Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JW07-6001
POLLAK, J.
This is one of four appeals now before us arising from a single trial in which wardship and commitments to the Division of Juvenile Justice (DJJ) have been imposed on four minors for their roles in a gang-related shooting in which one innocent youth was killed and another wounded.
On March 16, 2007, Antwanisha Morgan, Thomas J., Antoine S., Chante P., and other young people were talking outside a recreation center in the Bayview District of San Francisco. About a month earlier, some of these youths (not identified as members of any gang) had chased members of the G-3 criminal street gang away from a talent show at the recreation center where the gang members had started a disturbance. On March 16, three members of the G-3 gang, T.Tr., E.R., and D.B., returned to the center and two of the three shot at the group of youths that were congregated there, killing Antwanisha and wounding Thomas J. Immediately after the shooting, all three drove off in a waiting car driven by Kamisha Gray and occupied by two other gang members, T.Tu. and another youth. An expert on criminal street gangs testified that he believed each of the four accused minors was a member of the G-3 gang, and that the shooting was in retaliation for the prior incident at the talent show and an attempt to rehabilitate the reputation of the gang by instilling fear in the community.
Because so many juveniles were involved in this case, for clarity we have used initials to identify those against whom wardship petitions were brought and the first names and last initials to identify those juveniles who were not parties to the proceedings. Individuals identified by their full names are not minors.
The juvenile court found that T.Tu. committed conspiracy, first degree murder, two counts of attempted murder, and assault with a deadly weapon. The court also found that he committed these crimes for the benefit of or in association with a criminal street gang. T.Tu. was committed to the DJJ for a maximum of two terms of 25 years to life for the conspiracy and the murder, and additional concurrent terms for the remaining offenses. A sentence of 10 years was imposed but stayed for the gang enhancement.
T.Tu. appeals, arguing that there was insufficient evidence to support the finding that he was responsible for the crimes as a coconspirator or as an aider and abettor, or to support the gang enhancement. He also argues that the court abused its discretion in committing him to the DJJ. We conclude that there was substantial evidence to support the juvenile court’s findings and that the court properly exercised its discretion in its dispositional order. For the reasons discussed in our opinion in In re E.R. (Oct. 21, 2010, A124706) ___ Cal.App.4th ___, the finding on the murder count must be reduced to murder in the second degree. In all other respects we shall affirm.
Background
Approximately one month before the shooting, Antoine was in a dance competition at the International School for the Arts (ISA), a high school. During the performance an altercation occurred between “two different crowds.” Antoine’s friend Chris was also present and Antoine saw “somebody else come on in front of him and shake... their hair in front of him. The next thing I know [is] the staff... came in between and was breaking it up.” The person who shook his hair in Chris’s face had dreadlocks.
Alex H. was also present at the ISA talent show and was also at the recreation center on March 1. He testified that while Antoine was dancing at the talent show “[p]eople got on stage and they started shaking their dreads in [Antoine’s] face.” One boy repeated this behavior with Chris, who was standing next to Alex. Alex pushed the boy who did this and the two started arguing. Alex was asked if “shaking your dreads [is] part of a dance, ” and he answered that it was not, but also testified that some of the people shaking their dreadlocks were doing so as part of a dance. Thomas J. was also in the audience at the ISA talent show. He left when the fight broke out.
Chante P. was at the talent show with Antoine, Alex and two other young people. She saw some girls come in through the side door who she described as “loud and disrespectful” to Chante and her friends. They were “walking by us and pushing us and mugging us.” She had previously seen the girls in the Potrero Hill neighborhood. One of the girls made a phone call and T.Tu. (also known as Bad Boy) and some other boys came into the auditorium through the side door. “They said let’s have a... dance battle. And they were dancing on stage.... And somebody pushed another person. And that person got mad. And then they was about to fight. And a security guard that was there said you guys are not going to fight in here. Take that outside.” Everyone left the auditorium. Then “everybody started arguing, ” and Alex, Antoine and another boy followed T.Tr. and T.Tu. up Potrero Hill.
On March 16, Antoine, Antwanisha, and several other youths were standing outside of the Bayview recreation center on Third Street between Revere and Quesada waiting for Antwanisha’s mother. Three boys walked by. Antoine heard a sound “like a firecracker” and Antwanisha fell to the ground. One of his friends grabbed Antoine and they ran. As they were running they heard “bullets hitting on cars and the wall and the street.” Antoine heard “a lot” of shots; some sounded like firecrackers and the others sounded “a little bit louder, sounded like a gun.” Thomas J. was shot in his hip. He saw two boys, each holding a gun.
