In re J.W. CA1/1 ( 2024 )

Filed 5/23/24 In re J.W. CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re J.W., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.W., A164366
Defendant and Appellant.
(San Francisco City & County
Super. Ct. No. JW196215)
J.W. appeals from orders of the juvenile court finding he committed
first degree murder and attempted murder and committing him to a secure
youth treatment facility (SYTF) for a time not to exceed his 25th birthday.
Appellant asserts numerous grounds for the reversal of the court’s orders.
We affirm in part and reverse in part.
BACKGROUND
The San Francisco District Attorney filed a wardship petition (Welf. &
Inst. Code, § 602), alleging that on September 8, 2019, appellant, then age 17,
committed murder (Pen. Code,1 § 187, subd. (a)), with a lying-in-wait
1 All further undesignated statutory references are to the Penal Code.
1
allegation (§ 190.2, subd. (a)(15) [count I]), attempted murder with an
allegation of premeditation and deliberation (§§ 187, subd. (a), 664 [count II]),
assault with a semiautomatic firearm (§ 245, subd. (b) [count III]), two counts
of carrying a loaded firearm (§ 25850, subd. (a) [counts IV & V]), carrying a
concealed firearm in a vehicle (§ 25400, subd. (a)(1) [count VI]); and two
counts of possession of a firearm by a minor (§ 29610) [counts VII & VIII]).
With respect to the first three charges, the petition alleged appellant was
armed with and personally and intentionally used a firearm, and inflicted
great bodily injury. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd.
(a), 12022.53, subds. (c)-(d).) All offenses were alleged to have been
committed on September 9, 2019, with the exception of count VIII, which was
alleged to have been committed on September 25, 2019.
The following evidence was admitted at the contested jurisdictional
hearing, which took place over the course of 14 days:
On September 2, 2014, appellant’s older brother R.W. was fatally
stabbed outside a liquor store in San Francisco. Appellant, then age 12,
witnessed the stabbing; appellant identified Luis Q. as the perpetrator. Luis
was arrested and charged with causing R.W.’s death. However, several
months later, the district attorney’s office dropped the charges.
On September 8, 2019, surveillance video recovered from the Bay
Bridge Toll Plaza captured appellant driving his mother’s 2005 Acura TL
through the westbound toll lane at 7:56 p.m. On that day, Luis and his
girlfriend, A.B., had been helping A.B.’s mother with a residential move
within the Excelsior District. They used a moving van and Luis’s car to make
multiple trips between the two residences; they finished sometime between
8:00 p.m. to 9:00 p.m. Luis and A.B. were then going to meet A.B.’s mother
at a restaurant in Glen Park.
2
Video footage retrieved from France Street, shows an Acura TL
traveling past the moving van used by Luis and A.B. more than once. The
Acura TL (the Acura), had characteristics consistent with model years 2004
to 2008: two side marker lights (one on the front fender just below the right
passenger side mirror and a second on the upper rear quarter panel); a
bodyline (that ran from the front passenger side along the front side marker
to the front passenger door handle, to the rear passenger door handle, and
connected to the rear quarter panel side marker light); and five-spoke wheel
rims.
Video footage captured an Acura following Luis’s car to a gas station
located at Geneva Avenue and Naples Street. The driver double-parked the
Acura, activated its hazard lights, and waited near the intersection of Naples
Street and Geneva Avenue while Luis inflated his car’s tires at the gas
station.
Additional surveillance footage, shows the Acura following Luis’s car as
it drove away from the gas station, turned right onto Athens Street, and
stopped on a residential street. A few seconds later, the driver parked the
Acura a short distance behind Luis’s car, ran to the driver’s side door of Luis’s
car, and fired 21 rounds from an FN Five-Seven semiautomatic pistol into the
car, killing Luis and injuring A.B. The surveillance video shows the shooting
occurring at 9:06 p.m.
Shortly thereafter at 9:19 p.m., a license plate reader and surveillance
video captured appellant in his mother’s Acura traveling east on the Bay
Bridge near Treasure Island. The time to drive to that location from the
crime scene was approximately nine minutes.
A.B. observed the male shooter’s eyes when they were illuminated by
the muzzle flash. The shape of the shooter’s eyes was similar to the shape of
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appellant’s eyes. A.B. called 911. She told the operator she did not know the
identity of the shooter. She later described the shooter as a “light-skinned”
Hispanic male. Appellant was a “mixed race” male, with a “light
comple[xion].”
Responding officers collected 21 cartridge casings from the scene, all of
which were 5.7-caliber. Forensic testing revealed the cartridge casings were
fired from the same firearm—an FN Five-Seven semiautomatic handgun.
An FN Five-Seven semiautomatic handgun has a capacity of 21 rounds,
consisting of 20 rounds in the magazine plus one round in the chamber. It is
considered to be a somewhat expensive and rare gun, due to its unique
characteristics (including markings on the pistol grip and rear slide, the
curvature of the pistol grip, the magazine style, and side switches).
On September 18, 2019, a video was posted to the Instagram account of
Joey La Pierre (also known as Joe or Joey Vega), depicting appellant sitting
next to what appeared to be an FN Five-Seven pistol in the rear passenger
seat of a vehicle.
Police arrested appellant on September 25, 2019. Police found an
operational and loaded nine-millimeter Glock handgun with a laser sight and
extended magazine clip in a backpack in appellant’s possession.
DISCUSSION
I. Motion for Mistrial
Appellant contends the court abused its discretion by denying a motion
for mistrial based on the prosecution’s failure to disclose all of A.B.’s prior
statements and for failing to impose a “predetermined” sanction to exclude
non-discovered witness statements. The People appear to concede the
discovery violation, but maintain evidentiary sanctions were not required,
and any error in denying the mistrial motion was harmless.
4
A. Additional Background
Prior to the jurisdiction hearing, the prosecution sought and obtained
an order for the exclusion of “any evidence not previously discovered to the
prosecution” and for discovery of any unrecorded oral statements of witnesses
communicated to the defense.
On November 30, 2020, A.B. testified at the jurisdictional hearing as
the sole percipient witness to the murder and attempted murder. On direct
examination, the only person she implicated as the shooter was Joey Vega.
Then, for the first time on cross-examination, A.B. said she had made
statements to the District Attorney’s office suggesting that appellant could
also be the shooter.
A.B. said she saw appellant at a January 10, 2020 pre-trial hearing,
where she learned he was being charged in connection with Luis’s murder.
Defense counsel asked A.B., “At any time after being [at the January 10,
2020 hearing], and seeing [appellant] did you say to any policeman, . . . any
District Attorney or anything, hey, that’s the guy who did it?” A.B. answered,
“Yes.” When asked whom she spoke to, A.B. responded, “To Maria and to
whoever else I talked to in the DA’s office. I had many meetings with them.
Even Chesa.” Defense counsel immediately requested a sidebar conference,
which was denied.
Upon resuming cross-examination, defense counsel asked A.B., “There
is nothing right now as you sit there looking at [appellant] that indicates that
he could be the shooter,” to which she responded, “The shape of his eyes.”
During redirect, A.B. testified that as it was dark outside, she had only been
able to see the shooter’s eyes during the flashes of light from the gunshots;
she was not focused on the shooter, but had been focused on Luis and the
unfolding events.
5
Defense counsel moved for a mistrial based on A.B.’s testimony about
her prior statements, stating, “I never received any discovery of any report
that was ever made of any memorandum,” and concluding, “I think that I
have been severely prejudiced by that. I have never been provided anything
in discovery. I’m not ascribing fault to [the prosecutor] at all.” The
prosecutor responded he was unaware that A.B. had made any prior
statements that appellant’s eyes were “similar to the eyes of the shooter.”
The trial court ordered the prosecutor to look into whether there was
“any discovery regarding this conversation between Ms. Reynoso and [A.B.]”
and “to turn that over” to the defense. The court denied the motion for a
mistrial.
B. Applicable Law
Section 1054.1 requires the prosecutor in a criminal case to disclose
certain information, including all “[r]elevant written or recorded statements
of witnesses or reports of the statements of witnesses whom the prosecutor
intends to call at the trial.” (§ 1054.1, subd. (f).) Discovery in juvenile
delinquency cases is not governed by the discovery disclosure provisions of
section 1054, et seq. (See Robert S. v. Superior Court (1992) 9 Cal.App.4th
1417, 1421–1422.) However, “discovery practice in delinquency proceedings
generally has been derived from, and parallels, that in adult criminal cases.”
(City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 54.) Discovery in
juvenile delinquency proceedings is also guided by California Rules of Court,
rule 5.546.2 (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1334, fn. 5.)
2 California Rules of Court, rule 5.546 provides, in part, as follows: “(a)
General purpose [¶] This rule must be liberally construed in favor of
informal disclosures, subject to the right of a party to show privilege or other
good cause not to disclose specific material or information. [¶] (b) Duty to
disclose police reports [¶] After filing the petition, petitioner must promptly
6
If the prosecutor fails to comply with the statutory disclosure
requirements, the court “may make any order necessary to enforce [those
provisions], including, but not limited to, immediate disclosure, contempt
proceedings, delaying or prohibiting the testimony of a witness or the
presentation of real evidence, continuance of the matter, or any other lawful
order.” (§ 1054.5, subd. (b); see People v. Verdugo (2010) 50 Cal.4th 263, 280.)
The court may exclude evidence “only if all other sanctions have been
exhausted.” (§ 1054.5, subd. (c).) And a mistrial should be granted only
when “ ‘a party’s chances of receiving a fair trial have been irreparably
damaged.’ ” (People v. Welch (1999) 20 Cal.4th 701, 749.)
We review a court’s ruling on discovery matters for abuse of discretion.
(People v. Ayala (2000) 23 Cal.4th 225, 299.) This includes the court’s denial
of a motion for a mistrial based on the prosecutor’s violation of the discovery
statutes. (Id. at p. 282.)
C. Analysis
Appellant contends the court abused its discretion by denying the
mistrial motion and for failing to execute the so-called predetermined
sanction for discovery violations.3 We disagree.
“We start with the basic ‘judicially created’ [citation] rule that in limine
rulings are not binding because the trial court has the power to reconsider,
modify or set aside its order at any time prior to the submission of the cause.
deliver to or make accessible for inspection and copying by the child and the
parent or guardian, or their counsel, copies of the police, arrest, and crime
reports relating to the pending matter. Privileged information may be
omitted if notice of the omission is given simultaneously.” (Bold face
omitted.)
