Attorney. Code of Civil Procedure § 731; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1121-1122, cert. denied, 521 U.S. 1121 (Acuna); People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1263 (upholding judgment entered in favor of the People in a civil gang injunction case following trial); In re Englebrecht (1998) 67 Cal.App.4th 486, 493-496 (following Acuna, upholding “do not associate” provision in preliminary gang injunction). The law of nuisance abatement provides that multiple defendants may be enjoined when the evidence shows that a nuisance exists and that each defendant contributed in some part to the nuisance.

Varrio Viejo has made every effort to take over the Safety Zone as its own turf to the exclusion of law abiding residents. Gang members participate in shootings and threats against residents without fear of recourse. They engage in the use and sales of narcotics in complete disregard of the law and community values. They challenge rival gang members, who are also aware that Varrio Viejo claims the Safety Zone as its territory. The law abiding citizens who live in the Safety Zone, and others who wish to use the public streets and sidewalks are denied that right out of fear for their safety.

Gang members place graffiti on buildings and fences in the Safety Zone in an aggressive attempt to reinforce their claim on the area. The residents have had to alter their lives as many no longer feel safe going out at night and are virtually prisoners in their own homes.

The constant defacing of public and private property, illegal use and sale of controlled substances, threats to residents, shootings and trespass to property constitute an extreme public nuisance under Civil Code § 3479, et seq. Moreover, many of the Defendants’ acts such as discharging firearms, drinking, violating noise restrictions, damaging property with graffiti, and ignoring the City’s curfew ordinance constitute a nuisance per se.

An injunction is necessary in this case because the activity of Varrio Viejo has continued unabated for years. The neighborhood has been robbed of its community pride and suffers from a continuing state of deterioration.

II. SUMMARY OF FACTS

In the late 1960’s, a weekend car club formed and met in the City of Capistrano Beach. The car club was mostly comprised of young males from the cities of San Juan Capistrano and San Clemente. The car club’s members gathered together, socialized, and displayed their cars. In the early 1970’s, two members, one from San Juan Capistrano and the other from San Clemente, became involved in a physical altercation during a party over a female. After the altercation, it became virtually impossible for the car club to hold a meeting without a fight breaking out due to the animosity among the members.

As a result of the continuous fighting, the car club polarized into two distinct and separate factions. The San Juan Capistrano faction eventually became known as “Varrio Viejo,” or “San Juan Boys,” and the San Clemente faction became known as “San Clemente Varrio Chico.” From the late 1970’s to the present, Varrio Viejo has transformed into a criminal street gang that meets the definition set forth in Penal Code section 186.22(e). To date, San Clemente Varrio Chico and San Juan Capistrano Varrio Viejo are fierce rivals and continued violence is imminent on almost a daily basis. (Lang Dec. ¶ 12.) The Varrio Viejo criminal street gang claims three general areas in the cities of San Juan Capistrano and Mission Viejo. The first area consists of the campus of Capistrano Valley High School located at 26301 Via Escolar, Mission Viejo. The second area bounded by: to the north, Via Escolar continuing southeast along the Mission Viejo city line to Trabuco Creek Road - continuing southwest to the I-5 freeway - continuing north to Via Escolar. The third area bounded by: to the north, Junipero Serra Road - continuing west to Camino Capistrano - continuing south to Oso Road - continuing west from Oso Road to the west side of the Trabuco Creek river bed - continuing south down the river bed to Alipaz Street - continuing south to Calle Lucana - continuing westbound to Via Belardes - continuing south to the east side fence line of the Capistrano Valley Church located at 32032 Del Obispo Street - continuing south to the south fence line of the church - continuing west along the south fence line to the cement wall that encloses The Carolinas condominium complex - continuing south to the south wall of The Carolinas condominium complex - continuing east along the south wall and continuing along the fence line that runs south of the Casitas de Alipaz housing complex to Alipaz Street - continuing north to Del Obispo Street - continuing northeast to Ortega Highway - continuing east to the I-5 freeway - continuing north to Junipero Serra Road. These areas cover approximately 1.5 square miles. Attached is a map. (Exhibit A.)

These three areas compromise the identified Safety Zone for the purposes of this Injunction. (Lang Dec. ¶ 13.)

The named individual gang members are the most active members and associates of Varrio Viejo and have more than a passive affiliation with the gang. Each individual’s Varrio Viejo gang affiliation is documented by the individual’s own admission, by association, by dress or possession of various forms of gang indicia and/or their involvement in crimes within the Safety Zone. (Lang Dec. ¶ 39.) Graffiti is an ongoing quality of life issue in the Safety Zone and surrounding areas. (Lang Dec. ¶ 29.) Varrio Viejo gang graffiti has been observed in rival gangs’ neighborhoods which show the gang’s mobility and willingness to challenge rival gangs by marking rival gangs’ turf. (Lang Dec. ¶s 24, 29.) Varrio Viejo spray painting graffiti in a rival gang neighborhood is a challenge to that gang. (Lang Dec. ¶ 29.)

