Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. FJ39211. Patricia Nieto, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Debbie M. Page, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Adrian M. (appellant) appeals from the orders declaring him a ward of the juvenile court (Welf. & Inst. Code, § 602) after findings in the petition filed July 26, 2006, that he was a minor unlawfully in possession of a firearm (Pen. Code, § 12101, subd. (a)(1)), he unlawfully carried a loaded firearm in public (§ 12031, subd. (a)(1)), and he resisted, obstructed, or delayed a police officer in the performance of his duties (§ 148, subd. (a)(1)), and after findings in the petition filed August 15, 2006, that appellant was a minor unlawfully in possession of a firearm (§ 12101, subd. (a)(1)), with a criminal street gang enhancement (§ 186.22, subd. (b)(1)(A)). The juvenile court calculated the appellant’s theoretical maximum period of confinement as eight years eight months and ordered him into the camp-community program.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends that: (1) the evidence is insufficient to support the finding of the gang enhancement, (2) the juvenile court improperly calculated the theoretical maximum period of confinement (Welf. & Inst. Code, § 726, subd. (c)), (3) the juvenile court failed to declare several “wobblers” felonies or misdemeanors (Welf. & Inst. Code, § 702), (4) the juvenile court imposed a constitutionally invalid condition of probation, and (5) appellant is entitled an additional day of precommitment credit.
We affirm the orders under review, except insofar as it is necessary to set aside the dispositional order and to order a remand for the juvenile court to make the additional orders required by Welfare and Institutions Code sections 702 and 726, to insert the knowledge requirement into the No. 16 condition of probation, and to award appellant one additional day of precommitment credit.
FACTS
During the adjudication, the juvenile court heard the evidence with respect to both petitions.
I. The July 26, 2006, Petition
The evidence at adjudication as to the July 26, 2006, petition established that at 10:35 p.m. on July 24, 2006, Los Angeles Police Officer Curtis Davis and his partner were on patrol. Near the intersection of Tyburn Street and Hollydale Drive in the Atwater area of Los Angeles, the officers saw appellant standing on the street talking with two persons seated in a parked car. Officer Davis’s partner said: “Hey, That’s Adrian [M.]. He’s a Rascal, and he’s under age. Stop him.” Officer Davis yelled out the car window that appellant should stop. In response, appellant turned and looked in the officers’ direction. He fumbled at his waistband, dropped something that made a metallic “clank” when it hit the ground, and ran. The officers pursued him. During the pursuit, Officer Davis ran over the item that appellant had dropped and saw that it was a handgun. Appellant disappeared into a residential area, the officers set up a perimeter, and it took an hour and a half for a canine unit to find appellant and arrest him.
Almost immediately, the officers radioed another unit and directed the officers to go to the site of the detention to find the handgun. The officers were unable to find the handgun at its former location.
At the station, after a Miranda warning (Miranda v. Arizona (1966) 384 U.S. 436), appellant admitted that he had possessed and had dropped a loaded handgun. By his further statements, appellant indicated that he had the handgun to protect himself from the rival Toonerville gang. He denied gang membership and claimed that he was a “tagger.”
Officer Davis testified that the Toonerville criminal street gang has a territory adjacent to the Rascals criminal street gang, and the two gangs are “constantly at war.” Officer Davis said that when he put appellant into the holding tank at the station, appellant blurted out that he had been caught with a “strap.”
II. The August 15, 2006, Petition
The facts underlying the August 15, 2006, petition established that at 6:15 p.m. on August 11, 2006, Los Angeles Police Officer Fernando Salcedo was on patrol near the intersection of Newell and Ripple Streets in the Frog Town area of Los Angeles, which is southeast of the 5 and 2 Freeways. Officer Salcedo is a gang detail officer. The officer saw appellant walking down the street with a number of other youths. Appellant looked at Officer Salcedo and his partner and took out and dropped a handgun into the bed of a truck. Officer Salcedo’s partner walked to the truck to make sure that what was dropped was a handgun. It was, and Officer Salcedo arrested appellant. On the way to the police station, appellant spontaneously exclaimed, “I f----- up. I had a gun, but it’s not mine.”
