Opinion
A166197
12-20-2024
In re N.T., a Person Coming Under the Juvenile Court Law. v. N.T., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J2000481)
STEWART, P.J.
N.T. appeals from juvenile court orders finding he committed first degree murder and committing him to a secure youth treatment facility. He argues the jurisdictional order must be reversed because there was insufficient evidence of causation and identity, and because he was prejudiced by pervasive prosecutorial misconduct. He further contends the juvenile court erred in issuing an unauthorized restraining order, in calculating his remaining custodial time, and in setting his maximum term of confinement. Additionally, he argues the matter should be remanded for consideration of a reduction in the baseline term set at disposition. Finally, he argues the juvenile court erred in failing to consider a reduction in the baseline term at the first six-month progress review hearing. The People agree that remand is required with respect to several issues.
As we will explain, we agree that remand is necessary with regard to the restraining order and several issues relating to the maximum and baseline terms of confinement, and that the disposition order must be corrected to reflect the correct remaining custodial time.
BACKGROUND
I.
Factual Background
A. The Homicide
On the night of September 2, 2020, Jaloni Blasher was shot and killed at the Crescent Park Apartment Complex on Hartnett Avenue in Richmond. The shooting occurred along the driveway from Hartnett to the apartments, an area referred to as the "double crescents" because the driveway led to two crescent-shaped apartment buildings. Blasher's body was found on the sidewalk between a fence and a row of parked cars.
At about 10:33 p.m. on September 2, 2020, Richmond Police Officer Christopher MacGregor received a call for service regarding a male having been shot and responded to an address on Hartnett Avenue. Multiple officers and others were on the scene, and the victim was lying on the ground on the south sidewalk adjacent to the parking lot. MacGregor saw a "little bit of blood coming from his mouth" and a "small pool of blood underneath his body." Blasher was alive, and the officer tried to get a statement from him, but he was not able to form words. When paramedics cut the clothes off the upper half of Blasher's body, MacGregor saw two apparent bullet wounds, one to his chest area and the other to his right shoulder. Blasher died in the ambulance en route to the hospital. MacGregor remained with the body until the coroner arrived at approximately 1:00 a.m.
The parties stipulated that Blasher's cause of death was multiple gunshot wounds and that, if called to testify, the doctor who performed an autopsy on Blasher on September 4, 2020, would be qualified as an expert forensic pathologist testify that he concluded Blasher died from multiple gunshot wounds. A police detective who observed the autopsy testified that three projectiles were found, two in Blasher's body and one that had fallen when his clothes were removed and was found in the body bag.
Detective Aaron Mandell was called to the scene at about 11:00 p.m. and arrived shortly before midnight. Mandell reviewed surveillance footage of the area where the murder occurred on a 70-inch, high-definition television, using a handheld magnifying glass to enhance images. Describing his observations of the footage,[ Mandell testified that a black Lexus and a white Buick stopped side by side on Hartnett Avenue and paused for a few seconds, then proceeded along Harnett toward Carlson Boulevard. The two vehicles reappeared approximately two minutes and 15 seconds later and stopped on Hartnett, facing Bayview Avenue, the white Buick in front of the black Lexus. One person got out of the driver's side of the Lexus and two exited the Buick, and the three walked toward the Crescent Apartments.
The trial court overruled N.T.'s best evidence objection when defense counsel argued the witness should not be allowed to describe what the videos showed because the court could view them for itself. The court stated that the detective's testimony went to the weight of the evidence and his investigation and ruled that he could say what he observed but the court might see something different.
The person who got out of the Lexus walked toward the double crescents along a sidewalk that ran between a fence and a row of parked cars.
The person then walked in between several parked cars, "and while it gets very dark over there in the video, you begin to see the muzzle flashes from both handguns and probably a long rifle." On the video, Mandell could see two of the individuals firing weapons but he knew from evidence at the scene that the third was also shooting. Based on the muzzle flashes, he believed the person from the Lexus had a long rifle; he could not speculate as to how many rounds were fired. The person "continue[d] out from between the cars toward the actual driveway and continue[d] to fire the long rifle in the direction that [a] white car just traveled."[ After the white car pulled out, the three suspects "retreat[ed] back toward the line of cars along the double crescent" and toward the Lexus and the Buick, the person who had gotten out of the Lexus got back into it, and the Lexus and Buick proceeded on Hartnett.
The evidence reflects that the officer is referring to a white car other than the Buick stopped on Hartnett Avenue from which two of the three perpetrators had exited. Our review of Exhibit 11 showed that as the muzzle flashes began, a white car pulled out of the third parking space and drove to the right, along the driveway away from the street. Shortly before the three individuals walked onto the sidewalk, one of the white car's doors opened and what appeared to be a person could be seen toward the rear of the car.
The person who exited the Lexus was wearing a black hooded sweatshirt with a very small logo on the front, blue denim jeans and dark shoes; as he was seen returning to the car, Mandell saw a larger logo on the back of the sweatshirt that he and other detectives thought was probably a North Face logo. Mandell could not discern any facial features; the person was slender and appeared to be male based on "gait, how the clothing is worn, and my experience of watching people on the street for a lot of years," but "maybe" could have been female. After saying he might be able to estimate height in a "wider range," Mandell agreed that the prosecutor's suggestion of "[s]omewhere between 5 feet and 6 feet" was "[p]robably close."
Mandell testified that the person who got out of the driver's side of the Buick was wearing a black hooded sweatshirt and lighter colored jeans or trousers, and there was a multicolored logo or print on the front of the shirt. The person who got out of the passenger side of the Buick was wearing a black hooded sweatshirt and light colored trousers.
Detective Michael Sagan received a call about the homicide at about 11:15 p.m. on September 2 and arrived at the scene within an hour. He observed a large number of shell casings of three different calibers, some of which he recognized as .223 rifle rounds. In his experience, the presence of different caliber casings indicated multiple shooters.
Detective Katie Cubit, a crime scene investigator in the homicide unit, arrived at the scene at about 12:30 a.m. on September 3. The crime scene was "[m]ostly" in the driveway area. She observed what appeared to be human blood in an area where a line of vehicles was parked in front of a fence and sidewalk. In the same general area she located a total of 54 casings. There were 17 casings that were nine-millimeter, 17 that were .40-caliber and 20 that were .223-caliber, indicating three different firearms were used. There were four brands of nine-millimeter casings, three brands of .40-caliber casings and three brands of .223-caliber casings. Nine-millimeter and .40-caliber ammunition is generally fired by handguns, and .223-caliber ammunition is generally fired by rifles. In the same general area as the blood and shell casings, Cubit observed projectile damage to the wooden fence including about 14 bullet holes at different heights, mostly scattered behind the cars in the area where she observed what appeared to be blood. There were bullet holes in four of the parked vehicles, as well as in a white Mazda parked at the dead end of the driveway, about a block from the line of parked cars. A projectile was found on the front driver floorboard inside the Mazda, and the vehicle also had damage consistent with a collision.
Cubit acknowledged that she could not tell from a casing how long ago the bullet had been fired, that the area got "quite a bit of gunplay" and that she had previously found casings at a scene that were not associated with the crime she was investigating. Although she could not tell exactly when a bullet hole in the fence was made, "[y]ou can tell some of the newer ones" and most of the bullet holes in the fence that she described appeared fresh; she did not recall any that looked older. She could not tell the exact time a bullet hole in a car was made but could tell "generally" because of rusting over time. She could not tell how recently a projectile strike on a car was made.
B. Police Investigation
Detective Mandell identified the license plates of the black Lexus and white Buick from the surveillance video. The Lexus was registered to Jessica Yon, the mother of N.T.'s girlfriend, at an address on Jenkins Way (Jenkins Way). The Buick was registered to Marshall Lewis at an address on Church Lane (Church Lane), in San Pablo. The police obtained search warrants for both addresses.
1. Jenkins Way
Officer Richard Ramos arrived at Jenkins Way around 11:00 p.m. on September 2 and saw the black Lexis parked in the driveway. From an undercover vehicle, he maintained visual surveillance on the house until about 4:00 a.m., when he rotated positions with another officer but remained in the area as a cover officer, in communication with the surveillance officer, until the search warrant was executed at about 8:00 a.m. Throughout this time, he did not observe any vehicle or person arrive at or leave Jenkins Way: Ramos acknowledged that it was dark during his surveillance shift, with no illumination on the vehicle or side yards of the house, he could not see into the back or side yards and would not have been able to see if someone left the back of the house and jumped the back fence. As a gang detective, Ramos had pursued people who leaped over backyard fences.
When officers arrived at Jenkins Way to execute the search warrant on the morning of September 3, the black Lexus was at the house and N.T., his girlfriend Leslie Hernandez, her mother Jessica Yon, and her 13-year-old sister were inside. Officer Michael Brown heard Hernandez calling out from a bedroom that she was putting on pants. She opened the door briefly to show she was doing so and, before she slammed it shut, Brown saw N.T. standing close to the window. Brown radioed to other units that there was a male subject in the back of the bedroom and heard over his radio that someone had just tossed a firearm out the window. Officer John Ecker, who was in the backyard, testified that he heard a loud crashing noise and saw a partially opened window and a screen on the ground. He observed what appeared to be the arm of a Black male[ holding an AR-15-style rifle and then tossing it into the rear yard, where it landed four to five feet from the window. Detective Jamiez Terrell saw the rifle falling from the window to the ground but did not see how it was discarded.
Asked on cross examination if it could have been a female arm, Officer Ecker replied, "anything's possible, but my perception was it was a male arm" based on musculature and "what the arm looked like it belonged to."