Varrio Viejo gang members are also identifiable by their clothing. They primarily wear t-shirts, hats, bandanas, beanies, belts, belt buckles, sweatshirts, shoes and other clothing with writings including: “Varrio Viejo,” “SJC,” “Old Town,” “San Juan Capistrano,” “San Juan,” “Capistrano,” “VV,” “Swallows,” “Swallow’s Day,” “San Juan Boys,” “OC,” “Orange County,” “13,” “XIII,” “X3,” “22,” images of swallows (birds), Dallas Cowboys jerseys, Dallas Cowboys sweatshirts, Dallas Cowboys shirts, Dallas Cowboys pants, Dallas Cowboys hats, Dallas Cowboys beanies, Dallas Cowboys sweat bands, Dallas Cowboys web belts, Dallas Cowboys belt buckles, Dallas Cowboys bandanas, Dallas Cowboys key chains, or Dallas Cowboys bottle openers. Varrio Viejo gang members often wear clothing with the gang’s writings. Additionally, Varrio Viejo gang members often wear jerseys with the number 22, particularly Dallas Cowboys jerseys. The twenty second letter in the alphabet is “V.” The number “22” on the back of a jersey and the number “22” on the front of a jersey represents “VV” or Varrio Viejo. Varrio Viejo gang members wear the star on the shoulder of the Dallas Cowboys jersey to represent Orange County. (Lang Dec. ¶ 30.)

Varrio Viejo gang members are also identifiable by their tattoos proclaiming their gang affiliation. Gang specific tattoos are considered a gang member’s medal or badge of courage. Gang specific tattoos are symbols of pride, identity and advertisements about one’s gang affiliation. (Lang Dec. ¶ 28.)

The Varrio Viejo gang members commit crimes for the benefit of the gang. They are involved in the sale, use and possession of drugs, theft, vandalism, assault, and crime involving dangerous weapons. There were 6 attempted murder/homicides, 119 firearm/dangerous weapons violations, 52 assaults/fights, 18 burglary/vehicle thefts, 96 narcotic/paraphernalia related incidents, 12 trespasses, 38 graffiti crimes, 246 disturbing the peace incidents, 27 loitering calls, 130 incidents of crime committed between 10:00 p.m. and 6:00 a.m., 32 intimidations/blocking free passage, 70 incidents of drinking alcohol in public, 12 incidents of using gang hand signs, 41 incidents of gang clothing, and 509 incidents of associating that were documented in the Safety Zone. Weapons and firearms are often passed from gang member to gang member and used in the commission of crimes. (Lang Dec. ¶ 41.)

Varrio Viejos’ ongoing rivalry with San Clemente Varrio Chico gang has resulted in a number of stabbings and rival gang related fights. (Lang Dec. ¶ 25.) Stabbings occur on a frequent basis. (Lang Dec. ¶ 25.) Residents in the Safety Zone are afraid to be outside their homes in fear of being assaulted or finding themselves in the middle of rival gang violence. (Lang Dec. ¶ 33.) The residents are reluctant to do anything due to the fear of retaliation. (Lang Dec. ¶ 33.)

Traditional law enforcement techniques have not been able to stop the nuisance behavior occurring in the Safety Zone. (Lang Dec. ¶ 37.) The supporting Declarations by the Peace Officers and citizens provide further in depth facts regarding Varrio Viejo and its members’ behavior. The Peace Officer Declarations tie each and every Defendant to Varrio Viejo as an active member who poses a threat to the law abiding citizens who work and reside in the Safety Zone. The Citizen Declarations illustrate the public nuisance that the members of Varrio Viejo create in the Safety Zone. The few citizens who were willing to provide declarations portray their fear for safety and fear of retaliation for reporting the activities of the Gang and its members.

III. THE ACTIONS OF THE GANG CONSTITUTE A PUBLIC NUISANCE

To obtain an injunction against a criminal street gang and its members, Plaintiff needs to establish: 1) that the activities and conduct of a defendant “can be brought within the terms of the statutory definition of public nuisance,” and 2) that the nuisance is “substantial and unreasonable.” In re Englebrecht, supra, 67 Cal.App.4th at 492; Acuna, supra, 14 Cal.4th at 1104-1105.

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The activities and conduct of Varrio Viejo in the Safety Zone satisfy the statutory definition of public nuisance because the crimes Varrio Viejo commits are “injurious to health,” “an obstruction to the free use of property”, and “interfere with the comfortable enjoyment of life or property.” Civil Code § 3479. The illegal use and sale of controlled substances qualifies a street gang as a public nuisance. Gang graffiti constitutes a public nuisance because of its economic harm and also because of the fear and intimidation gang graffiti inflicts. McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 (“mere apprehension of injury from a dangerous condition may constitute a nuisance”). The behavior of Varrio Viejo far exceeds a “mere apprehension of injury.”

Finally, the nuisance created by the Defendants is “substantial and unreasonable.” The Acuna Court defines “substantial” as “proof of ‘significant harm,’ . . . that is ‘definitely offensive, seriously annoying or intolerable.’” Acuna, supra, 14 Cal.4th at 1105. The conditions documented in the evidence submitted by Plaintiff, including robberies, assaults, burglaries, stabbings, shootings, intimidations and vehicle thefts, are substantial. “Unreasonable” is determined by “comparing the social utility of an activity against the gravity of the harm it inflicts.” Id. The conduct and activities of a criminal street gang and the harm it inflicts is immeasurable. Accordingly, the conduct and activities of Varrio Viejo in the Safety Zone constitute a substantial and unreasonable public nuisance under Civil Code §§ 3479 and 3480.