III. The Gang Expert’s Testimony
The prosecution used a police officer gang expert to establish the elements of the gang enhancement alleged in the August 15, 2006, petition.
A. The Officer’s Background
Los Angeles Police Officer John Cuenca was a Northeast Division gang detail officer who had grown up in the Northeast area of Los Angeles with gang members. At UCLA, he studied sociology. At the Los Angeles Police Academy, he was given training in gang awareness and had subsequently attended a number of training sessions on gangs. After graduation from the Academy, he was assigned to patrol in the Northeast Division for two years and then assigned to the division’s gang detail for another two and a half years. During these assignments, he accumulated on-the-job experience that gave him knowledge about gangs generally and specifically about the gangs in the area policed by the Northeast Division.
B. The Officer’s Opinion as to Gang Membership
Officer Cuenca gave his opinion that appellant was a Rascals gang member. He said that he based his opinion on appellant’s association with other Rascals gang members, appellant’s attire, the locations where appellant “h[u]ng out,” and appellant’s August 11, 2006, admission of gang membership to Officer Cuenca’s partner, Officer Strasner, in Officer Cuenca’s presence.
Officer Cuenca explained that he had one prior contact with appellant, a curfew arrest, apart from contacting appellant with his partner after the August 11, 2006, arrest. Officer Cuenca said that he constantly reviewed the department’s field interview cards. During the last two and a half years, he had spent a couple of hours with appellant and his friends. After appellant’s August 11, 2006, arrest, Officer Strasner was talking to appellant about why appellant was in Frogtown and why he was hanging out with the other youths accompanying him that day. Officer Strasner asked whether appellant was “still from the neighborhood,” and appellant said that he was. Officer Cuenca interpreted appellant’s reply as an admission of Rascals gang membership. The officer was aware that “Spec” was appellant’s gang moniker; the officer saw appellant’s moniker frequently in the gang graffiti around appellant’s Atwater neighborhood.
C. The Evidence as to a Criminal Street Gang
Officer Cuenca testified that he estimated that there were about 150 Rascals criminal street gang members. Their gang color is blue, and their sign is an “R,” which they form with their hands when they display their gang sign. Criminal street gangs are territorial, and the Rascals gang territory was essentially the area encompassing Atwater Village. Their territory extends from the Los Angeles River on the west to San Fernando Road on the east, and from Los Feliz Boulevard on the north to the 2 Freeway on the south. Officer Cuenca had daily contact with Rascals gang members, and he had investigated about 200 crimes committed by the Rascals. The crimes they committed were shootings, attempted murders, and assaults with deadly weapons.
The prosecutor introduced into evidence two certified court docket sheets showing that Rascals gang members Steven Farrell and Jose Vega had sustained felony convictions of two predicate crimes in their respective Los Angeles Superior Court cases, Nos. BA290590 and BA242643. Officer Cuenca explained that he had personally investigated Farrell’s case, and Farrell was convicted of violating Vehicle Code section 10851. Vega was convicted of assault with a deadly weapon on a police officer. Officer Cuenca had spoken to the officers involved in the Vega assault and reviewed all of the police reports connected to the crime.
D. The Officer’s Testimony as to Gang Activity and Specific Intent
Officer Cuenca testified to his knowledge that the intersection of Tyburn Street and Hollydale Drive was located within the Rascal gang territory. However, the location of appellant’s August 11, 2006, detention was inside the territory of the Frogtown gang. The officer said that he had read the reports and spoken with the investigators with respect to both incidents. He gave his opinion that on August 11, 2006, appellant possessed the handgun in furtherance of the gang.
Officer Cuenca explained the basis for his opinion. On January 1, 2006, someone had murdered a Rascals gang member from a prominent Rascals gang family. Since then, the shootings and violence between the Rascals and their rivals, the Toonerville and Frogtown gangs, had escalated. He said that if appellant had encountered a rival gang member, it would have increased his stature within the gang if he assaulted the rival gang member with his firearm. Possessing the firearm would have enabled appellant to return any fire directed to him from any rival gang member. Additionally, appellant could have used the firearm for other gang purposes, such as committing crimes of opportunity. Such crimes of opportunity might include robbery. A gang member committing offenses of opportunity shares the proceeds of his crime with his fellow gang members. The officer further explained that recently, there had been a rash of robberies within two blocks of the locations of appellant’s detention.
