In re Chance P. CA4/1

Filed 11/19/20 In re Chance P. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CHANCE P., a Person Coming
Under the Juvenile Court Law.
D075713
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J241251)

v.

CHANCE P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Louis R. Hanoian, Judge. Affirmed.
Cynthia Ann Grimm, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Andrew Mestmen and Susan Elizabeth Miller, Deputy Attorneys
General, for Plaintiff and Respondent.
 In a juvenile wardship petition (petition), minor Chance P. (sometimes,

Minor) was charged with one count of murder (Pen. Code,1 § 187, subd. (a);
count 1) and two counts of attempted murder (§§ 187, subd. (a) & 664; counts
2 and 3). It was further alleged that Minor personally discharged a firearm
in the commission of count 1, proximately causing death to a person (§
12022.53, subd. (d)); and personally discharged a firearm in the commission
of counts 2 and 3 (§ 12022.53, subd. (c)).
Following an adjudication hearing, the court sustained the petition,
finding true that Minor committed one count of second-degree murder (count
1) and one count of attempted murder (count 2). The court also found true
the firearm enhancements attached to those counts. The court found not true
the attempted murder charge in count 3 and dismissed that charge. The
court committed Minor to the Department of Corrections and Rehabilitation,
Division of Juvenile Justice (DJJ). The court determined minor’s maximum
term to be 40 years to life plus 27 years, which consisted of 15 years to life for
the murder true finding and 25 years for the firearm enhancement; plus the
mid-term of seven years for the attempted murder true finding and 20 years
for the firearm enhancement.
Minor on appeal contends that the true finding on count 2 is not
supported by substantial evidence; that the court abused its discretion in
committing him to DJJ; and that his case should be remanded to allow the
court to exercise its discretion to impose lesser-included firearm
enhancements in counts 1 and/or 2. (See § 12022.5, subds. (b) & (c).) As we
explain, we reject these contentions and affirm the court’s disposition order.

1 Unless otherwise noted, all further statutory references are to the
Penal Code.
2
 OVERVIEW
Prosecution Case
A former detective of the San Diego Police Department, Kimberly
Collier was assigned to the homicide unit on April 29, 2018. Detective Collier
testified that she participated in the investigation of the homicide involving
victim Thanh P. by his then 15-year-old son, Minor. As part of her
investigation, she reviewed video recorded by four surveillance cameras
located both inside and outside of the home, including one mounted in the
family’s living room which captured video taken days before, and on the day
of, the homicide.
Detective Collier reviewed video from April 26, three days before the
homicide. She testified that at about 4:13 p.m., the video showed the
following: “Dad in kitchen and storms into Chance’s room, turns the light on
and yelling at him about something and accusing him of lying. Chance gets
up and opens closet door. Noise that sounds like slap happens. Dad still
yelling. Chance put drops in eye.”
A minute later, the video showed the following per Detective Collier:
“Chance in view inside his bedroom near the closet. You can see dad slapping
him on the back of the neck while he’s putting in the eyedrops. Chance walks
further into his room. His light goes off. Dad walks out of the bedroom.”
Detective Collier testified that Thanh returned from a business trip on
April 29, the day of the homicide. Detective Collier reviewed the video from
that day, including at the time of the shooting. Portions of the video were
played for the court, and transcripts of such clips were included in the record.
According to Detective Collier, in the video things seemed like
“business as usual” until Thanh and his wife Nicolette started arguing. At
about 4:36 p.m., the video showed Thanh going into Minor’s bedroom holding

3
a laundry basket. Detective Collier heard Minor and his father arguing, and
then what she described as the sound of a “slap” or “thud-type noise.” The
video next showed Nicolette running into Minor’s bedroom, and her asking,
“ ‘What happened? Did you just fucking hit him again?’ ”
In the video, Minor could be heard explaining that “his father had hit
him, his mother saw it, and his father denied it.” Per Detective Collier, the
video next showed the parents leaving Minor’s bedroom and continuing to
argue. Nicolette at one point told her husband, “I always have to yell at you
all the fucking time[.]”
At about 6:00 p.m., Minor’s step brother Stephen returned to the family
home. Minor at the time was in his bedroom, where he tended to spend a lot
of time. Detective Collier noted that although she could not see Minor on the
video in his bedroom, it appeared from the audio that he often played video
games online and conversed with others while doing so. One such game
Minor played was “Escape from Tarkov,” which Detective Collier described as
a “first-person shooter game.”
At about 7:15 p.m., per Detective Collier the video showed Minor in his
underwear coming out of his bedroom. Minor went to the couch and began
watching television. A few minutes later, Minor got dressed and he and his
father went out for a quick dinner. The record shows between 8:30 and 8:35
p.m., Nicolette went outside onto the porch, leaving Minor and her husband
alone in the master bedroom. Nicolette then came back inside the home.
At 8:37 p.m., Minor left and then returned to the master bedroom. The
video showed Thanh then go to the back porch and return with a backpack,
while Nicolette sat on the couch in the living room. A minute later, the video
showed Thanh dropping the backpack and entering the master bedroom.

4
Seconds later, the sound of gunfire can be heard on the video, with five shots
in total in the span of about three seconds.
A transcript of the video showed Thanh and Minor had a conversation
just before the shooting, after Minor refused to get his mother a charging cord
for her cell phone. Next, the transcript showed Thanh screaming, “Ah!
Ohhh!” and Nicolette yelling, “What happened?! What happened? Chancey!
What are you doing? Chancey! What the fuck? What happened?” The
record shows Minor responded, “Get out of here. Fucking now,” as Nicolette
had entered the master bedroom after hearing gunshots.
The transcript of the video next showed Nicolette stated, “Chance!
Chance! What happened? Ste[ph]en!” Nicolette then asked, “Why?” and
added, “Chance! Chance! I’m your mom. Chance! I’m your mom. What did
you do? Chance! No! No! Chance! Chance! Chance! . . . .” Minor
responded, “Fuck you!”
Seconds after the shooting, the video showed Minor coming into the
living area and contacting his mother, after she fled the master bedroom.
According to Detective Collier, it was “clear” from the video that Minor then
pointed the gun directly at his mother, but that the gun was “locked back.”
(See appendix A attached to the end of this opinion, which is a still shot from
the record taken from the surveillance video.) Based on her training and
experience, Detective Collier opined this meant the gun was “either jammed
and/or out of ammunition.”
The video showed Minor then going back into the master bedroom with
his mother following behind. The video next shows Nicolette leaving the
master bedroom and running to Stephen’s room; and Minor going back and
forth between his bedroom and the master bedroom. Minor, after obtaining
more ammunition from the master bedroom and reloading his gun, then fired

5
a round at Stephen’s door. Nicolette can be heard yelling from inside
Stephen’s room. The video next showed Minor go back into the master
bedroom “for a while,” then go into his room and grab a backpack, then
return to the master bedroom. Shortly thereafter, Minor left the home and
took the gun with him.
Police officers and emergency personnel responded to the scene. They
performed CPR on Thanh, but he was pronounced dead at 9:22 p.m. An
autopsy showed that Thanh had suffered “five separate gunshot wounds”;
that four bullets were recovered from his body; and that he also had gunshot
wounds to his left leg and to his right fourth finger.
Detective Collier interviewed Nicolette at the police station on the
night of the homicide. At that point, police still had not located Minor.
Nicolette disclosed during the interview that she believed her husband had
entered Minor’s bedroom and struck Minor a few hours before the shooting
(as heard in the video). Nicolette went into Minor’s bedroom and confronted
her husband, who denied hitting Minor. Nicolette did not see any injury to
Minor or evidence he had been hit. According to Nicolette, Minor meanwhile
continued to play video games.
Nicolette told Detective Collier that after Thanh and Minor returned
home from dinner, everything “seemed normal,” noting: “They were both
quiet, they weren’t arguing. They were bringing things in and putting them
away. Then Chance went into his room to play video games, and [Thanh]
was continuing to take care of things at home” after his return from a
business trip.
Immediately after the shooting, Nicolette told Detective Collier she
went into their bedroom and “saw her husband lying in blood and wanted to
help him, but her son had raised the gun towards her and she was afraid that

6
he would shoot her.[2] So she ran into Ste[ph]en’s room.” Detective Collier
added that Nicolette believed her son had “tried” to shoot her. Detective
Collier reiterated that in the video, she could see the “slide” on the gun used
by Minor “locked back, which, based on [her] training and experience, could
indicate that it’s either jammed and/or out of ammunition.” After running to
Stephen’s room, Nicolette heard another gunshot, and observed a round come
“through” the door into Stephen’s room.
Nicolette told Officer Collier that Minor and his father had a “good”
relationship, that her husband loved Minor “a lot,” and that he “provided and
did a lot of things for Chance.” Nicolette noted that Minor’s “only” criticism
of his father was that he was a “disciplinarian” and he “might have been a
little rough” on Minor.
As to Minor, Nicolette described her son as nonviolent, an “introvert of
sorts,” who liked to play video games. She also told Detective Collier during
the interview that Minor was “lazy and spoiled.” As the interview continued,
police apprehended Minor. When told of Minor’s arrest, Nicolette responded

