In re F.R.
Filed 6/10/13 In re F.R. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re F.R., a Person Coming
Under the Juvenile Court Law.
B239927
(Los Angeles
County
Super. Ct.
No. GJ28155)
THE PEOPLE,
Plaintiff and Respondent,
v.
F.R.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County. Robert
Leventer, Juvenile Court Referee.
Affirmed as modified.
Courtney M.
Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Blythe J. Leszkay and Gary A Lieberman, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * *
F.R.,
appellant, born in 1994, appeals from the order of wardship (Welf. & Inst.
Code, § 602) entered after the juvenile court sustained the petition alleging
he committed second degree robbery (Pen. Code, §
211)
name="_ftnref1" title="">[1] and
felony assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(1)), which offenses were committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). The court ordered appellant placed in a
camp-community placement program for nine months; set his maximum term of
confinement at 29 years and eight months; and awarded him 109 days
predisposition custody credit.
Appellant
contends the evidence is insufficient to support the true findings on the
robbery and assault charges and on the gang-related enhancements. He contends his maximum confinement term was
miscalculated, because the term on the assault charge should have been stayed
(§ 654) and the gang enhancement, which is a “status†enhancement, should have
been applied only once. He further
contends he is entitled to an additional 93 days of custody credit.
The
People concede the term on the assault charge should have been stayed and
contend the maximum confinement term should be modified to 18 years and four
months. The People also contend that
appellant failed to provide an adequate record to address his custody credit
claim. In reply, appellant acknowledges
the record is inconclusive and indicates his intent to pursue his claim before
the juvenile court.
Based
on our review of the record and applicable law, we modify the order to reflect
the term on the assault charge is stayed and the maximum confinement term is
18 years and four months. In all
other respects, we affirm the order.
FACTS
On
September 27, 2010, the juvenile court found true the allegations of the
petition filed April 19, 2010, that appellant committed felony battery for the benefit of a
gang (§§ 243, subd. (d), 186.22, subd. (b)(1)(B))
May 28, 2010, that appellant possessed for sale ecstasy, a controlled
substance (Health & Saf. Code, § 11378).
The court sustained both petitions and declared appellant a ward of the
court. Appellant was placed home on
probation for six months. The court
calculated his maximum confinement term as nine years on the felony battery
offense and gang enhancement, plus eight months for the possession for sale of
ecstasy offense.
The
petition filed November 16, 2011, alleged that appellant committed a second
degree robbery for the benefit of a gang (§§ 211, 186.22, subd.(b)(1)(C); count
1) and felony assault by means likely to produce great bodily injury for the
benefit of a gang (§§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B); count
2). The victim in both counts was C.M.
Hearing
On
November 10, 2011, about 9 p.m., following a high school football game at the
Rose Bowl in Pasadena, C.M., who was in the 10th grade, was walking with his
sister along with his girlfriend and her sister, when they decided to see who could
reach home first. They then ran off in
different directions.
C.M.
ran past appellant who was with eight or nine males across the street. He knew appellant from school as “Paco†and
was aware that appellant was in a gang called “W.C.S.,†the Wicked Chronic
Smokers.
Becoming
tired, C.M. started walking. He looked
back and saw appellant running toward him.
While standing in front of C.M., appellant asked where he was from. C.M. responded, “I am from nowhere. I don’t bang.†When appellant asked if C.M. was “from
Summits,†C.M. replied, “No.â€
Appellant
punched C.M. above his left eyebrow, which caused bleeding. C.M. became dizzy and closed his eyes for
five seconds but did not fall. Appellant
took C.M.’s wallet from his sweater’s left pocket, which contained about seven
dollars, and walked away with his companions.
C.M. yelled for the return of his wallet. Appellant threw it on the ground. When C.M. retrieved the wallet, the money was
missing.
On
November 14, 2011, Pasadena Police Officer David Garcia noticed a one-inch cut
and bruising over C.M.’s left eye.
