Opinion
C089283 C090158
05-12-2020
In re E.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJCJVDE20180001341)
The juvenile court found true a wardship petition allegation that minor E.S. committed a robbery, and it also found true a firearm enhancement allegation. When the minor subsequently admitted a probation violation, the juvenile court ordered the minor committed to the Division of Juvenile Justice (DJJ).
The minor now argues (1) the firearm enhancement is not supported by substantial evidence, (2) the juvenile court failed to exercise its discretion regarding the maximum period of confinement, and (3) the juvenile court failed to advise the minor of the direct consequences of his admission to a violation of probation. We will remand the matter to allow the juvenile court to exercise its discretion regarding the maximum period of confinement, and otherwise affirm the judgment.
BACKGROUND
The People filed a wardship petition alleging that the minor committed a robbery and that he used a firearm in the commission of the crime. According to the minor's detention report, he was accused of robbing a victim at gunpoint in a store. At the contested jurisdictional hearing, P.N. testified to witnessing the robbery. She was outside smoking a cigarette when she saw the minor ride up and park his bike. After the minor entered the store, P.N. saw him through the window holding a gun to the cashier's head. A few minutes later the minor exited the store with the gun and money in his hands and took off on his bike.
The victim, R.B., testified he was working when he looked toward the door and saw a gun pointed in his face. It was a black handgun. The gun was about four to five feet away and scared him. It looked like a real gun. The minor demanded all the money in the register and R.B. gave him about $30. When the minor took the money, he still had the gun pointed at R.B.'s head. The minor then left the store. Three surveillance videos from different angles were played in court during R.B.'s testimony; R.B. identified himself and the minor in the videos and attested to the accuracy of the events depicted in them. A gun was not found when the minor's room was searched.
The juvenile court found the charge and enhancement true beyond a reasonable doubt. Later, at the dispositional hearing, the juvenile court followed the recommendation of the probation department and committed the minor to San Joaquin County Camp for 360 days.
The People subsequently filed a petition for a violation of probation alleging the minor had been terminated from the camp program for failing to participate and other behavioral problems. The minor admitted his probation violation, and the juvenile court committed him to DJJ. Although the minor separately appealed the contested jurisdictional findings and his admission to the probation violation and ultimate commitment to DJJ, this court consolidated the appeals.
DISCUSSION
I
The minor contends the firearm enhancement is not supported by substantial evidence. He claims there was insufficient evidence the gun was real, pointing to the testimony by the victim that the gun was "painted black" and "looked like a real gun" and testimony by a detective (subsequently stricken by the trial court at the defense's request) regarding a list found in the minor's bedroom of items the minor wanted to obtain, including a gun.
We apply the same standard in determining the minor's challenge as we would in an adult proceeding. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) In reviewing a challenge to the sufficiency of evidence, we "review the whole record in the light most favorable to the judgment . . . to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence." ' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 261, original italics.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) In other words, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, original italics.) The standard is the same in cases in which the People rely primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (Id. at p. 933.)
As this court explained in People v. Monjaras (2008) 164 Cal.App.4th 1432 (Monjaras), Penal Code section 12022.53, subdivision (b) provides that any person who personally uses a firearm in the commission of a felony (such as robbery) shall be subject to additional punishment. The firearm need not be operable or loaded for the enhancement to apply. (Monjaras, at p. 1436.) Circumstantial evidence that the perpetrator used a gun may be sufficient to support imposition of the enhancement. (Ibid.) When a defendant "commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of [Penal Code] section 12022.53, subdivision (b)." (Id. at p. 1437.) A threat demanding something of value followed by a display of a gun, which the victim thought looked real, is sufficient to sustain the finding. (Id. at pp. 1436-1437.)
Here, both P.N. and R.B. testified that the minor had utilized a black gun in the robbery. R.B. said the gun was of the pistol variety and looked like a real gun. The minor pointed the gun at R.B.'s head and demanded money. The minor's claim lacks merit because the record contains substantial evidence supporting the firearm enhancement. (Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437.)
II
The minor next argues the juvenile court failed to exercise its discretion regarding the maximum period of confinement.
Welfare and Institutions Code section 731, subdivision (c) (section 731(c)) provides in pertinent part: "A ward committed to [DJJ] shall not be confined in excess of the term of confinement set by the committing court. The court shall set a maximum term based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation. The court shall not commit a ward to [DJJ] for a period that exceeds the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense."
Undesignated statutory references are to the Welfare and Institutions Code. --------
Although the California Supreme Court held in In re Julian R. (2009) 47 Cal.4th 487, 499 that where the record is silent, it is presumed the court exercised its discretion under section 731(c), the minor argues there were various irregularities in this case that rebut the presumption that the juvenile court performed its duty. In any event, the People concede that the juvenile court failed to exercise its sentencing discretion under section 731(c), and we accept the concession.
We agree with the People that a limited remand is appropriate to allow the juvenile court to exercise its discretion under section 731(c).
III
The minor further contends the juvenile court failed to advise him of the direct consequences of his admission to a violation of probation. We conclude the contention lacks merit because the minor was repeatedly informed of the possibility of a DJJ commitment. The People's section 602 petition asserted that the minor could be committed to DJJ and that the maximum period of confinement for robbery with a firearm enhancement was 15 years. Prior to sending the minor to camp, the parties discussed the possibility of a DJJ commitment if the minor failed camp. After the minor was returned for failure to participate in the camp program, the court again expressed its impression that a DJJ commitment would be appropriate. At a later hearing and prior to taking the minor's admission to the probation violation, the juvenile court noted that the probation department recommended a DJJ commitment and that the court was inclined to order that commitment, but was open to hearing argument and considering evidence on the matter. The defense acknowledged the court's admonition that it did not want to mislead the minor about the possibility of a DJJ commitment.
DISPOSITION
The juvenile court's commitment order is vacated. The matter is remanded to the juvenile court with directions to set a maximum period of physical confinement consistent with this decision, to prepare an amended commitment order reflecting any changes, and to forward a certified copy of the amended commitment order to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. The judgment is otherwise affirmed.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
HOCH, J.