People v. B.J. (In re B.J.)

• Decision Date: 28 May 2020
• Docket Number: 2d Juv. No. B293545
• Citation: 263 Cal.Rptr.3d 254,49 Cal.App.5th 646
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE B.J., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. B.J., Defendant and Appellant.

49 Cal.App.5th 646

263 Cal.Rptr.3d 254

IN RE B.J., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.B.J., Defendant and Appellant.

2d Juv. No. B293545

Court of Appeal, Second District, Division 6, California.

Filed May 28, 2020

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

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

TANGEMAN, J.

What happens if a juvenile court sustains allegations that a minor committed a series of offenses, some of which render them eligible for Division of Juvenile Justice (DJJ) commitment and some of which do not? Welfare and Institutions Code section 733, subdivision (c), is clear: DJJ commitment is permitted only if the minor's most recent offense is listed in Penal Code ¹ section 290.008, subdivision (c), or Welfare and Institutions Code section 707, subdivision (b). (See also In re D.B. (2014) 58 Cal.4th 941, 947, 169 Cal.Rptr.3d 672, 320 P.3d 1136.) Because the latest offense B.J. committed is listed in neither statute, we vacate the commitment order.

Prosecutors alleged that B.J. committed kidnapping during the commission of a carjacking ( § 209.5, subd. (a) ; count 1), kidnapping to commit robbery (§ 209, subd. (b)(1); count 2), carjacking ( § 215, subd. (a) ; count 3), second degree robbery (§§ 211, 212.5, subd. (c); count 4), and unlawfully driving or taking a vehicle ( Veh. Code, § 10851, subd. (a) ; count 5) one evening in September 2017. In the same petition, prosecutors also alleged that B.J. restricted or obstructed a peace officer (§ 148, subd. (a)(1); count 7) later that night. The juvenile court sustained the allegations, and found true allegations that B.J. committed counts 1 through 5 for the benefit of a criminal street gang ( § 186.22, subds. (b)(1)(A), (b)(1)(C) & (b)(4) ) and that a principal personally used a firearm during the commission of counts 1 through 4 (§ 12022.53, subds. (b) & (e)(1)). The court deemed counts 1 through 5 felonies; count 7, a misdemeanor. It declared B.J. a ward of the court, and ordered him committed to DJJ for a maximum term of life plus 21 years four months.

B.J. contends: (1) insufficient evidence supports the juvenile court's true findings on the gang allegations, (2) the true finding on count 3 should be reversed, and (3) the court erred when it ordered him committed to DJJ. We reverse the court's finding on count 3, vacate the commitment order, and remand for a new dispositional hearing.

FACTUAL AND PROCEDURAL HISTORY

The kidnapping, carjacking, and burglary crimes

In September 2017, K.I. drove her friend's black Audi to El Segundo. Around 7:00 p.m., K.I. parked and started to get out of the car. A man pointed a gun at her and told her to get back inside. As she moved to the front passenger seat, the man demanded all of her possessions.

The driver picked up B.J., then age 15, about 20 yards down the street. B.J. told the driver, "We need to hurry, let's go, dead bodies, my nigga, dead bodies." He pointed a gun at K.I. and demanded her cell phone. He looked through the contents of the phone and said, "Oh, you look good too. This is going to be fun." He touched K.I.’s stomach, and the driver touched her breast. K.I. thought the two were going to rape her.

The driver stopped the Audi again and picked up another passenger. K.I. begged to be let out of the car. The driver stopped, threw K.I.’s purse at her, and told her to go. K.I. got out and asked B.J. for her cell phone. He refused to return it. K.I. ran down the street and called police.

The resisting arrest offense

About four hours later, Los Angeles Police Officer Leovardo Guillen saw a black Audi run a stop sign. Officer Guillen activated his overhead lights and followed the car. The Audi sped away, but stopped after a few blocks. B.J. got out and ran. Officer Guillen chased and detained him. B.J. had socks on his hands and K.I.’s cell phone in his pocket.

Gang evidence

During booking, B.J. told Officer Guillen that he was a member of the Rollin 90s gang and that his moniker was "Ken Dog." At the contested adjudication, Officer Guillen testified that gang members sometimes wear socks on their hands to avoid leaving fingerprints while loading a firearm or stealing vehicles.

Detective Jesus Flores testified that, during the investigation of a 2016 carjacking, B.J. admitted that he was a member of the Rollin 90s gang with the moniker "Tiny Ken Dog." B.J. committed that crime with three other people, including another Rollin 90s gang member and a Rollin 40s gang member.

