Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JW05-6803.
Pollak, J.
This is one of four appeals now before us arising from a single trial in which wardship and commitments to the Division of Juvenile Justice (DJJ) have been imposed on four minors for their roles in a gang-related shooting in which one innocent youth was killed and another was wounded.
On March 16, 2007, Antwanisha Morgan, Thomas J., Antoine S., Chante P., and other young people were talking outside a recreation center in the Bayview District of San Francisco. About a month earlier, some of these youths (not identified as members of any gang) had chased members of the G-3 criminal street gang away from a talent show at the recreation center where the gang members had started a disturbance. On March 16, three members of the G-3 gang, T.Tr., E.R., and D.B., returned to the center and two of the three shot at the group of youths that were congregated there, killing Antwanisha and wounding Thomas J. Immediately after the shooting, all three drove off in a waiting car driven by Kamisha Gray and occupied by two other gang members, T.Tu. and another youth. An expert on criminal street gangs testified that he believed each of the four accused minors was a member of the G-3 gang, and that the shooting was in retaliation for the prior incident at the talent show and an attempt to rehabilitate the reputation of the gang by instilling fear in the community.
Because so many juveniles were involved in this case, for clarity we have used initials to identify those against whom wardship petitions were brought and the first names and last initials to identify those juveniles who were not parties to the proceedings. Individuals identified by their full names are not minors.
The juvenile court found that T.Tr. committed conspiracy, first degree murder, two counts of attempted murder, and assault with a deadly weapon. The court also found that he committed these crimes for the benefit of or in association with a criminal street gang. T.Tr. was committed to the DJJ for a maximum of two terms of 25 years to life for the conspiracy and the murder, and additional concurrent terms for the remaining offenses.
T.Tr. contends the court erred by not disclosing the identity of a confidential informant, and that we must strike the gang enhancement because he did not personally use a firearm in commission of the offenses. The trial court properly denied the request to disclose the identity of the informant, but erred in imposing an additional term of confinement under the gang enhancement. T.Tr. also challenges the imposition of various fees and the computation of custody credits. The Attorney General concedes that most of the fees were imposed in error and that the custody credits were miscalculated. With the exception of the restitution order for relocation of the victim’s mother, we agree and shall remand for correction of the judgment as to the sentence, fees, and custody credits. For the reasons discussed in our opinion in In re E.R. (Oct. 21, 2010, A124706) ___Cal.App.4th ___, the finding on the murder count must be reduced to murder in the second degree. In all other respects we shall affirm.
Background
Approximately one month before the shooting, Antoine was in a dance competition at the International School for the Arts (ISA), a high school. During the performance an altercation occurred between “two different crowds.” Antoine’s friend Chris was also present and Antoine saw “somebody else come on in front of him and shake... their hair in front of him. The next thing I know [is] the staff... came in between and was breaking it up.” The person who shook his hair in Chris’s face had dreadlocks.
Alex H. was also present at the ISA talent show and was also at the recreation center on March 16. He testified that while Antoine was dancing at the talent show “[p]eople got on stage and they started shaking their dreads in [Antoine’s] face.” One boy repeated this behavior with Chris, who was standing next to Alex. Alex pushed the boy who did this and the two started arguing. Alex was asked if “shaking your dreads [is] part of a dance, ” and he answered that it was not, but also testified that some of the people shaking their dreadlocks were doing so as part of a dance. Thomas J. was also in the audience at the ISA talent show. He left when the fight broke out.
Chante P. was at the talent show with Antoine, Alex and two other young people. She saw some girls come in through the side door who she described as “loud and disrespectful” to Chante and her friends. They were “walking by us and pushing us and mugging us.” She had previously seen the girls in the Potrero Hill neighborhood. One of the girls made a phone call and T.Tu. (a.k.a. Bad Boy) and some other boys came into the auditorium through the side door. “They said let’s have a... dance battle. And they were dancing on stage.... And somebody pushed another person. And that person got mad. And then they was about to fight. And a security guard that was there said you guys are not going to fight in here. Take that outside.” Everyone left the auditorium. Then “everybody started arguing, ” and Alex, Antoine and another boy followed T.Tr. and T.Tu. up Potrero Hill.
