Filed 10/19/20 In re M.A. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re M.A., a Person Coming 2d Juv. No. B299171
Under the Juvenile Court Law. (Super. Ct. No. NJ28699)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
M.A.,
Defendant and Appellant.
M.A. appeals a wardship order (Welf. & Inst. Code,
§ 602) committing him to the Division of Juvenile Justice for a
maximum confinement period of 36 years eight months after the
trial court sustained a petition for two counts of assault with a
1
firearm (counts 2 & 4; Pen. Code, § 245, subd. (a)(2)) and
attempted second degree robbery (count 3; §§ 664/211), with
firearm enhancements (count 3; § 12022.53, subd. (b); count 2;
1
All statutory references are to the Penal Code unless
otherwise stated.
§ 12022.53, subds. (b)-(d); count 4; § 12022.5), great bodily injury
enhancements (count 2; § 12022.7, subd. (a)), and gang
enhancements (counts 2-4; § 186.22, subd. (b)(1)(C)). Appellant
contends (1) that the pretrial photo identification was unduly
suggestive and violated his due process rights, (2) that a firearm
enhancement should be stricken on counts 2 and 4, and (3) that
the trial court erred in calculating the maximum period of
confinement. The Attorney General agrees that issues 2 and 3
have merit. We reverse and direct the trial court to strike the
firearm enhancement on count 2 (§ 12022.53) and count 4
(§ 12022.5), that it not use the great bodily injury enhancement
twice (§ 12022.7, subd. (a)) to calculate the maximum period of
confinement on count 2, and that it recalculate the maximum
period of confinement. (Welf. & Inst. Code, § 726, subd. (d)(3).)
The judgment is otherwise affirmed.
Facts and Procedural History
On the evening of July 6, 2017, appellant and three
men confronted Brian R. and Antonio R. as they walked by the
Anaheim Gardens apartments in Harbor City. Appellant, an
active member of the Harbor City Crips, demanded to know
where they were from. Brian said they were not in a gang.
Appellant kept asking, pulled out a semi-automatic handgun, and
pointed it at Brian’s throat. Brian raised his hands and offered
his phone, hat, and money. Appellant shoved Brian against a car
with the handgun and held it to Brian’s neck.
Antonio told them to leave Brian alone. The group
tried to take Antonio’s bike but he fought back. Appellant shot at
Antonio’s leg and fired more shots as Antonio and Brian ran.
Brian and Antonio reached the corner and called 911.
Antonio was transported to the hospital for a gun shot to the leg.
2
The police found blood and .380 caliber casings on the sidewalk
outside the apartment complex. Brian and Antonio said the
shooter had an afro, a mustache and goatee, was skinny with a
pointy face and high cheekbones, and wore a dark hoodie and
pants and Nike Jordans shoes. The description matched
appellant. Los Angeles Police Officer Sterling Byrd stopped
appellant (aka Janky) and Harbor City Crips gang member
Zeache R. (aka Duda) four hours earlier, trespassing at the
apartment complex about 20 feet from where the bullet casings
were found. Appellant was wearing a black hoodie, dark jeans,
and black Nike shoes that resembled Nike Jordans.
On July 12, 2017, six days after the shooting, Brian
was shown a six-pack photo lineup, circled appellant’s photo, and
said “‘No. 1. Looks like the suspect.’” At the adjudication hearing,
Brian was asked if appellant was the shooter and said “I think
so.” Antonio was less sure and could not identify appellant at
trial. When Antonio was shown the photo lineup before trial, he
said “‘that guy looks like the guy that shot me’” but was not 100
percent sure.
Officer Byrd, a gang expert, testified that the
Anaheim Gardens apartments is a hangout for the Harbor City
Crips, an organized street gang that commits murders, attempted
murders, robberies, burglaries, and sells narcotics. Gang
members often carry firearms and challenge others by asking
where they are from. Officer Byrd stated that appellant was an
active Harbor City Crips gang member, had gang tattoos, and
performed in music videos promoting the gang. The officer
opined that the attempted robbery was for the benefit of the gang
to obtain money for guns and drugs, and the shooting was to
3
show the public that the gang would commit acts of violence
against anyone who disrespected the gang.
