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In re E.R.

October 21, 2010

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



(City & County of San Francisco Super. Ct. No. JW076057). Lillian Kwok Sing, Judge.

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

This is one of four appeals now before us arising from a single trial in which wardship and commitments to the Division of Juvenile Justice (DJJ) have been imposed on four minors for their roles in a gang-related shooting in which one innocent youth was killed and another wounded.

On March 16, 2007, Antwanisha Morgan, Thomas J.*fn2 , Antoine S., Chante P., and other young people were talking outside a recreation center in the Bayview District of San Francisco. About a month earlier, some of these youths (not identified as members of any gang) had chased members of the G-3 criminal street gang away from a talent show at the recreation center where the gang members had started a disturbance. On March 16, three members of the G-3 gang, T.Tr., E.R., and D.B., returned to the center and two of the three shot at the group of youths that were congregated there, killing Antwanisha and wounding Thomas J. Immediately after the shooting, all three drove off in a waiting car driven by Kamisha Gray and occupied by two other gang members, T.Tu. and another youth. An expert on criminal street gangs testified that he believed each of the four accused minors was a member of the G-3 gang, and that the shooting was in retaliation for the prior incident at the talent show and an attempt to rehabilitate the reputation of the gang by instilling fear in the community.

The juvenile court found that E.R. committed conspiracy, first degree murder, two counts of attempted murder, and assault with a deadly weapon. The court found true allegations that E.R. personally used a firearm in the commission of these offenses. The court also found that he committed the crimes for the benefit of or in association with a criminal street gang. E.R. was committed to the DJJ for a maximum of two terms of 25 years to life for the conspiracy and the murder, and additional concurrent terms for the remaining offenses. A maximum term of 25 years to life was imposed but stayed for the gang enhancement.

E.R. contends that after the court found him guilty of second degree murder, the court improperly changed its "verdict"*fn3 on the murder charge from second degree to first degree, that the court improperly changed its finding on personal use of a firearm, that there was insufficient evidence to support the court's findings on the conspiracy, gang and assault allegations, and that the juvenile court erred in various ways in its dispositional order. In the published portion of this opinion, we conclude that the juvenile court erred when it changed its verdict on the murder charge. In the unpublished portions we conclude that the disposition order must be corrected in several respects, but find no merit to E.R.'s remaining contentions.

BACKGROUND*fn4

Approximately one month before the shooting, Antoine was in a dance competition at the International School for the Arts (ISA), a high school. During the performance an altercation occurred between "two different crowds." Antoine's friend Chris was also present and Antoine saw "somebody else come on in front of him and shake . . . their hair in front of him. The next thing I know [is] the staff . . . came in between and was breaking it up." The person who shook his hair in Chris's face had dreadlocks.

Alex H. was also present at the ISA talent show and was also at the recreation center on March 16. He testified that while Antoine was dancing at the talent show "[p]eople got on stage and they started shaking their dreads in [Antoine's] face." One boy repeated this behavior with Chris, who was standing next to Alex. Alex pushed the boy who did this and the two started arguing. Alex was asked if "shaking your dreads [is] part of a dance," and he answered that it was not, but also testified that some of the people shaking their dreadlocks were doing so as part of a dance. Thomas J. was also in the audience at the ISA talent show. He left when the fight broke out.

Chante P. was at the talent show with Antoine, Alex and two other young people. She saw some girls come in through the side door whom she described as "loud and disrespectful" to Chante and her friends. They were "walking by us and pushing us and mugging us." She had previously seen the girls in the Potrero Hill neighborhood. One of the girls made a phone call and T.Tu. (also known as Bad Boy) and some other boys came into the auditorium through the side door. "They said let's have a . . . dance battle. And they were dancing on stage. . . . And somebody pushed another person. And that person got mad. And then they was about to fight. And a security guard that was there said you guys are not going to fight in here. Take that outside." Everyone left the auditorium. Then "everybody started arguing," and Alex, Antoine and another boy followed T.Tr. and T.Tu. up Potrero Hill.

