IN RE: ANTHONY I. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Anthony I., a minor, appeals from the order continuing wardship (Welf. & Inst.Code, § 602) entered following a determination that he committed count 1 - assault with a firearm (Pen.Code, § 245, subd. (a)(2)) with personal use of a firearm (Pen.Code, § 12022.5, subd. (a)), count 2 -vandalism causing damage not less than $400 (Pen.Code, § 594, subds.(a) & (b)(1)), and count 3 - short-barreled shotgun or rifle activity (Pen.Code, § 12020, subd. (a)(1)), with findings as to each offense that appellant committed it for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)(1)).   The court ordered appellant placed in camp for a maximum theoretical period of confinement of 26 years.   We modify the order continuing wardship and, as modified, affirm it with directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (In re Dennis B. (1976) 18 Cal.3d 687, 697), the evidence, the sufficiency of which is undisputed, established that about noon on June 25, 2009, Luis F., a member of the Juarez Maravilla gang (Maravilla), was at a store on Pomeroy in Los Angeles.

Later, Luis F. and his brother were at City Terrace and Pomeroy, walking to the store.   Luis F. saw appellant in a sedan.   Appellant was a member of the Sentinel Boys gang (Sentinel), and Maravilla and Sentinel were rival gangs.   Appellant lowered his window and said something to the effect of “fuck your hood.”   Appellant said he would return.   Luis F. and his brother fled towards their home.   Appellant continued driving by them.

Luis F. lived in the 3600 block of Woodbine.   His home was located in territory claimed by Maravilla, Sentinel, and Hicks.   That afternoon, Luis F., inside his home, looked out a window and saw appellant in the sedan.   Appellant stopped in front of Luis F.'s house and looked at its door for two minutes.   Appellant, who was talking on the phone, later left.

Appellant returned driving a Jeep containing codefendant Jose C.¹ as its front seat passenger.   Jose C. was a Sentinel member.   Appellant and Jose C. were looking at the door of Luis F.'s house.   After about two minutes, appellant and Jose C. left, but drove back and forth four times in front of Luis F.'s house.

Later, about 5:30 p.m.,² appellant and Jose C. drove up in the Jeep. Luis F. was outside.   Jose C. exited the Jeep and began writing gang graffiti on the sidewalk of the house next to Luis F.'s house.   Appellant was looking at the door of Luis F.'s house.   Appellant exited the Jeep, pulled out a gun, and, while looking at Luis F., disengaged the gun's safety and waved the gun at Luis F. Luis F. also testified appellant pointed the gun at him.   The gun looked like a nine-millimeter gun, and Luis F. was at his door and about 18 feet from appellant when he pointed the gun at Luis F. Appellant was holding the gun in his right hand with his right arm extended and his palm facing down.

The prosecutor asked if appellant was moving the gun back and forth or merely holding it straight, and Luis F. replied appellant was holding it straight.   Luis F. testified appellant was “looking down like an evil face.”   Appellant acknowledged Luis F. was standing there, and appellant laughed.   Luis F. thought appellant was going to shoot him.   Luis F. closed his eyes, thinking he was going to die.   Luis F. then tried to enter his house.

When appellant was pointing the gun at Luis F., Jose C. was writing Sentinel graffiti.   Jose C. later entered the Jeep while appellant was pointing the gun at Luis F. Jose C. sat in the passenger seat and kept looking at the door of Luis F.'s house.   Jose C. obtained a gun from the passenger seat of the Jeep. At some point, appellant and Jose C. switched positions.   Jose C. gave the spray-paint aerosol can to appellant.   Jose C., holding a gun, stood behind the Jeep while appellant wrote Sentinel graffiti on a tree next to the house of Luis F.'s next door neighbor.   Luis F. testified Jose C. was “keeping an eye” and looking around.   The gun which appellant had pointed at Luis F., and the gun Jose C. had held, were different guns.   Appellant and Jose C. subsequently left.   They returned about two hours later and wrote gang graffiti on Luis F.'s house.   The graffiti of appellant and Jose C. caused about $800 worth of damage.

On August 27, 2009, Los Angeles Police Detective Antonio Guillen searched appellant's residence in the 1000 block of North Townsend and recovered a loaded sawed-off shotgun.   Appellant admitted to Guillen that appellant bought the shotgun, but appellant denied he had assaulted Luis F. with a firearm.