Detective Don Sasaki testified that B.J. told him that he was a Rollin 90s gang member with a moniker of "Tiny Nine Bang" in February 2017.

Officer Robert Resurreccion testified that the Rollin 90s gang is a clique of the Neighborhood Crips street gang, together with the Rollin 30s, 40s, 50s, 60s, and 100s. The Rollin 90s gang's primary activities include vandalism, burglaries, robberies, carjackings, and firearms possession. Carjacking a "high-end car" like an Audi allows a gang member to show off the vehicle and gain respect from fellow gang members. It also allows them to drive to rival gang territory and commit additional crimes. The proceeds from these crimes benefit the gang financially and permit them to buy firearms or narcotics.

Officer Resurreccion said that the carjacking in this case was committed in Rollin 40s gang territory. It occurred on "Hood Day," a day of celebration for the Rollin 90s. Younger gang members often commit crimes on Hood Day to demonstrate their respect for and loyalty to the gang and to establish themselves as members.

Officer Resurreccion believed that B.J. was an active Rollin 90s gang member based on his prior admissions, prior crimes, and gang tattoos. He did not know whether B.J.’s accomplices in the carjacking were gang members.

Given a hypothetical scenario based on the facts of this case, Officer Resurreccion opined that the hypothetical gang member would have committed the crimes for the benefit of, at the direction of, and in association with the Rollin 90s street gang: It was the gang's Hood Day, the stolen car benefitted the gang financially, and it increased the gang member's prestige within the gang. That the gang member may have committed the crimes with non-gang members did not change the officer's opinion since it was possible the non-gang members were attempting to "work their way into the gang."

DJJ commitment

The juvenile court ordered B.J. committed to DJJ for a maximum term of life plus 21 years four months: a lifetime commitment on count 1, plus a consecutive 10 years on the attached gang enhancement, plus a consecutive 10 years on the firearm enhancement; a consecutive one year on count 4; and a consecutive four months on count 7. Pursuant to section 654, the court imposed and stayed the commitments on all remaining counts.

DISCUSSION

Gang allegations

To sustain a gang allegation, the juvenile court must conclude that: (1) the minor's offense was gang related, or was committed "for the benefit of, at the direction of, or in association with" the gang, and (2) the minor had " ‘the specific intent to promote, further, or assist in any criminal conduct by gang members.’ " ( People v. Albillar (2010) 51 Cal.4th 47, 60, 65, 119 Cal.Rptr.3d 415, 244 P.3d 1062 ; see § 186.22, subd. (b)(1).) B.J. contends there was insufficient evidence of the first of these requirements. We disagree.

When evaluating a challenge to the sufficiency of the evidence, our review is limited to determining whether substantial evidence—"evidence that is reasonable, credible, and of solid value"—supports the juvenile court's findings. ( People v. Zamudio (2008) 43 Cal.4th 327, 357, 75 Cal.Rptr.3d 289, 181 P.3d 105.) We view the evidence "in the light most favorable to the prosecution and presume in support of the [findings] the existence of every fact the [court] could reasonably have deduced from the evidence." ( Ibid . ) " ‘Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a [finding], for it is the exclusive province of the [court] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ " ( Ibid . ) Reversal " ‘is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support’ " the [court's findings]. [Citation.]" ( Ibid . )

" ‘Expert opinion that particular criminal conduct benefited a gang’ ... can be sufficient to support [a] gang enhancement." ( People v. Vang (2011) 52 Cal.4th 1038, 1048, 132 Cal.Rptr.3d 373, 262 P.3d 581.) Here, Officer Resurreccion opined that a gang member like B.J. would have committed his crimes for the benefit of the Rollin 90s gang. The evidence supports that opinion.

Detective Flores, Detective Sasaki, Officer Guillen, and Officer Resurreccion all testified that B.J. was a Rollin 90s gang member. Carjacking is one of that gang's signature crimes. Rollin 90s gang members often commit carjackings with members of other cliques of the Neighborhood Crips, such as the Rollin 40s (as B.J. had done previously), or in those cliques’ territories (as was the case here). And as was the case here, they often wear socks on their hands while doing so. Carjacking a "high-end" car like an Audi would help a young gang member like B.J. earn respect from older gang members by permitting him to commit additional crimes that financially benefit the gang. Committing the crime on the gang's Hood Day would allow B.J. to demonstrate his loyalty to the gang. This evidence is sufficient to support Officer Resurreccion's opinion that B.J. committed his crimes for the benefit of the Rollin 90s gang.

The cases on which B.J. relies do not require a contrary conclusion. Like the situation here, in none of the cited c...