Opinion
B226912
11-22-2011
In re B.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.H., Defendant and Appellant.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YJ31899)
APPEAL from an order of the Superior Court of Los Angeles County, Irma J. Brown, Judge. Affirmed in part and reversed in part with directions.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant B. H. was declared a ward of the juvenile court and placed in camp community placement program. We agree with appellant's claims that the firearm enhancement connected to the assault with a firearm offense and the gang enhancement must be stricken and that the matter must be remanded to recalculate the maximum term of confinement. In all other respects, we affirm the court's order.
PROCEDURAL BACKGROUND
A Welfare and Institutions Code section 602 (section 602) petition was filed on July 10, 2008, alleging that appellant had committed a felony violation of Penal Code section 211, second degree robbery. On September 9, 2008, the July petition was amended to reflect the crime of attempted robbery (id. §§ 211, 664) and appellant admitted the offense. The juvenile court found the petition to be true and sustained it. Appellant was placed in the community detention program.
On December 2, 2008, the juvenile court declared the offense to be a felony and appellant a ward of the court under section 602. Appellant was placed home on probation. The maximum term of confinement was set at three years, and appellant was awarded 54 days predisposition credit.
A notice of violation pursuant to Welfare and Institutions Code section 777 was filed on February 2, 2009. On February 10, 2009, appellant waived his constitutional rights and admitted to count 2 of the notice. The juvenile court ordered appellant to remain home on probation.
A second section 602 petition was filed on March 16, 2009, alleging that appellant had committed two counts of violation of Penal Code section 243.9, subdivision (a), a felony (battery by gassing). On April 6, 2009, appellant admitted that he had committed the crime in count 1. The juvenile court found the petition to be true and sustained it. The court declared the offense to be a felony and dismissed the remaining count. The court ordered appellant to remain a ward of the court under section 602. Appellant was placed home on probation. The maximum term of confinement was set at four years eight months. Appellant was given 22 days of predisposition credit.
A third section 602 petition was filed on April 23, 2010, alleging appellant had committed felony assault with a firearm (Pen. Code, § 245, subd. (a)(2)) in count 1; felony attempted second degree robbery (id., §§ 211, 664,) in count 2; felony assault by means of force likely to cause great bodily injury (id., § 245, subd. (a)(1)) in count 3; and petty theft, a misdemeanor (id., § 484, subd. (a)) in count 4. As to count 1, the petition alleged that appellant personally used a firearm (id., § 12022.5). As to count 2, the petition alleged that a principal was armed during the commission of the offense (id., § 12022, subd. (a)(1)). As to counts 1 and 2, it was alleged that appellant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (id., § 186.22, subd. (b)(1)(B)). As to count 3, it was alleged that appellant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (id., § 186.22, subd. (b)(1)(A)).
The firearm allegation was amended to reflect that it was a principal who was armed during the commission of the offense (Pen. Code, § 12022, subd. (a)).
On August 18, 2010, during the adjudication on the April 23 petition, appellant admitted the misdemeanor allegation in count 4 of the petition. On August 19, the juvenile court found the allegations in counts 1, 2 and 3 to be true and sustained the petition. The court declared the counts to be felonies.
The juvenile court ordered appellant to remain a ward of the court under section 602. The court ordered appellant placed in a camp community placement program and set the maximum confinement time at 26 years eight months. The court awarded appellant 118 days of predisposition credit. Counts 1 and 3 were deemed to be strikes.
FACTS
The facts are those related to the third section 602 petition. The facts as to count 4 have been omitted since, during the adjudication, appellant admitted the offense alleged in that count.
On March 27, 2010, Daniel Ulloa (Ulloa) was working at a shopping center on La Cienega Boulevard. During a break, at approximately 12:15 p.m., Ulloa walked into the back parking lot and was talking on his cell phone. Appellant rode his bike up to him and said, "Oh, that's a nice phone. Where you from?" Ulloa responded, "I ain't from nowhere" and "What do you want with me?"
Appellant called to his two friends, who were also on bikes and about 10 feet away, and said, "Oh, he wants to fight." Appellant's friends began to approach. Ulloa started to walk away from the rear of the store because he did not want appellant and his friends to know where he worked. Appellant said something about "jumping" Ulloa. Appellant's friends got off their bicycles. As Ulloa reached his parked car, a Camaro, he knew "they were gonna wanna fight," and he took off his sweater. Appellant and his friends left when Ulloa was about to take a swing. One of them fell off his bicycle, left it there and ran away.