3 We do not address the People’s forfeiture argument; we instead
proceed to the merits of appellant’s claim and conclude it fails.
7
(People v. Campa (1984) 36 Cal.3d 870, 885–886 . . . .)” (People v. Yarbrough
(1991) 227 Cal.App.3d 1650, 1655; see also People v. Karis (1986) 46 Cal.3d
612, 634, fn. 16 [“a ruling on a motion in limine is not generally binding on
the trial court, which is free to reconsider its ruling at the time the
challenged evidence is offered”].) Therefore, contrary to appellant’s
argument, the court was not “required to exclude the statements that
pertained to those undisclosed communications in accordance with its
pretrial order.”
Instead, the court “reconsidered” its ruling and exercised its authority
under section 1054.5 to “make any order necessary to enforce the provisions
of this chapter, including, but not limited to, immediate disclosure . . .” and
admonished the prosecution to turn over discovery regarding the
conversation between the district attorney’s office and A.B.
Turning to the issue of whether the trial court should have otherwise
excluded the evidence, we find no abuse of discretion. In determining
whether to exclude evidence that may affect the factfinding process, “the
court must consider the extent to which exclusion of particular evidence may
undermine the reliability of the fact finder’s conclusion.” (People v. Gonzales
(1994) 22 Cal.App.4th 1744, 1757 (Gonzales).) The court should also consider
the effectiveness of lesser sanctions, the impact of exclusion of evidence at
trial and the outcome of the case, the extent of surprise and whether the
violation was willful and designed to obtain a tactical advantage. (Ibid.)
Gonzales recognized that preclusion might be ordered to address prejudice to
the surprised party or to punish the offending party. It concluded that if the
sanction is being imposed to address prejudice, “the prejudice would
necessarily have to be substantial and irremediable,” and the consequence to
the truth-finding process would have to be balanced. (Id. at pp. 1757–1758.)
8
Where the purpose of the sanction is to punish the offending party, Gonzales
concluded, “[A]bsent a showing of significant prejudice and willful conduct,
exclusion of testimony is not appropriate as punishment.” (Id. at p. 1758.)
Here, the record does not support any express or implied finding that
the prosecutor’s failure to disclose A.B.’s prior statements amounted to willful
misconduct to obtain a tactical advantage. Indeed, defense counsel conceded
there was no foul play by the prosecution. Accordingly, our focus is on
whether appellant established the non-disclosure resulted in substantial and
irremediable prejudice. (Gonzales, supra, 22 Cal.App.4th at pp. 1757–1758.)
Although defense counsel stated he had been “severely damaged” by
the late disclosure, he made no attempt to specify what he would have done
differently had A.B.’s statements been disclosed sooner. (See People v.
Verdugo, supra, 50 Cal.4th at p. 283.) Appellant now suggests other actions
that could have been taken had defense counsel received timely discovery of
A.B.’s statements, including, “investigat[ing] the circumstances under which
[A.B.] had made her observations, her location in the courtroom from which
the observations were made, whether appellant had ever faced the spectators,
the distance between them, the length of the observation and the conditions
in the courtroom.” However, had defense counsel desired to address these
issues, he could have requested a continuance or posed additional questions
to A.B., who was excused subject to recall. In the absence of a request for a
continuance, “a claim that any surprise enhanced the damaging effect of [the
witness’s] testimony is speculative.” (People v. Arias (1996) 13 Cal.4th 92,
151–152.)
We conclude the court did not abuse its discretion in denying
appellant’s request for evidentiary sanctions and a mistrial.
9
II. Ineffective Assistance of Counsel
Appellant contends his counsel was ineffective at the jurisdiction
hearing in several ways, primarily with respect to A.B.’s testimony, as well as
by failing to produce evidence to support representations in opening
statement, failing to object to other firearm evidence, and failing to argue the
kill zone theory advocated by the prosecution was inapplicable.
“The due process right to effective assistance of counsel extends to
minors in juvenile delinquency proceedings.” (In re M.V. (2014) 225
Cal.App.4th 1495, 1528.) “ ‘In assessing claims of ineffective assistance of
trial counsel, we consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms and
whether the defendant suffered prejudice to a reasonable probability, that is,
a probability sufficient to undermine confidence in the outcome. [Citations.]
A reviewing court will indulge in a presumption that counsel’s performance
fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.
Defendant thus bears the burden of establishing constitutionally inadequate
assistance of counsel. [Citations.] If the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged, an appellate
claim of ineffective assistance of counsel must be rejected unless counsel was
asked for an explanation and failed to provide one, or there simply could be
no satisfactory explanation. [Citation.] Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.’ ” (People v.
Carter (2005) 36 Cal.4th 1114, 1189.)
A. A.B.’s Testimony
Appellant argues his retained defense counsel rendered ineffective
assistance by: (1) eliciting damaging testimony on cross-examination
10
regarding the shooter’s identity and failing to move to strike it; (2) failing to
request exclusion of the late-disclosed statements; and (3) failing to elicit
testimony that A.B. took Luis in the opposite direction of Glen Park.
The extent of cross-examination is a classic tactical decision trial
counsel must make. (People v. Cleveland (2004) 32 Cal.4th 704, 746
[“normally the decision to what extent and how to cross-examine witnesses
comes within the wide range of tactical decisions competent counsel must
make.”].) Courts “ ‘ have been “reluctant to second-guess counsel” [citation]
where a tactical choice of questions led to the damaging
testimony.’ ” (Ibid.) Here, a tactical choice readily appears. Faced with new
information, defense counsel attempted to elicit testimony that A.B. saw
appellant at an earlier court proceeding and that she had not identified him
as the shooter to anyone on the prosecution team before the jurisdiction
hearing. However, unbeknownst to both the defense and the prosecution,
A.B. had previously made statements indicating that appellant could be the
shooter. “Rigorous cross-examination risks eliciting damaging redirect
examination. Whether to run that risk is a tactical choice counsel must be
permitted to make. Moreover, here the damaging testimony came only from
the same witness the defense necessarily was attempting to discredit.” (Ibid.)
Contrary to appellant’s assertion, there was no legal ground for
striking A.B.’s testimony that appellant could be the shooter. (See People v.
Hovarter (2008) 44 Cal.4th 983, 996 [there must be a “legal ground for
exclusion of otherwise relevant evidence”].) “[R]elevant evidence shall not be
excluded . . . in any trial or hearing of a juvenile for a criminal offense,
whether heard in juvenile or adult court.” (Cal. Const. art. I, § 28, subd.
(f)(2).) Any motion to strike A.B.’s testimony would have been futile and
nothing would have prevented the prosecution from presenting it on redirect
11
examination. (See People v. Cudjo (1993) 6 Cal.4th 585, 616 [“[b]ecause there
was no sound legal basis for objection, counsel’s failure to object to the
admission of the evidence cannot establish ineffective assistance”]; People v.
Diaz (1992) 3 Cal.4th 495, 562 [failure to object to admissible evidence does
not constitute ineffective assistance of counsel because objection would have
been futile].)
Equally unavailing is appellant’s claim that defense counsel was
ineffective for failing to request the exclusion of A.B.’s testimony as a
discovery violation sanction. A claim of ineffective assistance of counsel
based on a trial attorney’s failure to make a motion must demonstrate not
only the absence of a tactical reason for the omission, but also that the
motion would have been meritorious. (People v. Mattson (1990) 50 Cal.3d
826, 876.) Here, as discussed, any motion to exclude A.B.’s testimony as a
sanction for a discovery violation would have been denied. Thus, defense
counsel was not ineffective for failing to make the motion. (People v. Weaver
(2001) 26 Cal.4th 876, 931 [“Counsel is not ineffective for failing to make a
frivolous motion”]; People v. Torrez (1995) 31 Cal.App.4th 1084, 1091
[“[C]ounsel is not required to make futile motions or to indulge in idle acts to
appear competent”].)
Finally, appellant argues defense counsel rendered ineffective
assistance by failing to argue that A.B. took Luis in the opposite direction
from Glen Park, which put him in a position to be shot.4 This argument
hinges on appellant’s unsupported theory that A.B. was in on the plan to kill
Luis. Counsel’s failure to argue this speculative theory can hardly be deemed
4 Previously, we deferred taking judicial notice of the map of the area;
in considering the merits of the appeal, we have taken judicial notice, without
any determination of relevance, of the map.
12
ineffective. (See People v. Williams (1988) 44 Cal.3d 883, 933 [“A factual
basis, not speculation, must be established before reversal of a judgment may
be had on grounds of ineffective assistance of counsel.”].)
B. Failure to Produce Evidence Supporting Opening Statement
Appellant contends defense counsel was ineffective for failing to
produce evidence to support his representations in opening statement,
namely that cartridge casings tested positive for DNA for someone other than
appellant. He further asserts defense counsel failed to impeach the
investigating officer with stipulated evidence that appellant had been
excluded as the contributor to DNA recovered from a spent casing.
The parties stipulated to the admission of two reports from the People’s
forensic DNA expert that summarized the 21 cartridge casings recovered at
the crime scene and other firearms evidence. The reports indicated a DNA
profile obtained from one of the cartridge casings from the crime scene was
compared against reference samples provided by appellant and Vega, and
both were excluded as the possible contributor. Subsequently, Sergeant
Kasper testified on cross-examination that he was informed the cartridge
casings at the crime scene were FN Five-Seven and that subsequent
examination of the casings produced “negative results.” On redirect
examination, Sergeant Kasper testified that “negative results” meant “there
was no DNA recovered” from the cartridge casings. During closing argument,
defense counsel stated, “The DNA evidence speaks for itself.”
The failure to impeach a witness is a matter that involves tactical
decisions and seldom establishes an attorney’s incompetence. (People v.
Frierson (1979) 25 Cal.3d 142, 158.) Here, defense counsel could have
reasonably construed Sergeant Kasper’s testimony that the cartridge casings
produced “negative results” to mean that the DNA testing results on the
13
casings did not incriminate appellant. Defense counsel also could have made
a strategic decision to rely on the stipulated evidence of the DNA test results
and his closing argument to address this issue. (See People v. Johnsen (2021)
10 Cal.5th 1116, 1165 [trial counsel may have strategically decided not to
object to prosecutor’s comments and instead rely on the counterarguments in
his closing argument]; People v. Bell (2020) 48 Cal.App.5th 1, 23 [assuming
testimony was inaccurate, defense counsel could have reasonably decided to
wait and draw attention to it during closing argument].)