Guillen, a gang expert, testified as follows.   Appellant and Jose C. committed the above crimes to benefit Sentinel, a criminal street gang.   Appellant and Jose C. demonstrated their gang was dominant by writing their graffiti at another gang member's house.   Appellant and Jose C. appeared ready for any type of violent act because they possessed weapons at the time of the vandalism, and it was very common for gang members to have weapons when writing gang graffiti.   The primary activity of Sentinel included shootings.   Appellant possessed the short-barreled shotgun for the benefit of Sentinel.   Gang members shared weapons to commit crimes or acts against other gang members.

Appellant presented an alibi defense.

CONTENTIONS

Appellant claims (1) there is insufficient evidence that he committed assault with a firearm because there is insufficient evidence that said firearm was loaded, (2) the trial court miscalculated appellant's maximum theoretical period of confinement, and (3) the trial court miscalculated appellant's predisposition credits.

DISCUSSION

1. There Was Sufficient Evidence Appellant Committed Assault With a Firearm.

Appellant claims there is insufficient evidence he committed assault with a firearm.   He argues there was insufficient evidence that he had a real gun and, alternatively, there was insufficient evidence the gun was loaded.   We reject appellant's claim.

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  (Pen.Code, § 240;  italics added.)  “To point a loaded gun in a threatening manner at another ․ constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury.”  (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)   A defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that the defendant used a loaded weapon.  (People v. Rodriguez (1999) 20 Cal.4th 1, 13 (Rodriguez.)   Whether a gun is loaded is a question of fact for the jury, and the prosecution can establish the matter by circumstantial evidence.   (People v. Orr (1974) 43 Cal.App.3d 666, 672.)   This is equally true of the issue of whether an object is a real gun.

In the present case, there was substantial evidence as follows.   Appellant and

Luis F. were members of Maravilla and Sentinel, rival gangs.   Appellant said to Luis F. something to the effect, “fuck your hood” and indicated appellant would return.   Appellant thereby threatened Luis F.;   accordingly, Luis F. ran home.   Even then, appellant continued driving by Luis F., conduct the trial court reasonably could have concluded was menacing.

Luis F.'s home was in territory claimed by rival gangs, including those of appellant and Luis F. After Luis F. arrived home, appellant repeatedly drove in front of the house of Luis F. The trial court reasonably could have concluded appellant did this to instill fear in Luis F. and as casing activity, and that appellant would not have done this without possessing a loaded firearm.

Appellant left and returned with Jose C. so the two could write gang graffiti.   Appellant and Jose C. took turns;  one would write while the other held a gun and acted as a lookout.   Appellant was the first to display a gun.   He pulled out a nine-millimeter gun, disengaged its safety, and, with his right arm extended and his palm facing down, held the gun in his right hand and pointed it at Luis F. from about 18 feet away.   Appellant had an evil look on his face while he was looking at Luis F. and, while looking at Luis F., appellant laughed.   The trial court reasonably could have concluded (1) appellant was protecting Jose C. (and vice versa) while the two committed about $800 worth of vandalism damage near the home of Luis F., a rival gang member, and (2) appellant was daring Luis F. to do anything about it.   Luis F. thought appellant was going to shoot and kill him.   The trial court reasonably could have concluded appellant would not have engaged in the above conduct without possessing a loaded firearm.

Appellant did not shoot Luis F., but he had a motive to do so because appellant's crimes were committed for the benefit of a criminal street gang.   Guillen testified appellant was ready for any type of violent act, it was common for gang members to have weapons while writing gang graffiti, the primary activity of Sentinel included shootings, and gang members shared weapons to commit crimes or acts against other gang members.

We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed assault with a firearm, including sufficient evidence that appellant pointed a real and loaded firearm at Luis F. (In re Dennis B., supra, 18 Cal.3d at p. 697.) ³

2. Appellant's Maximum Theoretical Period of Confinement Must Be Reduced.

a. Pertinent Facts.

At the conclusion of the October 22, 2009 adjudication, the court determined appellant committed counts 1 through 3 and, inter alia, found true the Penal Code section 186.22, subdivision (b)(1) gang allegation pertaining to each count.   During the October 22, 2009 dispositional hearing, the court, calculating appellant's maximum theoretical period of confinement, indicated count 1 would be the base term and it was four years in prison.⁴  The prosecutor then stated “[f]our plus 10” and the court agreed.   The prosecutor then stated, “[f]our plus 10 on the gang [⁵ ]plus-I don't know how it works here in terms of 3, 4, 10.   The ultimate max would be 24 on count 1.” The court agreed.   The prosecutor then indicated the court needed to add two additional eight-month terms.   The court later stated “[s]o with regard to Anthony [I.], it should be 26 years because he had a prior petition. 26 years is the maximum[.]”

