Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Super. Ct. No. DL030628, Ronald P. Kreber, Judge.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent
OPINION
FYBEL, J.
Introduction
F.M. (the Minor) appeals from the dispositional order adjudging him to be a ward of the court under Welfare and Institutions Code sections 602 and 725, subdivision (b). In the dispositional order, the juvenile court found true beyond a reasonable doubt the allegations of an amended wardship petition charging the Minor with street terrorism (Pen. Code, § 186.22, subd. (a)) and conspiracy to commit assault with a deadly weapon (id., § 182, subd. (a)(1)). The juvenile court also found true beyond a reasonable doubt the enhancement to the conspiracy to commit assault with a deadly weapon count that the Minor committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (id., § 186.22, subd. (b)).
The court found the matter to be a felony with a maximum term of nine years eight months, and placed the Minor in the custody of the probation department for commitment to juvenile hall for 365 days, with credit of 169 days for time served.
We conclude the evidence was sufficient to support the true findings, but the juvenile court erred in calculating the maximum term of confinement under Welfare and Institutions Code section 726, subdivision (c). The parties agree the juvenile court did not make the express declaration under Welfare and Institutions Code section 702 whether the offenses would be punished as felonies or misdemeanors in the case of an adult. We therefore affirm the true findings and remand the matter with directions to the juvenile court to make the required declaration under section 702 and, based on that declaration, to modify the dispositional order as necessary.
Facts
We view the evidence in the light most favorable to the dispositional order. (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615.)
In January 2008, the Minor was 13 years old and was an active participant in Fullerton Tokers Town (FTT), a criminal street gang. The primary activities of FTT are robbery and violent crimes. The Minor had been engaging in gang related crimes to earn a reputation within FTT.
In the evening of January 9, 2008, the Minor, Y.G., and two other active FTT gang members (Tony N. and Edgar C.) agreed to drive into the claimed territory of a rival gang called AVLS to “hit up” AVLS members. In a hit up, a gang member or associate asks another person what neighborhood or gang that person is from. If the answer is a rival gang, violence often ensues.
Y.G. drove the car, Tony N. rode in the front passenger seat, and the Minor and Edgar C. rode in the backseat. The Minor had been carrying a knife, but when he saw a police car, he asked Y.G. to put the knife away. She placed the knife in the glove compartment.
While driving in claimed AVLS territory, the Minor and the others in the car saw several people standing at a stop sign ready to cross the street. The Minor yelled he was from FTT, and stepped out of the car to “rush[]” two people standing by the stop sign. He heard a gunshot. He quickly stepped back into the car and pulled Edgar C.’s head down to protect him. It was too late: Edgar C. said he had been shot. Y.G. drove to a hospital, where Edgar C. died.
Discussion
I. Sufficient Evidence Supports the True Findings on the Count for Conspiracy to Commit Assault with a Deadly Weapon.
The elements of the crime of conspiracy are an agreement between two or more people to commit any crime and an overt act by one or more of the parties to the agreement in furtherance of the conspiracy. (Pen. Code, § 182; see People v. Swain (1996) 12 Cal.4th 593, 600.) Conspiracy is a specific intent crime requiring both the specific intent to conspire and the specific intent to commit the offense that is the object of the conspiracy. (People v. Swain, supra, 12 Cal.4th at p. 600.)
Evidence of an express agreement is unnecessary to prove conspiracy. “Evidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
Penal Code section 245, subdivision (a)(1) punishes assault committed by use of a deadly weapon. As used in that code section, a “deadly weapon” means “‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 1029.)
Evidence of the conduct, relationship, and activities of the Minor and the other conspirators supports the inference of a conspiracy to commit assault with a deadly weapon. There is evidence of an express agreement. The Minor was interviewed by the police on February 7, 2008 and the transcript of the interview was received in evidence. In that interview, this colloquy took place:
“[Police interviewer]: Did you guys decide just to go to AVLS to hit some guys up?
“[The Minor]: Yeah.
“[Police interviewer]: That’s all the whole purpose of that was?
“[The Minor]: Yeah.
“[Police interviewer]: And why AVLS at the time?
“[The Minor]: Cause it was the closest.
“[Police interviewer]: You just happened to be there and that’s when you guys decided.
“[The Minor]: Yeah.
“[Police interviewer]: Let’s go... hit some fools up?
“[The Minor]: Uh huh.
“[Police interviewer]: Any reason why you planned on doing that?
“[The Minor]: Nah. Putting in some work[.] [¶]... [¶]
“[Police interviewer]: Okay, now that was a decision made by everybody?
“[The Minor]: Yeah.”
A gang expert for the People explained that in a hit up, a gang member asks someone what gang or neighborhood that person is from. Another gang expert for the People testified that if the answer in a hit up is the name of a rival gang, “what results is... a fight or some type of violence.” The gang expert testified, “putting in work” means “[d]oing gang related crimes to earn your reputation within the gang.”