On March 16, Antoine, Antwanisha, and several other youths were standing outside of the Bayview recreation center on Third Street between Revere and Quesada waiting for Antwanisha’s mother. Three boys walked by. Antoine heard a sound “like a firecracker” and Antwanisha fell to the ground. One of his friends grabbed Antoine and they ran. As they were running they heard “bullets hitting on cars and the wall and the street.” Antoine heard “a lot” of shots; some sounded like firecrackers and the others sounded “a little bit louder, sounded like a gun.” Thomas J. was shot in his hip. He saw two boys, each holding a gun.
A witness was sitting in her car at the intersection of Quesada and Third Street on March 16 when she “heard some popping sounds.” She looked to her left and saw an African-American person wearing dark clothing shooting a gun. When he had fired five or six shots, he “went up the street. There was a car sitting there waiting. And [he] got in the car and the car took off.” She reported the license plate number of the car to the police.
Chante was standing in front of the recreation center with Antwanisha when she was killed. “A group of boys walked down the street. And we stopped talking. And put our heads down. And they walked by us.” There were four or five boys in the group. They walked around the corner onto Quesada, arguing. At the corner the boys looked back at the group in front of the recreation center. One of the boys came back around the corner and began shooting. “His gun got jammed. And another boy came around the corner and started shooting.” She recognized the first shooter as “E-Boy” or E. R. and the second shooter as “Bad Boy, ” or T.Tu. She identified a third person in the group as D.B.
Chante later testified that she did not know D.B. and had not seen him that night, and that she had based her testimony that he was present on the fact that “someone told [her] that they thought [D.B.] was there with the shooters.”
Chris C. was at the ISA talent show and a friend of Antwanisha. He was present in front of the recreation center on March 16. He saw a boy with a gun in his hand who also had his hands over his face. The boy said to Chris, “You got five, ” and in response Chris ran.
Kamisha testified that on March 16, she drove T.Tu., T.Tr., D.B., E.R. and a boy named “Smed” to Third Street and Quesada. She turned onto Revere and stopped at the corner because someone in the car said, “There he is.” D.B., T.Tr. and E.R. got out of the car. Kamisha pulled the car forward and parked on Quesada. T.Tr. and E.R. fired shots then got back in the car along with D.B. While E.R. and T.Tr. were shooting, D.B. “was standing there. He wasn’t doing nothing.” As they drove away, T.Tu. opened the door of the car and said to some people, “You see how we do.” The three boys who had gotten out of the car talked about the shooting and said that “somebody should have got hit.” Kamisha drove them to D.B.’s house.
Kamisha was given immunity for her testimony and placed in a witness protection program.
Kamisha left D.B.’s home with T.Tu. They drove to Kamisha’s house, then to Potrero Hill. While they were driving, another car in which there were three people wearing masks pulled alongside them. Kamisha pulled onto the freeway with the other car following behind. On the freeway, someone in the other car shot at them and T.Tu. shot back. When Kamisha pulled off the freeway, she collided with another vehicle, then got out of the car and ran.
A juvenile wardship petition was filed under Welfare and Institutions Code section 602, subdivision (a) charging T.Tr. with conspiracy (Pen. Code, § 182, subd. (a)(1) (count 1), murder (§ 187) (count 2), two counts of attempted murder (§§ 187, 664) (counts 3 and 4), and assault with a firearm (§ 245, subd. (a)(2)) (count 5). The petition alleged that T.Tr. personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), that he was a principle in the commission of the offenses that were committed for the benefit of a gang and in which a firearm was used (§ 12022.53, subd. (e)), and that he committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by the gang (§ 186.22, subd. (b)(1)).
Further statutory references are to the Penal Code unless otherwise specified.
Leonard Broberg, a member of the San Francisco Police Department Gang Task Force, testified as an expert on gang culture in San Francisco. He has been aware of and investigated the “25th Street” gang since 1996. The gang’s territory is the Potrero Hill housing development. G-3 is a subset of the 25th Street gang. Broberg identified a photograph of T.Tr., D.B., and T.Tu. using the G-3 sign.
Broberg opined that 25th Street was a criminal street gang based on his “knowledge of the individuals involved with the gang. Their criminal histories. Their associations. Some of their activities in committing some of the predicate crimes that are enumerated under [section] 186.22. And that some of the 25th Street gang members have pled guilty to being 25th Street gang members.” In reaching his opinion Broberg had reviewed hundreds of police reports involving the gang.
