Filed 3/1/22 In re T.W. CA4/1 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.W., a Person Coming Under the Juvenile Court Law. D077336 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J241574)
v.
T.W.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis and Peter C. Deddeh, Judges. Affirmed in part, reversed in part, and remanded with directions. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. After he was declared a ward of the court and placed on probation for a misdemeanor offense, 15-year-old T.W.—an Emerald Hills Blood gang member—and two other minors murdered Ishi Hampton. T.W. was charged with first degree murder and conspiracy to commit murder. (Pen. Code,
§§ 187, subd. (a), 182, subd. (a)(1).)1 The murder and conspiracy to commit murder were alleged to have been committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)) and it was further alleged that at least one principal used a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). After the murder, but before he was apprehended, T.W. was alleged to have committed two robberies. In response to a petition alleging the two robberies, T.W. admitted one count of grand theft. (Pen. Code, § 487, subd. (c).) The juvenile court found true the murder and conspiracy to commit murder allegations, as well as the gang and firearm enhancement allegations. The court subsequently dismissed the petition alleging the robbery counts (Welf. & Inst. Code, § 782), then continued T.W. as a ward of the court (id., § 602), placed him under the supervision of the probation officer, and committed him to the Department of
Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). 2
1 Unless otherwise indicated, statutory citations are to the Penal Code.
2 “DJJ is also known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). DJJ/DJF is the current name of the former California Youth Authority.” (In re N.C. (2019) 39 Cal.App.5th 81, 85, fn. 3.)
2 We affirmed the judgment in an unpublished opinion filed September 28, 2021, People v. T.W. (Sept. 28, 2021, D077336) [nonpub. opn.]. The California Supreme Court granted review and transferred the matter back to this court with instructions to vacate our decision and reconsider the matter in light of Assembly Bill No. 333 (Assembly Bill No. 333) (Stats. 2021, ch. 699), which made various changes to the California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.). (People v. T.W., review granted Dec. 15, 2021, S271362.) We therefore vacate our prior opinion and—after obtaining supplemental briefing and reconsidering the issues in light Assembly Bill No. 333—we reverse the true finding on the gang enhancements and remand to give the People an opportunity to retry the gang enhancements under Assembly Bill No. 333’s amended requirements. If the People elect not to try the gang enhancements, T.W. is to be resentenced in a manner consistent with this opinion. We otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A. Petitions On January 16, 2019, the People filed an amended petition alleging T.W. committed robbery (§ 211; count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and a misdemeanor count of giving false information to a peace officer (§ 148.9, subd. (a); count 3). The offenses were alleged to have occurred on August 16, 2018. T.W. admitted the misdemeanor (count 3), and the People moved to dismiss counts 1 and 2. The juvenile court declared T.W. a ward of the court and placed him on probation. On May 30, 2019, the People filed a second petition alleging that T.W. committed murder (§ 187, subd. (a); count 1) and conspiracy to commit
3 murder (§ 182, subd. (a)(1); count 2). The murder was alleged to have occurred on May 2, 2019. The petition alleged, as to both counts, that T.W. committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that at least one principal used a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). On December 11, 2019, the People filed a third petition alleging T.W.
committed two counts of robbery.3 (§ 211.) On January 3, 2020, T.W. admitted committing one count of grand theft (§ 487, subd. (c)), and the
juvenile court dismissed count 2.4 B. Contested Adjudication Hearing In January 2020, the juvenile court conducted a contested adjudication hearing on the second petition regarding the murder allegations. 1. Evidence relating to the murder Shortly after midnight on May 2, 2019, T.W. and two other minors, K.W. and E.I., parked in front of an apartment complex on Alvarado Road in San Diego. They remained inside the car for about six hours.
3 For ease of reference, we refer to the December 11, 2019 petition as the “robbery/grand theft petition.” The robberies were alleged to have occurred about two weeks after the murder, but a petition was not filed at that time. However, in December, after repeatedly waiving time on the murder petition, defense counsel withdrew T.W.’s time waiver, triggering T.W.’s release on that petition to home supervision. At that time, the People elected to file a new petition, which allowed the court to order T.W.’s continued detention.
4 T.W. admitted one count of the lesser included offense of grand theft and informed the court that he understood the other count would be dismissed, the maximum punishment he may receive would be three years of detention, and no other promises had been made to him.