A witness was sitting in her car at the intersection of Quesada and Third Street on March 16 when she “heard some popping sounds.” She looked to her left and saw an African-American person wearing dark clothing shooting a gun. When he had fired five or six shots, he “went up the street. There was a car sitting there waiting. And [he] got in the car and the car took off.” She reported the license plate number of the car to the police.
Chante was standing in front of the recreation center when Antwanisha was killed. “A group of boys walked down the street. And we stopped talking. And put our heads down. And they walked by us.” There were four or five boys in the group. They walked around the corner onto Quesada, arguing. At the corner the boys looked back at the group in front of the recreation center. One of the boys came back around the corner and began shooting. “His gun got jammed. And another boy came around the corner and started shooting....” She recognized the first shooter as “E-Boy” or E.R. and the second shooter as “Bad Boy, ” or T.Tu. She identified a third person in the group as D.B.
Chante’s testimony that T.Tu. was one of the shooters is at odds with other testimony and the prosecutor’s theory of the case that T.Tu. remained in the car and that T.Tr. was the second shooter. When the court entered its findings, it found that Chante was a more credible witness than Kamisha but nevertheless found not true the allegations that T.Tu. had personally discharged a firearm.
Chante later testified that she did not know D.B. and had not seen him that night, but said that she had based her testimony that he was present on the fact that “someone told [her] that they thought [D.B.] was there with the shooters.”
Chris C. was at the ISA talent show and had been friends with Antwanisha since they were seven or eight years old. He was also present in front of the recreation center on March 16. He saw a boy with a gun in his hand who also had his hands over his face. The boy said to Calmes, “You got five, ” and in response Calmes ran.
Kamisha testified that on March 16, she drove T.Tu., T.Tr., D.B., E.R. and a boy named “Smed” to Third Street and Quesada. She turned onto Revere and stopped at the corner because someone in the car said, “There he is.” D.B., T.Tr. and E.R. got out of the car. Kamisha pulled the car forward and parked on Quesada. T.Tr. and E.R. fired shots then got back in the car along with D.B. While E.R. and T.Tr. were shooting, D.B. “was standing there. He wasn’t doing nothing.” As they drove away, T.Tu. opened the door of the car and said to some people, “You see how we do.” The three boys who had gotten out of the car talked about the shooting and said that “somebody should have got hit.” Kamisha drove them to D.B.’s house.
Kamisha was given immunity for her testimony and placed in a witness protection program.
Kamisha left D.B.’s home with T.Tu. They drove to Kamisha’s house, then to Potrero Hill. While they were driving, another car in which there were three people wearing masks pulled alongside them. Kamisha pulled onto the freeway with the other car following behind. On the freeway, someone in the other car shot at them and T.Tu. shot back. When Kamisha pulled off the freeway, she collided with another vehicle, then got out of the car and ran.
On December 21, 2007, the district attorney filed a petition under Welfare and Institutions Code section 602 alleging that T.Tu. had committed conspiracy (Pen. Code, § 182, subd. (a)(1)) (count 1); murder (§ 187) (count 2); two counts of attempted murder (§§ 187, 664) (counts 3 and 4); and assault with a firearm (§ 245, subd. (a)(2)) (count 5) with allegations that he had discharged a firearm and caused great bodily injury (§ 12022.53, subd. (d)), that he was a principal (§ 12022.53, subd. (e), and that the conspiracy was committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 667.5, subd. (c)(7).
Further statutory references are to the Penal Code unless otherwise specified.
Leonard Broberg, a member of the San Francisco Police Department Gang Task Force, testified as an expert on gang culture in San Francisco. He has been aware of and investigated the “25th Street” gang since 1996. The gang’s territory is the Potrero Hill housing development. G-3 is a subset of the 25th Street gang. “Zoo Block” is another gang that occupies the Potrero Hill Annex on the north side of the housing development. Broberg identified the 25th Street Gang as a criminal street gang for the purposes of section 186.22.
Broberg identified a “My Space” web page associated with D.B. There was a photograph of T.Tu. on that page with the caption “G-3.” On a page of a notebook that belonged to D.B., T.Tu., “Smed, ” and T.Tr. were identified as other members of the 25th Street Gang. T.Tu. was there identified as “Rocket F.”