As Ulloa was about to take a swing, he heard one of the three state, "He has a burner." Ulloa interpreted the word "burner" to mean "a gun, a weapon." Ulloa ran after two of appellant's companions. When he was unable to find them, he returned to his car. As he was moving the car in reverse, appellant and one of his friends were standing behind the car and one of them was pointing a gun "straight at" Ulloa through the rear window. Ulloa began driving away and a shot was fired in his direction. Ulloa saw that the shot had hit the bumper. A casing was later found in the parking lot.
On April 1, 2010, at approximately 12:30 p.m., Ulloa was leaving work. As he walked to his car—a different car, not the Camaro—Ulloa saw appellant and four of his friends. Appellant approached Ulloa and said, "Oh, you're the guy with the Camaro." Ulloa said, "Yes." Appellant told Ulloa that it was Ulloa's fault his friend "got caught with a burner." Ulloa was backing up as appellant spoke into a walkie-talkie and said, "It's time to beat down the Mexican." Approximately ten of appellant's friends arrived, all with walkie-talkies. The men grabbed Ulloa and pulled him down and started hitting, punching, and kicking him. Appellant took the first swing.
A security guard approached and stopped the beating. As appellant started walking away, Ulloa ran up to him and asked why he'd had to call in his friends.
Los Angeles Police Officer Attila Kreidl worked in the gang enforcement detail. He had previously qualified as a gang expert in court approximately six times. He testified that the Playboy Gangster Crips was a criminal street gang. He based his opinion on its members' activities, their identifying symbol of a Playboy bunny, the criminal acts committed, intimidation of the community and their willingness to name their gang.
Officer Kreidl had been familiar with the Playboy Gangster Crips since 2000. The gang had approximately 150 documented members, including 20 to 25 in Officer Kreidl's area. Some of the members had tattoos and on certain days the gang members wore all blue. The officer opined that appellant was a member of the gang. His opinion was based on appellant's self-admission, his associates, the fact that he had a tattoo of the head of a Playboy bunny with the letters "PB" and "G" around the bunny on his right forearm, "West LA" written on the side, and "PGC" in the center of the Playboy bunny.
Officer Kreidl further opined that the shooting of March 27 was committed for the benefit of, in association with, or at the direction of the Playboy Gangster Crips. He based his opinion on his assessment that the victim had stopped a robbery and the suspects sought to retaliate. In do so, the gang teaches victims not to stand up for themselves.
Officer Kreidl also opined that the April 1 assault was for the benefit of the Playboy Gangster Crips. He based his opinion on the fact that it was the same victim of the March 27 shooting being accused of "snitching" and receiving a beating in order to instill fear and intimidation. The fact that the attack took place in daylight demonstrated that the gang members did not care who saw them in operation. Witnesses added to the strength and status of the gang.
Defense Evidence
Los Angeles Police Detective Allen Shubert interviewed Ulloa about the March 27 incident. Ulloa told the detective that it was appellant who had fallen off of the bicycle, left it behind, and run away on March 27. Ulloa said that appellant was not one of the two men who stood behind the car. He also told the detective that, on March 27, appellant "wanted to fight him," that "they challenged him to a fight," and that Ulloa had "said he was gonna fight them."
DISCUSSION
Enhancement Allegations
Appellant contends that the juvenile court failed to make true findings as to the gang allegations in counts 2 and 3 and the principal armed allegation in count 2. He contends that the enhancements must therefore be stricken. We disagree.
After evidence was presented and the juvenile court heard argument from counsel, it found, as to count 1, the assault with a firearm charge and the principal armed with a firearm allegation to be true. After summarizing the gang expert's testimony, the court found count 3 to be true, as well as the gang allegations attached to counts 1 and 3, stating in relevant part, "So the court finds both counts to be true , the principal armed allegation and the gang allegation to be true." The court acknowledged that appellant had previously admitted the petty theft count, count 4. As to count 2, the juvenile court stated: "I didn't speak specifically to count 2, the attempted robbery, but I think there is clear circumstantial evidence that the initial confrontation on March 27th was in preparation for a taking of the phone that the victim was using."
The juvenile court misspoke and initially referred to count 1 as count 2.
The juvenile court did make an express finding as to the gang allegations in counts 1 and 3. In addition, since the offenses found to be true in counts 1 and 2 occurred on the same date, the court finding the gang allegation true in count 1 makes it clear that the gang allegation in count 2 was also true.