Appellant also argues defense counsel rendered constitutionally
deficient performance by failing to introduce evidence that individuals at the
crime scene described the suspect vehicle as a Lexus. “Forgoing the
presentation of testimony or evidence promised in an opening statement can
be a reasonable tactical decision, depending on the circumstances of the
case.” (People v. Stanley (2006) 39 Cal.4th 913, 955.)
Here, defense counsel could have reasonably decided that an initial
report of the suspect vehicle as possibly being a Lexus carried much less
weight than the lack of direct evidence connecting appellant to the crime
scene. The record does not suggest counsel’s performance was obviously
inadequate, or that there could be no satisfactory explanation for his actions
or omissions.
C. Failure to Object to Firearm Evidence
Appellant argues defense counsel rendered ineffective assistance of
counsel related to the firearms evidence by failing to object that the gun in
the Instagram post was “possessed” by appellant; failing to challenge the
sufficiency of the evidence regarding gun possession; unjustifiably conceding
the object in the Instagram post was an FN Five-Seven; and failing to object
14
to the “unsupported assumption” that the murder weapon was an FN Five-
Seven.
Even when there is a basis for objection, “ ‘ “[w]hether to object to
inadmissible evidence is a tactical decision; because trial counsel’s tactical
decisions are accorded substantial deference [citations], failure to object
seldom establishes counsel’s incompetence.” “In order to prevail on [an
ineffective assistance of counsel] claim on direct appeal, the record must
affirmatively disclose the lack of a rational tactical purpose for the challenged
act or omission.” ’ ” (People v. Majors (1998) 18 Cal.4th 385, 403.) Further,
“[t]here are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client
in the same way.” (Strickland v. Washington (1984) 466 U.S. 668, 689.)
Here, the record does not show that each claimed failure by defense
counsel was without a rational tactical purpose. In summary, the court was
presented with video surveillance that captured a shooter discharging 21
rounds in six seconds into the victim’s vehicle, killing Luis and injuring A.B.
Officers responded to the scene and collected 21 cartridge casings, all of
which were 5.7-caliber. The cartridges were analyzed and found to be all
fired from the same weapon—an FN Five-Seven semiautomatic handgun.
Such a handgun has a capacity of 21 rounds, consisting of 20 rounds in the
magazine plus one round in the chamber. Additionally, a video post to an
Instagram account, ten days after the murder, depicted appellant in the
backseat of a vehicle with an object on the seat right next to his leg.
The prosecution established that the object looked like an FN five-
seven semi-automatic weapon. Specifically, Officer Ochoa testified that he
recognized the type of firearm because he owned one and was able to describe
the weapon’s rare and unique characteristics.
15
Given the state of the evidence in this case, defense counsel could have
made a rational, tactical decision not to object and instead rely on
counterarguments in his closing suggesting that the object was put there by
someone other than appellant and point out, as he did, that “[t]here is no
indication that it was the weapon that was used in the homicide. None.”
(See People v. Bell, supra, 48 Cal.App.5th at p. 23) Ultimately, counsel made
a reasonable, strategic decision to defend appellant in this manner and the
record in this case does not preclude the possibility of a satisfactory
explanation for said approach. Thus, appellant’s claims of ineffective
assistance of counsel must be rejected.
D. Attempted Murder
Appellant raises several claims that defense counsel rendered
ineffective assistance by failing: (1) to argue the kill zone theory was
inapplicable; (2) to object to the prosecution’s reliance on facts not in evidence
regarding the characteristics of the FN Five-Seven ammunition; (3) to argue
the prosecution’s argument was an implied theory of malice, and (4) to object
to the “misstatement” that A.B. was in the direct line of fire. Appellant
argues these omissions were prejudicial because there was no substantial
evidence of attempted murder. As we explain in the next section, substantial
evidence supports the attempted murder finding under a kill zone theory.
Accordingly, any claimed error was harmless.
E. Cumulative Prejudice
Finally, appellant contends that even if harmless individually, the
cumulative effect of the trial errors mandates reversal. “Cumulative error is
present when the combined effect of the trial court’s errors is prejudicial or
harmful to the defendant.” (People v. Capers (2019) 7 Cal.5th 989, 1017.)
Here, we have not found multiple errors to aggregate. (See People v. Bolin
16
(1998) 18 Cal.4th 297, 335 [rejecting defendant’s contention that “even if
harmless individually, the cumulative effect of the trial errors mandates
reversal,” because “we have rejected all of his claims, we perforce reject this
contention as well”].)
III. Sufficiency of the Evidence Claims
Appellant challenges the sufficiency of the evidence supporting the
findings that he was the shooter, committed premeditated attempted murder,
and carried a concealed weapon in a vehicle.
A. Identity of Shooter
Our review must presume in support of the judgment the existence of
every fact the trier of fact could reasonably have deduced from the evidence.
(People v. Manibusan (2013) 58 Cal.4th 40, 87.) Where, as here, the evidence
of guilt is largely circumstantial, our task is not to resolve credibility issues
or evidentiary conflicts, nor is it to inquire whether the evidence might
reasonably be reconciled with the defendant’s innocence. (Id. at p. 92; People
v. Maury (2003) 30 Cal.4th 342, 403.) It is the duty of the trier of fact to
acquit the defendant if it finds the circumstantial evidence is susceptible to
two interpretations, one of which suggests guilt and the other innocence.
(People v. Snow (2003) 30 Cal.4th 43, 66.) But the relevant inquiry on appeal
is whether, in light of all the evidence, “any reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt.” (People v.
Towler (1982) 31 Cal.3d 105, 118.)
The central issue in this case was the identity of the shooter. The
evidence that appellant was the shooter was entirely circumstantial—but it
was sufficiently substantial to uphold his convictions.
17
1. Motive
There was substantial evidence that appellant had motive to kill Luis
in revenge for R.W.’s death. (People v. Flores (2020) 9 Cal.5th 371, 412
[motive to eliminate victim who was a witness to another murder and not
loyal to the gang]; People v. Pride (1992) 3 Cal.4th 195, 245 (Pride)
[defendant’s work history supplied a possible motive for the killings]; People
v. Lewis (1963) 217 Cal.App.2d 246, 259–260 [defendant had motive for
seeking vengeance against murder victim].)
2. Opportunity
There was also substantial evidence indicating that appellant had the
opportunity to commit the offenses. It is undisputed appellant’s mother
owned a 2005 model Acura TL sedan in September 2019. Bay Bridge
surveillance video showed appellant driving an Acura on the westbound toll
lane at 7:56 p.m. on September 8, 2019, about one hour before the shooting.
Before the shooting, surveillance video captured a vehicle bearing the
same characteristics of the Acura driving back-and-forth in front of the
moving van used by Luis and A.B., and later waiting on Naples Street until
Luis drove away from the gas station; then following Luis to Athens Street
where the shooting occurred at 9:06 p.m.
About 13 minutes after the shooting, a license plate reader and
surveillance video captured appellant’s mother’s Acura traveling east on the
Bay Bridge near Treasure Island. The time to drive to that location from the
crime scene was approximately nine minutes. Based on this evidence, the
court could reasonably infer that appellant was present at the scene when the
shooting occurred. (Pride, supra, 3 Cal.4th at p. 245 [evidence establishing
time of death, defendant’s work schedule, the drive time from murder scene
18
to defendant’s home supported reasonable inference that defendant was
present at scene when murders occurred].)
3. Firearms Evidence
Twenty-one cartridge casings, all of which were 5.7-caliber, were
recovered at the crime scene. The weapon used to discharge the rounds was
an FN Five-Seven, a semiautomatic handgun with a 21-round capacity. The
weapon was somewhat rare and had unique characteristics, including
markings on the pistol grip and rear slide, a curved pistol grip, and side
switches. The Instagram video posted 10 days after the shooting showed
appellant touching what appeared to be an FN Five-Seven pistol in the rear
passenger seat of a vehicle.
Based on this evidence, the court could reasonably infer that appellant
had access to an FN Five-Seven pistol and that he used it to kill Luis and, in
his attempt to kill A.B. (See People v. Flores, supra, 9 Cal.5th at p. 413
[rational jury could have logically concluded that ballistics evidence together
with other evidence showed defendant murdered victim]; Pride, supra, 3
Cal.4th at p. 246 [jury could infer from distinctive appearance of probable
murder weapon that it was defendant’s knife and that it had not been stolen
before the crimes].)
4. Consciousness of Guilt
At the time of the shooting, the Acura’s grill was gray or silver in color
and the wheel rims were silver or chrome. Ten days after the shooting, the
Acura had dark-colored wheel rims. When the Acura was recovered 18 days
after the shooting the wheel rims, grill, and front headlamp had been painted
black.
Based on this evidence the court could find appellant engaged in post-
crime conduct from which it could reasonably infer a consciousness of guilt.
19
(People v. Thompson (2010) 49 Cal.4th 79, 113 [attempts to conceal the crime
by cleaning up the crime scene was highly probative of whether defendant
committed the crime]; Pride, supra, 3 Cal.4th at p. 246 [defendant’s post-
crime behavior of placing a jumpsuit over his work clothes before arriving
home and uncharacteristic laundering of the same clothes evidenced
consciousness of guilt].)
5. Physical Characteristics
The video footage shows the shooter was average height, slim build,
and fairly quick on their feet—indicative of someone young. By all accounts,
appellant fit this description. A.B. testified appellant’s eyes were consistent
with the shooter’s, which she described as a “unique eye shape.” A.B. later
described the shooter as a “light-skinned” Hispanic male. It is undisputed
that appellant had a “mixed race” heritage and a “light comple[xion].” Based
on the circumstantial evidence presented, the court could reasonably infer
that appellant’s physical appearance was consistent with the shooter’s build.
In sum, we conclude the record contained substantial evidence to
support the court’s finding that appellant was the shooter. Appellant’s
arguments challenging the sufficiency of the evidence do not compel a
contrary conclusion.
In challenging the sufficiency of the evidence, appellant argues: (1) the
evidence was speculative that he was the shooter because all signs pointed to
Vega as the shooter; (2) A.B.’s testimony was suspect, including her
explanation for stopping on Athens Street; (3) the evidence of motive was
weak; (4) there was no evidence the FN Five-Seven pistol in the Instagram
video was the murder weapon or that he had dominion and control of the gun
in the video; (5) the shooter’s vehicle was unknown; (6) there was no direct
evidence of his location at the time of the shooting; (7) the modification of the
20
Acura was consistent with an innocent explanation; and (8) his clothing did
not match the clothing of the shooter described by the 911 caller.