In
a tape-recorded police interview, appellant indicated he was from the W.C.S.
gang and he was known as “Paco.†He
explained that prior to his confrontation with C.M., a group of males had tried
to assault him outside the Rose Bowl but he got away. Later, appellant was walking with several
people when one of them described the male who ran across the street as someone
who had tried to assault appellant earlier.
Appellant
ran up to that male and asked, “Who you with?â€
The male responded he was with no one and pushed appellant, who then
punched him once in the face. Appellant
denied taking anything from the male.
At
the adjudication hearing, C.M. had a small linear scar where appellant had
struck him. He admitted he was scared
during the incident, because he was by himself.
C.M. denied he swung at or pushed appellant beforehand or that he had
any altercation with appellant earlier that night.
Oscar
C. testified he had been friends with appellant, whom he knew as Paco, for
years but did not know whether appellant was a W.C.S. gang member. Oscar C. explained he was walking with
appellant, M.E., and two others when a male walked toward them, stopped, looked
directly at appellant, and ran. Someone
from the group yelled that the male was the person who had “jumped†appellant
earlier. Appellant, followed by the
others, ran after the male. After
appellant caught up with him, the two argued.
The male pushed appellant and appellant then punched the male in the
face. The male stumbled, stepped
backwards, and crossed the street.
Appellant and his group walked away.
Oscar C. never saw appellant reach into the male’s sweatshirt.
M.E.,
appellant’s friend, testified she saw appellant and a male swing at each
other. She saw someone tumble to the
ground on his knee but did not see appellant or anyone pushing or hitting
anybody. She never saw appellant grab
anything from the male’s clothing.
Pasadena
Police Officer Carlo Montiglio, the People’s gang expert, testified that
appellant was a W.C.S. gang member and his moniker was Paco. The Summit Street Smokers gang was a rival of
W.C.S. Montiglio opined that appellant committed
the assault and robbery crimes for the benefit of W.C.S. He explained that a gang member would ask
“where are you from†to ascertain a person’s rival gang and to terrorize
him. The questions “where you from†and
“who you with†are not necessarily different in this context, because both were
used to determine whether the person addressed was a rival gang member.
During the
police interview, appellant indicated he thought the victim was part of the
group that had assaulted him earlier. In
confronting him, appellant specifically asked, “Are you with the Summits?†Officer Montiglio opined appellant’s assault
of the victim was a “classic case of gang retaliation,†because appellant
needed to assault his rival to avoid losing face and to enhance his and his
gang’s reputations and to demean the rival gang. Montiglio testified that by assaulting the victim, who knew
appellant’s gang status and moniker, appellant furthered his gang’s reputation
and created an atmosphere in the community which would allow the gang to commit
crimes without fear of law enforcement involvement.
Montiglio
explained that when a gang member commits a robbery, the money could be used to
further gang activities, such as the purchase of narcotics or weapons. Additionally, W.C.B. committed “licks,†the
“street term for robberies, to establish [W.C.B.’s] violent nature.â€
The
juvenile court sustained the petition.
The court found true the allegations of the petition and the assault
offense to be a felony. The court also
found the assault and robbery to be “gang-related†because appellant committed
the crimes for “revenge on a gang-related jumping that occurred that
evening.†The court ordered appellant to
remain a ward of the court; and removed custody of appellant from his parents. The court placed appellant in the camp-community
placement program for nine months; calculated the maximum confinement period to
be 29 years and eight months; and awarded appellant 109 days predisposition
credit.
DISCUSSION
I.
Supported by Substantial Evidence
Appellant
contends the assault, robbery and gang true findings are unsupported by the
evidence and the order therefore must be reversed. The evidence is in fact substantial.
A.
of Review
“Where
the juvenile court has sustained a petition, an attack on the sufficiency of
the evidence to support that ruling is governed by the
‘The test on appeal is whether substantial
the trier of fact, not whether the evidence proves guilt beyond a reasonable
doubt. The court must view the entire
record in the light most favorable to the judgment (order) to determine whether
it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the minor
guilty beyond a reasonable doubt.’