2 Nicolette’s statements appear to suggest that during the incident Minor
may have pointed a gun at her not once, but twice. The first time may have
been in the master bedroom within seconds of the shooting. Indeed, as
summarized ante, when Nicolette went into the bedroom after hearing
gunshots, she can be heard (but not seen, as there was only audio from the
master bedroom) repeatedly yelling “No! No” and “I’m your mom. Chance!
I’m your mom. What did you do? Chance! No! No! Chance! Chance!
Chance! . . . .” In addition, Nicolette at the disposition hearing testified that
after hearing the gunshots, she ran into the master bedroom, opened the
door, and saw Minor holding a gun and her husband lying on the floor.
Nicolette further testified that Minor then pointed the gun at her, and said, “
‘Get out of my house’ ”; and that even after watching the video, she was
unable to remember a lot of the events and details that took place that night.
In any event, the record shows Minor pointed the gun at his mother in the
living room area, as shown in appendix A.
7
her husband “didn’t deserve this” and she did not know why Minor had shot
his father.
Detective Collier conducted a follow-up interview of Nicolette in May
2018. During this second interview, Nicolette told Detective Collier that on
the night of the homicide, she confronted her husband after she thought she
heard him “slap” Minor; that her husband denied striking Minor; and that
Minor went back to playing video games. Nicolette also indicated that prior
to this particular incident, there had been about three incidents when her
husband had slapped Minor, but that she did not tolerate physical violence in
her home. Nicolette reiterated before the shooting, she had never seen Minor
acting in a violent manner.
Detective Collier asked Nicolette about the surveillance cameras.
Nicolette stated one was located in Minor’s room, pointing outdoors, because
the family lived in a “lower-level apartment” and her husband was concerned
someone could gain entry through Minor’s bedroom window. Detective
Collier testified she thought it was “odd” the family had surveillance cameras
inside their home.
Officer Mark Lucchesi of the San Diego Police Department responded
to the shooting and contacted Nicolette and Stephen. Officer Lucchesi was
wearing a body camera, which he activated. Officer Lucchesi described
Nicolette and Stephen as “frantic” and “hysterical,” and both appeared to be
in a “state of confusion.”
A portion of the video from Officer Lucchesi’s body camera was played
during the adjudication hearing, with a transcript of such included in the
record. The record shows Officer Lucchesi asked Nicolette what she saw
when she went into the bedroom after hearing gunfire. Nicolette responded,
“My husband was on the floor and my son was standing there with a gun.”

8
When asked what happened next, Nicolette stated: “He pointed the gun at

me so I ran,”3 then added, “I ran to my son’s room and we closed the door.”
Officer Enri Brown of the San Diego Police Department also responded
to the scene of the shooting. He, along with other officers, entered the
apartment at 9:02 p.m. through a sliding-glass door. Officer Brown activated
his body-worn camera. Portions of the video from his camera were played in
court, with a transcript from that video included in the record.
Officer Brown testified that he went into the master bedroom and
found the victim at the foot of the bed, bleeding. Officer Brown began chest
compressions until emergency personnel took over. In the closet of the
master bedroom, Officer Brown saw a drawer to a cabinet open. Officer
Brown found four shell casings and a spent bullet on the floor, near the
victim. In the first drawer of the cabinet officers found a nylon gun case but
no gun.
Officer Ron Van Cleave of the San Diego Police Department also
responded to the shooting. At about 1:00 a.m. the next day as he was driving
back to the substation, dispatch reported that another officer had contacted
Minor in a commercial area, after Minor had been seen hiding underneath a
guardrail. Officer Van Cleave proceeded to the area to assist other officers.
On arrival, Officer Van Cleave saw Minor was handcuffed, but was still
wearing his backpack. Officers already had recovered the gun from Minor’s
person, which was identified as a Glock 19, and an additional magazine from
the front pocket of Minor’s sweatshirt.
Officer Van Cleave testified he “cleared” the gun by removing a round
from the gun chamber, which meant the gun was ready to fire, and the
magazine that contained additional rounds. Officer Van Cleave searched

3 See footnote 2, ante.
9
Minor’s backpack, after officers cut the straps and removed it from Minor.
Inside he found “loose rounds,” “boxes of ammunition,” and an additional
magazine containing more rounds.
A criminalist from the San Diego Police Department crime laboratory
testified he fired the gun recovered from Minor’s person nine times; that in
each instance the gun worked properly and safely; that in using this type of a
weapon, a person either has to release the slide of the gun, which will
chamber a round, or pull the slide rearward, “and let it go forward”; but that
in either case, the gun user “has to do something to chamber a round.” The
criminalist testified the magazines recovered from Minor had a 10-round
capacity.
The record shows the criminalist was shown a portion of the video
immediately before and after the shooting. In the video taken from the
camera located in the living room area, the criminalist testified there was a
“clicking” noise right after Minor told his mother to “Get out.” The
criminalist testified there were at least three or four similar sounds during
the incident, and these sounds may have been the result of a round being
chambered in the gun and the gun-slide moving forward. After a few of the
clicking sounds, the criminalist heard a “lighter” sound coming from the gun.
The criminalist opined this lighter sound was likely when Minor was either
removing a magazine or reinserting a magazine into the weapon.
San Diego Police Department detective Maria Delgadillo responded to
the shooting scene at about 10:30 p.m. After obtaining a search warrant,
Detective Delgadillo along with other officers conducted a lawful search of the
home. In the master bedroom, they found Thanh’s body, along with blood
splatter, expended bullet casings, and an unexpended bullet. On the floor in
the bathroom of the master bedroom, they found another bullet casing,

10
another unexpended bullet, an empty “ammo box and a plastic ammo-like
case.” In Minor’s room they found an airsoft rifle in its nylon case located on
the floor, at the foot of his bed.
Detective Delgadillo testified they also recovered an additional shell
casing in the dining/living room area of the home, close to the hallway that
led to Stephen’s bedroom. Detective Delgadillo located a bullet hole in
Stephen’s bedroom door, just above the doorknob. She noted the bullet went
through Stephen’s “bedroom door into the opposing wall. So it went straight
through the door . . . hit the wall that goes to the outside of the apartment,”
and remained lodged in the wall. Detective Delgadillo found the bullet’s
trajectory appeared to be slightly downward from the point it passed through
Stephen’s door to where it ended up in the wall. She estimated the bullet
entered Stephen’s room about four feet off the floor.
Investigator Robert Guaderrama of the San Diego District Attorney’s
Office reviewed about 14,400 minutes of video footage from Minor’s home,
dating back to about 10 days before the April 29 shooting. Investigator
Guaderrama testified that based on his review of such extensive footage,
Minor spent “a lot” of time in his bedroom playing video games. Portions of
the video surveillance were played for the court, with transcripts
accompanying such clips.
On April 20, or nine days before the homicide, video recorded a
conversation between Minor and his father. During this conversation, father
could be heard telling Minor to do his “chores,” including giving Minor
instructions about putting things away and telling Minor to clean Minor’s
phone. According to Investigator Guaderrama, in this particular video clip
and in many others, Minor’s father can be seen serving Minor food.

11
 Toward the end of this conversation, after turning on the television,
Minor states, “Yes, I’m going to drink my [unintelligible]. [¶] He’s going to
die anyways, so.” Minor’s father replies, “Huh?” to which Minor answers,
“Never mind.” Investigator Guaderrama testified that when Minor made this
statement, the video showed Minor was pointing toward his father, who was
headed to the master bedroom.
In another video recorded on April 24, Minor’s father repeatedly
demanded that Minor get off his computer, at one point yelling, “Get away
from your addiction,” then yelling at Minor to do his homework. Inspector
Guaderrama testified that in addition to “verbal discipline” as displayed on
April 24, there were other instances when Minor’s father physically
disciplined Minor, adding, “One was a face slap [to Minor] and another one
was a slap to the back of the head.”
In the latter incident, it appeared Minor’s father was upset because
Minor was wasting prescription eyedrops. Inspector Guaderrama, however,
noted that although Minor’s father was a “disciplinarian,” the video footage
showed he was not a “strict disciplinarian”; and that, although Minor’s father
on “occasion[]” engaged in “physical touching” of Minor, there was not “a
whole lot” of such touching when compared to all of the video the inspector
reviewed leading up to the homicide.
On further questioning, Inspector Guaderrama stated that the face slap
to Minor’s face was “soft[]” and occurred only “one time”; that at another
point, father used a “dish towel” to hit Minor on the head; and that Minor’s
father kicked Minor “in the behind” once after Minor did not do what his
father had asked. The record shows Minor’s father on other occasions shortly
before the homicide threatened to turn off the Internet to the “whole house”
after Minor refused to follow directions.