In furtherance of the conspiracy, the Minor, Y.G., Tony N., and Edgar C. drove into territory claimed by the rival gang, and the Minor stepped out of the car to rush two people standing by the stop sign.
The Minor argues the evidence was insufficient to establish he and the coconspirators agreed to commit assault with the knife. The Minor carried a knife on the day of the assault and brought it into the car. He handed the knife to Y.G. and asked her to place it somewhere once he saw a police car. The People’s gang expert testified that gang members traveling into a rival gang’s claimed territory to do hit ups generally would be expected to be armed. From this evidence, a reasonable inference could be drawn that all the occupants of the car knew of the knife and intended to use it or have it available for the agreed upon hit ups.
The Minor told a police interviewer, “we weren’t going to use the knife because it was still in the little box and when I got off I didn’t have anything on me.” The juvenile court was entitled to believe or disbelieve that statement. Even if believed, that statement is consistent with forming a conspiracy to commit assault with the knife because it can be inferred from the evidence the conspiracy was formed before the Minor saw the police and wanted to hide the knife. As the juvenile court found, the knife remained “readily available” for use though in the glove compartment.
The Minor also argues the evidence was insufficient to establish the knife was a deadly weapon. It is true we do not know enough about the knife to determine whether as a matter of law it qualifies as a dangerous weapon. (See People v. Aguilar, supra, 16 Cal.4th at p. 1029.) But an instrument not inherently deadly may be considered a deadly weapon when it “‘is capable of being used in a “dangerous or deadly” manner’” and an inference may be drawn from the evidence “‘that its possessor intended on a particular occasion to use it as a weapon should the circumstances require.’” (People v. Graham, supra, 71 Cal.2d at p. 328.) “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar, supra, 16 Cal.4th at p. 1029.)
In People v. Graham (1969) 71 Cal.2d 303, 327 328, the California Supreme Court explained: “‘[A] distinction should be made between two classes of “dangerous or deadly weapons.” There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are “dangerous or deadly” to others in the ordinary use for which they are designed, may be said as a matter of law to be “dangerous or deadly weapons.” This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not “dangerous or deadly” to others in the ordinary use for which they are designed, may not be said as a matter of law to be “dangerous or deadly weapons.”’”
The smallest knife, even a pen knife, is at least capable of being used in a deadly manner. It is expected that gang members would arm themselves before going into a rival gang’s claimed territory to do hit ups. The fact the Minor, a gang participant, was carrying a knife and brought it with him in the car traveling into a rival gang’s claimed territory for hit ups thus is itself evidence the knife could be used in a dangerous and deadly manner. When the Minor saw a police car, he asked Y.G. to put the knife away somewhere. Why would the Minor be concerned about the police if the knife was not capable of being a dangerous or deadly weapon?
The Minor relies on this passage from a police interview as establishing the knife was at most a nonfunctioning pocket knife:
“[Police interviewer]: Okay. What was it like a pocket knife? I didn’t see it. You just had it for protection or something (sounds like).
“[The Minor]: Nah... (inaudible) I didn’t even know that it didn’t work. First we were just going to go cruise it....”
This passage is at best ambiguous. We do not know what the Minor said during the inaudible portion. It is unclear what did not work.
Finally, the fact the Minor did not actually use the knife is not inconsistent with a finding of conspiracy to commit assault with a deadly weapon. From the evidence, it reasonably can be inferred the conspiracy was formed and overt acts undertaken before Y.G. placed the knife in the glove compartment.
II. Sufficient Evidence Supports the True Findings on the Count for Street Terrorism.
The juvenile court made a true finding on the allegation of criminal street gang activity under Penal Code section 186.22, subdivision (a). The Minor argues that true finding must be reversed because the only felonious conduct found was the conspiracy to commit assault with a deadly weapon.
“The substantive offense defined in [Penal Code] section 186.22[, subdivision ](a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense defined in section 186.22[, subdivision ](a). The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and the third element is that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’” (People v. Lamas (2007) 42 Cal.4th 516, 523.) To be liable under Penal Code section 186.22, subdivision (a), the person charged must have aided and abetted a separate felony committed by gang members. (In re Jose P. (2003) 106 Cal.App.4th 458, 468.)
We have concluded the evidence was sufficient to support the true finding on the allegation of conspiracy to commit assault with a deadly weapon; therefore, we affirm the true finding on the allegation under Penal Code section 186.22, subdivision (a).
III. The Juvenile Court Erred in Calculating the Maximum Term of Confinement.
When the court sustains criminal violations resulting in an order of wardship and removes the juvenile from the physical custody of a parent or guardian, the dispositional order must specify “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.” (Welf. & Inst. Code, § 726, subd. (c).) Welfare and Institutions Code section 726, subdivision (c) sets the maximum term of confinement in juvenile wardship cases generally. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)
The juvenile court in this case specified the maximum term of imprisonment as nine years eight months, based on four years for the conspiracy allegation (Pen. Code, §§ 182, 245, subd. (a)(1)), five years for the gang enhancement on the conspiracy allegation (id., §§ 186.22, subd. (b)(1)(B), 1192.7, subd. (c)(31)), and eight months for the street terrorism allegation (id., § 186.22, subd. (a)).