A. Defendants Numerous Activities Constitute a Nuisance Per Se

Many of the acts committed by the Defendants in the Safety Zone constitute a nuisance per se. Under the doctrine of nuisance per se, a legislature or a city council may declare certain activities or conditions to be a nuisance whether or not they meet the statutory definition. “Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance. No ill effects need to be proved.” McClatchy v. Laguna Lands Limited (1917) 32 Cal.App. 718, 725.

San Juan Capistrano Municipal Code (SJCMC) Defacing Public Property and Loitering § 5-13.02 states: “Graffiti on public and private property is a blighting factor which not only depreciates the value of property . . . .” “The council finds that graffiti . . . is obnoxious.” Further, SJCMC § 5-9.02 on Loitering states: “It shall be unlawful for any minor to loiter, wander, or play in or upon the public streets, alleys, parkways, or places open to the general public between the hours of 10:00 p.m. and 6:00 a.m. . . . .” Also Defendants repeatedly engage in the sale and use of illegal narcotics, most frequently methamphetamine, which is a nuisance per se. Civil Code § 3479. These activities are indecent and offensive to the senses.

Defendants repeatedly engage in violent and aggressive behavior which is injurious to the health of the residents of the Safety Zone. Numerous guns and dangerous weapons have been taken from many of the individual Defendants in the Safety Zone.

Defendants trespass upon private property within the Safety Zone for the purpose of conducting the activity described above and for the purpose of intimidating and harassing the residents. Defendants regularly annoy, harass, intimidate and confront the residents of the Safety Zone by their activities and the residents fear for their property and lives.

The Defendants repeatedly violate the Municipal Code. These violations are a nuisance per se. SJCMC Title 5 Public Welfare. Thus, no further proof that these acts constitute a public nuisance under Civil Code § 3479 et seq. is necessary.

“Once a governmental entity establishes that it will probably succeed at trial, a presumption should arise that public harm will result if an injunction does not issue.” IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 72, 196 CR 715. The government need only show a reasonable probability it will succeed at trial before the rebuttable presumption arises. Id. at 72. The burden then shifts to the defense to establish “grave or irreparable” injury. Id. No “grave or irreparable” injury is imaginable because as Acuna and each Englebrecht opinion makes clear, no constitutional rights of Defendants are affected by the proposed gang injunction. As a result, this Court should grant the Injunction.

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B. Defendants Have Engaged In Numerous Activities Which Constitute A Public Nuisance Pursuant To Civil Code §§ 3479 And 3480

Civil Code § 3479 provides that a nuisance is, “anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . . .”

Civil Code § 3480 defines a public nuisance as, “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

The conduct of the Defendants is more than sufficient to support a finding of public nuisance under Civil Code §§ 3479 and 3480. The gang has caused actual harm to the residents by firing guns, using and selling drugs near their homes, applying graffiti to both private and public property, and trespassing on private property. These activities are injurious to public health and interfere with the free use of property. In fact, Varrio Viejo threatens public health in the Safety Zone in the most extreme sense, as its conduct threatens Safety Zone residents with immediate loss of life. Gunfire puts residents in danger and puts them in fear of going outside. Graffiti and other property damage, as well as drug dealing, decrease the property values in the Safety Zone. Varrio Viejo’s activities constitute a nuisance under Civil Code § 3479 not only by virtue of the fact that they are injurious to health, and they also obstruct the free use of property.

Gang activity need not cause actual harm to the residents in order to constitute a nuisance. The Court of Appeal has held that a mere apprehension of injury from a dangerous condition may constitute a nuisance where it interferes with the comfortable enjoyment of property. McIvor, supra, 76 Cal.App.2d at 254. Varrio Viejo has created a reign of terror by continually using and selling drugs, possessing weapons, throwing up gang signs, trespassing against property and confronting residents. Residents are held hostage in their homes, afraid to walk the public streets or enter a public park, and are forced to rearrange their lives in order to avoid a possible confrontation with gang members. The anxiety created by the gang substantially interferes with the comfortable enjoyment of property, constituting a nuisance.

Far less egregious conduct has been recognized by the courts as a nuisance subject to injunction. The continuous drug dealing, violence, harassment and annoyance in the Safety Zone caused by Varrio Viejo constitute a public nuisance as defined in Civil Code §§ 3479 and 3480.