By these arguments, appellant is confusing the role of the appellate
court with that of the trier of fact. It is not the function of this court to
reweigh the evidence. (People v. Demond (1976) 59 Cal.App.3d 574, 583 [lack
of eyewitnesses or direct evidence of the manner in which victim’s injuries
were inflicted does not sustain a claim of insufficient evidence where ample
circumstantial evidence connects defendant with the crime].) The weight
accorded to evidence and the credibility of witnesses is within the sole
province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785,
790.) To the extent the trial court made contrary inferences from the
evidence, those conclusions are binding in this court. (People v. Teale (1969)
70 Cal.2d 497, 505 [defendant’s challenge to the sufficiency of evidence would
have the reviewing court draw contrary inferences from the evidence, which
the court may not do]; People v. Hunt (1985) 174 Cal.App.3d 95, 104 [“Where
two conflicting inferences may be drawn from the evidence, it is the reviewing
court’s duty to adopt the one supporting the challenged order”].) Inferences
that could have led the trier of fact to a different result do not, as a matter of
law, undermine the substantial evidentiary support for the verdict. (People v.
Casares (2016) 62 Cal.4th 808, 827 [rejecting claim of insufficient evidence
based essentially on competing inferences defendant wished the jury had
drawn], disapproved on other grounds by People v. Dalton (2019) 7 Cal.5th
166, 214.)
Accordingly, we conclude substantial evidence supports the court’s
implied finding that appellant was the shooter.
21
B. Premeditated Attempted Murder
Appellant contends there is no substantial evidence to support the
finding that he committed premeditated attempted murder under a kill zone
theory of liability. We first address the kill zone theory and then turn to
whether appellant acted with premeditation and deliberation.
1. Attempted Murder – Kill Zone
Attempted murder requires the specific intent to kill, or express malice,
and the commission of a direct but ineffectual act toward accomplishing the
intended killing. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7;
see also People v. Mumin (2023) 15 Cal.5th 176, 190 (Mumin).) “To be guilty
of attempted murder, the defendant must intend to kill the alleged victim,
not someone else. The defendant’s mental state must be examined as to each
alleged attempted murder victim. Someone who intends to kill only one
person and attempts unsuccessfully to do so, is guilty of the attempted
murder of the intended victim, but not of others.” (People v. Bland (2002) 28
Cal.4th 313, 328 (Bland).) “[A]lthough the intent to kill a primary target
does not transfer to a survivor, the fact the person desires to kill a particular
target does not preclude finding that the person also, concurrently, intended
to kill others within what is termed the ‘kill zone’ ” for attempted murder.
(Id. at p. 329.)
Bland illustrated the kill zone theory with the following hypothetical:
“[C]onsider a defendant who intends to kill A and, in order to ensure A’s
death, drives by a group consisting of A, B, and C, and attacks the group with
automatic weapon fire or an explosive device devastating enough to kill
everyone in the group. The defendant has intentionally created a ‘kill zone’
to ensure the death of his primary victim, and the trier of fact may
reasonably infer from the method employed an intent to kill others
22
concurrent with the intent to kill the primary victim. When the defendant
escalated his mode of attack from a single bullet aimed at A’s head to a hail of
bullets or an explosive device, the factfinder can infer that, whether or not
the defendant succeeded in killing A, the defendant concurrently intended to
kill everyone in A’s immediate vicinity to ensure A’s death.” (Bland, supra,
28 Cal.4th at p. 330.)
In People v. Canizales (2019) 7 Cal.5th 591 (Canizales) our Supreme
Court “reaffirmed Bland’s concurrent intent theory but articulated its
contours and limitations” and “explained how the theory relates to proving
the specific intent to kill required for attempted murder.” (Mumin, supra, 15
Cal.5th at p. 192.) “Bland’s adoption of the kill zone theory meant that a
prosecutor charging attempted murder in a multi-victim case had an
additional, alternative ground by which to prove the requisite intent to kill.
Under appropriate facts, the prosecutor could attempt to show either that the
defendant’s intent to kill one or more alleged victims arose independently of
his actions toward any other victim, or that the defendant’s intent to kill an
untargeted victim arose concurrently with his intent to kill a primary target.”
(Canizales, at p. 603.) And it noted that “there are evidentiary bases, other
than the kill zone theory, on which a fact finder can infer an intent to kill for
purposes of attempted murder liability that do not depend on a showing that
the defendant had a primary target . . . .” (Id. at p. 608.)
The Canizales court clarified “that a jury may convict a defendant
under the kill zone theory only when the jury finds that: (1) the
circumstances of the defendant’s attack on a primary target, including the
type and extent of force the defendant used, are such that the only reasonable
inference is that the defendant intended to create a zone of fatal harm – that
is, an area in which the defendant intended to kill everyone present to ensure
23
the primary target’s death – around the primary target[;] and (2) the alleged
attempted murder victim who was not the primary target was located within
that zone of harm. Taken together, such evidence will support a finding that
the defendant harbored the requisite specific intent to kill both the primary
target and everyone within the zone of fatal harm.” (Canizales, supra, 7
Cal.5th at pp. 596–597; see id. at p. 609 [“ ‘[w]ithout a primary target, there
cannot be concurrent intent because there is no primary intent to kill as to
which the intent to kill others could be concurrent.’ ”].)
Canizales cautioned that “[t]rial courts should tread carefully when the
prosecution proposes to rely on such a theory, and should provide an
instruction to the jury only in those cases where the court concludes there is
sufficient evidence to support a jury determination that the only reasonable
inference from the circumstances of the offense is that a defendant intended
to kill everyone in the zone of fatal harm. The use or attempted use of force
that merely endangered everyone in the area is insufficient to support a kill
zone instruction.” (Canizales, supra, 7 Cal.5th at p. 608.)
Recently, in Mumin, the California Supreme Court clarified that “ ‘the
only reasonable inference’ caveat” in Canizales was used “to explain how the
jury should evaluate circumstantial evidence relating to the defendant’s
intent. This discussion of the jury’s role does not suggest a departure from
the traditional substantial evidence standard in evaluating whether the court
has properly instructed on a particular theory of conviction.” (Mumin, supra,
15 Cal.5th at p. 201.)
Here, the evidence was sufficient to support the reasonable inference
that Luis was the primary target. Appellant witnessed the stabbing that
fatally wounded his brother R.W. and he identified Luis as the perpetrator.
The shooting on September 8, 2019 occurred nearly five years to the date of
24
R.W.’s murder on September 2, 2014. (See People v. Smith (2005) 37 Cal.4th
733, 751 [evidence of motive can support intent to kill].)
Appellant created a zone of harm around Luis when he came up to the
driver’s side window and used a semiautomatic pistol to fire 21 rounds in
rapid succession. A.B., who was sitting next to Luis in the front passenger
seat, was in the direct line of fire and suffered a gunshot wound to her right
arm. (See Bland, supra, 28 Cal.4th at pp. 318, 333 [approaching a car in
which rival gang member was seated in driver’s seat, opening fire with a .38-
caliber handgun, shooting numerous rounds into the vehicle and as it drove
away “virtually compelled” finding kill zone theory applied]; Mumin, supra,
15 Cal.5th at p. 204 [concurrent intent cases involving vehicle shootings have
been described as employing a “ ‘flurry’ ” or “ ‘hail’ ” of bullets]; People v.
Dominguez (2021) 66 Cal.App.5th 163, 187 [rapid firing of 21 shots into a
small space enclosed on three sides supported kill zone theory]; People v.
Windfield (2021) 59 Cal.App.5th 496, 517 [firing multiple bullets at close
range against two people who were walking side by side supported kill zone
theory].)
Contrary to appellant’s contention, there is no requirement that a
defendant be aware of who is in the zone of fatal harm to support a conviction
for attempted murder based on a kill zone theory. (See People v. Vang (2001)
87 Cal.App.4th 554, 564 [rejecting defendants’ argument that they could not
be convicted of attempted murder as to someone they did not know was in the
residence when they opened fire at the residence]; see also People v. Adams
(2008) 169 Cal.App.4th 1009, 1023 [“[w]hether or not the defendant is aware
that the attempted murder victims were within the zone of harm is not a
defense, as long as the victims actually were within the zone of harm”].)
25
Appellant argues the evidence was insufficient to support the kill zone
theory because: (1) there was no evidence of a “spray of bullets throughout
the car”—the shooter fired solely at Luis; (2) due to the placement in the car,
killing A.B. would not ensure the death of Luis; (3) the shooter was unaware
of A.B.’s presence—thus A.B. shooting “was an unintended consequence of
moving her arm in the line of fire;” and (4) there was no evidence A.B. was in
the direct line of fire. While defense counsel could have certainly made these
arguments to the trier of fact, they are not dispositive as to the sufficiency of
the evidence to support a kill zone theory.
People v. Booker (2020) 58 Cal.App.5th 482 (Booker), is of no assistance
to appellant. In that case, the defendants and the two victims had a brief
encounter in a store. (Id. at p. 488.) Soon after the victims left in a car,
defendants’ car pulled alongside them, and the shooter fired three to seven
shots at the victims’ car, killing the driver but leaving the passenger
uninjured. (Id. at pp. 488–489.) Citing to Canizales, the Booker court opined
two of the factors to support the kill zone theory were present—the distance
between the defendant and the alleged victims, and the closeness of the
victim to the intended target. (Id. at pp. 500–501.) The court reasoned,
however, the type and amount of force used did not support the kill zone
theory. The court found it dispositive the “three to seven shots” from a non-
semiautomatic or automatic weapon were “directed at the front driver’s side”
and “there were no bullet holes in the car’s body or doors that would have
reflected a spray of bullets.” (Id. at p. 500.)
Here, unlike in Booker, appellant used a semiautomatic weapon to fire
21 shots. The spray of bullets from the semiautomatic weapon hit various
parts of Luis’s body, including his head, heart, chest, liver, and one of his
kidneys. From this evidence it was reasonable to conclude appellant had a
26
primary target—Luis—and reasoned he could not miss that intended target if
he killed everyone in the area in which the target was located. (Canizales,
supra, 7 Cal.5th at p. 607 [determination does not turn on effectiveness or
ineffectiveness of attack].)
The court could reasonably conclude that appellant intended to create a
zone of fatal harm in the confined space of the front passenger compartment
of Luis’s car, a zone within which A.B. was located, and that he had the
concurrent intent to kill anyone in that zone in order to ensure that Luis was
killed. (Canizales, supra, 7 Cal.5th at pp. 609–610.)