Broberg identified another letter sent to D.B. from “an individual that is trying to keep up on some of the activities in the gang’s area or the gang’s activities. Even while they are not in the area or they are incarcerated. There is [a] reference to G-3.... There [are] also references in there about being ready for the beef. Back in 2006 there were a number of rivalries that were going on, like Potrero Hill and G-3 in particular and some groups in the Fillmore. And when they are talking about beefs they are talking about rivalries.” The letter said, “I need you to bring us back G-3... We should all have cannons.” “Cannons” refers to guns. The letter also said, “ ‘I need you to bring us back G-3, ’... is a reference to an individual that has the power as the leader that could... reestablish the group’s reputation.” Broberg interpreted that statement as in indication that D.B. was “leading the movement or the actions in order to reestablish the reputation of the gang.”The same letter also said, “Gutta run shit, ” which Broberg opined was “a reference to [D.B.] being in charge. ‘Run shit’ basically means that he directs the actions.”
Broberg testified that “[o]ne of the things to remember about gang culture is the fact that fear and respect are interchangeable. In order to be respected, you have to be feared. In order to be feared, you have to resort to acts of violence.” “In order to be a member of the gang, you’d have to have gained their respect. You’ve also had to gain their confidence. And this is done in any number of ways, but most of all it’s by your actions and by showing your loyalty to the gang... either [by] committing acts on behalf of the gang, participating in criminal activities of the gang, or if you’re arrested at various points and you’re not snitching on the gang.” In Broberg’s experience, “gang members aren’t going to commit acts of violence or extremely heinous acts with someone that they don’t trust. And in order to trust you, you pretty much need to be a member of the gang or a really trusted associate and that may be one... seminal act that will get you to cross over from being just a mere associate as to being a member within the gang. Also, committing an act of violence, again, what you’re doing then is you’re establishing your reputation not just within the gang but you’re establishing your reputation outside the gang.... And an individual... in order to be respected within a gang culture, you need to be feared. The more feared you are, the more respected you are. And then the gang benefits because the gang will be more respected because they will be feared. And this is usually accomplished through acts of violence.”
The fact that everyone in the car that day was a gang member or an associate of the gang indicated to Broberg that everyone in the car was supporting one another and participating in the crimes. The fact that three of the people in the car were dropped off, and the car waited for them nearby suggested that the crimes were planned. He testified that gang members commit crimes together “in order to give each other moral support. They’ll commit crimes together, depending on some of the factors where maybe they need to help protect or act as lookouts or serve as an additional person that can shoot or protect the gang.”
Broberg was of the opinion that the crimes committed in this case were for the benefit of a street gang and were done in retaliation for the incident at the talent show. He based that opinion on “the basic interchangeability of fear and respect. Some of the letters that I reviewed during the course of this investigation where they’re talking about the need to reestablish themselves, they need to assert themselves, references to G-3 and the members of G-3... that were not taken seriously.”
Broberg knew about the fight at the ISA talent show from speaking with the school’s principal. Broberg testified that “shaking dreads” in someone’s face is a sign of disrespect. He was aware that E.R. and T.Tu. were present at the talent show, as were the boys who were with Antwanisha in front of the recreation center the night of the shooting—Alex H., Antoine, Chris C., and Thomas J. E.R., T.Tu. and D.B. were the three youths who walked by the recreation center and “made absolutely no attempt to conceal their identity because people recognize[d] them.” That was significant because “as they’re walking by they wanted people to know who they were or where they were from.” “The fact that they’re not worried about people identifying them just tells you the grip that this whole idea has in the community about... not snitching, about not cooperating with the police.... [T]hey weren’t concerned with who saw them. In fact, they wanted people to know that they were there, that they were sending that message of disrespect.”
The recreation center was “a neutral zone. That’s pretty much where kids can hang out and feel fairly safe....” The people who were shot at were not documented gang members. Broberg testified that the statement, “that’s how we do, ” was “a statement saying this is how we answer any forms of disrespect.” “This is... a reference to the fact that they’re willing to resort to violence in order to establish themselves.” Broberg believed that the shooting was committed because the gang needed to reestablish respect after the disrespect that had been shown them at the talent show.
The juvenile court found true the conspiracy (count 1), first degree murder (count 2), attempted murder (counts 3 and 4), and assault (count 5) allegations. The court found true all of the enhancement allegations except that it found not true the allegation that T.Tr. personally used a firearm in commission of the crimes. He was committed to the DJJ for a maximum of two concurrent terms of 25 years to life for the conspiracy and the murder. The court imposed but stayed 25-year-to-life terms for the section 12022.53, subdivision (e) enhancements and imposed but stayed 10-year terms for the gang enhancements. Finally, the court imposed a concurrent two-year term for the assault.