Inside, officers searched the bedroom. The blinds on the window where N.T. had been standing appeared to be damaged, and there was a rifle magazine on the floor in the area where N.T. had been standing. A backpack found in the bedroom contained male clothing, an AR-15 magazine loaded with .223 rounds, a Glock .40-caliber magazine loaded with .40-caliber live rounds and a box of medication labelled with N.T.'s name. The headstamps on the .40-caliber ammunition in the magazine indicated two brands, one of which was consistent with the casings found at the homicide scene. The 40 rounds in the rifle magazine were of several brands, two of which were consistent with casings at the scene. Two iPhones were on the bed, one of which was determined to be N.T.'s, and multiple cell phones were found outside, in the barbeque on the rear patio. N.T. was arrested.
Cubit testified that when she arrived to document the scene, the window in Hernandez's bedroom was open. The screen on the ground outside was under the same window. The rifle in the backyard, which was a "ghost gun" with no serial number, was unloaded and there was no magazine attached. The magazine on the bedroom floor, to the right of the window, was compatible with the rifle and was loaded with a mix of .223- and 5.56-caliber rounds. The brands of the ammunition were the same as those on casings found at the homicide scene.
The police conducted another search at Jenkins Way on September 4, pursuant to a second warrant. Detective Mandell testified that when he arrived at the house, Hernandez's bedroom door would not open; upon forceful entry, it appeared a chest of drawers or cabinet had been pushed against the door. Although the officers had left the room "in some type of order" the day before, it was now "in absolute shambles." In the bedroom, the officers located a North Face sweatshirt that appeared to be consistent with the sweatshirt worn by the suspect with the rifle in the video. Mandell and Sagan acknowledged they could not be sure whether the sweatshirt was black or another dark color, or whether the sweatshirt had a zipper. Mandell testified that the video was "pretty grainy" and "almost a mixture of color and black and white," "like a dirty filter where it's harder to make out some colors or others or some of it looks black and white still." He acknowledged that hooded sweatshirts are extremely popular among young people and that he had frequently seen young people wearing North Face clothing.
2. Church Lane
Shortly after the homicide, police officers responded to Church Lane, the address associated with the license plate of the white Buick, and determined the vehicle was there. Detective Sagan arrived at about 7:00 or 7:30 a.m. to execute the search warrant. Demariye Lewis was there and indicia for him was found in a bedroom, including photographs, clothing and athletic apparel. The keys for the white Buick were in the bedroom.
3. N.T.'s Address
Officers conducting surveillance at N.T.'s house on the morning of September 3 saw N.T.'s mother leave the house with a shoebox and plastic bag that she placed in the trunk of a Toyota Corolla. The car was stopped, and the shoebox and bag were found in the trunk. The shoebox contained marijuana and the plastic bag contained a box of ammunition, magazines and a drum magazine.
Detective Cubit collected and inventoried the items. She found three magazines: a .40-caliber magazine loaded with four rounds, the brands of which were two of the brands of casings found at the murder scene, an unloaded .40-caliber extended drum magazine, and an unloaded rifle magazine that could be consistent with the rifle located at Jenkins Way. In addition, there were two boxes of ammunition, one marked .223 that contained three rounds compatible with the rifle found in the backyard and consistent with casings found at the scene, and a second box marked 40 S&W that contained seven rounds with headstamps for two brands, one of which was consistent with casings found at the scene. There was also a mailing envelope with N.T.'s name and address that contained grips to a firearm and firearm accessories-the box for a sighting tool, cleaning spray and additional sights for a firearm, as well as a black glove.
4. Cell Phone Information
Call detail records (CDRs) for N.T.'s cell phone indicated that he received a call at about 10:24 p.m. on September 2 that pinged a cell tower approximately half a mile from the homicide scene, consistent with the phone being in the area of the homicide about nine minutes before it occurred.[ N.T.'s phone then received a call at 11:36 p.m. that pinged off a cell phone tower just under a mile from Jenkins Way, consistent with him being in the area of that address an hour and three minutes after the homicide. The two cell tower locations are about six miles apart, indicating the phone was in different areas of Richmond at those times.
Detective Sagan testified that CDRs show the phone numbers for incoming and outgoing calls, information for the cell tower that indicates the general area where the phone is located, and text messages.
Detective Sagan acknowledged that the CDRs show where N.T.'s phone was, not whether the phone was with N.T. or with a different person. The ping off the cell tower could appear the same if a phone was used in the area of the shooting as if it was used in another location for which this was the closest cell tower.
C. Gang Evidence
Detective Terrell[ testified as an expert on the Richmond street gangs STTE/10K (STTE) and Crescent Park. She testified that there are no fewer than 20 different gangs in Richmond and that gang violence occurs daily.
Officer Terrell was a patrol officer at the time of the hearing; she had been a gang detective at the time of the shooting.
STTE, with around 10 to 20 members, is under the umbrella of Deep C, "the big central Richmond gang," with over 100 members. STTE and Crescent Park are rivals and tend to engage in violent activity toward each other, including shootings and homicides.[ An STTE gang member would have no reason to be in the area controlled by Crescent Park, and going there could result in "[s]hooting, homicide." The Crescent Park apartment complex is located in Crescent Park gang territory and is an area where Crescent Park gang members congregate and where crimes, including shootings, have occurred between the Crescent Park gang and the STTE gang. An STTE gang member would know to go to this area to locate a Crescent Park gang member.
Terrell testified that Crescent Park has approximately six rival gangs.
In Terrell's opinion, N.T. was a member of STTE. Terrell had personally contacted N.T. no fewer than 10 times, typically in STTE territory. She had seen him affiliate with known STTE gang members and display hand signs associated with STTE, had seen photos or videos of him disrespecting rival street gangs including Crescent Park, had seen social media posts or photos of him showing respect to STTE, and had known him to engage in criminal activity associated with STTE. Terrell believed Demariye Lewis was also a member of STTE, based on similar observations of his associations and social media posts and photographs. Some of the photographs Terrell was shown during her testimony about N.T.'s association with STTE showed N.T. and Lewis together. Terrell was not aware of any female STTE members. She was not familiar with Leslie Hernandez and had never heard of her as being associated with STTE.
Terrell believed Blasher was a Crescent Park gang member, as she had contacted him several times in Crescent Park territory, seen him displaying hand signs, seen him in photographs with other Crescent Park gang members and showing allegiance to this gang, and known him to be involved in criminal activity related to the gang. A person Terrell believed to be an STTE member, Eric Golina, had been murdered the day before Blasher's murder. Terrell testified that the expected retaliation for the murder of a gang member is another homicide or shooting, and it is typical for retaliation to follow soon after a gang member is murdered. A gang typically retaliates by murdering any member of the rival gang, not necessarily one involved in the original murder. Terrell testified that respect is "a primary factor that fuels a gang. If members are disrespected and they don't retaliate, it just lowers the standard of the gang or the respect level of a gang." She testified that she had an opinion as to whether Blasher was murdered in retaliation for Golina's murder, based on her understanding of the gangs and the homicide the night before. She was not asked to state what her opinion was and did not expressly do so.
D. Firearms Expert
Eric Collins, a deputy sheriff criminalist with the Contra Costa County Office of the Sheriff, testified as an expert in firearm comparison and tool mark identification. Collins identified the firearm recovered from the backyard at Jenkins Way as an AR-type rifle, originally designed for military purposes but with a "robust" civilian market as well. The rifle was chambered for 5.56-millimeter ammunition; .223 ammunition would be "essentially interchangeable." According to Collins's examination, the weapon was intermittently capable of fully automatic fire: Of the five rounds Collins fired, two fired "fully automatic." The rifle was a ghost gun, lacking a serial number, and based on its measurements was illegal under the Penal Code.
Collins received 54 casings recovered from the homicide scene, of which 20 were a mix of .223 and .556 that he considered "basically the same," 17 were nine-millimeter and 17 were .40-caliber. He analyzed 13 of the .223 casings,[ comparing the markings on them with each other and with the test-fired casings. Collins explained that firearm-produced tool marks are marks left on a fired bullet or cartridge case from an internal component of the firearm, and the greater the number of marks that agree between two tool marks, the greater the probability that they are consistent with the same source.
Collins testified that he was not asked to analyze the nine-millimeter and .40-caliber casings and did not analyze all of the .223 casings because once he had analyzed 13, the detective indicated that number was sufficient for their needs.
Collins testified that the process he used to compare the casings to each other was conducted in a scientifically approved manner accepted by the relevant scientific community in his field.[ He first compared the test-fired casings to each other and determined they had "sufficient reproducibility" to show they were fired from the same gun and could be used for comparison to the casings from the homicide scene. He then compared one of the test-fired cartridges to two[ of the cartridges from the homicide scene and compared 12 of the casings from the homicide scene to each other. He concluded that all 12 of the casings from the scene were consistent with having been fired from the same firearm. He further concluded that all the casings he compared were consistent with having been fired from the rifle recovered from the backyard at Jenkins Way. Over objection, he testified that, based on his training and experience and peer-reviewed published studies over the last 50 to 100 years, he would not expect a firearm other than this one to produce marks "as similar to the markings on the questioned cartridge cases" and opined that it would be unreasonable to believe a different firearm made the markings on the casings recovered from the scene.
Prior to Collins's testimony, N.T. moved to exclude firearm comparison evidence as not scientifically valid, while the People argued the expert should be allowed to testify to his opinion that the casings he compared from the scene were fired from the rifle in evidence but not to state this opinion to any degree of scientific certainty. The court ruled that if Collins qualified as an expert, he would be permitted to testify to his opinion, based on comparison of the casings, that the casings from the murder scene were consistent with having been fired from the rifle located at Jenkins Way but would not be permitted to testify to any degree of scientific certainty whether they were fired from the same gun. The court reiterated this ruling during Collins's testimony and after additional briefing.
Collins initially testified that he compared one of the casings from the scene to the test-fired casing but then gave two identification numbers when asked which of the casings from the scene he used in the comparison.
