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

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In re J.W., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. J.W., Defendant and Appellant.

A164366

California Court of Appeals, First District, First Division

May 23, 2024

NOT TO BE PUBLISHED

San Francisco City & County Super. Ct. No. JW196215.

LANGHORNE WILSON, J.

J.W appeals from orders of the juvenile court finding he committed first degree murder and attempted murder and committing him to a secure youth treatment facility (SYTF) for a time not to exceed his 25th birthday. Appellant asserts numerous grounds for the reversal of the court's orders. We affirm in part and reverse in part.

BACKGROUND

The San Francisco District Attorney filed a wardship petition (Welf & Inst. Code, § 602), alleging that on September 8 2019, appellant, then age 17, committed murder (Pen Code,^[1] § 187, subd. (a)), with a lying-in-wait allegation (§ 190.2, subd. (a)(15) [count I]), attempted murder with an allegation of premeditation and deliberation (§§ 187, subd. (a), 664 [count II]), assault with a semiautomatic firearm (§ 245, subd. (b) [count III]), two counts of carrying a loaded firearm (§ 25850, subd. (a) [counts IV & V]), carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1) [count VI]); and two counts of possession of a firearm by a minor (§ 29610) [counts VII & VIII]). With respect to the first three charges, the petition alleged appellant was armed with and personally and intentionally used a firearm, and inflicted great bodily injury. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (c)-(d).) All offenses were alleged to have been committed on September 9, 2019, with the exception of count VIII, which was alleged to have been committed on September 25, 2019.

The following evidence was admitted at the contested jurisdictional hearing, which took place over the course of 14 days:

On September 2, 2014, appellant's older brother R.W. was fatally stabbed outside a liquor store in San Francisco. Appellant, then age 12, witnessed the stabbing; appellant identified Luis Q. as the perpetrator. Luis was arrested and charged with causing R.W.'s death. However, several months later, the district attorney's office dropped the charges.

On September 8, 2019, surveillance video recovered from the Bay Bridge Toll Plaza captured appellant driving his mother's 2005 Acura TL through the westbound toll lane at 7:56 p.m. On that day, Luis and his girlfriend, A.B., had been helping A.B.'s mother with a residential move within the Excelsior District. They used a moving van and Luis's car to make multiple trips between the two residences; they finished sometime between 8:00 p.m. to 9:00 p.m. Luis and A.B. were then going to meet A.B.'s mother at a restaurant in Glen Park.

Video footage retrieved from France Street, shows an Acura TL traveling past the moving van used by Luis and A.B. more than once. The Acura TL (the Acura), had characteristics consistent with model years 2004 to 2008: two side marker lights (one on the front fender just below the right passenger side mirror and a second on the upper rear quarter panel); a bodyline (that ran from the front passenger side along the front side marker to the front passenger door handle, to the rear passenger door handle, and connected to the rear quarter panel side marker light); and five-spoke wheel rims.

Video footage captured an Acura following Luis's car to a gas station located at Geneva Avenue and Naples Street. The driver double-parked the Acura, activated its hazard lights, and waited near the intersection of Naples Street and Geneva Avenue while Luis inflated his car's tires at the gas station.

Additional surveillance footage, shows the Acura following Luis's car as it drove away from the gas station, turned right onto Athens Street, and stopped on a residential street. A few seconds later, the driver parked the Acura a short distance behind Luis's car, ran to the driver's side door of Luis's car, and fired 21 rounds from an FN Five-Seven semiautomatic pistol into the car, killing Luis and injuring A.B. The surveillance video shows the shooting occurring at 9:06 p.m.

Shortly thereafter at 9:19 p.m., a license plate reader and surveillance video captured appellant in his mother's Acura traveling east on the Bay Bridge near Treasure Island. The time to drive to that location from the crime scene was approximately nine minutes.

A.B. observed the male shooter's eyes when they were illuminated by the muzzle flash. The shape of the shooter's eyes was similar to the shape of appellant's eyes. A.B. called 911. She told the operator she did not know the identity of the shooter. She later described the shooter as a "light-skinned" Hispanic male. Appellant was a "mixed race" male, with a "light comple[xion]."