2. Premeditation and Deliberation
Appellant next contends there was insufficient evidence of
premeditation and deliberation. Although we conclude there is substantial
evidence of a specific intent to kill A.B. under a kill zone theory, we
nevertheless find there is insufficient evidence that appellant acted with
premeditation and deliberation.
For an attempted murder to be premeditated and deliberate “the intent
to kill must have been formed upon a preexisting reflection and must have
been the subject of actual deliberation and forethought.” (People v. Rowland
(1982) 134 Cal.App.3d 1, 7; see People v. Herrera (1999) 70 Cal.App.4th 1456,
1462–1463, fn. 8 [“We do not distinguish between attempted murder and
completed first degree murder for purposes of determining whether there is
sufficient evidence of premeditation and deliberation”], disapproved on
another point in People v. Mesa (2012) 54 Cal.4th 191, 199.)
“ ‘ “[P]remeditated” means “considered beforehand,” and “deliberate”
means “formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course
of action.” ’ ” (People v. Felix (2009) 172 Cal.App.4th 1618, 1626 (Felix).)
27
“ ‘ “The true test is not the duration of time as much as it is the extent of
reflection.” ’ ” (Ibid.)
“ ‘ “The process of premeditation and deliberation does not require any
extended period of time.” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1182.)
There is no requisite minimum length of time between the prior reflection on
killing a person and taking action to commit the killing. (People v. Thomas
(1945) 25 Cal.2d 880, 900.) “ ‘Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly. . . .’ ”
(People v. Perez (1992) 2 Cal.4th 1117, 1127.)
“In examining whether the evidence is sufficient to show that a
defendant premeditated, a reviewing court may consider a tripartite
framework—(1) planning activity, (2) motive, and (3) manner of the killing or
attempt—in determining whether such intent may be inferred from the trial
record.” (Felix, supra, 172 Cal.App.4th at p. 1626.) These categories are
“ ‘descriptive, not normative,’ ” and “reflect the court’s attempt ‘to do no more
than catalog common factors that had occurred in prior cases.’ ” (People v.
Young, supra, 34 Cal.4th at p. 1183.) “The categories of evidence . . . do not
represent an exhaustive list of evidence that could sustain a finding of
premeditation and deliberation, and the reviewing court need not accord
them any particular weight.” (Ibid.) While these categories are helpful for
review, they are not a sine qua non to finding first degree premeditated
murder, nor are they exclusive. (People v. Koontz (2002) 27 Cal.4th 1041,
1081.) “However, ‘[w]hen the record discloses evidence in all three categories,
the verdict generally will be sustained.’ ” (People v. Stitely (2005) 35 Cal.4th
514, 543.)
In essence, the fundamental inquiry is whether “the crime occurred as
a result of preexisting reflection rather than a rash or unconsidered impulse.”
28
(Felix, supra, 172 Cal.App.4th at p. 1626.) This is generally inferred from the
circumstances of the crime. (People v. Ramos (2004) 121 Cal.App.4th 1194,
1207–1208.)
Here, we cannot infer premeditation and deliberation from the record.
There is no evidence that appellant had a motive to kill A.B. or that he
specifically targeted her. Indeed, there is little evidence suggesting appellant
knew A.B. was in the car. While this fact, as we have explained does not
insulate appellant from kill zone liability (see People v. Vang, supra, 87
Cal.App.4th at p. 564), it nevertheless suggests that he did not act with
premeditation and deliberation with respect to A.B.
We conclude there is insufficient evidence to support the conclusion
that appellant’s attempted murder of A.B. was premeditated and deliberate.
Thus, the premeditation and deliberation finding must be reversed.
C. Carrying a Concealed Firearm in a Vehicle
Appellant argues no testimony or evidence was ever presented
regarding the manner in which the gun was carried in the Acura on
September 8, 2019. We agree there is insufficient evidence to support the
court’s true finding on count VI, which charged appellant with carrying a
concealed weapon within a vehicle. (§ 25400, subd. (a)(1)).
Section 25400, provides in subdivision (a)(1) that a person is guilty of
carrying a concealed firearm when he carries “concealed within any vehicle
that is under the person’s control . . . any pistol, revolver, or other firearm
capable of being concealed upon the person.” (Italics added.) No evidence
supported a conclusion that appellant carried a gun concealed within a car he
controlled on September 8, 2019.
A concealed weapon inside a car might be found underneath a floor mat
(People v. Jefferson (2015) 238 Cal.App.4th 494, 499), hidden in the gap in a
29
split bench seat (People v. Padilla (2002) 98 Cal.App.4th 127, 132, 137), in an
air vent under the dashboard (People v. Redmond (1966) 246 Cal.App.2d 852,
855), or in an unlocked container behind a seat (People v. Hodges (1999) 70
Cal.App.4th 1348, 1355.) Here there was no evidence of such concealment
inside the car.
The People suggest video footage of appellant removing a firearm from
his pocket as he got out of the car supports an inference that “appellant
caused the firearm to be concealed within the Acura.” We disagree. The
mere fact that appellant got out of the car with a gun does not in any way
suggest the manner in which he possessed the gun within the car. The cases
cited by the People are distinguishable because they involved reasonable
inferences based on circumstantial evidence. (See People v. May (1973) 33
Cal.App.3d 888, 890–891 [handgun visible to officer through defendant’s open
pocket was concealed weapon]; People v. Watkins (2012) 55 Cal.4th 999, 1024
[applying reasonable inference principle to acts of attempted robbery that
were not seen by victims]; People v. Story (2009) 45 Cal.4th 1282, 1298
[finding reasonable inferences of rape and murder based on circumstantial
evidence at scene and condition of victim].) Here, the inferences suggested by
the People are purely speculative and do not constitute substantial evidence
that appellant concealed the gun in the car.
Similarly lacking is the People’s assertion that appellant’s “clandestine
activity” of parking against the flow of traffic, idling in the street, and
making a “three-point turn” could reasonably support the inference that “he
had concealed the firearm inside his vehicle to avoid detection from anyone
whom he encountered . . . .” Although arguably suspicious, these activities do
not support a reasonable inference that appellant had concealed the gun in
the car.
30
With no evidence that appellant concealed the gun somewhere inside
the car, we must reverse the court’s true finding on count VI.
IV. Two Penal Code Section 25850 Offenses
In counts IV and V, the delinquency petition alleged that on September
8, 2019, appellant carried a loaded firearm in public, both on his person (Pen.
Code § 25850, subd. (a) [count IV]) and in a vehicle (ibid. [count V].) The
court found both allegations to be true.
Appellant contends, and the People concede, a true finding was
appropriate on either count IV or V but not both because both counts were
based on carrying the same firearm in public on the same date. We agree.
(People v. Vidana (2016) 1 Cal.5th 632, 650 [multiple convictions not
permitted for different statements of same offense arising from same act or
course of conduct]; People v. Ramon (2009) 175 Cal.App.4th 843, 857
[unlawful carrying of loaded weapon while a member of street gang and
unlawfully carrying of loaded weapon for which one was not the registered
owner did not define separate crimes; rather, they established penalty based
on circumstances of offense and offender].)
Accordingly, the true finding on count V is hereby vacated.
V. SYTF Commitment
Appellant raises three related arguments challenging his SYTF
commitment: (1) the court abused its discretion in dismissing a non-
qualifying offense for the purpose of making him eligible for SYTF
commitment; (2) the court’s findings setting forth the basis of the SYTF
commitment are inadequate; and (3) substantial evidence does not support
the SYTF commitment.
“[T]he juvenile court has long enjoyed great discretion in the disposition
of juvenile matters . . . .” (In re Greg F. (2012) 55 Cal.4th 393, 411.) It has
31
“ ‘maximum flexibility to craft suitable orders aimed at rehabilitating the
particular ward before it.’ ” (Ibid.) A juvenile court’s commitment order may
be reversed on appeal only upon a showing that the court abused its
discretion. (In re Miguel C. (2021) 69 Cal.App.5th 899, 908.) “ ‘ “[A] trial
court abuses its discretion when the factual findings critical to its decision
find no support in the evidence.” ’ ” (In re Nicole H. (2016) 244 Cal.App.4th
1150, 1154.)
A. Dismissal of Non-Qualifying Offense
A minor may not be committed to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities, unless his or her most recent
offense alleged in any petition and admitted or found true by the court is one
described in Welfare and Institutions Code section 707, subdivision (b).
(Welf. & Inst. Code, § 733, subd. (c); In re J.B. (2022) 75 Cal.App.5th 410,
418.) Appellant’s most recent offense, firearm possession by a minor (count
VIII), is not a listed offense. (Welf. & Inst. Code, § 707, subd. (b); Pen. Code,
§ 29610.) On the prosecution’s motion, the court dismissed count VIII and
later committed appellant to a SYTF.
Appellant contends the court was without authority to dismiss count
VIII for the sole purpose of making him eligible for SYTF commitment. He
further contends the court failed to adequately provide its reasons for
dismissing the non-qualifying offense. As we explain, the court did not err
dismissing the non-eligible offense. However, a limited remand is required
for the court to set forth its reasons in the record.
1. Additional Background
As relevant here, the murder and attempted murder occurred on
September 8, 2019 and the second gun possession occurred on September 25,
2019 (count VIII). Following the multi-day, contested jurisdictional hearing,
32
the court found true the allegations in the delinquency petition on January
29, 2021. At the April 22, 2021 contested disposition hearing, the court
committed appellant to the Division of Juvenile Justice (DJJ) for a maximum
term of 83 years, four months. Appellant sought writ relief from this court on
the grounds that his most recent offense—the September 25, 2019 gun
possession—was not an enumerated offense, which made him ineligible for
DJJ commitment. The People agreed the DJJ commitment was in error. We
granted the unopposed petition and directed the court to vacate the DJJ
commitment and remanded the matter for a new dispositional hearing.
On remand, after the court vacated the DJJ commitment, the
prosecutor asked for the dismissal of count VIII—the September 25, 2019 gun
possession allegation—which was the most recent offense alleged in the
delinquency petition. At a September 14, 2021 hearing, the prosecutor
argued it was “in the interest of justice and for the welfare of the now non-
minor, to be committed to DJJ . . . [¶] Since the Court found true the lying in
wait first degree and attempted murder and the allegations of discharging a
firearm, the minor is subject to mandatory DJJ commitment. With the
dismissal of the [non-]DJJ eligible charge, the remaining charges are eligible
for DJJ commitment.” The prosecutor added, “This scenario comports with
the one imagined by the dissent and addressed by the majority in [In re Greg
F. (2012) 55 Cal.4th [393] at [pages] 413 to 414]. Again, the Court has
previously decided that the DJJ commitment is in the best interest of justice
and welfare of the minor after a contested dispositional hearing.” The
prosecutor also asked the court to order the DJJ commitment nunc pro tunc
to the original disposition date of April 22, 2021.