On March 16, Antoine, Antwanisha, and several other youths were standing outside of the Bayview recreation center on Third Street between Revere and Quesada waiting for Antwanisha's mother. Three boys walked by. Antoine heard a sound "like a firecracker" and Antwanisha fell to the ground. One of his friends grabbed Antoine and they ran. As they were running they heard "bullets hitting on cars and the wall and the street." Antoine heard "a lot" of shots; some sounded like firecrackers and the others sounded "a little bit louder, sounded like a gun." Thomas J. was shot in his hip. He saw two boys, each holding a gun.

A witness was sitting in her car at the intersection of Quesada and Third Street on March 16 when she "heard some popping sounds." She looked to her left and saw an African-American person wearing dark clothing shooting a gun. When he had fired five or six shots, he "went up the street. There was a car sitting there waiting. And [he] got in the car and the car took off." She reported the license plate number of the car to the police.

Chante was standing in front of the recreation center with Antwanisha when she was killed. "A group of boys walked down the street. And we stopped talking. And put our heads down. And they walked by us." There were four or five boys in the group. They walked around the corner onto Quesada, arguing. At the corner the boys looked back at the group in front of the recreation center. One of the boys came back around the corner and began shooting. "His gun got jammed. And another boy came around the corner and started shooting." She recognized the first shooter as "E-Boy" or E.R. and the second shooter as "Bad Boy," or T.Tu. She identified a third person in the group as D.B.*fn5

Chris C., a friend of Antwanisha, had been at the ISA talent show and was also present in front of the recreation center on March 16. He saw a boy with a gun in his hand who also had his hands over his face. The boy said to Chris, "You got five," and in response Chris ran.

Kamisha testified*fn6 that on March 16, she drove T.Tu., T.Tr., D.B., E.R. and a boy named "Smed" to Third Street and Quesada. She turned onto Revere and stopped at the corner because someone in the car said, "There he is." D.B., T.Tr. and E.R. got out of the car. Kamisha pulled the car forward and parked on Quesada. T.Tr. and E.R. fired shots then got back in the car along with D.B. While E.R. and T.Tr. were shooting, D.B. "was standing there. He wasn't doing nothing." As they drove away, T.Tu. opened the door of the car and said to some people, "You see how we do." The three boys who had gotten out of the car talked about the shooting and said that "somebody should have got hit." Kamisha drove them to D.B.'s house.

Kamisha left D.B.'s home with T.Tu. and they drove to Kamisha's house, then to Potrero Hill. While they were driving, another car in which there were three people wearing masks pulled alongside them. Kamisha pulled onto the freeway with the other car following behind. On the freeway, someone in the other car shot at them and T.Tu. shot back. When Kamisha pulled off the freeway, she collided with another vehicle, then got out of the car and ran.

On December 21, 2007, a juvenile wardship petition was filed under Welfare and Institutions Code section 602, subdivision (a) alleging that E.R. had committed conspiracy (Pen. Code, § 182, subd. (a)(1))*fn7 (count 1), murder (§ 187) (count 2), two attempted murders (§§ 187, 664) (counts 3 and 4), and assault with a deadly weapon (§ 245, subd. (a)(2)) (count 5). An arrest warrant was attached to the wardship petition. The warrant alleged personal use of a firearm with great bodily injury which caused the death of Antwanisha (§ 12022.53, subd. (d)), that E.R. was a principal in the commission of the first four counts within the meaning of section 12022.53, subdivision (e), personal use of a firearm causing great bodily injury to Thomas J. (§ 12022.53, subd. (d)), and that the crimes were committed for the benefit of a criminal street gang with the intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).