12
 Investigator Vince Deocampo, also of the San Diego District Attorney’s
Office, testified he reviewed the contents of Minor’s cellphone. Investigator
Deocampo found “hundreds” of photos and images on the phone—including
from Internet searches—related to guns, such as “photos of real guns, airsoft
guns, video games like a character holding a gun.” Other images found on
Minor’s cellphone included a picture of a Glock 19 downloaded on March 7,
2018, from the Glock website, which was the same or similar model Minor
used in the homicide; a picture of an AK-47 rifle downloaded on April 18,
2018 with the caption, “How come everyone wanna be your friend soon as you
pull out one of these in class”; and news stories relating to guns and
shootings such as “school shootings and some Internet searches on like a wife
pulling out gun to protect her husband, open carry of guns, and some
shootings with cops, an undercover cop,” among many other images and
subject matters.
Investigator Deocampo also found on Minor’s phone a “note section”
where on March 12, 2018, Minor created lyrics to accompany rap music.
Investigator Deocampo noted Minor’s song was “about having a gun, an AR-
15, a Glock, killing people.” In a “Summary” section of the song, Minor
wrote, “Where the real [Minor’s last name] he's history,” then the following
lyrics:
“Where the real [Minor’s last name] he’s history
“Have to be sufficient on the thinking me
“Losing cash cause we been sinking gs
“Asking can we just kill some people please
“Big ass stick everywhere that’s the real dream
“Code 9 has straps yes this a real thing
“And yes we on the block 3 man team

13
 “Having to rely on being friends
“Having to rely on smokin green
“[¶] Having to rely on the hood scene
“Having to rely on the ar 15 [i.e., a rifle]
“Been bouncing with the glock
“Code 9 on the block
“Extended mags fuck stocks
“Mira Mesa Molly rock
“Better make sure your shy locked
“Boy going to get dropped
“3 man team
“Luca S[.] and me
“Just bought a factory key.”
Defense Case

Minor testified in his own defense.4 As relevant to the issues on
appeal, Minor testified that after he shot his father, he exited the bathroom
and was “surprised to find [his] mom.” Minor added, “In reaction, I extended

my—the pistol I was holding into her face.”5 Minor testified as he did so, he
was “fumbling” with the gun and “wasn’t 100 percent” sure how many

4 The record shows the defense called several witnesses to testify at
Minor’s adjudication hearing, including Nicolette, as noted ante. Such
testimony, to the extent relevant to the issues on appeal, is discussed post.

5 Again, it is not clear if Minor is testifying about the incident in the
living room area caught on video, which clearly shows him pointing the gun
at his mother (see appendix A); or perhaps about an earlier incident that was
not caught on video but only decipherable from the audio, when Nicolette
confronted her son in the master bedroom, just seconds after the shooting.
(See fn. 2, ante.)
14
unexpended bullets remained inside it, as the gun was already loaded when
he grabbed it from the cabinet in the master bedroom.
Minor testified he fired into Stephen’s door because he knew his mother
was inside the room, yelling. Minor explained, “Well, she—she was—I
wouldn’t say behind the door, actually. She was kind of opening the door,
coming out, to try to talk me down, I guess. I knew she was going to talk me
down. [¶] And my attempts to scare her earlier, I guess, didn’t work and I
knew I had to do something to scare her more drastically, at least, to—so I
could get away.” As such, he “fired a shot.”
Regarding the location of the shot, Minor testified: “I tried to fire the
shot down towards the left, but my marksmanship is not that great so it
ended up closer to my mother than I had hoped.” Minor further testified he
did not realize Stephen was also inside the bedroom until after he had fired
the shot, when he heard Stephen from behind the door talking to a 911
dispatcher.
After he fired the shot into the door, Minor went back into his bedroom,
emptied his school backpack, and then “went back into the [master] bedroom,
where [he] retrieved more ammo from the safe.” Minor then went back into
the living room area and told his mother “Fuck you.” When questioned why
he said that, Minor responded, “I didn’t want her to get the impression that I
was already gone, because I wasn’t, and I wanted her, again, to stay in there.
So I had to keep scaring her, basically.”
Minor on cross-examination testified that he had fired the airsoft rifle
purchased for him by his father about five or 10 times; that his father also
had twice taken him to the shooting range to fire the Glock; that before his
father took him to the range, his father made sure Minor knew how to clean
and load the weapon; that Minor had a Glock windbreaker he liked to wear;

15
that he thought school shootings were “funny,” but in a “scary[-]funny” way;
and that he believed his father was “unfair” for taking away his Internet
access when he was being disciplined.
Regarding the shooting, Minor testified he went into the master
bedroom and took the gun from the drawer not because he wanted to shoot
his father, but instead for protection as he had made the decision to run away
from home at least for the night and believed he needed the gun for personal
safety. However, after his father returned to the master bedroom, Minor
came out of the bathroom off the master bedroom holding the gun in both
hands, near his sternum, and confronted his father.
Minor testified he next saw his father lunge for the gun. Minor in
response claimed it “was reactionary” when he fired the first shot, hitting his
father in the chest. Minor testified he closed his eyes before he fired the gun.
Minor then fired the gun a second time, again striking his father in the chest.
Minor testified he fired the gun a second time because he then was unsure
where his father had been hit with the first shot. Minor estimated he was
about six feet away from his father when he fired the two shots.
Minor testified he fired the gun three more times because his father
“came at [him] again.” Minor explained it was also “reactionary” when he
fired the next three rounds at his father, as Minor was “afraid” of his father,
and felt he was still “in danger.” After he fired five rounds, Minor testified he
ran into the living room and confronted his mother.
The following colloquy then took place:
“Q. [Prosecutor]: And you run into your mom, right?
“A. [Minor]: Yes.
“Q. And you point the gun at her?
“A. Yes.

16
 “Q. And you try to shoot her?
“A. No.
“Q. You’re clicking something, right? We can hear it in the video.
“A. I’m—I’m just fumbling with the gun.
“Q. You had no idea how many bullets were in that gun when you
started firing at your dad, did you?
“A. Yes. But I—I actually thought there were more bullets.
“Q. How many bullets did you think were in the gun?
“A. Seventeen.
“Q. Why did you think that?
“A. When I play [the videogame] ‘Escape from Tarkov,’ there’s 17 in the
Glock. I thought it was the same Glock. But, I mean, I didn’t think it was—I
knew it was a different Glock, but I knew that one Glock has 17. [¶] So I don’t
know. It was just kind of like one Glock has 17, but this one could have had
any number amount. [¶] I didn’t know.
“Q. So when you came out and pointed the gun at your mom, you still
thought it was fully loaded, full of ammunition, right?
“A. Yes.
“Q. Because you had only shot five times, right?
“A. Yes.
“Q. So you thought there 12 more bullets in there?
“A. I thought there were a maximum of 12 more bullets.
“Q. And you pointed the gun directly at her, didn’t you?
“A. I wouldn’t say directly at her. It’s—it’s reactionary. So it’s kind of
like there’s a movement. So I—I can’t say pointed it directly at her. I just
know there was a movement. I extended my arms.”

17
 After the prosecutor again played the video for Minor showing him
pointing the gun at his mother immediately after he ran into the living room
area, the record shows the following exchange took place:
“Q. You’re pointing the gun directly at your mother, aren’t you Chance?
This is at 8:36:28 [p.m.]
“A. Yes.
“Q. And you have . . . your arm’s fully extended—or it’s bent here. But
when you first come out of the room, your arm is fully extended, right?
“A. Yes.
“Q. And that’s how you shoot a gun—right? Holding it out with your
arm fully extended?
“A. That is a way you can shoot a gun, yes.
“Q. But the gun was out of ammunition, right?
“[¶] . . . [¶]
“A. No.
“Q. It wasn’t out of ammunition?
“A. No.
“Q. Continue to play [the video]. [¶] What are you doing there, Chance?
You are—you hear the gun, you’re messing with the slide. I’m pausing [the
video]. . . . What were you doing there?
“A. You got to understand that I—I had just shot my father. My
adrenaline is rushing. I see my mother, and as you can see, I’m kind of
panicked. So I really think it’s just kind of like a fidget-type action where I’m
just overly excited.
“Q. So you weren’t trying to shoot her just then?
“A. No.”

