In re T.W. CA4/1 ( 2021 )

Filed 9/28/21 In re T.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.W., a Person Coming Under
the Juvenile Court Law.
D077336
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J241574)
v.
T.W.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kathleen M. Lewis and Peter C. Deddeh, Judges. Affirmed, as modified.
Tonja R. Torres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
After he was declared a ward of the court and placed on probation for a
misdemeanor offense, 15-year-old T.W.—an Emerald Hills Blood gang
member—and two other minors murdered Ishi Hampton. T.W. was charged
with first degree murder and conspiracy to commit murder. (Pen. Code,
§§ 187, subd. (a), 182, subd. (a)(1).)1 The murder and conspiracy to commit
murder were alleged to have been committed for the benefit of, at the
direction of, and in association with a criminal street gang (§ 186.22,
subd. (b)(1)) and it was further alleged that at least one principal used a
firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). After the
murder, but before he was apprehended, T.W. was alleged to have committed
two robberies.
In response to a petition alleging the two robberies, T.W. admitted one
count of grand theft. (Pen. Code, § 487, subd. (c).) The juvenile court found
true the murder and conspiracy to commit murder allegations, as well as the
gang and firearm enhancement allegations. The court subsequently
dismissed the petition alleging the robbery counts (Welf. & Inst. Code, § 782),
then continued T.W. as a ward of the court (id., § 602), placed him under the
supervision of the probation officer, and committed him to the Department of
Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).2
On appeal, T.W. contends the gang expert testimony and certified
records that were used to prove six predicate offenses were improperly based
on inadmissible, case-specific hearsay. We conclude any error was not
1 Unless otherwise indicated, statutory citations are to the Penal Code.
2 “DJJ is also known as the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities (DJF). DJJ/DJF is the current
name of the former California Youth Authority.” (In re N.C. (2019)
39 Cal.App.5th 81, 85, fn. 3.)
2
prejudicial because other admissible evidence supported the finding that
Emerald Hills gang members committed at least two predicate offenses
needed to support the gang enhancement.
T.W. further contends his DJJ commitment was improper because his
“latest crime”—grand theft—was not a qualifying offense under Welfare and
Institutions Code section 733, subdivision (c). We reject this contention
because the juvenile court dismissed the relevant petition under Welfare and
Institutions Code section 782, leaving the DJJ qualifying offense of murder,
and we find no abuse of discretion in the court’s decision to do so.
T.W. further contends section 654 prohibits punishment for both the
murder and conspiracy to commit murder and that the 10-year enhancements
under section 186.22, subdivision (b)(1)(C) must be stricken. We agree with
these contentions, modify the judgment to stay punishment on the conspiracy
count, strike the 10-year enhancements under section 186.22,
subdivision (b)(1)(C) and clarify that section 186.22, subdivision (b)(5) applies
and imposes a minimum term of 15 years before T.W. may be considered for
parole. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petitions
On January 16, 2019, the People filed an amended petition alleging
T.W. committed robbery (§ 211; count 1), assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 2), and a misdemeanor
count of giving false information to a peace officer (§ 148.9, subd. (a); count 3).
The offenses were alleged to have occurred on August 16, 2018. T.W.
admitted the misdemeanor (count 3), and the People moved to dismiss
counts 1 and 2. The juvenile court declared T.W. a ward of the court and
placed him on probation.
3
On May 30, 2019, the People filed a second petition alleging that T.W.
committed murder (§ 187, subd. (a); count 1) and conspiracy to commit
murder (§ 182, subd. (a)(1); count 2). The murder was alleged to have
occurred on May 2, 2019. The petition alleged, as to both counts, that T.W.
committed the offenses for the benefit of, at the direction of, and in
association with a criminal street gang (§ 186.22, subd. (b)(1)) and that at
least one principal used a firearm causing great bodily injury (§ 12022.53,
subds. (d), (e)(1)).
On December 11, 2019, the People filed a third petition alleging T.W.
committed two counts of robbery.3 (§ 211.) On January 3, 2020, T.W.
admitted committing one count of grand theft (§ 487, subd. (c)), and the
juvenile court dismissed count 2.4
B. Contested Adjudication Hearing
In January 2020, the juvenile court conducted a contested adjudication
hearing on the second petition regarding the murder allegations.
3 For ease of reference, we refer to the December 11, 2019 petition as the
“robbery/grand theft petition.” The robberies were alleged to have occurred
about two weeks after the murder, but a petition was not filed at that time.
However, in December, after repeatedly waiving time on the murder petition,
defense counsel withdrew T.W.’s time waiver, triggering T.W.’s release on
that petition to home supervision. At that time, the People elected to file a
new petition, which allowed the court to order T.W.’s continued detention.
4 T.W. admitted one count of the lesser included offense of grand theft
and informed the court that he understood the other count would be
dismissed, the maximum punishment he may receive would be three years of
detention, and no other promises had been made to him.
4
1. Evidence relating to the murder
Shortly after midnight on May 2, 2019, T.W. and two other minors,
K.W. and E.I., parked in front of an apartment complex on Alvarado Road in
San Diego. They remained inside the car for about six hours.
When the victim, Ishi Hampton, exited his apartment complex and
began walking to his car, T.W. got out of the car’s passenger side door and
began shooting.
Two waste management employees were parked in a garbage truck in
front of the apartment complex when they heard gunshots. They saw the
victim running and stumbling as T.W. shot at him repeatedly. After the
victim fell to the ground the first time, he got up again, and the shooter shot
him again. They saw the victim collapse near the front of the building and
two young males flee the scene. The shooter was wearing a tan or red hoodie
and jeans, and his companion was wearing a blue hoodie; both had their
hoods up. The employees called for an ambulance and checked on the victim,
who did not appear to be breathing.
A woman standing at a nearby trolley station heard gunshots. She
turned to the direction of the sound and saw one young man running and two
young men running behind him. She turned her phone’s camera on; the video
footage she captured was played in court.
A man getting gas nearby was approached by three young men wearing
hoodies and jeans. One asked if he could borrow the man’s phone or get a
ride to a friend’s house down the street, but the man declined.
A gardener at a nearby school saw three males, two wearing dark
hoodies and one in a light-colored shirt, walking briskly toward him. He told
them they needed to leave before the students started to arrive, pointed them
5
toward the front of the school to exit, and followed them to make sure they
left.
Video of the shooting was captured by a nearby security camera.
Security footage from various cameras depicted the three minors fleeing the
scene, and captured the route they took to escape, past the trolley station, the
gas station, and across the school campus. Eventually, they walked to an
apartment near the school.
A medical examiner conducted an autopsy and determined Hampton
suffered a single gunshot wound to his back. The bullet passed through his
organs, including his heart, and lodged in his pectoral muscle.