IV. A PUBLIC NUISANCE IS PROPERLY ABATED BY INJUNCTION

In Acuna, the Supreme Court explicitly sanctioned the use of an injunction to abate a nuisance caused by gang conduct. Acuna, supra, 14 Cal.4th at 1102. Code of Civil Procedure § 731 allows for injunctive relief against a nuisance where property is injuriously affected or personal enjoyment is lessened by the nuisance. Code of Civil Procedure § 526(a) sets forth grounds under which an injunction may issue. The public nuisance caused by Varrio Viejo satisfies several of these grounds. Section 526(a)(2) authorizes an injunction if continuation of the nuisance would produce “great or irreparable injury.” This gang’s past violence and continuing threat of violence qualifies as such an injury. Subsection (a)(4) states that injunctive relief is appropriate if pecuniary compensation would not afford adequate relief. Under subsection (a)(5), an injunction is appropriate if it would be “extremely difficult to ascertain the amount of compensation” which would afford adequate relief. No amount of monetary compensation can restore to the citizens of the proposed Safety Zone their sense of personal safety. Under subsection (a)(6), an injunction is proper to prevent the multiplicity of judicial proceedings. This gang’s nuisance is community wide making the pool of potential plaintiffs vast.

V. PLAINTIFF IS ENTITLED TO AN INJUNCTION AGAINST

VARRIO VIEJO AND THE INDIVIDUAL GANG MEMBERS

Courts consider two interrelated issues in deciding whether to issue injunctive relief. First, the court must evaluate whether the plaintiff is likely to prevail on the merits at trial. Second, the court must weigh the interim harm to the plaintiff if the injunction is denied against the harm to the defendant if the injunction is issued. Acuna, supra, 14 Cal.4th at 1109. As discussed below, this Court should grant the requested injunction.

A. Plaintiff Has Substantial Likelihood Of Success At Trial

Plaintiff is likely to prevail at trial because we have already introduced overwhelming evidence establishing a cause of action for public nuisance against a street gang. (See Declarations filed separately.) The California Supreme Court has held that a plaintiff in a gang injunction case must prove a public nuisance exists in the Safety Zone, and “the gang and its members present in [the Safety Zone] were responsible for the public nuisance.” Acuna, supra, 14 Cal.4th at 1125.

Plaintiff in a gang injunction case need only establish that one of the primary activities of a defendant street gang is “the commission of the acts constituting the public nuisance.” People v. Englebrecht, supra, 88 Cal.App.4th at 1258. Each Defendant named is an active member of Varrio Viejo. Each Defendant participates in or acts in concert with the gang and each of their acts contributes to the public nuisance. The gang has a common name and common identifying signs and symbols. In this instance, Plaintiff has gone further and established that Varrio Viejo is a “criminal street gang” under the more rigorous definition set forth in Penal Code § 186.22 which requires that one of the primary activities of a gang be the commission or attempted commission of “predicate felonies.”

Discharging firearms, blocking free passage, causing continuous loud noise, drinking alcohol and violating curfew constitute a nuisance. The Declarations demonstrate that these activities are taking place in the Safety Zone and are caused by the Defendants.. Selling narcotics, using controlled substances, trespassing on private property, applying graffiti, confronting residents and congregating as a means to intimidate residents and coordinate their criminal activities constitute a nuisance under Civil Code § 3479. The Plaintiff has shown 1) that these activities occur; 2) that they are injurious to the public health, offensive to the senses, and interfere with the free use of property; and 3) that the gang and its members are responsible, and Plaintiff is likely to prevail at trial.

B. Remedy At Law Would Require A Multiplicity Of Suits

Code of Civil Procedure § 526(a)(6) authorizes injunctive relief where the restraint is necessary to prevent a multiplicity of judicial proceedings. The conduct of the individual Defendants and Varrio Viejo is continual and repeated in nature, and, absent an injunction, multiple suits by various parties would be necessary to address all the wrongs committed by the Defendants. If each resident with standing to sue the gang members filed suit for damages, this Court would be quickly inundated. To avoid such duplicative and overwhelming procedures, this Court should issue the Injunction.

C. Residents Of The Target Area Will Continue To Suffer Irreparable Injury Unless The Gang’s Activities Are Enjoined

Code of Civil Procedure § 526 (a)(2) provides that an injunction may be granted by the Court where it appears that the commission or continuance of the acts complained of would produce great or irreparable injury. Not only have the residents suffered complete loss of their property and property damage, but they have also endured mental anguish. This suffering involves fear of allowing children to play outside, fear of cooperating with the police, and delay in entering or exiting their own property. The Defendants’ behavior causes intolerable distress to the residents and will continue until it is enjoined by this Court.

D. Defendants Will Suffer Little Harm If the Injunction Is Granted

Once Plaintiff establishes they are likely to prevail on the merits, this Court is required to weigh the equities. The balancing test approved in Acuna “compar[ed] the social utility of [the enjoined conduct] against the gravity of the harm it inflicts.” Acuna, supra, 14 Cal.4th at 1105. The continuing harm to the residents should this Injunction not issue is unmistakable; they will continue to be victims of turf-based gang violence, gang robberies, gang graffiti and other gang crimes, and continue to be surrounded by illegal drug sales. By contrast, the proposed Injunction will cause the Defendants little or no harm. The proposed injunctive terms are not absolute prohibitions, but apply only in the proposed Safety Zone. The gang’s conduct outside the proposed Safety Zone would remain unaffected. The balancing test favors, and the equities lie with the local community.