18
 Minor went on to testify that after the confrontation with his mother,
he went back into the bathroom in the master bedroom; that once in the
bathroom, he did not reload the gun, but instead was merely “thinking” as he
“wanted to get away clean”; that in the bathroom he continued to “fumbl[e]”
with the gun, but knew “[i]t wasn’t out of ammo ”; and that while listening to
the video of the “clicking noises” from the gun, he claimed it was the result of
him “fumbling with the gun,” as he “cocked it . . . like so many times.” When
asked why he was fumbling and cocking the gun, Minor replied, “I’m overly-
excited, I guess, would be the reason I’m fumbling with it, yes.”
Regarding the shot into Stephen’s door, Minor stated that he felt he
“had to do it,” although it “wasn’t [his] plan for that to be another move”; that
when he fired into the door, he knew his mother was behind the door and was
in the process of opening it; that the distance between the door and where he
was standing when he fired was about 17 feet; that when he shot the weapon
at the door as his mother was in the process of opening it, he “knew that
shooting that gun could kill someone,” although he claimed he fired the
weapon merely to “scare” his mother; and he confirmed after firing the
weapon at the door, he told his mother “fuck you.”
Minor on cross-examination further testified he went back into the
master bedroom, put additional ammunition in his backpack, and saw his
father lying motionless on the floor. When asked why Minor did not use the
airsoft rifle instead of the Glock to protect himself, including from his father,
Minor noted the airsoft rifle merely fired BB’s, and added, “It’s going to hurt
someone, but like it’s just going to hurt”; and, “I needed something that
people would take me seriously.”
As noted ante, Minor’s mother Nicolette also testified on her son’s
behalf at the disposition hearing. As pertinent to the issues on appeal, she

19
testified that after she heard the gunshots coming from the master bedroom,
she ran into that bedroom and saw her husband lying on the floor. He did
not appear to be moving. Nicolette saw Minor standing in the bedroom
holding the gun. As noted ante, according to Nicolette Minor then pointed the
gun at her, and said, “Get out of my house.”
Court’s Ruling
The court as trier of fact rejected the defense’s portrayal of the victim
Thanh “as an abusive ogre whose unceasing and violent abuse of [Minor] left
[Minor] with no choice but to kill his father,” finding that depiction contrary
to the evidence. The court noted that there was no testimony of any “actual
violence” by Minor’s father against Minor; that his father may have given
Minor a “smack upside the head” when Minor, for instance, would not take
his eye medication; but that it did not consider such action by Thanh to be
“actual violence” against his son. The court also found that Thanh’s raising
of his voice, imposing punishment or “limitations for trivial transgressions”
did not show that Thanh was verbally abusive toward his son.
Regarding count 1, the court found Minor did not act in self-defense
when he killed his father, as the evidence did not support a finding that
Minor was in imminent danger of being killed or suffering great bodily injury.
In making this finding, the court determined Minor was not credible when he
testified that his father had struck him “three minutes” before the shooting,
or that his father minutes before the shooting had gone to the garage “to get
something . . . to do harm to [Minor] when what [Thanh] did, which is born[e]
out by the—the tape of that particular transaction, was he went to look for
and he found a telephone charger for his wife.”
The court also found that when Thanh returned from the garage and
walked into the master bedroom, he was “armed with nothing”; that he was

20
wearing a T-shirt and a pair of shorts, and thus had “nothing up his sleeve,
he had nothing in his hands, nothing whatsoever”; and that within seconds of
entering the bedroom, Minor fired five shots, killing his father. The court
thus found any fear by Minor that he was about to suffer death or great
bodily injury was unsupported by the evidence.
The court also found that imperfect self-defense did not apply because
as was the case of self-defense, Minor was not in imminent danger of being
killed or suffering great bodily injury; that heat of passion was not an excuse
for the homicide, as there was no provocation when Thanh merely
“reprimanded” Minor for not doing his chores “year after year”; and that,
merely because Minor, like many teenagers, did not like being told what to do
by a parent, and that Minor may have “reached the boiling point” as a result,
there was insufficient provocation to “cause a person of average disposition to
act rashly and without due deliberation.”
The court also found that Minor did not close his eyes and fire the
weapon as he claimed, as such a finding was inconsistent with Minor firing
three shots “in a straight line . . . in a parallel course.” Rather, the court
found the impact of the rounds showed Minor “aim[ed] the gun and sho[t] it
three different times.”
The court as to count 1 found the petition sustained and made a true
finding for the charge of murder. The court next addressed whether the
murder was first or second degree. The court found Minor was not lying in
wait when he killed his father. The court therefore turned to whether the
murder was willful, deliberate, and premeditated.
Although the court found Minor’s killing of his father to be willful, it
did not find the killing was the result of deliberation, or the “careful weighing
of the considerations for and against the choice.” Instead, the court found

21
Minor “was acting under some sort of mindset that, at least in this court’s
view, while [it] doesn’t eliminate the express malice nature of this thing that
there was an intent to kill, I don’t think there was a careful consideration of
the—of the determination to kill, and, as a result, this is murder of the
second degree.” The court nonetheless made a true finding that Minor, in
connection with count 1, used a handgun within the meaning of section
12022.53, subdivision (d), as alleged in the petition.
The court next turned to count 2, the attempted murder of Nicolette.
To make a true finding on this count, the court noted that Minor needed to
take “at least one direct but ineffective step toward killing Nicolette.” The
court found Minor took two such steps. It explained: “When [Chance] came
out of the bedroom and Nicolette is running toward the bedroom to see what
happened, she contacts Chance. He has the gun pointed directly at her with
his finger near the trigger, and then when the gun doesn’t fire, he starts
playing with the slide as he’s running around her.” (See appendix A.)
The court then addressed why Minor went back into the bedroom after
pointing the gun at his mother: “He goes back into the bedroom to do what?
Well, what we found from the testimony of the firearms expert is he’s out of
bullets, in all likelihood, or the mechanism is jammed. The time frame
between him going back into the . . . bedroom and the bathroom and him
coming out later on suggests that it was—he was out of bullets. So he’s
reloading, putting a new clip in, or putting new bullets into the other
magazine.
“And during that time, then Nicolette goes into Ste[ph]en’s room, and
then it goes from there. [Minor] comes out, looks down at Ste[ph]en’s room,
makes a comment to his mother, points the gun again at chest height and
shoots through the door.

22
 “This was not done in a panic. This was done deliberately. And so I
find that that would be the second ineffective step toward killing.
“It also requires an intent to kill, and, yes, I find beyond a reasonable
doubt that there was an intent to kill. When Chance came out, he wasn’t just
pointing the gun in a panic and just shooting it anywhere. He took—
assumed a shooter’s stance and then aimed right at the door where he knows
his mother had gone through because he could still hear her in that room and
he fired. And as a result, I’m making a true finding that count 2 has been . . .
sustained, and sustained in the petition that there was use of a handgun

within the meaning of [section] 12022.53(c).”6
DISCUSSION
I
Sufficient Evidence Supports the True Findings on Count 2 of Attempted
Murder of Nicolette

A. Guiding Principles
“ ‘The standard of appellate review for determining the sufficiency of
the evidence is settled. On appeal, “ ‘we review the entire record in the light
most favorable to the judgment [or order] to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation.]” [ Citation.] In conducting
such a review, we “ ‘presume[ ] in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ [Citation.]”
[Citations.] “Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive

6 As noted, the court did not make a true finding on count 3, attempted
murder of Stephen, which finding the People have not challenged on appeal.
23
province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends.
[Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence.” [Citation.]’ ” (People v. Harris (2013) 57
Cal.4th 804, 849 (Harris).)
As correctly noted by the juvenile court, an “attempt to commit a crime
consists of two elements: a specific intent to commit the crime, and a direct
but ineffectual act done toward its commission.” (§ 21a.) “To prove the crime
of attempted murder, the prosecution must establish ‘the specific intent to
kill and the commission of a direct but ineffectual act toward accomplishing
the intended killing.’ ” (People v. Canizales (2019) 7 Cal.5th 591, 602
(Canizales).)
“Direct evidence of intent to kill is rare, and ordinarily the intent to kill
must be inferred from the statements and actions of the defendant and the
circumstances surrounding the crime.” (Canizales, supra, 7 Cal.5th at p. 602;
see People v. Smith (2005) 37 Cal.4th 733, 739 (Smith) [noting that attempted
murder requires specific intent to kill, or express malice, “ ‘and the
commission of a direct but ineffectual act toward accomplishing the intended
killing’ ”].) “[E]vidence of motive is often probative of intent to kill[,]” but it
“is not required to establish intent to kill[.]” (Smith, at p. 741.)
“For an attempt, the overt act must go beyond mere preparation and
show that the killer is putting his or her plan into action; it need not be the
last proximate or ultimate step toward commission of the crime or crimes
[citation], nor need it satisfy any element of the crime [citation].” (People v.
Superior Court (Decker) (2007) 41 Cal.4th 1, 8; accord, People v. Garton
(2018) 4 Cal.5th 485, 514.)

