In re D.R. CA2/6

Filed 3/14/23 In re D.R. CA2/6
See dissenting opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re D.R., a Person Coming 2d Juv. No. B317364
Under the Juvenile Court Law. (Super. Ct. No. PJ52824)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
D.R.,
Defendant and Appellant.
D.R. appeals from the jurisdictional and dispositional
orders imposed after the juvenile court sustained an allegation
that he committed first degree murder (Pen. Code,1 §§ 187, subd.
(a), 189, subd. (a)). The court also found true an allegation that
D.R. committed his offense for the benefit of a criminal street
1 Unlabeled statutory references are to the Penal Code.
gang (§ 186.22, subd. (b)(1)(C)), and special circumstance
allegations that he committed murder while lying in wait
(§ 190.2, subd. (a)(15)) and while an active participant in a gang
(§ 190.2, subd. (a)(22)). It declared him a ward of the court and
ordered him committed to the custody and care of the Division of
Juvenile Justice (DJJ) for a “youth life” term.
D.R. contends: (1) the juvenile court’s finding that he
committed murder for the benefit of a criminal street gang must
be vacated, (2) the gang-murder special circumstance finding
must be vacated, (3) the gang expert relied on hearsay to
establish predicate offenses, (4) there was insufficient evidence of
his alleged gang’s primary activities, and (5) the court erred when
it ordered a DJJ commitment. We vacate the gang enhancement
and the gang-murder special circumstance finding, and remand.
FACTUAL AND PROCEDURAL HISTORY
The murder of B.A.
D.R. was in high school in the fall of 2017. He and several
friends were either members or associates of the MS-13 street
gang. B.A., another high schooler, was a member of the rival
18th Street gang. He wore a backpack to school that said “Fuck
MS.” He was also vocal about his dislike of MS-13.
In October, two MS-13 gang members took B.A. to a park
after school. Other MS-13 members were already there. The
group took B.A. to a canyon overlook with a 30- to 40-foot drop off
and then walked down a trail where D.R. and other gang
members were waiting. One of them hit B.A. in the face. D.R.
grabbed him from behind. B.A. was not seen alive again.
B.A.’s remains were found at the bottom of the overlook six
weeks later. His jawbone and teeth had been pushed up into his
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skull. The injuries to his face and head were consistent with
being struck by a large knife or machete.
The jurisdiction hearing
Prosecutors charged D.R. with the murder of B.A.
Detective Steven Aguilar testified as an expert on the MS-13
street gang at the jurisdiction hearing. Detective Aguilar said
that there are four stages to becoming an MS-13 member: (1)
“paro,” where a prospective member does minor tasks for the
gang and acts as a lookout, (2) “observacion,” where the person is
observed as they take a more active role in gang activities, (3)
“chiqueo,” where the person commits crimes like taggings or
robberies, and (4) a full-fledged “homeboy.” Prospective MS-13
members must commit a murder, usually in a group setting, to
become a homeboy. They participate in group murders to prevent
snitching, since all participants will be culpable. If someone does
snitch, other MS-13 members will kill them and, potentially,
their friends and family.
Detective Aguilar opined that D.R. and his associates
murdered B.A. for the benefit of MS-13. Three of D.R.’s
associates admitted they were MS-13 members. They used a
machete during the murder, one of the gang’s signature traits.
And the murder could be used as a recruitment tool since it was
done at the direction of older gang members in a manner that
could benefit MS-13’s reputation.
Detective Aguilar also testified about two other crimes
committed by MS-13 gang members that enhanced the gang’s
reputation. One self-proclaimed MS-13 member pleaded no
contest to making criminal threats. As part of this plea, he
admitted that he had suffered a prior conviction for extortion
with a gang enhancement. A jury convicted another MS-13
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member of attempted murder, and found true an attached gang
allegation.