In denying the nunc pro tunc request, the court noted the prosecution
“knew about this case and the charges for a long time.” The court then
33
summarily granted the prosecution’s motion, ruling, “The motion to dismiss
is granted.” The corresponding minute order reflects, “District attorney’s oral
motion to dismiss Count 8 of petition dated 9-27-19 pursuant to 782 W&I –
granted.”
2. Analysis
Juvenile courts have long had the authority to dismiss juvenile
petitions in the interests of justice and in a minor’s best interests. (Welf. &
Inst. Code, § 782; In re Greg F., supra, 55 Cal.4th at p. 400.) Recently, this
discretion has been held to include the dismissal of a portion of a petition. (In
re J.P. (2023) 94 Cal.App.5th 74, 77; see also In re J.B. (2022) 75 Cal.App.5th
410, 413 [dismissal of previously adjudicated petitions].)
The dispute 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 [DJJ]: [¶] . . . [¶] (c)
The ward has been or is adjudged a ward of the court pursuant to [Welfare
and Institutions Code,] [s]ection 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 [of the Welfare and Institutions Code] or
subdivision (c) of Section 290.008 of the Penal Code.” “[T]he language of
[Welfare and Institutions Code] section 733[, subdivision] (c) is clear and
lends itself to only one 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
34
minor. A minor can be committed to [DJJ] only if this particular offense is
listed in [Welfare and Institutions] section 707[, subdivision] (b) or Penal
Code section 290.008[, subdivision] (c).” (In re D.B. (2014) 58 Cal.4th 941,
947.)
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.”
We review the juvenile court’s dismissal of a petition under Welfare
and Institutions Code section 782 for abuse of discretion. (See Greg F., supra,55 Cal.4th at p. 420 [dismissal “is appropriate . . . 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”].)
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.) In Greg F., the court held the juvenile court retains
discretion to commit a minor to DJJ by using its authority under Welfare and
Institutions Code section 782 to dismiss the most recent sustained charge or
petition which rendered him or her ineligible for such a commitment. Section
782 provides a discretionary tool for the juvenile court “to control the
operative petition for purposes” of Welfare and Institutions Code section 733,
subdivision (c) and, “consequently, expand its dispositional options.” (Greg
F., at p. 408.) If the juvenile court exercises its discretion under Welfare and
Institutions Code section 782 to dismiss a delinquency petition, “its decision
35
does not nullify or abrogate” Welfare and Institutions Code section 733,
subdivision (c). (Id. at p. 408.)
Appellant contends Greg F. is “not a good fit” for his case because here
the dismissal was “accomplished long after the dispositional hearing.” He
further asserts Greg F. is inapposite because it addressed DJJ commitments
instead of SYTF commitments. Appellant’s attempt to distinguish Greg F.
fails. First, appellant’s characterization of the record is somewhat
disingenuous and ignores the procedural history of the case. In granting
appellant’s petition for mandate, we ordered the April 22, 2021 disposition
order to be vacated. The prosecution’s motion to dismiss count VIII occurred
after the juvenile court vacated the original disposition and before the new
disposition proceedings had occurred. Second, although there are differences
in DJJ and SYTF commitments, nothing purports to limit the juvenile court’s
discretion under Welfare and Institutions Code section 782.
To support his case, appellant cites In re A.O. (2017) 18 Cal.App.5th
390, 392–393 (A.O.), which reversed the juvenile court’s dismissal of an
ineligible charge nearly three years after the disposition. However, A.O.
limited its analysis to Welfare and Institutions Code section 733 because, in
dismissing the non-eligible offense, the juvenile court “never purported to
invoke” Welfare and Institutions Code section 782.5 (A.O., at p. 394.) The
reviewing court assumed a juvenile court could have post-dispositional
authority to dismiss for the sole purpose of securing a DJJ commitment. (Id.
at p. 396.) But based on the “the sparse record,” the court could not
determine whether the juvenile court’s dismissal of the disqualifying offense
5 Similarly, in In re D.B., supra, 58 Cal.4th at p. 945, cited by appellant
the juvenile court did not consider (or even mention) Welfare and Institutions
Code section 782.
36
was a proper exercise of discretion. (Id. at pp. 396–397.) The record of the
underlying proceedings was not part of the record on appeal; thus the court
had “no idea whether appellant made the admissions pursuant to a plea
agreement, or whether any representations were made with regard to his
possible placements.” (Id. at p. 396.) Indeed, the A.O. court did not have
“any record of the facts underlying the offense that purportedly qualifie[d]
him for a DJ[J] commitment.” (Ibid.)
Equally unavailing is appellant’s reliance on In re Albert M. (1992) 7
Cal.App.4th 353, 358–359, in which a juvenile court dismissed a petition, on a
minor’s request, without making any express or implied findings, but “merely
noted that the matter had been continued many times, and that the minor
had spent as much time in court as he would have spent in juvenile hall if
‘convicted.’ ” In reversing, the court explained the mere passage of time,
without a showing of prejudice to the minor, was not a valid finding under
Welfare and Institutions Code section 782. (Ibid.)
Here, unlike in A.O., our review is not hindered by a “sparse record.”
Quite the contrary. The instant appeal is one of five cases either previously
considered by or pending before this court. There is ample evidence
regarding the underlying offenses and the evidence before the juvenile court.
The jurisdictional hearing spanned 14 days, with numerous witnesses and
exhibits. The court was well-versed with the specifics of appellant’s case and
had previously determined DJJ was an appropriate placement.
Unlike in Alfred M., the record supports an implied finding that the
dismissal was not granted merely due to the passage of time. Rather, the
prosecution, citing Greg F., supra, 55 Cal.4th 393, made the motion on the
grounds that it was in the best interest of justice and welfare of appellant,
37
which the juvenile court recognized when it ordered the initial DJJ
commitment.
It is true that neither the prosecution nor the juvenile court expressly
mentioned Welfare and Institutions Code section 782 at the hearing. And,
the court did not provide its reasons for granting the dismissal at the
hearing. However, at the time of the hearing, the juvenile court had no
express obligation to state its reasons on the record.6 (See former Welf. &
Inst. Code, § 782, as amended by Stats. 2014, ch. 249, § 1.) Nevertheless, the
court was obligated to provide a statement of its reasons in the minutes.
(Greg F., supra, 55 Cal.4th at p. 413; Cal. Rules of Court, rule 5.790(a)(2)(A).)
It did not do so. This requirement is mandatory, not directory. (In re Juan
C. (1993) 20 Cal.App.4th 748, 753.) “Accordingly, the failure to comply with
this requirement renders the dismissal ‘without effect.’ ” (A.O., supra, 18
Cal.App.5th at p. 396.) We conclude the matter must be remanded for the
limited purpose of allowing the court to correct this defect by setting forth its
reasons in a written order entered upon the minutes. (See People v. Bonnetta
(2009) 46 Cal.4th 143, 153 [providing for a limited remand in context of an
analogous § 1385 dismissal]; People v. Superior Court (Arthur R.) (1988) 199
Cal.App.3d 494, 498, fn. 3 [“Although juvenile proceedings are not criminal
. . . and not controlled in all respects by statutes and rules applicable to
criminal proceedings and appeals, a general parallel has been
acknowledged”].)
6 Effective January 1, 2023, Assembly Bill No. 2629 (2021-2022 Reg.
Sess.) amended Welfare and Institutions Code section 782, subdivision (b), to
provide: “The reasons for a decision under this section shall be stated orally
on the record. The court shall also set forth the reasons in an order entered
upon the minutes if requested by either party or in any case in which the
proceedings are not being recorded electronically or reported by a court
reporter.” (Welf. & Inst. Code, § 782, subd. (b).)
38
B. Sufficiency of Findings Supporting SYTF Commitment
Appellant next claims the court’s findings are insufficient because the
court failed to address any less restrictive alternatives and did not articulate
its analytical process as to why such alternatives could not reasonably protect
the state’s interests.
In making the determination to commit a youth to a secure treatment
facility, the juvenile court “shall consider all relevant and material evidence,
including the recommendations of counsel, the probation department, and
any other agency or individual designated by the court to advise on the
appropriate disposition of the case. The court shall additionally make its
determination based on all of the following criteria: [¶] (A) The severity of the
offense or offenses for which the ward has been most recently adjudicated,
including the ward’s role in the offense, the ward’s behavior, and harm done
to victims[;] [¶] (B) The ward’s previous delinquent history, including the
adequacy and success of previous attempts by the juvenile court to
rehabilitate the ward[;] [¶] (C) Whether the programming, treatment, and
education offered and provided in a secure youth treatment facility is
appropriate to meet the treatment and security needs of the ward[;] [¶] (D)
Whether the goals of rehabilitation and community safety can be met by
assigning the ward to an alternative, less restrictive disposition that is
available to the court[;] [¶] (E) The ward’s age, developmental maturity,
mental and emotional health, sexual orientation, gender identity and
expression, and any disabilities or special needs affecting the safety or
suitability of committing the ward to term of confinement in a secure youth
treatment facility.” (Welf. & Inst. Code, § 875, subds. (a)(3)(A)–(a)(3)(E).)
Appellant argues the court committed him to SYTF without discussing
any of the factors except B, noting he had no prior delinquent history. As to
39
the other factors, he contends the court “merely recited the statutory
language.” In rendering its decision, the court stated, “The Court finds that a
less-restrictive alternative disposition is unsuitable. The youth is committed
to the secure youth treatment facility.” Appellant argues the court’s
“perfunctory recitation did not meet the requirements for evaluating the
criteria, thwarted the purpose of the legislation, and its finding was
unsupported by the record.” We disagree.
“[T]here is no rule that [a SYTF] placement cannot be ordered unless
less restrictive placements have been attempted, and there is no requirement
that the juvenile court expressly state on the record the reasons for rejecting
less restrictive placements.” (In re Nicole H., supra, 244 Cal.App.4th at p.
1159.)