Discussion
Confidential informant
T.Tr. first asks this court to conduct an independent review of the transcript of an in camera hearing at which the juvenile court denied a motion to reveal the identity of a confidential informant.
Before trial, T.Tr. made a motion for disclosure of the identity of a confidential informant. The motion states that a police inspector “advised investigating officers that he had received word from a confidential reliable informant that the individuals actually involved in the shooting were known as E-Boy, Bad Boy and ‘Gutta.’ None of these street names refer to [T.Tr.]” T.Tr. argued, “The informant here is clearly material to the guilt or innocence of young Mr. Tr[.] The informant’s information flatly contradicts any assertion that T[.] shot Ms. Morgan. Blocking the defense from investigating and presenting the possible testimony of the unknown informant prohibits the defense from obtaining and presenting what is clearly exculpatory evidence.” The prosecutor opposed the motion, arguing that the informant did not witness the murder and that his or her information “was second hand information, from the word on the street.... One cannot reasonably infer the CRI was a witness or even instrumental in the arrest of the Minors based on the transfer of hearsay from the streets to the police.”
“[T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing ‘ “ ‘some evidence’ ” ’ on this score.” (People v. Lawley (2002) 27 Cal.4th 102, 159.)
As in Lawley, the parties have requested this court to independently review the transcript of the in camera hearing, and we have done so. The evidence was taken under oath. (See People v. Gooch (1983) 139 Cal.App.3d 342, 345.) Unlike the informants in People v. Coleman (1977) 72 Cal.App.3d 287 and People v. Lee (1985) 164 Cal.App.3d 830, on which T.Tr. relies, the confidential informant in this case was not a percipient witness and could not have given evidence that would tend to exonerate T.Tr. According to the police inspector who testified at the hearing, “this informant told me that... the informant did not see the shooting. And was nowhere near the incident.” The informant received the information through “word of mouth on the streets, more or less.” We are satisfied that there was no reasonable probability that he or she could have provided evidence tending to exonerate T.Tr.
Gang enhancement
T.Tr. next argues that the sentence for the gang enhancement under section 186.22, subdivision (b) must be stricken because the court found that he did not personally discharge a firearm but imposed (though stayed) an additional sentence for being a principal in the commission of the offenses under section 12022.53, subdivision (e).
Section 12022.53, subdivision (e) provides that “the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22 [offense committed for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang]. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
Penal Code section 12022.53, subdivision (e)(2) states: “An enhancement for participation in a criminal street gang... shall not be imposed... in addition to” an enhancement under Penal Code section 12022.53 for firearm use unless the defendant “personally used or personally discharged a firearm in the commission of the offense.” (Italics added.)
As in this case, the defendant in People v. Brookfield (2009) 47 Cal.4th 583, 586 “was convicted of a gang-related crime in the commission of which he did not personally discharge a firearm, but a companion did.” The Supreme Court held that imposition of a sentence enhancement under both sections 186.22 and 12022.53, subdivision (e) was barred. (Id. at pp. 596-597.) The Attorney General acknowledges that the gang enhancement must be stricken under these circumstances.
Restitution
T.Tr. next argues that the juvenile court erred in ordering him to pay restitution to the district attorney’s office in the amount of $5,012.02. The court granted the prosecution’s request for $3,111, the cost of housing Kamisha Gray in a secure location, and $1,901.02 to Malika Crosby, Antwanisha’s mother, for the cost of relocating.
The district attorney’s request for compensation is not in the record, but the trial court specified that $3,111 was being awarded as reimbursement to the district attorney’s office for the cost of housing Kamisha and the total restitution award to the district attorney’s office was $5,012.02. The difference between these amounts is $1,901.02.
“The standard of review of a restitution order is abuse of discretion. ‘A victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘ “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.” ’ ” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
Penal Code section 1202.4, subdivision (k) provides for restitution to a government entity only if it is the direct victim of a crime. “Before 1994, when the Legislature first inserted the direct victim language into section 1202.4, case law had recognized that restitution to the government was proper when it was a victim of a crime, but also that restitution was not proper when a governmental loss resulted from prosecuting a crime.” (People v. Martinez (2005) 36 Cal.4th 384, 393.)