The disposition hearing
The juvenile court concluded that D.R. was responsible for
B.A.’s murder. He remained in juvenile hall while awaiting the
November 2021 disposition hearing, and obtained his high school
diploma during that time. He asked to be placed in a community
detention program (CDP) or released to his mother on house
arrest so he could continue his education at a local college.
Alternatively, he asked to be placed in a local secure youth
treatment facility (SYTF).
The SYTF was scheduled to open in March 2022. Security
enhancements were still in development. Other than the
probation department’s developmental stage system, no SYTF
external programs would be evidence based.
The SYTF was slated to offer group and individual therapy
to address anger management, cognitive behavioral skills, and
decision making. Minors placed there would receive “some
individual case management,” would be eligible for an art-based
curriculum, and could participate in mentoring, gangs
anonymous, and family therapy. Anticipated future
programming included a creative writing program, dialectical
behavior therapy, and healing dialogue through restorative
justice groups. Whether a minor could take advantage of the
restorative justice program depended on whether victims or
family members were willing to participate.
The probation department recommended committing D.R.
to DJJ. D.R. had “a history of gang-related assaultive behavior,”
including an arrest for a gang-related battery on school property.
His role in B.A.’s murder demonstrated “a high level of criminal
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sophistication” and “a high degree of planning and coordination.”
It also showed he was “deeply entrenched in the gang lifestyle.”
A less-restrictive alternative to DJJ would “lack the
programming length to provide public safety and services needed
to achieve the rehabilitative goals that [would] support [D.R.’s]
eventual integration back to the community.”
If committed to DJJ, D.R. would be assessed by a
psychologist and meet with an education advisor and casework
specialist to complete a social and risk needs assessment. His
overall risk score would help determine his core programming.
DJJ counselors would then help to provide various intervention
programs for D.R. All programs would be evidence based and
“highly individualized.”
The probation department considered an SYTF placement
but rejected it due to the severity of D.R.’s offense and because
DJJ’s integrated behavior treatment model was more
appropriate. Additionally, records from juvenile hall showed that
D.R. had been disruptive and defiant there, refused to follow
instructions, used inappropriate language, and continued
gang-related activity. And prior to murdering B.A., D.R.
participated in therapeutic services related to gang prevention,
including one year of therapy, but “there [was] no indication that
[he] would be responsive to services in the future” given his
participation in B.A.’s murder.
The juvenile court agreed that a DJJ commitment was
appropriate. DJJ’s programming, treatment, and education could
meet D.R.’s treatment and security needs. Its evaluation and
individualized treatment programs were unmatched. Its
evidence-based programs were the “gold standard.”
5
Less-restrictive alternatives were inappropriate. While
D.R. had no prior sustained petitions, had successfully completed
a period of voluntary supervision, and had participated in gang
prevention services—all of which weighed in favor of a local
treatment—CDP was inappropriate given D.R.’s “strong ties . . .
to the gang that got him” involved in B.A.’s murder. Returning
D.R. to his mother would similarly be contrary to his welfare. If
assigned to the SYTF, D.R. could end up in juvenile hall for a
long time waiting for it to open. Such a wait was inappropriate
when the programs slated to be offered at the SYTF were
provided elsewhere.
DISCUSSION
The gang enhancement
D.R. contends, and the Attorney General concedes, the
juvenile court’s finding that he committed murder for the benefit
of a criminal street gang must be vacated due to the enactment of
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assem. Bill No.
333). We agree.
Effective January 1, 2022, Assem. Bill No. 333 amended
section 186.22 in several ways. Relevant here, the bill modified
the “pattern of criminal gang activity” element of the gang
enhancement to require that the predicate offenses commonly
benefitting a criminal street gang must do more than affect the
gang’s reputation. (Stats. 2021, ch. 699, § 3; see § 186.22, subd.
(e).) The bill also clarified that to “benefit, promote, further, or
assist” a gang “means to provide a common benefit to members of
a gang where the common benefit is more than reputational.”
