In re B.J. ( 2020 )


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  • Filed 5/28/20
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    In re B.J., a Person Coming                2d Juv. No. B293545
    Under the Juvenile Court Law.            (Super. Ct. No. YJ38738)
    (Los Angeles County)
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    B.J.,
    Defendant and Appellant.
    What happens if a juvenile court sustains allegations
    that a minor committed a series of offenses, some of which render
    them eligible for Division of Juvenile Justice (DJJ) commitment
    and some of which do not? Welfare and Institutions Code section
    733, subdivision (c), is clear: DJJ commitment is permitted only
    if the minor’s most recent offense is listed in Penal Code1 section
    290.008, subdivision (c), or Welfare and Institutions Code section
    1 Further   undesignated statutory references are to the
    Penal Code.
    707, subdivision (b). (See also In re D.B. (2014) 
    58 Cal. 4th 941
    ,
    947.) Because the latest offense B.J. committed is listed in
    neither statute, we vacate the commitment order.
    Prosecutors alleged that B.J. committed kidnapping
    during the commission of a carjacking (§ 209.5, subd. (a); count
    1), kidnapping to commit robbery (§ 209, subd. (b)(1); count 2),
    carjacking (§ 215, subd. (a); count 3), second degree robbery
    (§§ 211, 212.5, subd. (c); count 4), and unlawfully driving or
    taking a vehicle (Veh. Code, § 10851, subd. (a); count 5) one
    evening in September 2017. In the same petition, prosecutors
    also alleged that B.J. restricted or obstructed a peace officer
    (§ 148, subd. (a)(1); count 7) later that night. The juvenile court
    sustained the allegations, and found true allegations that B.J.
    committed counts 1 through 5 for the benefit of a criminal street
    gang (§ 186.22, subds. (b)(1)(A), (b)(1)(C) & (b)(4)) and that a
    principal personally used a firearm during the commission of
    counts 1 through 4 (§ 12022.53, subds. (b) & (e)(1)). The court
    deemed counts 1 through 5 felonies; count 7, a misdemeanor. It
    declared B.J. a ward of the court, and ordered him committed to
    DJJ for a maximum term of life plus 21 years four months.
    B.J. contends: (1) insufficient evidence supports the
    juvenile court’s true findings on the gang allegations, (2) the true
    finding on count 3 should be reversed, and (3) the court erred
    when it ordered him committed to DJJ. We reverse the court’s
    finding on count 3, vacate the commitment order, and remand for
    a new dispositional hearing.
    FACTUAL AND PROCEDURAL HISTORY
    The kidnapping, carjacking, and burglary crimes
    In September 2017, K.I. drove her friend’s black Audi
    to El Segundo. Around 7:00 p.m., K.I. parked and started to get
    2
    out of the car. A man pointed a gun at her and told her to get
    back inside. As she moved to the front passenger seat, the man
    demanded all of her possessions.
    The driver picked up B.J., then age 15, about 20
    yards down the street. B.J. told the driver, “We need to hurry,
    let’s go, dead bodies, my nigga, dead bodies.” He pointed a gun at
    K.I. and demanded her cell phone. He looked through the
    contents of the phone and said, “Oh, you look good too. This is
    going to be fun.” He touched K.I.’s stomach, and the driver
    touched her breast. K.I. thought the two were going to rape her.
    The driver stopped the Audi again and picked up
    another passenger. K.I. begged to be let out of the car. The
    driver stopped, threw K.I.’s purse at her, and told her to go. K.I.
    got out and asked B.J. for her cell phone. He refused to return it.
    K.I. ran down the street and called police.
    The resisting arrest offense
    About four hours later, Los Angeles Police Officer
    Leovardo Guillen saw a black Audi run a stop sign. Officer
    Guillen activated his overhead lights and followed the car. The
    Audi sped away, but stopped after a few blocks. B.J. got out and
    ran. Officer Guillen chased and detained him. B.J. had socks on
    his hands and K.I.’s cell phone in his pocket.
    Gang evidence
    During booking, B.J. told Officer Guillen that he was
    a member of the Rollin 90s gang and that his moniker was “Ken
    Dog.” At the contested adjudication, Officer Guillen testified that
    gang members sometimes wear socks on their hands to avoid
    leaving fingerprints while loading a firearm or stealing vehicles.
    Detective Jesus Flores testified that, during the
    investigation of a 2016 carjacking, B.J. admitted that he was a
    3
    member of the Rollin 90s gang with the moniker “Tiny Ken Dog.”