Officer Cuenca said that gang members attempt to intimidate the citizens who reside in their gang territory. Gang members brandish firearms to let local residents know that they are armed. That knowledge makes local citizens afraid to call the police, and gang intimidation follows where there is cooperation with law enforcement.
IV. The Defense
Appellant did not testify or present evidence in defense.
DISCUSSION
I. The Sufficiency of the Evidence
The juvenile court made a true finding as to the gang enhancement with respect to the August 11, 2006, handgun possession. Appellant contends that the evidence is insufficient to support the finding of the gang enhancement.
The contention lacks merit.
A. The Standard of Review
“We ‘“review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] We presume ‘“in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’ [Citations.]” (People v. Prince (2007) 40 Cal.4th 1179, 1251.)
B. The Elements of the Gang Enhancement
Subdivision (b) of section 186.22 provides enhanced punishment for certain gang-related crimes. “‘[T]o subject a defendant to the penal consequences of [a section 186.22, subdivision (b) enhancement], the prosecution must prove that the crime for which the defendant was convicted ha[s] been “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1) . . . .)’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047; People v. Gardeley (1996) 14 Cal.4th 605, 616–617 (Gardeley).)
In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) & (f); People v. Hernandez, supra, 33 Cal.4th at p. 1047; People v. Loeun (1997) 17 Cal.4th 1, 4, 7-9; Gardeley, supra, 14 Cal.4th at pp. 616–617.)
A charged offense may serve as a predicate offense so as to demonstrate a pattern of criminal gang activity. (People v. Zermeno (1999) 21 Cal.4th 927, 931–933.) Section 186.22 requires that one of the primary activities of the group or association itself be the commission of the specified crimes. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant to determine the group’s primary activities. (Id. at p. 323.)
Section 186.22, subdivision (b) provides that a “‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) The list of crimes included within subdivision (e) include: assault by means of force likely to produce great bodily injury, assault with a deadly weapon or firearm, robbery, unlawful homicide or manslaughter, the commission of serious drug offenses, such as sale, drive-by shootings, witness and victim intimidation, grand theft, robbery, burglary, kidnapping, felony vandalism, carjacking, the unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851, unlawful firearm offenses, the making of terrorist threats, and grand theft. A “pattern of gang activity may be shown by the commission of one or more of the offenses enumerated in . . . subdivision (e). . . .” (§ 186.22, subd. (j).)
C. The Admissibility of the Culture and Habits of Gangs
In the decision in People v. Vy (2004) 122 Cal.App.4th 1209, 1223, footnote 9, the court summarized the legal principles with respect to the admissibility of testimony by an experienced police officer on the subject of gangs: “[B]ecause the culture and habits of gangs are matters which are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact’ (Evid. Code, § 801, subd. (a)), opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. (Gardeley, supra, 14 Cal.4th at pp. 617–620.) Such an expert—like other experts—may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. (Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley, supra, at p. 620.) Such opinions may also be based upon the expert’s personal investigation of past crimes by gang members and information about gangs learned from the expert’s colleagues or from other law enforcement agencies. (Sengpadychith, supra, at p. 324; Gardeley, supra, at p. 620.) . . . (See also People v. Killebrew (2002) 103 Cal.App.4th 644, 656–657 (Killebrew) [discussing the various gang issues that California courts have recognized as proper subjects for expert testimony].)”
The court in Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972, further explained: “‘“[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) However, the admissibility of opinion evidence that embraces an ultimate issue in a case does not bestow upon an expert carte blanche to express any opinion he or she wishes. [Citation.]’ (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 . . . (Summers).) In Summers, the court held that . . . expert opinion . . . is not admissible if it invades the province of the jury to decide a case. ‘“Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided. . . . There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.”’ (Summers, supra, 69 Cal.App.4th at pp. 1182-1183, citing 1 McCormick on Evidence (4th ed. 1992) § 12, p. 47, fn. omitted.)”