E. Defense
N.T.'s father testified that when he first saw the surveillance video, he immediately said," 'That's not my son.'" He knew this because N.T. does not run like the person in the video, who was running "high," "straight up," with his back parallel to his legs. N.T.'s father testified that he had trained N.T. to run with his body low "since he was a kid in football," because "[i]f you run parallel to your legs in football, you'll be knocked straight over." He was "100 percent sure" N.T. was not in the video even though he could not see the person's face, hair, eyes, skin color or any tattoos or scars. He testified that N.T. is not a member of the STTE street gang and he had never seen N.T. with a gun other than a water gun.
II.
Procedural Background
On September 8, 2020, the Contra Costa County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code,[ § 602) alleging that N.T., then 17 years old, murdered Blasher in violation of Penal Code section 187, subdivision (a). It was alleged that N.T. intentionally discharged a firearm, causing great bodily injury and death (Pen. Code, § 12022.53, subds. (b), (c) &(d)), and that the offense was committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)). The prosecution moved to transfer the matter to adult criminal court. N.T. was detained in Juvenile Hall, and the probation department was directed to prepare a transfer report. The transfer hearing was held over the course of 12 dates from June 14, 2021, to April 26, 2022. On May 10, 2022, the transfer motion was denied, and N.T. denied the allegations of the petition.
Further statutory references will be to the Welfare and Institutions Code except as otherwise specified.
On June 13, 2022, the gang allegation was dismissed at the prosecution's request. The jurisdiction hearing began on that date and continued over seven days. On August 23, 2022, the court sustained the murder allegation and found the firearm enhancement true. At the disposition hearing on September 7, 2022, N.T. was adjudged a ward of the court and committed to a secure youth treatment facility (Briones Youth Academy - Secure Pathway) for a "maximum term of 50 years to life or age 25, whichever comes first." The court awarded 735 days of credit for time served with remaining custody time of four years and 360 days. The baseline term was set at seven years. The court issued a criminal protective order as to the victim's mother.
N.T. filed a timely notice of appeal on September 14, 2022.
DISCUSSION
I.
Substantial Evidence Supported the Murder Finding.
N.T. contends the evidence was insufficient to support findings that he was one of the three people seen in the surveillance video or that any of the three in the video caused Blasher's death.
A. Standard of Review
"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Elliott (2012) 53 Cal.4th 535, 585.) Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)" (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
The standard is no different where a conviction is based on circumstantial evidence. Circumstantial evidence may be sufficient to support a murder conviction. (People v. Prince (2007) 40 Cal.4th 1179, 1259 [felony murder]; People v. Proctor (1992) 4 Cal.4th 499, 530 [premeditation and deliberation].) "Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might reasonably be reconciled with the defendant's innocence. ([People v. Manibusan, supra, 58 Cal.4th] at p. 92; People v. Maury (2003) 30 Cal.4th 342, 403.) It is the duty of the jury to acquit the defendant if it finds the circumstantial evidence is susceptible to two interpretations, one of which suggests guilt and the other innocence. (People v. Snow (2003) 30 Cal.4th 43, 66.) But the relevant inquiry on appeal is whether, in light of all the evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' (People v. Towler (1982) 31 Cal.3d 105, 118.)" (People v. Zaragoza, supra, 1 Cal.5th at p. 44.) "[The reviewing court] must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury, supra, 30 Cal.4th at p. 396.) "[I]t is the jury [or in this case, the juvenile court], not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1054.)
B. Causation
The parties stipulated that the cause of Blasher's death was multiple gunshot wounds. N.T. argues, however, that there was no evidence Blasher was at the scene when the people in the surveillance footage fired their weapons in that there was no evidence of Blasher's location the time the shots were fired or the time he was shot, only that the police arrived and found him at around 10:30 p.m. N.T. points out that there were several types of casings found at the scene, of many different brands, the area was known for frequent gunplay, the age of the casings was not determined, and there was no evidence what type of bullet was found in Blasher's body. Thus, although the firearms expert testified that the casings at the murder scene were consistent with the rifle found at Jenkins Way, N.T. argues that no evidence connected the .223 casings to Blasher's body or demonstrates he was killed by any of the three shooters seen on the surveillance video. N.T. suggests the evidence leaves open the possibility that the shots fired by these three hit only the cars, fence, or nothing at all, and that Blasher was killed by someone else.
N.T.'s arguments cannot prevail under our standard of review. N.T. speculates that Blasher could have been shot by someone other than the three shooters seen on the surveillance video and that the casings at the scene and bullet holes in the cars and fence could have been left on other occasions. But Blasher's body was found in the area where gunfire suddenly erupted as the three individuals caught on the surveillance footage reached the scene and began shooting, and although the police could not determine with certainty when the casings were left or the holes in the cars and fence were made, most of those in the fence appeared fresh to the crime scene investigator, and she could assess the age of holes in the cars "generally" because they rust over time. The bullet holes were in cars parked in a line in the immediate area of the shooting, near where the police found what appeared to be blood, and in a car that pulled out of that area as the shooting started. The holes in the fence and the casings were in the same area.
N.T. focuses on what he believes to be missing from the prosecution's proof. The proper focus, however, is on the evidence that was presented. (People v. Story (2009) 45 Cal.4th 1282, 1299 ["Court of Appeal erred in focusing on evidence that did not exist rather than on the evidence that did exist"].) Taken as a whole, this evidence was sufficient to support a conclusion, beyond a reasonable doubt, that the shooters captured on the video caused Blasher's death, N.T.'s speculation about other possibilities notwithstanding.
C. Identity
Considerable evidence established N.T.'s identity as the individual who got out of the black Lexus, shot a rifle at the scene where Blasher's body was found and returned to the Lexus. The Lexus was registered to the mother of N.T.'s girlfriend, Hernandez. The same car was observed in the driveway of Hernandez's home within half an hour of the shooting being reported, did not leave the house overnight, and remained there when officers arrived to search the premises the next morning. Cell phone records placed N.T.'s phone near the crime scene about nine minutes before Officer MacGrath received the call about the shooting at 10:33 p.m. and in the area of Hernandez's house about an hour later. Both N.T. and his phone were at Hernandez's house when officers arrived the next morning, and surveillance officers had seen no one enter or leave the house overnight. A rifle consistent with the ammunition found at the scene was discarded through Hernandez's bedroom window by what appeared to be the arm of a black male at about the same time an officer inside the house saw N.T. standing by the window. The rifle was unloaded, and a magazine compatible with it was found by the bedroom window, loaded with the same brands of ammunition as the rifle bullet casings found at the murder scene. A backpack located in the bedroom contained medication bearing N.T.'s name, male clothing, an AR-15 magazine loaded with several brands of .223 rounds, two of which were consistent with casings at the murder scene, a Glock .40-caliber magazine loaded with .40-caliber live rounds, some of which were the same brand as that of casings found at the murder scene. A North Face sweatshirt found in the bedroom was consistent with the one worn by the suspect with the rifle in the video.
In addition, the second car involved in the shooting was registered to the home of Demariye Lewis and observed at that address shortly after the murder, and Lewis and the keys to the Buick were found there the next morning. Detective Terrell believed Lewis, like N.T., was a member of STTE, and some of the photographs on which Terrell based her opinion that N.T. was an STTE member showed N.T. and Lewis together. Blasher was believed to be a member of rival gang Crescent Park, and Terrell explained how STTE members would be motivated to hurt or kill Crescent Park members in retaliation for the killing of STTE member Golina the night before Blasher's murder. This evidence offered an explanation for N.T.'s involvement in the crime.
Also, N.T.'s mother left their home the morning after the murder with a bag containing a .40-caliber magazine loaded with bullets of brands matching casings at the murder scene, an unloaded .40-caliber extended drum magazine, an unloaded rifle magazine consistent with the rifle located at Jenkins Way, ammunition consistent with that rifle, as well as .40-caliber ammunition of brands consistent with casings at the scene and an envelope with N.T.'s name and address containing other gun-related items.
N.T. likens what he views as the insubstantial evidence in this case to that discussed in People v. Blakeslee (1969) 2 Cal.App.3d 831 (Blakeslee). Blakeslee found a murder conviction unsupported where the evidence implicating the defendant did not directly tie her to the crime, plausible inferences incriminated her brother and evidence "normally" expected in a circumstantial case was not present. (Id. at pp. 839-840.) The court concluded," 'To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence. This case presents a mass of undisputed evidence and unexplained facts that destroys confidence in any inference pointing to guilt. Each item of evidence against defendant is so weak and inconclusive that together they are insufficient to constitute proof beyond a reasonable doubt.'" (Id. at p. 840, quoting People v. Hall, 62 Cal.2d 104, 112.)
In Blakeslee, the victim was shot during an approximately 20-minute interval when the defendant, her daughter, left their apartment. The only evidence against the defendant was that she was near the apartment around the time of the murder (which showed proximity but not necessarily opportunity); there had been friction between the defendant and victim in the past (but no evidence of physical violence or current quarrel); and the defendant gave a false account of her movements to the police (for which she offered a plausible explanation, and the refutation of which disproved her alibi and claimed ignorance of an accessible possible weapon but did not establish her presence in the apartment). (Blakeslee, supra, 2 Cal.App.3d at pp. 838-839.) In addition to viewing the evidence implicating the defendant as insubstantial, Blakeslee noted the absence of evidence normally expected in a prosecution based on circumstantial evidence, such as the murder weapon, evidence linking the bullets that caused death to a particular weapon or type of weapon, or evidence linking the defendant to a murder weapon. (Id. at pp. 839-840.) The court also noted that it could "draw an almost equally plausible series of inferences to build a case of murder against defendant's brother." (Id. at p. 840.)