    B.J. committed that crime with three other people, including
    another Rollin 90s gang member and a Rollin 40s gang member.
    Detective Don Sasaki testified that B.J. told him that
    he was a Rollin 90s gang member with a moniker of “Tiny Nine
    Bang” in February 2017.
    Officer Robert Resurreccion testified that the Rollin
    90s gang is a clique of the Neighborhood Crips street gang,
    together with the Rollin 30s, 40s, 50s, 60s, and 100s. The Rollin
    90s gang’s primary activities include vandalism, burglaries,
    robberies, carjackings, and firearms possession. Carjacking a
    “high-end car” like an Audi allows a gang member to show off the
    vehicle and gain respect from fellow gang members. It also
    allows them to drive to rival gang territory and commit
    additional crimes. The proceeds from these crimes benefit the
    gang financially and permit them to buy firearms or narcotics.
    Officer Resurreccion said that the carjacking in this
    case was committed in Rollin 40s gang territory. It occurred on
    “Hood Day,” a day of celebration for the Rollin 90s. Younger gang
    members often commit crimes on Hood Day to demonstrate their
    respect for and loyalty to the gang and to establish themselves as
    members.
    Officer Resurreccion believed that B.J. was an active
    Rollin 90s gang member based on his prior admissions, prior
    crimes, and gang tattoos. He did not know whether B.J.’s
    accomplices in the carjacking were gang members.
    Given a hypothetical scenario based on the facts of
    this case, Officer Resurreccion opined that the hypothetical gang
    member would have committed the crimes for the benefit of, at
    the direction of, and in association with the Rollin 90s street
    4
    gang: It was the gang’s Hood Day, the stolen car benefitted the
    gang financially, and it increased the gang member’s prestige
    within the gang. That the gang member may have committed the
    crimes with non-gang members did not change the officer’s
    opinion since it was possible the non-gang members were
    attempting to “work their way into the gang.”
    DJJ commitment
    The juvenile court ordered B.J. committed to DJJ for
    a maximum term of life plus 21 years four months: a lifetime
    commitment on count 1, plus a consecutive 10 years on the
    attached gang enhancement, plus a consecutive 10 years on the
    firearm enhancement; a consecutive one year on count 4; and a
    consecutive four months on count 7. Pursuant to section 654, the
    court imposed and stayed the commitments on all remaining
    counts.
    DISCUSSION
    Gang allegations
    To sustain a gang allegation, the juvenile court must
    conclude that: (1) the minor’s offense was gang related, or was
    committed “for the benefit of, at the direction of, or in association
    with” the gang, and (2) the minor had “‘the specific intent to
    promote, further, or assist in any criminal conduct by gang
    members.’” (People v. Albillar (2010) 
    51 Cal. 4th 47
    , 60, 65; see
    § 186.22, subd. (b)(1).) B.J. contends there was insufficient
    evidence of the first of these requirements. We disagree.
    When evaluating a challenge to the sufficiency of the
    evidence, our review is limited to determining whether
    substantial evidence—“evidence that is reasonable, credible, and
    of solid value”—supports the juvenile court’s findings. (People v.
    Zamudio (2008) 
    43 Cal. 4th 327
    , 357.) We view the evidence “in
    5
    the light most favorable to the prosecution and presume in
    support of the [findings] the existence of every fact the [court]
    could reasonably have deduced from the evidence.” (Ibid.)
    “‘Conflicts and even testimony that is subject to justifiable
    suspicion do not justify the reversal of a [finding], for it is the
    exclusive province of the [court] to determine the credibility of a
    witness and the truth or falsity of the facts upon which a
    determination depends.’” (Ibid.) Reversal “‘is unwarranted
    unless it appears “that upon no hypothesis whatever is there
    sufficient substantial evidence to support”’ the [court’s findings].
    [Citation.]” (Ibid.)
    “‘Expert opinion that particular criminal conduct
    benefited a gang’ . . . can be sufficient to support [a] gang
    enhancement.” (People v. Vang (2011) 
    52 Cal. 4th 1038
    , 1048.)
    Here, Officer Resurreccion opined that a gang member like B.J.
    would have committed his crimes for the benefit of the Rollin 90s
    gang. The evidence supports that opinion.
    Detective Flores, Detective Sasaki, Officer Guillen,
    and Officer Resurreccion all testified that B.J. was a Rollin 90s
    gang member. Carjacking is one of that gang’s signature crimes.
