Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J05-01577
NEEDHAM, J.
Kenneth T. (Kenneth) appeals from a dispositional order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), after the juvenile court sustained multiple counts of a Welfare and Institutions Code section 602 petition and found true certain enhancement allegations. Kenneth contends: (1) the finding that he committed an assault with a firearm (Pen. Code, § 245, subd. (a)(2)) was not supported by substantial evidence; (2) there was insufficient evidence to support an enhancement for infliction of great bodily injury (§ 12022.7); (3) his punishment for being a minor in possession of a firearm (§ 12101, subd. (a)(1)) must be stayed pursuant to section 654; (4) his constitutional rights were violated because he was shackled during the contested jurisdictional hearing; (5) his maximum term of confinement violates Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham); (6) the conditions of his probation must be stricken because he was committed to DJJ; and (7) the cumulative effect of the purported errors requires reversal.
Except where otherwise indicated, all statutory references are to the Penal Code.
We will modify the judgment such that: the eight-month term imposed on count 7 for possession of a firearm by a minor is stayed pursuant to section 654; and the probation conditions are stricken. As so modified, the judgment will be affirmed.
I. FACTS AND PROCEDURAL HISTORY
A second amended supplemental petition under Welfare and Institutions Code section 602 alleged that Kenneth: possessed cocaine base for sale (Health & Saf. Code, § 11351.5); resisted an executive officer (Pen. Code, § 69); threatened a public officer (Pen. Code, § 71); possessed marijuana for sale (Health & Saf. Code, § 11359); committed assault with a firearm (Pen. Code, § 245, subd. (a)(2)); negligently discharged a firearm (Pen. Code, § 246.3); and possessed a firearm while a minor (Pen. Code, § 12101, subd. (a)). As to the charge of assault with a firearm, the petition alleged that Kenneth inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The petition was amended to allege an additional enhancement on the same count, for personal use of a firearm (Pen. Code, § 12022.5, subd. (a)).
The petition also alleged that Kenneth had prior findings of the following offenses: carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(1)); possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); vehicle theft (Veh. Code, § 10851, subd. (a)); evading a peace officer in a willful disregard for the safety of others (Veh. Code, § 2800.2, subd. (a)); and resisting arrest (Pen. Code, § 148, subd. (a)(1)).
A. Jurisdictional Hearing
At a contested jurisdictional hearing that began on January 19, 2007, the evidence included the following.
Before the hearing, the prosecutor dismissed counts 1 and 4. The juvenile court ultimately found count 3 not true. We therefore do not set forth evidence pertinent to counts 1, 3 or 4.
1. Resisting an Executive Officer (Count 2)
Richmond Police Officer Nathan Lonso testified that he and other officers responded to Kenneth’s residence on Eighth Street in Richmond on August 24, 2006. Kenneth was standing on a landing between two flights of stairs inside the apartment, “very agitated and aggressive.” Kenneth asked the officer, “What the fuck are you looking at?” He then told Officer Castillo: “I know you, you are the punk-ass officer who got knocked out and I’ll knock your ass out, too.” Kenneth also announced: “I got two gun cases on me; I am a monster, I am a monster, and you are going to bleed.”
As Officer Tracy Mollenbrend attempted to locate a runaway in the residence, Kenneth blocked Mollenbrend’s path and bumped the officer’s forehead with the bill of his hat. Kenneth told Officer French: “I’ll slap the shit out of you, I don’t give a fuck.” Mollenbrend got around Kenneth and found the runaway in a bedroom closet. Kenneth tried to prevent Mollenbrend from taking the runaway out of the apartment, by bumping into the officer, cussing, and again bumping the officer’s forehead with the bill of his hat.
2. Firearm Charges (Counts 5-7)
Victim Antonio’s Testimony
Victim Antonio, known as “Pooh,” testified that on the morning of October 25, 2006, he was on his way to school in Richmond with his cousin (or “auntie”) Camilla. Near 10th Street and Pennsylvania Avenue, he saw two youths. One youth was short, the other was tall, and they both wore black: the shorter one wore a black coat turned inside out, and the taller one wore a black hooded sweatshirt and a “fitted cap.”
The taller person in the sweatshirt said, “That’s Pooh,” and pulled out a gun. Antonio turned and ran. He heard gunshots, was hit in his right hand, and slipped and fell to the ground. The person in the sweatshirt ran up to Antonio and, standing over him, continued to shoot “a lot.” Camilla was standing about five feet away, “screaming and crying.” The shooter and his companion then ran away, and someone gave Antonio a ride to the hospital.