A crime scene specialist from the San Diego Police Department
processed the suspects’ vehicle (which they left at the scene) for latent
fingerprint and DNA evidence. T.W.’s prints were identified on the exterior
passenger side door. K.W.’s prints were identified on the exterior roof of the
vehicle. DNA of T.W., K.W., and E.I. was found in the vehicle’s interior.
On May 28, T.W. and E.I. were arrested together and placed in the
back seat of a patrol car.5 A recording of their conversation was played in
court. T.W. told E.I., “On blood, don’t snitch, really bro. . . . It’s the car. It
has to be. Cuz it was gone,” and, “Bro, for murder, bro.” T.W. asked E.I., “So,
you think Tey9’s in there for the same thing?”6 T.W. said, “I kind a feel like
I’m, feel like I should, I’m a see what the thing is, if I, if I plead guilty for
5 A detective informed them they were “both under arrest . . . for
murder,” read them their rights, and confirmed they understood their rights
before leaving them alone in the vehicle.
6 A gang expert subsequently testified that “Tey9” was K.W.’s gang
moniker.
6
this. I don’t know, to be honest . . . . We’re fittin’ to be here for at least, a
minute,” and “You think what’s his name could be our alibi? Mack-manity?”
In October, a conversation between T.W., E.I., and K.W. was recorded
as the minors were transported to juvenile court. K.W. asked T.W., “Did you
know we green lighted, Blood? [¶] . . . [¶] By Crabs, by Lincoln niggas,
Blood, by the East[.] [¶] . . . [¶] For that shit.”
K.W. said he had “seen the video”; T.W. said he had not seen it. The
following discussion occurred next:
K.W.: “You didn’t tell us the whole thing, Blood. I didn’t
know you doubled back, Blood. But . . . .”
T.W.: “I told you that.”
E.I.: “Yeah, Blood told us that—Blood could, on the set, the
video bro, all you see is you Blood . . . .”7
Later in the conversation, K.W. asked,
“Did your attorney show you the route? That we took?”
E.I.: “Oh yeah, everywhere. Recorded us everywhere.
They showed us everywhere. Like, everywhere we’ve been
blood.”
T.W.: “Are you talking about the route?”
E.I.: “Yeah, I’m talking about—I’m talking about the route
when we ran to. . . . [I]t just happens someone was behind
the trash[ ]can recording us.”
E.I.: “Yeah, I told you not to take off your . . . . I told you.”
T.W.: “No—no you didn’t.”
7 A gang expert testified that, when a gang member said something is
“ ‘on the set,’ ” they are making a reference to their loyalty to the gang set,
saying something is “ ‘important,’ ” “ ‘huge,’ ” or “ ‘the truth.’ ”
7
E.I.: “Blood, (unintelligible), on the set.”
T.W.: “No, you told me to take that shit off.”
E.I.: “Ask Blood. You know I did, Blood. ‘Cause why
would I . . . .”
K.W.: “He did—he did . . . .”
E.I.: “If I told you that I would take off my shit too, Blood.”
K.W.: “[L]ook, bro, look when we was at the school, right, I
was looking this way. We was walking. (Unintelligible.)
All you can see is your tan shirt blood, and your fucking
hair, blood.”
T.W.: “I had a white shirt.”
E.I.: “He had a white shirt.”
K.W.: “Oh it looks like it’s tan in the video.”
A detective from the San Diego Police Department’s street gang unit
testified that he was familiar with members of the Emerald Hills Blood gang.
He observed a music video shot at Emerald Hills Park during a party
frequented by Emerald Hills Blood gang members. In the video, he observed
the victim Ishi Hampton in the background at the park. The detective
testified he thought it was “odd” for Hampton to be at the park that day—the
annual gang holiday for the Emerald Hills Blood gang—because he was not
known to be an Emerald Hills Blood gang member.
2. Gang expert
Detective K. Morgan, a detective with the San Diego Police
Department’s street gang unit, testified as an expert regarding the Emerald
Hills Blood gang. She testified she had spent two years working as a patrol
officer with the Street Gang Suppression Team (GST) and had also worked in
the vice and child abuse units. She testified that she had worked in her
8
current assignment for six months and was charged with monitoring two
gangs, one of which was the Emerald Hills Blood gang. During that six-
month period, she estimated she had investigated three felony or
misdemeanor cases associated with the Emerald Hills Blood gang.
Detective Morgan testified she had contacted members of the Emerald
Hills gang when she was on patrol with the GST, and she had arrested and
spoken to members of the gang since becoming a detective. Based on her
training and experience, as well as her personal contacts with Emerald Hills
gang members, Detective Morgan opined the Emerald Hills Blood gang was a
criminal street gang within the meaning of section 186.22 because they have
more than three members (with 27 known members), a common sign or
symbol (the Playboy bunny and the letter U, for “ ‘uptown’ ” or “ ‘upside sic’ ”),
and they commit crimes set forth in section 186.22, subdivision (e) as their
primary criminal activity (including murder, assault with a deadly weapon,
and robbery).
Detective Morgan testified that the Easter holiday has a special
significance for Emerald Hills gang members. Because the gang’s symbol is a
Playboy bunny, they use Easter (or “ ‘Bunny Day’ ”) as a time for “jump[ing]
in” new members and celebrating the gang. As part of this celebration, the
gang members would meet at the Emerald Hills Park, wear their gang color
gray, and “show loyalty to the gang.”
Numerous photographs obtained from T.W.’s cell phone and social
media accounts were introduced as evidence. The photos depicted T.W., K.W.
and others exhibiting gang hand gestures that Detective Morgan opined
meant “Uptown Emerald Hills,” “upside sic,” “fuck neighborhood Crips,” and
“Crip” or “crab” killer.
9
Based on her review of T.W.’s cell phone information and his social
media accounts, which depicted T.W. over a period of time repeatedly
throwing up the gang’s hand signs, wearing the gang’s signature gray color,
and posing with a firearm wrapped in a gray bandanna, Detective Morgan
opined that T.W. is a member of the Emerald Hills Blood gang.8 She
similarly opined that K.W. is a member of the Emerald Hills Blood gang. She
based this opinion on her review of his social media postings and information
found on his cell phone. Detective Morgan testified that a gang member’s
moniker is often a sign of respect, indicating their membership in the gang,
and that K.W.’s gang moniker was “Tey9.”
When presented with a hypothetical scenario in which two Emerald
Hills gang members and an associate drove to an apartment complex, waited
outside for six hours, and then shot and killed the victim, Detective Morgan
opined that the perpetrators would be committing this crime for the benefit of
the Emerald Hills Blood gang with the intent to promote and assist further
criminal activity by gang members. She opined that committing such a crime
bolstered the individual status of the gang members, proved their loyalty to
the gang, improved the gang’s status of fear and respect in the community,
and prevented witnesses and victims from testifying out of fear of violence.