(Stats. 2021, ch. 699, § 3; see § 186.22, subd. (g).)
Assem. Bill No. 333’s amendments to section 186.22 apply
retroactively to cases that are not yet final on appeal. (People v.
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Lopez (2021) 73 Cal.App.5th 327, 344-345 (Lopez).) And as the
Attorney General concedes, here there was no evidence that the
two predicate offenses Detective Aguilar testified about benefited
MS-13 in any way that was more than reputational. The gang
enhancement must thus be vacated and the matter remanded for
prosecutors to readjudicate the enhancement, if they so choose, to
meet the new burden of proof imposed by Assem. Bill No. 333.2
(Lopez, at p. 348.)
The gang-murder special circumstance
D.R. next contends Assem. Bill No. 333 requires vacating
the juvenile court’s finding that he committed murder while an
active participant in a criminal street gang. We agree once
again.
The gang-murder special circumstance applies if a minor
“intentionally killed the victim while [they were] an active
participant in a criminal street gang, as defined in subdivision (f)
of [s]ection 186.22, and the murder was carried out to further the
activities of the criminal street gang.” (§ 190.2, subd. (a)(22),
italics added.) Subdivision (f) of section 186.22 defines a
“criminal street gang” as a group that engages in a “pattern of
criminal gang activity.” Subdivision (e) of section 186.22 defines
“pattern of criminal gang activity” as committing offenses that
benefit a gang in a way that is “more than reputational.” Here,
all parties agree there was no evidence presented that the
murder of B.A. benefited MS-13 in any way that was more than
reputational. The gang-murder special circumstance thus does
not apply.
2 Given our conclusion, we do not consider D.R.’s
alternative arguments as to why the enhancement must be
vacated.
7
The Attorney General disagrees, countering that applying
Assem. Bill No. 333’s amended definitions to the gang-murder
special circumstance would be unconstitutional. Our sister
courts are divided on this issue. (Compare People v. Rojas (2022)
80 Cal.App.5th 542 (Rojas), review granted Oct. 19, 2022,
S275835, with People v. Lee (2022) 81 Cal.App.5th 232 (Lee),
review granted Oct. 19, 2022, S275449.)
In Rojas, our colleagues in the Fifth District held that
Assem. Bill No. 333 is unconstitutional to the extent it narrows
the scope of conduct made punishable under section 190.2,
subdivision (a)(22). (Rojas, supra, 80 Cal.App.5th at p. 555,
review granted.) Section 190.2 sets forth a list of special
circumstances under which the punishment for first degree
murder is death or life in state prison without the possibility of
parole. (§ 190.2, subd. (a).) Proposition 21, enacted by voters in
2000, added the gang-murder special circumstance to this list.
(§ 190.2, subd. (a)(22); see Voter Information Guide, Primary
Elec. (Mar. 7, 2000) text of Prop. 21, § 11, pp. 121-122.) That
special circumstance borrows the definition of “criminal street
gang” from section 186.22. (See § 190.2, subd. (a)(22).) Assem.
Bill No. 333 narrowed that definition. (Rojas, at pp. 552-553.) To
the Rojas court, such a narrowing was unconstitutional because
the Legislature did not enact Assem. Bill No. 333 with the
two-thirds vote required to amend Proposition 21. (Rojas, at pp.
553, 557-558.)
In Lee, our colleagues in Division 4 of this district reached
the opposite conclusion, finding no indication that voters
intended to prohibit future amendments to section 186.22 from
being incorporated into the gang-murder special circumstance.
(Lee, supra, 81 Cal.App.5th at pp. 241-242, review granted.)
8
When enacting Proposition 21, voters “clearly knew how to
express the intent to freeze a statutory definition” because they
did so by changing the “ ‘ “lock-in” ’ ” date for determining the
existence of qualifying offenses under the “Three Strikes” law.