[Citation.]†(
572, 577.)
Similarly,
“[i]n considering a challenge to the sufficiency
the evidence to
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]
We presume every fact in support of the judgment the trier of fact could
have reasonably deduced from the evidence.
[Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] ‘A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.’
[Citation.]†(
B.
Count
Appellant
contends his attack on C.M. did not rise to a level of an assault likely to
produce great bodily injury, because his punch only caused some bleeding. (See People
v. Young (2005) 34 Cal.4th 1149, 1210 (Young)
[battery based on punch causing inmate to bleed from nose and mouth].) Appellant further contends substantial
evidence establishes he simply punched C.M., who shoved him first, in
self-defense, which negates his culpability for an assaultive crime. His contentions are without merit.
“[W]hether
the victim in fact suffers any harm is immaterial†to the commission of assault
by “‘any means of force likely to
produce great bodily injury’†and a conviction of such crime may be based on
“the use of hands or fists alone.†(
1023, 1028, italics added.) “Great
bodily injury is significant or substantial injury. [Citation.]
Permanent or protracted impairment, disfigurement, or loss of function,
however, is not required.†(
1078, 1087.)
In
this instance, substantial evidence supports the juvenile court’s finding that
appellant’s punch to C.M.’s face was likely to produce great bodily
injury. The blow was hard enough to
cause C.M. to sustain a one-inch cut, which bled, and bruising over one eye and
to become dizzy. (See
1157, 1161 [rejecting contention that, as a matter of law, one blow to face
could not have been likely to cause great bodily injury].) Further, to entertain appellant’s
self-defense claim, we would have to reweigh the evidence and reevaluate the
credibility of witnesses, which functions are beyond the scope of our review.
C.
Count
Appellant
contends the true finding on the robbery count is not supported by sufficient
evidence, because C.M.’s testimony suggested appellant took the money from
C.M.’s wallet, but “there was also evidence to suggest that C.M. was not
telling the entire truth of what happened . . . , and . . . additional
evidence to suggest that appellant did not in fact take anything from
C.M.†He further contends the evidence
of robbery was deficient, because “the use of force or fear was exhibited prior
to any evidence of the formation of intent to take.†These contentions lack merit.
Initially,
we point out, as appellant acknowledges, the testimony of a single witness is
sufficient to support a true finding on the robbery count. We are foreclosed from reevaluating C.M.’s
credibility and reweighing the evidence.
(People v.
also, Young, supra, 34 Cal.4th at p.
1181.) C.M.’s testimony that the money
inside his wallet was gone after appellant stole the wallet therefore
constitutes substantial evidence that appellant stole C.M.’s money.
Contrary
to appellant’s claim, substantial evidence exists that he used force and fear
with the intent to steal from C.M. “To
support a robbery conviction, the evidence must show that the requisite intent
to steal arose either before or during
the commission of the act of force.
[Citation.]†(
34, italics added.) “‘Intent is rarely
susceptible of direct proof and usually must be inferred from the facts and
circumstances surrounding the offense.’ [Citation.]†(People
v. Ortiz (2012) 208 Cal.App.4th 1354, 1365.)
The
evidence established that appellant believed C.M. was a member of the rival
Summit Street Smokers gang, which had attacked appellant earlier that evening,
and supports the inference that appellant punched C.M. in retaliation. The evidence, however, supports the further
inference that appellant also punched C.M. to make it easier to rob him by
making him dizzy and fearful. A street
robbery was a primary activity of appellant’s W.C.S. gang. As the juvenile court explained, “This is one
continuous transaction that takes place in a matter of seconds. The money was taken during the use of force
and threat of force. I don’t think the
force ended just when [appellant] punched [C.M.] in the eye.â€
D.
