Filed 4/6/22 In re A.N. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Totten, Judge. Affirmed in part, reversed in part, and remanded with directions.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

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The juvenile court sustained a petition against A.N. that alleged murder, a gang enhancement, and gang-related firearm enhancements. The prosecution relied on a gang member’s felony vandalism conviction to prove the enhancements. We reverse the enhancements because the Legislature recently amended the gang statute and omitted vandalism from the list of possible predicate crimes. We also remand for the court to recalculate A.N.’s custody credits.

Undesignated statutory citations are to the Penal Code.

I

This case involves three Welfare and Institutions Code section 602 petitions. The first two petitions are relevant only to an issue involving A.N.’s predisposition custody credits.

As to the first petition, on February 22, 2016, A.N. admitted committing misdemeanor grand theft (§ 487, subd. (c)) and the court placed him on probation.

On September 15, 2016, the prosecution filed the second petition, which alleged A.N. committed second degree robbery. (§ 212.5, subd. (c).) On October 4, 2016, the court found the petition true. The court credited A.N. with 23 days of predisposition custody, placed him at a school, and ordered his physical confinement not to exceed five years and four months.

On January 6, 2017, the prosecution filed the third petition. It alleged A.N. committed murder (§ 187, subd. (a)) on July 25, 2016, before the offense from the second petition. The petition alleged a gang enhancement (§ 186.22, subd. (b)(1)(C)) and three gun enhancements under section 12022.53.

We pause to explain the structure of the relevant gun enhancement statute. Section 12022.53 provides escalating punishments depending on the way a defendant uses a firearm. (Id., subds. (b) [10-year term for personally using firearm in a felony], (c) [20-year term for personally and intentionally discharging firearm in a felony], & (d) [25-year to life term for personally and intentionally discharging a firearm and proximately causing great bodily injury or death in a felony].) A court may find more than one subdivision true, but it may only impose one additional term of imprisonment under section 12022.53 per person for a single crime. (Id., subd. (f).)

Under section 12022.53, subdivision (e), the escalating punishments of subdivisions (b), (c), and (d) also apply to defendants who are principals under certain gang-related circumstances. The defendant must have committed the felony for a gang, as set forth in section 186.22, subdivision (b), and any principal must have committed an act specified in section 12022.53, subdivision (b), (c), or (d). (§ 12022.53, subd. (e)(1).)

In A.N.’s case, the prosecution alleged each of the three escalating punishments—section 12022.53, subdivisions (b), (c), and (d)—and relied on section (e) for each allegation. Put another way, each gun enhancement allegation relied on the truth of the gang enhancement allegation.

The court held a five-day contested hearing in July and August 2020. The prosecution offered three theories of murder: A.N. shot the victim, A.N. aided and abetted the shooter with the intent to kill, or A.N. participated in an uncharged conspiracy to commit murder.

As to the gang enhancement, an officer introduced predicate offenses by gang members for felony unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and for felony vandalism (Pen. Code, § 594, subd. (a)).

On August 7, 2020, the court sustained the petition. The court did not find A.N. shot the victim but it found he was an aider and abettor with the intent to kill and an uncharged conspirator. It found the gang allegation true. The court said, “With regard to a principal personally armed in violation of 12022.53(c) and (e)(1), I find that to be true.” The court did not address the other section 12022.53 subdivisions on the record. An order from the same day lists only the section 12022.53, subdivision (d) allegation as true.

On November 5, 2020, the court committed A.N. to the Division of Juvenile Justice. A.N.’s commitment document shows the court aggregated the three petitions and found A.N.’s maximum commitment time to be 46 years and four months to life: 25 years to life for murder and 20 years for a section 12022.53, subdivision (d) gun enhancement from the third petition, one year for second degree robbery from the second petition, and four months for misdemeanor theft from the first petition. The court considered the individual facts and circumstances of the case under Welfare and Institutions Code section 731, former subdivision (c) and ordered A.N.’s maximum confinement to be 45 years to life. (§ 731, subd. (c) has been repealed and reenacted as § 731, subd. (b) without substantive change. [Stats. 2021, ch. 18, § 8.].)

The court credited A.N. with 1,000 days of predisposition custody credit.

II

Due to a change in the law, A.N.’s gang enhancement and the related firearm enhancement are invalid. We address this issue first and then turn to his predisposition custody credits.

A

Section 186.22 provides for additional punishment when a person commits an enumerated felony to benefit a gang. (Id., subd. (b)(1).) The gang must have a pattern of criminal gang activity. (Id., subd. (f).)

During the pendency of this appeal, the Legislature enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (AB 333), which amended section 186.22 to require proof of additional elements to establish a gang enhancement. (Stats. 2021, ch. 699, § 3, eff. Jan. 1, 2022.) A.N.’s judgment was not final when the law took effect and he is entitled to the benefit of the amendment. (People v. Lopez (2021) 73 Cal.App.5th 327, 477 (Lopez).)

Pertinent to this appeal, AB 333 changed the requirements to prove a pattern of criminal gang activity by limiting the type of predicate offenses that are sufficient to prove the enhancement. Felony vandalism is no longer listed as a predicate offense. (§ 186, subd. (e)(1).) Thus we must reverse the gang enhancement because the second predicate offense is now invalid.

We must also vacate A.N.’s firearm enhancements. AB 333’s changes to section 186.22 affect not only the gang enhancement allegations under that statute but firearm enhancements that expressly incorporate this section, including section 12022.53, subdivision (e). (Lopez, supra, 73 Cal.App.5th at pp. 479–480.) The record of A.N.’s gun enhancement findings is indistinct. The reporter’s transcript refers to the subdivision (c) enhancement while a related order and his commitment document cite the subdivision (d) enhancement. As the prosecution notes, the commitment document lists a 20-year term, which is the term associated with subdivision (c), not subdivision (d). No matter which firearm enhancement or enhancements the court sustained, each allegation depended on subdivision (e), which incorporates section 186.22. Thus the changes AB 333 made to section 186.22 require us to vacate the true findings for any and all of A.N.’s firearm enhancements.

On remand, the prosecution must have the opportunity to prove the gang and firearm findings in compliance with the amended section 186.22.

Because we reverse the enhancements, we need not and do not address A.N.’s other arguments attacking his enhancements.

B

The court found A.N. was entitled to 1,000 days of predisposition custody credit, but he spent longer in custody. (See § 2900.5, subds. (a) & (d).) A January 2017 detention report says police arrested A.N. on January 5, 2017, but it also says he was “in secure custody since 10-25-16 when he was arrested for murder.” Using either start date, the court committed A.N. more than 1,000 days later, on November 5, 2020. We agree with A.N. and the prosecution that the appellate record is insufficient to calculate A.N.’s credits and we should remand for the juvenile court to calculate A.N.’ s actual custody time. On remand, the court must aggregate credits to include time A.N. was detained for each of the three petitions. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067–1068.)

• DISPOSITION

The judgment is reversed as to the gang and gang-related firearm enhancement allegation findings under sections 186.22 and 12022.53. The matter is remanded to the juvenile court for further proceedings consistent with this opinion. The prosecution may retry the gang and gang-related firearm enhancement allegations. On remand, the court must recalculate A.N.’s predisposition custody credits. The judgment is otherwise affirmed.

WILEY, J.

We concur:

GRIMES, Acting P. J.

STRATTON, J.