24
 B. Analysis
Here, the juvenile court as trier of fact found that Minor intended to
kill his mother Nicolette on two separate occasions during the incident. Such
a conclusion is supported by substantial evidence, as we have summarized in
detail ante.
First, the record shows immediately after Minor shot his father five
times from a distance of about six feet, his mother Nicolette ran into the
master bedroom to find out what had happened. Audio from the surveillance
video recorded Minor saying, “Get out of here. Fucking now.” It is not clear
whether Minor then pointed the gun at Nicolette, as she claimed when
interviewed by Detective Collier on the night of the shooting, or as she
testified at the disposition hearing (see fn. 2).
In any event, Nicolette left the bedroom. Minor followed. He then
confronted his mother, and—with a picture being worth 1000 words—
extended his arms and pointed the gun directly at her. (See appendix A.)
The court found the gun was either jammed, or more likely, out of
ammunition, as a clicking noise could be heard on the video as Minor pointed
the weapon at her.
The court based its finding on expert testimony, which testimony in
turn was based on the video footage showing the gun’s slide in the locked-
back position as Minor assumed a “shooter’s stance”; and on the audio portion
of the video, where clicking noises could be heard coming from the gun as the
minor pointed the weapon directly at Nicolette, with his finger on the trigger.
Such evidence is more than sufficient to support the findings of the court that
Minor intended to kill his mother; and that he took a direct, but ineffectual
step, toward accomplishing the intended killing of her. (See Canizales, supra,
7 Cal.5th at p. 602; see also Smith, supra, 37 Cal.4th at p. 741 [intent “may in

25
many cases be inferred from the defendant's acts and the circumstances of
the crime”].)
Second, after Minor pointed the gun at his mother while they were in
the living room and was unable to fire the weapon because it was either
jammed, or, more likely, out of ammunition, Minor went back into the master
bedroom. The court found once in the master bedroom/bathroom, Minor
reloaded the weapon, which finding is amply supported by the record, based
on the location of the ammunition inside the bedroom; the unexpended bullet
police found on the bathroom floor; and the empty “ammo box and a plastic
ammo-like case” they also recovered from the bathroom.
Not only did Minor reload the weapon, he also dumped out the contents
of his backpack and filled it with another magazine and additional
ammunition. Minor then returned to the living room area. The video showed
the gun-slide of the Glock was no longer in the locked position. The record
shows Nicolette was yelling from behind Stephen’s bedroom door. Minor saw
that his mother was attempting to open the door. Minor in response fired a
round into the door, about four feet off the floor. The round went through the
door and lodged in the wall inside Stephen’s room. Minor then told his
mother to “fuck off,” claiming he did so because he wanted his mother to
know he was still inside the home and to facilitate his “clean” get-away.
We conclude that such evidence is more than sufficient to separately
support the finding of the court that Minor intended to kill his mother when
he fired the shot at Stephen’s door, knowing his mother was inside the room
and was attempting to open the door; and that firing a bullet, which entered
the door and bedroom at about four feet off the floor, was a direct, but
fortunately, ineffectual step toward accomplishing her intended killing. (See
Smith, supra, 37 Cal.4th at pp. 741–742 [finding that the act of firing a

26
weapon toward a victim at close range in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient evidence to support
an inference of intent to kill; that the fact the “bullet misses its mark or fails
to prove lethal [is not] dispositive”; and that the “ ‘ “fact that the shooter may
have fired only once and then abandoned his efforts out of necessity or fear
does not compel the conclusion that he lacked the animus to kill in the first
instance” ’ ” (italics added)].)
Minor nonetheless contends the evidence was insufficient to support a
finding he intended to kill his mother. As summarized ante, Minor testified
that the gun was neither out of ammunition nor jammed when, just seconds
after killing his father, he confronted his mother, assumed a “shooter’s
stance” and pointed the weapon directly at her; that the clicking sounds made
by the gun were merely the result of his “fumbling” with the weapon; and
that when he fired a shot at Stephen’s door as his mother was opening it, he
did so merely to scare her and let her know he was still in the home, so that
he could make a “clean” get-away.
Minor’s contention is nothing more than a request that we view the
evidence in the light most favorable to him. (See Harris, supra, 57 Cal.4th at
p. 849 [concluding a court of appeal reviews for substantial evidence the
entire record in the light most favorable to the judgment or order, and further
concluding in conducting such a review, it presumes “ ‘in support of the
judgment [or order] the existence of every fact the trier could reasonably
deduce from the evidence’ ”].)
It is axiomatic that issues of witness credibility are reserved for the
trier of fact. (See Harris, supra, 57 Cal.4th at p. 849.) As noted, the court
rejected certain portions of Minor’s testimony, including that there was
ammunition in the gun when he pointed it at Nicolette but did not fire; and

27
that he merely went back into the master bedroom/bathroom to think but not
to reload the gun. Although the court might have concluded from Minor’s
testimony that he lacked an intent to kill for purposes of count 2, on this
record it was not compelled to do so. Because our task on review is confined
to determining whether, viewed in the light most favorable to the
prosecution, the trier of fact’s true findings are supported by substantial
evidence, we reject Minor’s contention the evidence was insufficient to
support the finding he intended to kill Nicolette. (See ibid.)
In light of such evidence and our decision, we also conclude there was
more than sufficient evidence to support the finding of the court on count 2
that Minor personally discharged a firearm in the commission of the
attempted murder of Nicolette. (See § 12022.53, subd. (c)). Indeed, as noted
Minor fired a bullet into Stephen’s door knowing his mother was inside the
room and was attempting to open the door to “talk” Minor “down”; and Minor
admitted if the bullet struck Nicolette, it could have killed her.
II
The Court Properly Exercised its Discretion in Committing Minor to DJJ
Minor next contends the court abused its discretion in committing him

to DJJ7 because there allegedly was insufficient evidence to show a probable

7 Existing law requires that DJJ be removed from the Department of
Corrections and Rehabilitation and “reestablish[ed]” by July 1, 2020 as the
Department of Youth and Community Restoration under the California
Health and Human Services Agency. (Gov. Code, § 12820, subd. (a); see Welf.
& Inst. Code, § 1710.) Due to COVID-19, and following a declaration of a
state of emergency, the Governor of California issued an executive order
delaying the deadline for DJJ’s transfer to July 1, 2021. (Office of Governor
Gavin Newsom, Executive Order N-40-20 (Mar. 30, 2020)
[as
of Sept. 15, 2020], archived at: .)
28
benefit to him and less restrictive alternatives were inappropriate. We find
this contention unavailing.
A. Additional Background
Deputy Probation Officer Robert Pinedo of the San Diego Probation
Department prepared the Juvenile Field Services social study of Minor
(sometimes, Social Study) in connection with Minor’s April 5, 2019
disposition hearing. In preparation for Minor’s Social Study, Officer Pinedo
reviewed among other records Minor’s criminal and personal history; family
history; school records; abuse history, including substance abuse; physical
and mental health history; records from juvenile hall; and the 16-page
psychological evaluation of Minor conducted by Dr. Francesca Lehman on
November 15, 2018. In addition, Officer Pinedo also interviewed Minor and
Nicolette in preparing the study.
Officer Pinedo testified he next considered all of this information in
assessing Minor using the San Diego Risk and Resiliency Checkup tool. He
testified this tool helped to assess “possible recidivism” of Minor and
determine Minor’s specific needs in developing a case plan for his
rehabilitation. Using this tool, Officer Pinedo found Minor’s top two assessed
areas of need were “social connection and family functioning.” Based on this
tool and all the other information reviewed by Officer Pinedo, he
recommended in the Social Study that Minor be committed to DJJ.
When asked why he made this recommendation, Officer Pinedo
testified, “I just felt [Minor] could get the mental health needs . . . at the
program. It also was an appropriate program to deal with possible recidivism
in the future and ensure that he is properly rehabilitated before he returns to
the community.” Officer Pinedo added that in making his recommendation,