    Rollin 90s gang members often commit carjackings with members
    of other cliques of the Neighborhood Crips, such as the Rollin 40s
    (as B.J. had done previously), or in those cliques’ territories (as
    was the case here). And as was the case here, they often wear
    socks on their hands while doing so. Carjacking a “high-end” car
    like an Audi would help a young gang member like B.J. earn
    respect from older gang members by permitting him to commit
    additional crimes that financially benefit the gang. Committing
    the crime on the gang’s Hood Day would allow B.J. to
    demonstrate his loyalty to the gang. This evidence is sufficient to
    6
    support Officer Resurreccion’s opinion that B.J. committed his
    crimes for the benefit of the Rollin 90s gang.
    The cases on which B.J. relies do not require a
    contrary conclusion. Like the situation here, in none of the cited
    cases did the defendant “call out a gang name, display gang
    signs, wear gang clothing, or engage in gang graffiti while
    committing” their crimes. (People v. Ochoa (2009) 
    179 Cal. App. 4th 650
    , 662; see People v. Franklin (2016) 
    248 Cal. App. 4th 938
    , 950; People v. Ramirez (2016) 
    244 Cal. App. 4th 800
    , 819.) But unlike the situation here, those defendants’
    crimes did not occur in gang-targeted territory or on their gangs’
    Hood Days. Those factors sufficiently distinguish this case to
    support the juvenile court’s findings.
    Carjacking allegation
    B.J. contends, and the Attorney General concedes,
    the juvenile court’s true finding on count 3 should be reversed
    because carjacking is a lesser included offense of kidnapping
    during the commission of a carjacking. We agree.
    When the juvenile court determines that a minor
    committed “both a greater and a necessarily lesser included
    offense arising out of the same act or course of conduct, and the
    evidence supports the [finding] on the greater offense, that
    [finding] is controlling, and the [finding] of the lesser offense
    must be reversed. [Citations.]” (People v. Sanders (2012) 
    55 Cal. 4th 731
    , 736; In re Marcus T. (2001) 
    89 Cal. App. 4th 468
    ,
    471.) Here, the court found true allegations that B.J. committed
    kidnapping during the commission of a carjacking (count 1) and
    carjacking (count 3). The latter is a lesser included offense of the
    former. (People v. Montes (2014) 
    58 Cal. 4th 809
    , 898.) Both
    offenses arose out of the same course of conduct, and B.J. does
    7
    not challenge the true finding on count 1. The findings on count
    3 and its attendant allegations must thus be reversed. (Ibid.)
    DJJ commitment
    B.J. contends, and the Attorney General concedes,
    that the juvenile court erred when it ordered him committed to
    DJJ custody. The parties are correct: A minor is eligible for DJJ
    commitment only if “the last offense that was adjudicated to have
    been committed” is listed in section 290.008, subdivision (c), or
    Welfare and Institutions Code section 707, subdivision (b). (In re
    
    D.B., supra
    , 58 Cal.4th at p. 947; see Welf. & Inst. Code, § 733,
    subd. (c).) B.J.’s “last offense that was adjudicated”—resisting or
    obstructing a peace officer—is not listed in either subdivision.
    The commitment order must therefore be vacated.
    Our concurring colleague deems this result “absurd,”
    and concurs only “under compulsion of In re D.B.” (Conc. opn.
    post, at p. 1.) But it is not only In re D.B. that compels the result
    we reach here; it is the plain language of Welfare and
    Institutions Code section 733, subdivision (c), itself—something
    this court has recognized previously. (See In re A.O. (2017) 
    18 Cal. App. 5th 390
    , 393 [Welfare and Institutions Code section 733,
    subdivision (c), “‘lends itself to only one reasonable
    interpretation’”].) Moreover, the Supreme Court decided In re
    D.B. more than three years before B.J. committed his crimes,
    giving prosecutors ample notice of the requirements of Welfare
    and Institutions Code section 733, subdivision (c). Had they
    wanted to avoid the result that statute requires, they could have
    easily exercised their discretion at the charging stage. They did
    not do so.
    B.J. also contends the juvenile court failed to exercise
    its discretion and consider the facts and circumstances of his case
    8
    when it set his maximum commitment term. (See Welf. & Inst.
    Code, § 731, subd. (c); In re Julian R. (2009) 
    47 Cal. 4th 487
    , 495.)
    Because we are vacating the DJJ commitment order, we do not
    resolve this contention.
