Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J43073
Bamattre-Manoukian, ACTING P.J.
The minor, F.G., appeals from a juvenile court order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), for a maximum term of confinement of 27 years eight months to life. He contends that the court erred in (1) including in the term of confinement a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C); (2) including a term that should have been stayed under section 654; and (3) failing to exercise its discretion under Welfare and Institutions Code section 731, subdivision (c), to set his maximum term of confinement at less than the adult maximum term. As we find that the court improperly included a 10-year gang enhancement in its calculation of the maximum time of confinement, but find no other error, we will reverse the dispositional order and remand for a new dispositional hearing.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
The district attorney filed a petition under Welfare and Institutions Code section 602 on April 1, 2008, alleging that the minor, then age 16, committed two counts of first degree burglary (§ 459; counts 1 & 2), two counts of misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b); counts 4 & 5), and one count each of misdemeanor receipt of tobacco (§ 308, subd. (b); count 3), misdemeanor battery (§ 242; count 6), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 7). On April 21, 2008, the minor admitted the allegations in counts 1, 6, and 7. All other counts were dismissed with the understanding that the underlying facts would be considered at disposition. The court declared the minor to be a ward of the court and placed him on probation with various terms and conditions, including standard gang conditions.
The district attorney filed a new petition on May 28, 2008, alleging that the minor committed misdemeanor battery (§ 242). On June 10, 2008, the minor admitted the allegations in the petition and the court continued him as a ward of the court.
The district attorney filed a new petition on August 8, 2008, alleging that the minor committed attempted premeditated murder (§§ 664, 187, subd. (a), 1192.7, subd. (c); count 1), and assault with a firearm (§ 245, subd. (a)(2); count 2), and that he actively participated in a criminal street gang (§ 186.22, subd. (a); count 3). The petition further alleged as to counts 1 and 2 that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and as to count 1 that he was armed with a firearm during the commission of the offense (§ 12022, subd. (a)(1)). The petition also included allegations under Welfare and Institutions Code section 777 that previous dispositions had been ineffective in the rehabilitation of the minor and that previously sustained petitions could be used in aggregating the total time of confinement at the time of disposition.
The Jurisdiction Hearing Evidence
On the evening of July 31, 2008, E.V., L.M., the minor, and a fourth boy were “hanging out.” E.V. testified at the hearing that he and the minor are Norteño gang members, and that he (E.V.) was wearing a red belt that day. At some point, the minor and the fourth boy left the group for about 30 minutes. When they came back, the minor said that they were going to do a shooting and he showed the others a gun he had in his backpack. The minor wanted to shoot some “Southerners” while they were walking on Del Monte, until he saw a woman with her young daughter there. The four boys then walked first to Kilbreth Street and then to Elkington Avenue.
E.V. testified he has admitted committing assault with a deadly weapon and gang enhancements as a result of this incident, and that no promises were made to him for his testimony. L.M. testified that he admitted committing attempted murder and that no promises were made regarding his testimony.
They were walking down Elkington Avenue when they saw a girl and a boy, N. L. and N.H. The four boys started following N.L. and N.H. because E.V. thought N.L. and her family were “Southerners.” E.V. and N.L., were in the same class, and N.L. would talk to the “Southerners” in the class but she never talked to any “Northerners.” The four boys called out, “ ‘Do you bang? Norte,’ ” and “ ‘scrap,’ ” and they “threw up the ‘four’ and ‘Norte’ ” with their hands. The minor told E.V. to “jump” N.L. and N.H., meaning “go fight them.” N.L. kept walking, often turning around and telling the boys to leave them alone.
The minor was the only one in the group who had a backpack. The minor took his backpack off his shoulder, held it with one hand, and put his other hand inside it as if he had something in it. N.L. was afraid. She and N.H. hurried to N.L.’s home while glancing back often to see if the group was still following them. When N.L. and N.H. arrived at N.L.’s home, N.L. went inside and asked her older brother Alex to check outside to see if the group was still there. Alex looked outside from an upstairs window and saw four boys walking by. When the minor saw Alex, he turned around and started “throwing a four and shouting gang remarks.” Alex went outside because N.L. said she recognized one of the members of the group.