4 When the victim, Ishi Hampton, exited his apartment complex and began walking to his car, T.W. got out of the car’s passenger side door and began shooting. Two waste management employees were parked in a garbage truck in front of the apartment complex when they heard gunshots. They saw the victim running and stumbling as T.W. shot at him repeatedly. After the victim fell to the ground the first time, he got up again, and the shooter shot him again. They saw the victim collapse near the front of the building and two young males flee the scene. The shooter was wearing a tan or red hoodie and jeans, and his companion was wearing a blue hoodie; both had their hoods up. The employees called for an ambulance and checked on the victim, who did not appear to be breathing. A woman standing at a nearby trolley station heard gunshots. She turned to the direction of the sound and saw one young man running and two young men running behind him. She turned her phone’s camera on; the video footage she captured was played in court. A man getting gas nearby was approached by three young men wearing hoodies and jeans. One asked if he could borrow the man’s phone or get a ride to a friend’s house down the street, but the man declined. A gardener at a nearby school saw three males, two wearing dark hoodies and one in a light-colored shirt, walking briskly toward him. He told them they needed to leave before the students started to arrive, pointed them toward the front of the school to exit, and followed them to make sure they left. Video of the shooting was captured by a nearby security camera. Security footage from various cameras depicted the three minors fleeing the scene, and captured the route they took to escape, past the trolley station, the
5 gas station, and across the school campus. Eventually, they walked to an apartment near the school. A medical examiner conducted an autopsy and determined Hampton suffered a single gunshot wound to his back. The bullet passed through his organs, including his heart, and lodged in his pectoral muscle. A crime scene specialist from the San Diego Police Department processed the suspects’ vehicle (which they left at the scene) for latent fingerprint and DNA evidence. T.W.’s prints were identified on the exterior passenger side door. K.W.’s prints were identified on the exterior roof of the vehicle. DNA of T.W., K.W., and E.I. was found in the vehicle’s interior. On May 28, T.W. and E.I. were arrested together and placed in the back seat of a patrol car.5 A recording of their conversation was played in court. T.W. told E.I., “On blood, don’t snitch, really bro. . . . It’s the car. It has to be. Cuz it was gone,” and, “Bro, for murder, bro.” T.W. asked E.I., “So,
you think Tey9’s in there for the same thing?” 6 T.W. said, “I kind a feel like I’m, feel like I should, I’m a see what the thing is, if I, if I plead guilty for this. I don’t know, to be honest . . . . We’re fittin’ to be here for at least, a minute,” and “You think what’s his name could be our alibi? Mack-manity?” In October, a conversation between T.W., E.I., and K.W. was recorded as the minors were transported to juvenile court. K.W. asked T.W., “Did you know we green lighted, Blood? [¶] . . . [¶] By Crabs, by Lincoln niggas, Blood, by the East[.] [¶] . . . [¶] For that shit.”
5 A detective informed them they were “both under arrest . . . for murder,” read them their rights, and confirmed they understood their rights before leaving them alone in the vehicle.
6 A gang expert subsequently testified that “Tey9” was K.W.’s gang moniker.
6 K.W. said he had “seen the video”; T.W. said he had not seen it. The following discussion occurred next: K.W.: “You didn’t tell us the whole thing, Blood. I didn’t know you doubled back, Blood. But . . . .”
T.W.: “I told you that.”
E.I.: “Yeah, Blood told us that—Blood could, on the set, the video bro, all you see is you Blood . . . .”7
Later in the conversation, K.W. asked, “Did your attorney show you the route? That we took?” E.I.: “Oh yeah, everywhere. Recorded us everywhere. They showed us everywhere. Like, everywhere we’ve been blood.”
T.W.: “Are you talking about the route?”
E.I.: “Yeah, I’m talking about—I’m talking about the route when we ran to. . . . [I]t just happens someone was behind the trash[ ]can recording us.”
E.I.: “Yeah, I told you not to take off your . . . . I told you.”
T.W.: “No—no you didn’t.”
E.I.: “Blood, (unintelligible), on the set.”
T.W.: “No, you told me to take that shit off.”
E.I.: “Ask Blood. You know I did, Blood. ‘Cause why would I . . . .”
K.W.: “He did—he did . . . .”
E.I.: “If I told you that I would take off my shit too, Blood.”
7 A gang expert testified that, when a gang member said something is “ ‘on the set,’ ” they are making a reference to their loyalty to the gang set, saying something is “ ‘important,’ ” “ ‘huge,’ ” or “ ‘the truth.’ ”
7 K.W.: “[L]ook, bro, look when we was at the school, right, I was looking this way. We was walking. (Unintelligible.) All you can see is your tan shirt blood, and your fucking hair, blood.”
T.W.: “I had a white shirt.”
E.I.: “He had a white shirt.”
K.W.: “Oh it looks like it’s tan in the video.”