29
he also considered community safety and appropriate consequences for the
murder and attempted murder Minor committed.
Officer Pinedo testified that at the request of the court, Minor was
screened for acceptance into a short-term residential treatment program.
However, the screening committee found Minor did not meet the criteria for
such a placement.
DJJ also screened Minor and determined he could benefit from that
placement. In connection with the DJJ screening, Officer Pinedo met with
DJJ officials to learn more about its programs and whether they would be the
best fit for Minor. Officer Pinedo testified that all potential programs
available to Minor were considered, including those less restrictive than DJJ,
and that only after considering all such programs was DJJ selected to be the
program best-suited for Minor.
Officer Pinedo was also asked whether Minor was screened for the
Youth Offender Unit (YOU) run by probation, which unit was located in the
same physical facility where Minor was then being housed. Officer Pinedo
testified Minor had been screened for YOU, but was found not to be a fit for
that particular program.
Officer Pinedo nonetheless recognized that since being housed in
juvenile hall, Minor had been doing “well,” including earning all A grades
without any history of discipline; that Minor’s risk and resiliency score
showed he was a “low risk to recidivate”; and that if housed at YOU, he could
participate in conjoint family therapy with his mother on a local basis, as
recommended by Dr. Lehman in her psychological evaluation report.
Officer Pinedo and his supervisor nonetheless recommended in the
Social Study that Minor be committed to DJJ not only because of the wide
variety of programs available to Minor, but also because of the seriousness of

30
his offenses and for community safety. Officer Pinedo noted that the in-
custody portion of YOU was a maximum of 485 days, and that its jurisdiction
terminated when a minor reached the age of 21, unless the minor violated
probation. He further noted the in-custody portion of the program could be
shorter than 485 days, as YOU participants could earn credits and there
were, in any event, three different type of plans under such a program,
including one as short as six months.
Agent Michael Farmer of the California Department of Corrections and
Rehabilitation, Division of Juvenile Justice, testified he worked as an “intake
and court services liaisons at DJJ headquarters.” Agent Farmer testified
that DJJ had three facilities and a conservation/fire camp; that typically he
receives a call from a probation officer seeking to screen a minor’s eligibility
for DJJ; that once a minor is accepted into DJJ, he or she is accessed for 45
days at the reception center in Stockton, California; that during the initial
assessment, the minor is screened psychologically, meets with education and
medical staff to develop education and medical plans, and meets with a social
worker who does a clinical evaluation and a risk assessment to determine the
needs and services a minor likely will need while at DJJ; and that once all
such information is gathered, the minor and his or her family are consulted to
“develop an initial individualized treatment plan for that youth, for his or her
stay while at DJJ.”
Agent Farmer noted that in addition to developing a high school
graduation plan, a minor in DJJ can continue with his or her education and
participate in college courses “both in person and via correspondence courses
with the college.” DJJ also offers many career technical education courses
including in culinary, landscape, small-animal care, carpentry, and similar
type jobs.

31
 Agent Farmer described various intervention plans available at, and in
some cases, required by, DJJ. One required program is a 52-week
intervention addressing such subject matters as “deescalating an argument,
giving and accepting a compliment, basic social skills actually taken out . . .
[and] aggression replacement therapy training but not specific to aggression.”
Other such programs or interventions include areas such as “violence and
aggression, peer influence, or social networks and substance abuse.”
DJJ also creates an individual counseling and mental health plan for
each minor, based on all the information obtained about the minor and his or
her family. Agent Farmer noted minors and their families receive individual
counseling with a psychologist. Family members are allowed to be physically
present for counseling, as DJJ involves a minor’s family from the beginning of
a minor’s rehabilitation; or, if unable to be physically present, by
participating by “Skype and other technologies to be able to facilitate
counseling and interactions with the family.” Counseling at DJJ includes
“trauma-focused cognitive behavioral therapy,” because, as Agent Farmer
further noted, the majority of minors coming into DJJ have some sort of
“trauma history.”
Once discharged from DJJ, a minor engaged in any career technical
education courses is connected to those working in such fields, including local
labor unions, to help the minor obtain additional training and begin working
in his or her area of interest. A minor also can participate in DJJ’s fire camp
program, where he or she is trained by Cal Fire, Department of Forestry, in
conservation efforts and firefighting, including obtaining a certificate that,
upon discharge, helps the minor further his or her education or obtain a job.
Prior to discharge from DJJ, a minor will be assigned to a “specific
reentry agent” who creates a plan for the minor to reenter the community.

32
According to Agent Farmer, the reentry agent coordinates with the local
probation departments to facilitate what he described as a “warm handoff” of
the minor back to probation in the county of commitment, so the minor can
receive services tailored to his or her needs.
At the conclusion of Agent Farmer’s testimony, the court accepted into
evidence exhibits A through H, which were informational documents from
DJJ that corroborated the witness testimony. The court then heard from
Thanh’s sister, Catherine W., who noted how distressing it was to “hear
stories of [her brother’s] character dragged out here in public [in front of
television cameras], for his reputation to be in question, despite the fact that
he was the victim” and his life was “taken violently by his own son” in such a
“deeply painful and senseless” manner.
At the close of testimony, the court heard oral argument. The
prosecutor asked the court to adopt the recommendation of probation that
Minor be committed to DJJ based on a multitude of factors, including the
best interests of Minor and the public. The prosecutor noted alternatives to
DJJ were considered by probation, including residential treatment and YOU,
but probation determined these alternatives were inappropriate for Minor
based on a variety of factors including the seriousness of his offenses.
Finally, the prosecutor noted DJJ had a number of rehabilitative programs
that would help Minor, including “violence and aggression counseling,”
“family counseling,” all while meeting Minor’s educational needs with a focus
on Minor’s reentry into the community.
Defense counsel argued Minor was eligible for YOU and should be
assigned to that program, which was less restrictive than DJJ. Defense
counsel further argued placing Minor in YOU would facilitate family

33
counseling, as Minor would be housed in San Diego County, which would not
be the case if assigned to DJJ.
As noted ante, the court ordered Minor to be placed with DJJ. In so
doing, the court noted it had presided over the adjudication of Minor; had
read the People’s dispositional statement and attached exhibits, and the
probation report and attached exhibits, including Dr. Lehman’s confidential
16-page report; and had considered the witness testimony and the victim
impact statements, including from Catherine W., and the argument of
counsel, all of which were presented at the disposition hearing.
The court noted that, although Minor preferred less restrictive
alternatives to DJJ, such alternatives were not in Minor’s best interest
because Minor’s “mental and physical condition and qualifications render it
probable that he will be benefitted by the reformatory education, discipline,
or other treatment provided by [DJJ].” The court added, “[W]hat impresses
me about [DJJ] is the wide variety of options that are available. We have
educational options that are certainly not surpassed at the local level. [¶] We
have—so we have—Chance will be [in] line to graduate from high school. He
will have an opportunity to take college classes, if that is what he desires, but
he’ll have other options, too. If he’s not going to be a college student, there’s a
fire camp program. There’s carpentry programs.
“It’s the programming that is available at [DJJ] that I think is most
important in the whole—basically for the whole picture of the rehabilitation
of Chance, which is, of course, the goal. We need to get Chance up and
running. We need to have him become a productive member of society, and
we need to give him the training, the education, and the skills and the
therapy that’s necessary.

34
 “You know, I understand that family counseling can be best done, at
least in an in-person point of view, here in San Diego County. But, you know,
nowadays with video, video counseling, Skype, telephonic counseling, you
know, I think that it’s not necessary that it all be face-to-face and everybody
in the same room.”
The court adjudged Minor a ward of the court (see Welf. & Inst. Code, §
602); and determined the welfare of Minor required that custody be taken
from his parent. (See id., § 726, subd. (a)(3).) The court further found that
all true findings during the wardship “have been aggregated” (see id., §§ 726
& 1170.1, subd. (a)); that the most serious offense was section 187,
subdivision (a), murder, which it further found was a “Category 1 offense”;
and that Minor had committed offenses under Welfare and Institutions Code
section 707, subdivisions (b), (d)(2), and/or (e).
The court advised Minor that the maximum term for count 1 was 15
years to life, as it had adjudicated the murder to be in the second degree; that
the allegation attached to count 1, which, as noted, the court found true, was
25 years to life (see § 12022.53, subd. (d)); and thus, that the total term for
count 1 was 40 years to life.
With respect to count 2, attempted murder of Nicolette, the court chose
the middle term of seven years, based on the fact Minor had no prior criminal
record. The court then imposed the 20-year enhancement based on its true
finding of the allegation attached to count 2, use of a firearm in its
commission (see § 12022.53, subd. (c)), making Minor’s total term “40 to life
plus 27 years.”