Detective Morgan opined, “Emerald Hills is a smaller gang set than many of
the other gangs in San Diego[,] [s]o they have to be hard and brutal to show
8 Detective Morgan testified that, being a Blood gang, the Emerald Hills
gang members associated with the color red but used the color gray to signify
the Emerald Hills neighborhood. Detective Morgan testified that if someone
who was not a member of the gang was seen “throwing up these hand signs,
wearing these colors in an Emerald Hills neighborhood,” it would be viewed
as disrespecting the gang and would result in punishment, including beatings
and possibly death.
10
that they’re . . . worthy of this status. And that is committing violent crimes
such as murder, which is obviously the most heinous crime.”
Detective Morgan also reviewed certified copies of court records and
testified regarding six predicate offenses committed by three individuals
between 2011 and 2017:9
(1) Detective Morgan testified she was familiar with Q.A. and his
conviction in case number SCD271179 for possession of an unregistered and
loaded firearm (§ 25850, subds. (a), (c)(6)) in connection with an incident that
took place in 2017.
(2) Detective Morgan testified she was familiar with Q.A.’s convictions
in case number SCD273223 for robbery, attempted robbery, and firearm
enhancements (§§ 211, 664, 12022.5, subd. (a), 12022.53, subd. (c)) for
incidents that occurred in 2016 and 2017. She opined Q.A. was a member of
the Emerald Hills Blood gang and explained her opinion was based on her
review of the reports in those cases and on speaking with the detective who
handled the Emerald Hills gang at the time of the offenses.
(3) Detective Morgan testified she was familiar with L.H. and his
conviction for assault with a firearm, with gang and personal use
enhancements (§§ 245, subd. (b), 12022.5, subd. (a), 186.22, subd. (b)(1)) in
case number SCD265734 in connection with an incident that occurred in
2016.
(4) Detective Morgan further testified she was aware of L.H.’s
conviction of possession of a firearm by a felon to benefit and assist gang
members (§§ 29800, subd. (a)(1), 186.22, subd. (b)(1)) in case number
SCD253170 in connection with an incident that occurred in 2013. She opined
9 The records included charging documents, court minutes, plea
agreements, orders granting probation, and verdict forms.
11
that L.H. was a member of the Emerald Hills Blood gang and explained that
she based this opinion on the police reports she reviewed and her
conversations with the investigating detective.
(5) Detective Morgan testified she was familiar with R.S. and his
conviction for possession of a firearm after having been adjudged a ward of
the court (§ 12021, subd. (e)) in case number SCD233594 in connection with
an incident that occurred in 2011.
(6) Detective Morgan testified she was also familiar with R.S.’s 2012
conviction for murder, attempted murder, assault with a firearm as well as
gang and firearm enhancements (§§ 187, subd. (a), 664, 245, subd. (a)(2),
186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1)) in case number
SCD225297 in connection with an incident that occurred in 2009. She opined
that R.S. was a member of the Emerald Hills Blood gang based on her review
of the case reports and her conversation with the investigating detective.
3. Defense case and closing arguments
At the close of the prosecution’s case, T.W. declined to present any
affirmative evidence in his defense. In closing, the prosecutor argued that
the evidence established that Emerald Hills Blood gang was a criminal street
gang, the primary activities of which included robbery, assault, and murder,
and referenced the six predicate offenses. The prosecutor further argued,
“With the elements of [section] 186.22, here we have the defendant in
association with another Emerald Hills Blood member[, K.W.,] committing a
lying-in-wait murder of an individual that showed up at Emerald Hills Park
on ‘Bunny Day.’ Per the detective’s opinion, the only reason the minor and
[K.W.] would do this would be to bolster their reputation within the set to
show that Emerald Hills is a force to be reckoned with on the street. That
they are a legit murdering criminal street gang.”
12
Defense counsel contended the prosecution failed to prove beyond a
reasonable doubt that T.W. was the shooter or that the murder was
committed “for the gang.” Defense counsel requested that the court strike the
gun and gang allegations.
4. Findings
In January 2020, the juvenile court found the murder and conspiracy to
commit murder counts and the attendant enhancements true and sustained
the petition. Specifically, the court found:
“[B]eyond a reasonable doubt that the minor T.W. is guilty
of murder in the first degree. That this is a planned killing
and could have been charged as lying in wait, again,
certainly if he had been in adult court.
“Also, that this was done in furtherance of a criminal street
gang, namely, Emerald Hills. That he personally used the
firearm within the meaning of . . . [s]ection 12022.53[,
subdivision] (d). That . . . this was in furtherance of a
criminal street gang in violation of . . . [s]ection 186.22[,
subdivision] (b)(1). And that he’s guilty of first degree
murder in Count 1 in violation of . . . [s]ection 187.
“So I also find that he and his cohorts engaged in a
criminal conspiracy to commit murder in violation
of . . . [s]ection 182[, subdivision] (a)(1). And that also this
was done in furtherance of a criminal street gang within
the meaning of . . . [section] 186.22[, subdivision] (b)(1).
And then, finally, that he personally used a firearm to the
meaning of . . . [s]ection 12022.53[, subdivision] (d). And I
find that all the allegations are true beyond a reasonable
doubt, as well as the substantive charges.”
C. Disposition
The day after the court made the true finding on the murder petition,
the parties appeared at a previously scheduled disposition hearing on the
robbery/grand theft petition. T.W. requested to be sentenced on the grand
theft immediately; however, over T.W.’s objection, the court granted the
13
People’s motion to continue sentencing so both petitions could be addressed
contemporaneously.
In February, at the subsequent disposition hearing, the court granted
the People’s motion to dismiss the most recently filed robbery/grand theft
petition. (Welf. & Inst. Code, § 782.) The court then continued T.W. as a
ward of the court under Welfare and Institutions Code section 602, placed
him under the supervision of the probation officer, and committed him to
DJJ. The court stated the maximum term of confinement to be 120 years to
life.10 The court also found T.W. in violation of his probation in connection
with the August 20, 2018 petition.
DISCUSSION
I
Gang Expert’s Testimony Regarding Predicate Offenses
A. Additional Background Information
The People filed a motion in limine asking the court to permit a gang
expert to testify. The People argued it was appropriate for a gang expert “to
relay general background information relating to the criminal street gang at
issue, including: (1) his opinion as to how the gang operates, (2) the gang’s
primary activities[,] and (3) the gang’s pattern of criminal activity
(predicates) including the gang membership of the predicate offenders.” The
People indicated they planned to “introduce certified copies of the predicate
10 It appears the court accepted the maximum term calculated by the
DJJ, comprised of 25 years to life for the murder (§ 187, subd. (a)), 25 years to
life for the firearm enhancement (§ 12022.53, subd. (d)), and 10 years for the
gang enhancement (§ 186.22, subd. (b)(1)) on count 1, plus an additional
25 years to life for the conspiracy to commit murder (§ 182, subd. (a)(1)),
25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and
10 years for the gang enhancement (§ 186.22, subd. (b)(1)) on count 2.