Nothing in Welfare and Institutions Code section 875, subdivision (a)(3)
requires a court to include a statement of reasons in support of a finding of
the unsuitability of a less restrictive alternative disposition. Rather, the
statute merely states the additional five criteria that a juvenile court must
consider in making its determination. When a requirement for a statement
of reasons exists, the Legislature knows how to include such a provision in a
statute. For example, in amending Welfare and Institutions Code
section 782, the Legislature added subdivision (b), which states in relevant
part, “The reasons for a decision under this section shall be stated orally on
the record.” Similarly, Welfare and Institutions Code section 707, the statute
governing fitness hearings, provides, “If the court orders a transfer of
jurisdiction, the court shall recite the basis for its decision in an order entered
upon the minutes, which shall include the reasons supporting the court’s
finding that the minor is not amenable to rehabilitation while under the
jurisdiction of the juvenile court.” (Id. at subd. (a)(3).)
40
“When the Legislature uses materially different language in statutory
provisions addressing the same subject or related subjects, the normal
inference is that the Legislature intended a difference in meaning.” (People v.
Trevino (2001) 26 Cal.4th 237, 242; In re A.E. (2019) 38 Cal.App.5th 1124,
1146 [same].) Accordingly, there is no merit to appellant’s assertion that
Welfare and Institutions Code section 875 requires a statement of reasons on
the record. (See, e.g., In re A.L. (2022) 73 Cal.App.5th 1131, 1156 [juvenile
court not statutorily required to recite specific findings when it concludes at
permanency-planning stage of dependency proceedings that termination of
parental rights would not be detrimental].)
C. Sufficiency of Evidence Supporting SYTF Commitment
Finally, appellant claims the record does not support the juvenile
court’s conclusion that there was no less restrictive alternative available.7 He
contends his rehabilitative needs could have been met in the community due
to his low risk of reoffending, and the court improperly relied upon the nature
of the crime to justify the placement.
1. Additional Background
Before issuing its commitment order, the court considered the following
evidence:
i. Probation Department’s Addendum Report
On October 13, 2021, probation filed an Addendum Dispositional
Report and Recommendation, providing the following information: Although
appellant’s achievements were “stellar” and he had a “very supportive
extended family, a family of working professionals,” probation recommended
he be committed to the Juvenile Justice Center (JJC). JJC was “the only
7 Appellant does not challenge the juvenile court’s finding that SYTF
commitment would provide a probable benefit to him.
41
appropriate secure setting program available” and that a secure option was
appropriate “based on the severity of the charges and ensures [appellant’s]
safety, while allowing him access and engage[ment] in rehabilitative services
in an effort to become a successful and productive member of society.”
Additionally, examination of “the family history has shown severe
psychological trauma. [Appellant’s] older brother, [R.W.], was stabbed to
death in 2014, the crime was witnessed by [appellant] and his younger
brother. The deceased victim in the current case is believed to have been at
the scene of [R.W.’s] stabbing. . . There are no records of [appellant] or any of
his family members engaging in grief counseling/therapeutic support or
requesting support from any community-based organizations to address the
death in the family and cope with this enormous loss.” This evidence
supported the conclusion in the report that appellant “must complete an
intensive rehabilitation program in a secure setting prior to release.”
The probation department had “considered all available dispositional
options taking into consideration [appellant’s] safety, the safety of the
community, and the seriousness of the crime. [Appellant’s] safety is a
concern as retaliation would most likely be imminent—which means that any
local placement would not be safe for him.” The “[f]amily members offered to
relocate to provide a Resource Family Approval . . . placement [outside of
California],” but the probation department believed appellant “must complete
an intensive rehabilitation program in a secure setting prior to release.”
Appellant “did not meet the criteria for placement in a California [short-term
residential therapeutic program] . . . as he is 19 years old with a High School
Diploma and due to the seriousness of the offense.” Additionally,
commitment to an out-of-state facility was “not possible due to the recent
decertification of out-of-state placements.” Also, there was “no viable ranch
42
type facility, and a non-secure setting would not be an appropriate
recommendation[.]”
ii. Appellant’s Addendum Report
On November 23, 2021, appellant filed an Addendum Dispositional
Report, attaching an assessment and report from the Center for Juvenile and
Criminal Justice (CJCJ) recommending he be permitted to relocate and
attend college as discussed in the report, and a report about trauma resulting
from juvenile incarceration. On November 30, 2021, appellant filed a report
of a psychological evaluation, indicating he had a low risk to reoffend.
iii. Dispositional Hearing
At the dispositional hearing on December 1, 2021, appellant’s probation
officer Tony Hurley recommended that appellant be committed to juvenile
hall. He had considered a DJJ commitment, but it was no longer an option
due to the change in the Juvenile Court Law. Although appellant had made
“[e]xcellent” progress, Hurley recommended he remain in juvenile hall
because “he need[ed] to be held accountable for his actions and continue with
services.”
Dr. Rami Mogannam, Ph.D., a licensed clinical psychologist,
testified as an expert for the defense. Dr. Mogannam conducted a
psychological evaluation of appellant and diagnosed him with post-traumatic
stress disorder (PTSD). Appellant had mitigated his PTSD through his own
efforts, and to some degree through treatment. Dr. Mogannam opined that
appellant presented a low risk to public safety.
Malik Wade and Laura McDonnell were facilitators of Next Steps
Liaison Project, a youth advocacy program that promoted emotional literacy
inside JJC. Wade began working with appellant since he had been in
juvenile hall; Wade had contact with appellant on a weekly basis. Every
43
week, appellant seemed to have attained a new level of growth and maturity.
Appellant “never cease[d] to amaze” Wade in terms of his ability to
understand the seriousness of his predicament. Although Wade and
appellant never discussed the specifics of the underlying crimes, Wade did
not believe he was a threat to society. Appellant was “very smart” and was
also “very goal oriented” in terms of reuniting with his family. Wade did not
believe appellant would engage in criminal conduct if released.
McDonnell described appellant as “settling into some maturity,
thinking about the long term of his life.” He was very committed to his
college classes, which really kept him focused. McDonnell believed appellant
would be able to continue his focus if released; she had no reason to believe
he would pose any threat to society.
Carlos Morales, appellant’s uncle and a college faculty member,
testified about the family plan where appellant would go to a safe location to
continue his education and rehabilitation by enrolling in a university and
obtaining appropriate therapy. Morales would supervise and support
appellant. Speaking as an educator, Morales said that the conditions in
juvenile hall, such as lack of access to computer time, resources, and
instructors, had been limiting, and appellant had not had the appropriate
time to enroll full-time in college, which kept him from performing at his
peak.
Madelin Orr worked for CJCJ. Orr had filed two reports regarding the
CJCJ’s plan for appellant to relocate to a safe, non-secure location; the
service providers for the plan were ready to work with appellant
immediately.
The court then heard argument from counsel. Defense counsel began
by stating appellant was the most extraordinary person he had encountered
44
in the juvenile justice system in decades of practice - “a young person who is
so well socialized, has got so much family support, who has achieved such
great accomplishments.” He acknowledged the seriousness of the offense, but
also noted that there was no prior criminal history. He argued treatment
was available in the community, and appellant’s maturity and low risk level
showed that the less restrictive placement option was suitable.
The prosecutor asked for the court to follow probation’s
recommendation and keep appellant in JCC. He argued the plan proposed by
the defense was “wholly inadequate” for appellant’s wellbeing because it
lacked safety measures, was not in a locked facility, and offered “no
confidence of success.” He concluded that, “It is not an appropriate
disposition for the gravity of his conduct, his situation, his safety, and his
growth.”
2. Analysis
As discussed, in the context of SYTF commitments, courts are
instructed to consider the following criteria: “(A) The severity of the offense or
offenses for which the ward has been most recently adjudicated, including the
ward’s role in the offense, the ward’s behavior, and harm done to victims. [¶]
(B) The ward’s previous delinquent history, including the adequacy and
success of previous attempts by the juvenile court to rehabilitate the ward.
[¶] (C) Whether the programming, treatment, and education offered and
provided in a secure youth treatment facility is appropriate to meet the
treatment and security needs of the ward. [¶] (D) Whether the goals of
rehabilitation and community safety can be met by assigning the ward to an
alternative, less restrictive disposition that is available to the court. [¶] (E)
The ward’s age, developmental maturity, mental and emotional health,
sexual orientation, gender identity and expression, and any disabilities or
45
special needs affecting the safety or suitability of committing the ward to a
term of confinement in a secure youth treatment facility.” (Welf. & Inst.
Code, § 875, subd. (a)(3)(A)–(E).)
Appellant asserts “[t]he circumstances indicate that the SYTF
commitment order was based on the seriousness of the offense since all other
factors were in appellant’s favor,” and “the Legislature has specified that the
seriousness of the offense is only a single factor,” and argues that his
continued incarceration serves “an overwhelmingly punitive purpose in
violation of the Juvenile Court law.” In support of this position, appellant
seeks to discredit the probation department’s reports. He further contends
that in light of his low risk of reoffending, combined with his stellar academic
and personal achievements, plus an extremely supportive family, placement
in the community was a suitable less restrictive means.
Conflicting evidence does not render a juvenile court’s commitment
order an abuse of discretion or warrant its reversal; the evidence may not be
reweighed on appeal. (In re N.C. (2019) 39 Cal.App.5th 81, 87–88.) In
making a placement determination, a juvenile court need not follow any
particular order in its placement of a juvenile, i.e., from least to most
restrictive, and a juvenile court does not necessarily abuse its discretion by
committing a youth to a secure facility before other options have been
exhausted. (See John L. v. Superior Court (2004) 33 Cal.4th 158, 184–185,
fn. 10.) So long as a court concludes that alternative placements would be
ineffective, a court need not try other placements prior to ordering
commitment to a secure facility. (See In re Ricky H. (1981) 30 Cal.3d 176,
183; In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) When “ ‘there is evidence
in the record to show a consideration of less restrictive placements was before
the court, the fact the judge does not state on the record his consideration of
46
those alternatives and reasons for rejecting them will not result in a
reversal.’ [Citation.] On the other hand, ‘there must be some evidence to
support the judge’s implied determination that he sub silentio considered and
rejected reasonable alternative dispositions.’ ” (In re Nicole H., supra, 244
Cal.App.4th at p. 1159.)
The record makes clear that the considerations of less restrictive
placements was before the court. The disposition report stated that a local
placement would not be safe for appellant as “retaliation would most likely be
imminent,” that family relocation outside of California was not available
until appellant completed “an intensive rehabilitation program in a secure
setting prior to release,” that placement in a short-term residential
therapeutic program was not appropriate because appellant was then “19
years old with a High School Diploma and due to the seriousness of the
offense,” that an out-of-state facility was “not possible due to the recent
decertification of out-of-state placements,” and there was “no viable ranch
type facility, and a non-secure setting would not be an appropriate
recommendation.” Defense counsel argued at length in favor of a treatment
program in the community as being a less restrictive placement.