In addition, when a preliminary injunction is sought by a governmental entity to enjoin alleged violation of an ordinance, as is the case here, the balancing of equities proceeds a little differently. If the court determines there is a reasonable probability that the entity will prevail on the merits, a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the responding party. “If the defendant shows that it would suffer grave or irreparable harm from the issuance of the preliminary injunction, the court must then examine the relative actual harms to the parties.” IT Corp., supra, 35 Cal.3d at 72.

Plaintiff seeks to enjoin Defendants from possessing weapons, confronting and harassing residents, blocking free passage, maintaining loud noise levels and applying graffiti.

The restrictions contained in the Injunction are narrowly tailored to restrict only the specific activities responsible for the public nuisance in the Safety Zone. None of the proposed orders in the Injunction unreasonably infringe on the Defendants’ daily activities.

1. The Proposed Injunction Does Not Infringe On Defendants’ Right Of Association

Although the Injunction prohibits the gang members from assembling, associating or congregating together in public for the purpose of harassing or intimidating the residents of the Safety Zone or engaging in criminal activity, the Injunction does not impermissibly infringe on the Defendants’ rights of association. The Supreme Court has never recognized “a generalized right of ‘social association.’” (Dallas v. Stanglin (1989) 490 U.S. 19, 25 [109 S.Ct. 1591, 1594, 104 L.Ed.2d 18].) Acuna, supra, 14 Cal.4th at 1110. “The high court has identified two kinds of associations entitled to First Amendment protection - those with an . . . ‘intimate’ value, and those that are ‘instrumental’ to forms of religious and political expression.” Acuna, supra, 14 Cal.4th at 1110, citing Roberts v. United States Jaycees (1984) 468 U.S. 609, 619-620, and Varrio Viejo is neither. This right of protected association is directly related to the “individual’s freedom to speak, to worship, and to petition the government for the redress of grievances.” Acuna, supra, 14 Cal.4th at 1111. Intimate relationships generally involve “marriage . . .; the raising and education of children [citation]; and cohabitation with one’s relatives [citation].” Acuna, supra, 14 Cal.4th at 1111. The members of Varrio Viejo do not associate for either expressive or intimate purposes. The purpose of the gang is to engage in violent, criminal and harassing activities. The Legislature has specifically declared that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize and commit a multitude of crimes against the peaceful citizens of their neighborhood and that these activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected. Penal Code § 186.21.

“Freedom of association, in the sense protected by the First Amendment, ‘does not extend to joining with others for the purpose of depriving third parties of their lawful rights.’ (Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 776 [114 S.Ct. 2516, 2530, 129 L.Ed.2d 593].” Acuna, supra, 14 Cal.4th at 1112. The injunction does not, therefore, infringe on the Defendants’ association rights.

2. Association Which Is Otherwise Protected May Be Enjoined When It Involves Violence, The Threat Of Violence, Coercion Or Intimidation

Even if the gang members’ associations with each other warrant some degree of protection, the right to association “is not absolute but is subject to reasonable restriction in the interests of the general welfare.” Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 683. The Plaintiff has a compelling interest in abating the nuisance created by Varrio Viejo gang members, which is not simply interfering with the residents’ enjoyment of their homes and property, but has caused them to fear for their safety. “It is well established that unlawful activities, such as violence, intimidation and obstruction, may be enjoined by the courts. M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. Culinary Etc.Union (1981) 124 Cal.App.3d 666, 680.

Moreover, actual physical violence is not necessary, “threatened violence and physical intimidation” is enough to support an injunction. Steiner v. Long Beach Local No. 128 (1942) 19 Cal.2d 676, 686; San Diego Gas & Electric Co. v. San Diego Congress of Racial Equality (1966) 241 Cal.App.2d 405, 407 (upholding injunction against picketing that interferes with running the business, intimidates or coerces the employees or customers, or seeks an unlawful end). Varrio Viejo threatens residents by firing weapons and other acts of violence, and intimidates residents by selling drugs, applying graffiti, trespassing and constantly claiming ownership of the area. Moreover, through their past and current actions they have made the Safety Zone an inviting and logical target for their rivals to attack. Any gathering of two or more Varrio Viejo members in the Safety Zone creates a clear and present danger to public safety. Therefore, any rights of association they do have are outweighed by the government’s compelling interest in protecting the health and welfare of its citizens.

3. Curfew Restrictions May Be Imposed In Order To Protect Residents

It is clear that the government can impose a curfew on its residents as a means of protecting them. The Court of Appeals have upheld curfew ordinances based on the government’s interest in “protecting juveniles or preventing delinquency.” In re Nancy C. (1972) 28 Cal.App.3d 747, 754-758; Qutb v. Strauss (5th Cir. 1993) 11 F.3d 488, 494, fn. 8 (upholding a juvenile curfew noting that it may help relieve “gang problem because gang members often congregate in public and set up an environment where criminal activities take place, such as drive-by shootings, fights, and ‘turf’ disputes.”) SJCMC § 5-09.01 states that: “It shall be unlawful for any minor to be present or to remain in or upon any public place, vacant lot or business establishment between the hours of 10:00 p.m. and 5:00 a.m. of the following day.” The curfew provisions in the Injunction merely extend the curfew to include adult Defendants and extend the time from 5:00 a.m. to 6:00 a.m. Appropriate exceptions are set forth. Therefore, the curfew restrictions will not unduly interfere with the lives of the Defendants.