D. The Decisions in Frank S., Ferraez, and Killebrew
In In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), a police officer stopped the minor after observing the minor commit a traffic violation on his bicycle. The minor had a knife in his possession, as well as a red bandana. The minor told the officer that he needed the knife for protection against “the Southerners” because they believed that he supported a group of rival “northern” gangs. He also said that he had several friends who belonged to these “northern” gangs. (Id. at p. 1195.) At the adjudication, a gang expert deemed the minor’s admission to the officer, plus a statement that the minor was affiliated with the north when he entered a detention facility, sufficient to show the minor’s gang membership in a faction of the Nortenos gang. The expert also testified that a gang member would use the knife in his possession for protection against rival gangs and to assault rival gangs. In response to a question about how the knife benefited the Nortenos gang, the expert said that it helps provide protection should a gang member be assaulted. (Frank S., supra, at pp. 1195-1196.)
The court in Frank S. faulted the trial court for permitting the use of such expert testimony as proof of appellant’s specific intent in the case. (Frank S., supra, 141 Cal.App.4th at p. 1199.) It held that the opinion testimony there ran afoul of the rule in Killebrew, supra, 103 Cal.App.4th at pages 652 to 659, that an expert may not properly testify to the defendant’s subjective knowledge and intent. (Frank S. supra, at pp. 1197-1198.) It also found that the evidence of specific intent was insufficient to support the gang allegation because gang affiliation or gang membership alone does not prove a specific intent to use the weapon as required by the statute. (Ibid.) It commented that it takes additional evidence, such as that the minor was in gang territory, had gang members with him, or had a reason to expect to use the knife in a gang-related offense, to find a minor has the specific intent required by section 186.22, subdivision (b). (Frank S., supra, at p. 1199.)
In People v. Ferraez (2003) 112 Cal.App.4th 925 (Ferraez), the officer stopped the defendant in a swap mall. The defendant had previously admitted to the officer that he was a gang member. The defendant had 26 pieces of rock cocaine in a baggie in his waistband. The defendant admitted that he had permission from a gang other than his own to sell the rock cocaine at that location. He denied that he was selling the controlled substance for a gang. During the contact in question, the defendant told the officer that he was a nine-year gang member. (Id. at p. 928.) At trial, a gang expert testified that gang members frequently engage in drug sales as it is less risky than other criminal endeavors. The profits of the sales are used by the gang to purchase weapons or to expand their drug sales. (Ibid.) Also, the expert claimed that possessing drugs enhances a gang’s reputation and that there was no doubt of the defendant’s gang membership: the defendant had a gang tattoo, he had previously admitted gang membership, and he was on probation with gang conditions. (Ferraez, supra, at p. 928.) The gang expert testified hypothetically that the drugs were intended to be sold for the benefit of or in association with the gang. Also, hypothetically, the expert said the proceeds of the drug sales would benefit the gang through the purchase of weapons or of more narcotics, or to pay for other gang expenses, such as bail. He gave his opinion that the sale of drugs furthers and assists criminal conduct by the gang. (Ibid.)
The court in Ferraez, supra, 112 Cal.App.4th 925, found the evidence sufficient to support the finding of the gang enhancement. The court explained that in this instance, it was not improper for the expert to testify on the ultimate issue of intent. The expert’s testimony was necessary to explain to the jury how a gang’s reputation can be enhanced through drug sales and how a gang uses the proceeds from the sale to further their other criminal conduct. The court concluded that such matters are “‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (Id. at pp. 930-931.) The court additionally pointed out that the expert opinion alone was insufficient to prove the gang enhancement. However, defendant’s admissions were sufficient to show the expert opinion was rooted in the facts of the case, and appellant’s statements to the police provided circumstantial evidence of the defendant’s intent. (Id. at p. 931.)