35
 B. Guiding Principles
When a minor is adjudged a ward of the juvenile court, “the court may
make any reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the minor.” (Welf. & Inst. Code, § 727, subd.
(a)(1).) In determining disposition, “the court shall consider, in addition to
other relevant and material evidence, (1) the age of the minor, (2) the
circumstances and gravity of the offense committed by the minor, and (3) the
minor’s previous delinquent history.” (Id., § 725.5.) The court may also
consider public safety. (Id., § 202, subd. (b).) The court has a wide range of
options available for placing its wards, including probation, placement in a
relative’s home, foster home, licensed community care facility, or group home
(id., § 727, subd. (a)); commitment to “a juvenile home, ranch, camp, or
forestry camp” or “the county juvenile hall” (id., § 730, subd. (a)); or
commitment to DJJ. (Id., § 731, subds. (a)(4) & (c); see People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 306 (Lara).)
In order to commit a minor to DJJ, a “court [must be] fully satisfied
that the mental and physical condition and qualifications of the ward are
such as to render it probable that he [or she] will be benefited by the
reformatory educational discipline or other treatment provided by [DJJ].”
(Welf. & Inst. Code, 734; see In re Eddie M. (2003) 31 Cal.4th 480, 488 (Eddie
M.) [noting a “court must find that [DJJ] would likely benefit the ward”].) In
addition, the record must show that “less restrictive alternatives would be
ineffective or inappropriate. [Citation.]” (Lara, supra, 4 Cal.5th at p. 306.)
Although there must be evidence in the record that less restrictive
alternatives would be inappropriate or ineffective, “there is no absolute rule
that a DJJ commitment cannot be ordered unless less restrictive placements
have been attempted.” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) Thus,

36
“if there is evidence in the record to show a consideration of less restrictive
placement was before the court, the fact the judge does not state on the
record his [or her] consideration of those alternatives and reasons for
rejecting them will not result in reversal.” (In re Teofilio (1989) 210
Cal.App.3d 571, 577.)
We review a court’s decision to commit a minor to DJJ for abuse of
discretion. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395 (Michael D.).)
“We must indulge all reasonable inferences to support the decision of the
juvenile court and will not disturb its findings when there is substantial
evidence to support them. [Citations.]” (Ibid.) A reviewing court must
examine the evidence at the disposition hearing in light of the purposes of the
juvenile court law. (Ibid.) Those purposes include (1) the protection and
safety of the public, and (2) rehabilitation of the minor through care,
treatment, and guidance which is consistent with the minor’s best interest,
holds the minor accountable for his or her behavior, and is appropriate for the
circumstances. (Welf. & Inst. Code, § 202, subds. (a), (b) & (d).) The court
may also consider punishment that is consistent with rehabilitative purposes
and a restrictive commitment as a means of protecting the public safety. (See
id., subd. (b); Michael D., supra, at p. 1396; In re Christopher B. (2007) 156
Cal.App.4th 1557, 1564.)
C. Analysis
Here, the court expressly found that commitment to DJJ was in Minor’s
best interest, as it had myriad programs that would benefit him; and that
less restrictive alternatives were not as effective or appropriate. (See Welf. &
Inst. Code, § 734; Lara, supra, 4 Cal.5th at p. 306; Eddie M., supra, 31
Cal.4th at p. 488.) Substantial record evidence supports these findings.

37
 We note the court—which also presided over the adjudication phase of
the case—had a wide-range of information available to it when considering
Minor’s placement, all of which the court specifically noted had been
considered in making its disposition of Minor, including the Social Study of
Minor prepared by probation, the People’s dispositional statement, the
testimony of Officer Pinedo and Agent Farmer, and Dr. Lehman’s pre-
adjudication report, among other information.
Officer Pinedo’s testimony at the disposition hearing showed that
Minor was considered by probation for programs less restrictive than DJJ,
including short-term residential treatment and YOU. Officer Pinedo testified
that Minor was found unsuitable for such alternative programs by the
screening committee based not only on Minor’s mental health needs and his
need for cognitive therapy to address his violent and aggressive behavior, but
also because of the seriousness of the offenses he committed against his
father and mother, which is a factor that may be, and was, considered in
Minor’s placement.
Indeed, as we have summarized ante, Minor, without provocation (as
found by the trier of fact), fired five bullets at his father from a distance of
about six feet, striking his father four times in the leg, hand, and torso/chest
area. Minor committed the homicide after he and his father had gone out to
dinner without incident, and after his father had returned earlier that day
from a multiday business trip. Minutes before the shooting, Minor’s father
had gone outside not to retrieve a tool or weapon to harm Minor, as he
testified, but instead to retrieve Nicolette’s cellphone charger, as she
requested.
As noted, the court found Minor’s father had not been physically violent
toward Minor, including minutes before Minor fired the weapon, despite

38
Minor’s claims otherwise. Nor had Minor’s father been verbally abusive
when he raised his voice at, or imposed punishment on, Minor for “trivial
transgressions” as a result of Minor’s failure to do his chores and otherwise
follow direction.
As also summarized ante, Minor also attempted to murder Nicolette
during the incident on at least two separate occasions. Putting aside any
possible murder attempt in the master bedroom (see fn. 2 ante), the first such
attempt occurred when he confronted his mother in the living room area,
shortly after killing his father. In this incident, Minor, with his finger on the
trigger, assumed a “shooter’s stance,” and pointed the gun directly at his
mother. Audio from the surveillance camera picked up the sound of a
clicking noise coming from the gun, either because the gun was jammed or, as
found by the juvenile court, more likely out of ammunition.
The second such attempt occurred after Minor went back into the
master bedroom, reloaded the gun and dumped an additional magazine and
ammunition into his school backpack. Minor then went back into the living
room area and, shortly before leaving the home, fired a bullet that went
through Stephen’s door near the doorknob, about four feet off the floor, and
lodged into the wall in Stephen’s room. Minor fired the bullet knowing his
mother was behind the door, as she was yelling at the same time she was
beginning to open the door to “talk” Minor “down.”
The record shows Minor fired the bullet to let his mother know he was
still in the home and to facilitate his “clean” get away. Minor attempted to
murder his mother despite the lack of any evidence that she, unlike the
allegations against her husband, had ever been physically or verbally abusive
toward him. As a result of the true findings made by the court on counts 1

39
and 2, and the allegations appended to each count, Minor was advised he was
facing a maximum sentence of 40 years to life plus 27 years.
In addition, the record shows there was ample evidence to support the
court’s finding that Minor’s mental health, emotional, behavioral, and
educational needs could be met at DJJ based on the wide-range of programs
or interventions DJJ offered in an individually developed case plan.
According to Agent Farmer, this case plan was the result of input from
Minor, his family members, a comprehensive initial 45-day assessment, as
well as all other information and documentation related to Minor, all of
which were designed to meet the goal of rehabilitation in order to have Minor
reenter the community.
Agent Farmer testified the case plan would include various programs
or interventions for Minor including cognitive behavioral programs to help
him with anger issues, to address antisocial attitudes, and to develop self-
monitoring and regulation skills. DJJ also provided trauma-focused
treatment, victim awareness, employment, education, mental health, and
reentry group programs.
Overall, the record shows the court was impressed by the higher level
of care Minor would receive in DJJ when compared to the other, less
restrictive placements. (See In re Jonathan T. (2008) 166 Cal.App.4th 474,
486 [noting a juvenile court “is only required to find if it is probable a minor
will benefit from being committed [to DJJ],” and further noting “[t]here is no
requirement that the court find exactly how a minor will benefit from being
committed to DJJ”].) Moreover, contrary to Minor’s contentions otherwise,
the court did make a finding that the treatment and programs Minor would
receive at DJJ “surpassed” the programs and treatment available to him at
the “local level,” including at YOU.

40
 In sum, the juvenile court considered all the proper factors prior to
placing Minor with DJJ, after finding that less restrictive alternatives were
ineffective or inappropriate. (See Welf. & Inst. Code, § 734; Lara, supra, 4
Cal.5th at p. 306; Eddie M., supra, 31 Cal.4th at p. 488; Michael D., supra,
188 Cal.App.3d at p. 1395.) Because the court’s decision as to each factor was
supported by the record evidence, and because the record shows it properly
exercised its discretion in considering Minor’s placement, we find no abuse of
discretion.
III
The Court Properly Imposed the Firearm Enhancements in Counts 1 and 2
Minor next contends the case should be remanded because the court
allegedly was unaware that it had the discretion not only to strike the
firearm enhancements attached to counts 1 and 2 for murder and attempted
murder, respectively, but also to replace those enhancements with lesser,
uncharged enhancements. We find this contention unavailing.
Initially, we conclude Minor forfeited this claim of error by failing

under section 13858 to object at the disposition hearing on these specific
grounds. (See People v. Scott (1994) 9 Cal.4th 331, 353 [noting in the absence
of an objection, a defendant on appeal forfeits any “claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing
choices”]; see also Lara, supra, 54 Cal.4th at pp. 900–901 [noting section 1385
permits “courts to dismiss, or ‘strike,’ factual allegations relevant to
sentencing, such as those that expose the defendant to an increased
sentence”].)