Enhancement
Appellant
contends the gang enhancement true findings are unsupported by the evidence,
because no evidence was presented that when appellant “robbed or assaulted C.M.
that he was in the presence of any other members of W.C.S.,†and thus, he was
not “in service to other gang members at the time of the underlying offenses.â€
The
gang enhancement applies to “any person who is convicted of a felony committed
for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members.†(§ 186.22, subd. (b)(1), italics added.) The three ways in which the felony may be
committed are phased in the disjunctive.
Substantial evidence supports the inference that appellant committed the
assault and robbery “for the benefit of . . . [the] criminal
street gang,†W.C.S. Whether any other
W.C.S. gang member was present when appellant assaulted and robbed C.M.,
therefore, is of no moment.
Appellant’s
reliance is misplaced on the phrase “with the specific intent to promote,
further, or assist in any criminal conduct by gang members†for a contrary
conclusion. He argues the significance
of this language is other gang members must be present at the time the
perpetrator commits the underlying crime(s) to establish the gang
enhancement. The law is otherwise.
In People
v. Rodriguez (2012) 55 Cal.4th 1125, our Supreme Court concluded although a
gang member acting alone cannot be convicted of the gang participation offense
(§ 186.22, subd. (a)), that gang member could still be subject to having his
felony conviction enhanced by the gang enhancement (§ 186.22, subd. (b)(1)).
The Court explained, “Section
186.22(a) and section 186.22(b)(1) strike at different things. The enhancement
under section 186.22(b)(1) punishes gang-related conduct,
i.e., felonies committed with the specific intent to
benefit, further, or promote the gang. [Citation.]
However, ‘[n]ot every crime committed
by gang members is related to a
[Citation.] As such, with section
186.22(a), the Legislature sought to punish gang
a felony regardless of whether such felony was gang
related. [Citation.]†(People
v. Rodriguez, supra, 55 Cal.4th
at p. 1138.) Although excluded from gang
participation offense culpability, “[a] lone gang member who commits a felony
will not go unpunished; he or she will be convicted of the underlying felony. Further, such a gang member would not be
protected from having that felony enhanced by section 186.22(b)(1), which
applies to ‘any person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .’†(
II.
Mandated
Appellant
contends the maximum confinement term cannot stand, because the juvenile court
should have stayed the confinement term for the assault offense and the gang
enhancement should have been applied only once, because it is a status
enhancement. The People concede the
confinement term for the assault offense should be stayed but disagree the gang
enhancement is a status enhancement. The
People contend the maximum confinement term should be modified from 29 years
and eight months to 18 years and four months, because the juvenile court
erred in imposing the four-year upper term for the felony battery plus five
years for the attendant gang enhancement instead of one year, or one-third the
three-year middle term, plus one year and eight months, or one-third the
five-year term, for that gang enhancement.
We concur with the People.
of Maximum Confinement Term by Juvenile Court
The
juvenile court set appellant’s maximum term of confinement at 29 years and
eight months. The maximum confinement
term on the current petition was calculated as follows: The juvenile court imposed the five-year
upper term for the robbery offense, plus 10 years for the related gang
enhancement, and one year, or one-third the three-year middle term, for the
assault offense, plus four years for the related gang enhancement. For the earlier petitions, the court imposed
the four-year upper term for the felony battery offense, plus five years for
the related gang enhancement, and eight months, or one-third the two-year
middle term, for the drug-related offense.
B.
of Assault Confinement Term Pursuant to Section 654
Appellant
contends, and the People concede, the confinement term for the assault offense,
which includes the attendant gang enhancement, must be stayed pursuant to the
multiple punishment bar of section 654.
We agree. The act of force used
to commit the assault was the same force used to commit the robbery. (See People
v. Flowers (1982) 132 Cal.App.3d 584, 588–590.)
C.