In Killebrew, supra, 103 Cal.App.4th 644, in a drive-by shooting, assailants attacked a group of family and friends mourning a County Boy Crips member’s death. During the shooting, the assailants yelled out, “East Side Crips.” (Id. at p. 647.) Later that night, the Bakersfield police anticipated a retaliatory gang strike. They stopped a convoy of cars filled with youths in East Side Crip territory. The officers recognized one occupant of a car as an East Side Crip. In one car, the officers recovered a handgun. The other two cars proceeded to a taco stand, where the police found a handgun in a box next to a dumpster. (Id. at p. 648.) At trial, to prove guilt, the prosecution had to tie the gun to one of the cars in the convoy and to tie Killebrew, a pedestrian, to the cars stopped at the taco stand. The prosecution theory was that the East Side Crips were traveling in a convoy for safety in anticipation of retaliation by the rival gang and had the firearms to protect themselves. (Id. at p. 649.)
The Killebrew court pointed out that the admissibility of opinion evidence on an ultimate issue is a matter left to the broad discretion of the trial court. (Killebrew, supra, 103 Cal.App.4th at pp. 651-652.) The expert in the case had properly testified that the East Side Crips could reasonably anticipate a County Boy Crip retaliatory strike following the assault and that they were traveling together with a gun for protection. (Id. at pp. 657-658.) However, the reviewing court concluded that the gang expert went too far by testifying that when one gang member in a car possesses a gun, the other gang members in the car are aware of the gun and were constructively in possession of the gun. The court held that the officer’s testimony was not the type of culture and habit testimony found in the reported cases. Rather, it was testimony relevant to prove the subjective knowledge and intent of each occupant in the cars and testimony on the expert’s belief of the suspects’ knowledge and intent during the incident in question, issues that are properly reserved to the trier of fact. The expert testimony in the case was not expert opinion on the “expectations of gang members in general when confronted with a specific action,” which would have been admissible. (Id. at p. 658.) To the contrary, the expert opinion was the sole and only evidence the People introduced to prove the elements of the crime. As such, it was improper and unnecessary opinion on the ultimate issue of specific intent, which should have been excluded. (Ibid.)
Subsequent cases have clarified the decision in Killebrew. In People v. Gonzalez (2006) 38 Cal.4th 932, the California Supreme Court did not address the issue of whether Killebrew states a proper principle of law. The People v. Gonzalez court interpreted the decision in Killebrew as merely prohibiting an expert from testifying about his opinion of the knowledge or intent of a defendant on trial. (People v. Gonzalez, supra, 38 Cal.4th at p. 946.) That court asserted: “It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. As explained in People v. Gonzalez [(2005)] 126 Cal.App.4th [1539,] 1551, footnote 4, [the] use of hypothetical questions is proper.” (People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3; see also People v. Ward (2005) 36 Cal.4th 186, 210 [the expert’s testimony, as given through their responses to hypothetical questions, related to proper topics for expert opinion of defendant’s motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges constitutes admissible evidence].)
E. The Analysis
Appellant makes the following claims with respect to the insufficiency of the evidence supporting the gang enhancement: (1) the adjudication evidence fails to establish that appellant is a Rascals criminal street gang member because he admitted only that he came “from the neighborhood”; (2) the trial evidence establishes only that appellant was a member of a criminal street gang, which is insufficient to support the finding of the gang enhancement; (3) there is no evidence that on August 11, 2006, appellant was involved in gang activity, i.e., that appellant committed the unlawful possession offense for the benefit of, at the direction of, or in association with a criminal street gang; and (4) there is no evidence of the specific intent necessary to prove the gang enhancement.
Appellant does not challenge the evidence supporting the finding that the Rascals gang is a criminal street gang within the meaning of section 186.22, subdivision (b). Hence, we do not address whether the evidence is sufficient in that respect.