8 Subdivision (b)(1) of section 1385 provides: “If the court has the
authority pursuant to subdivision (a) to strike or dismiss an enhancement,
the court may instead strike the additional punishment for that enhancement
in the furtherance of justice in compliance with subdivision (a).”
41
 Moreover, we reject this contention on the merits.9
Initially, we note the court in the instant case announced its findings at
the conclusion of the April 5, 2019 disposition hearing, after the amendment
to section 1385 had become effective. (See Stats. 2018, Ch. 1013 (Sen. Bill
No. 1393), § 2, eff. Jan. 1, 2019.) When a record is silent, such as in the
instant case, a “trial court is presumed to have been aware of and followed
the applicable law” when exercising its discretion. (People v. Mosley (1997)
53 Cal.App.4th 489, 496 [recognizing “general rules concerning the
presumption of regularity of judicial exercises of discretion apply to
sentencing issues”]; accord People v. White Eagle (1996) 48 Cal.App.4th 1511,
1521–1523 [noting a court of review cannot presume error when the record
does not establish on its face that the trial court misunderstood the scope of
its discretion].)
Moreover, we note the court during disposition exercised its discretion
when advising Minor of the possible sentence he was facing in this case. As
noted ante, the court made true findings on counts 1 and 2, the murder and
attempted murder of Minor’s father and mother, respectively, and on the
gun-use allegations appended to each count. However, on count 2, the court
exercised its discretion when it imposed the middle term of seven years, as
opposed to the upper term of nine years. In so doing, the court recognized
Minor’s lack of criminal history was a mitigating factor warranting the
middle term.
In exercising that discretion, the court also found that Minor’s “actions
leading up to the shooting show . . . he armed himself with a firearm, he

9 Because we reach the merits, we reject Minor’s claim that his counsel
was ineffective for failing to object to the imposition of the enhancements
under section 12022.53.
42
positioned himself to gain an advantage, and then he shot [his father] five
times with a coup de grace in the end.” We thus conclude from this record
that the court was aware of its discretion when imposing sentence on counts
1 and 2, and the enhancements appended thereto, but found Minor’s actions
warranted imposition of the gun-use allegations, as charged in the petition.
Minor also contends the juvenile court misunderstood the scope of its
discretion and requests that we remand for the court to consider whether to
substitute lesser enhancements under section 12022.53 for his gun use, as
opposed to the enhancements actually found and imposed by the court as
alleged in the petition. Minor principally relies on People v. Morrison (2019)
34 Cal.App.5th 217 (Morrison) to support this contention. The People assert
Morrison was wrongly decided and should not be followed. We agree with the
People.
“On October 11, 2017, Governor Brown signed Senate Bill No. 620
(2017-2018 Reg. Sess.), which amended sections 12022.5 and 12022.53 to
provide trial courts with the discretion to strike a firearm enhancement or
finding. [Citation.] Senate Bill No. 620 added the following language to both
statutes: ‘The court may, in the interest of justice pursuant to Section 1385
and at the time of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other
law.’ ” (Morrison, supra, 34 Cal.App.5th at pp. 221–222, italics added.) This
language was added to section 12022.53 as subdivision (h).
Section 12022.53 “ ‘sets forth the following escalating additional and
consecutive penalties, beyond that imposed for the substantive crime, for use
of a firearm in the commission of specified felonies, including . . . murder
[and/or attempted murder:] a 10-year prison term for personal use of a

43
firearm, even if the weapon is not operable or loaded (id., subd. (b)); a 20-year
term if the defendant “personally and intentionally discharges a firearm” (id.,
subd. (c)); and a 25-year-to-life term if the intentional discharge of the
firearm causes “great bodily injury” or “death, to any person other than an
accomplice” (id., subd. (d)). For these enhancements to apply, the requisite
facts must be alleged in the information or indictment, and the defendant
must admit those facts or the trier of fact must find them to be true.’
[Citation.] Section 12022.53, subdivision (f) provides, ‘Only one additional
term of imprisonment under this section shall be imposed per person for each
crime. If more than one enhancement per person is found true under this
section, the court shall impose upon that person the enhancement that
provides the longest term of imprisonment . . . .’ ” (Morrison, supra, 34
Cal.App.5th at p. 221.)
In Morrison, the jury found true only the enhancement allegation
under section 12022.53, subdivision (d). (Morrison, supra, 34 Cal.App.5th at
p. 221.) After the trial court recalled the sentence to exercise its discretion as
provided in section 12022.53, subdivision (h), the court declined to strike the
firearm enhancement. (Morrison, at p. 220.) On appeal, the defendant
argued the “case should be remanded for resentencing because the court did
not understand the scope of its discretion” given its failure to consider
whether to modify the enhancement to a “ ‘lesser included’ enhancement
under section 12022.53, subdivision (b) or (c), which carry lesser terms of 10
years or 20 years, respectively.” (Morrison, at p. 221.)
The Morrison court agreed with the defendant, citing case law
providing a “court may impose a ‘lesser included’ enhancement that was not
charged in the information when a greater enhancement found true by the
trier of fact is either legally inapplicable or unsupported by sufficient

44
evidence.”10 (Morrison, supra, 34 Cal.App.5th at p. 222.) The Morrison
court further relied on our high court’s analysis in People v. Marsh (1984) 36
Cal.3d 134 (Marsh). (See Morrison, at p. 223.)
Like our colleagues in the Fifth District Court of Appeal, we do not find
this analysis persuasive. (People v. Tirado (2019) 38 Cal.App.5th 637, 644,
review granted Nov. 13, 2019, S257658 (Tirado); see People v. Garcia (2020)
46 Cal.App.5th 786, 790–791 (Garcia) [recognizing the split between Tirado
and Morrison but agreeing with Tirado that “section 12022.53, subdivision
(h) does not grant a trial court the discretion to substitute lesser included
enhancements, at least where the greater enhancement is legally and
factually valid”].)
We agree with the statutory interpretation set forth in Tirado and
Garcia. The plain language of Penal Code sections 1385 and 12022.53,
subdivision (h) authorizes the trial court to either dismiss or strike an
enhancement. “There is nothing in either statute that conveys the power to
change, modify, or substitute a charge or enhancement.” (Tirado, supra, 38
Cal.App.5th at p. 643; see Garcia, supra, 46 Cal.App.5th at p. 791 [noting
section 12022.53, subdivision (h) only confers the authority to “strike or
dismiss” a firearm enhancement set forth in section 12022.53].)
The Tirado court’s comparison of the language in section 1385 with
language in other statutes permitting a court to modify a charge or
enhancement (e.g., §§ 1260 & 1181, case (6)) makes this point. (Tirado,

10 We note that neither of these circumstances are present here, as the
court, in connection with count 1, made a true finding under subdivision (d) of
section 12022.53, as was charged in the petition; and in count 2, made a
finding under subdivision (c) of this statute, as was also charged in the
petition. As further noted, the true findings with respect to both
enhancements are supported by ample record evidence.
45
supra, 38 Cal.App.5th at p. 643; see Garcia, supra, 46 Cal.App.5th at p. 791
[noting the statutory language in section 12022.53, subdivision (h) “says
nothing about substituting or modifying enhancements” as was done in
Morrison].)
The case law upon which Morrison relied — i.e., that a “court may
impose a ‘lesser included’ enhancement that was not charged in the
information when a greater enhancement found true by the trier of fact is
either legally inapplicable or unsupported by sufficient evidence” (Morrison,
supra, 34 Cal.App.5th at p. 222) — did not arise in the context of power
statutorily conferred upon the court under section 1385. In other words, the
authority discussed in those cases is independent of this statute’s authority
and not circumscribed by its language.
We also do not see how Marsh supports the position adopted in
Morrison. In Marsh, our high court merely explained that a trial court has “a
broad range of sentencing options” in exercising its discretion under section
1385 to strike allegations. (Marsh, supra, 36 Cal.3d at pp. 143–144.) We find
nothing in the opinion indicating that a trial court’s section 1385
discretionary power includes the imposition of an allegation, action, or
enhancement different from that charged and presented to the trier of fact.
For these reasons, we decline Minor’s invitation to remand the case to
the juvenile court to allow it to exercise its discretion in deciding whether to
impose lesser firearm enhancements either under subdivision (b) and/or (c) of
section 12022.53 with respect to count 1, and/or to impose the lesser firearm
enhancement under subdivision (b) of this statute with respect to count 2.

46
 DISPOSITION
The court’s April 5, 2019 disposition order is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

47
APPENDIX “A”

48