A detective from the San Diego Police Department’s street gang unit testified that he was familiar with members of the Emerald Hills Blood gang. He observed a music video shot at Emerald Hills Park during a party frequented by Emerald Hills Blood gang members. In the video, he observed the victim Ishi Hampton in the background at the park. The detective testified he thought it was “odd” for Hampton to be at the park that day—the annual gang holiday for the Emerald Hills Blood gang—because he was not known to be an Emerald Hills Blood gang member. 2. Gang expert Detective K. Morgan, a detective with the San Diego Police Department’s street gang unit, testified as an expert regarding the Emerald Hills Blood gang. She testified she had spent two years working as a patrol officer with the Street Gang Suppression Team (GST) and had also worked in the vice and child abuse units. She testified that she had worked in her current assignment for six months and was charged with monitoring two gangs, one of which was the Emerald Hills Blood gang. During that six- month period, she estimated she had investigated three felony or misdemeanor cases associated with the Emerald Hills Blood gang. Detective Morgan testified she had contacted members of the Emerald Hills gang when she was on patrol with the GST, and she had arrested and spoken to members of the gang since becoming a detective. Based on her
8 training and experience, as well as her personal contacts with Emerald Hills gang members, Detective Morgan opined the Emerald Hills Blood gang was a criminal street gang within the meaning of section 186.22 because they have more than three members (with 27 known members), a common sign or symbol (the Playboy bunny and the letter U, for “ ‘uptown’ ” or “ ‘upside sic’ ”), and they commit crimes set forth in section 186.22, subdivision (e) as their primary criminal activity (including murder, assault with a deadly weapon, and robbery). Detective Morgan testified that the Easter holiday has a special significance for Emerald Hills gang members. Because the gang’s symbol is a Playboy bunny, they use Easter (or “ ‘Bunny Day’ ”) as a time for “jump[ing] in” new members and celebrating the gang. As part of this celebration, the gang members would meet at the Emerald Hills Park, wear their gang color gray, and “show loyalty to the gang.” Numerous photographs obtained from T.W.’s cell phone and social media accounts were introduced as evidence. The photos depicted T.W., K.W. and others exhibiting gang hand gestures that Detective Morgan opined meant “Uptown Emerald Hills,” “upside sic,” “fuck neighborhood Crips,” and “Crip” or “crab” killer. Based on her review of T.W.’s cell phone information and his social media accounts, which depicted T.W. over a period of time repeatedly throwing up the gang’s hand signs, wearing the gang’s signature gray color, and posing with a firearm wrapped in a gray bandanna, Detective Morgan
9 opined that T.W. is a member of the Emerald Hills Blood gang.8 She similarly opined that K.W. is a member of the Emerald Hills Blood gang. She based this opinion on her review of his social media postings and information found on his cell phone. Detective Morgan testified that a gang member’s moniker is often a sign of respect, indicating their membership in the gang, and that K.W.’s gang moniker was “Tey9.” When presented with a hypothetical scenario in which two Emerald Hills gang members and an associate drove to an apartment complex, waited outside for six hours, and then shot and killed the victim, Detective Morgan opined that the perpetrators would be committing this crime for the benefit of the Emerald Hills Blood gang with the intent to promote and assist further criminal activity by gang members. She opined that committing such a crime bolstered the individual status of the gang members, proved their loyalty to the gang, improved the gang’s status of fear and respect in the community, and prevented witnesses and victims from testifying out of fear of violence. Detective Morgan opined, “Emerald Hills is a smaller gang set than many of the other gangs in San Diego[,] [s]o they have to be hard and brutal to show that they’re . . . worthy of this status. And that is committing violent crimes such as murder, which is obviously the most heinous crime.”
8 Detective Morgan testified that, being a Blood gang, the Emerald Hills gang members associated with the color red but used the color gray to signify the Emerald Hills neighborhood. Detective Morgan testified that if someone who was not a member of the gang was seen “throwing up these hand signs, wearing these colors in an Emerald Hills neighborhood,” it would be viewed as disrespecting the gang and would result in punishment, including beatings and possibly death.
10 Detective Morgan also reviewed certified copies of court records and testified regarding six predicate offenses committed by three individuals
between 2011 and 2017:9 (1) Detective Morgan testified she was familiar with Q.A. and his conviction in case number SCD271179 for possession of an unregistered and loaded firearm (§ 25850, subds. (a), (c)(6)) in connection with an incident that took place in 2017. (2) Detective Morgan testified she was familiar with Q.A.’s convictions in case number SCD273223 for robbery, attempted robbery, and firearm enhancements (§§ 211, 664, 12022.5, subd. (a), 12022.53, subd. (c)) for incidents that occurred in 2016 and 2017. She opined Q.A. was a member of the Emerald Hills Blood gang and explained her opinion was based on her review of the reports in those cases and on speaking with the detective who handled the Emerald Hills gang at the time of the offenses. (3) Detective Morgan testified she was familiar with L.H. and his conviction for assault with a firearm, with gang and personal use enhancements (§§ 245, subd. (b), 12022.5, subd. (a), 186.22, subd. (b)(1)) in case number SCD265734 in connection with an incident that occurred in 2016. (4) Detective Morgan further testified she was aware of L.H.’s conviction of possession of a firearm by a felon to benefit and assist gang members (§§ 29800, subd. (a)(1), 186.22, subd. (b)(1)) in case number SCD253170 in connection with an incident that occurred in 2013. She opined that L.H. was a member of the Emerald Hills Blood gang and explained that
9 The records included charging documents, court minutes, plea agreements, orders granting probation, and verdict forms.
11 she based this opinion on the police reports she reviewed and her conversations with the investigating detective. (5) Detective Morgan testified she was familiar with R.S. and his conviction for possession of a firearm after having been adjudged a ward of the court (§ 12021, subd. (e)) in case number SCD233594 in connection with an incident that occurred in 2011. (6) Detective Morgan testified she was also familiar with R.S.’s 2012 conviction for murder, attempted murder, assault with a firearm as well as gang and firearm enhancements (§§ 187, subd. (a), 664, 245, subd. (a)(2), 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1)) in case number SCD225297 in connection with an incident that occurred in 2009. She opined that R.S. was a member of the Emerald Hills Blood gang based on her review of the case reports and her conversation with the investigating detective. 3. Defense case and closing arguments At the close of the prosecution’s case, T.W. declined to present any affirmative evidence in his defense. In closing, the prosecutor argued that the evidence established that Emerald Hills Blood gang was a criminal street gang, the primary activities of which included robbery, assault, and murder, and referenced the six predicate offenses. The prosecutor further argued, “With the elements of [section] 186.22, here we have the defendant in association with another Emerald Hills Blood member[, K.W.,] committing a lying-in-wait murder of an individual that showed up at Emerald Hills Park on ‘Bunny Day.’ Per the detective’s opinion, the only reason the minor and [K.W.] would do this would be to bolster their reputation within the set to show that Emerald Hills is a force to be reckoned with on the street. That they are a legit murdering criminal street gang.”