Alex could not see the four boys at first, so he started walking down the street. When he finally did see the boys across the street from him, all four boys threw gang signs at him and yelled “ ‘Norte’ ” and “ ‘Kilbreth.’ ” The minor shifted his backpack from his back to his front and put his hand inside it. Alex headed back home and saw that N.H. was standing outside. Alex told N.H. to let him know if he saw something. N.H. said “ ‘Watch out and duck.’ ” The minor fired the gun toward Alex but the bullet hit a fence. Both E.V. and L.M. testified at the hearing that the minor was the one who fired the gun. Alex looked back and could see the minor standing with his right arm extended. Although Alex could not see a gun, he saw a flash and heard more gunshots. The minor held the gun and the backpack so that the casings from the bullets fell inside the backpack. Alex ran inside and the four boys ran back toward Kilbreth.
N.L. called the police. Salinas Police Officer Kenneth Ellsworth was dispatched to Elkington Avenue at approximately 8:24 p.m. on July 31, 2008, in response to a report of a shooting. He met with N.L. and Alex, who told him what had happened. Officer Ellsworth found a bullet strike in the fence Alex described. He took N.L. to another block where L.M. and E.V. were being held by other officers, and another officer transported Alex there. N.L. and Alex identified the two as being involved in the incident but said that neither was the shooter.
L.M. and E.V. had been stopped by police on Kilbreth within minutes of the shooting. L.M. and E.V. told the police what had happened and they identified the minor as the shooter. Officer Ellsworth conducted a search of the minor’s father’s residence about two hours after being dispatched to Elkington Avenue. The minor was not home at the time, and Officer Ellsworth, Officer Gabriel Gonzalez, and Officer Ciro Barbosa all testified that the minor’s father said that he did not know where the minor was. No backpack or gang indicia were found during the search.
A few days later, Officer Ellsworth showed N.L. and Alex a photographic lineup. They both identified the photo of the minor as that of the male with the backpack who shot at Alex. In addition, they both identified the minor at the hearing as the one with the backpack who shot at Alex.
Later, while the minor, L.M., and E.V. were all in juvenile hall, the minor told E.V. to take the blame for the shooting. The minor showed E.V. a sharpened toothbrush he had in a sock and said that he was going to “shank” L.M. for ratting on him. The minor told L.M. that he was “on the list,” to be killed for having “ratted on him.”
The parties stipulated that Salinas Police Officer Bryan McKinley was an expert “regarding gangs.” Officer McKinley testified that Norteño street gangs in Salinas associate with the color red, the number 14, and the letter N. They refer to themselves as “Northerners.” Their primary activities are robberies, narcotic sales, shootings, and attempted murders. In August 2006, Enrique Santoro and Mark Rodriguez were convicted of robbery for the benefit of a Norteño gang. In October 2007, Norteño gang member Juan Gregorio Cabrera was convicted of violating section 245, subdivision (a)(2).
After reviewing police reports and talking with the minor’s probation officer, Officer McKinley determined that on May 26, 2006, the minor was arrested for trespassing on the grounds of a middle school. At the time, the minor was wearing a red shirt and had a red bandanna in a pants pocket. On September 23, 2006, the minor was contacted during a traffic stop. At the time, he was with two Norteño gang members, he was wearing a red shirt and red and white Nike shoes, he had a red bandanna in a pants pocket, and he admitted to the officer that he was a Norteño gang member. The minor was arrested on November 8, 2007, for truancy. At the time, the minor had marijuana in his possession and he was wearing red pants and a belt buckle which had the “N” insignia. The minor was arrested on January 18, 2008, along with another Norteño gang member, for battery on school grounds of another student who appeared to be a Sureño associate. At the time, both the minor and his cohort had Norteño gang indicia in their possession. On March 27, 2008, the minor was arrested along with E.V. and another Norteño gang member for residential burglary. The minor violated his probation by wearing a T-shirt with a five-pointed star on the front that is commonly associated with Norteño gang membership. Following that, on July 23, 2008, the minor’s probation officer conducted a probation search of the minor’s residence. There the probation officer found a pair of red and white Nike shoes and a notebook containing gang writing, including the number “14” and the Roman numeral “XIV.”