The October 22, 2009 minute order reflects appellant's maximum theoretical period of confinement as 26 years, purportedly determined as follows:  as to the current petition, count 1, four years;  plus the gang enhancement, 10 years;  plus count 2, eight months;  plus count 3, eight months.   The court added another eight months for a prior sustained petition for a violation of Vehicle Code section 10851.   These five separate periods total 16 years, not 26 years.

b. Analysis.

Appellant claims the trial court erred by calculating his maximum theoretical period of confinement as 26 years.   We agree, but not for the reason advanced by appellant.   There is no dispute the trial court calculated appellant's maximum theoretical period of confinement based on the five separate periods discussed in the preceding paragraph.   If those periods were collectively the only basis for the total calculation of 26 years, we would agree, as the parties do, that that total was erroneous, and we would agree that that total should have been 16 years.

However, the prosecutor stated, “I don't know how it works here in terms of 3, 4, 10.   The ultimate max would be 24 on count 1.” (Italics added.)   The court agreed.   We note Penal Code section 12022.5, subdivision (a) requires imposition of a prison term of either three, four, or 10 years.   That is, fairly read, the record indicates the prosecutor and court agreed that, pursuant to the Penal Code section 12022.5, subdivision (a) firearm enhancement, the court needed to add 10 years to appellant's maximum theoretical period of confinement, and this resulted in a total of 24 years as to count 1 (i.e., four years for the offense, plus 10 years for the gang enhancement, plus 10 years for the firearm enhancement).   This period of 24 years plus the eight-month period pertaining to each of counts 2 and 3, and to the prior petition, totaled 26 years.   In sum, appellant fails to acknowledge that the court's total calculation included the firearm enhancement pertaining to count 1.

The problem in this case lies elsewhere, namely, with the 10-year gang enhancement included in the court's calculations.   That enhancement was based on Penal Code section 186.22, subdivision (b)(1)(C), which states, concerning a conviction for a felony committed for the benefit of the gang, that “[i]f the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.”  Penal Code section 667.5, subdivision (c) lists 23 violent felonies, but there is no dispute that the sole basis upon which count 1 in this case qualified as a violent felony under Penal Code section 667.5, subdivision (c) (triggering application of section 186.22, subdivision (b)(1)(C)) was that count 1 was a “felony in which the defendant uses a firearm which use has been charged and proved as provided in ․ Section 12022.5” within the meaning of Penal Code section 667.5, subdivision (c)(8).

Thus, the 24 years which the trial court calculated as to count 1 included a 10-year firearm enhancement plus a 10-year gang enhancement.   However, the trial court could not properly rely on both enhancements to calculate the total term.   This is because Penal Code section 1170.1, subdivision (f), states, “[w]hen two or more enhancements may be imposed for ․ using ․ a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.”  Penal Code section 1170.1, subdivision (f) precludes imposition of both enhancements because they are based on the same personal use of a firearm by appellant.  (People v. Rodriguez (2009) 47 Cal.4th 501, 504, 508-509.)

Since the calculation of appellant's maximum theoretical period of confinement is equal to the “maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses” (Welf. & Inst.Code, § 726, subd. (c)) including previously sustained petitions (In re David H. (2003) 106 Cal.App.4th 1131, 1133-1134), the trial court erred to the extent its calculation of the maximum theoretical period of confinement included a 10-year term for the firearm enhancement plus a 10-year term for the gang enhancement.   We will modify the disposition by recalculating appellant's maximum theoretical period of confinement without including the 10-year term for the gang enhancement pertaining to count 1.

Respondent claims the trial court erred in calculating the maximum theoretical period of confinement for an additional reason.   He notes the trial court's calculation did not include terms for the gang enhancements pertaining to counts 2 and 3, and he points to Penal Code section 186.22, subdivision (b)(1)(A) which, in relevant part, states, concerning a conviction for a felony committed for the benefit of a gang, “the person shall be punished by an additional term of two, three, or four years at the court's discretion.”   Based on that triad, respondent argues the trial court's calculation should have included a four-year term for each of counts 2 and 3. Appellant does not address the issue in his reply brief.