Antonio had not seen the face of the shooter, but at the hospital Camilla told him the shooter was “Ken-Ken” from Central Richmond. Antonio knew Ken-Ken to be appellant Kenneth, whom Antonio had known since the seventh grade.
Officer Reina’s Testimony
Around 7:30 a.m. on October 25, 2006, Richmond Police Officer Daniel Reina was dispatched to 7th Street and Pennsylvania in Richmond, where he contacted Camilla about a report of shots fired in the area. Camilla told him she saw two individuals involved in the shooting. The shooter wore a black hooded sweatshirt and blue jeans, and she recognized him as having the nickname “Ken-Ken” and living in the area. The second person was a “lighter-skinned black male . . . about five feet five inches tall, medium build, about 16 years old,” wearing blue jeans and a silver or black jacket turned inside out. The shooter—Ken-Ken—first fired about six shots from a distance of around 20 feet from Antonio, and then fired more shots from about five feet away. The shooter ran away southbound on 9th Street. Camilla directed Officer Reina to the sidewalk outside 911 Pennsylvania Avenue, where he observed “droplets” of blood and several shell casings. Camilla told Reina that only one person—Kenneth—fired a gun that morning.
Officer Lonso’s Testimony
Around 7:31 a.m. on October 25, 2006, Officer Lonso received a dispatch referring to “Ken-Ken.” He recognized Ken-Ken to be appellant Kenneth, who resided at 531 8th Street, about four blocks from the scene of the shooting at 911 Pennsylvania. Around 8:00 a.m., Lonso went to Kenneth’s residence and learned from his father that Kenneth was at El Cerrito High School. Lonso arrived at the school about ten minutes later and contacted Kenneth, who was wearing a black hooded sweatshirt and blue jeans—matching Camilla’s description of the shooter.
Officer Lonso arrested Kenneth and administered Miranda warnings from a printed card. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) Kenneth stated that he understood his rights and agreed to provide a statement. He told Officer Lonso that he called his probation officer around 7:15 a.m. to report that he was leaving for school. He then left his residence and walked south on 8th Street to the bus stop at 6th Street and MacDonald. Although he had heard about the shooting, Kenneth claimed he was not in the area of 9th Street and Pennsylvania, and he did not admit to firing a gun.
Officer Simmons’ Testimony
Around 7:30 a.m. on October 25, 2006, Richmond Police Officer Thor Simmons went to Kaiser Hospital on a report that the hospital had admitted a gunshot victim. He contacted Antonio, who was on a gurney in the emergency room with a bandaged right hand. The officer later went to the 900 block of Pennsylvania Avenue, where he recovered .40 caliber semi-automatic casings and observed dried blood.
Officer Mandell’s Testimony
On October 25, 2006, after speaking with Officer Reina, Richmond Police Officer Aaron Mandell created a photographic lineup of six persons, including Kenneth. Mandell met Camilla at her residence in Richmond and gave her a standard admonishment regarding photographic lineups. Within about 10 seconds, Camilla identified No. 4 (Kenneth) as the shooter. Mandell gave her a “hypothetical number scale, 1 being not very sure and then the number 10 being absolutely positive.” On this scale, Camilla rated her certainty as a “ten.” In accord with Mandell’s instructions, she circled the photograph and initialed it. Mandell showed Camilla a second lineup, but she did not identify anyone as being involved in the shooting. Camilla confirmed to the officer that Kenneth was the only person who fired a gun that morning.
Camilla’s Testimony
Camilla was less forthcoming at the jurisdictional hearing. She testified that she walked to the bus stop at 9th Street and Pennsylvania Avenue with her cousin Antonio on October 25, 2006. Someone told Antonio, “Pooh, my nigger, what you doin’ over here?” Antonio replied, “Ken-Ken, I didn’t do nothing.” Antonio pulled his jacket over his head and started to run; he called out Camilla’s name or said “run,” and she ran down 9th Street. When she looked back, she saw Antonio fall to the ground. After she got to 7th Street, Antonio came running, holding his arm. A man in a car stopped and said, “Come, get in the car with me.”
Despite this testimony and her acknowledgement that Antonio was shot that morning, Camilla insisted at the jurisdictional hearing that she “didn’t see nothing.” She did not remember anything about the incident, she knew “nothing” about it, and she did not want to testify at the hearing. She claimed not to have even heard the name “Ken-Ken” until Antonio said it on the day of the shooting. Although she had spoken to the police, Camilla denied that she identified the shooter as “Ken-Ken,” described the shooter as wearing a black hooded sweatshirt and blue jeans, or described the person with him. Nor did she remember telling the police that Ken-Ken pulled out a gun and fired shots from 20 feet away, or that he ran up to Antonio on the ground and fired two more shots from five feet away.
