Opinion
A149164
07-05-2018
In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43089)
D.M. appeals from a juvenile court order adjudicating him a ward under Welfare and Institutions Code section 602, but raises no errors on appeal, instead invoking the procedure in People v. Wende (1979) 25 Cal.3d 436. We conclude D.M. did not receive all precommitment credits to which he was entitled and remand the case for preparation of an amended minute order on credits, but in all other respects affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Shortly before 6:00 p.m. on June 12, 2016, Fairfield Police Officers Tom Shackford and David Neal were dispatched to the scene of a reported shooting that had just occurred. As they approached the area of the shooting, they saw a maroon Lincoln LS coming from the street where the shooting had occurred driving at a high rate of speed. They began following it, trying to catch up to it. When the Lincoln abruptly pulled into an apartment complex, the officers followed it. D.M. was in the front passenger seat. All five occupants of the Lincoln, including D.M., got out and went into an apartment. One of the officers looked inside the Lincoln and saw money and cell phones on the front seats and a pistol on the back floorboard under the driver's seat.
The officers set up a perimeter around the apartment complex. The five occupants of the Lincoln were by then standing on a second-floor landing. They were ordered to come down and were taken into custody. Officer Shackford placed D.M. in or near a patrol car parked next to the maroon car and interviewed him once they returned to the station. D.M. said the group was on its way to Wing Stop when a friend called and asked them to pick him up. Officer Shackford asked D.M. about the cell phones, the money, and the gun. He could not remember what D.M. said about the cell phones and the money, but D.M. denied any knowledge of the gun.
Officer Neal searched the Lincoln and another vehicle, a white Toyota Camry located near the scene of the shooting, that was described by witnesses as "being involved in the shooting" and that belonged to M.Q., who was arrested with D.M. Neal searched the Lincoln and found a loaded Smith & Wesson semiautomatic firearm underneath the driver's seat, which appeared to have been placed there by someone in the back seat, and a loaded revolver in the glove box, which was at D.M.'s knees. Sometime later, after the minors had been booked into juvenile hall, Neal found a third loaded semiautomatic firearm underneath the passenger seat of the Lincoln. In the Toyota, Officer Neal found ammunition and casings, and indicia belonging to some of the minors in custody.
While D.M. was waiting in the patrol car next to the maroon Lincoln, he saw Neal take a handgun from the Lincoln and "made mention of three firearms being removed." At the time, only two guns had been removed from the car. D.M., who was on probation from a previous sustained section 602 petition on grounds of misdemeanor carrying a loaded firearm on his person in a city (Pen. Code, § 25850, subd. (a)), was detained at juvenile hall. Two of the minors detained with him, M.Q. and J.L., admitted to police they had possessed two of the guns found in the maroon car.
A previous petition had been filed on August 15, 2015, and alleged four counts: felony possession of a firearm by a minor under (Pen. Code, § 29610), possession of ammunition by a minor (Pen. Code, § 29650), carrying a loaded firearm on his person in a city (Pen. Code, § 25850, subd. (a)), and resisting arrest (Pen. Code, § 148). D.M. admitted the offense under Penal Code section 25850, which was deemed a misdemeanor, and the three remaining counts were dismissed. The juvenile court adjudged D.M. a ward of the court and placed him in the custody of his parents, with participation in the Day Reporting Center (DRC), and standard terms and conditions of probation.
The police later discovered a video of M.Q., J.L., and Isaiah M., another of those persons arrested with D.M., handling a gun similar to one found in the maroon car. The video was posted on M.Q.'s social media account with a message that he was "bringing a smith [i.e., Smith & Wesson] to fight." D.M. did not appear in the video.
On June 13, 2016, a section 602 petition was filed against D.M., who was 17 at the time, which alleged felony possession of a firearm by a minor under Penal Code section 29610 (count one), misdemeanor possession of live ammunition by a minor under Penal Code section 29650 (count two), and misdemeanor occupant with a concealed firearm in a vehicle under Penal Code section 25400, subdivision (a)(3) (count three). On June 14, 2016, the court ordered D.M. detained.
On June 17, 2016, at defense counsel's request, the court held a detention rehearing under In re Dennis H. (1971) 19 Cal.App.3d 350, 354-355. (See also, §§ 630, 635, 636, 637.) During this hearing, D.M.'s trial counsel sought to call as witnesses M.Q. and Isaiah M., which the juvenile court refused to allow. The attorney for M.Q. indicated her client's intention to invoke the Fifth Amendment, and the attorney for Isaiah M. stated his client would answer only selectively. The court found the prosecutor had made a prima facie showing and continued D.M.'s detention.
In a contested jurisdictional hearing on July 5, 2016, the court sustained the three counts alleged in the petition. Officers Shackford and Neal testified. D.M. called three defense witnesses. Two of the three, M.Q and J.L., refused to testify, citing the Fifth Amendment. The third, Isaiah M., testified that he lived with his mother in the apartment complex where the five minors were apprehended. D.M., M.Q., and J.L. all had been at his mother's apartment earlier in the day on June 12, 2016. Isaiah and D.M. left in the maroon car, which belonged to Isaiah's mother, to get something to eat at Wing Stop. Isaiah did not see where M.Q. and J.L. went. The minors in the white Toyota called Isaiah and asked him to pick them up because their car had been involved in a crash. The Toyota was in fact disabled from having its tires "busted" by gunshots. Isaiah and D.M. used the maroon car to pick up the other three minors after the shooting. Isaiah claimed he did not know the minors who got into his car had guns on them. Isaiah testified the gun in the glove box was his, and D.M. did not see him put it there. Isaiah claimed he did not know the white car had been involved in a shooting and thought it had just crashed. Isaiah had denied knowing anything about the guns in his car when initially interviewed by the police.