The evidence in this case, as we have described at length, is not similarly insubstantial. N.T. attempts to undermine it by hypothesizing alternatives to the inferences linking him to the crime. He suggests that Hernandez or her mother could have been driving the Lexus; that the logo on the sweatshirt was difficult to discern from the video and in any event was so popular that the one found in Hernandez's room was not probative; that the cell phone information was not probative because it did not show the phone's specific location and someone other than N.T. could have had his phone; that the arm seen tossing the rifle out the window Jenkins Way could have been female despite the contrary view of the officer who observed it; and that someone could have entered the backyard by scaling the backyard fence without being observed by the officers watching the front of the house overnight.
In our view, N.T.'s alternative explanations for the evidence are not reasonable. Considering the totality of the evidence, it strains credulity to suggest that Blasher was killed at some time other than when the police responded to the scene or by someone other than the three individuals seen on the surveillance footage, that N.T.'s girlfriend or her mother was the person who got out of the Lexus and fired the rifle, that the rifle made its way to the backyard in some manner other than what the officers in the backyard observed, or that something the surveillance officers at Jenkins Way did not see happened overnight to explain the presence of the evidence found there was unconnected to N.T. N.T.'s suggested explanations for individual pieces of evidence are no more than speculative possibilities; to the extent any might be a reasonable possibility in and of itself, that reasonableness disappears when all the circumstances are considered together. In any event, even if the inferences N.T. suggests were reasonable, "[w]here circumstances reasonably justify a jury's findings of fact, a reviewing court's conclusion that such circumstances might also reasonably be reconciled with contrary findings does not justify reversal." (People v. Mejia (2012) 211 Cal.App.4th 586, 602.) "[I]t is the jury [or in this case, the juvenile court], not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (People v. Kraft, supra, 23 Cal.4th at p. 1054; see In re Brandon T. (2011) 191 Cal.App.4th 1491, 1495-1496.) Here, the juvenile court's findings rest on reasonable inferences that, in totality, support the court's conclusion, beyond a reasonable doubt, that N.T. committed this offense.
N.T.'s argument that the gang evidence was insufficient to establish motive and link him to the crime does not alter our view.[ N.T. argues that there was no substantial evidence to support the theory that the shooting was gang related. Specifically, N.T. argues there was no evidence Golina's death was a murder, no evidence of the circumstances of his death except that it did not occur in an area controlled by any particular gang, no evidence tying the death to Crescent Park or any other specific gang, and no evidence N.T. knew Golina, knew Golina was killed by Crescent Park (if he was), or knew Blasher was a gang member.
N.T.'s argument that the People's dismissal of the gang enhancements undermined the claim that he was an STTE member is not convincing. The enhancements were dismissed after the People's motion to transfer the case to adult criminal court was denied. The record does not explain the reason for dismissal of the enhancements, but any suggestion the People did not believe N.T. was a gang member is belied by the fact that the prosecution's theory of the case was that Blasher was killed by N.T. and other STTE members in retaliation for the murder of Golina.
The evidence that the murder was gang-related retaliation was supplied by Detective Terrell's testimony that she believed N.T., Lewis and Golina were members of STTE and Blasher was a member of Crescent Park, and her explanation of the importance of retaliation in maintaining the respect that "fuels a gang." Although, as N.T. points out, Terrell was not asked and did not expressly state her opinion as to whether Blasher's death was in retaliation for Golina's, she testified that she had an opinion on the matter and her testimony clearly supports the inference that she believed it was. Her opinion, based on her training and experience as an expert on the STTE and Crescent Park gangs in Richmond, would support a conclusion by the trial court that the shooting was motivated by retaliation on behalf of STTE.
In any event, as N.T. recognizes, motive is not a required element of murder. (People v. Gastelum (2020) 45 Cal.App.5th 757, 771, fn. 4.) N.T. argues the prosecutor made it a critical part of her case ("Some of the most crucial evidence in this case, Your Honor, is the motive") and points to cases noting that its absence can be a factor pointing to innocence. (People v. Gonzales (1948) 87 Cal.App.2d 867, 877 [presence or absence of motive "may be material where the evidence as to the identity of the criminal is circumstantial"]; People v. Tom Woo (1919) 181 Cal. 315, 328 [presence of motive is "evidence tending to prove guilt," "absence of motive tends to support the presumption of innocence"].) Even if the evidence of motive was as inconclusive as N.T. finds it, the other evidence we have discussed fully supports the juvenile court's conclusion that N.T. was one of the individuals who murdered Blasher.
D. Aiding and Abetting
The prosecutor's closing argument focused on evidence that N.T. shot and killed Blasher with the assault rifle found at Jenkins Way. In her rebuttal, responding to the defense argument that there was insufficient proof N.T. was "the shooter," the prosecutor argued that even if that were the case, he would still be guilty of first degree murder under theories of aiding and abetting or conspiracy. N.T. argues the murder finding could not be based on a theory of aiding and abetting or conspiracy because he did not receive proper notice of these theories. We disagree.
The United States Supreme Court has held that due process of law in juvenile delinquency matters "requires . . . notice which would be deemed constitutionally adequate in a civil or criminal proceeding." (Application of Gault (1967) 387 U.S. 1, 33.) "Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." (In re Hess (1955) 45 Cal.2d 171, 175.)" '[D]ue process requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense." (In re Robert G. (1982) 31 Cal.3d 437, 442, quoting Application of Gault, supra, at p. 33.) Such notice "must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.'" (Application of Gault, at p. 33.)
"Under California's practice of short-form pleading, an instrument charging a defendant as a principal is deemed to charge him as an aider and abettor as well. ([Pen. Code,] § 971.)" (People v. Quiroz (2013) 215 Cal.App.4th 65, 70.) This is because "[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed." (Pen. Code, § 31.) Consequently, "one may be convicted of aiding and abetting without the accusatory pleading reciting the aiding and abetting theory so long as defendant is charged in that pleading as a principal to the substantive offense and thus receives notice of the charge against him." (People v. Greenberg (1980) 111 Cal.App.3d 181, 188; see People v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12, quoting Greenberg.)
N.T. contends Penal Code section 971 does not apply to juvenile proceedings because it addresses the requirements for an "accusatory pleading" and petitions in juvenile cases are not included in the statutory definition of "accusatory pleading." (Pen. Code, § 691.) Section 971 addresses two points: First, it abrogates "[t]he distinction between an accessory before the fact and a principal, and between principals in the first and second degree"; and second, it provides that "no other facts need be alleged in any accusatory pleading" other than those required to be alleged against a principal. N.T. does not contest the application of the substantive principle set forth in section 971-that an aider and abettor is a principal just as is a direct perpetrator-in delinquency proceedings. He simply contends that the procedural component that section sets forth does not apply because section 691 defines "accusatory pleading" in a way that does not specifically include wardship petitions. But even if he is correct that this means the procedural aspect of Penal Code section 971 does not apply to delinquency proceedings, this does not affirmatively establish that wardship petitions are required to state whether the prosecution intends to prove the alleged offense under an aiding and abetting theory.
Moreover, N.T.'s argument is founded on the constitutional requirement of notice as a matter of due process. He did not lack sufficient notice to allow him to prepare a defense. While the case focused on N.T.'s role as the shooter of the AR-style rifle, the People maintained from the outset that N.T. was one of three individuals who conspired and collectively acted to murder Blasher. The surveillance video showing the cars passing the apartment complex and three individuals exiting the cars, then firing weapons and running back to the cars, was put in evidence on the first day of the transfer hearing, June 14, 2021, and Detective Sagan, one of the officers who viewed the footage, testified. Thus, although juvenile wardship proceedings do not include preliminary hearings (which, N.T. points out, are the "touchstone of due process notice to a defendant" in adult criminal cases (People v. Jones (1990) 51 Cal.3d 294, 312)), N.T. was aware from the start that he was alleged to have acted together with two other individuals. The emphasis on collective conduct never altered: At the jurisdictional hearing, the prosecution stressed that two cars stopped next to each other on Harnett Avenue before passing the apartment complex, then returning and parking on Hartnett; three individuals emerged from the two cars and walked together to the complex, fired their weapons, returned to the cars together and drove away together. It could not have been a surprise that N.T. could be viewed as aiding and abetting his compatriots as well as personally causing Blasher's death.
The People argue that, in any case, N.T. was not prejudiced by any lack of notice of the aiding and abetting theory because, in finding true the alleged firearm enhancement under Penal Code section 12022.53, subdivision (d),[ the juvenile court demonstrated it did not find N.T. committed first degree murder by means of vicarious liability. N.T., in his reply brief, agrees that the court's findings show it did not rely on the aiding and abetting or conspiracy theories.
The petition alleged the firearm enhancement under three subdivisions of Penal Code section 12022.53. Subdivision (b) requires imposition of a 10-year enhancement where a person who, in committing a specified offense, "personally uses a firearm"; subdivision (c) requires a 20-year enhancement for a person who "personally and intentionally discharges a firearm"; and subdivision (d) requires a 25-year enhancement for a person who "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to a person other than an accomplice." In finding the alleged enhancement true, the court cited all three subdivisions, but it stated its finding in the language of subdivision (d), and its calculation of the maximum term of confinement reflects the sentence attached to that subdivision.
We are not convinced that sustaining the section 12022.53, subdivision (d) enhancement necessarily made the aiding and abetting and conspiracy theories irrelevant. The Penal Code section 12022.53, subdivision (d) enhancement requires that in committing the underlying offense, the person "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death." (Italics added.) The evidence supports the conclusion that N.T. personally discharged the assault rifle when the three individuals opened fire; it did not establish which weapon fired the bullets that caused Blasher's death. But the evidence did not need to establish that Blasher was killed by a bullet from the weapon N.T. fired for the juvenile court to find the Penal Code section 12022.53, subdivision (d) enhancement true. (People v. Bland (2002) 28 Cal.4th 313, 337-338.) "A person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet.... If defendant did not fire the bullets that hit the victims, he did not personally inflict, but he may have proximately caused, the harm.... [¶] [S]ection 12022.53[, subdivision] (d) does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant's personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result." (Id. at pp. 337-338.)
