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

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

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

D077336

California Court of Appeals, Fourth District, First Division

September 28, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. J241574 Kathleen M. Lewis and Peter C. Deddeh, Judges. Affirmed, as modified.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

GUERRERO, J.

After he was declared a ward of the court and placed on probation for a misdemeanor offense, 15-year-old T.W.-an Emerald Hills Blood gang member-and two other minors murdered Ishi Hampton. T.W. was charged with first degree murder and conspiracy to commit murder. (Pen. Code, §§ 187, subd. (a), 182 subd. (a)(1).)^[1] The murder and conspiracy to commit murder were alleged to have been committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)) and it was further alleged that at least one principal used a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). After the murder, but before he was apprehended, T.W. was alleged to have committed two robberies.

In response to a petition alleging the two robberies, T.W admitted one count of grand theft. (Pen. Code, § 487 subd. (c).) The juvenile court found true the murder and conspiracy to commit murder allegations, as well as the gang and firearm enhancement allegations. The court subsequently dismissed the petition alleging the robbery counts (Welf. & Inst. Code, § 782), then continued T.W. as a ward of the court (id., § 602), placed him under the supervision of the probation officer, and committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).^[2]

On appeal, T.W. contends the gang expert testimony and certified records that were used to prove six predicate offenses were improperly based on inadmissible, case-specific hearsay. We conclude any error was not prejudicial because other admissible evidence supported the finding that Emerald Hills gang members committed at least two predicate offenses needed to support the gang enhancement.

T.W. further contends his DJJ commitment was improper because his “latest crime”-grand theft-was not a qualifying offense under Welfare and Institutions Code section 733, subdivision (c). We reject this contention because the juvenile court dismissed the relevant petition under Welfare and Institutions Code section 782, leaving the DJJ qualifying offense of murder, and we find no abuse of discretion in the court's decision to do so.

T.W. further contends section 654 prohibits punishment for both the murder and conspiracy to commit murder and that the 10-year enhancements under section 186.22, subdivision (b)(1)(C) must be stricken. We agree with these contentions, modify the judgment to stay punishment on the conspiracy count, strike the 10-year enhancements under section 186.22, subdivision (b)(1)(C) and clarify that section 186.22, subdivision (b)(5) applies and imposes a minimum term of 15 years before T.W. may be considered for parole. We affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

A. Petitions

On January 16, 2019, the People filed an amended petition alleging T.W. committed robbery (§ 211; count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and a misdemeanor count of giving false information to a peace officer (§ 148.9, subd. (a); count 3). The offenses were alleged to have occurred on August 16, 2018. T.W. admitted the misdemeanor (count 3), and the People moved to dismiss counts 1 and 2. The juvenile court declared T.W. a ward of the court and placed him on probation.

On May 30, 2019, the People filed a second petition alleging that T.W. committed murder (§ 187, subd. (a); count 1) and conspiracy to commit murder (§ 182, subd. (a)(1); count 2). The murder was alleged to have occurred on May 2, 2019. The petition alleged, as to both counts, that T.W. committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that at least one principal used a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)).

On December 11, 2019, the People filed a third petition alleging T.W. committed two counts of robbery.^[3] (§ 211.) On January 3, 2020, T.W. admitted committing one count of grand theft (§ 487, subd. (c)), and the juvenile court dismissed count 2.^[4]

B. Contested Adjudication Hearing

In January 2020, the juvenile court conducted a contested adjudication hearing on the second petition regarding the murder allegations.

1. Evidence relating to the murder

Shortly after midnight on May 2, 2019, T.W. and two other minors, K.W. and E.I., parked in front of an apartment complex on Alvarado Road in San Diego. They remained inside the car for about six hours.

When the victim, Ishi Hampton, exited his apartment complex and began walking to his car, T.W. got out of the car's passenger side door and began shooting.