According to Broberg, field identifications “are used to document contacts with individual[s] in areas that don’t necessarily rise to a police report being generated.... FIs just document individuals, document association and... where they are located.” The police use field identifications to determine whether an individual is a gang member by showing ongoing associations and territories. Broberg testified that there had been four field identifications of T.Tu. by police officers. The first was on July 24, 2006, on 25th Street, which Broberg testified was significant because T.Tu. was “present in the gang’s territory and he is associating with [J.C.], who is a documented Zoo Block gang member.” The next two identifications were November 31, 2007, and December 3, 2007, also in 25th Street Gang territory. The final identification was December 7, 2007, again in 25th Street Gang territory and with D.B. and [Smed]. Broberg found this last contact to be significant because T.Tu. was associating with two 25th Street Gang members in the gang’s territory. In addition to these identifications, Broberg based his opinion that T.Tu. was a gang member on photographs of T.Tu. with other members of the 25th Street Gang, photographs of T.Tu. flashing the gang’s sign, and an incident where he “was arrested for discharging a gun at an inhabited dwelling on the 1800 block of 25th Street. He was arrested with [Smed], and [T.Tr.] was detained at the time. And it was determined... that he was firing at the house because the woman was perceived to be snitching.” Broberg testified that “[s]nitching is where you’re cooperating with the police or you’re telling on someone, ” and that it is “pretty much a crime punishable by death by... gang members.”
Broberg identified a letter found at D.B.’s house as having been written by T.Tu. The letter said, “What’s up with bra man. This be little bra Rocket attack.... I can’t wait... till [you] get out so I can be with the thugs. Man for real.... Free big bra Gutt.” Broberg testified that “Rocket” was T.Tu.’s gang moniker and that the letter indicated that T.Tu. was anxious for D.B., whose gang moniker was “Gutta, ” to be released from custody so he could rejoin the gang. Finally, Broberg identified a hooded sweatshirt that had been taken from T.Tu.’s house with writing on it that said, “Rocket, ” and “G-3.” Based on this evidence, Broberg opined that T.Tu. had been a member of a criminal street gang on March 16, 2007.
Broberg testified that “[o]ne of the things to remember about gang culture is the fact that fear and respect are interchangeable. In order to be respected, you have to be feared. In order to be feared, you have to resort to acts of violence.” “In order to be a member of the gang, you’d have to have gained their respect. You’ve also had to gain their confidence. And this is done in any number of ways, but most of all it’s by your actions and by showing your loyalty to the gang... either [by] committing acts on behalf of the gang, participating in criminal activities of the gang, or if you’re arrested at various points and you’re not snitching on the gang.” In Broberg’s experience, “gang members aren’t going to commit acts of violence or extremely heinous acts with someone that they don’t trust. And in order to trust you, you pretty much need to be a member of the gang or a really trusted associate and that may be one... seminal act that will get you to cross over from being just a mere associate as to being a member within the gang. Also, committing an act of violence, again, what you’re doing then is you’re establishing your reputation not just within the gang but you’re establishing your reputation outside the gang.... And an individual... in order to be respected within a gang culture, you need to be feared. The more feared you are, the more respected you are. And then the gang benefits because the gang will be more respected because they will be feared. And this is usually accomplished through acts of violence.”
The fact that everyone in the car that day was a gang member or an associate of the gang indicated to Broberg that everyone in the car was supporting each other and participating in the crimes. The fact that three of the people in the car were dropped off and the car waited for them nearby suggested that the crimes were planned. He testified that gang members commit crimes together “in order to give each other moral support. They’ll commit crimes together, depending on some of the factors where maybe they need to help protect or act as lookouts or serve as an additional person that can shoot or protect the gang.”
Broberg was of the opinion that the crimes in this case were for the benefit of a street gang and were committed in retaliation for the incident at the talent show. He based that opinion on “the basic interchangeability of fear and respect. Some of the letters that I reviewed during the course of this investigation where they’re talking about the need to reestablish themselves, they need to assert themselves, references to G-3 and the members of G-3... that were not taken seriously.”
Broberg knew about the fight at the ISA talent show from speaking with the school’s principal. Broberg testified that “shaking dreads” in someone’s face is a sign of disrespect. He was aware that E-boy (E.R.), and T.Tu. were present at the talent show, as were the boys who were with Antwanisha in front of the recreation center the night of the shooting. The three youths who walked by the recreation center “made absolutely no attempt to conceal their identity because people recognize[d] them.” That was significant because “as they’re walking by they wanted people to know who they were or where they were from.” “The fact that they’re not worried about people identifying them just tells you the grip that this whole idea has in the community about... not snitching, about not cooperating with the police.... [T]hey weren’t concerned with who saw them. In fact, they wanted people to know that they were there, that they were sending that message of disrespect.”