Whether N.T. murdered Blasher by personally firing a bullet that caused his death or murdered him by firing his weapon together with others and collectively causing the death, the evidence supports the juvenile court's findings.
II.
Reversal for Prosecutorial Misconduct Is Not Required.
N.T. contends the prosecutor engaged in extensive misconduct during her closing arguments, stating facts outside the record, exaggerating evidence, appealing to emotions and relying on inadmissible evidence she had deliberately elicited. He argues he was denied effective assistance of counsel by his attorney's failure to object to the misconduct.
A. General Principles
It is prosecutorial misconduct to misstate the law or go beyond the record (People v. Fayed (2020) 9 Cal.5th 147, 204 (Fayed)), and" '[i]t is improper for a prosecutor to appeal to the passion or prejudice of the jury.' [Citation.]" (People v. Rivera (2019) 7 Cal.5th 306, 337.) "However, the prosecution 'enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom.' [Citations.])" (Fayed, at p. 204.) "Ultimately, the test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury." (People v. Dennis (1998) 17 Cal.4th 468, 522.)" 'A defendant asserting prosecutorial misconduct must . . . establish a reasonable likelihood the jury construed the remarks in an objectionable fashion.' [Citations.]" (Fayed, at p. 204.) But even remarks that are "harsh and unbecoming" and "hyperbolic and tendentious" may constitute reasonable inferences from the evidence where there is "no reasonable likelihood that the jury understood the words otherwise." (People v. Rowland (1992) 4 Cal.4th 238, 277; People v. Gonzales (2011) 51 Cal.4th 894, 947; see Fayed, at p. 204.)
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order." (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Silva (2001) 25 Cal.4th 345, 373.) A conviction will not be reversed for such misconduct, however, "unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (Crew, at p. 839.)
Following a jury trial, "[t]o preserve a claim of prosecutorial misconduct on appeal,' "a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety. [Citations.]" [Citation.] The failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm.' [Citations.]" (Fayed, supra, 9 Cal.5th at p. 204.) Following a trial to the court, since there is no jury to admonish, "a claim of prosecutorial misconduct is not cognizable on appeal . . . if an objection would have cured the harm." (People v. Scott (1997) 15 Cal.4th 1188, 1217.)
B. Analysis
Defense counsel did not object to any of the statements he now claims constituted prosecutorial error. N.T. argues his claim should not be deemed forfeited, however, because an objection would have been futile. He maintains that the misconduct was pervasive-a "hyperdramatic, tendentious and exaggerated" argument with misstatements interspersed throughout-and repeated objections would have risked annoying the court without changing the prosecutor's approach.
This argument would have more force if counsel had objected to some of the prosecutor's remarks before giving up when it appeared futile to continue. The court had not been unreceptive to defense objections during the course of the hearing; it sustained many of defense counsel's objections on varying grounds during witnesses' testimony, and during the prosecutor's rebuttal argument the court sustained defense counsel's objection that the prosecutor was repeating points made in her original closing. We see no reason to think the court would have been less receptive to well-founded objections raised during the prosecutor's argument. Nevertheless, given N.T.'s alternative suggestion that defense counsel was ineffective for failing to object, we find it most expedient to address the merits of his prosecutorial error claim. (People v. Azcona (2020) 58 Cal.App.5th 504, 515.)
Our analysis is necessarily informed by the fact that this was a juvenile case tried to the court, not a jury. Courts have recognized that referring to facts not in evidence"' "tend[s] to make the prosecutor his own witness- offering unsworn testimony not subject to cross-examination," '" which" 'can be "dynamite" to the jury because of the special regard the jury has for the prosecutor.'" (People v. Rodriguez (2020) 9 Cal.5th 474, 480, italics added.) Here, to the extent the prosecutor's comments misstated or went beyond the evidence, there was no jury to mislead and "[i]t is very unlikely the misconduct would have had a significant effect on a trial judge." (People v. Scott, supra, 15 Cal.4th at p. 1217.)
Most of the comments N.T. sees as misstatements or references to facts not in evidence were in fact reasonable inferences drawn from the evidence.[
There is no merit to N.T.'s argument that the prosecutor improperly appealed to passion and prejudice by "adultif[ying]" him, "often" referring to him as "Mr. T[]" while referring to the victim-who was five years his senior-as a child. N.T.'s example of the latter is a reference to Blasher as "a 22-year-old kid." This was the sole such reference in the prosecutor's argument; the prosecutor otherwise referred to the victim as "Mr. Blasher" or "Jaloni Blasher," the same form of address she used for N.T. even in the same paragraph as her "kid" reference.
N.T argues the prosecutor misstated the evidence by repeatedly asserting that 54 rounds were fired at Blasher when, in his view, there was no evidence the 54 casings found in the area were from this incident or resulted from shots aimed at Blasher and the projectiles found in and with Blasher's body demonstrate no more than that two projectiles struck him. While Detective Cubit, the crime scene investigator, acknowledged that the age of the casings and bullet holes at the scene could not be precisely determined, she testified that most of the holes in the fence appeared "fresh" and she could tell "generally" how long those in the cars had been there because there would be rusting over time. The casings were found in the same area where the surveillance footage showed weapons firing, Blasher's body was found, Cubit observed what appeared to be blood, the cars with bullet damage were parked and the fence with bullet holes was located. This evidence supported the prosecutor's statements that 54 shots were fired in Blasher's direction.
The prosecutor's statement that "54 founds were fired at Mr. Blasher, piercing through his body and ripping through his skin, ripping his body to shreds" was hyperbolic, as N.T. maintains, as there was no evidence Blasher's body was literally ripped to shreds. Still, to the extent the comment was improper, this was argument to the court, not a jury, and the court was well versed in the evidence, including witnesses' testimony and photographs of Blasher's injuries.
Another claimed misstatement is similar-that N.T. "unload[ed] 20 rounds into his body" and "drove away without an ounce of remorse." N.T. argues that only two bullets were found in Blasher's body and there was no evidence of how many shots were fired at him or by whom, or whether whoever fired the shots felt remorse. The first part of the prosecutor's statement was based on the evidence: the surveillance video, casings, bullet damage to the fence and cars, and location of Blasher's body supported the inference that the three assailants were firing at or toward Blasher; 20 casings consistent with having been fired by the rifle located at Jenkins Way were among the 54 casings found at the murder scene; and substantial evidence supported the identification of N.T. as the person seen with this weapon in the surveillance video. The statement that 20 shots were "unload[ed] . . . into his body" was hyperbolic but, again, unlikely to have misled the court. We agree that there was no evidence to support the prosecutor's statement that N.T. felt no remorse. But this statement, which came at the end of the prosecutor's introductory remarks before turning to discussion of the evidence, added little to the point she was making-that N.T. made a choice to "needlessly and senselessly" murder Blasher in a "horrific" episode of gang violence. The court surely realized the evidence did not address the presence or absence of remorse in the shooters as they ran from the scene and understood the prosecutor's statement as an attempt to underscore the horrific nature of the crime and decision to commit it.
N.T. challenges the prosecutor's argument that the cell phone records showed he was in Crescent Park territory and at the murder scene. This was indeed an exaggeration, as the evidence made clear that cell phone tower technology is imprecise and can indicate only a general area, not a specific location. But defense counsel highlighted this limitation of the evidence in cross examination and closing argument, and the evidence did generally support the prosecutor's point in that the phone was near the murder scene just before the murder and near Jenkins Way an hour later. We are confident the court recognized the prosecutor's comment as hyperbole and was not misled. As for N.T.'s argument that the cell tower evidence showed only where the phone was, not necessarily where he was, N.T.'s phone was in
Hernandez's bedroom the morning after the murder, and the surveillance officer had seen no one arrive at or leave her house between 11:00 p.m. and the search team's arrival. It was a reasonable inference from this evidence that the phone was indeed with N.T. and not someone else at the time of the murder. Again, we are confident the court understood that the prosecutor was arguing an inference to be drawn from the evidence.
N.T. also argues the prosecutor misstated the facts in several times referring to him going to Jenkins Way "immediately" after the murder. In N.T.'s view, there was no basis for this statement because the actual time Blasher was shot is not known and the first officer did not arrive at Jenkins Way until about half an hour after the shots were reported, which was not "immediate." While there is no evidence of the exact distance between the murder scene and Jenkins Way, there was evidence that the cell towers located near each of the two locations were approximately five or six miles apart. Given the distance and the fact that the Lexus was already at the house when the first officer arrived, the prosecutor's statement was not substantially inaccurate.
Similarly, it is highly unlikely the court was misled by arguments such as, "[w]e know that [N.T.] is driving the black Lexus," "we know he's a gang member," and "we know that the black Lexus returns immediately to . . . Jenkins Way." N.T. maintains such argument improperly implied the prosecutor had personal knowledge of the facts. The court undoubtedly understood the prosecutor was arguing the conclusions she wanted the court to draw from the evidence rather than suggesting she was aware of additional evidence that had not been presented in court.
The prosecutor's statement that Blasher was standing by the white Mazda that pulled out of its parking space when the shooting started, which N.T. argues was unsupported by the evidence, was also a reasonable inference drawn from the evidence. The white Mazda sustained bullet damage, as did the cars parked by it and the fence behind, and Blasher's body was found on the sidewalk by these cars. It is reasonable to infer Blasher was standing in this area when the shooting began.[
N.T. also cites the prosecutor's statement in her opening argument that Blasher was standing with a group of people when the shooting began. Whether Blasher was with a group of people appears less relevant than his location, though neither add a great deal to the evidentiary picture. Blasher was obviously there, as that is where the police found him. As we have said, N.T.'s speculation that Blasher could have been shot at some other time or by different people than the ones seen on the surveillance video, seems to us to strain credulity. We do note that in reviewing the video clip, we saw at least one person at the rear side of the white car just before the shooting. Our review was without the benefit of the magnification used by the officers who reviewed it. The officers did not discuss this point in their testimony and there is no evidence of the person's identity.