Officer McKinley further determined that, during the incident at issue on July 31, 2008, the minor and the others with him yelled Norteño gang slogans and challenged the victims to either fight or run. After the minor was taken into custody, juvenile hall staff seized 14 or 15 pages the minor had handwritten that appear to be lyrics to a rap song. The lyrics include multiple references to shootings, shooting enemies, weapons, and the word “kill” in bold letters. Kilbreth is sometimes called “Kill Street.” The lyrics also includes the line, “ ‘Killers putting work in daily,’ ” which refers to gang members gaining status in the gang by showing their willingness to do things for the gang.
Officer McKinley believes that the minor is an active member of a criminal street gang based on the minor’s numerous police contacts while he is associating with Norteño gang members and wearing gang clothing, his past admission of Norteño gang association, and his use of gang slogans during the current offenses. Officer McKinley also believes, based on the facts underlying the current offenses, that the offenses were committed for the benefit of the Norteño criminal street gang.
The minor’s mother testified in the minor’s behalf that the minor spent the afternoon and evening of July 31, 2008, with her at her mother’s home in Soledad. The minor’s paternal grandmother testified that she saw the minor leave with his mother on July 31, 2008, and she saw his mother return him the next morning. The minor’s father testified that he was outside doing yard work after coming home from work on the evening of July 31, 2008, when a neighbor boy told him that the minor had left with the minor’s mother earlier in the day. When officers contacted him later that evening to ask about the minor’s whereabouts and to search his home, he told the officers that the minor was with his mother.
The minor testified in his own behalf that he did not spend the evening of July 31, 2008, with E.V. and L.M. He spent the evening with his mother at his maternal grandmother’s house in Soledad. He learned about the search of his house and the claim that he was involved in a shooting from his maternal grandmother the next day. He did not call the police or his probation officer. The writing seized from juvenile hall was poetry he wrote for a program at the hall, but he was not writing about real events. He does not know N.L. or Alex, but he recognized Alex from school. Alex and a couple of other boys started a fight with the minor when the minor was 15 and Alex was 18. L.M. and E.V. told him to take the blame for the shooting so that they could get out of juvenile hall. He did not threaten either of them.
The Court’s Findings
On December 18, 2008, the court found true the allegations in the petition as to count 1, attempted premeditated murder, with the gang enhancement and personal use of a firearm; count 2, a lesser offense to count 1; and count 3, active participation in a criminal street gang. On January 7, 2009, the court denied the minor’s motion for a new trial, continued the minor as a ward of the court, found the offense in count 1 to be one listed in Welfare and Institutions Code section 707, subdivision (b), and committed the minor to DJJ. In determining the minor’s maximum term of confinement, the court calculated the maximum term for count 1 as 15 years to life plus 1 year for the arming enhancement and 10 years for the gang enhancement; stayed the term on count 2 under section 654; added a consecutive term of eight months, or one-third the middle term of two years, for count 3; added a consecutive term of 16 months, or one-third the middle term of four years, for the prior first degree burglary offense; and added concurrent terms of six months each for the prior misdemeanor battery and drug-paraphernalia offenses; for a total maximum term of confinement of 28 years to life. The court then exercised its discretion under Welfare and Institutions Code section 731, subdivision (c), and set the minor’s maximum term of confinement at 27 years eight months.
DISCUSSION
Count 1
The minor contends that “the 10-year term, pursuant to Penal Code section 186.22, subdivision (b)(1)(C), was incorrectly imposed in addition to the indeterminate 15 years to life sentence proscribed in Penal Code section 186.22, subdivision (b)(5)” on count 1, the attempted murder count. We agree.
Welfare and Institutions Code section 726, subdivision (c), states in pertinent part: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in this section and in section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code,... plus enhancements which must be proven if pled. [¶] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code....”
“[T]he basic principle embodied in [section 726, subdivision (c) is] that the minor’s maximum period of physical confinement is to be determined in a manner analogous to that of the maximum sentence of a similarly situated adult offender.” (In re Bryant R. (2003) 112 Cal.App.4th 1230, 1238, fn. omitted; see also In re Alex N. (2005) 132 Cal.App.4th 18, 26; In re H.D. (2009) 174 Cal.App.4th 768, 777-778.)