14
offenses into evidence,” and ask the expert “whether he has an opinion as to if
the people identified in the predicate offense are in fact gang members.” The
People indicated the gang expert would testify about the history and
background of the Emerald Hills Blood gang, as well as the number of
members, the common signs and symbols of the gang, the primary activities
of the gang, the gang’s qualifying predicate offenses, and ultimately render
an opinion that the murder in this case was done for the benefit of, at the
direction of, or in association with the Emerald Hills Blood gang and with the
specific intent to assist, further, or promote criminal conduct by gang
members. Defense counsel indicated he intended to lodge “Sanchez objections
and other objections . . . as they come up.”11 The trial court ruled that, given
the allegations, a gang expert’s testimony was relevant and admissible, and
the court encouraged defense counsel to make his objections as necessary
during the expert’s testimony. Defense counsel did not object to the gang
expert’s testimony at trial.
As previously discussed, Detective Morgan testified as an expert
regarding the Emerald Hills Blood gang, which she had been responsible for
covering for approximately six months. To establish that the Emerald Hills
Blood gang members had engaged in a pattern of criminal activity (§ 186.22,
subd. (e)), she testified regarding six predicate offenses. With respect to each
of the six offenses, she was shown a conviction record and testified that the
three individuals who committed the six offenses were members of the
Emerald Hills Blood gang. In each instance, she indicated her opinions were
based on “read[ing] the reports for these cases” and speaking with “the
detective who handled . . . Emerald Hills at the time.”
11 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
15
Ultimately, the juvenile court found the gang enhancement true with
respect to both counts charged. (§§ 187, subd. (a), 182, subd. (a), 186.22,
subd. (b)(1).) In addition, the court expressly found that both T.W. “and his
cohorts” engaged in a criminal conspiracy to commit murder. (§ 182,
subd. (a)(1).)
B. Applicable Law
The California Street Terrorism Enforcement and Prevention Act
(STEP Act; § 186.20 et seq.) created a substantive offense of active
participation “in any criminal street gang” (§ 186.22, subd. (a)) and a
sentencing enhancement for a felony committed “for the benefit of, at the
direction of, or in association with any criminal street gang” (§ 186.22,
subd. (b)(1)). (See People v. Valencia (2021) 11 Cal.5th 818, 829 (Valencia).)
The gang enhancement applies to “any person who is convicted of a
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).)
“There are two prongs to the gang enhancement under section 186.22,
subdivision (b)(1), both of which must be established by the evidence.
[Citation.] The first prong requires proof that the underlying felony was
‘gang related,’ that is, the defendant committed the charged offense ‘for the
benefit of, at the direction of, or in association with any criminal street gang.’
[Citations.] The second prong ‘requires that a defendant commit the gang-
related felony “with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” ’ ” (People v. Franklin (2016)
248 Cal.App.4th 938, 948.)
To establish that a gang is a “criminal street gang,” the prosecution
must prove that the gang has as one of its “primary activities” the
16
commission of one or more of the crimes enumerated in section 186.22,
subdivision (e), and that it has engaged in a “ ‘pattern of criminal gang
activity’ ” by committing two or more such predicate offenses. (§ 186.22,
subds. (e), (f).)12 “[T]he requisite ‘pattern’ can . . . be established by evidence
of the offense with which the defendant is charged and proof of another
offense committed on the same occasion by a fellow gang member.” (People v.
Loeun (1997) 17 Cal.4th 1, 5 (Loeun); People v. Miranda (2016)
2 Cal.App.5th 829, 840.) “[T]he statute expressly does not require that the
offense necessarily result in a conviction”; evidence of the commission of the
offense is sufficient. (People v. Garcia (2014) 224 Cal.App.4th 519, 524
(Garcia), italics added.)
In Sanchez, our Supreme Court observed, “When an expert relies on
hearsay to provide case-specific facts, considers the statements as true, and
relates them to the jury as a reliable basis for the expert’s opinion, it cannot
logically be asserted that the hearsay content is not offered for its truth. In
such a case, ‘the validity of [the expert’s] opinion ultimately turn[s] on the
truth’ [citation] of the hearsay statement.” (Sanchez, supra, 63 Cal.4th at
pp. 682-683.) “If an expert testifies to case-specific out-of-court statements to
explain the bases for his opinion, those statements are necessarily considered
by the jury for their truth, thus rendering them hearsay. Like any other
hearsay evidence, it must be properly admitted through an applicable
hearsay exception. Alternatively, the evidence can be admitted through an
appropriate witness and the expert may assume its truth in a properly
12 Subdivision (e) of section 186.22 lists 33 crimes which constitute
predicate offenses, including the commission or attempted commission of
murder, robbery, assault with a deadly weapon or by means likely to produce
great bodily injury, and prohibited possession of a firearm.
17
worded hypothetical question in the traditional manner.” (Id. at p. 684, fn.
omitted.) By contrast, the Court did “not call into question the propriety of
an expert’s testimony concerning background information regarding his
knowledge and expertise and premises generally accepted in his field.” (Id. at
p. 685.) The Court explained that its decision did not “affect the traditional
latitude granted to experts to describe background information and
knowledge in the area of his expertise.” (Ibid.)
After Sanchez, a split of authority developed as to whether testimony
about predicate offenses constitutes case-specific hearsay under Sanchez,13
or whether it is admissible general background information that an expert
can rely on and relate to the jury.14 Our Supreme Court resolved that
dispute in Valencia, where it held that “the particular facts offered to prove
predicate offenses as required by the STEP Act are not the sort of background
hearsay information about which an expert may testify. Competent evidence
of those particulars is required.” (Valencia, supra, 11 Cal.5th at p. 839, fn.
omitted.)
Because the parties had briefed this issue before Valencia was decided,
we requested that the parties provide supplemental briefs addressing the
decision’s impact on the issues presented on appeal, including whether any
alleged error should be assessed under the standard set forth in Chapman v.
California (1967) 386 U.S. 18 (Chapman), and whether any alleged error was
13 See People v. Thompkins (2020) 50 Cal.App.5th 365, 411; People v.
Ochoa (2017) 7 Cal.App.5th 575, 582; People v. Lara (2017) 9 Cal.App.5th
296, 337.