The evidence here of gang membership was overwhelming. The officer gave his opinion on that issue. The officer had been working that Atwater Village area of Los Angeles for four and a half years, the latter part of that time as a gang detail officer. He knew who appellant was from an early contact and knew appellant’s gang moniker, which he saw frequently in the gang graffiti in the area. The officer was aware that appellant wore gang attire, who his friends and associates were, and with whom he hung out. On August 11, 2006, appellant admitted his gang membership to Officer Strasner in front of Officer Cuenca by agreeing that he was still “from” the neighborhood. The juvenile court was the trier of fact in this case. The juvenile court bench officer would have been well aware that the “from” terminology in gang parlance was an acknowledgement of gang membership. (See People v. Torres (1995) 33 Cal.App.4th 37, 47 & fn. 3; People v. Hardy (1969) 271 Cal.App.2d 322, 327-328; People v. Brown (1981) 116 Cal.App.3d 820, 828-829 [officer explained the defendant’s role as a drug “runner”]; e.g., People v. Coryell (2003) 110 Cal.App.4th 1299, 1301 [one youth asked another youth “where he was from,” i.e., one youth asked for the other’s gang affiliation]; People v. Zepeda, supra, 87 Cal.App.4th at p. 1190 [“where are you from?” is a gang challenge].) The officer’s opinion and its bases, which the officer explained at length, were sufficient to support the juvenile court’s implicit finding of gang membership.
Gang membership is not an element of the enhancement; one does not need to be a gang member or associate to commit an act for the benefit of, in association with, or at the direction of a street gang. Nevertheless, whether a defendant acted for the benefit of a gang is an ultimate factual issue for the jury to decide. (People v. Valdez (1997) 58 Cal.App.4th 494, 505-507.) “[A]n expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth’”where the “hypothetical question [is] rooted in facts shown by the evidence . . . .” (Gardeley, supra, 14 Cal.4th at p. 618; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209 [“it was not error to admit . . . testimony” by expert opining “that . . . behavior, by a known gang member, was likely done for certain gang-related purposes” where the answer responds to hypothetical question based on facts of case].)
We disagree with appellant’s assessment of the sufficiency of the evidence. The evidence supporting the gang enhancement far exceeds mere evidence that appellant was a gang member. Citing Killebrew, supra, 103 Cal.App.4th at p. 658, appellant asserts that the opinion testimony by Officer Cuenca was inadmissible as the prosecutor elicited the officer’s opinion on whether appellant specifically acted in furtherance of the gang and what his specific intent might have been. Appellant’s argument with respect to certain of the officer’s opinion testimony has merit. The prosecutor did not employ hypothetical questions to elicit the officer’s opinion testimony generally on what gang members’ conduct, actions, or thinking might be in a similar or particular circumstance. Furthermore, as framed, the prosecutor’s questions improperly elicited the officer’s opinion on what appellant was doing or thinking on the occasion, evidence which improperly invades the province of the jury. Consequently, the officer’s explanations for what appellant did and what he was thinking was inadmissible evidence that was improperly considered by the juvenile court. (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551; Killebrew, supra, at p. 658.)
However, the error is harmless. Even absent this inadmissible testimony, there is other circumstantial evidence and opinion testimony of gang conduct and of appellant’s specific intent in the record that supports the finding of the gang enhancement.
On July 24, 2006, officers found appellant armed with another loaded handgun. After his arrest for possessing the handgun, appellant admitted that on that occasion, he had the firearm for the purpose of engaging in assaultive gang activity. Specifically, appellant explained that he possessed the firearm to return fire if he was attacked by any Toonerville gang member. The officer testified that the violence in that area and the shootings between the Rascals and Toonerville criminal street gangs had been escalating since the January 2006 shooting of a prominent member of a Rascals gang family. Appellant was an active Rascals gang member according to both Officer Cuenca and Officer Davis’s partner. On July 24, 2006, appellant was in his own gang’s territory possessing a firearm. However, on August 11, 2006, he was discovered by officers in rival gang territory possessing yet another handgun. The officer did not testify to the significance of appellant’s presence in rival gang territory with the firearm. However, the juvenile court would have been well aware of the significance of his presence there. (See Frank S., supra, 141 Cal.App.4th at pp. 1198-1199 [venturing into another gang’s turf is done only at great risk]; People v. McDaniels (1980) 107 Cal.App.3d 898, 902 [an incursion into rival gang territory is likely to lead to violence].)