It is true, as appellant contends, that in the adult context, where a trial court fails to make a finding as to the truth of the enhancement allegation, either orally or in the clerk's minutes, the enhancement, if imposed, must be stricken. (People v. Jackson (1987) 193 Cal.App.3d 393, 404 [court's failure to make a finding as to excessive taking allegation violated Penal Code section 1167 ].) This rule does not apply to juvenile proceedings. It is clear that "'the Juvenile Court Law does not require the making of specific findings and that a general finding that the allegations of the petition are true is sufficient to show the facts upon which the court exercised its jurisdiction to declare the minor a ward or dependent child of the court. [Citations.]' [Citation.]" (In re Billy M. (1983) 139 Cal.App.3d 973, 981, fn. omitted.)
Penal Code section 1167 provides: "When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes."
In In re Billy M., the juvenile court failed to expressly make a true finding on an enhancement alleged under section 12022.7 that accompanied all three counts of the petition. (In re Billy M., supra, 139 Cal.App.3d. at p. 980.) The court stated that "[t]he trial court's failure to expressly cite section 12022.7 in its findings regarding personal infliction of great bodily injury, is not error. There is no statutory requirement that, upon resolving a factual allegation, the court make a specific statutory reference within its factual finding." (Id. at p. 981.) This presupposes that the allegation of the petition state appropriate ultimate facts which set forth the specific charge or factual allegations upon which an adjudication is sought declaring the minor to be "'a ward or dependent child of the court.'" (Ibid.)
In In re Sergio R. (1991) 228 Cal.App.3d 588, 598-599, "the court made . . . specific factual findings that [minor] and another . . . gang member were armed with shotguns, that they fired into a group of people, and that as a result, one innocent bystander was killed and another seriously injured. The court concluded that the '[p]etition is sustained as to all counts in the first degree.'" The findings were sufficient to support the enhancements even though the juvenile court failed to make specific findings that they were true.
As to the principal armed allegation in count 2, it is true, as appellant states, that the juvenile court did not make a reference to the principal armed allegation. As previously discussed, however, there is no requirement that the juvenile court make a specific finding. A general finding is sufficient. There was sufficient evidence to support the principal armed allegation. The victim indicated he heard someone say he has a "burner," which Ulloa knew meant a gun. Shortly thereafter, he was confronted and shot at by one of appellant's friends and the bullet lodged in his Camaro and a casing was found close by.
Principal Armed Enhancement
Appellant contends that the firearm enhancement connected to the assault with a firearm offense in count 1 must be stricken since being armed is an element of that offense. The People concur.
Penal Code section 12022, subdivision (a)(1), provides in relevant part: "[A]ny person who is armed with a firearm 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 one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm."
Under Penal Code section 245, subdivision (a)(2), "Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years . . . ." "[T]o establish a conviction under this provision, 'the prosecution must prove the defendant used a firearm in the commission of the offense.'" (People v. Sinclair (2008) 166 Cal.App.4th 848, 855-856.)
Since firearm use is an element of assault with a firearm, no enhancement may be imposed on that offense for firearm use, and the firearm enhancement must be stricken with respect to count 1. (People v. Summersville (1995) 34 Cal.App.4th 1062, 1070; People v. McGee (1993) 15 Cal.App.4th 107, 110.)
Substantial Evidence Supports the Juvenile Court's Finding of Attempted Robbery
Appellant contends that there was not sufficient evidence to support the findings of attempted robbery. Specifically, he argues that there was insufficient evidence from his words that he intended to steal the phone from Ulloa. We disagree.
In an appeal challenging the sufficiency of the evidence to support the sustaining of a petition in juvenile court under section 602, we "apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a . . . conviction . . . ." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) That is, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Robbery requires "(1) a taking of personal property, (2) from the person or immediate presence of another, (3) through the use of force or fear, (4) with an intent to permanently deprive the owner of his property. [Citations.]" (People v. Kelley (1990) 220 Cal.App.3d 1358, 1366.) "In order to establish attempted robbery, the People must prove specific intent to commit robbery and a direct unequivocal overt act toward its commission. This act must go beyond mere preparation." (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861; accord, People v. Medina (2007) 41 Cal.4th 685, 694.)
The evidence shows that appellant approached Ulloa and stated, "Oh, that's a nice phone," followed by "Where you from?" Ulloa responded from nowhere and asked what appellant wanted with him. This caused appellant to call his friends for help, stating, "Oh, he wants to fight." While appellant's words may have only been a prelude to an assault, the juvenile court concluded that the initial confrontation was in "preparation for a taking of the phone."
"There is rarely direct evidence of [an appellant's] intent. Such intent must usually be derived from all the circumstances of the attempt, including the [appellant's] actions." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) The circumstances here support a reasonable inference that appellant intended to steal the phone from Ulloa. Ulloa's actions prevented the robbery and possibly a beating from appellant and his friends.