“Section 186.22, subdivision (b)(1) provides for an enhancement if a defendant is convicted of a felony committed for the benefit of, at the direction of, or in association with, any criminal street gang (with the specific intent to promote, further, or assist in criminal conduct by gang members). If the felony is a violent felony, the enhancement is an additional 10 years in state prison. (§ 186.22, subd. (b)(1)(C).) However, if the defendant is convicted of a felony punishable by life imprisonment, the enhancement provides that the defendant shall not be paroled until a minimum of 15 years have been served. (§ 186.22, subd. (b)(5).) The determinate term enhancement provided for in subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is proscribed; if the conviction is of a crime for which an indeterminate term of life in prison is proscribed, the limitation upon parole eligibility provided for in subdivision (b)(5) is applicable. If the parole limitation of subdivision (b)(5) is applicable, the 10-year enhancement is not. (People v. Lopez (2005) 34 Cal.4th 1002, 1007 [(Lopez)].)” (People v. Fiu (2008) 165 Cal.App.4th 360, 390 (Fiu).)
The Attorney General contends that Lopez and Fiu “involved adult defendants sentenced to state prison for life. No juvenile case has relied on those cases or applied section 186.22, subdivision (b)(5), to commitments to the DJJ or its predecessor, the Youth Authority, and for good reason—the differences between juvenile dispositions and adult sentencing render them inapplicable.” “First, imposition of a 15-year minimum DJJ term on a juvenile is a legal impossibility because the DJJ has no jurisdiction over a minor younger than the age of 11 (Welf. & Inst. Code, § 733) and loses jurisdiction as soon as the minor attains the age of 25, where the offense is one listed in Welfare and Institutions Code section 707, subdivision (b). (Welf. & Inst. Code, § 607, subd. (b).)” “Second, section 186.22, subdivision (b)(5)’s requirement of a minimum period of imprisonment before parole may be granted also cannot be applied to juveniles because authority over when to grant parole rests exclusively with the DJJ.”
The Attorney General misconstrues Welfare and Institutions Code section 726, subdivision (c). The maximum period of confinement set by the court under the statute “is the ceiling on the amount of time that a minor may be confined in [DJJ].... The [DJJ] retains the power, subject to the applicable rules and regulations, to determine the actual length of confinement at or below the ceiling set by the juvenile court and to determine the conditions of the minor’s confinement.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542, italics added.) We also note that a juvenile court can properly set the maximum term of confinement for a minor under its jurisdiction, no matter the minor’s age, as an indeterminate life term under section 186.22, subdivision (b). (See e.g., In re C.R. (2008) 168 Cal.App.4th 1387, 1390; In re Malcolm M. (2007) 147 Cal.App.4th 157, 159-160.)
In this case, the maximum term of confinement, that is, the ceiling on the amount of time the minor may be confined in DJJ, for commission of the offense alleged in count 1 is 15 years to life, plus time for any applicable pleaded and proved enhancements. (Welf. & Inst. Code, § 726, subd. (c).) The DJJ retains the power to determine the actual length of the minor’s confinement, subject to the applicable rules and regulations. (In re Carlos E., supra, 127 Cal.App.4th at p. 1542.) The section 186.22, subdivision (b)(1)(C) 10-year enhancement does not apply to the minor’s offense. (Fiu, supra, 165 Cal.App.4th at p. 390.) Therefore, the juvenile court erred in including the 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C), when it calculated the minor’s maximum term of confinement. (Fiu, supra, 165 Cal.App.4th at p. 390; In re Alex N., supra, 132 Cal.App.4th at p. 26.) As the court exercised its discretion and imposed a lesser maximum term of confinement under Welfare and Institutions Code section 731, subdivision (c), than the term it calculated using the 10-year enhancement, we will remand the matter so that the court may again exercise its discretion pursuant to Welfare and Institutions Code section 731, subdivision (c).
As we are remanding the matter, we need not and do not address the minor’s contention that the court failed to exercise its discretion under Welfare and Institutions Code section 731, subdivision (c).
Count 3
The minor contends that, in calculating the maximum term of confinement, the juvenile court could not impose the consecutive eight-month term (one-third the middle term of two years) for count 3, the gang participation offense, pursuant to section 654. He argues that his intent and objective under the offenses in counts 1 and 3 were dependent on, and incident to, each other.