14 See People v. Bermudez (2020) 45 Cal.App.5th 358, 377; People v. Meraz
(2018) 30 Cal.App.5th 768, 781; People v. Blessett (2018) 22 Cal.App.5th 903,
943-945, review granted Aug. 8, 2018, S249250; People v. Vega-Robles (2017)
9 Cal.App.5th 382, 411.
18
harmless under the applicable standard. Both parties agree that the gang
expert testimony that was used to prove the six predicate offenses was
improperly based on inadmissible, case-specific hearsay and further agree
that the error should be assessed under Chapman. The parties disagree,
however, as to whether the error was prejudicial under that standard.
C. Discussion
Our Supreme Court has held that “facts concerning particular events
and participants alleged to have been involved in predicate
offenses . . . constitute case-specific facts that must be proved by
independently admissible evidence.” (Valencia, supra, 11 Cal.5th at p. 839.)
When Detective Morgan opined that the three individuals who committed the
six predicate offenses were members of the Emerald Hills Blood gang, she
acknowledged that she lacked personal knowledge of the cases and their
perpetrators, explaining that her opinion was based on a review of reports
and conversations with another officer.15 Police reports and statements of
other officers memorialize facts relating to past criminal activity and are
testimonial in nature. “When the People offer statements about a completed
crime, made to an investigating officer by a nontestifying witness, Crawford
[v. Washington (2004) 541 U.S. 36], teaches those hearsay statements are
generally testimonial unless they are made in the context of an ongoing
emergency . . . or for some primary purpose other than preserving facts for
15 The certified court records do not provide evidence of the perpetrators’
alleged gang affiliation. An order granting R.S. probation after his guilty
plea to unlawfully possessing a firearm in 2011 (former § 12021, subd. (e), see
now § 29800) prohibits him from associating with gang members or others
associated with “Emerald Hills/Upside Sick or Any Known,” but there was no
gang enhancement charged or admitted in that case, and the conviction is
outside the three-year requirement for predicate offenses set forth in
subdivision (e) of section 186.22.
19
use at trial.” (Sanchez, supra, 63 Cal.4th at p. 694.) “Without independent
admissible evidence of the particulars of the predicate offenses, the expert’s
hearsay testimony cannot be used to supply them. In the absence of any
additional foundation, the facts of an individual case are not the kind of
general information on which experts can be said to agree.” (Valencia, supra,
11 Cal.5th at p. 838.) We therefore agree with the parties that the gang
expert’s testimony here was improperly based on inadmissible, case-specific
hearsay.
We further agree that the erroneous admission of case-specific facts
concerning predicate offenses is generally reviewed for prejudice under the
Chapman standard. (Valencia, supra, 11 Cal.5th at p. 840.) Under
Chapman, the People have the burden of showing that the error was
harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at pp. 24-
26, see People v. Jackson (2014) 58 Cal.4th 724, 748.) In this case, however,
defense counsel failed to object at trial to the gang expert’s testimony
regarding the predicate offenses. T.W. therefore forfeited his claim of error.
(See People v. Arredondo (2019) 8 Cal.5th 694, 710 [defendant “forfeited his
claim under the confrontation clause by failing to object at trial”].) T.W.’s
forfeiture of his constitutional claim impacts how we review the issue of
prejudice. T.W. argues that, if his claims were forfeited by counsel’s failure to
object, he received ineffective assistance of counsel. We therefore apply the
Strickland standard: “The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984)
466 U.S. 668, 694 (Strickland); see People v. Ledesma (1987) 43 Cal.3d 171,
208-209, 217-218 [applying Strickland’s “reasonable probability” test to
ineffective assistance claim based on defense counsel’s failure to protect
20
defendant’s Fourth Amendment rights by filing a suppression motion]; People
v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [“had [defendant] not forfeited his
direct claim of [constitutional] error, we would review whether any such error
was harmless under the standard set forth in Chapman” rather than
Strickland].)
Regardless of how we evaluate prejudice, using either the Strickland or
Chapman standard, we conclude the error was harmless. There was other,
properly admissible evidence of predicate offenses committed by members of
the Emerald Hills gang to independently demonstrate the requisite pattern of
criminal gang activity.
“Under the [gang enhancement] statute, the pattern of criminal gang
activity can be established by proof of ‘two or more’ predicate offenses
committed ‘on separate occasions, or by two or more persons.’ ” (Loeun,
supra, 17 Cal.4th at p. 9.) “[W]hen the prosecution chooses to establish the
requisite ‘pattern’ by evidence of ‘two or more’ predicate offenses committed
on a single occasion by ‘two or more persons,’ it can, as here, rely on
[1] evidence of the defendant’s commission of the charged offense and [2] the
contemporaneous commission of a second predicate offense by a fellow gang
member.” (Id. at p. 10.) Each of these requirements is satisfied here.
First, there was proof of a predicate offense committed by T.W. T.W.’s
conviction in the instant offense for murder and conspiracy to commit
murder—both enumerated predicate offenses under section 186.22,
subdivision (e)—is sufficient to satisfy one of the two predicate offenses
needed to demonstrate a pattern of criminal gang activity. (People v. Tran
(2011) 51 Cal.4th 1040, 1046 [“[A] predicate offense can be established by
proof of an offense committed by the defendant.”].)
21
Second, there was proof of the contemporaneous commission of the
predicate offense of conspiracy to commit murder by T.W.’s fellow gang
member, K.W. (Loeun, supra, 17 Cal.4th at p. 11 [“[T]he prosecution can
establish the requisite ‘pattern’ exclusively through evidence of crimes
committed contemporaneously with the charged incident.”].) The evidence
established that both T.W. and K.W. were involved in the conspiracy to
commit murder of Ishi Hampton. There was substantial evidence
establishing that T.W. was the shooter, and his fellow gang members
(including K.W.) conspired to murder the victim in apparent response to his
unexplained presence at a park in their gang territory, on a day of special
significance to the gang. K.W. participated in the conspiracy by waiting six
hours outside the victim’s apartment before T.W. shot the victim and all
three minors coordinated their escape. Based on this evidence, the juvenile
court expressly found that T.W. “and his cohorts engaged in a criminal
conspiracy . . . in furtherance of a criminal street gang”—which was sufficient
to establish the second predicate offense required to support the gang
enhancement. (See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003 [“a
pattern can be established by two or more incidents, each with a single
perpetrator, or by a single incident with multiple participants committing one
or more of the specified offenses”].) Although there is no evidence in the
record on this appeal of K.W.’s conviction of conspiracy to commit murder, a
conviction is not required for the offense to qualify as a predicate crime.
(Garcia, supra, 224 Cal.App.4th at p. 524.)