Camilla recalled that a detective went to her house a few days after the shooting and showed her a photographic lineup. By Camilla’s account, the officer asked her, “Do this look like any one of them?” Camilla responded, “Man, I don’t know because I didn’t see the boy’s face.” The officer pointed to one of the photographs and said, “Do you think that’s him?” or “Is this the boy?” Camilla said, “I don’t know.” The officer then circled the photograph and asked her to sign her name. She said, “I guess.” Camilla denied telling the officer, “No. 4, that’s him. I am absolutely positive.” She claimed not to remember the officer asking how positive she was on a scale of one to ten. She also denied viewing a second lineup.
Latula’s Testimony
Cassandra Latula, a home supervision probation officer, identified a report known as a “JEM” (juvenile electronic monitor), which logged the movements of juvenile probationers on home supervision, such as Kenneth at the time of the offense. As Latula explained, ankle monitors worn by the juveniles transmit data regarding their location at certain intervals, particularly when they leave home and when they return. The transmissions are received and stored by the probation department’s mainframe computer. A log generated from the probation department’s computer in the regular course of business included information relating to Kenneth’s activities on October 25, 2006. The log indicated that Kenneth left his residence at 7:34 a.m. on October 25.
There was, however, a problem “systematic to the JEM system” in October 2006, such that “all of the JEM units” stated a time that was 20 minutes later than the event actually occurred. Accordingly, Latula testified, the JEM printout stating that Kenneth left home at 7:34 a.m. was incorrect, and he actually left his home at 7:14 a.m. on October 25, 2006.
The problem was brought to Latula’s attention around November 4 or 5, 2006. Latula, whose responsibilities included maintaining the accuracy of the JEM logs, brought the discrepancy to the attention of the Sentinel Company, which was responsible for receiving the transmissions and passing on the information to the probation department. The company representative instructed Latula how to change the clock on the mainframe to the correct time, and she made this change on November 6, 2006.
3. Defense Case
The parties stipulated that “Mr. Turner remembers October 26th, [sic] 2006, because that’s the date Kenneth [] was taken from school by the police. Turner stated he arrived at the El Cerrito High School for his shift as custodian at 8:00 a.m. on that date. Frederick Turner said that he remembered seeing [Kenneth] arrive at the school through the front gate just a few minutes after his arrival. Turner estimated the time of seeing [Kenneth] to be between 8:05 and 8:10 a.m. Turner said he knows [Kenneth] and he stated they acknowledged each other as [Kenneth] walked on his way into the school.”
B. Rulings of the Juvenile Court
On January 30, 2007, the court sustained count 2 (resisting an executive officer), count 5 (assault with a firearm), count 6 (negligent discharge of a firearm), and count 7 (possession of a firearm while a minor), and found true the great bodily injury enhancement and personal use of a firearm enhancement as to count 5. The court found count 3 (threatening a public officer) not true.
On March 20, 2007, the court continued Kenneth as a ward of the court and committed him to the DJJ for a maximum term of 21 years, calculated as follows: four years for the assault with a firearm; three years for the great bodily injury enhancement; 10 years for the personal use enhancement; eight months for possession of a firearm by a minor; eight months for the resisting charge; plus terms for his prior offenses.
This appeal followed.
II. DISCUSSION
Kenneth contends: (1) there was insufficient evidence he committed an assault with a firearm; (2) there was insufficient evidence to support the great bodily injury enhancement; (3) the punishment for being a minor in possession of a firearm (count 7) must be stayed pursuant to section 654, because of his punishment for assault with a firearm (count 5); (4) his constitutional rights to a fair hearing and to the presumption of innocence were violated when he was shackled throughout the hearing; (5) the juvenile court erred in finding his maximum term of confinement to be 21 years under Cunningham; (6) his commitment to the DJJ requires that his probation conditions be stricken; and (7) the cumulative effect of the purported errors requires reversal. We address each in turn.
A. Substantial Evidence Supporting Finding of Assault With Firearm
Kenneth first argues that the evidence was insufficient to support the finding that he committed assault with a firearm (§ 245, subd. (a)(2)). Specifically, he urges that the court erred in admitting evidence and that the evidence was insufficient to show that he was the shooter.
1. Substantial Evidence
In our review for substantial evidence, we determine whether a rational trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Without disputing that the elements of assault with a firearm were met, Kenneth contends the prosecution did not prove that he was the one who shot Antonio.