Respondent's premise is that, based on Penal Code section 186.22, subdivision (b)(1)(A), the trial court should have included the full four years for the gang enhancement as to each of counts 2 and 3 in the court's calculation of the maximum theoretical period of confinement.   However, since the gang enhancement terms as to each of counts 2 and 3 are to be calculated consecutively in order to arrive at the maximum theoretical period of confinement, the term on each such gang enhancement is a consecutive subordinate term of one year (i.e., a consecutive one-third of the three-year middle term under Penal Code section 186.22, subdivision (b)(1)(A)).  (Pen.Code, §§ 1170.1, subd. (a), 1170.11.) ⁶

Since there is no dispute a Penal Code section 186.22, subdivision (b)(1)(A) gang enhancement as to each of counts 2 and 3 should be included in the calculation of appellant's maximum theoretical period of confinement, we will include a one-year term for each of counts 2 and 3. The ultimate result is appellant's maximum theoretical period of confinement is 18 years.   We will also direct the trial court to correct its October 22, 2009 minute order accordingly.  (Cf. People v. Solorzano (1978) 84 Cal.App.3d 413, 415, 417.)

3. Appellant's Predisposition Credit Award Must Be Increased.

The probation report prepared for a September 22, 2009 hearing reflects that on August 27, 2009, law enforcement personnel went to appellant's home to detain him and contacted him there.   His detention report reflects that on August 27, 2009, he was arrested.   The record reflects he remained in custody until his dispositional hearing of October 22, 2009, a total of 57 days, inclusive.   However, on October 22, 2009, the trial court awarded appellant only 50 days of predisposition credit.   Appellant was entitled to an additional seven days of credit.  (Cf. In re Eric J. (1979) 25 Cal.3d 522, 533-536.)   Respondent does not dispute this but concedes a remand for recalculation of appellant's predisposition credits seems justified.   We see no need to remand the matter to correct the award;  we will modify it and direct the trial court to correct its October 22, 2009 minute order accordingly.

DISPOSITION

The order continuing wardship is modified by reducing appellant's maximum theoretical period of confinement by eight years, resulting in a maximum theoretical period of confinement of 18 years, and by awarding appellant an additional seven days of predisposition credit, resulting in a total predisposition credit award of 57 days and, as modified, the order continuing wardship is affirmed.   The trial court is directed to amend its October 22, 2009 minute order to reflect the above modifications.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Jose C. is not a party to this appeal..  FN1. Jose C. is not a party to this appeal.

FN2. Luis F. gave conflicting testimony concerning the time when this occurred..  FN2. Luis F. gave conflicting testimony concerning the time when this occurred.

FN3. None of the cases cited by appellant compels a contrary conclusion.   This includes People v. Bekele (1995) 33 Cal.App.4th 1457 (Bekele ).   Our Supreme Court in Rodriguez noted that the published portion of Bekele failed to refer to the standard of review for claims of insufficiency of evidence and failed to explain how the normal presumption favoring the judgment was overcome.  Rodriguez concluded Bekele erred by simply reviewing the evidence and drawing inferences different from those of the trier of fact, and Rodriguez expressly disapproved Bekele to the extent it engaged in appellate fact-finding.   (Rodriguez,supra, 20 Cal.4th at pp. 13-14.).  FN3. None of the cases cited by appellant compels a contrary conclusion.   This includes People v. Bekele (1995) 33 Cal.App.4th 1457 (Bekele ).   Our Supreme Court in Rodriguez noted that the published portion of Bekele failed to refer to the standard of review for claims of insufficiency of evidence and failed to explain how the normal presumption favoring the judgment was overcome.  Rodriguez concluded Bekele erred by simply reviewing the evidence and drawing inferences different from those of the trier of fact, and Rodriguez expressly disapproved Bekele to the extent it engaged in appellate fact-finding.   (Rodriguez,supra, 20 Cal.4th at pp. 13-14.)

FN4. The upper term under Penal Code section 245, subdivision (a)(2) is four years..  FN4. The upper term under Penal Code section 245, subdivision (a)(2) is four years.

FN5. Penal Code section 186.22, subdivision (b)(1)(C) calls for a 10-year enhancement..  FN5. Penal Code section 186.22, subdivision (b)(1)(C) calls for a 10-year enhancement.

FN6. Penal Code section 1170.1, subdivision (a) states, in relevant part, “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”  (Italics added.)   Penal Code section 1170.11 states the term “specific enhancements” in Penal Code section 1170.1, subdivision (a) includes “enhancements provided in Section[ ] ․ 186.22[.]”.  FN6. Penal Code section 1170.1, subdivision (a) states, in relevant part, “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”  (Italics added.)   Penal Code section 1170.11 states the term “specific enhancements” in Penal Code section 1170.1, subdivision (a) includes “enhancements provided in Section[ ] ․ 186.22[.]”

KLEIN, P. J. ALDRICH, J.