In addition, admissible evidence established T.W. and K.W. were
members of the same criminal street gang—the Emerald Hills gang. They
were both photographed showing their gang signs, depicting their gang
colors, and denigrating a rival gang. Based on her own knowledge of the
22
gang and her review of T.W. and K.W.’s cell phone records and social media
accounts, Detective Morgan opined that both T.W. and K.W. were members of
the Emerald Hills gang. Detective Morgan further opined that, if two
Emerald Hills gang members and an associate drove to an apartment
complex, waited outside for six hours, and then shot and killed the victim, the
perpetrators would be committing this crime for the benefit of the Emerald
Hills Blood gang with the intent to promote and assist further criminal
activity by gang members. Detective Morgan testified that “Emerald Hills is
a smaller gang set than many of the other gangs in San Diego[,] [s]o they
have to be hard and brutal to show that they’re . . . worthy of this status.
And that is committing violent crimes such as murder, which is obviously the
most heinous crime.” She explained that committing such a heinous crime
bolstered the individual status of the gang members, proved their loyalty to
the gang, improved the gang’s status of fear and respect in the community,
and prevented witnesses and victims from testifying out of fear of violence.
All of this evidence—the defendant’s instant crimes, and the
contemporaneous offense committed by K.W., his coconspirator and fellow
Emerald Hills gang member—independently supports imposition of the gang
23
enhancement. (§ 186.22, subd. (e) [predicate offenses must be “committed on
separate occasions, or by two or more persons”], italics added.)16
T.W. claims that, by relying on the instant offenses to establish a
pattern of criminal gang activity, the Attorney General is improperly
asserting a “new theory on appeal.” T.W. likens the case to People v. Hines
(1997) 15 Cal.4th 997, in which the Supreme Court observed that, because
the prosecution had not asserted certain grounds to justify the admission of
evidence excluded at trial, the Attorney General could not subsequently
assert those grounds on appeal. (Id. at p. 1034, fn. 4.) But the Attorney
General is not raising a new issue for the first time on appeal. The People
asserted in their trial brief that “the currently charged offense may be used
for the purpose of establishing the pattern of predicate offenses.” Citing
Loeun, supra, 17 Cal.4th at pages 9 through 11, the People further explained
16 We recognize that the combined activity of a defendant and an aider
and abettor to the crime results in only a single predicate offense for purposes
of section 186.22. (People v. Zermeno (1999) 21 Cal.4th 927, 931-932.) It is
unnecessary for us to decide whether Zermeno’s holding extends to a
conspiracy. “ ‘Traditionally the law has considered conspiracy and the
completed substantive offense to be separate crimes.’ ” (People v. Johnson
(2013) 57 Cal.4th 250, 258-259.) “ ‘Conspiracy is an inchoate offense, the
essence of which is an agreement to commit an unlawful act.’ [Citations.]
Conspiracy separately punishes not the completed crime, or even its attempt.
The crime of conspiracy punishes the agreement itself and ‘does not require
the commission of the substantive offense that is the object of the
conspiracy.’ ” (Id. at p. 258.) Even assuming the holding in Zermeno applies
to conspiracies, the conspiracy itself would still constitute a single predicate
offense. There was also another qualifying predicate offense—T.W.’s
possession of a firearm as a minor (§ 186.22, subd. (e)(23); see Garcia, supra,
224 Cal.App.4th at p. 524 [commission of offense satisfies predicate offense
requirement])—in addition to the conspiracy to commit murder. Accordingly,
regardless of whether Zermeno applies here, T.W.’s current conduct and
another gang member’s contemporaneous conduct established the pattern of
criminal gang activity needed to support the gang enhancement.
24
that “[i]f the defendant and another gang member both committed qualifying
crimes during the course of the charged event, that event alone may be
sufficient to establish a pattern” of criminal gang activity. The People
further asserted that one of the methods they could use to satisfy the
predicate offense requirement was to prove “the charged offense by the
defendant gang member plus another offense committed on the same
occasion (the charged incident) by a fellow gang member.” At trial, the
prosecution presented evidence regarding the instant offense, including
fellow Emerald Hills gang member K.W.’s involvement in the charged
offense. During closing arguments, although the prosecutor referred to the
“six separate predicates showing the pattern of criminal activity,” the
prosecutor also more broadly summarized the instant offenses involving both
the defendant and his coconspirator K.W., stating “here we have the
defendant in association with another Emerald Hills Blood member[, K.W.,]
committing a lying-in-wait murder,” and “that conduct in and of itself is
solely designed to promote and further assist in criminal conduct by other
gang members, specifically in this case [K.W.], who was present four to six
hours prior to the murder and fleeing the scene afterwards.”17 We therefore
reject T.W.’s contention that this is a “new theory on appeal.” Moreover, this
17 We do not find the prosecutor’s reference to the “six” predicate offenses
during closing argument to be dispositive. Instead, we presume the trial
court was aware of the law and its ability to use the charged offenses to
establish the existence of the predicate offenses, particularly where the legal
issues had been briefed in advance of trial and the defendant had an
adequate opportunity to respond to both the legal issues and the facts
presented to support this theory of liability. (See People v. Bragg (2008)
161 Cal.App.4th 1385, 1402 [“However the prosecutor chose to argue the
matter, the jury knew that it could consider the current offenses as a
predicate offense under the statute.”].)
25
is not the sort of “new theory” that is prohibited on appeal. Rather, it is an
argument of law applied to the facts deduced at trial. (See Brown v. Boren
(1999) 74 Cal.App.4th 1303, 1316 [a reviewing court has “discretion to
consider a new theory on appeal when it is purely a matter of applying the
law to undisputed facts.”]; Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2020) ¶ 8:237 [“A new theory pertaining only to
questions of law on undisputed facts can be raised for the first time on appeal.
Reason: In these circumstances, there is no ‘unfairness’ to opposing parties,
because they have not been deprived of the opportunity to litigate disputed
fact issues.”].)
In sum, despite the erroneous admission of case-specific testimonial
hearsay regarding predicate offenses, independently admissible evidence
supports the court’s finding of a pattern of criminal gang activity. T.W.’s own
conduct in this case establishes one of the requisite predicate offenses, and
the second predicate offense is established by fellow gang member K.W.’s
contemporaneous commission of conspiracy to commit murder. Given this
independent evidence of two predicate offenses, it is not reasonably probable
that T.W. would have achieved a more favorable result if his counsel had
objected to evidence of other predicate offenses. (Strickland, supra, 466 U.S.
at p. 687.) Even under the Chapman standard, which does not apply here
given defense counsel’s forfeiture of T.W.’s constitutional claim, the
admission of testimonial hearsay about predicate offenses was harmless
beyond a reasonable doubt. (Chapman, supra, 386 U.S. at pp. 24-26.)
II.
Certified Records of Prior Convictions
T.W. contends that using the certified court records to prove the dates
on which six predicate acts were committed violated his constitutional rights.
26
(See People v. Garcia (2020) 46 Cal.App.5th 123, 169-170 [using conviction
records to establish the date of the predicate offense violated the
confrontation clause and Kirby v. U.S. (1899) 174 U.S. 47]; but see People v.