Identification of the defendant by a single eye-witness may be sufficient to prove the defendant’s identity as the perpetrator of the crime. (People v. Boyer (2006) 38 Cal.4th 412, 480.) A testifying witness’s out-of-court identification can, by itself, be sufficient evidence to establish the perpetrator’s identity, even if the witness does not confirm the identification in court. (Ibid.; People v. Cuevas (1995) 12 Cal.4th 252, 257, 271-272 [sufficiency of out-of-court identification, recanted by witness, should be determined under the substantial evidence test, overruling People v. Gould (1960) 54 Cal.2d 621, 631].) Indeed, an out-of-court identification generally has greater probative value than an in-court identification. (Boyer, supra, 38 Cal.4th at p. 480.)
Substantial evidence supports the juvenile court’s finding that Kenneth was the shooter. The court found that Camilla’s pretrial identification of Kenneth as the perpetrator was credible and was corroborated by the fact that she identified the shooter by his nickname, “Ken-Ken.” Indeed, Camilla selected Kenneth’s photograph from the lineup in less than 10 seconds and was sure that he was the perpetrator, estimating her certainty as a 10 on a scale of 1-10. She told Detective Mandell, as well as Officer Reina, that Kenneth was the only shooter. Furthermore, as the court noted, her identification was corroborated by Antonio, who testified that Camilla also told him the shooter was Ken-Ken, and by Officer Lonso, who testified that he found Kenneth on the morning of the shooting dressed as Camilla had described. A reasonable trier of fact could have concluded that Camilla was telling the truth when she made the out-of-court identification.
Kenneth’s reliance on In re Eugene M. (1976) 55 Cal.App.3d 650 is misplaced. In Eugene M., the witness initially told police he had no personal knowledge of a shooting, and only after finding himself “under threat of prosecution” did he identify the defendant. (Id. at pp. 653, 659.) At trial, the witness said his identification of the defendant was untrue, and that he identified the defendant because the police asked him to and because they threatened to charge him with murder if he refused. (Id. at pp. 653-656.) The appellate court held that the witness’s out-of-court identification was insufficient to sustain the finding that the offenses were committed. (Id. at p. 659.) In the matter before us, by contrast, there was no evidence that Camilla’s identification of Ken-Ken was the product of police threats. Furthermore, she repeated the identification to another officer and to her cousin, victim Antonio. From this evidence a trier of fact could reasonably conclude that her identification of Ken-Ken as the shooter was truthful.
2. Camilla’s Statement to Antonio that the Shooter Was “Ken-Ken”
In his opening brief, Kenneth claims the court erred in admitting Antonio’s testimony that Camilla told him the shooter was “Ken-Ken,” because the statement was inadmissible hearsay. He is incorrect.
Antonio’s statement was admissible as a prior inconsistent statement. (Evid. Code, § 1235). At the hearing, Camilla testified that she did not know anything about the incident, did not see the shooter or identify him as “Ken-Ken,” and did not say that “Ken-Ken” pulled out a gun and started to shoot. Her earlier statement to Antonio—that the shooter was “Ken-Ken”—therefore fell within the hearsay exception for prior inconsistent statements. (See People v. Avila (2006) 38 Cal.4th 491, 579.) Indeed, Kenneth acknowledges in his reply brief that the statement was “arguably admissible” as a prior inconsistent statement.
3. Latula’s Testimony Regarding the JEM Printout
Kenneth next contends the court erred in admitting Latula’s testimony that Kenneth left his residence at 7:14 a.m. on the day of the shooting, rather than at 7:34 a.m. as stated in the JEM printout. This discrepancy is arguably significant, since the shooting occurred around 7:30 a.m. Although Latula testified that she learned in November 2006 that the JEM times were 20 minutes late, Kenneth maintains there was no foundation for the proposition that the 20-minute discrepancy existed in the JEM transmissions generally, or as to Kenneth’s device particularly, on the day of the shooting in October 2006.
We disagree. When asked if there was a problem “systematic to the JEM system” in October 2006, Latula replied that “all of the JEM units” stated a time 20 minutes later than the event actually occurred. (Italics added.) She was in a position to know this information, even if she had not learned of the problem until early November, because her job responsibilities included maintaining the accuracy of the JEM logs. Because the problem was system-wide, it would have affected transmissions from all monitors, including Kenneth’s. The court did not abuse its discretion in admitting Latula’s testimony.
Kenneth also objects to Latula’s testimony as to how the Sentinel Company advised her to fix the problem, which was admitted not for its truth but for the effect it had on Latula (i.e., what she did to fix it, or why she attempted to fix it that way). Kenneth further contends Latula’s testimony that she fixed the error later in November was inadmissible, because there was no foundation as to how she knew the problem was actually fixed. However, neither argument has merit in the context of this appeal: the material point here is not how or even whether Latula fixed the system in November, but simply the fact that the transmission times for October 25 were 20 minutes fast. Whether the problem was fixed later or not, a time of 7:34, less 20 minutes, is 7:14.