We agree with N.T. that the prosecutor exceeded the limits of the evidence by asserting that N.T. "ha[d] the magazines for his guns and the other guns used in the murder." There was no evidence that N.T. possessed magazines for the nine-millimeter firearm, and the firearms expert did not analyze the .40-caliber casings or magazines. At most the evidence suggested that N.T. was in possession of magazines for the type of weapon fired by one of the shooters. Still, it is unlikely the court was misled into believing there was evidence establishing that N.T. possessed magazines for the weapons actually used by both of the other shooters. The witnesses' description of items found in Hernandez's bedroom and the backpack was straightforward and made no mention of nine-millimeter ammunition or magazines; all the magazines and ammunition from the bedroom and backpack (as well as from the bag in N.T.'s mother's possession) were for .223- and .40-caliber weapons. It is not likely the prosecutor's reference to "guns" in the plural led the court to believe otherwise. Nor is it likely the court was misled into thinking the .223- and .40-caliber ammunition and magazines necessarily were for the actual weapons used in this case as opposed to being for the same type of weapons. Even with the rifle and .223-millimeter casings the firearms expert analyzed, the court limited the expert to testifying that the casings were consistent with having been fired from the rifle, not that this connection was established to any degree of certainty. It is hardly likely the prosecutor's argument caused the court to, in effect, ignore the principle underlying this ruling and conclude that the magazines and ammunition found with N.T.'s belongings were necessarily ones used in the incident.
N.T. also points to the prosecutor's assertion that Hernandez's mother was not a member of STTE as unsupported by any evidence. Detective Terrell testified that although she was not aware of whether there were female members of the gang, she had never come across a female member and had never heard of Hernandez as associated with STTE; she was not asked and did not testify about any connection between Hernandez's mother and the gang. The challenged remark was part of the prosecutor's response to "the outrageous accusation that I heard from defense that it was Ms. Yon or Ms. Hernandez." The prosecutor argued that "we know that's not true" because N.T. "has" the gun, the car, the sweatshirt, the phone, the ammunition, the magazines and the motive, then stated that Detective Terrell testified that she had not heard of Hernandez or of women in STTE, that Hernandez was not a member of STTE and that her mother was also not a member of the gang. The prosecutor went on to note testimony that the shooter appeared to be male from his build, body type and gait. In context, although the remark about Hernandez's mother went beyond the evidence, the court would surely have recognized this, and that the prosecutor was voicing what she believed to be a strong inference from the evidence. The remark was not proper, but there is no reasonable probability it would have improperly influenced the court's view of the evidence.
Finally, N.T. points to the prosecutor's reference to the firearms expert's testimony that it would be unreasonable to believe casings at the murder scene were fired by any gun other than the one found at Jenkins Way. N.T. argues the prosecutor elicited this testimony from the expert in violation of the court's ruling that the expert could testify only that the casings were consistent with that firearm, then relied on the excluded testimony in argument. The record reflects that the court did not see the question and testimony as violating its ruling, and neither do we. During the firearms expert's testimony, defense counsel objected when the prosecutor asked whether, based on the expert's opinion and observations, it would be "unreasonable to believe another firearm made the marks left on the casings at the crime scene," and the witness responded, "yes." The objection was overruled. When defense counsel later raised the issue again, saying he thought the question was "just another way of saying the thing that was not allowed by the Court," the prosecutor responded that the ruling only prohibited the witness from stating his opinion "to any scientific degree of certainty," and the witness's opinion that it would be "unreasonable" was "in line with the court's ruling." The court stated, "I thought it was," then assured defense counsel it was "limiting my consideration of that evidence to whether or not it was consistent with having been fired from that-" In light of the court's stated understanding of the expert's testimony, it was not improper for the prosecutor to refer to the testimony in her closing argument.
In sum, while the prosecutor argued vigorously and sometimes with dramatic hyperbole, her statements were not divorced from or substantial mischaracterizations of the evidence. The matter was not argued to a jury. It is "very unlikely" the prosecutor's improper remarks "would have had a significant effect on [the] judge" (People v. Scott, supra, 15 Cal.4th at p. 1217), and we see no reasonable probability that the judge would have reached a conclusion more favorable to N.T. in the absence of the challenged statements.
III.
The Restraining Order Is Invalid.
At the disposition hearing, the People orally requested a "criminal protective order, no contact and stay-away" for the victim's brother and mother, stating that both were concerned and scared for their safety when N.T. was released. Defense counsel argued that N.T. had "expressed no interest in contacting or being around" Blasher's mother or brother and "I don't know that the District Attorney[] met their burden of showing that there's a likelihood of future conduct that this Court has to restrict." The court said it would issue "that criminal protective order" and confirmed that the prosecutor would submit the written order. The court explained to N.T. that the order "is the standard restraint on personal conduct, which means, [N.T.], that you cannot contact, either directly or indirectly, these individuals, harass them, stalk them, assault them, sexually assault them, or otherwise disturb their peace, and you must stay 100 yards away from them." The minute order for the disposition hearing states, "Criminal Protective Order issued as to [Blasher's mother]."
At a hearing on September 20, 2022, the prosecutor submitted the "CPO," which the court described as the "criminal protective order and the appropriate juvenile form." After defense counsel reviewed the order, the court stated that defense counsel "has no objection to it, so I will sign the same." The court recited the provisions of the order, stated it would not expire until September 20, 2032, and confirmed that N.T. understood. A "Restraining Order - Juvenile" (form JV-255) was filed on September 20, 2022, protecting Blasher's mother for the 10-year term.[
According to a declaration from the superior court's Juvenile Appeals Clerk filed in this court on January 10, 2024, although the September 7, 2022 minute order reflects that a criminal protective order was issued, "[i]n reviewing the record, no Criminal Protective Order has been filed."
N.T. correctly argues that the juvenile court had jurisdiction only to issue a juvenile restraining order. Juvenile court proceedings are not criminal proceedings. (§ 203.) Unlike a criminal protective order, which may remain in effect for up to ten years (Pen. Code, § 136.2, subd. (i)(1)), juvenile restraining orders are limited to three years' duration. (§ 213.5, subd. (d)(1).) Accordingly, the People agree that the restraining order in this case may remain in effect for only three years rather than the ten years ordered by the juvenile court.
N.T. also argues, however, that the restraining order is invalid because the juvenile court failed to follow required procedures in issuing it. The People do not respond to this argument. N.T. is correct.
As relevant here, section 213.5, subdivision (d)(1), provides: "The juvenile court may issue, upon notice and a hearing, any of the orders set forth in subdivisions (a), (b), and (c). A restraining order granted pursuant to this subdivision shall remain in effect, in the discretion of the court, no more than three years, unless otherwise terminated by the court, extended by mutual consent of all parties to the restraining order, or extended by further order of the court on the motion of any party to the restraining order." (Italics added.) The referenced subdivision (b), authorizes issuance of an ex parte order "enjoining the child from contacting, threatening, stalking, or disturbing the peace of a person the court finds to be at risk from the conduct of the child ...." (§ 213.5, subd. (b)(3), italics added.)[
Application for a temporary restraining order may be made orally at any scheduled hearing (Cal. Rules of Court, rule 5.630(c)(1)), but even a temporary restraining order requires notice in advance of the hearing, unless the prosecutor shows specified exceptions apply. (In re E.F. (2021) 11 Cal.5th 320, 324; § 213.5, subd. (b); Code Civ. Proc., § 527, subd. (c).) In any event, the order here was not a temporary restraining order. It was issued on form JV-255, the form used for restraining orders, not on the form for temporary restraining orders (JV-250), and the order was (erroneously) made effective for 10 years, far beyond the time limit for a temporary restraining order issued without notice. (§ 213.5, subd. (c)(1)). Further references in this opinion to rules will be to the California Rules of Court.
A juvenile restraining order thus requires notice and a hearing. (§ 213.5, subd. (d)(1); In re Jonathan V. (2018) 19 Cal.App.5th 236, 241-242.) As N.T. received neither, the order must be reversed.[
This decision does not preclude the juvenile court from issuing a new restraining order if warranted by the circumstances, upon proper notice and hearing, if N.T. remains a ward of the court. (In re Jonathan V., supra, 19 Cal.App.5th at p. 246, fn. 12; § 213.5, subd. (d).)
IV.
The Remaining Custodial Time Stated in the Disposition Order Is Incorrect.
At the disposition hearing on September 7, 2022, the juvenile court calculated N.T.'s predisposition credits as 735 days, stated the maximum term of confinement was age 25 and concluded N.T. had remaining custody time of four years and 360 days. The parties agree that this calculation is incorrect.
N.T. will turn 25 on February 14, 2028. Subtracting his 735 days of credit from his 25th birthday, the end of his maximum term of confinement is February 9, 2026. The parties agree that the number of days from the disposition hearing to February 9, 2026, is 1,251, meaning N.T.'s remaining custodial time is three years and 156 days.
We also agree. The juvenile court's disposition order must be corrected to reflect the remaining custodial time as three years and 156 days.
V.
The Maximum Term of Confinement Must Be Reconsidered.
Prior to June 30, 2022, section 875, subdivision (c), required the juvenile court to "set a maximum term of confinement for the ward in a secure youth treatment facility," limited by the sentence that could be imposed upon an adult for the same offense and the youth's age (not to exceed age 23 or age 25, depending on the offense). (Stats. 2021, ch. 18, § 12.) When N.T.'s disposition hearing was held on September 7, 2022, however, section 875 had recently been amended to provide: "(c)(1) In making its order of commitment, the court shall additionally set a maximum term of confinement for the ward 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." (Stats. 2022, ch. 58, § 41, eff. June 30, 2022.)