The recreation center was “a neutral zone. That’s pretty much where kids can hang out and feel fairly safe....” The people who were shot at were not documented gang members. Broberg testified that the statement, “that’s how we do, ” was “a statement saying this is how we answer any forms of disrespect.” “This is... a reference to the fact that they’re willing to resort to violence in order to establish themselves.” Broberg believed that the shooting was committed because the gang needed to reestablish respect in answer to disrespect that had been shown at the talent show.
On January 16, 2009, the juvenile court sustained the petition and found true all of the allegations except that the court found not true the allegations that T.Tu. personally discharged a firearm in the commission of the crimes. The court committed T.Tu. to the DJJ for a maximum term of 25 years to life for the murder, and stayed a second term of 25 years to life for the conspiracy. The court imposed but stayed 10 year terms for the gang enhancements, and imposed concurrent five-year terms for the attempted murders. Finally, the court imposed a concurrent two-year term for the assault. T.Tu. timely appealed.
Discussion
Conspiracy
T.Tu. contends that there was insufficient evidence that he knew what D.B., E.R., and T.Tr. were planning to do and, therefore, that the court erred in sustaining the petition on a theory of conspiracy. “In resolving claims involving the sufficiency of evidence, a reviewing court must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] The supporting evidence must be substantial, that is, ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ ” (People v. Marshall (1997) 15 Cal.4th 1, 34.)
“The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself—‘an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.’ [Citations.] Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy.” (People v. Salcedo (1994) 30 Cal.App.4th 209, 215.)
“The elements of conspiracy may be proven with circumstantial evidence, ‘particularly when those circumstances are the defendant’s carrying out the agreed-upon crime.’ [Citations.] To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.’ ” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025.)
T.Tu. quotes People v. Weber (1935) 7 Cal.App.2d 620, 622 for the proposition that “mere association does not make a conspiracy, ” and argues that his “mere presence” in the car is insufficient to establish his participation in the conspiracy. The evidence, however, tends to show more than his mere presence in the car. T.Tu. was a member of the G-3 gang on the day of the shooting. Immediately upon the release from custody of D.B., the established gang leader, T.Tu. got into the car with other members of the G-3 Gang, they drove together to Third and Revere Streets where three of the gang members got out of the car to shoot at those who they believed had shown disrespect to the gang, while T.Tu. and Kamisha, a gang associate, drove to Third and Quesada Streets to wait for the three and act as a getaway vehicle. When the shooters returned to the car, it was T.Tu. who yelled, “You see how we do, ” which Broberg testified was a message that this was how the gang repaid perceived disrespect. The group, including T.Tu., returned to D.B.’s house together, and it was T.Tu. who returned fire when driving with Kamisha later that night. There was thus ample evidence showing T. Tu. to have participated in the conspiracy.
As noted in footnote 3, ante, there was a discrepancy between Chante’s testimony and Kamisha’s as to whether T.Tu. was one of the shooters. The court’s finding that T.Tu. did not personally discharge a firearm suggests that it believed that T.Tu. stayed in the car.
T.Tu. argues that Kamisha’s testimony that he shouted, “you see how we do” after the shooting is not credible because the version of events she related changed multiple times over the course of the investigation and trial. However, “ ‘we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’ ” (In re Stephen W. (1990) 221 Cal.App.3d 629, 642, italics added.)
Aiding and Abetting
T.Tu. also argues that the evidence was insufficient to support a finding that he was liable for the criminal offenses as an aider and abettor. “An aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ ” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) “[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
Although aiding and abetting is a distinct theory of liability from conspiracy, the same evidence that supports the juvenile court’s finding on the conspiracy count supports the finding that T.Tu. was liable for the murder, the two attempted murders and the assault because he aided and abetted the commission of those crimes.
Gang enhancements
T.Tu. contends there was insufficient evidence to support the allegations that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. Section 186.22, subdivision (b)(1) provides enhanced punishment for “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....” In order to be subject to this enhancement, “the prosecution must prove that the crime for which the defendant was convicted had been ‘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.’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617, italics added.)