In any event, any error in admitting Latula’s testimony on this point was harmless, given the other evidence in the case. According to Officer Lonso’s testimony, Kenneth said he telephoned his probation officer around 7:15 a.m. to report he was leaving for school and then left his residence after hanging up the phone. Thus, even without Latula’s testimony, it could be inferred from Kenneth’s statement that he left his home around 7:15, about 15 minutes before the shooting. Indeed, the court relied on Kenneth’s statement as well as Latula’s testimony in reaching this conclusion: “And we know from his testimony as well—or from his statement to the police as well as the JEM supervisor, or whatever her job was, that Kenneth was not at home at the time of the shooting and had left home around 7:15.” (Italics added.) Kenneth fails to demonstrate reversible error.
4. Kenneth’s Statement to Officer Lonso
At trial, Officer Lonso testified that he read Kenneth his Miranda rights according to a card provided by the district attorney, and that Kenneth indicated he wanted to give a statement. Defense counsel objected on Miranda grounds. The court asked, “You want him to go through the whole thing?” Defense counsel replied, “Yep.”
Officer Lonso then testified that he read Kenneth every one of his Miranda rights from the preprinted card and that Kenneth never indicated he did not want to give a statement. Lonso also testified that he asked Kenneth directly if he wanted to give a statement, and Kenneth freely provided one. When the prosecutor asked the officer what Kenneth said, defense counsel again objected on Miranda grounds; the court overruled his objection.
Officer Lonso proceeded to testify that Kenneth said he called his probation officer around 7:15 a.m. on the day of the shooting. Defense counsel objected yet again, this time on “Miranda grounds” and “voluntariness,” and asked that Officer Lonso’s testimony be stricken. The court inquired, “Do you want to voir dire right now on the Miranda ground first? You want to do that out of order?” Defense counsel responded, “It’s their burden to establish compliance with Miranda. I don’t believe they’ve met—if it’s coming in, they’ve met it, but—” The court asked, “So the answer ’s no?” Defense counsel responded, “The answer is no.” The court allowed the prosecutor to proceed.
Officer Lonso continued to testify regarding Kenneth’s statement, including that after calling his probation officer at 7:15 a.m., Kenneth hung up the phone and left for school. Defense counsel cross-examined the officer, although not on the substance of Kenneth’s statement. After a lunch break, the court allowed the prosecutor on redirect to reopen on the Miranda issue. This time Officer Lonso had in his possession the Miranda card, which he read into the record as he had allegedly read it to Kenneth, asserting that Kenneth’s responses indicated that he understood each right.
Kenneth now contends the court did not adequately rule on his counsel’s objections based on Miranda and voluntariness. Although the court overruled one objection, it did not expressly rule on his other two objections, and instead merely allowed Officer Lonso’s testimony to proceed. Kenneth contends this was insufficient because the court’s admission of evidence does not mean it actually ruled the statement was voluntary. (See Marcus W. v. Superior Court (2002) 98 Cal.App.4th 36, 46 (Marcus W.).)
Kenneth’s reliance on Marcus W. is misplaced. In Marcus W., the juvenile court held a hearing to determine whether a minor was fit to be handled by the juvenile justice system rather than the criminal courts. (Marcus W., supra, 98 Cal.App.4th at pp. 42-44.) The prosecutor introduced evidence that the minor had confessed his involvement in a murder, which would trigger a presumption of unfitness for juvenile court. (Id. at p. 42.) The minor objected to this evidence and moved to exclude his statements, on the grounds they violated Miranda and were involuntary. (Id. at p. 43.) The juvenile court solicited briefing on the issue of whether the minor could challenge the statements at a fitness hearing; the prosecutor argued that he could not. (Id. at pp. 44, 46.) The juvenile court found that the minor waived his Miranda rights, did not rule whether the minor’s statements were voluntary, and found based on those statements that the minor was unfit for juvenile court. (Id. at p. 46.) The court of appeal reversed, holding that the juvenile court had erroneously failed to determine if the minor’s statements to the police were involuntary. (Id. at p. 45.) It could not be inferred from the juvenile court’s admission of the statements that it ruled the statements were voluntary, the appellate court opined, because “[t]he conclusion that a confession is voluntary “ ‘must appear from the record with unmistakable clarity’ ” and “[a]t most, [the] record suggests the court’s conclusion that a motion to exclude the statements as involuntary and coerced did not lie.” (Id. at p. 46, citation and footnote omitted.)