It appears neither the court nor the parties were aware of the statutory change, as there was no mention of it by the court or parties,[ the probation report stated the maximum term of 50 years to life or age 25, whichever comes first, without reference to the amendment or analysis of "facts and circumstances," and the court simply stated the maximum term based on the adult sentence.
As the People acknowledge, failure to object does not result in forfeiture in this context. (People v. Panozo (2021) 59 Cal.App.5th 825, 840 [no forfeiture where court misapprehends statutory sentencing obligations].)
The People recognize that N.T. is entitled to a disposition decision" 'made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Accordingly, the People agree with N.T. that the matter should be remanded for the juvenile court to exercise its discretion in setting the maximum term of confinement in accordance with section 875, subdivision (c)(1), as amended. We concur.
VI.
Reconsideration of the Baseline Term of Confinement Set at Disposition Is Required.
Section 875, subdivision (b) requires a juvenile court committing a ward to a secure youth treatment facility to "set a baseline term of confinement for the ward that is based on the most serious recent offense for which the ward has been adjudicated. The baseline term of confinement shall represent the time in custody necessary to meet the developmental and treatment needs of the ward and to prepare the ward for discharge to a period of probation supervision in the community." At the time of the dispositional hearing, the baseline term was to be determined "according to offense-based classifications that are approved by the Judicial Council" and, pending the adoption of such classifications, "utilizing the discharge consideration date guidelines applied by the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) prior to its closure and as set forth in Sections 30807 to 30813, inclusive, of Title 9 of the California Code of Regulations." (Ibid.) The juvenile court imposed the baseline of seven years required by these regulations. (Cal. Code Regs., tit. 9, § 30807, subd. (a)(1).)
As mandated by section 875, subdivision (b), on July 1, 2023, the Judicial Council adopted a "matrix of offense-based classifications" which juvenile courts have since been required to use instead of the DJJ guidelines. (§ 875, subds. (b)(1), (h)(2); rule 5.806(d).) Pursuant to this matrix, the baseline term for N.T.'s offense is a range of four to seven years. (Rule 5.806(d).) Rule 5.806(b) enumerates a non-exclusive list of criteria the juvenile court must consider in setting the base term "based on the individual facts and circumstances of the case."
The parties agree that because rule 5.806 offers the possibility of a lower baseline term of confinement, it is an ameliorative change that should be applied retroactively to the present case. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304, 307-309; In re Estrada (1965) 63 Cal.2d 740, 744-745.) In view of the People's concession, we will remand.
VII.
The Juvenile Court Erred in Failing to Consider Whether to Modify the Baseline Term of Confinement at the First Progress Review Hearing.
A. Background
N.T.'s final contention is that the juvenile court erred in failing to consider a reduction in his baseline term at the first six-month progress review hearing pursuant to section 875, subdivision (e)(1). This provision requires the juvenile court to hold a review hearing no less frequently than once every six months to consider the ward's progress and determine whether the baseline term of confinement should be modified, with discretion to reduce the term by up to six months. N.T. argues that he was denied due process by the court's failure to consider a reduction in the baseline term and denied effective assistance of counsel by his attorney's failure to advise the court of its duties, and that in light of his undisputedly excellent performance, it would have been reasonable for the court to reduce his baseline term by six months.
Section 875, subdivision (e)(1), provides: "The court shall, during the term of commitment, . . . schedule and hold a progress review hearing for the ward not less frequently than once every six months. In the review hearing, the court shall evaluate the ward's progress in relation to the rehabilitation plan and shall determine whether the baseline term of confinement is to be modified. The court shall consider the recommendations of counsel, the probation department and any behavioral, educational, or other specialists having information relevant to the ward's progress. At the conclusion of each review hearing, upon making a finding on the record, the court may order that the ward remain in custody for the remainder of the baseline term or may order that the ward's baseline term or previously modified baseline term be modified downward by a reduction of confinement time not to exceed six months for each review hearing. The court may additionally order that the ward be assigned to a less restrictive program, as provided in subdivision (f)."[
At the time of the hearing, this subdivision read as quoted. (Stats. 2022, ch. 58, § 41.) The current version of the subdivision includes a new last sentence reading, "The determination of whether the baseline term will be modified, or whether a youth will be assigned to a less restrictive program, is a judicial decision and the juvenile court's discretion may not be limited by stipulation of the parties at any time." (Stats. 2023, ch. 47, § 30.)
The probation report for the first review hearing on March 3, 2023, made no mention of section 875 or the possibility of reducing the baseline term of confinement, and neither the court nor the parties referred to the issue at the hearing. The court stated that probation had submitted "a glowing report" and commented, "[N.T.]'s doing really well. He's been on gold status throughout the program. He's halfway towards finishing his AA through the LMC program with a 4.0. Pretty impressive." Defense counsel commented, "it is about the best report you can get" and "the way he is handling his program is support for" the court's decision on the motion to transfer that N.T. "could be rehabilitated within the time required in juvenile court." The court reiterated its praise for N.T.'s progress, noting, "I don't think I've ever seen a report like that. Very impressive." The court then set the next hearing date.
The transcript of the hearing thus suggests neither the court nor the parties were aware of the court's discretion to reduce the baseline term, although that requirement had been in place since May 14, 2021, when section 875 was originally enacted. (Stats. 2021, ch. 18, § 12.) Indeed, the court's comments suggest it was not even aware of section 875's mandate for review hearings at least every six months: The court stated that probation had "suggest[ed]" setting a further review hearing in six months, "which I think makes sense and we should do that"-phrasing suggesting a discretion at odds with the statutory duty to hold another progress review hearing within six months.
B. Analysis
Failure to Appeal an Appealable Order Normally Precludes Review on Appeal.
N.T. did not appeal from the order. As the dispositional order is the judgment in a wardship case (In re M.T. (2019) 43 Cal.App.5th 947, 952; In re Gerald B. (1980) 105 Cal.App.3d 119, 123), the order on the six-month review hearing was appealable as a postdisposition order. (§ 800, subd. (a).) Under settled principles," '" 'an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.'"' [Citations.]" (In re G.C. (2020) 8 Cal.5th 1119, 1127 (G.C.).) The question here is whether an unappealed postdispostion order may be attacked on an appeal from a prior appealable order that is pending when the postdisposition order is entered.
N.T. contends we can and should review the first progress review hearing on the present appeal. He asks us to consider the "judgment" in secure youth treatment facility cases as including "at least the 30-day review hearing and the first six-month review hearing because these matters are dispositional issues which occur during the pendency of the appeal, often while the record is still being prepared, and may result in mooting the original disposition." N.T. reasons that when a ward is committed to a secure youth treatment facility, the disposition order is not actually a final order because it is "always subject to modification" and the Legislature intended and expected the baseline term would be reduced over time to reflect a ward's progress toward rehabilitation. In his view, section 875 is "entirely a dispositional statutory scheme" and the fact that the rules pertaining to application of section 875 appear in Article 4, entitled "Disposition," indicates that "orders from progress review hearings are considered part of the final disposition."[ He requests that we consider the notice of appeal filed on September 14, 2022, as having been prematurely filed as to the March 3, 2023 orders.
Rules 5.804, 5.806, 5.807, and 5.808 govern commitments to secure youth treatment centers-commitment, baseline term, progress review process and discharge, respectively.
Without responding to most of N.T.'s specific arguments, the People maintain that N.T.'s failure to appeal means this court has no jurisdiction to entertain issues arising from the first review hearing. The People liken this case to G.C., supra, 8 Cal.5th 1119. In that case, the juvenile court failed to perform its mandatory duty to declare whether wobbler offenses were misdemeanors or felonies at the dispositional hearing. (Id. at pp. 1123-1124.) Subsequently, the minor appealed from a hearing on a motion to modify disposition and, in that subsequent appeal, argued the issue of the court's failure to declare the offenses misdemeanors or felonies. (Id. at p. 1124.) G.C. held the issue could not be reviewed because the original disposition order had become final and could not be attacked on a subsequent appeal from a later order. (Id. at p. 1127.) This conclusion was a straightforward application of the settled principles above precluding review of an unappealed appealable order on the appeal from a subsequent order. G.C. did not address the issue presented here-whether an unappealed subsequent order may be reviewed on the appeal from an earlier one.
More relevant to our case, however, G.C. rejected the minor's argument that timely appeal from the later disposition conferred appellate jurisdiction on the theory that" '[j]uvenile proceedings are all part of one case.'" (G.C., supra, 8 Cal.5th at p. 1127.) The People see this theory as "no different" from N.T.'s argument that review hearings under section 875 are part of the final disposition. We agree that G.C. undermines N.T.'s argument that we have jurisdiction to review the first progress review hearing because we acquired jurisdiction with the appeal from the disposition hearing and, since that appeal remains pending, it is "just a matter of incorporating the continuing juvenile court proceedings into the pre-existing appeal."
We understand N.T.'s argument that commitments to secure youth treatment facilities differ from other dispositions in that section 875 itself contemplates ongoing modifications of the original disposition. But the argument raises more questions than it answers. If, as N.T. suggests, we have jurisdiction to review the first progress review hearing as part of the disposition, why not all such hearings? If we have jurisdiction over the first progress review because a prior appeal from the disposition order remains pending, logically we will have jurisdiction to review any additional review hearings if the original appeal remains pending long enough. If so, the ability to obtain appellate review of an unappealed order would turn on how long the appellate court takes to resolve the original appeal-quite an arbitrary result. Conversely, if the disposition order committing a ward to a secure youth treatment facility is not "final" because modifications to the baseline term are anticipated, the original disposition order itself would not be appealable.