Photo Lineup Identification
Appellant argues that the six-pack photo lineup was
unduly suggestive and violated his due process rights because his
photo is zoomed in and more close up than the other photos. The
trial court found that it was not unduly suggestive and that any
variance in the photos went to the weight of the identification.
We independently review whether the photo lineup identification
was unduly suggestive. (People v. Avila (2009) 46 Cal.4th 680,
698-699.) “A due process violation occurs only if the
identification procedure is ‘so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable
misidentification.’ [Citation.]” (People v. Cook (2007) 40 Cal.4th
1334, 1355.) The burden is on appellant to show the photo lineup
was unduly suggestive and the identification was unreliable
under the totality of the circumstances. (People v. Ochoa (1998)
19 Cal.4th 353, 412 (Ochoa).) “The question is whether anything
caused defendant to ‘stand out’ from the others in a way that
would suggest the witness should select him. [Citation.]” (People
v. Carpenter (1997) 15 Cal.4th 312, 367.)
Here the photos are similar and depict men
with goatees and mustaches, and slender faces. The men are of
similar race, age, and build, have short afro hair and thin faces or
high prominent cheekbones. The background in each photo is a
different color and appellant’s head appears to be slightly larger,
but the discrepancies are minor. Brian did not notice any
difference in the photos or select appellant’s photo because the
head was larger. Antonio was shown the six-pack photo lineup,
could not make a positive identification, and did not identify
4
appellant at trial. Appellant cross-examined Brian and Antonio
about the photo lineup and questioned the officers who conducted
the photo identification procedure which was videotaped. The
detective who prepared the six-pack photo lineup used booking
photos from the police computer system and did not manipulate
or Photoshop the photos.
A perfect photo lineup does not exist. “[T]here is no
requirement that a defendant in a lineup, either in person or by
photo, be surrounded by others nearly identical in appearance.
[Citation.] Nor is the validity of a photographic lineup considered
unconstitutional . . . where one suspect’s photograph is much
more distinguishable from the others in the lineup. [Citations.]”
(People v. Brandon (1995) 32 Cal.App.4th 1033, 1052; see People
v. Carter (2005) 36 Cal.4th 1114, 1163 [difference in shirt colors,
photo boarder, glossy versus semi-glossy photos, background
color and image size are trivial immaterial distinctions]; People v.
Johnson (1992) 3 Cal.4th 1183, 1217 [same; defendant only
person depicted in jail clothing not unduly suggestive].)
Assuming, arguendo, that the photo lineup was
unduly suggestive, appellant must show the victims’
identification was not reliable “‘under the totality of the
circumstances, taking into account such factors as the
opportunity of the witness to view the criminal at the time of the
crime, the witness’s degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and the
confrontation [citation].’” (Ochoa, supra, 19 Cal.4th at p. 412; see
also Manson v. Brathwaite (1977) 432 U.S. 98, 114 [listing
identification factors].) Brian got a good look at the shooter even
though it was dark. They were face-to-face about 20 seconds.
5
Other evidence linked appellant to the shooting and robbery.
Officer Byrd stopped appellant and a fellow gang member four
hours before the shooting outside the apartment complex. The
officer’s body camera captured photos of appellant that closely
matched the victims’ physical description of the shooter.
Appellant makes no showing that the photo identification was
constitutionally unreliable (Ochoa, at p. 412) or that it denied
him a fair trial. (People v. Nguyen (1994) 23 Cal.App.4th 32, 40.)
Appellant argues that a detective conducted the
photo lineup in a suggestive way but the issue was not raised at
trial and forfeited. (Evid. Code, § 353; People v. Cunningham
(2001) 25 Cal.4th 926, 989.) On the merits, the argument lacks
merit. Detective Rudy Avelar admonished Brian and Antonio
they were under no obligation to identify anyone and the persons
responsible for the shooting and attempted robbery may not be in
the photo lineup. The photo identifications were in different
rooms and videotaped, and there is nothing to indicate that the
six-pack photo lineup was assembled or presented in a suggestive
2
way.