T.Tu. argues that, while there may have been evidence that he was a member of a criminal street gang, there was insufficient evidence that the offenses were committed for the benefit of that gang. In People v. Perez (1981) 114 Cal.App.3d 470, on which T.Tu. relies, the defendant argued that the trial court erred by admitting evidence that he was a member of a criminal street gang. (Id. at p. 476.) The appellate court found that the prejudicial effect of the evidence of gang membership outweighed any possible probative value, and on that ground held that the trial court had abused its discretion. (Id. at pp. 478-479.)
There is no similar argument here that the evidence of gang membership was irrelevant; rather T.Tu. argues that it was insufficient to support the allegation that the crimes were committed for the benefit of or in association with the gang. There was ample evidence that T.Tu. was in the company of gang members. There was evidence that D.B., T.Tu., T.Tr., and E.R. were members, and that Kamisha was an associate, of the G-3 gang. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) T.Tu.’s statement, “You see how we do, ” also substantiates the theory that the crime was committed for the benefit of the gang. The expert testified that the gang was trying to rehabilitate its reputation by instilling fear, and that gang members do not generally commit crimes with non-gang members.
T.Tu. argues that Broberg’s opinion that the crimes were committed for the benefit of or in association with a criminal street gang was inadmissible, relying on People v. Killebrew (2002) 103 Cal.App.4th 644. In that case, the police observed 10 men in three vehicles driving on the freeway, apparently together. (Id. at p. 648.) The officers recognized one of the men as a gang member and pulled over the car in which he was a passenger. (Ibid.) They observed another passenger in that car hide a gun under the seat. (Ibid.) The police arrested the occupants of the first car for possessing a gun, then found the other two vehicles at a nearby restaurant and arrested the occupants of those vehicles, at which time they found another gun. Killebrew had been observed by the officers watching the arrest of the occupants of the first vehicle from a street corner. (Id. at pp. 648-649.) The police arrested him as well and he was also charged with possession of the gun on a conspiracy theory. (Id. at p. 649.) One officer testified that Killebrew was a passenger in one of the vehicles, but two other officers testified that he was not in the vehicle. (Ibid.) The defendant challenged the admission of the testimony of a police officer who was an expert on gangs “that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652.) The Court of Appeal noted that the expert “testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action.” (Id. at p. 658.) The court further noted that that testimony “was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded.” (Ibid.) In reaching this conclusion the court distinguished Gardeley, in which the expert “addressed testimony about the primary purpose of the gang, and whether the attack was gang-related activity” (People v. Gardeley, supra, 103 Cal.App.4th at p. 654) as opposed to “testimony that a specific individual had specific knowledge or possessed a specific intent” (id. at p. 658).
In this case, Broberg testified about the objectives of the gang and that the shooting was gang-related. Based on his knowledge of gangs in general and gangs in San Francisco’s Potrero Hill neighborhood in particular, and the facts testified to by the percipient witnesses, he believed that T.Tu. and the others involved in the shooting were members of the G-3 gang. He interpreted the facts that the minors drove to the location of the shooting together, that three left the car while the other two drove to a near-by location and awaited their return for a getaway, and that T.Tu. shouted, “That’s how we do, ” as they drove away. His opinion that the crimes were committed for the benefit of the gang was based on evidence in the record. He did not, however, testify to T.Tu.’s intent or express an opinion as to how the case should be decided.
T.Tu. also contends that Broberg “chose to ignore” facts tending to negate an intent on his part to act for the benefit of the gang. T.Tu. acknowledges the evidence that supported Broberg’s opinion that T.Tu. was a gang member—the hooded “G-3” sweatshirt, the photographs of T.Tu. on D.B.’s MySpace page, the photographs of T.Tu. flashing gang signs, the letter from T.Tu. to D.B., and the field identifications of T.Tu. with other gang members. He then points to what he considers conflicting evidence—that he lived within the gang’s territory, thus providing a legitimate reason for his presence there, that it was unclear during a field identification how long he had been in proximity to a documented gang member, that others in the field identifications were not known gang members, and that there was no evidence that T.Tu. committed any wrongdoing during the field identifications. While these facts might support contrary conclusions, they provide no basis for rejecting the findings that were made on the basis of the other evidence. “It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” (People v. Robillard (1960) 55 Cal.2d 88, 93, overruled on other grounds by People v. Satchell (1971) 6 Cal.3d 28.) The trial court was entitled to believe the evidence that connected T.Tu. with the gang and reject the conflicting inferences that might have been drawn from other evidence.