Leonard Broberg, a member of the San Francisco Police Department Gang Task Force, testified as an expert on gang culture in San Francisco. He has been aware of and investigated the "25th Street" gang since 1996. The gang's territory is the Potrero Hill housing development. G-3 is a subset of the 25th Street gang. "Zoo Block" is another gang that occupies the Potrero Hill Annex on the north side of the housing development. Broberg identified a photograph of T.Tu. using the G-3 hand sign and one of T.Tr., D.B., and T.Tu. using the G-3 sign. He identified two other photographs of D.B. along with various other juveniles using the G-3 sign. In another photograph, D.B. was simulating holding two guns. Broberg opined that "[f]requently gang members . . . will not have pictures of themselves tak[en] holding actual guns, but they will simulate holding guns to basically show people that they would pick up a gun." In another photograph, D.B. was identified using the 25th Street gang sign. Two other photographs showed D.B. with documented members of the Zoo Block and 25th Street gangs. Broberg identified D.B. in a photograph taken from his home; on the bottom of the photograph was written "25th" and "G-3 Rude."

Broberg opined that 25th Street was a criminal street gang based on his "knowledge of the individuals involved with the gang. Their criminal histories. Their associations. Some of their activities in committing some of the predicate crimes that are enumerated under [section] 186.22. And that some of the 25th Street gang members have pled guilty to being 25th Street gang members." In reaching his opinion Broberg had reviewed hundreds of police reports involving the gang.

Broberg testified that "[o]ne of the things to remember about gang culture is the fact that fear and respect are interchangeable. In order to be respected, you have to be feared. In order to be feared, you have to resort to acts of violence." "In order to be a member of the gang, you'd have to have gained their respect. You've also had to gain their confidence. And this is done in any number of ways, but most of all it's by your actions and by showing your loyalty to the gang . . . either [by] committing acts on behalf of the gang, participating in criminal activities of the gang, or if you're arrested at various points and you're not snitching on the gang." In Broberg's experience, "gang members aren't going to commit acts of violence or extremely heinous acts with someone that they don't trust. And in order to trust you, you pretty much need to be a member of the gang or a really trusted associate and that may be one . . . seminal act that will get you to cross over from being just a mere associate as to being a member within the gang. Also, committing an act of violence, again, what you're doing then is you're establishing your reputation not just within the gang but you're establishing your reputation outside the gang . . . . And an individual . . . in order to be respected within a gang culture, you need to be feared. The more feared you are, the more respected you are. And then the gang benefits because the gang will be more respected because they will be feared. And this is usually accomplished through acts of violence."

The fact that everyone in the car that day was a gang member or an associate of the gang indicated to Broberg that everyone in the car was supporting one another and participating in the crimes. The fact that three of the people in the car were dropped off, and the car waited for them nearby suggested that the crimes were planned. He testified that gang members commit crimes together "in order to give each other moral support. They'll commit crimes together, depending on some of the factors where maybe they need to help protect or act as lookouts or serve as an additional person that can shoot or protect the gang."

Broberg was of the opinion that the crimes committed in this case were for the benefit of a street gang and were done in retaliation for the incident at the talent show. He based that opinion on "the basic interchangeability of fear and respect. Some of the letters that I reviewed during the course of this investigation where they're talking about the need to reestablish themselves, they need to assert themselves, references to G-3 and the members of G-3 . . . that were not taken seriously."

Broberg knew about the fight at the ISA talent show from speaking with the school's principal. Broberg testified that "shaking dreads" in someone's face is a sign of disrespect. He was aware that E.R., and T.Tu. were present at the talent show, as were the boys who were with Antwanisha in front of the recreation center the night of the shooting--Alex H., Antoine, Chris C., and Thomas J. The three youths who walked by the recreation center "made absolutely no attempt to conceal their identity because people recognize[d] them." That was significant because "as they're walking by they wanted people to know who they were or where they were from." "The fact that they're not worried about people identifying them just tells you the grip that this whole idea has in the community about . . . not snitching, about not cooperating with the police. . . . [T]hey weren't concerned with who saw them. In fact, they wanted people to know that they were there, that they were sending that message of disrespect."

The recreation center was "a neutral zone. That's pretty much where kids can hang out and feel fairly safe . . . ." The people who were shot at were not documented gang members. Broberg testified that the statement, "that's how we do," was "a statement saying this is how we answer any forms of disrespect." "This is . . . a reference to the fact that they're willing to resort to violence in order to establish themselves." Broberg believed that the shooting was ...


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