Thus, in Marcus W. the record suggested that the juvenile court believed the petitioner had no right to challenge the voluntariness of his statements at a fitness hearing, and it did not consider the minor’s objections. Here, by contrast, the record demonstrates that the court did address Kenneth’s Miranda and voluntariness objections, and concluded they were meritless. Marcus W. is therefore inapposite and unhelpful to our analysis.
In any event, the alleged error was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 493-510.) The record clearly establishes that Kenneth understood and waived his Miranda rights and that his statements were voluntary.
Kenneth fails to establish reversible error. In the final analysis, substantial admissible evidence supports the juvenile court’s finding that Kenneth committed an assault with a firearm.
B. Substantial Evidence of Great Bodily Injury
In addition to finding that Kenneth committed an assault with a firearm, the juvenile court imposed a three-year enhancement for the infliction of great bodily injury. (§ 12022.7, subd. (a).) Kenneth contends the evidence was insufficient to support the finding of great bodily injury, because Antonio merely suffered a gunshot wound to his hand. We disagree.
Section 12022.7, subdivision (a), reads: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”
For purposes of section 12022.7, great bodily injury means “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) This enhancement requires proof of a substantial injury beyond what is inherent in the offense itself. (People v. Escobar (1992) 3 Cal.4th 740, 746-747, 750 [bruises, abrasions, injury to the neck and soreness in vaginal area of such severity that it significantly impaired rape victim’s ability to walk]; People v. Le (2006) 137 Cal.App.4th 54, 57-59 [§ 12022.7 enhancement could be imposed on count alleging assault with a firearm, where bullet went through the victim’s left leg, into the right inner thigh, and lodged in the right outer thigh, rendering the victim unable to work for a week and unable to walk without a limp for seven weeks].)
Respondent points to evidence that Kenneth pulled out a gun and Antonio ran, heard gunshots, and was struck in the right hand. In addition, bullet casings were found at the scene of the shooting, and when Officer Simmons went to the hospital on a report of a “gunshot victim,” he observed a bandage on Antonio’s hand. That evidence is indeed sufficient to establish that Kenneth shot Antonio in the hand. The question, however, is whether Antonio’s gunshot wound to his hand was significant and substantial beyond what would be inherent in the offense of assault with a firearm.
Assault with a firearm is an assault, defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (§ 240), “with a firearm.” (§ 245, subd. (a)(2).) Thus the offense does not require that the victim actually be struck by a bullet, or even that the firearm be fired. The fact that Antonio was struck by a bullet is therefore an injury beyond what is inherent in the offense. The juvenile court did not err in imposing the enhancement under section 12022.7, subdivision (a).
C. Stay of Eight-Month Term on Count 7
Kenneth contends the eight-month term on count 7 (possession of a firearm by a minor) should have been stayed pursuant to section 654, because his confinement time included four years on count 5 (assault with a firearm). Respondent concedes there is no evidence that Kenneth possessed the firearm for any purpose other than to shoot Antonio, and the eight-month term must be stayed. In light of respondent’s concession, we will so order.
D. Shackling of Kenneth During the Hearing
Next, Kenneth contends the court erred by ordering him to be shackled throughout the jurisdictional hearing without a sufficient showing. We conclude that any error in this regard was harmless.
The use of physical restraints on a minor during a jurisdictional hearing in a juvenile delinquency proceeding is improper absent some showing of necessity. (In re Deshaun M. (2007) 148 Cal.App.4th 1384, 1386-1387 (Deshaun M.).) Although the required showing may be less than what would be necessary in adult criminal proceedings, even in juvenile court “[a] court must not . . . have a general policy of shackling all defendants.” (Id. at pp. 1387; see Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1359 [decision to shackle minor in juvenile delinquency court must be based on the nonconforming conduct and behavior of that individual minor].)
Here, the court overruled defense counsel’s objection to Kenneth’s shackling without making a finding of necessity specific to Kenneth. Instead, the court expressed concerns based on its experience with other minors: “I’m going to have him shackled because many minors run and have run from here and the other courtrooms . . . . And he can’t be closer to the witness because it can be intimidating to the witness, and it’s awkward to have—just the way the courtroom is configured, he cannot be on the other side. He needs to be over here when we’re having a contest. So I’ll have him remain shackled.” Respondent concedes the inference that the court invoked a general policy of shackling of all juveniles.
The purported error, however, was harmless: as we discuss next, beyond a reasonable doubt the use of physical restraints did not contribute to the court’s determination at the jurisdictional hearing. (See Deshaun M., supra, 148 Cal.App.4th at pp. 1387-1388 [court’s shackling of juvenile at jurisdictional hearing without any finding of necessity was harmless where there was no showing of prejudice to the presentation of the minor’s case or that the restraints were visible to witnesses].)