12 Defense counsel contended the prosecution failed to prove beyond a reasonable doubt that T.W. was the shooter or that the murder was committed “for the gang.” Defense counsel requested that the court strike the gun and gang allegations. 4. Findings In January 2020, the juvenile court found the murder and conspiracy to commit murder counts and the attendant enhancements true and sustained the petition. Specifically, the court found: “[B]eyond a reasonable doubt that the minor T.W. is guilty of murder in the first degree. That this is a planned killing and could have been charged as lying in wait, again, certainly if he had been in adult court.
“Also, that this was done in furtherance of a criminal street gang, namely, Emerald Hills. That he personally used the firearm within the meaning of . . . [s]ection 12022.53[, subdivision] (d). That . . . this was in furtherance of a criminal street gang in violation of . . . [s]ection 186.22[, subdivision] (b)(1). And that he’s guilty of first degree murder in Count 1 in violation of . . . [s]ection 187.
“So I also find that he and his cohorts engaged in a criminal conspiracy to commit murder in violation of . . . [s]ection 182[, subdivision] (a)(1). And that also this was done in furtherance of a criminal street gang within the meaning of . . . [section] 186.22[, subdivision] (b)(1). And then, finally, that he personally used a firearm to the meaning of . . . [s]ection 12022.53[, subdivision] (d). And I find that all the allegations are true beyond a reasonable doubt, as well as the substantive charges.”
C. Disposition The day after the court made the true finding on the murder petition, the parties appeared at a previously scheduled disposition hearing on the robbery/grand theft petition. T.W. requested to be sentenced on the grand theft immediately; however, over T.W.’s objection, the court granted the 13 People’s motion to continue sentencing so both petitions could be addressed contemporaneously. In February, at the subsequent contested disposition hearing, the court granted the People’s motion to dismiss the most recently filed robbery/grand theft petition. (Welf. & Inst. Code, § 782.) The court then continued T.W. as a ward of the court under Welfare and Institutions Code section 602, placed him under the supervision of the probation officer, and committed him to DJJ. The court stated the maximum term of confinement to be 120 years to
life.10 The court also found T.W. in violation of his probation in connection with the January 2019 petition. DISCUSSION I Assembly Bill No. 333 As directed by our Supreme Court, we reconsider T.W.’s appeal in light of Assembly Bill No. 333. The STEP Act (§ 186.20 et seq.) created a substantive offense of active participation “in a criminal street gang” (§ 186.22, subd. (a)) and a sentencing enhancement for a felony committed “for the benefit of, at the direction of, or in association with a criminal street gang” (§ 186.22, subd. (b)(1)). (See People v. Valencia (2021) 11 Cal.5th 818, 829 (Valencia).)
10 It appears the court accepted the maximum term calculated by the DJJ, comprised of 25 years to life for the murder (§ 187, subd. (a)), 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)) on count 1, plus an additional 25 years to life for the conspiracy to commit murder (§ 182, subd. (a)(1)), 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)) on count 2.
14 The gang enhancement applies to “a person who is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) “There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1), both of which must be established by the evidence. [Citation.] The first prong requires proof that the underlying felony was ‘gang related,’ that is, the defendant committed the charged offense ‘for the benefit of, at the direction of, or in association with [a] criminal street gang.’ [Citations.] The second prong ‘requires that a defendant commit the gang-related felony “with the specific intent to promote, further, or assist in . . . criminal conduct by gang members.” ’ ” (People v. Franklin (2016) 248 Cal.App.4th 938, 948.) To establish that a gang is a “criminal street gang,” the prosecution must prove that the gang has as one of its “primary activities” the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and that it has engaged in a “ ‘pattern of criminal gang activity’ ” by committing two or more such predicate offenses. (§ 186.22,
subds. (e), (f).)11 Assembly Bill No. 333 made substantial revisions to section 186.22 effective January 1, 2022. As relevant here, Assembly Bill No. 333 modified the definition of “ ‘criminal street gang’ ” (§ 186.22, subd. (f)) to mean “an ongoing organized association or group of three or more persons,” “having as one of its primary activities the commission of one or more of the
11 Subdivision (e) of section 186.22 lists various crimes which constitute predicate offenses, including the commission or attempted commission of murder, robbery, assault with a deadly weapon or by means likely to produce great bodily injury, and prohibited possession of a firearm.
15 [enumerated] criminal acts,” “having a common name or common identifying sign or symbol,” and “whose members collectively engage in, or have engaged
in, a pattern of criminal gang activity.” (Stats. 2021, ch. 699, § 3.)12 Assembly Bill No. 333 also modified the definition of “ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)) to require that (1) the last offense used to show a pattern of criminal gang activity “occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed”; (2) “the offenses were committed on separate occasions or by two or more members,” as opposed to “persons”; and (3) “the offenses commonly benefitted a criminal street gang,” and the common benefit was “more than reputational.” (Stats. 2021, ch. 699, § 3.) In addition, the currently charged offense can no longer be used to establish the pattern of
criminal gang activity. (Ibid.)13 The parties agree, as do we, that Assembly Bill No. 333’s amendments apply to T.W.’s non-final judgment under the principles set forth in In re Estrada (1965) 63 Cal.2d 740. Under Estrada, statutory amendments that
12 Former section 186.22, subdivision (f) defined “ ‘criminal street gang’ ” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the [enumerated] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Stats. 2017, ch. 561, § 178, italics added.)