Responding officers collected 21 cartridge casings from the scene, all of which were 5.7-caliber. Forensic testing revealed the cartridge casings were fired from the same firearm-an FN Five-Seven semiautomatic handgun.

An FN Five-Seven semiautomatic handgun has a capacity of 21 rounds, consisting of 20 rounds in the magazine plus one round in the chamber. It is considered to be a somewhat expensive and rare gun, due to its unique characteristics (including markings on the pistol grip and rear slide, the curvature of the pistol grip, the magazine style, and side switches).

On September 18, 2019, a video was posted to the Instagram account of Joey La Pierre (also known as Joe or Joey Vega), depicting appellant sitting next to what appeared to be an FN Five-Seven pistol in the rear passenger seat of a vehicle.

Police arrested appellant on September 25, 2019. Police found an operational and loaded nine-millimeter Glock handgun with a laser sight and extended magazine clip in a backpack in appellant's possession.

DISCUSSION

I. Motion for Mistrial

Appellant contends the court abused its discretion by denying a motion for mistrial based on the prosecution's failure to disclose all of A.B.'s prior statements and for failing to impose a "predetermined" sanction to exclude non-discovered witness statements. The People appear to concede the discovery violation, but maintain evidentiary sanctions were not required, and any error in denying the mistrial motion was harmless.

A. Additional Background

Prior to the jurisdiction hearing, the prosecution sought and obtained an order for the exclusion of "any evidence not previously discovered to the prosecution" and for discovery of any unrecorded oral statements of witnesses communicated to the defense.

On November 30, 2020, A.B. testified at the jurisdictional hearing as the sole percipient witness to the murder and attempted murder. On direct examination, the only person she implicated as the shooter was Joey Vega. Then, for the first time on cross-examination, A.B. said she had made statements to the District Attorney's office suggesting that appellant could also be the shooter.

A.B. said she saw appellant at a January 10, 2020 pre-trial hearing, where she learned he was being charged in connection with Luis's murder. Defense counsel asked A.B., "At any time after being [at the January 10, 2020 hearing], and seeing [appellant] did you say to any policeman, . . . any District Attorney or anything, hey, that's the guy who did it?" A.B. answered, "Yes." When asked whom she spoke to, A.B. responded, "To Maria and to whoever else I talked to in the DA's office. I had many meetings with them. Even Chesa." Defense counsel immediately requested a sidebar conference, which was denied.

Upon resuming cross-examination, defense counsel asked A.B., "There is nothing right now as you sit there looking at [appellant] that indicates that he could be the shooter," to which she responded, "The shape of his eyes." During redirect, A.B. testified that as it was dark outside, she had only been able to see the shooter's eyes during the flashes of light from the gunshots; she was not focused on the shooter, but had been focused on Luis and the unfolding events.

Defense counsel moved for a mistrial based on A.B.'s testimony about her prior statements, stating, "I never received any discovery of any report that was ever made of any memorandum," and concluding, "I think that I have been severely prejudiced by that. I have never been provided anything in discovery. I'm not ascribing fault to [the prosecutor] at all." The prosecutor responded he was unaware that A.B. had made any prior statements that appellant's eyes were "similar to the eyes of the shooter."

The trial court ordered the prosecutor to look into whether there was "any discovery regarding this conversation between Ms. Reynoso and [A.B.]" and "to turn that over" to the defense. The court denied the motion for a mistrial.

B. Applicable Law

Section 1054.1 requires the prosecutor in a criminal case to disclose certain information, including all "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial." (§ 1054.1, subd. (f).) Discovery in juvenile delinquency cases is not governed by the discovery disclosure provisions of section 1054, et seq. (See Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 1421-1422.) However, "discovery practice in delinquency proceedings generally has been derived from, and parallels, that in adult criminal cases." (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 54.) Discovery in juvenile delinquency proceedings is also guided by California Rules of Court, rule 5.546.^[2] (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1334, fn. 5.)

If the prosecutor fails to comply with the statutory disclosure requirements, the court "may make any order necessary to enforce ...