4. Provisions Restricting The Wearing Of Gang Clothing And The Flashing Of Hand Signs And Symbols Is Proper

Gang injunction provisions have been upheld that “forbid both the use of any words, gestures, hand signs or other forms of communication which describe or refer to the [specific] gang and the wearing of clothing which bears the gang name or letters that spell out the gang name.” People v. Englebrecht, supra, 88 Cal.App.4th at 1266. “The legitimate basis for the restrictions is that such expression amounts to or contributes to the nuisance enjoined. Gangs use such means of expression to demonstrate affiliation which in turn facilitates collective criminal action, defines exclusive territoriality, intimidates non-gang members and serves as a warning and challenge to members of other gangs. Thus, a narrowly drawn prohibition on such expression is proper.” Id.

VI. CONCLUSION

In light of the constant threats to lives and property, an injunction is not only proper but essential to abate the public nuisance created by the Varrio Viejo criminal street gang and to protect the residents of the Safety Zone.

Respectfully submitted,

DATED: ___________________________________________

TONY RACKAUCKAS, DISTRICT ATTORNEY

COUNTY OF ORANGE, STATE OF CALIFORNIA

APPENDIX OF PRELIMINARY INJUNCTION TERMS:

a. Do Not Associate: Anywhere in any public place, any place accessible to the public, or in public view, do not stand, sit, walk, drive, bicycle, gather or appear with (1) any other Defendant named herein, (2) anyone you know to be a member, participant, agent, servant, or employee of the Varrio Viejo Criminal Street Gang, or (3) anyone you know to be acting under, in concert with, for the benefit of, at the direction of, or in association with the Varrio Viejo Criminal Street Gang. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at 1110, 1117-1118, 1121-1122 [discussion of provision (a)], 1123-1125; In re Englebrecht, supra, 67 Cal.App.4th at 488-489, 490 fn. 3 [quoting par (a)]; People v. Englebrecht, supra, 88 Cal.App.4th at 1243 and 1261.)

b. Do Not Intimidate: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) confront, intimidate, annoy, harass, threaten, challenge, provoke, assault or batter anyone in the Safety Zone, or (2) remain in the presence of or assist anyone you know is confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting or battering anyone in the Safety Zone. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at 1118-1122; In re Englebrecht, supra, 67 Cal.App.4th at 490 fn. 3, 493, [par (k)].)

c. Stay Away From Drugs and Drug Paraphernalia: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) unlawfully use, possess, transport, furnish, manufacture, deliver, dispense, distribute or sell any drug or drug paraphernalia, (2) remain in the presence of or assist anyone you know is unlawfully using, possessing, transporting, furnishing, manufacturing, delivering, dispensing, distributing or selling any drug or drug paraphernalia, (3) remain in the presence of or assist anyone you know is unlawfully under the influence of any drug, (4) knowingly remain in the presence of any illegal drug or drug paraphernalia, or (5) unlawfully be under the influence of any drug. (Bus. & Prof. Code §§ 4060, 4140-4141; Health & Saf. Code §§ 11014, 11014.5, 11018-11021, 11053-11058, 11364, and 11550; Pen. Code § 31; People v. Englebrecht, supra, 88 Cal.App.4th at 1243, fn. 2, [par (l)].)

d. Stay Away From Guns, Explosive Devices and Weapons: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) use, possess, transport, furnish, manufacture, deliver, dispense, distribute or sell any firearm, gun, replica firearm, ammunition, BB gun, pellet gun, explosive device, destructive device or weapon such as knives, dirks, daggers, clubs, metal knuckles, hard plastic knuckles, nunchakus, chains, slingshots, or any weapon listed in Penal Code § 12020, (2) remain in the presence of or assist anyone you know is using, possessing, transporting, furnishing, manufacturing, delivering, dispensing, distributing or selling any firearm, gun, replica firearm, ammunition, BB gun, pellet gun, explosive device, destructive device or weapon such as knives, dirks, daggers, clubs, metal knuckles, hard plastic knuckles, nunchakus, chains, slingshots, or any weapon listed in Penal Code § 12020, or (3) knowingly remain in the presence of any firearm, gun, replica firearm, ammunition, BB gun, pellet gun, explosive device, destructive device, or weapon such as knives, dirks, daggers, clubs, metal knuckles, hard plastic knuckles, nunchakus, chains, slingshots, or any weapon listed in Penal Code § 12020. (Health & Saf. Code §§ 12000, 12120, 12303, and 12305; Pen. Code §§ 31, 12001, 12020, 12020.1, 12301, 12550; People v. Englebrecht, supra, 88 Cal.App.4th at 1243, fn. 2, [par (c), (j)].)

e. Do Not Fight: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) unlawfully fight or challenge another person to fight, (2) remain in the presence of or assist anyone you know is unlawfully fighting or challenging another person to fight, (3) maliciously and willfully disturb another person by loud or unreasonable noise, (4) remain in the presence of or assist anyone you know is maliciously and willfully disturbing another person by loud or unreasonable noise, (5) use offensive words which are inherently likely to provoke an immediate violent reaction, or (6) remain in the presence of or assist anyone you know is using offensive words which are inherently likely to provoke an immediate violent reaction. (Pen. Code §§ 31 and 415; San Juan Capistrano Municipal Code § 5-30.01; People v. Englebrecht, supra, 88 Cal.App.4th at 1243, fn. 2, [par (d)].)