Enhancement Proper as to Both Assault and Robbery Offenses
Appellant
contends the gang enhancements “look more like status enhancements and less
like conduct enhancements,†because “these enhancements speak not to the manner
in which appellant carried out the [assault and robbery offenses] but rather to
his status as a member of the W.C.S. [gang,]†and thus, the gang enhancement
should have been applied only once. We
disagree.
“Sentence
enhancements are generally of two types:
those which go to the nature or status of the offender, and those which
go to the nature or circumstances of the offense. [Citation.]
An enhancement which is based on the defendant’s conduct in committing
the charged offense, such as the personal use of a weapon or the infliction of
great bodily harm, is imposed on the count to which it applies. [Citation.] Enhancements based on prior convictions are
offender, rather than the manner of commission of a crime, they are applied
only once, in arriving at an aggregate sentence. [Citations.]
1051, 1057, fn. omitted; see also People
v. Coker (2004) 120 Cal.App.4th 581, 587 [Status
enhancements are added to
reach final term rather than to each count].)
Appellant
misapprehends the scope of the gang enhancement, which applies to “any person,â€
not just a gang member, “who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.†(§ 186.22, subd. (b)(1).) Accordingly, the gang enhancement is not a
“status enhancement,†because gang membership of the perpetrator is not an
element.
D.
Maximum Confinement Term
On
the current petition, the juvenile court correctly calculated the maximum
confinement term for the assault and robbery offenses and their attendant gang
enhancements as 20 years, i.e., the five-year upper term for the robbery
offense (§ 211), plus ten years for the gang enhancement (§ 186.22, subd.
(b)(1)(C)), and one year, or one-third the three year middle term, for the
assault offense (§ 245, subd. (a)(1)), plus four years for the gang enhancement
(§ 186.22, subd. (b)(1)(A)).
name="_ftnref3" title="">[3] However, as discussed above, the term on the
assault offense and the related gang enhancement must be stayed.
As
for the two earlier petitions, the court miscalculated the confinement term as
nine years and eight months, i.e., the four-year upper term for the felony
battery offense, plus five years for the gang enhancement, and eight months, or
one-third the two-year middle term, for the drug-related offense. Eight months is proper for the drug-related
offense, but the court should have imposed a one-year term, or one-third the
three-year middle term, for the battery offense, plus one year and eight
months, or one-third the five-year term, for the gang enhancement. (See §§ 243, subd. (d), 1170.1, subd. (a).)
In
sum, the proper maximum confinement term is 18 years, plus four months, i.e.,
the five-year upper term for the robbery, plus ten years for the related gang
enhancement; one year for the felony battery, plus one year and eight months
for the gang enhancement; and eight months for the drug-related offense. The order must be so modified.
III.
Appeal for Lack of Adequate Record
It
appears the juvenile court awarded appellant 109 days of predisposition custody
credit based on the date of his arrest on November 14, 2011, for the current
offenses through March 1, 2012, the date of the disposition hearing on the
petition. Appellant contends this credit
must be increased by 93 days, because “[i]t appears from the Clerk’s Transcript
that [he] was ordered into custody on April 15, 2010 [on the initial petition]
and was not released until a subsequent preadjudication hearing held on July
16, 2010.â€
The
People contend, and appellant concedes, the record is inadequate for this court
to address the claim for additional credit.
We agree and reject appellant’s claim for additional predisposition
credit without prejudice to him raising his claim before the juvenile court.
DISPOSITION
The
order is modified to reflect the term on the assault charge is stayed and
appellant’s maximum confinement term is 18 years and four months. In all other respects, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise stated.
the petition alleged in counts 1 and 2 that appellant committed the crime of
assault by means likely to produce great bodily injury (§ 245, subd.(a)(1)) for
the benefit of a gang (§ 186.22, subd. (b)(1)(B)). At the hearing, the court dismissed both
counts and added as count 3 the allegation that appellant committed the crime
of felony battery (§ 243, subd. (d)) for the benefit of a gang (§ 186.22,
subd. (b)(1)(B)).
