Trial Court: San Francisco City and County Superior Court Trial Judge: Hon. Kathleen A. Kelly San Francisco City & County Super. Ct. No. JW07-6567
The opinion of the court was delivered by: Margulies, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant A.G. was alleged in a wardship petition to have committed assault with a deadly weapon and attempted murder. Following a contested jurisdictional hearing, the juvenile court found appellant had committed assault with a deadly weapon and attempted voluntary manslaughter.
At the dispositional hearing, the court, relying on In re Joseph M. (2007) 150 Cal.App.4th 889 (Joseph M.), concluded it lacked the discretion to set a maximum term of confinement any lower than the minimum sentence that might be imposed on an adult for the same offense and set the maximum term of confinement at the mitigated term.
Appellant contends the evidence was insufficient to support the juvenile court's jurisdictional findings and argues the court should have denied the petition on the defense of necessity. Appellant also contends the juvenile court had the discretion to impose a maximum term of confinement below the mitigated adult term. We reject appellant's first two contentions and affirm the juvenile court's order sustaining the wardship petition. However, we agree the juvenile court was not precluded from setting appellant's maximum term of confinement below the mitigated term. We vacate the court's dispositional order and remand for the court to exercise its discretion in setting the maximum term of confinement.
On September 5, 2007, the San Francisco District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging appellant, then age 16, committed attempted murder (Pen. Code, § 664) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The petition also alleged appellant was armed with a firearm, personally used a firearm, and caused great bodily injury. (Pen. Code, §§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a).) The petition was dismissed without prejudice in March 2008, but it was refiled after appellant was arrested in connection with another shooting later that year.
At the contested jurisdictional hearing, appellant's mother testified that on the morning of August 31, 2007, appellant phoned her in great distress and said he had been robbed at gunpoint. Appellant's mother and father drove to his aid. When they located him near his school, he was sobbing and screaming. After comforting appellant, the family drove off in search of the robbers. Appellant soon spotted a group of four or five men who he claimed had robbed him. Appellant's father stopped the car, allowing appellant and his mother to get out, and then drove off. According to appellant's mother, she walked away with appellant following her. As they walked, she heard three or four gunshots. Eventually, appellant's aunt picked them up and drove them home.
The victim, Ladaris Greer, testifying at the jurisdictional hearing, denied having robbed appellant. He said he was "[h]anging out" with three friends in the Fillmore District that morning when "[s]omebody pulled up [in a car,] talking about a robbery." The driver of the car got out, appearing to carry a gun in his pants, and threatened them. As Greer attempted to escape on foot into a local park, he was cut off by the car. The driver shot him, hitting him twice. Despite being struck in the knee and hip, Greer resumed running, firing his own gun in the direction of the car as he ran. Eventually, the car ran him down.
As Greer lay on the ground, a male got out of the passenger side of the car, walked toward him, and shot him from about eight feet away. As the passenger returned to the car, the driver emerged, yelled to the passenger, "Kill him" or "Shoot the nigga," and then shot Greer himself. While Greer was able to identify the driver as appellant's father, he denied that appellant was the passenger. Greer was otherwise unable to identify the passenger, other than to confirm he was younger than the driver.
Greer's testimony at the hearing conflicted somewhat with his statements to police. San Francisco Police Officer Robert McMillan testified he interviewed Greer in the hospital three days after the shooting. Although Greer was still receiving medical treatment, including morphine for pain, he had been moved from the intensive care unit and was awake and lucid. Greer's account during the interview of the events leading up to his shooting by the passenger was generally consistent with his testimony. Greer told police, however, that after he had been run down by the car, both males got out of the car and walked up to him. The older man said to the younger one, "Shoot him. Shoot the nigger. Shoot him." The younger one kicked Greer and tried to run back to the car, but the older one insisted he shoot Greer. At that point, "the youngster came and he just started shooting, just shooting at anything. He wasn't [unintelligible]. He just started shooting [unintelligible] like, oh, no, 'cause he wasn't hitting--he was just hitting my shoulder. So he was just shooting out of fear . . . ." During the interview, McMillan showed Greer two photo lineups. Greer identified appellant and appellant's father as the persons who shot him. A transcript and recording of the interview were admitted into evidence.
Appellant presented two witnesses from the scene. The first witness saw the encounter from a second floor window, looking only after he heard a car crash and shots fired. He saw three people in the car. The two passengers got out and walked out of his line of sight, then returned to the car, and eventually left the scene on foot. He identified one of the passengers as appellant's father, but he was unable to identify the other. The second witness saw three people, two males and a female, pull up in a car and jump out. The two males ran up the street, and the female drove the car after them. Soon after, he saw the car strike a man, and all three occupants got out. Two of them approached the man on the ground, and one began shooting him. The witness was unable to identify any of the persons involved, but the hairstyles he described were inconsistent with appellant's hairstyle at the time.
Appellant also presented a psychologist who had examined him. The psychologist concluded appellant was "under an intense amount of distress" after he was robbed, suffering from "acute stress disorder," a short-term version of posttraumatic stress disorder. As a result, at the time of the confrontation with Greer, appellant's "higher level reasoning" was compromised, and his instincts took over.
The juvenile court found true the allegation appellant committed assault with a firearm, but it amended the attempted murder allegation to attempted voluntary manslaughter committed in the heat of passion. In a detailed discussion of the evidence, the court found that Greer's identification of appellant, although given while under medication, was credible and consistent with other evidence. The court concluded appellant was still under the provocative effect of Greer's armed robbery when he shot him, but it found specific intent to kill on the basis of appellant's shooting from close range.
At the dispositional hearing, defense counsel urged the juvenile court to set a maximum term of Division of Juvenile Justice (DJJ) confinement below the mitigated term for an adult offender who has committed the same offenses. The juvenile court declined, relying on Joseph M., supra, 150 Cal.App.4th 889, and explained that "because of the facts of this case and because of the law which I find to be governing, the Court is not going to sentence to less than the mitigated term." The court accordingly selected the adult mitigated base term of three years for voluntary manslaughter and reduced it by one-half, to 18 months, because the case involved an attempt. It added an additional consecutive year under Penal Code section 12022, subdivision (a)(1) and struck the remaining enhancements. Appellant was committed to the DJJ for a period not to exceed 30 months.
Near the end of the dispositional hearing, appellant's counsel asked the court to run appellant's confinement in the DJJ concurrently with a sentence imposed for an unspecified adult offense, presumably the late-2008 shooting. The court assented. The dispositional order stated that "Minor is committed to [DJJ] for a period of time not to exceed 30 months." As an added condition, the order also stated: "This sentence is to run concurrent with Superior Court #2400040. Maximum confinement time is 10 years 5 months." In the court's subsequent order of commitment to DJJ, appellant's "maximum period of confinement" was listed as "10 years, 5 months." The record contains no explanation of the court's apparently conflicting orders on this issue.
A. Sufficiency of the Evidence Identifying Appellant
Appellant first contends the evidence demonstrating he shot Greer was ...