Section 186.22, subdivision (a) states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
The Attorney General contends that the intent and objective of the two offenses were independent of each other. “Th[e] evidence shows that [the minor’s] intent to kill was motivated not only by a desire to benefit and promote his gang, but also to kill someone he knew, a person who, it could be inferred, was challenging the youths in response to their verbal assault on N.L. and N.H. a few minutes earlier.”
Section 654, subdivision (a), states in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“ ‘Section 654 is intended to ensure that punishment is commensurate with a defendant’s criminal culpability. [Citations.] It expressly prohibits multiple sentences where a single act violates more than one statute.’ ” (In re Jose P. (2003) 106 Cal.App.4th 458, 468 (Jose P.); see also Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer (1993) 5 Cal.4th 1203, 1211.) “ ‘Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment. [Citation.]’ [Citation.]” (Jose P., supra, 106 Cal.App.4th at p. 469.)
“Section 654 also prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective.” (Jose P., supra, 106 Cal.App.4th at p. 469.) “On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other.” (Ibid.) “ ‘A defendant’s criminal objective is “determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.” [Citation.]’ [Citation.]” (Ibid.)
“Participation in felonious conduct in association with, or for the benefit of a gang is one of the elements necessary to prove the substantive gang crime described by section 186.22(a).” (Jose P., supra, 106 Cal.App.4th at p. 469.) “ ‘Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members....’ [Citation.]” (Id. at pp. 469-470.) The minor presumes that the court relied upon the shooting incident at issue here as the basis for the section 186.22, subdivision (a), liability, and contends that the intent to promote the gang and the intent to kill were not independent, but were dependent on, and incident to, each other.
However, the instant shooting was not the only criminal act upon which the court could have based its finding that the minor had committed the section 186.22, subdivision (a) offense. Officer McKinley testified that in January 2008, the minor was arrested with another Norteño gang member for battery on school grounds, while both the minor and his cohort possessed gang indicia. Officer McKinley further testified that in March 2008, the minor was arrested for residential burglary along with E.V., an admitted Norteño gang member, and another Norteño gang member. Then the minor violated his probation by wearing and possessing gang clothing and paraphernalia. The gang shooting incident at issue occurred in July 2008. Given the minor’s continuous involvement with the Norteños, the shooting incident need not have served as the basis for the court’s finding that he violated section 186.22, subdivision (a). (Jose P., supra, 106 Cal.App.4th at p. 470.)
Even assuming that the shooting was the basis for the minor’s section 186.22, subdivision (a) liability, section 654 does not require that punishment for that offense be stayed. As the appellate court stated in People v. Herrera (1999) 70 Cal.App.4th 1456, at pages 1467-1468 (Herrera), “Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang.... [S]ection 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess ‘two independent, even if simultaneous, objectives[,]’ thereby precluding application of section 654. [Citation.]” (Fns. omitted; Jose P., supra, at pp. 470-471.)
In this case, as in Jose P., and Herrera, the minor’s intent and objective in violating section 186.22, subdivision (a), necessarily must have been participation in the gang itself. The evidence showed that the minor had been actively involved in Norteño gang activity since at least May 2006, when he was arrested for trespassing on school grounds while wearing gang clothing. He has had several police contacts and arrests since that time while wearing and possessing gang clothing and indicia, and while alone or with other Norteño gang members. Therefore, even if the true finding as to the allegation of violating section 186.22, subdivision (a), depended upon the minor’s participation in the shooting, the record supports a finding that the minor harbored the separate intent and objective to participate in the gang during the shooting. (See Jose P., supra, 106 Cal.App.4th at p. 471; Herrera, supra, 70 Cal.App.4th at pp. 1467-1468; compare People v. Vu (2006) 143 Cal.App.4th 1009, 1034 [objective or intent for active participation in street gang was not separate from the objective or intent of committing conspiracy to commit murder].) Therefore, section 654 does not bar punishment for both the gang offense and the attempted murder, and the court did not err by including a separate term for the gang offense in its calculation of the minor’s maximum term of confinement.
DISPOSITION
The amended order of commitment filed February 23, 2009, is reversed, and the matter is remanded to the juvenile court for proceedings consistent with this opinion.
WE CONCUR: MIHARA, J., MCADAMS, J.