(Lee, at p. 243.) “[H]ad the voters also intended . . . Proposition
21 to make a time-specific incorporation of section 186.22,
subdivision (f), they would ‘have said so in readily understood
terms.’ ” (Ibid.; cf. People v. Lopez (2022) 82 Cal.App.5th 1, 24-25
[applying same analysis and concluding that Assem. Bill No. 333
applies to criminal gang conspiracy statute].) “But there is no
such language.” (Lee, at p. 243.) “There is [thus] simply no basis
to believe that the voters understood they were precluding future
amendments of subdivision (f) of section 186.22 as referred to in
the gang-murder special circumstance, while permitting such
future amendments for section 186.22 itself.” (Ibid.)
Moreover, applying Assem. Bill No. 333 to the gang-murder
special circumstance is “fully consistent with the purpose of
Proposition 21.” (Lee, supra, 81 Cal.App.5th at p. 243, review
granted.) Proposition 21 “was aimed in pertinent part at
increasing the sentences for ‘gang-related’ felonies and murder.”
(Lee, at p. 244.) But it was not aimed at defining what
constituted a “gang-related” offense. (Ibid.) Applying Assem. Bill
No. 333 to the gang-murder special circumstance thus “does not
change the punishment for ‘murderers who kill as part of any
gang-related activity’ ”; “[i]t simply refines the concept of what
constitutes a ‘gang-related’ murder.” (Lee, at p. 244; see also
People v. Boukes (2022) 83 Cal.App.5th 937, 943, fn. 5 [Assem.
Bill No. 333 applies to the gang-murder special circumstance],
review granted Dec. 14, 2022, S277103; Lopez, supra, 73
Cal.App.5th at pp. 346-347 [same].)
9
We find Lee persuasive, and conclude that Assem. Bill No.
333 did not unconstitutionally amend Proposition 21. A contrary
conclusion would result in considerable confusion: Where, as
here, prosecutors allege both a gang enhancement and a
gang-murder special circumstance, the definitions of “pattern of
criminal gang activity” and “criminal street gang” as amended by
Assem. Bill No. 333 would apply to the enhancement but not the
special circumstance. Such incongruous definitions could, in
turn, lead to absurd consequences: A defendant “could be found
not to qualify for the lesser gang . . . enhancement[] but
nonetheless found to qualify for capital punishment.” (Lee, supra,
81 Cal.App.5th at p. 242, fn. 36, review granted.) The electorate
surely did not intend to adopt such an absurd result. The
juvenile court’s true finding on the gang-murder special
circumstance must thus be vacated.3 As with the gang
enhancement, on remand prosecutors may readjudicate the
special circumstance allegation if they so choose. (Id. at p. 246.)
The DJJ commitment
Finally, D.R. contends the juvenile court erred when it
ordered him committed to the custody and care of DJJ. We
disagree.
When determining an appropriate disposition, a juvenile
court must consider “(1) the age of the minor, (2) the
circumstances and gravity of the offense committed by the minor,
3 Because Assem. Bill No. 333 requires us to vacate both
the gang enhancement and the juvenile court’s true finding on
the gang-murder special circumstance, we do not resolve D.R.’s
assertions that Detective Aguilar provided hearsay testimony or
that the evidence failed to show that MS-13 is a criminal street
gang.
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and (3) the minor’s previous delinquent history.” (Welf. & Inst.
Code, § 725.5.) If DJJ is among the potential dispositions, the
court must also consider local alternatives to a DJJ commitment.
(Welf. & Inst. Code, § 736.5, subd. (c).) A DJJ commitment
additionally requires evidence of a probable benefit to the minor
and evidence that less-restrictive alternatives would be
ineffective or inappropriate. (In re Jonathan T. (2008) 166
Cal.App.4th 474, 485.) We review for abuse of discretion. (Ibid.)
There was no abuse of discretion here. The juvenile court
read and considered D.R.’s “very large file”—including probation
reports, observational reports, and letters of recommendation—
and heard testimony about various placement options before
concluding that a DJJ commitment would be most appropriate.