There is no claim or evidence that the shackles hindered Kenneth in the presentation of his defense. The only prejudice Kenneth asserts is that the shackling reminded witnesses and the judge of Kenneth’s alleged dangerousness. In this regard, he argues: “[T]he juvenile court assumed appellant represented a flight risk and a possible danger to the court. This speculative fear, with no evidence of violence, danger or other nonconforming conduct by appellant while in custody or in the courtroom on this matter prejudiced appellant because it provided a highly visible reminder of appellant’s alleged danger for the witnesses testifying against appellant and for the court to contemplate while determining the truth of the assault and resisting allegations charged herein. Given the insufficiency of the evidence in this case, the shackling of appellant affected his constitutional right to a fair hearing and to a presumption of innocence in the eyes of the court.”
Kenneth’s argument is unpersuasive. As to the effect on witnesses, there is no evidence they could actually see the shackles. Even if they could, any suggestion of Kenneth’s dangerousness could well reduce, rather than increase, their willingness to testify against him. Indeed, at the hearing Camilla recanted her out-of-court identification of Kenneth and testified that she did not see the shooting or the shooter’s face. Although Antonio recounted how Camilla told him the shooter was Ken-Ken, he too testified that he did not see the shooter’s face. There is no indication that the shackling had any prejudicial effect on the witnesses.
As to the effect on the trier of fact, we are confident the juvenile court judge was capable of weighing the evidence fairly without being distracted or prejudiced by Kenneth’s restraints. (See, e.g., Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 537.) Indeed, while the court sustained some of the counts against Kenneth, it also found that the prosecutor had not proved the offense of threatening a public officer.
Moreover, Kenneth’s claim of prejudice is difficult to fathom. If, as Kenneth argues, the judge shackled Kenneth because of her fears of what Kenneth might do, we fail to see how unshackling Kenneth would have assuaged her fear or done much to negate her purportedly prejudicial view of Kenneth’s dangerousness. Removing the shackles thus would not have removed the prejudice Kenneth now alleges—a prejudice that lacks support in the record, was not alleged at the hearing, and is not reflected in the court’s rulings.
Kenneth has failed to establish that the shackling deprived him of a fair trial, impinged upon the presumption of innocence, or otherwise compels reversal.
E. Cunningham
Welfare and Institutions Code section 726 requires the juvenile court to determine the minor’s theoretical maximum term of confinement time, based on the maximum term of imprisonment that could be imposed on an adult convicted of the same offenses. (Welfare & Inst. Code, § 726, subd. (c).) In calculating Kenneth’s maximum term of 21 years, the court used the four-year upper term for assault with a firearm. (§ 245, subd. (a)(2).)
Kenneth contends the juvenile court erred by using the upper term, without proof or admission of any aggravating factor that would justify imposition of the upper term for an adult offender. Relying on Cunningham, supra, 127 S.Ct. 856, he argues that the court violated his right to a jury determination, or at least his right to proof beyond a reasonable doubt, in regard to any such aggravating factor.
As Kenneth acknowledges, however, California courts in two different appellate districts have held that Cunningham does not apply to juvenile delinquency proceedings. (In re Christian G. (2007) 153 Cal.App.4th 708, 714-716 (Christian G.); In re Alex U. (2007) 158 Cal.App.4th 259, 263-266 (Alex U.).) The courts reached this conclusion for a number of reasons: (1) there is no right to a jury trial in juvenile proceedings (see In re Javier A. (1984) 159 Cal.App.3d 913, 949-956); (2) a minor should not be able to claim rights attendant to adult sentencing proceedings, while also claiming the benefits of juvenile proceedings; (3) the adult sentencing law provides a fixed term designed to punish, while the juvenile justice system provides for indeterminate terms designed to rehabilitate; and (4) calculation of the maximum term of confinement under Welfare and Institutions Code section 731, subdivision (b), looks to the longest term set forth in the statute for the offense, without regard to the precept that a middle term must be imposed absent mitigating or aggravating circumstances. (Christian G., supra, 153 Cal.App.4th at pp. 713-715; Alex U., supra, 158 Cal.App.4th at pp. 264-266.) In addition, while the proof beyond a reasonable doubt standard may apply in adult criminal proceedings even without a jury, due process does not require the use of the standard in calculating the theoretical maximum term of confinement at the dispositional phase of a juvenile proceeding. (Alex U., at p. 266.)