13 Assembly Bill No. 333 also added section 1109, which requires a gang participation charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime and provides that a defendant may request that a gang enhancement be tried separately from the underlying offense. (Stats. 2021, ch. 699, § 5.) The Attorney General argues that section 1109 applies prospectively only. We need not address this question to resolve the issues raised by T.W. on appeal.
16 reduce the punishment for an offense apply to a defendant whose judgment is not yet final, absent contrary legislative intent. (Id. at p. 745; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-314 [discussing Estrada’s inference of retroactivity in the absence of contrary legislative intent].) “This principle also applies when an enhancement has been amended to redefine to an appellant’s benefit the conduct subject to the enhancement.” (People v. Lopez (2021) 73 Cal.App.5th 327, 344 (Lopez).) Assembly Bill No. 333 does not alter the punishment imposed for a gang enhancement, but it “increases the threshold for conviction of the section 186.22 offense and the imposition of the enhancement” and therefore applies retroactively to a defendant whose judgment is not yet final. (Lopez, at p. 344.) T.W. therefore is entitled to the benefit of this change in the law. (Ibid.; see also People v. Delgado (Feb. 10, 2022, B299482) __ Cal.App.5th __ [2022 Cal.App.Lexis 104] (Delgado).) In our prior opinion, we concluded that the gang expert’s testimony here—which was used to establish the six predicate offenses—was improperly based on inadmissible, case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665, 682-683 (Sanchez). (See Valencia, supra, 11 Cal.5th at p. 839.) Because defense counsel failed to object at trial to the gang expert’s testimony regarding the predicate offenses, we concluded the claim of error was forfeited (People v. Arredondo (2019) 8 Cal.5th 694, 710), and we analyzed T.W.’s alternative claim that he received ineffective assistance of counsel under the standard in Strickland v. Washington (1984)
17 466 U.S. 668 (Strickland).14 Under either the Chapman or Strickland standard, we concluded the error was harmless because there was other, properly admissible evidence of predicate offenses committed by members of the Emerald Hills gang to independently demonstrate the requisite pattern of
criminal gang activity.15 Because we conclude we would reach a different result on the merits after Assembly Bill No. 333, we exercise our discretion to consider T.W.’s claim. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) In their supplemental briefing, both parties agree there is insufficient evidence on this record to support the gang enhancements after the enactment of Assembly Bill No. 333. We agree as well. Prior to the enactment of Assembly Bill No. 333, the requisite “ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)(1)) could be established “by evidence of the offense with which the defendant [was] charged and proof of another offense
14 See Strickland, supra, 466 U.S. at p. 694 [“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”]; People v. Ledesma (1987) 43 Cal.3d 171, 208-209, 217-218 [applying Strickland’s “reasonable probability” test to ineffective assistance claim based on defense counsel’s failure to protect defendant’s Fourth Amendment rights by filing a suppression motion]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [“had [defendant] not forfeited his direct claim of [constitutional] error, we would review whether any such error was harmless under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [(Chapman)],” rather than Strickland].
15 Specifically, relying on People v. Tran (2011) 51 Cal.4th 1040, 1046 and People v. Loeun (1997) 17 Cal.4th 1, 11 (Loeun), we concluded that the defendant’s instant crimes, and the contemporaneous offense committed by K.W., his coconspirator and fellow Emerald Hills gang member, independently supported imposing the gang enhancement under the prior version of section 186.22.
18 committed on the same occasion by a fellow gang member.” (Loeun, supra, 17 Cal.4th at p. 5.) We therefore concluded in our prior opinion that T.W.’s own conduct in this case established one of the requisite predicate offenses, and the second predicate offense was established by fellow gang member
K.W.’s contemporaneous commission of conspiracy to commit murder. 16 However, under the newly amended statute, “[t]he currently charged offense shall not be used to establish the pattern of criminal gang activity.” (§ 186.22, subd. (e)(2), italics added.) Assembly Bill No. 333 also modified the statute to specify that “to benefit, promote, further, or assist” as required by section 186.22, subdivision (b)(1) “means to provide a common benefit to members of a gang where the common benefit is more than reputational.” (§ 186.22, subd. (g), italics added.) “Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” (Ibid.) In our prior opinion, we referred to Detective Morgan’s opinion that, if two Emerald Hills gang members and an associate drove to an apartment complex, waited outside for six hours, and then shot and killed the victim, the perpetrators would be committing this crime for the benefit of
16 The evidence established that both T.W. and K.W. were involved in the conspiracy to commit murder of Ishi Hampton. There was substantial evidence establishing that T.W. was the shooter, and his fellow gang members (including K.W.) conspired to murder the victim in apparent response to his unexplained presence at a park in their gang territory, on a day of special significance to the gang. K.W. participated in the conspiracy by waiting six hours outside the victim’s apartment before T.W. shot the victim and all three minors coordinated their escape. Based on this evidence, the juvenile court expressly found that T.W. “and his cohorts engaged in a criminal conspiracy . . . in furtherance of a criminal street gang.”