DJJ Commitment
T.Tu. argues that the juvenile court improperly committed him to the DJJ because there was an alternative placement available at Delancey Street. “The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJJ]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) These purposes include both the protection of the public and rehabilitation of the minor. (§ 202; In re Michael D., supra, at p. 1396.) “[T]he juvenile court must consider each individual case on its merits without a mechanized approach based solely on the seriousness of the offense and must evaluate the appropriateness of the available lesser alternative dispositions.... Before committing a minor to the CYA, there should be some evidence in the record to support a finding that all these purposes cannot be accomplished by placement in a county facility.” (In re Michael R.(1977) 73 Cal.App.3d 327, 340.) “[T]here must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
Welfare and Institutions Code section 202, subdivision (b) provides in part that “[m]inors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” Welfare and Institutions Code section 734 provides: “No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.”
In 1984, the legislature amended section 202 to recognize “punishment as a rehabilitative tool.” (In re Carl N. (2008) 160 Cal.App.4th 423, 432.) By making this amendment, “ ‘it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.’ [Citation.] It is also clear... that a commitment to CYA ‘may be made in the first instance, without previous resort to less restrictive placements.’ [¶] ‘[T]his interpretation by no means loses sight of the “rehabilitative objectives” of the Juvenile Court Law. [Citation.] Because commitment to CYA cannot be based solely on retribution grounds [citation], there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. However, these must be taken together with the Legislature’s purposes in amending the Juvenile Court Law.’ ” (Id. at p. 433.)
T.Tu. was on probation for discharging a firearm in a grossly negligent manner (§ 246.3) at the time of the shooting. The probation report notes “his gang affiliation, his fascination with guns, his lack of respect for human life, and unwillingness to make positive changes” in recommending “a structured and secure setting. In order to ensure public safety, [DJJ] is the only secure placement available....” He was accepted into the Delancey Street program, but the juvenile court declined to place him there.
At the disposition hearing the court stated, “This is a hard case for the court to decide. On the one hand, I do like Delancey Street and I think that Delancey Street is a good program. On the other hand, I also feel that you have to answer to the crime, the severity of the crime. And that is the murder of Antwanisha Morgan.” The court went on to state that it “has weighed and considered less restrictive alternatives and rejects them as not appropriate to this case. Mr. [Tu.], it has been very difficult for the court. I have truly considered Delancey Street. I have gone back and forth thinking about what to do in your case. It was the hardest decision I have ever made and that is partly because of all the support that you have received. The fact that your attorney argues that you have turned yourself around. But I cannot disregard your past history, the fact that you had a prior, just three months before this offense, involving a gun. Involving a threat to a witness. Involving shooting into an inhabited dwelling. And your entire history in the past, that also plays a role in the court’s decision as to what to do in your case. But please remember, it was very hard for the court to come to this conclusion and I hope that gives you a little comfort in knowing that you are going to the DJJ. You are 19. You are going to be there six years maximum. And hopefully you will make use of your time there and take advantage of the programs that they do have over there. This kind of a charge could be charges as an adult and therefore if you were convicted as an adult you would be sentenced to 25 years to life. In some ways you already got a break by having this case heard in juvenile court. [¶]... [¶] The court has considered several factors, including the seriousness of conduct, the need to protect society, the value of imposing discipline and accountability, the extent of the minor’s need for a structured institutional setting, the professional help, intensive counseling and school programs provided by the [DJJ.]” (Italics added.) Finally, the court noted that DJJ offers a program that trains its wards to be firefighters and recommended T.Tu. to the program.
T.Tu. asserts that “[t]he only reasons the court gave for committing [him] to DJJ instead of placing him in Delancey Street was because of his ‘past history, ’ that the offense could have been charged as an adult offense, that he needed to be ‘accountable’ for his behavior, and the ‘severity’ of the offense.” These reasons were sufficient and appropriate. “The gravity of the offense is by statute a proper consideration at disposition.” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) Moreover, the court legitimately relied on those factors in addition to its findings, based on the probation report, that commitment to DJJ would benefit T.Tu. Thus the court did not abuse its discretion in committing T.Tu. to DJJ.
Finding that the murder was first degree
As in the case of E.R., the court initially found that the murder of Antwanisha was in the second degree “unless the law requires that in a conspiracy case to be a first degree murder” and subsequently modified the finding to first degree murder. For the reasons discussed in In re E.R., supra, ___ Cal.App.4th ___ (A124706) this was error, and the finding on count 2 should be modified to murder in the second degree.
Disposition
The finding on count 2 is modified to find that the minor committed murder in the second degree. The jurisdiction and disposition orders are otherwise affirmed.
We concur: McGUINESS, P. J., SIGGINS, J.