f. Do Not Trespass: Do not (1) be present on, remain on or pass through any property not open to the general public unless you have the voluntary consent of the owner, owner’s agent, or the person in lawful possession of the property, or (2) remain in the presence of or assist anyone you know is present on any property not open to the general public without the voluntary consent of the owner, owner’s agent or the person in lawful possession of the property. (People v. Englebrecht, supra, 88 Cal.App.4th at 1243, fn. 2, [par (g)].)

g. Do Not Block Free Passage: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) willfully and maliciously block the free passage of any person or vehicle on any street, walkway, sidewalk, driveway, alleyway, or other area of public passage, or (2) remain in the presence of or assist anyone you know is willfully and maliciously blocking the free passage of any person or vehicle on any street, walkway, sidewalk, driveway, alleyway, or other area of public passage. (Pen. Code §§ 31 and 647c; Mission Viejo Municipal Code § 14.01.010; In re Englebrecht, supra, 67 Cal.App.4th at 490 fn. 3, 493 [par (h)].)

h. Do Not Engage In Graffiti and/or Vandalism and Stay Away From Graffiti/Vandalism Tools: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) maliciously spray paint, mark with marker pens, or otherwise deface property with graffiti or other inscribed material on any public property or private property not your own, (2) remain in the presence of or assist anyone you know is maliciously spray painting, marking with marker pens, or otherwise defacing property with graffiti or other inscribed material on any public or private property not belonging to him, her or you, (3) maliciously damage or destroy real or personal property not your own, (4) remain in the presence of or assist anyone you know is maliciously damaging or destroying real or personal property not belonging to him, her or you, (5) unlawfully possess spray paint cans, marker pens, knives, screwdrivers, razor blades, nails or other objects capable of destroying, damaging or defacing property, or (6) remain in the presence of or assist anyone you know is unlawfully possessing spray paint cans, marker pens, knives, screwdrivers, razor blades, nails or other objects capable of destroying, damaging or defacing property. (Pen. Code §§ 31, 594, and 594.2; San Juan Capistrano Municipal Code § 5-13.02; People v. Englebrecht, supra, 88 Cal.App.4th at 1243, fn. 2, [par (e), (f)].)

i. Do Not Use Gang Hand Signs or Symbols: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) use, display, or communicate by means of any words, phrases, physical gestures, hand signs, or symbols that you know describe, represent or refer to the Varrio Viejo Criminal Street Gang, or (2) remain in the presence of or assist anyone you know is using, displaying, or communicating by means of any words, phrases, physical gestures, hand signs or symbols that you know describe, represent or refer to the Varrio Viejo Criminal Street Gang. (People v. Englebrecht, supra, 88 Cal.App.4th at 1243 fn. 2, 1266-1267 [par (s)].)

j. Do Not Wear Gang Clothing: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) wear, display, exhibit, or possess any clothes or accessories that you know advertise, advance, promote, represent, or refer to the Varrio Viejo Criminal Street Gang, including clothes or accessories that display, exhibit, or feature, in any variation or combination, the image, name, words, or letters, “Varrio Viejo,” “SJC,” “Old Town,” “San Juan Capistrano,” “San Juan,” “Capistrano,” “VV,” “Swallows,” “Swallow’s Day,” “San Juan Boys,” “OC,” “Orange County,” “13,” “XIII,” “X3,” “22,” images of swallows (birds), Dallas Cowboys jerseys, Dallas Cowboys sweatshirts, Dallas Cowboys shirts, Dallas Cowboys pants, Dallas Cowboys hats, Dallas Cowboys beanies, Dallas Cowboys sweat bands, Dallas Cowboys web belts, Dallas Cowboys belt buckles, Dallas Cowboys bandanas, Dallas Cowboys key chains, or Dallas Cowboys bottle openers, (2) remain in the presence of or assist anyone that you know is wearing, displaying, exhibiting, or possessing any clothes or accessories that you know advertise, advance, promote, represent, or refer to the Varrio Viejo Criminal Street Gang. (People v. Englebrecht, supra, 88 Cal.App.4th at 1243 fn. 2, 1266-1267 [par (t)].)

k. Stay Away From Burglary Tools: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) unlawfully use, possess, transport, furnish, manufacture, deliver, dispense, distribute, or sell any screwdrivers, porcelain spark plug chips, shaved keys, picklocks, wire cutters, dent pullers, slingshots, steel shots, spark plugs, “slim jims,” or any instrument or tool listed in Penal Code § 466, or (2) remain in the presence of or assist anyone you know is unlawfully using, possessing, transporting, furnishing, manufacturing, delivering, dispensing, distributing, or selling any screwdrivers, porcelain spark plug chips, shaved keys, picklocks, wire cutters, dent pullers, slingshots, steel shots, spark plugs, “slim jims,” or any instrument or tool listed in Penal Code § 466. (Pen. Code § 466; In re Englebrecht, supra, 67 Cal.App.4th at 490 fn. 3, [par (o)]; People v. Englebrecht, supra, 88 Cal.App.4th at 1243 fn. 2 [par (n)].)