    Finally, B.J. points out that the DJJ commitment
    form contains several clerical errors: It states that the
    commitments for various offenses were stayed pursuant to
    Welfare & Institutions Code section 654 rather than that section
    of the Penal Code, and cites to “1022.53(B)&(E)(1)PC” rather
    than section 12022.53 for the firearm enhancements. Because we
    are vacating the commitment order, these errors no longer exist.
    We presume any new commitment form will accurately reflect
    the juvenile court’s judgment.
    DISPOSITION
    The juvenile court’s true finding on the carjacking
    allegation in count 3 is reversed. The order committing B.J. to
    DJJ custody is vacated, and the matter is remanded for a new
    dispositional hearing. In all other respects, the judgment is
    affirmed.
    CERTIFIED FOR PUBLICATION.
    TANGEMAN, J.
    We concur:
    GILBERT, P. J.
    YEGAN, J.
    9
    YEGAN, J., Concurring:
    I concur under compulsion of In re D.B. (2014) 
    58 Cal. 4th 941
    . An intermediate appellate court is bound to follow
    Supreme Court precedent where, as here, the presenting facts are
    not “fairly distinguishable.” (People v. Triggs (1973) 
    8 Cal. 3d 884
    ,
    890-891, disapproved on another ground in People v. Lilienthal
    (1978) 
    22 Cal. 3d 891
    , 896; see also People v. Musante (1980) 
    102 Cal. App. 3d 156
    (conc. opn. of Gardner, P. J.).) As Presiding
    Justice Gardner would say, the Supreme Court is wrong. The
    statute, if literally applied can lead to, and here does lead to, an
    absurd result as a matter of law.
    The Supreme Court should reconsider the rule
    articulated in D.B. There, the Supreme Court recognized the
    problem but said that the language chosen by the Legislature
    was not “so absurd” to warrant rejection of the plain language.
    (In re 
    D.B., supra
    , 58 Cal.4th at p. 948.) In my view, something is
    either absurd or it is not absurd. Absurdity has many synonyms
    according to the Merriam-Webster dictionary: asininity, betise,
    fatuity, folly, foolery, foppery, idiocy, imbecility, inanity, insanity,
    lunacy, and stupidity. (See Merriam-Webster dictionary,
    https://www. merriam-webster.com/dictionary/ absurdity.) It has
    a unique meaning in the law. (See, e.g., People v. Clayburg
    (2012) 
    211 Cal. App. 4th 86
    , 88.) The courts follow the “plain
    meaning rule” but we should not subscribe to the “‘dictionary
    school of jurisprudence.’” (Ibid.) For example, I cannot believe
    that the Legislature actually intended that a juvenile who is
    apprehended for an offense that would qualify for Division of
    Juvenile Justice (DJJ) commitment is precluded where the
    juvenile, upon arrest therefor, assaults a peace officer. This is
    1
    the “plain meaning” of the statute and it is absurd. I am still
    waiting for someone to tell me that it is not absurd.
    Our hypothetical question at oral argument in this
    matter further illustrates the absurdity here at play: a juvenile
    commits a murder with a firearm. On the way home he stops at
    a market and steals a coke. The police arrest him when he gets
    home. The prosecutor charges murder with the use of a firearm
    and the petty theft. The juvenile court sustains both substantive
    charges and finds the use of a firearm allegation to be true. He
    cannot be committed to the DJJ. He must be treated at the local
    level. This is beyond unwise. It is absurd. A premium is placed
    on committing more “disqualifying” crimes after a juvenile
    commits a qualifying crime.
    The statute chills the prosecutor’s charging power
    and discretion. And, it does more than chill the judicial
    “sentencing” process. It shackles the juvenile court and requires
    it to impose an unjust “sentence” because of the charging process.
    The separation of powers principle of government is undermined
    by the D.B. holding.
    Public safety cannot and should not be ignored. The
    statute does little, if nothing, to foster public safety. We are
    fortunate that no one was killed or suffered great bodily injury as
    a result of appellant’s offenses. I agree with the juvenile court
    that these offenses, committed by this juvenile, warrant a
    commitment to DJJ. No one can logically argue to the contrary.
    CERTIFIED FOR PUBLICATION.
    YEGAN, J.
    2
    Christopher J. Smith, Judge
    Superior Court County of Los Angeles
    ______________________________
    Steven A. Torres, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters,
    Chief Assistant Attorney General, Susan Sullivan Pithey, Idan
    Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff
    and Respondent.