Penal Code section 186.22, subdivision (a) sets forth punishment of “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 Minor argues the juvenile court erred under Penal Code section 654, subdivision (a) by adding eight months for the street terrorism allegation because it was based on the same acts as the conspiracy allegation. We agree. “Section 654 prohibits multiple sentences where a single act violates more than one statute, and where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. [Citation.] Under section 654, ‘[i]nsofar as only a single act is charged as the basis for the conviction..., the defendant can be punished only once.’ [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1033.)
The relevant part of Penal Code section 654, subdivision (a) reads: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Under the multiple and independent criminal objective test, “if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
In People v. Vu, the defendant was convicted of conspiracy to commit murder, murder, and street terrorism based on a series of different acts violating more than one statute. (People v. Vu, supra, 143 Cal.App.4th at pp. 1012 1013, 1033.) A panel of this court concluded imposition of sentence on two of three counts had to be stayed under Penal Code section 654 because the defendant’s criminal activities constituted a course of conduct with the single intent and objective of seeking revenge for the slaying of a fellow gang member. (People v. Vu, supra, 143 Cal.App.4th at p. 1034.)
Here, as in People v. Vu, the Minor engaged in a course of criminal conduct with the single objective of promoting the FTT gang by conducting hit ups of rival gang members. The offenses of conspiracy to commit assault with a deadly weapon and street terrorism were part of this indivisible course of conduct. Penal Code section 654 would prohibit imposition of sentence on the street terrorism count because it carries a lesser sentence than conspiracy to commit assault with a deadly weapon. Accordingly, the maximum sentence that could have been imposed on an adult convicted of the same offenses was nine years.
IV. We Remand for the Juvenile Court to Make an Express Declaration Under Welfare and Institutions Section 702.
If the juvenile is found to have committed an offense which in the case of an adult could be punished as a felony or a misdemeanor, Welfare and Institution Code section 702 requires the juvenile court to expressly declare the offense to be a felony or misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)
In the dispositional order, the juvenile court found the “matter to be a felony with maximum term of confinement as 9 years, 8 months.” The Minor argues, however, the juvenile court failed to exercise its discretion to determine whether the offenses were felonies or misdemeanors under Welfare and Institutions Code section 702 because the court’s oral pronouncement did not make that determination. The Attorney General agrees the matter should be remanded to permit the juvenile court to determine whether the offenses are misdemeanors or felonies.
We therefore remand for the juvenile court to make an express declaration orally and in a modified dispositional order whether the offenses would be punished as felonies or misdemeanors in the case of an adult. The juvenile court shall modify, as necessary based on its declaration, the terms of the dispositional order.
Disposition
The true findings are affirmed. The matter is remanded with directions to the juvenile court to make the required declaration under Welfare and Institutions Code section 702 and, based on that declaration, to modify the dispositional order as necessary.
I CONCUR: RYLAARSDAM, ACTING P. J.
MOORE, J., Dissenting.
I must respectfully disagree with my colleagues on the question of whether there was sufficient evidence to support the true finding on the conspiracy charge. The only evidence about the knife comes from the minor himself, in the form of interviews with the police. During those interviews, the minor admitted that a knife had been in the car. There was no evidence, including the minor’s statements, that anyone else in the car knew about the knife’s existence prior to the minor handing it to the individual sitting in the front seat for the purpose of placing it in the glove compartment. Even if the minor himself had intended to use the knife prior to seeing the police car, there was simply no evidence of any agreement with the others in the car to use the knife in the planned “hit up” of AVLS members. The minor cannot commit a conspiracy with himself.
While reasonable inferences can be drawn from the evidence, the inference that the others in the car knew about the knife and had agreed to use it in the “hit up” was not supported by any of the surrounding facts. The totality of those facts only suggested that the individuals in the car intended to hit the rival gang members with fists, not assault them with a single knife shared between four people. “Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.” (People v. Bender (1945) 27 Cal.2d 164, 186.) All that exists here is a suspicion that an agreement to use the knife existed, and that is simply not enough, in my view, to meet the burden of proof with respect to the alleged deadly weapon. Substantial evidence, however, is not any evidence, or a mere scintilla of evidence. To be substantial, evidence must be “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Had the charge been conspiracy to commit assault likely to cause great bodily injury, rather than conspiracy to commit assault with a deadly weapon, I would have readily agreed with my colleagues. Because I cannot concur on the conspiracy charge, however, I believe the street terrorism charge must also fall, as the only underlying felony alleged was the conspiracy.