2
We have examined the photo lineup (Exhibit Nos. 14-16)
and reject the argument that it is unduly suggestive or rendered
Brian’s in-court identification unreliable. (Ochoa, supra, 19
Cal.4th at p. 412.) The photos depict men of the same general
age, complexion, build, and appearance. “Minor differences in
facial hair among the participants [do] not make the lineup
suggestive. [Citation.] Nor [do] differences in background color
and image size among the various photographs render the lineup
impermissibly suggestive. [Citation.]” (People v. Johnson (1992)
3 Cal.4th 1183, 1217.)
6
Firearm Use Enhancement – Count 2
Appellant argues, and the Attorney General agrees,
that the trial court erred in finding the firearm enhancement
(§ 12022.53) on count 2 (ADW of Brian) was true. The
enhancement does not apply because section 12022.53,
subdivision (a)(7) limits the enhancement to the armed assault of
a peace officer or a firefighter. (§ 245(d); see 3 Witkin & Epstein,
Cal. Criminal Law, (4th ed. 2012) Punishment, § 359, p. 552.) We
accordingly strike the true finding on the section 12022.53
enhancement on count 2.
Appellant complains that the trial court imposed a
10-year section 12022.53 firearm enhancement on count 2. The
trial court said it was adding 10-years based on the section
3
12022.5 firearm enhancement. The disposition order
erroneously states that on count 2, the trial court imposed
“12022.53(b)PC = 1 years . . . .” We remand with directions to
correct the June 12, 2019 disposition order to reflect that, on
count 2, a 10-year section 12022.5 firearm enhancement was
imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Appellant complains that the trial court found all the
count 2 enhancements true but did not specifically mention the
section 12022.5 firearm enhancement. On count 4 (armed
3
Selecting count 2 as the principal term, the trial court
stated: “count 2, the 245(a)(2)[,] that carries a maximum of four
years. The 12022.7, great bodily injury allegation, the court is
adding 3 years to that principal. The court is also adding the
186.22(b)(1)(C) [gang enhancement], adding 10 years. The court
is adding the 12022.5 special allegation, adding another 10 years.
So as to count 2, the court’s calculation is 27 years.” (Italics
added.)
7
assault on Brian), it found the section 12022.5 allegation was
true, then backed up to count 2 and clarified that it was finding
the count 2 “special allegations to be true beyond a reasonable
doubt,” which included both the 12022.5 and 12022.53 firearm
enhancements. It did not err. Because the section 12022.5
enhancement is a lesser included enhancement of section
12022.53, a trial court may impose a section 12022.5
enhancement based on a finding that a section 12022.53
enhancement is true. (See People v. Morrison (2019) 34
Cal.App.5th 217, 222 [court may impose a “‘lesser included’”
enhancement when a greater enhancement is found true].)
Dual Use of GBI Enhancement
Appellant argues and the Attorney General agrees
that the trial court erred in imposing both a 10-year gang
enhancement and a three-year great bodily injury (GBI)
enhancement on count 2. Appellant’s commitment to the
Department of Juvenile Justice cannot exceed the maximum
term of imprisonment that could be imposed on an adult
convicted of the same offense. (Welf. & Inst. Code, § 726, subd.
(d)(1); see In re Eddie M. (2003) 31 Cal.4th 480, 488 [discussing
former Welf. & Inst. Code, §§ 726, subd. (c), 731, subd. (c);
Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209,
1220, disapproved on other grounds in In re C.B. (2018) 6 Cal.5th
118, 130.) Where two or more enhancements may be imposed for
a GBI on the same victim, on the same offense, only the greater
enhancement may be imposed. (§ 1170.1, subd. (g); People v.
Gonzalez (2009) 178 Cal.App.4th 1325, 1331-1332.)