The evidence showed that D.R. was 16 years old when he
murdered B.A., and 20 by the time of the disposition hearing.
That murder was a serious felony, one that demonstrated “a high
level of criminal sophistication” and “a high degree of planning
and coordination.” It was also the latest offense in D.R.’s
escalating history of gang-related assaultive behavior. A
structured, secure placement was therefore necessary to help
rehabilitate D.R. and ensure the safety of the community.
Local alternatives to a DJJ commitment would not meet
these goals. Placement in a CDP was inappropriate given D.R.’s
strong gang ties. Returning D.R. to his mother would be contrary
to his welfare. Assignment to the local SYTF would entail an
inappropriately long wait for programming, not all of which was
the evidence-based type most appropriate for D.R. It was also not
clear how the SYTF’s restorative justice model would work with a
minor, like D.R., who had received a year of therapy before
murdering B.A. And the security measures there were still in
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development, which was a concern given D.R.’s history of
disciplinary problems in juvenile hall and his failure to respond
to local treatments. (See, e.g., In re Greg F. (2012) 55 Cal.4th
393, 418 [DJJ commitment may be appropriate where minor
previously failed local treatment].)
A DJJ commitment, in contrast, would likely benefit D.R.
DJJ’s integrated behavior treatment model is the “gold
standard.” It includes evidence-based, “highly individualized”
programs and education to meet D.R.’s treatment and security
needs. DJJ also has the structure and security measures in place
to help ensure D.R.’s success.
This case is unlike In re Calvin S. (2016) 5 Cal.App.5th
522, on which D.R. relies. In Calvin S., our colleagues in Division
7 vacated a DJJ commitment order due to a lack of evidence
showing that a juvenile hall commitment would be ineffective or
inappropriate. (Id. at pp. 528-529.) To the contrary, the evidence
in the record showed that the minor would continue to receive the
“educational, counseling, and other rehabilitative services
everyone agreed he needed” in juvenile hall. (Id. at p. 529.)
The facts here are different. When deciding the most
appropriate placement for D.R., the juvenile court considered
various reports and documents and testimony from several
witnesses. That evidence showed that less-restrictive
alternatives would be ineffective or inappropriate due to safety
concerns, D.R.’s prior behavioral challenges, and his
particularized educational and rehabilitative needs. The
evidence also showed that juvenile hall or the local SYTF could
not provide the programming D.R. needed—at least not for some
time. The juvenile court thus did not abuse its discretion when it
ordered a DJJ commitment.
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DISPOSITION
The true findings on the gang enhancement and
gang-murder special circumstance are vacated, and the matter is
remanded to the juvenile court to provide prosecutors the
opportunity to readjudicate those allegations. After the court
determines the status of the allegations, the clerk of the court
shall prepare amended jurisdictional and dispositional orders and
forward copies to the DJJ. In all other respects, the orders are
affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
I concur:
GILBERT, P. J.
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YEGAN, J., Dissenting:
I respectfully dissent from vacating the special
circumstance finding. The issue of the constitutionality of
Assembly Bill No. 333 (2021-2022 Reg. Sess.), purporting to
modify an initiative passed by the voters, pends in our Supreme
Court. In my view, the opinion in People v. Rojas (2022) 80
Cal.App.5th 542, 555, review granted Oct. 19, 2022, S275835, is
here controlling and People v. Lee (2022) 81 Cal.App.5th 232,
review granted Oct. 19, 2022, S275449, should not here dictate
reversal. This is one the most brutal murders ever committed
and considered by this court. By any standard of review, this was
a gang murder. How could it be otherwise? In all other respects,
I concur in the majority opinion.
NOT TO BE PUBLISHED.
YEGAN, J.
Fred J. Fujioka, Judge
Superior Court County of Los Angeles
______________________________
Mary Bernstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.