By that time, Isaiah had already been granted deferred entry of judgment for his role in the events. M.Q. and J.L. were granted deferred entry of judgment thereafter.
The court found D.M. was in constructive possession of a firearm, since he exhibited knowledge of a third gun before the police located it. The judge did not find Isaiah's testimony credible. She based her factual findings in large part on D.M.'s statement about the third firearm, the fact that the officers began following the car shortly after the shooting, and that the maroon car quickly pulled into an apartment complex and all five passengers immediately exited, leaving their cell phones and guns behind, apparently wanting to disassociate themselves from the car and from the police car pursuing it. She also relied on proximity of the weapon to D.M. Because all the guns were loaded, the court's finding that D.M. possessed one of them also put him in possession of ammunition, regardless of what he knew about the contents of the white car. The judge sustained the petition on all counts, finding D.M. had knowledge and constructive possession of a firearm and ammunition.
On July 26, 2016, the court held a contested dispositional hearing. In a supplemental report prepared for that hearing, probation recommended that D.M. be placed at Challenge Academy, a restrictive placement with locked jail cells. Trial counsel argued that D.M. should be placed on in-home probation and ordered to attend DRC. That had been the disposition in his previous case, and counsel argued D.M. had done well at DRC. D.M. had a supportive family who could provide structure and help him avoid gang involvement. D.M. did not have a substance abuse problem.
On the other hand, D.M. admitted associating with M.Q., who was known to be a member of the R.N.A. (Real Niggas Association) gang. D.M. also said he was in possession of the handgun in his earlier case because "he had issues with a gang (H.N.I.C.) which . . . [is] an advisory [sic: adversary] of the R.N.A. Gang." Trial counsel argued that Challenge Academy did not have a gang abatement program, and gang members were housed there, which would have a negative impact on D.M. But D.M. told the probation officer he preferred Challenge Academy over a group home because he would be geographically closer to his family and girlfriend, who was three months pregnant.
The acronym stands for "Head Niggas In Charge."
The probation report opposed continuing community-based supervision due to "the serious nature of the offense, continued risky behavior on the part of the minor despite intensive intervention, and the minor's gang ties." Noting this was D.M.'s "second possession of a hand gun offense and is laced with gang influenced undertones," the report recommended against placing D.M. in a group home.
The court ordered D.M. continued as a ward of the court. It found the firearm possession offense to be a felony and the other two counts misdemeanors. It told D.M. the maximum term of confinement was three years and four months. It adopted the recommendation of the probation report that D.M. be placed at Challenge Academy. The court granted D.M. 44 days of credit and 74 total credits toward the wardship (including 30 days from the prior petition), and advised D.M. he could not possess a firearm until he was 30 years old under Penal Code section 29820, subdivision (b). It ordered standard terms and conditions of probation. D.M. was actually placed at Challenge Academy on August 9, 2016 and was held in juvenile hall in the interim.
D.M. filed a timely notice of appeal, specifying as potential appellate issues the sustaining of the petition and the court's refusal to allow counsel to present witnesses at the Dennis H. hearing. His appellate attorney, however, filed a brief in this court under People v. Wende, supra, 25 Cal.3d 436. (In re Kevin S. (2003) 113 Cal.App.4th 97, 99-118 [Wende procedures apply in juvenile delinquency appeals].)
II. DISCUSSION
We have reviewed the entire record on appeal. D.M. was represented by counsel at all phases of the proceedings. We see no error in the court's refusal to allow defense witnesses at the Dennis H. hearing (People v. Superior Court (Ronald H.) (1990) 219 Cal.App.3d 1475, 1477-1478 [juvenile's rights at detention hearing not equivalent to adult's at preliminary examination]; In re Luis M. (1986) 180 Cal.App.3d 1090, 1091-1094 [juvenile not allowed to confront crime victims at detention hearing; only allowed to cross-examine preparers of written reports]; In re Korry K. (1981) 120 Cal.App.3d 967, 970-971 [evidence going only to affirmative defense not relevant at detention hearing]; see Cal. Rules of Court, rule 5.762(c)), which in any event was nonprejudicial. The evidence was sufficient to support the court's findings and orders. The court properly deemed count one a felony and was allowed to aggregate the maximum term of confinement with the count D.M. admitted on the prior petition. (§ 726; Pen. Code, § 29700, subd. (a)(3).) The court's calculation of the maximum time in custody provides no basis for appeal. (See Pen. Code, §§ 1170, subd. (h), 1170.1, 25850, subd. (c)(7); In re Julian R. (2009) 47 Cal.4th 487, 495; In re Eric J. (1979) 25 Cal.3d 522, 538.) The court did not abuse its discretion in selecting Challenge Academy as the placement for D.M. (See In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 [abuse of discretion standard applies].)
It does appear, however, that D.M. was entitled to preplacement credits from July 26 to August 9, while he was housed in juvenile hall pending his placement at Challenge Academy. (In re J.M. (2009) 170 Cal.App.4th 1253, 1255-1257 [minor entitled to precommitment credits from disposition to date actually placed in group home]; In re Edward B. (2017) 10 Cal.App.5th 1228, 1238-1239.) It appears no additional credits were awarded at the 15-day review in which that date of placement was confirmed by a different judge from the one who had presided over earlier proceedings. We therefore remand the case for correction of the credits to which D.M. was entitled prior to placement in Challenge Academy.
III. DISPOSITION
The case is remanded to the juvenile court for preparation and filing of an amended minute order reflecting that D.M. is entitled to additional precommitment credits for July 26 to August 9, 2016. The court shall inform the probation department of the corrected number of precommitment credits. In all other respects, the judgment is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------