On count 2, the prosecution elected to use the GBI
enhancement (§ 12022.7, subd. (a)) to elevate the armed assault
(§ 245, subd. (a)(2)) to a violent felony, which in turn elevated the
8
gang enhancement to 10 years (§ 186.22, subd. (b)(1)(C).) That is
spelled out in the prosecution’s sentencing memo which asked the
trial court to impose a four-year upper term on count 2 (ADW;
§ 245(a)(2)), plus 10 years on the gang enhancement, plus 10
years on the firearm enhancement (§ 12022.5, subd. (a)), for a
maximum term of 24 years. The trial court overruled appellant’s
objection that the GBI enhancement could be used only once and
imposed a three-year GBI enhancement for a maximum
commitment period of 27 years on count 2. The court said
“[t]here were separate victims involved . . .” but count 2 involved
just one victim (Antonio). Because the 10-year gang
enhancement is the greater enhancement, we strike the three-
year GBI enhancement and remand with directions to recalculate
the maximum period of confinement which, in the trial court’s
discretion may include consecutive terms from the two prior
4
sustained petitions, filed in 2016. (Welf. & Inst. Code, § 726,
subd. (d)(3); In re David H. (2003) 106 Cal.App.4th 1131, 1133-
1134.)
Count 4 - Firearm Enhancement
Appellant argues, and the Attorney General agrees,
that the trial court erred in imposing both a firearm
4
Appellant has prior sustained petitions, one filed on
February 1, 2016 for attempted burglary (§§ 664/459), and a
second petition filed on June 3, 2016 for two counts of second
degree robbery with a gang enhancement (§§ 212.5, subd. (c),
186.22, subd. (b(1)(C)), and two counts of assault by means of
force likely to cause great bodily injury (§ 245, subd. (a)(4)) with
gang enhancements (§ 186.22, subd. (b)(1)(C)). We affirmed the
judgment on the second petition but modified the disposition
order to reflect that the aggregate maximum term of confinement
was 20 years. (In re M.A. (Aug. 17, 2017, B277400).)
9
enhancement (§ 12022.5, subd. (a)) and a gang enhancement
(§ 186.22, subd. (b)(1)(C)) in calculating the maximum period of
confinement on count 4. Unlike count 2 (ADW of Antonio), there
was no GBI enhancement on count 4 (ADW of Brian) to elevate
the armed assault to a violent felony, and then use the ADW
violent felony to elevate the gang enhancement to 10 years. (See
People v. Rodriguez (2009) 47 Cal.4th 501, 509.) Appellant,
however, was eligible for a 10-year gang enhancement because he
“‘use[d] a firearm which use [was] charged and proved as
provided in . . . Section 12022.5.’ (§ 667.5, subd. (c)(8).) [The]
firearm use resulted in additional punishment not only under
section 12022.5’s subdivision (a) (providing for additional
punishment for personal use of a firearm) but also under section
186.22’s subdivision (b)(1)(C), for committing a violent felony as
defined in section 667.5, subdivision (c)(8) (by personal use of
firearm) to benefit a criminal street gang. Because the firearm
use was punished under two different sentence enhancement
provisions, each pertaining to firearm use, section 1170.1’s
subdivision (f) requires imposition of ‘only the greatest of those
enhancements’ with respect to [count 4].” (Ibid.) We accordingly
strike the one-year-four-month firearm enhancement (§ 12022.5,
subd. (a) - one third the four-year enhancement term) and
remand to give the trial court the opportunity to restructure its
sentencing choices. (Ibid.)
Disposition
The judgment is reversed with directions to: (1) strike
the section 12022.53 firearm enhancement on count 2; (2) strike
the section 12022.5 firearm enhancement on section 4; and (3)
recalculate the maximum period of confinement. (Welf. & Inst.
10
Code, § 726, subd. (d)(3).) In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
11
John C. Lawson, II, Judge
Superior Court County of Los Angeles
______________________________
Mary Bernstein, 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, Senior
Assistant Attorney General, William H. Shin, Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.