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In re R.O.

August 25, 2009

IN RE R.O., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
R.O., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of Los Angeles County. Charles R. Scarlett, Judge. Affirmed in part; reversed in part with directions. (L.A.Super.Ct. No. VJ33327).

The opinion of the court was delivered by: Rothschild, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

This case raises the question whether the juvenile court has discretion to set a lesser term of confinement than the indeterminate sentence applicable to an adult convicted of the same offense as the juvenile. We conclude that the juvenile court has discretion to set a lesser maximum term of confinement "based upon the facts and circumstances of the matter." Therefore, we will remand the case to the court to exercise that discretion. In all other respects, the court‟s orders are affirmed.

FACTS AND PROCEEDINGS BELOW

The Compton Varios 70s (CV70s) and the Compton Varios Segundos (CVS) are rival gangs. The boundary between their territories is Compton Boulevard. On an evening in October 2007 Danny Rodriguez, a member of the CV70s, was shot and killed near the intersection of Compton Boulevard and Williams Avenue. The Sheriff‟s deputies who arrived at the scene a few minutes after the shooting interviewed several bystanders. One witness stated that the shooter ran south on Williams immediately after the shooting, but none of the people interviewed identified the shooter.

Nestor Morales, who was among the persons interviewed at the crime scene, told the interviewing officer that he was working at a taco stand on the corner of Compton and Williams when the shooting occurred. He heard gun shots and ducked for cover but "didn‟t see anything." The officer who interviewed Morales testified that he only spoke to Morales for a short time and that Morales was trembling and appeared frightened and disoriented.

Eleven days after the shooting, deputy Shannon Laren met with Morales. Laren showed Morales a photo "six pack" and Morales immediately identified R.O. as the shooter. He did not hesitate in his identification of R.O. and he did not identify any other person before or after identifying R.O. At trial Morales identified R.O. as the shooter. He also testified that he recognized R.O. as a customer of his taco stand.

Undisputed evidence showed that R.O. lived two blocks from the intersection of Compton and Williams and that the shortest route from the murder scene to R.O.‟s house was south on Williams, the direction in which the shooter ran. R.O.‟s brother testified that R.O. was at home just before the shooting. A sheriff‟s gang expert testified that R.O. was an "associate" of the CVS gang.

The juvenile court sustained the allegations of a petition charging R.O. with first degree murder and the use of a firearm in the commission of the crime. The court rejected the allegation that R.O. committed the murder for the benefit of a criminal street gang. The court ordered R.O. committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities for a period not to exceed 35 years to life, which the court believed was the mandatory sentence for an adult convicted of the same offense with a finding of true on the same enhancement. (Pen. Code, §§ 190, subd. (a), 12022.53, subd. (b).)*fn2

On appeal, R.O. maintains that the testimony of Morales, the prosecution‟s only witness to the murder, was insufficient to sustain the petition and that the court erred in committing him to the Division of Juvenile Facilities and in failing to exercise its discretion in setting his maximum confinement period.

We conclude that the evidence was sufficient to sustain the petition and the court did not abuse its discretion in committing R.O. to the Division of Juvenile Facilities. We conclude, however, that the court erred in failing to exercise its discretion in setting the maximum term of confinement and we remand the matter to the juvenile court for reconsideration consistent with this opinion.

DISCUSSION

I. SUFFICIENCY OF THE IDENTIFICATION EVIDENCE

R.O.‟s guilt turned on the testimony of Morales, the taco vendor. R.O. challenges the sufficiency of Morales‟ identification testimony on the grounds ...


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