The Attorney General concedes that Kamisha was not a direct victim in this case and thus that the district attorney is not entitled to restitution for the cost of relocating her. The parties do not dispute that Antwanisha’s mother is a victim for the purpose of restitution. (Welf. & Inst. Code, § 730.6, subd. (j)(1) [“For purposes of this section, ‘victim’ shall include: (1) The immediate surviving family of the actual victim.”]. They disagree only as to whether there was evidence to support the order awarding restitution to her.
Section 1202.4, subdivision (f) provides in pertinent part that “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” Subdivision (f)(3)(I) provides for restitution of “[e]xpenses incurred by an adult victim in relocating away from the defendant” and requires that “[e]xpenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.”
Welfare and Institutions Code section 730.6 does not explicitly provide for relocation expenses. However, “ ‘Section 730.6 parallels Penal Code section 1202.4, which governs adult offenders.’ ” (People v. Martinez, supra, 36 Cal.4th at p. 394, fn. 2.)
T.Tr. argues that “there is no evidence from law enforcement that Ms. Crosby had to move for personal safety or as a result of her cooperation with law enforcement (she was not a witness in this case). Nor is there any evidence, from any source, that either T.T[r]. or anyone associated with him ever threatened Ms. Crosby.” However, in determining victim restitution “ ‘ “sentencing judges are given virtually unlimited discretion as to the kind of information they can consider.” ’ ” (People v. Foster (1993) 14 Cal.App.4th 939, 947.) “When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.” (People v. Phu (2009) 179 Cal.App.4th 280, 284.) It is true that no testimony was presented as to the need for Antwanisha’s mother to relocate. However, the prosecutor stated at the restitution hearing that “she was afraid for her life. She was afraid because she was cooperating with the prosecution’s office. She was seeking justice. And it is very well known that in terms of gang violence there can sometimes be retribution. And these expenses were to relocate her because it could be easy to find her, and put her in a safe area given the nature of this case.” This statement may be construed as a representation that Ms. Crosby would have testified to her fear had she been called upon to testify. And the officer who testified as a gang expert amply established that retaliation is part of this gang’s modus operandi. Thus the record provides a reasonable basis for awarding restitution to Ms. Crosby for her relocation expenses.
DNA fee
T.Tr. also argues that the juvenile court improperly imposed a $10 fee pursuant to Government Code section 76104.6, which provides that, “for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses....” Subdivision (a)(3)(A), however, limits the application of the section by providing that “This additional penalty does not apply to the following: (A) Any restitution fine.” The juvenile court imposed “a DNA fee of $10”but did not impose any fines, penalties or forfeitures to which such a fee could apply. The Attorney General acknowledges that imposition of this fine was in error. We agree that it must be stricken.
Custody Credits
The last disposition report that was filed stated that T.Tr. had been in custody since March 28, 2007. At the disposition hearing on July 17, the court awarded him 826 days credit T.Tr. argues and the Attorney General acknowledges that he was entitled to 843 days of credit. The judgment should be amended to provide T.Tr. with an additional 17 days of custody credit.
Confinement period
T.Tr. argues that the judgment should be amended to more accurately reflect his period of confinement. At the disposition hearing the court stated that T.Tr. was committed to the DJJ “until he is 25 years old.” The minute order states that he is committed for 25 years to life, but the commitment order states that “The maximum period of confinement is... Life (till minor turns 25 years old).” Welfare and Institutions Code section 607, subdivision (b) provides that the court “may retain jurisdiction over any person who is found to be a person described in Section 602... until that person attains the age of 25 years if the person was committed to the Department of the Youth Authority.”
While the commitment order makes clear that the commitment extends only until T.Tr. reaches his 25th birthday, the reference in the minute order to a commitment of 25 years to life is misleading. No harm will result in correcting the minute order to more accurately reflect the commitment period.
Finding that the murder was first degree
As in the case of E.R, the court found the murder of Antwanisha was “in the second degree, unless it is required by law in a conspiracy case that the murder be in the first degree” and subsequently entered a finding of first degree murder. For the reasons discussed in In re E.R., supra, ___ Cal.App.4th ___ (A124706) this was error, and the finding on count 2 should be modified to murder in the second degree.
Disposition
The matter is remanded with directions to correct the finding on count 2 from murder in the first degree to murder in the second degree and to modify the disposition order in conformity with this opinion. In all other respects the jurisdiction and disposition orders are affirmed.
We concur: McGuiness, P. J., Siggins, J.