Furthermore, the officer’s expert opinion testimony about robberies and gang intimidation of the community with handguns was properly elicited and considered by the juvenile court. With respect to this testimony, the officer properly couched his opinions in general terms, rather than testifying to what appellant did or thought specifically. Consequently, this opinion testimony was properly considered by the juvenile court in support of the gang finding.
The above adjudication evidence and the reasonable inferences that the juvenile court drew from the evidence support the implicit and explicit findings that appellant possessed the firearm on August 11, 2006, in furtherance of the gang with the requisite specific intent for the gang enhancement. (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551.)
The decision in Frank S., supra, 141 Cal.App.4th 1192 is distinguishable because here there is circumstantial evidence of appellant’s conduct and specific intent that was not present in the Frank S. adjudication.
II. The Theoretical Maximum Period of Confinement
Appellant contends the juvenile court made errors in calculating the theoretical maximum period of confinement at eight years eight months.
The People concede there was error because the juvenile court failed to properly apply section 654 to its calculation of the maximum theoretical period of confinement. However, we decline to accept the concession and find no error in the juvenile court’s calculation of the term. However, as the case must be remanded for compliance with Welfare and Institutions Code section 702, the juvenile court may have to recompute the term after declaring the offenses to be misdemeanors or felonies.
A. Background
Appellant asserts that at disposition, the juvenile court calculated theoretical the maximum period of confinement, as follows. It selected the August 11, 2006, offense as the principal term and calculated an upper term of three years for the offense of a minor unlawfully in possession of a firearm, enhanced by the upper term of four years for the gang enhancement. It calculated subordinate terms to be run consecutively to the principal term for the July 24, 2006, offenses respectively, of a consecutive eight-month term for the minor unlawfully in possession of a firearm offense, of a consecutive eight-month term for carrying a loaded firearm, and a consecutive four-month term for the resisting offense. The latter four-month term presumes the resisting offense is a misdemeanor.
B. The Relevant Legal Principles
Welfare and Institutions Code section 726 provides that the theoretical maximum period of confinement for juvenile ward is a period of time equal to “‘the maximum term of imprisonment which could be imposed upon an adult convicted of the [same] offense or offenses . . . .’” (In re Jovan B. (1993) 6 Cal.4th 801, 811, italics removed, cited with approval in In re Derrick B. (2006) 39 Cal.4th 535, 543; see also In re Eric J. (1979) 25 Cal.3d 522, 536 [seminal case].) Pursuant to section 726, consecutively calculated terms for misdemeanor offenses are also subject to the same limitations in section 1170.1, subdivision (a). (In re Eric J., supra, at pp. 537-538.)
Welfare and Institutions Code section 726 provides in pertinent part, as follows: “(c) If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled. [¶] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code. [¶] If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law. [¶] ‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.”
The court in In re David H. (2003) 106 Cal.App.4th 1131, explained the following: “When a juvenile court sustains criminal violations resulting in an order of wardship (Welf. & Inst. Code § 602), and removes a youth from the physical custody of his parent or custodian, it must specify the maximum confinement term, i.e., the maximum term of imprisonment an adult would receive for the same offense [or offenses]. (Welf. & Inst. Code, § 726.) Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms, both on the basis of multiple counts, and on previously sustained section 602 petitions in computing the maximum confinement term. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454.) When aggregating multiple counts and previously sustained petitions, the maximum confinement term is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. [Citations.]” (In re David H., supra, at pp. 1133-1134.)
In calculating the maximum theoretical period of confinement, a juvenile court also should calculate the term by observing the limitations in section 654. (In re David H., supra, 106 Cal.App.4th at p. 1134.) Aggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court. (In re Richard W. (1979) 91 Cal.App.3d 960, 982.)