l. Obey Curfew if You Are a Minor: If you are under eighteen (18) years of age, anywhere in any public place, any place accessible to the public, or in public view, do not remain in or upon any public place, vacant lot, or business establishment between the hours of 10:00 p.m. on any day and 6:00 a.m. of the following day, unless: (1) you are accompanied by your parent(s), legal guardian, or by a responsible adult, (2) you are on an errand without any detour or stop at the direction of your parent(s), legal guardian or responsible adult, (3) you are on a public or private sidewalk in front of your own dwelling or a dwelling directly adjacent to your dwelling, (4) you are acting within the course and scope of your lawful employment or business or when you are going to or from such place of lawful employment or business by a reasonably direct route, without detour, from or to your home, or when you are going to or from a bona fide interview for lawful employment by a reasonably direct route, without detour, from or to your home, (5) you are going to or from, are attending, or are engaged in, an official school, educational, recreational, entertainment, charitable, cultural, or religious activity, or other expressive activity within the scope of your rights under the First Amendment to the Constitution of the United States which activity is supervised or overseen by an adult person on behalf of any public entity, civic organization, non-profit organization, educational organization, governmental organization, or similar organization, where you are going to or from such activity in a reasonably direct route, without detour, from or to your home, (6) you are a registered volunteer at any shelter, hospital, school or other charitable institution and you are going to or from such activity in a reasonably direct route, without detour, from or to your home, (7) you are responding to an emergency situation, or (8) you are in a vehicle engaged in interstate travel. (San Juan Capistrano Municipal Code § 5-09.01 et. seq.; Mission Viejo Municipal Code § 11.15.010 et. seq.; In re Englebrecht, supra, 67 Cal.App.3rd at 490 fn. 3, [par (x)]; People v. Englebrecht, supra, 88 Cal.App.4th at 1243 fn. 2, [par (v)]; In re Nancy C. (1972) 28 Cal.3rd 747; Alves v. Superior Court (1957) 148 Cal.App.2d. 419.)

m. Obey Curfew if You Are an Adult: If you are eighteen (18) years of age or older, anywhere in any public place, any place accessible to the public, or in public view, do not remain in or upon any public place, vacant lot, or business establishment between the hours of 10:00 p.m. on any day and 6:00 a.m. of the following day, unless: (1) you are on a public or private sidewalk in front of your own dwelling or a dwelling directly adjacent to your dwelling, (2) you are acting within the course and scope of your lawful employment or business, or when you are going to or from such place of lawful employment or business by a reasonably direct route, without detour, from or to your home or when you are going to or from your home for a bona fide interview for lawful employment by a reasonably direct route, without detour, from or to your home, (3) you are going to or from, are attending, or are engaged in, an official school, educational, recreational, entertainment, charitable, cultural, or religious activity, or other expressive activity within the scope of your rights under the First Amendment to the Constitution of the United States, where you are going to or from such activity in a reasonably direct route, without detour, from or to your home, (4) you are a registered volunteer at any shelter, hospital, school or other charitable institution and you are going to or from such activity in a reasonably direct route, without detour, from or to your home, (5) you are responding to an emergency situation, or (6) you are in a vehicle engaged in interstate travel. (San Juan Capistrano Municipal Code § 5-09.01 et. seq.; Mission Viejo Municipal Code § 11.15.010 et. seq.; In re Englebrecht, supra, 67 Cal.App.3rd at 490 fn. 3, [par (x)]; People v. Englebrecht, supra, 88 Cal.App.4th at 1243 fn. 2, [par (v)]; In re Nancy C. (1972) 28 Cal.3rd 747; Alves v. Superior Court (1957) 148 Cal.App.2d. 419.)

n. Stay Away From Alcohol: Anywhere in any public place, any place accessible to the public, or in public view, do not (1) drink alcoholic beverages, (2) possess an open container of an alcoholic beverage, (3) unlawfully be under the influence of alcohol, (4) knowingly remain in the presence of anyone possessing an open container of an alcoholic beverage, or (5) knowingly remain in the presence of an open container of an alcoholic beverage. (Pen. Code § 647(f); Veh. Code §§ 21221.5, 23140, 23152(a); San Juan Capistrano Municipal Code § 5-3.01 et. seq; Mission Viejo Municipal Code §§ 11.21.010, 11.21.030.)

o. Do Not Act as a Lookout: Anywhere in any public place, any place accessible to the public, or in public view, do not keep watch, yell, whistle, signal, gesture, or otherwise act as a lookout to warn another person of the approach or presence of a law enforcement officer. (People v. Engelbrecht, supra, 88 Cal.App.4th 1236, 1243, fn. 2, [par (q)]; In re Engelbrecht, supra, 67 Cal.App.4th 486, 490, fn. 3, [par (r)].)

p. Obey All Laws: Anywhere in any public place, any place accessible to the public, or in public view, obey all laws and court orders.

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