Criminal Street Gang Enhancement
Appellant raises two challenges to the imposition of the criminal street gang enhancement. First, he contends it was not established that the Playboy Gangster Crips was a criminal street gang, there was not sufficient evidence that the primary activity of the gang was to commit crimes, and the crimes were not enumerated. Second, he contends the evidence did not establish that his companions were gang members, the two incidents took place in gang territory or the crimes were committed for the benefit of, at the direction of, or in association with the Playboy Gangster Crips gang.
"To prove the existence of a criminal street gang, 'the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. [Citation].' (People v. Gardeley (1996) 14 Cal.4th 605, 617 . . . .)" (In re Jose P. (2003) 106 Cal.App.4th 458, 466-467.)
To establish the gang's primary activities, the trier of fact may look at past and present criminal activities of the gang. "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities. Both past and present offenses have some tendency in reason to show the group's primary activity . . . ." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
Officer Kreidl testified as a gang expert and had testified as an expert in previous Playboy Gangster Crips cases. He had been familiar with the gang since 2000. He stated there were approximately 150 documented members in the gang, but only 20 to 25 locally. He based his opinion on the members' activities, their identifying symbol of a Playboy bunny, the criminal acts they committed, their intimidation of the community and willingness to name their gang affiliation.
Officer Kreidl also testified as to two predicate acts committed by Playboy Gangster Crips, which were convictions for robbery in 2008 and witness intimidation in 2009. He was familiar with both individuals from the Playboy Gangster Crips who committed the crimes of witness intimidation and robbery. His testimony was sufficient to establish that the Playboy Gangster Crips was a criminal street gang. (People v. Loeun (1997) 17 Cal.4th 1, 10; People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Officer Kreidl further testified concerning the Playboy Gangster Crips and the crimes that were committed on March 27 and April 1:
"Q By [Prosecutor]: In your opinion was the shooting that occurred on March 27 committed for the benefit, at the direction of or in association with the Playboy Gangster Crips gang?
"A Yes.
"Q What's the basis for your opinion?
"A It appeared that there was gonna be a robbery, which went south quickly. [¶] . . . [¶]
"The Witness: And when the victim confronted the suspect or suspects, in retaliation the Playboy Gangsters returned and fired a round at the victim while he was leaving his vehicle.
"Q By [Prosecutor]: Is that type of activity, that type of retaliation, common among the Playboy Gangster Crips?
"A Yes, it is, and mainly used to teach the victims not to stand up to them, creating power in the neighborhood. And Playboys want them to know that this is Playboy area; you don't want to come around this area. It mainly instills fear.
"Q So other people, when they're confronted with Playboys, they would just give 'em the phone and forget about it?
"A That's basically what happened.
"Q Are you familiar with the assault that occurred in this case on April 1st?
"A Yes.
"Q In your expert opinion was the assault that occurred on April 1st for the benefit of the Playboy Gangster Crips?
"A Yes.
"Q And what's the basis for your opinion?
"A Based on the fact the same victim was confronted by the suspect and several other Playboys. They accused them of snitching. In gang vernacular you don't want to be called a snitch. And they proceeded to put the boots to him, let him know 'we're not havin' that.' Once again, instilling fear and intimidation.
"Q And what do you make of the fact that it was done in open daylight at 12:30 in the afternoon in a parking lot?
"A They don't really care about who sees it. Actually, they prefer to have some witnesses. Most people won't get involved and step in and assist the victim. It allows them to strengthen their strength and their status. And it wasn't a one-on-one. It was a lot of gang members, because this was seven on one."
To subject an appellant to the consequences of Penal Code section 186.22, "the prosecution must prove that the crime for which the [appellant] was convicted had been 'committed for the benefit of, at the direction of, or in association with any criminal street gang, [and] with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.) Appellant argues that the evidence only established that he, a Playboy Gangster Crips member, engaged in the two incidents with his companions.
The gang enhancement "does not criminalize mere gang membership; rather, it imposes increased criminal penalties only when the criminal conduct is felonious and committed not only 'for the benefit of, at the direction of, or in association with' a . . . 'criminal street gang,' but also with the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Gardeley, supra, 14 Cal.4th at pp. 623-624.) Therefore, "the record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang." (People v. Martinez (2004) 116 Cal.App.4th 753, 762, italics omitted.)