19 the Emerald Hills Blood gang with the intent to promote and assist further criminal activity by gang members. Detective Morgan testified that “Emerald Hills is a smaller gang set than many of the other gangs in San Diego[,] [s]o they have to be hard and brutal to show that they’re . . . worthy of this status. And that is committing violent crimes such as murder, which is obviously the most heinous crime.” She explained that committing such a heinous crime bolstered the individual status of the gang members, proved their loyalty to the gang, improved the gang’s status of fear and respect in the community, and prevented witnesses and victims from testifying out of fear
of violence.17 This expert testimony is not sufficient after Assembly Bill No. 333’s amendments. Given the change in the legal landscape occasioned by Assembly Bill No. 333, insufficient evidence supports the gang
enhancements on this record.18 The Attorney General argues that the appropriate remedy is to remand the matter for retrial of the gang enhancements. (See People v. Figueroa (1993) 20 Cal.App.4th 65, 68 [a defendant is entitled to the benefit of an
17 The gang expert did not testify about any specific “intimidation or silencing” of witnesses. (§ 186.22, subd. (g).) Instead, she generally stated that committing crimes “creates fear in the community, which is kind of what the gang culture is all about. You’re going to prevent witnesses and victims from testifying.” (Italics added.) The Attorney General concedes that “because the hearing predated [Assembly Bill No.] 333, there was insufficient evidence presented that the predicate offenses ‘commonly benefitted’ the gang as that term is defined in [Assembly Bill No.] 333.”
18 Because we find that reversal is warranted on this ground, we need not address T.W.’s assertion that the evidence presented at trial also failed to prove that gang members “ ‘collectively’ ” engaged in a pattern of criminal gang activity. Similarly, we need not address T.W.’s challenge regarding the use of certified court records to prove the dates on which the six predicate acts discussed above were committed.
20 amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the People are entitled to an opportunity to prove up the new element on remand].) We agree that remand for retrial of the gang enhancements is warranted here. (See, e.g., Delgado, supra, __ Cal.App.5th at *38-39 [2022 Cal.App.Lexis 104] [reversing the true findings on the gang enhancement and remanding “to give the prosecution an opportunity to retry the gang enhancement under current law,” section 186.22, as amended by Assembly Bill No. 333], Lopez, supra, 73 Cal.App.5th at p. 346 [vacating true findings on gang enhancements and remanding “to give the People the opportunity to prove the applicability of the enhancements under the [Assembly Bill No. 333] amendments”].) We therefore reverse the true finding on the gang enhancements, and remand to give the People an opportunity to retry the gang enhancements under Assembly Bill No. 333’s new requirements. If the People decline to retry the gang enhancements, T.W. shall be resentenced without reimposition of the gang-related enhancements. (People v. Buycks (2018) 5 Cal.5th 857, 893-894.) II. DJJ Placement T.W. contends the trial court improperly committed him to DJJ, arguing that the most recent offense he committed—grand theft—makes him ineligible for such commitment under Welfare and Institutions Code
section 733.19 We conclude the trial court did not abuse its discretion in
19 Robbery and murder are DJJ-qualifying offenses. (Welf. & Inst. Code, § 707, subd. (b)(1), (3).) Grand theft is not. (See id., § 707, subd. (b), Pen. Code, § 290.008.) Although the petition at issue alleged two counts of robbery, T.W. admitted to one count of grand theft. As noted ante, we refer to this petition as the robbery/grand theft petition.
21 dismissing the robbery/grand theft petition pursuant to Welfare and Institutions Code section 782—leaving the most recent offense of murder, which does make him eligible for DJJ commitment. We therefore reject T.W.’s claim of error. The relevant procedural history is outlined ante. For purposes of this section, we merely summarize the following key dates: (1) the murder and conspiracy to commit murder occurred on May 2, 2019 (and the petition relating to these offenses was filed on May 30, 2019); and (2) the alleged robberies occurred on May 17, 2019 (but the petition for this offense was not filed until December 11, 2019). The dispute in this case centers around Welfare and Institutions Code section 733, which outlines the offenses that are eligible for DJJ commitment, and Welfare and Institutions Code section 782, which authorizes the juvenile court to dismiss a petition. Welfare and Institutions Code section 733, subdivision (c) provides, “A ward of the juvenile court who meets any condition described below shall not be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] . . . [¶] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code.” “[T]he language of section 733[, subdivision] (c) is clear and lends itself to only one reasonable interpretation. The statute premises [DJJ] eligibility on the nature of ‘the most recent offense alleged in any petition and admitted or found to be true by the court.’ [Citation.] Plainly, this language refers to the last offense that was adjudicated to have been committed by the minor. A minor can be committed to [DJJ] only if this particular offense is listed in
22 section 707[, subdivision] (b) or Penal Code section 290.008[, subdivision] (c).” (In re D.B. (2014) 58 Cal.4th 941, 947 (D.B.).) Welfare and Institutions Code section 782 provides, “A judge of the juvenile court in which a petition was filed may dismiss the petition, or may set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation. The court has jurisdiction to order dismissal or setting aside of the findings and dismissal regardless of whether the person who is the subject of the petition is, at the time of the order, a ward or dependent child of the court. Nothing in this section shall be interpreted to require the court to maintain jurisdiction over a person who is the subject of a petition between the time the court’s jurisdiction over that person terminates and the point at which his or her petition is dismissed.” We review the juvenile court’s dismissal of a petition under Welfare and Institutions Code section 782 for abuse of discretion. (See In re Greg F. (2012) 55 Cal.4th 393, 420 (Greg F.) [dismissal “is appropriate under section 782 so long as the juvenile court, in its discretion, finds that the dismissal is required by the interests of justice and the welfare of the minor”].) In February 2020, the juvenile court exercised its discretion under Welfare and Institutions Code section 782 and dismissed the most recently filed robbery/grand theft petition in “the interest of justice” at the contested disposition hearing. In doing so, the court made the following findings: “[T]he record will reflect[] that I have weighed and considered the interest of the minor, T.W.; and the interest of society. And I find, first of all, that the court has discretion to dismiss [the robbery/grand theft petition] to make the minor eligible for a DJJ commitment.