The record contains evidence supporting an implied determination that
less restrictive alternatives would have been inappropriate, based, for
example, on the “severity of the offense” (Welf. & Inst. Code, § 875, subd.
(a)(3)(A))—appellant used a semiautomatic firearm to fire 21 shots into the
passenger compartment of a vehicle, killing one occupant and injuring
another—as well as the “security needs of the ward” (Id. at subd. (a)(C))—as
noted by probation retaliation would be “imminent”—as well as “[w]hether
the goals of rehabilitation and community safety can be met by assigning the
ward to an alternative, less restrictive disposition” (Id. subd. (a)(3)(D))—
47
probation believed appellant “must complete an intensive rehabilitation
program in a secure setting prior to release.”
That appellant presented contrary evidence does not alter our
conclusion. Rather, indulging all reasonable inferences to support the
juvenile court’s decision” (In re Angela M. (2003) 111 Cal.App.4th 1392,
1396), we find substantial evidence supports the juvenile court’s finding of
the inappropriateness or ineffectiveness of the less restrictive alternatives.
Accordingly, the court did not abuse its discretion in ordering the
SYTF commitment.
VI. Custody Credits
Appellant contends the court erred by applying his custody credits to
his theoretical maximum exposure instead of the actual physical custodial
term.
He relies on our decision in In re Ernesto L. (2022) 81 Cal.App.5th 31,
40–43 (Ernesto L.), which held that in a DJJ commitment a minor’s
precommitment credits should be applied against a ward’s actual maximum
custodial term imposed under Welfare and Institutions Code section 731,
subdivision (b) rather than against the theoretical maximum calculated
under Welfare and Institutions Code section 726, subdivision (d).
While we understand the parallel appellant seeks to draw between
commitments to an SYTF under Welfare and Institutions Code section 875
and commitments to the DJJ under Welfare and Institutions Code
section 731, the applicable statutes differ.
In Ernesto L., we held when a minor is committed to the DJJ, the
juvenile court must apply any precommitment custody credits against the
maximum custodial term under Welfare and Institutions Code section 731
48
rather than against the maximum exposure term of confinement set under
section 726. (Ernesto L., supra, 81 Cal.App.5th at p. 34.)
Appellant argues because SYTF commitments have now replaced DJJ
commitments, we should apply the reasoning of Ernesto L. and apply the
credits to the baseline term set under Welfare and Institutions Code
section 875, subdivision (b). While appellant’s argument has some facial
appeal, we are not persuaded that our reasoning in Ernesto L. should extend
to confinements under Welfare and Institutions Code section 875.
Welfare and Institutions Code section 875, subdivision (b) provides that
the juvenile court “shall set a baseline term of confinement,” which “shall
represent the time in custody necessary to meet the developmental and
treatment needs of the ward and to prepare the ward for discharge to a
period of probation supervision in the community.” The “baseline term of
confinement” concept did not exist prior to the enactment of Welfare and
Institutions Code section 875 as part of the realignment of wards from the
now-closed DJJ to county-based custody. (Legis. Counsel’s Dig., Sen. Bill No.
92 (2021-2022 Reg. Sess.) Previously, when a ward was committed to the
DJJ, in addition to the maximum term of confinement required by Welfare
and Institutions Code section 726, the court was required to “set a maximum
term based upon the facts and circumstances of the matter or matters that
brought or continued the ward under the jurisdiction of the court and as
deemed appropriate to achieve rehabilitation.” (Welf. & Inst. Code, § 731,
subd. (b).) Welfare and Institutions Code section 731 thus “permit[ted] the
juvenile court in its discretion to impose either the equivalent of the
‘maximum period of imprisonment that could be imposed upon an adult
convicted of the offense or offenses’ committed by the juvenile [Welf. & Inst.
Code] (§ 731, subd. (c)) or some lesser period based on the ‘facts and
49
circumstances of the matter or matters that brought or continued’ the
juvenile under the court’s jurisdiction.” (In re Julian R. (2009) 47 Cal.4th
487, 498.)
The baseline term is meant to “represent the time in custody necessary
to meet the developmental and treatment needs of the ward and to prepare
the ward for discharge to a period of probation supervision in the
community.” (Welf. & Inst. Code, § 875, subd. (b)(1).) It is subject to change
at regular intervals, depending on the ward’s progress: The court is required
to hold a “progress review hearing for the ward not less frequently than once
every six months” and, at each hearing, the court must “evaluate the ward’s
progress in relation to the rehabilitation plan” and “determine whether the
baseline term of confinement is to be modified.” (Id. at subd. (e)(1)A).) The
court, at each hearing, has discretion to order that the ward “remain in
custody for the remainder of the baseline term” or that the baseline term be
reduced by a period “not to exceed six months for each review hearing.”
(Ibid.) At the conclusion of the baseline confinement term, the court must
discharge the ward to a period of probation supervision in the community
unless the court finds that the ward “constitutes a substantial risk of
imminent harm to others in the community if released from custody.” (Id. at
subd. (e)(3).) If the court so finds, it may order that the ward remain in
custody for “up to one additional year of confinement, subject to the review
hearing and probation discharge hearing provisions of this subdivision and
subject to the maximum confinement provisions of subdivision (c).” (Ibid.)
It is evident that the baseline term is a modifiable period intended to
reflect the minor’s treatment needs and rehabilitative progress on an ongoing
basis. Welfare and Institutions Code section 875 calls for the court to
determine the initial baseline term based on the ward’s most serious offense
50
and time deemed necessary for treatment and rehabilitation, and then to
regularly evaluate the ward’s progress and shorten the baseline term if
warranted by that progress. Applying precommitment custody credits—
which have nothing to do with a ward’s rehabilitative progress—to the
baseline confinement term would upset the legislatively crafted process of
tailoring the baseline confinement term of confinement to the ward’s
“developmental and treatment needs” and preparation for discharge from
custody.
We find the baseline term is not equivalent to the maximum custodial
term set under Welfare and Institutions Code section 731 that we addressed
in Ernesto L. Thus, we decline to extend Ernesto L. to baseline terms for
SYTF commitments, which are governed by Welfare and Institutions Code
section 875 and may be adjusted downward as soon as six months from the
disposition order.8
In sum, the juvenile court did not err by applying appellant’s custody
credits against his maximum period of confinement.
VII. Restitution
Appellant argues, and the People concede, the court erroneously
imposed a $10 restitution administrative fee for each felony. We agree.
At the disposition hearing on December 29, 2021, the court ordered
appellant “to pay [a] state restitution fine of each felony of $100, $10
administrative fee—and an administration fee of $10 per felony.” The
restitution fine and administrative fees do not appear on the written
8 As the People correctly note, Welfare and Institutions Code
section 875 was amended in 2022 to specifically state that “[p]recommitment
credits for time served must be applied against the maximum term of
confinement as set pursuant to this subdivision.” (Welf. & Inst. Code, § 875,
subd. (c)(1)(C), amended by Stats. 2022, ch. 58, § 41.)
51
disposition order. As best we can tell, it appears the court ordered a $100
restitution fine and a discretionary $10 fee per felony multiplied by seven
felonies for an additional amount of $70.
Pursuant to Welfare and Institutions Code section 730.6, subdivision
(b), “[i]f a minor is found to be a person described in Section 602, the court
shall impose a separate and additional restitution fine.” The fine is set
commensurate with the seriousness of the offense and, for felony offenses, the
fine shall not be less than one hundred dollars ($100) and not more than one
thousand dollars ($1,000). (Id., subd. (b)(1).) Beyond the statutory
minimums, Welfare and Institutions Code section 730.6 provides for
discretionary administrative costs in collecting the restitution fine. (Id.,
subd. (q).) Specifically, subdivision (q) provides: “At its discretion, the board
of supervisors of any county may impose a fee to cover the actual
administrative cost of collecting the restitution fine, not to exceed 10 percent
of the amount ordered to be paid, to be added to the restitution fine and
included in the order of the court, the proceeds of which shall be deposited in
the general fund of the county.”
Appellant does not challenge the imposition of the statutory minimum
restitution fine pursuant to subdivision (b)(2) of Welfare and Institutions
Code section 730.6. Rather, he argues the administrative costs were
statutorily unauthorized in light of a City and County of San Francisco
ordinance that abolished such fees in 2018. (San Francisco Ord. No. 131-18.
§ 2, eff. July 1, 2018.)9 San Francisco Ordinance No. 131-18 eliminated
section 8.36 of the San Francisco Municipal Code, which previously
authorized the Juvenile Probation Department “to collect a fee to cover the
9 We granted appellant’s request to take judicial notice of San Francisco
Ordinance No. 131-18.
52
actual administrative cost of collecting any victim restitution fine included in
an order of the court pursuant to Welfare and Institutions Code
section 730.6.” (San Francisco Ord. No. 131-18, § 2, at p. 5.)
Based on the deletion of section 8.36 from the San Francisco
Administration Code in 2018, the trial court no longer had authority to
impose the discretionary collection fees set forth in subdivision (q) of Welfare
and Institutions Code section 730.6. As noted, however, neither these fees
nor the statutory minimum restitution fine were included in the written
disposition order. The oral rendition of judgment controls over any
discrepancy with the ministerial minutes. (People v. Delgado (2008) 43
Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v.
Sharret (2011) 191 Cal.App.4th 859, 864.) The written disposition order must
be modified to reflect the disposition orally imposed by the court, which
included a mandatory $100 restitution fine. (People v. Gabriel (2010) 189
Cal.App.4th 1070, 1073.)
DISPOSITION
The jurisdictional and dispositional findings and orders as they pertain
to counts I, III, IV, and VII are affirmed.
With respect to count II, the jurisdictional and dispositional findings
are affirmed, but the premeditation and deliberation finding as to count II is
vacated.
The jurisdictional and dispositional findings and orders as they pertain
to counts V and VI are vacated.
The restitution collection fines ordered by the juvenile court are
vacated.
The matter is remanded for the juvenile court to provide a revised
dispositional order: (1) adding the $100 required restitution fine; and (2)
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stating its reasons for dismissing count VIII.
The order committing J.W. to a SYTF is affirmed.
Upon completion of the actions hereby directed the juvenile court shall
amend its records as may be appropriate and prepare, file and serve a new
corrected order of commitment.
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LANGHORNE WILSON, J.
WE CONCUR:
HUMES, P. J.
CASTRO, J.
A164366N

Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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