A trier of fact may rely on expert testimony about gangs and gang culture in determining whether a crime was committed for the benefit of a criminal street gang. (People v. Ferraez, supra, 112 Cal.App.4th at p. 930.) However, "[a] gang expert's testimony alone is insufficient to find an offense gang related." (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) Rather, the expert testimony must be accompanied by "some substantive factual evidentiary basis" (id. at p. 661) from which "the jury could reasonably infer the crime was gang related." (Ferraez, supra, at p. 931; see also People v. Vang (Oct. 31, 2011, 184212) ____ Cal.4th ____ [2011 DJDAR 15912, 15914] ["'the expert's opinion may not be based "on assumptions of fact without evidentiary support . . . or on speculative or conjectural factors"'"]; Ochoa, supra, at p. 660 ["something more than an expert witness's unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement"].)
For example, in In re Frank S. (2006) 141 Cal.App.4th 1192, the appellate court held that sufficient evidence did not support the juvenile court's true finding that the defendant possessed a knife for the benefit of his gang with the specific intent to promote, further, or assist criminal gang behavior. The gang expert simply informed the judge of her belief of the defendant's intent with possession of the knife. The prosecution did not present any evidence that the defendant was in gang territory, had gang members with him, or had reason to expect to use the knife in a gang-related offense. (Id. at p. 1199.)
Similarly, in People v. Ochoa, supra, 179 Cal.App.4th 650, the jury convicted the defendant of carjacking and found that he committed the act for the benefit of a gang. The defendant approached the victim sitting in a parked car, pulled a shotgun, pointed it at the victim's face and told the victim to give him the vehicle. The defendant drove away in the vehicle. (Id. at p. 653.) The defendant had previously been identified as a member of the Moreno Valley 13 and had gang tattoos on his back and wrist. A gang expert opined that the defendant committed the carjacking for the benefit of his gang. (Id. at p. 654.)
The appellate court ruled that there was insufficient evidence to support a gang enhancement, stating that the "[d]efendant did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of defendant's tattoos. There was no evidence the crimes were committed in Moreno Valley 13 gang territory or the territory of any of its rivals. . . . Defendant was not accompanied by a fellow gang member. [¶] While the [expert] testified that the carjacking could benefit defendant's gang in a number of ways, he had no specific evidentiary support for making such inferences. Indeed, he admitted that there was no indication that defendant had used the vehicle to transport other gang members. There was no testimony that defendant used the vehicle to transport drugs or manifested any intention to do so." (People v. Ochoa, supra, 179 Cal.App.4th at pp. 662-663.) The court went on to conclude that the expert's testimony "was based solely on speculation" (id. at p. 663) and vacated the enhancement.
As in Frank S. and Ochoa, while there was evidence that appellant was a gang member and he asked where Ulloa was from, a common gang challenge, there was no evidence that appellant was in gang territory or that his companions were gang members. There was no evidence that appellant called out the name of his gang or threw gang signs or otherwise indicated that he was committing the crimes for his gang rather than himself. Officer Kreidl's testimony that appellant's crimes were committed for the benefit of a criminal street gang was based on assumptions and speculation, not evidence in the record. The criminal street gang enhancement is unsupported by substantial evidence and cannot stand.
Appellant also notes that the prosecutor failed to use a hypothetical question in asking for Officer Kreidl's opinion. (People v. Vang, supra, ____Cal.4th at pp. ____-____ [2011 DJDAR at pp. 15913-15914].)
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Maximum Confinement Period
Appellant contends that the maximum confinement time of 26 years eight months must be corrected. The People concur.
When a minor is removed from the physical custody of his parent or guardian but not placed with the Department of Corrections and Rehabilitation, Juvenile Justice (Gov. Code §§ 12838, subd. (a), 12838.3; In re Anthony C. (2006) 138 Cal.App.4th 1493, 1499, fn. 1), the juvenile court must fix the maximum term of confinement as required by law. (Welf. & Inst. Code, § 726, subd. (c); In re Ali A. (2006) 139 Cal.App.4th 569, 573.)
Appellant is correct that the maximum term of confinement was not set "on the record." The disposition minute order sets out the term as 26 years eight months. It is unclear how the court reached this maximum term.
Moreover, as previously indicated, the firearm enhancement on count 1 must be stricken as well as the criminal street gang enhancements. By our calculations, the maximum term should be 8 years 10 months calculated as follows: the principal term of four years on count 1, assault with a firearm; on count 2, the term should have been eight months, plus one year for the principal armed enhancement; on count 3, the term should have been one year; on count 4, a term of six months should have been imposed. As to the prior petitions, appellant should have received a term of eight months for the attempted robbery and one year for the battery by gassing.
DISPOSITION
The firearm enhancement in count 1 of assault with a firearm and the gang enhancements in counts 1 through 3 are stricken, and the matter is remanded to recalculate the maximum term of confinement in the manner expressed herein. In all other respects, the order is affirmed.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.