In light of Christian G. and Alex U., Cunningham does not apply here. But even if it did, we note that Kenneth had five prior juvenile offenses. An upper term of sentence may be imposed where a “defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (Rule 4.421(b)(2). Italics added.) Although the juvenile court did not expressly rely on Kenneth’s history of prior offenses in setting the maximum term of confinement, it noted in determining Kenneth’s placement that it considered “Kenneth’s prior delinquencies history” and the fact that Kenneth’s “behavior has been escalating and getting worse.” Kenneth’s arrest record, attached to the probation department’s report, described a number of sustained petitions. The report noted as well that Kenneth had previously been tried on probation and failed to reform. In any event, whether the court expressly considered Kenneth’s recidivism or not, the fact remains that his recidivism justified the imposition of an upper term. (See People v. Stuart (2008) 159 Cal.App.4th 312, 314.)
Kenneth fails to establish error in the calculation of his maximum term of confinement.
F. Probation Conditions After Commitment to DJJ
In accord with the recommendations of the probation department, the juvenile court committed Kenneth to the DJJ for a theoretical maximum period of confinement of 21 years. The court then adopted “the other recommendations [of the probation department report] and [made] them findings and orders of the court, modifying [recommendation number] 12 so that it shows that Kenneth can’t have or possess weapons until the age of 30, can’t have any—and then the [DJJ] will provide the remaining conditions.” Before this modification, recommendation number 12 proposed simply that Kenneth “not use/possess weapons.” Included in the recommendations accepted by the court were other terms and conditions of probation, including the standard conditions of probation and a search condition.
Kenneth contends that, because he was committed to the DJJ, the probation conditions imposed in the case must be stricken. (See In re Allen N. (2000) 84 Cal.App.4th 513 (Allen N.).) We agree.
In Allen N., a minor was committed to the California Youth Authority (CYA) for a maximum confinement period of 8 years and 10 months. The juvenile court then imposed probationary conditions precluding him from contact with gang members and certain other persons, requiring counseling, and precluding him from wearing or displaying gang-related items. (Allen N., supra, 84 Cal.App.4th at pp. 514-515.) The appellate court ruled: “the juvenile court’s imposition of discretionary conditions of probation constitutes an attempt to regulate or supervise the minor’s rehabilitation, a function solely in the hands of CYA after the minor’s commitment. Nor is it of any import, as suggested by the People, that similar parole conditions may be imposed by CYA or that there is not yet a conflict between the conditions imposed by the court and CYA. Simply put, the imposition of probationary conditions constitutes an impermissible attempt by the juvenile court to be a secondary body governing the minor’s rehabilitation.” (Id. at p. 516, italics added.)
Respondent objects to the striking of just one of the conditions—that Kenneth not possess a weapon until the age of 30—because it was not a “discretionary condition[] of probation” as referenced in Allen N. (84 Cal.App.4th at p. 516.) Rather, respondent urges, this probation condition was mandatory, because Kenneth’s possession of a firearm would constitute a criminal offense under section 12021, subdivision (e).
Section 12021, subdivision (e) provides in part: “Any person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in paragraph (1) of subdivision (c), or any offense described in subdivision (a) of Section 12025, subdivision (a) of Section 12031, or subdivision (a) of Section 12034, and (2) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, any offense enumerated in paragraph (1) of subdivision (c), or any offense described in subdivision (a) of Section 12025, subdivision (a) or Section 12031, or subdivision (a) of Section 12034, shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years.”
Respondent’s argument is unconvincing. Although Allen N. does employ the phrase, “discretionary conditions of probation,” its holding refers to “probationary conditions” generally, and by its terms applies to any attempt to regulate the rehabilitation of a minor committed to DJJ. (Allen N., supra, 84 Cal.App.4th at p. 516.) Furthermore, respondent fails to establish that precluding Kenneth from owning or possessing a firearm is a mandatory condition of probation. It is true that, as a matter of law (section 12021), Kenneth cannot own or possess a firearm until he reaches the age of 30, and he is subject to consequences if he violates that law. But it does not necessarily follow that this prohibition must also be made a condition of his probation. Nor is the prohibition required to be a condition of probation pursuant to statute. In addition, the condition imposed by the juvenile court referred not only to firearms—the subject of section 12021—but more broadly to “weapons.”
Based on the records and the arguments made in this case, the conditions imposed by the juvenile court on Kenneth’s probation will be stricken in view of the fact that Kenneth was committed to DJJ. Nothing herein shall preclude the DJJ from imposing requirements upon Kenneth that are identical or similar to the conditions imposed by the juvenile court.
G. Cumulative Prejudice
Kenneth contends that the cumulative effect of the purported errors compels reversal. We disagree.
III. DISPOSITION
The judgment is modified as follows: (1) the eight-month term on count 7 is stayed pursuant to Penal Code section 654; and (2) the probation conditions are stricken. As so modified, the judgment is affirmed.
We concur. SIMONS, Acting P. J., REARDON, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.