The approach N.T. suggests is not tenable. The right to appeal is statutory (People v. Mena (2012) 54 Cal.4th 146, 155; Powers v. City of Richmond (1995) 10 Cal.4th 85, 108; People v. Garrett (1998) 67 Cal.App.4th 1419, 1421); because" 'the California Legislature has complete control over the right to appeal, it can restrict, change, withhold or even abolish that right.'" (In re Daniel K. (1998) 61 Cal.App.4th 661, 666.)[ The Legislature has determined that the judgment in a wardship case may be appealed "in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment." (§ 800, subd. (a).) As we have said, it has long been established that the dispositional order in a wardship proceeding is an appealable judgment. (In re Gerald B., supra, 105 Cal.App.3d at p. 123.) Consequently, postdisposition orders that are not timely appealed may not be reviewed on appeal. (G.C., supra, 8 Cal.5th at p. 1127.) The Legislature could have enacted specific procedures to govern appeals in section 875 cases, but it did not do so. A change in the usual rules of appealability as significant as what N.T. proposes must come from the Legislature.[
The caveat to this principle is that "although the Legislature may regulate the mode of appellate review, it may do so only to the extent that it does not thereby' "substantially impair the constitutional powers of the courts, or practically defeat their exercise."' [Citations.]" (Powers v. City of Richmond, supra, 10 Cal.4th at p. 110.)
N.T. further suggests that requiring a separate notice of appeal after each six-month review "would create an enormous burden for the courts and counsel." "Yet, orders made by the juvenile court at review hearings held every six months are routinely appealable." (In re S.B. (2009) 46 Cal.4th 529, 537.)
We are not persuaded by N.T.'s request to treat his notice of appeal from the dispositional order as a premature notice of appeal from the subsequent six-month progress review hearing. We have discretion to treat a premature notice of appeal, filed "before the judgment is rendered or the order is made," as if it was filed after rendition of the judgment or making of the order. (Rule 8.406(d); People v. Jones (1981) 125 Cal.App.3d 298, 299, fn. 1.) "Typically, premature appeals are deemed to be timely when the decision being appealed from has been made preliminarily, but is not yet final[,]" as when a notice of appeal is filed after the verdict but before pronouncement of judgment or after announcement of an intended decision but before entry of final judgment. (In re Ricky H. (1992) 10 Cal.App.4th 552, 558, 559, overruled on other grounds in In re A.R. (2021) 11 Cal.5th 234, 251, fn. 2.) Here, however, the notice of appeal was from the dispositional order. We fail to see how we can consider it a notice of an appeal from an order entered after a hearing six months later other than by accepting N.T.'s argument that the review hearing is part of the dispositional hearing, which we reject for the reasons stated above. (See People v. Denham (2014) 222 Cal.App.4th 1210, 1214 [where notice of appeal was from judgment, "it would be inconsistent to also treat it as a premature notice of appeal from the [separately appealable] victim restitution order"].)[
After stating that the appeal is from "[f]inding of jurisdiction and disposition [¶] 9/7/22," the notice of appeal indicates that "[t]he order appealed from was made under Welfare and Institutions Code [¶] . . . [¶] section 725" and lists the dates of hearing as "9/7/22 & many others." N.T. suggests this reference to "many others" "could be read to include the order from the March 3, 2023 hearing which was scheduled at the time of the dispositional hearing on September 7, 2022." This suggestion, again, depends on acceptance of N.T.'s position that the "order being challenged is effectively a part of the judgment entered September 7, 2022 since review hearings are expressly contemplated and required." Since the notice of appeal expressly states it is from the jurisdiction and disposition findings, and the jurisdiction hearing was held over multiple dates, the most reasonable interpretation is that the reference to "many others" under "[d]ates of hearing" is to the dates of the jurisdiction hearing.
C. N.T. Received Ineffective Assistance of Counsel.
N.T. argues, alternatively, that his attorney rendered ineffective counsel by failing to familiarize himself with section 875 and advise the court of its obligation to consider a reduction in the baseline term; in failing to request such a reduction; and in failing to file a notice of appeal from the order made at the first progress review hearing.
"The due process right to effective assistance of counsel extends to minors in juvenile delinquency proceedings." (In re M.V. (2014) 225 Cal.App.4th 1495, 1528.) "When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Section 875 became effective almost two years prior to the first progress review hearing on March 3, 2023, and, as enacted, clearly required the court to consider whether to modify the baseline term and authorized it to reduce that term by up to six months. (Former § 875, subd. (e)(1), Stats. 2021, ch. 18, § 12, eff. May 14, 2021 [court "shall determine whether the baseline term of confinement is to be modified" and "may order that the ward's baseline term be modified downward by a reduction of confinement time not to exceed six months"].) The amendment that took effect on June 30, 2022, approximately eight months before the first progress review hearing, clarified that these provisions apply at each review hearing. (Stats. 2022, ch. 58, § 41.)
Section 875 was part of a major restructuring of the juvenile justice system, which included closing the Division of Juvenile Justice and creating local "secure youth treatment facilities" in its stead. (In re J.B. (2022) 75 Cal.App.5th 410, 427, fn. 12; Sen. Rules Comm., Sen. Floor Analysis of Sen. Bill No. 92, as amended April 8, 2021, p. 2.) The court and parties were obviously aware of section 875 at the disposition hearing: The court committed N.T. to a secure youth treatment facility, made findings on each of the criteria section 875, subdivision (a)(3) requires to be considered in finding a less restrictive, alternative disposition was unsuitable, set the baseline term of confinement and set the review hearing "pursuant to SB92." Yet at the first progress review hearing, as we have detailed, none of the participants-the probation department, counsel, the court-even mentioned the baseline term, much less address whether it should be modified.[
Although it is not within the scope of our review on this appeal, we note that even at the second progress review hearing in August 2023, the court's and counsel's comments confirm that they were not yet familiar with the provisions of section 875 concerning the baseline term: Defense counsel asked the court if it had "learned about" the baseline term of confinement "because it's confusing" and informed the court that the new baseline term of confinement for murder was four to seven years. No one mentioned the possibility of a six-month reduction of the baseline term. The bulk of defense counsel's comments concerned when N.T. might be considered for a change in custodial status, in particular release with an ankle monitor once the case reached the four-year minimum end of the range for the new baseline term applicable to his offense. N.T. did appeal from the second review hearing and, with the People's concurrence, the case was remanded for reconsideration by order of this court. (In re N.T., A168919, Nov. 14, 2024.)
As described in the probation report, N.T.'s progress as of the first review hearing was exemplary. The court described the report as "glowing" and "very impressive," commenting that it did not think it had "ever seen a report like that." Defense counsel offered that the report was "about the best report you can get."
Considering N.T.'s reported progress, we can fathom no tactical reason for counsel's failure to request a downward modification of N.T.'s baseline term of confinement. Section 875 certainly allowed him to do so. In fact, counsel subsequently told the court that at the first and second review hearings he had not been aware that the court was required to consider at every review hearing whether the baseline term should be modified. As already noted, by the time of the first review hearing, section 875 had been in effect for almost two years, and the amendment expressly stating that the court's duty to consider a reduction in the baseline term applied at every hearing had been in effect for almost eight months.
"Counsel is 'expected . . . to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.'" (People v. McCary (1985) 166 Cal.App.3d 1, 8.) "[W]here the record reveals that counsel has failed to research the law or investigate the facts in the manner of a reasonably diligent and conscientious advocate, and that defendant was prejudiced as a result, the conviction should be reversed on the ground of deprivation of adequate assistance of counsel." (People v. Walker (1993) 14 Cal.App.4th 1615, 1624.) "[I]t is counsel's duty to represent his client zealously within the bounds of the law" (People v. Cropper (1979) 89 Cal.App.3d 716, 720) and "a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." (People v. Scott (1994) 9 Cal.4th 331, 351.) Defense counsel's failure to familiarize himself with section 875 fell below reasonable standards for an attorney practicing in this area of law.[
Not only did counsel fail to advocate for N.T. with respect to reduction of the baseline term of confinement, counsel appeared to argue against N.T.'s interest: After praising N.T.'s progress, counsel went on to say, "[i]t's a marathon though; it's not a sprint," and with an analogy to team sports, suggested that N.T. was "winning right now, so knock him down a peg and tell him he needs to finish this thing strong as well." "[I]t is counsel's duty to . . . refrain from arguing against his client." (People v. Cropper, supra, 89 Cal.App.3d at p. 720.) N.T. does not appear to have been prejudiced by this suggestion, however, as the court responded, "I don't think I have to. I think he's so self-directed and motivated-this is what I read from the report-that he's on the right path."
Although N.T.'s undisputed progress did not entitle him to a six-month, or indeed any, reduction in his baseline term (In re Tony R. (2023) 98 Cal.App.5th 395, 408-411), the court made clear that it was greatly impressed with N.T.'s progress. Accordingly, we cannot say there was no reasonable probability the court would have granted any reduction. The failure to bring the issue to the court's attention and request a reduction in the baseline term constituted ineffective assistance of counsel. Counsel's failure to file a notice of appeal compounded the ineffective representation and prejudice by depriving N.T. of any opportunity to correct the error.
We have already concluded this case must be remanded for reconsideration of several issues. On remand, the court should also consider whether N.T.'s baseline term should have been modified at the first progress review hearing.
DISPOSITION
The orders sustaining the petition and committing N.T. to the Briones Youth Academy - Secure Pathway are affirmed.
The restraining order is reversed without prejudice to the court entertaining any future, properly noticed, request for a juvenile restraining order.
The matter is remanded with directions for the juvenile court to:
1. Reconsider and set the maximum term of confinement pursuant to the amended section 875, subdivision (c)(1).
2. Reconsider the baseline term set at disposition in accordance with rule 5.806 of the California Rules of Court.
3. Correct the dispositional order to reflect remaining custodial time of three years and 156 days.
4. Consider whether the baseline term should have been modified at the first progress review hearing and make the findings required by section 875, subdivision (e)(1).
We concur. RICHMAN, J. DESAUTELS, J.