23 “The court also finds the interest of justice and the welfare of the minor require dismissal of the [robbery/grand theft petition] in a DJJ commit.
“Third[, t]he minor is in need of further treatment and rehabilitation that is highly structured and intensive. And the welfare of the minor requires dismissal of [the robbery/grand theft petition].
“And, in particular, the court finds the minor is in need of lengthy rehabilitative services that address family dysfunction, deep gang involvement, trauma and behavioral treatment and therapy[, p]ositive youth skills[, e]ducation and work skills.
“And lastly, the minor committed the most serious of offenses, and a DJJ commitment will increase the amount of time the court has jurisdiction over the minor and the amount of time that the court has to work with the youth.
“So the court finds that a dismissal of the [robbery/grand theft petition] will serve the interest of justice and the welfare of the youth by increasing the court’s dispositional options.”
The court continued T.W. as a ward of the court, placed him under the supervision of the probation officer, and committed him to DJJ. Based on this record, we reject T.W.’s claim that the juvenile court improperly committed him to DJJ. Our Supreme Court has recognized that Welfare and Institutions Code sections 733 and 782 are not “irreconcilably in conflict.” (Greg F., supra, 55 Cal.4th at p. 407.) “Section 733[, subdivision] (c) prohibits a commitment to [DJJ] unless the minor’s most recent offense alleged in a petition is of a particular class. If the juvenile court exercises its discretion under section 782 to dismiss a 602 petition, its decision does not nullify or abrogate section 733[, subdivision] (c).” (Id. at p. 408.) Here, the court indicated it was dismissing the robbery/grand theft petition in the interest of justice and for T.W.’s welfare. (See Greg F., supra, 24 55 Cal.4th at p. 408.) The court indicated it had “weighed and considered the interest of [T.W.] and the interest of society.” The court found that T.W. needed “highly structured and intensive” further treatment and rehabilitation that would address issues such as “family dysfunction, deep gang involvement, trauma and behavioral treatment and therapy[, p]ositive youth skills[, e]ducation and work skills,” and dismissal of the petition was necessary to obtain such treatment. The court reasoned that, since T.W. had committed “the most serious of offenses,” a commitment would “increase the amount of time the court has jurisdiction over [T.W.] and the amount of time that the court has to work with [T.W.].” Because the court weighed the appropriate factors and indicated it was dismissing the robbery/grand theft petition in the interest of justice and for T.W.’s welfare, the court’s decision to dismiss the petition was not an abuse of its discretion. (Ibid.) Because the court properly exercised its discretion to dismiss the disqualifying petition, Welfare and Institutions Code section 733, subdivision (c) did not preclude DJJ commitment, and the juvenile court’s decision to place T.W. in DJJ was proper. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 [appellate court reviews the juvenile court’s decision to commit a minor to DJJ for abuse of discretion]; Welf. & Inst. Code, §§ 733, 707, subd. (b).) T.W.’s reliance on D.B. is misplaced. In that case, the juvenile court committed the minor to DJJ where the minor was found to have committed a series of offenses ending in a nonqualifying offense. (D.B., supra, 58 Cal.4th at p. 947.) The commitment was improper because “the most recent offense” rendered the minor ineligible for DJJ commitment. (Welf. & Inst. Code, § 733, subd. (c).) Here, the petition alleging the more recent, nonqualifying offense was properly dismissed under Welfare and Institutions Code
25 section 782, rendering T.W. eligible for DJJ commitment under Welfare and Institutions Code sections 733 and 707, subdivision (b). T.W.’s reliance on In re A.O. (2017) 18 Cal.App.5th 390 is similarly misplaced. In that case, the juvenile court struck a non-eligible petition without making findings to show it had properly exercised its discretion to make a valid dismissal under Welfare and Institutions Code section 782, stating only that its dismissal order was for the purpose of making the minor eligible for DJJ commitment. (A.O., at p. 396.) The minor had admitted the allegations of the petition which was not part of the record on appeal, and it was not clear whether the admissions were made pursuant to a plea agreement. (Ibid.) In addition, the record was devoid of the facts underlying the offense that purportedly qualified the minor for DJJ commitment. (Ibid.) On the “sparse record” before it, the appellate court concluded it would be “impossible to determine” if the juvenile court’s dismissal of the disqualifying offense was a proper exercise of discretion. (Id. at pp. 396-397.) In contrast, here, the juvenile court clearly stated its findings supporting dismissal of the disqualifying grand theft petition, and we have a clear record indicating T.W.’s admissions to the grand theft were not induced by any promises of
26 sentencing leniency. Based on the record, T.W.’s offenses of murder and
conspiracy to commit murder qualify him for DJJ commitment. 20 III. Section 654 Relying on section 654, subdivision (a), T.W. contends that the juvenile court erred by imposing punishment as to counts 1 and 2 because T.W. did not harbor independent criminal objectives as to the murder and the conspiracy to commit the same murder. The Attorney General concedes that, based on the evidence presented at trial, section 654 requires staying punishment for conspiracy to commit murder. We agree. After we filed our prior opinion in this matter, Assembly Bill No. 518 amended section 654, subdivision (a) to provide in pertinent part: “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (Italics