C. The Analysis
Appellant argues that a minor who possesses a weapon and also carries a loaded firearm commits offenses that are not separately punishable within the meaning of section 654. We disagree. We would follow the reasoning in the analogous case of People v. Harrison (1969) 1 Cal.App.3d 115, 122. In People v. Harrison, the court found the offenses of a felon unlawfully in possession of a firearm and carrying a loaded firearm had different statutory purposes and for that reason section 654 did not apply. (Id. at pp. 121-122; see also In re Hayes (1969) 70 Cal.2d 604, 607.) We hold the same rule applies here. (See also People v. Jones (2002) 103 Cal.App.4th 1139, 1143-1147 [discussing the cases following the decision in People v. Harrison].) The offenses appellant was found to have committed had different statutory purposes, and the juvenile court thus properly calculated separate consecutive terms for these offenses. Also, the acts of possession and loading the weapon are necessarily two different criminal acts. (People v. Harrison, supra, 1 Cal.App.3d at p. 122.) There was no error.
III. Welfare and Institutions Code Section 702
Appellant contends that he is entitled to a remand for the juvenile court to comply with Welfare and Institutions Code section 702. We agree.
Section 702 provides in pertinent part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” This section requires an explicit declaration by the juvenile court as to whether an offense is a felony or misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) A remand for the finding is required, unless the record shows that “the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.” (Id. at p. 1209.)
California Rules of Court, rule 5.780(e)(5), contains a similar requirement that the juvenile court declare a “wobbler” a felony or a misdemeanor.
Here, the section 12101 minor unlawfully in possession of a firearm and the section 148 resisting offenses are “wobblers” and require an express declaration as to whether the juvenile court found they should be punishable as felonies or misdemeanors. However, the instant violation of section 12031, carrying a loaded weapon, appears to be a felony based on subdivision (a)(2)(D) of that same section.
Section 12031, subdivision (a)(2), provides in pertinent part as follows: “Carrying a loaded firearm in violation of this section is punishable, as follows: [¶] . . . [¶] (D) Where the person is not in lawful possession of the firearm, as defined in this section, or is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.” (§ 12031, subd. (a)(2)(D).)
We remand to the juvenile court for compliance with Welfare and Institutions Code section 702.
IV. The Condition of Probation
At disposition, the juvenile court imposed the following No. 16 condition of probation: “You’re not to have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person.”
Appellant contends that the condition of probation is unconstitutionally vague and overbroad on its face because it lacks a knowledge requirement. The People concede that a knowledge requirement is required in this context, and we agree. (Compare In re Sheena K. (2007) 40 Cal.4th 875, 890-892; In re Justin S. (2001) 93 Cal.App.4th 811, 816 [probation condition modified to forbid the minor’s association “‘with any person known to you to be a gang member’”].)
The People argue that no remand is required to alter the condition of probation as the knowledge requirement would have to be implied by any court enforcing the No. 16 condition of probation.
We remand, however, on this issue also. As this cause must be remanded in any event to the juvenile court, on remand, the juvenile court can also insert the knowledge requirement into the No. 16 condition of probation.
V. The Precommitment Credit
Appellant contends that he is entitled to additional precommitment credit.
The People concede the issue, and we agree.
Welfare and Institutions Code section 726 requires the juvenile court to grant credit against the theoretical maximum period of confinement for time spent in custody before the disposition hearing. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067-1068.)
Here, at disposition, appellant was awarded 37 days of precommitment credit. He entered confinement in juvenile hall on July 24, 2006, and he was released on August 1, 2006, to the “Community Detention Program.” Subsequently, on August 11, 2006, he was once again detained in juvenile hall until disposition on September 8, 2006. It thus appears that he was detained nine days prior to his release on the Community Detention Program and was in juvenile hall after his arrest for an additional 29 days. He is therefore entitled to 38 days of precommitment credit.
On remand, the juvenile court shall modify its credit order to afford appellant 38 days, in lieu of 37 days, of precommitment credit.
DISPOSITION
We affirm the orders under review, except insofar as it is necessary to vacate the dispositional orders in order to remand the cause to the juvenile court to make an additional Welfare and Institutions Code section 702 order, to insert the knowledge requirement into the No. 16 condition of probation, and to award appellant one additional day of precommitment credit. The cause is remanded for the juvenile court to make these orders.
We concur: BOREN, P. J., DOI TODD, J.