Taulton (2005) 129 Cal.App.4th 1218, 1225 [conviction records are generally
not testimonial in nature because they are “prepared to provide a chronicle of
some act or event relating to the public employee’s duty” and are not
“produced to be used in a potential criminal trial or to determine whether
criminal charges should issue”].) T.W. did not object to the admission of
these documents at trial and thus forfeited this claim. (People v. Ramos
(1997) 15 Cal.4th 1133, 1171; Evid. Code, § 353.) T.W. contends that
counsel’s failure to object constitutes deficient performance. (Strickland,
supra, 466 U.S. at pp. 687-696 [constitutional claim of ineffective assistance
of counsel requires proof of deficient performance and prejudice under an
objective standard of reasonable probability of an adverse effect on the
outcome].) Even if we were to assume (without deciding) that the trial court
erred in admitting these documents, we would conclude that T.W. was not
prejudiced. As outlined ante, other competent evidence presented at trial
proved beyond a reasonable doubt Emerald Hill’s pattern of criminal activity.
III.
DJJ Placement
T.W. contends the trial court improperly committed him to DJJ,
arguing that the most recent offense he committed—grand theft—makes him
ineligible for such commitment under Welfare and Institutions Code
27
section 733.18 We conclude the trial court did not abuse its discretion in
dismissing the robbery/grand theft petition pursuant to Welfare and
Institutions Code section 782—leaving the most recent offense of murder,
which does make him eligible for DJJ commitment. We therefore reject
T.W.’s claim of error.
The relevant procedural history is outlined ante. For purposes of this
section, we merely summarize the following key dates: (1) the murder and
conspiracy to commit murder occurred on May 2, 2019 (and the petition
relating to these offenses was filed on May 30, 2019); and (2) the alleged
robberies occurred on May 17, 2019 (but the petition for this offense was not
filed until December 11, 2019).
The dispute in this case centers around Welfare and Institutions Code
section 733, which outlines the offenses that are eligible for DJJ commitment,
and Welfare and Institutions Code section 782, which authorizes the juvenile
court to dismiss a petition. Welfare and Institutions Code section 733,
subdivision (c) provides, “A ward of the juvenile court who meets any
condition described below shall not be committed to the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] . . . [¶]
(c) The ward has been or is adjudged a ward of the court pursuant to
Section 602, and the most recent offense alleged in any petition and admitted
or found to be true by the court is not described in subdivision (b) of
Section 707 or subdivision (c) of Section 290.008 of the Penal Code.” “[T]he
language of section 733[, subdivision] (c) is clear and lends itself to only one
18 Robbery and murder are DJJ-qualifying offenses. (Welf. & Inst. Code,
§ 707, subd. (b)(1), (3).) Grand theft is not. (See id., § 707, subd. (b),
Pen. Code, § 290.008.) Although the petition at issue alleged two counts of
robbery, T.W. admitted to one count of grand theft. As noted ante, we refer to
this petition as the robbery/grand theft petition.
28
reasonable interpretation. The statute premises [DJJ] eligibility on the
nature of ‘the most recent offense alleged in any petition and admitted or
found to be true by the court.’ [Citation.] Plainly, this language refers to the
last offense that was adjudicated to have been committed by the minor. A
minor can be committed to [DJJ] only if this particular offense is listed in
section 707[, subdivision] (b) or Penal Code section 290.008[, subdivision] (c).”
(In re D.B. (2014) 58 Cal.4th 941, 947 (D.B.).)
Welfare and Institutions Code section 782 provides, “A judge of the
juvenile court in which a petition was filed may dismiss the petition, or may
set aside the findings and dismiss the petition, if the court finds that the
interests of justice and the welfare of the person who is the subject of the
petition require that dismissal, or if it finds that he or she is not in need of
treatment or rehabilitation. The court has jurisdiction to order dismissal or
setting aside of the findings and dismissal regardless of whether the person
who is the subject of the petition is, at the time of the order, a ward or
dependent child of the court. Nothing in this section shall be interpreted to
require the court to maintain jurisdiction over a person who is the subject of a
petition between the time the court’s jurisdiction over that person terminates
and the point at which his or her petition is dismissed.”
We review the juvenile court’s dismissal of a petition under Welfare
and Institutions Code section 782 for abuse of discretion. (See In re Greg F.
(2012) 55 Cal.4th 393, 420 (Greg F.) [dismissal “is appropriate under
section 782 so long as the juvenile court, in its discretion, finds that the
dismissal is required by the interests of justice and the welfare of the
minor”].)
In February 2020, the juvenile court exercised its discretion under
Welfare and Institutions Code section 782 and dismissed the most recently
29
filed robbery/grand theft petition in “the interest of justice.” In doing so, the
court made the following findings:
“[T]he record will reflect[] that I have weighed and
considered the interest of the minor, T.W.; and the interest
of society. And I find, first of all, that the court has
discretion to dismiss [the robbery/grand theft petition] to
make the minor eligible for a DJJ commitment.
“The court also finds the interest of justice and the welfare
of the minor require dismissal of the [robbery/grand theft
petition] in a DJJ commit.
“Third[, t]he minor is in need of further treatment and
rehabilitation that is highly structured and intensive. And
the welfare of the minor requires dismissal of [the
robbery/grand theft petition].
“And, in particular, the court finds the minor is in need of
lengthy rehabilitative services that address family
dysfunction, deep gang involvement, trauma and
behavioral treatment and therapy[, p]ositive youth skills[,
e]ducation and work skills.
“And lastly, the minor committed the most serious of
offenses, and a DJJ commitment will increase the amount
of time the court has jurisdiction over the minor and the
amount of time that the court has to work with the youth.
“So the court finds that a dismissal of the [robbery/grand
theft petition] will serve the interest of justice and the
welfare of the youth by increasing the court’s dispositional
options.”
The court continued T.W. as a ward of the court, placed him under the
supervision of the probation officer, and committed him to DJJ.
Based on this record, we reject T.W.’s claim that the juvenile court
improperly committed him to DJJ. Our Supreme Court has recognized that
Welfare and Institutions Code sections 733 and 782 are not “irreconcilably in
conflict.” (Greg F., supra, 55 Cal.4th at p. 407.) “Section 733[, subdivision] (c)
30
prohibits a commitment to [DJJ] unless the minor’s most recent offense
alleged in a petition is of a particular class. If the juvenile court exercises its
discretion under section 782 to dismiss a 602 petition, its decision does not
nullify or abrogate section 733[, subdivision] (c).” (Id. at p. 408.)