20 After we filed our prior opinion, the Court of Appeal in In re J.B. (Feb. 18, 2022, H049130) __ Cal.App.5th __ [2022 Cal.App.Lexis 133] similarly held that “[Welfare and Institutions Code] section 733(c) did not bar the juvenile court from exercising its discretion under [Welfare and Institutions Code] section 782 and dismissing the adjudicated petitions [involving more recent non-707(b) offenses] in the interests of justice and in minor’s welfare in order to commit minor to DJJ.” Applying a de novo review to “the question of ‘whether the commitment limitation of [Welfare and Institutions Code] section 733(c) prevails over the dismissal discretion granted by [Welfare and Institutions Code] section 782,’ ” the J.B. court concluded that “the juvenile court had the discretion under [Welfare and Institutions Code] section 782 to dismiss the prior petitions in the interests of justice and in minor’s welfare.” (J.B., at*17-18, fn. omitted.) We agree with the J.B. court’s analysis, and reject T.W.’s contrary contention that the court here improperly committed him to DJJ after dismissing the robbery/grand theft petition pursuant to Welfare and Institutions Code section 782. 27 added.)21 Under section 654, “a defendant cannot be punished for both a substantive offense and a conspiracy to commit it unless the conspiracy had an unlawful objective in addition to the commission of the substantive offense.” (In re Romano (1966) 64 Cal.2d 826, 828.) In the present case, there was no evidence that the conspiracy had any objective apart from the murder of Ishi Hampton. After Hampton was seen at the Emerald Hills park on the gang’s day of celebration, T.W. and the other two minors drove to Hampton’s apartment and waited for about six hours for Hampton to exit his home. T.W. immediately approached Hampton and shot at him multiple times, then all three suspects promptly fled the scene together. Because the sole object of the conspiracy was Hampton’s murder, T.W. cannot be punished for both the substantive offense of murder and the conspiracy to commit it. (People v. Hernandez (2003) 30 Cal.4th 835, 866 [“Under . . . section 654, a defendant may not be punished for both the murder and the conspiracy.”], disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) We therefore direct that, on remand, the judgment shall reflect that the terms imposed as to count 2 for conspiracy to commit murder and the associated enhancements are imposed but execution thereof is stayed.
21 Previously, where section 654 applied, the sentencing court was required to impose the sentence that “provides for the longest potential term of imprisonment” and stay execution of the other term. (Former § 654, subd. (a), italics added.) Neither party has contended this amendment has any impact on this appeal—likely because the punishment for the offenses at issue is the same. (See § 182, subd. (a) [conspirators who conspire to commit a felony “shall be punishable in the same manner and to the same extent” as the target felony].)
28 IV. The 10-year Gang Enhancements T.W. contends that the 10-year enhancements imposed under section 186.22, subdivision (b)(1)(C) were unauthorized and should be
stricken.22 The Attorney General agrees and argues the terms should be replaced with a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). We agree. Section 186.22, subdivision (b)(1)(C) provides for an additional term of 10 years when a defendant is convicted of a violent felony that was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members. “Section 186.22[, subdivision] (b)(1)(C) does not apply, however, where the violent felony is ‘punishable by imprisonment in the state prison for life.’ [Citation.] Instead, section 186.22, subdivision (b)(5) (section 186.22(b)(5)) applies and imposes a minimum term of 15 years before the defendant may be considered for parole.” (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) Because a gang-related murder is a violent felony punishable by imprisonment for life, this offense is not subject to the 10-year enhancement under section 186.22, subdivision (b)(1)(C). (People v. Lopez, at pp. 1004, 1011.) “Instead, section 186.22,
22 Although we reverse the true finding on the gang enhancements per our discussion ante, we address this contention to ensure the error is not repeated in the event that the gang enhancements are found true upon retrial.
29 subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before
the defendant may be considered for parole.” (Id. at p. 1004.)23 In the event that, upon retrial, the gang enhancements are found true, the judgment shall not impose the 10-year enhancements pursuant to section 186.22, subdivision (b)(1)(C). (See People v. Arauz (2012) 210 Cal.App.4th 1394, 1405.) Rather, the judgment should impose a 15-year minimum parole eligibility term. (Ibid.) DISPOSITION T.W.’s convictions of murder and conspiracy to commit murder and the true findings on the firearm enhancements are affirmed. The true findings that T.W. committed the offenses for the benefit of a criminal street gang are reversed. The matter is remanded to provide the People an opportunity to retry the criminal street gang enhancements. If the People elect not to do so, T.W. is to be resentenced. Upon resentencing, the judgment shall reflect that the sentence on count 2 is imposed but punishment is stayed under Penal Code section 654. If the gang enhancements are found true on retrial, the judgment should reflect that section 186.22, subdivision (b)(5) imposes a minimum term of 15 years before T.W. may be considered for parole, rather
23 The same principle applies to conspiracy to commit murder which is also punishable by imprisonment for life. (§ 182, subd. (a)(1).)
30 than imposing 10-year enhancements under section 186.22, subdivision (b)(1)(C).
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.