Two waste management employees were parked in a garbage truck in front of the apartment complex when they heard gunshots. They saw the victim running and stumbling as T.W. shot at him repeatedly. After the victim fell to the ground the first time, he got up again, and the shooter shot him again. They saw the victim collapse near the front of the building and two young males flee the scene. The shooter was wearing a tan or red hoodie and jeans, and his companion was wearing a blue hoodie; both had their hoods up. The employees called for an ambulance and checked on the victim, who did not appear to be breathing.

A woman standing at a nearby trolley station heard gunshots. She turned to the direction of the sound and saw one young man running and two young men running behind him. She turned her phone's camera on; the video footage she captured was played in court.

A man getting gas nearby was approached by three young men wearing hoodies and jeans. One asked if he could borrow the man's phone or get a ride to a friend's house down the street, but the man declined.

A gardener at a nearby school saw three males, two wearing dark hoodies and one in a light-colored shirt, walking briskly toward him. He told them they needed to leave before the students started to arrive, pointed them toward the front of the school to exit, and followed them to make sure they left.

Video of the shooting was captured by a nearby security camera. Security footage from various cameras depicted the three minors fleeing the scene, and captured the route they took to escape, past the trolley station, the gas station, and across the school campus. Eventually, they walked to an apartment near the school.

A medical examiner conducted an autopsy and determined Hampton suffered a single gunshot wound to his back. The bullet passed through his organs, including his heart, and lodged in his pectoral muscle.

A crime scene specialist from the San Diego Police Department processed the suspects' vehicle (which they left at the scene) for latent fingerprint and DNA evidence. T.W.'s prints were identified on the exterior passenger side door. K.W.'s prints were identified on the exterior roof of the vehicle. DNA of T.W., K.W., and E.I. was found in the vehicle's interior.

On May 28, T.W. and E.I. were arrested together and placed in the back seat of a patrol car.^[5] A recording of their conversation was played in court. T.W. told E.I., “On blood, don't snitch, really bro.... It's the car. It has to be. Cuz it was gone, ” and, “Bro, for murder, bro.” T.W. asked E.I., “So, you think Tey9's in there for the same thing?”^[6] T.W. said, “I kind a feel like I'm, feel like I should, I'm a see what the thing is, if I, if I plead guilty for this. I don't know, to be honest.... We're fittin' to be here for at least, a minute, ” and “You think what's his name could be our alibi? Mack-manity?”

In October, a conversation between T.W., E.I., and K.W. was recorded as the minors were transported to juvenile court. K.W. asked T.W., “Did you know we green lighted, Blood? [¶]... [¶] By Crabs, by Lincoln niggas, Blood, by the East[.] [¶]... [¶] For that shit.”

K.W. said he had “seen the video”; T.W. said he had not seen it. The following discussion occurred next:

K.W “You didn't tell us the whole thing, Blood. I didn't know you doubled back, Blood. But....”

T.W.: “I told you that.”

E.I.: “Yeah, Blood told us that-Blood could, on the set, the video bro, all you see is you Blood....”^[7]

Later in the conversation, K.W. asked, “Did your attorney show you the route? That we took?”

E.I.: “Oh yeah, everywhere. Recorded us everywhere. They showed us everywhere. Like, everywhere we've been blood.”

T.W.: “Are you talking about the route?”

E.I.: “Yeah, I'm talking about-I'm talking about the route when we ran to.... [I]t just happens someone was behind the trash[ ]can recording us.”

E.I.: “Yeah, I told you not to take off your.... I told you.”

T.W.: “No-no you didn't.”

E.I.: “Blood, (unintelligible), on the set.”

T.W.: “No, you told me to take that shit off.”

E.I.: “Ask Blood. You know I did, Blood. ‘Cause why would I....”

K.W.: “He did-he did....”

E.I.: “If I told you that I would take off my shit too, Blood.”

K.W “[L]ook, bro, look when we was at the school, right, I was looking this way. We was walking. (Unintelligible.) All you can see is your tan shirt...