Here, the court indicated it was dismissing the robbery/grand theft
petition in the interest of justice and for T.W.’s welfare. (See Greg F., supra,
55 Cal.4th at p. 408.) The court indicated it had “weighed and considered the
interest of [T.W.] and the interest of society.” The court found that T.W.
needed “highly structured and intensive” further treatment and
rehabilitation that would address issues such as “family dysfunction, deep
gang involvement, trauma and behavioral treatment and therapy[, p]ositive
youth skills[, e]ducation and work skills,” and dismissal of the petition was
necessary to obtain such treatment. The court reasoned that, since T.W. had
committed “the most serious of offenses,” a commitment would “increase the
amount of time the court has jurisdiction over [T.W.] and the amount of time
that the court has to work with [T.W.].” Because the court weighed the
appropriate factors and indicated it was dismissing the robbery/grand theft
petition in the interest of justice and for T.W.’s welfare, the court’s decision to
dismiss the petition was not an abuse of its discretion. (Ibid.) Because the
court properly exercised its discretion to dismiss the disqualifying petition,
Welfare and Institutions Code section 733, subdivision (c) did not preclude
DJJ commitment, and the juvenile court’s decision to place T.W. in DJJ was
proper. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 [appellate court
reviews the juvenile court’s decision to commit a minor to DJJ for abuse of
discretion]; Welf. & Inst. Code, §§ 733, 707, subd. (b).)
T.W.’s reliance on D.B. is misplaced. In that case, the juvenile court
committed the minor to DJJ where the minor was found to have committed a
31
series of offenses ending in a nonqualifying offense. (D.B., supra, 58 Cal.4th
at p. 947.) The commitment was improper because “the most recent offense”
rendered the minor ineligible for DJJ commitment. (Welf. & Inst. Code,
§ 733, subd. (c).) Here, the petition alleging the more recent, nonqualifying
offense was properly dismissed under Welfare and Institutions Code
section 782, rendering T.W. eligible for DJJ commitment under Welfare and
Institutions Code sections 733 and 707, subdivision (b).
T.W.’s reliance on In re A.O. (2017) 18 Cal.App.5th 390 is similarly
misplaced. In that case, the juvenile court struck a non-eligible petition
without making findings to show it had properly exercised its discretion to
make a valid dismissal under Welfare and Institutions Code section 782,
stating only that its dismissal order was for the purpose of making the minor
eligible for DJJ commitment. (A.O., at p. 396.) The minor had admitted the
allegations of the petition which was not part of the record on appeal, and it
was not clear whether the admissions were made pursuant to a plea
agreement. (Ibid.) In addition, the record was devoid of the facts underlying
the offense that purportedly qualified the minor for DJJ commitment. (Ibid.)
On the “sparse record” before it, the appellate court concluded it would be
“impossible to determine” if the juvenile court’s dismissal of the disqualifying
offense was a proper exercise of discretion. (Id. at pp. 396-397.) In contrast,
here, the juvenile court clearly stated its findings supporting dismissal of the
disqualifying grand theft petition, and we have a clear record indicating
T.W.’s admissions to the grand theft were not induced by any promises of
sentencing leniency. Based on the record, T.W.’s offenses of murder and
conspiracy to commit murder qualify him for DJJ commitment.
32
IV.
Section 654
Relying on section 654, subdivision (a), T.W. contends that the juvenile
court erred by imposing punishment as to counts 1 and 2 because T.W. did
not harbor independent criminal objectives as to the murder and the
conspiracy to commit the same murder. The Attorney General concedes that,
based on the evidence presented at trial, section 654 requires staying
punishment for conspiracy to commit murder. We agree.
Section 654, subdivision (a), provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under
more than one provision.” Under section 654, “a defendant cannot be
punished for both a substantive offense and a conspiracy to commit it unless
the conspiracy had an unlawful objective in addition to the commission of the
substantive offense.” (In re Romano (1966) 64 Cal.2d 826, 828.)
In the present case, there was no evidence that the conspiracy had any
objective apart from the murder of Ishi Hampton. After Hampton was seen
at the Emerald Hills park on the gang’s day of celebration, T.W. and the
other two minors drove to Hampton’s apartment and waited for about six
hours for Hampton to exit his home. T.W. immediately approached Hampton
and shot at him multiple times, then all three suspects promptly fled the
scene together. Because the sole object of the conspiracy was Hampton’s
murder, T.W. cannot be punished for both the substantive offense of murder
and the conspiracy to commit it. (People v. Hernandez (2003) 30 Cal.4th 835,
866 [“Under . . . section 654, a defendant may not be punished for both the
murder and the conspiracy.”], disapproved on other grounds in People v.
33
Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) We therefore direct that the
judgment be modified to stay the terms imposed as to count 2 for conspiracy
to commit murder and the associated enhancements.
V.
The 10-year Gang Enhancements
T.W. contends that the 10-year enhancements imposed under
section 186.22, subdivision (b)(1)(C) were unauthorized and should be
stricken. The Attorney General agrees and argues the terms should be
replaced with a 15-year minimum parole eligibility period under
section 186.22, subdivision (b)(5). We agree.
Section 186.22, subdivision (b)(1)(C) provides for an additional term of
10 years when a defendant is convicted of a violent felony that was
committed 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
criminal conduct by gang members. “Section 186.22[, subdivision] (b)(1)(C)
does not apply, however, where the violent felony is ‘punishable by
imprisonment in the state prison for life.’ [Citation.] Instead, section 186.22,
subdivision (b)(5) (section 186.22(b)(5)) applies and imposes a minimum term
of 15 years before the defendant may be considered for parole.” (People v.
Lopez (2005) 34 Cal.4th 1002, 1004.) Because a gang-related murder is a
violent felony punishable by imprisonment for life, this offense is not subject
to the 10-year enhancement under section 186.22, subdivision (b)(1)(C).
(Lopez, at pp. 1004, 1011.) “Instead, section 186.22, subdivision
(b)(5) . . . applies and imposes a minimum term of 15 years before the
defendant may be considered for parole.” (Id. at p. 1004.)19
19 The same principle applies to conspiracy to commit murder which is
also punishable by imprisonment for life. (§ 182, subd. (a)(1).)
34
We therefore modify the judgment and order that the 10-year
enhancements imposed pursuant to section 186.22, subdivision (b)(1)(C) be
stricken. (See People v. Arauz (2012) 210 Cal.App.4th 1394, 1405 [modifying
judgment to strike 10-year gang enhancements “and impose, in their place,
15-year minimum parole eligibility terms”].)
DISPOSITION
The judgment is modified to strike the 10-year enhancements imposed
on counts 1 and 2 under Penal Code section 186.22, subdivision (b)(1)(C), and
to instead provide that section 186.22, subdivision (b)(5) imposes a minimum
term of 15 years before T.W. may be considered for parole. The judgment is
further modified to stay the sentence on count 2 under section 654. As
modified, the judgment is affirmed.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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