Filed 5/4/20
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


In re I.A., a Person Coming                 2d Juv. No. B296549
Under the Juvenile Court Law.             (Super. Ct. No. FJ53512)
                                            (Los Angeles County)

THE PEOPLE,

     Plaintiff and Respondent,

v.

I.A.,

     Defendant and Appellant.


             If a juvenile court finds true an allegation that a
minor committed murder based on the natural and probable
consequences theory, the minor may petition the court to vacate
its finding and the corresponding disposition pursuant to Penal
Code 1 section 1170.95. (In re R.G. (2019) 35 Cal.App.5th 141,
151.) If the court grants the petition, and the original charging
document included only a generic murder allegation without


        1 All   further unlabeled statutory references are to the Penal
Code.
alleging the target offense, the now-vacated finding on the
murder allegation “shall be redesignated” as a finding on the
target offense. (§ 1170.95, subd. (e).)
             The issue presented in this appeal is whether the
minor may challenge the sufficiency of the evidence supporting
the redesignated target offense. We hold that where a juvenile
court vacates its true finding on a generic murder allegation and
redesignates it as a finding on an uncharged target offense, and
does so before a minor has had the opportunity to contest the
court’s findings or orders, the minor may challenge the
sufficiency of the evidence of the redesignated offense on appeal.
             I.A. appeals from the juvenile court’s order declaring
him a ward of the court after it sustained allegations that he
possessed a concealable firearm (§ 29610) and committed
vandalism (§ 594). He contends there was insufficient evidence
he committed these crimes. We agree, and reverse.
            FACTUAL AND PROCEDURAL HISTORY
                         The murder of E.L.
             I.A. and five of his friends—Aviyance Burke, Semaj
Cathey, R.G., Donovan Kushner, and Dreshad Populus—were
members of a Los Angeles criminal street gang. In June 2017,
the six were driving through rival gang territory. I.A., Burke,
and Populus were in a Chevrolet; Cathey, R.G., and Kushner
were in an Infiniti directly ahead of them. The Infiniti stopped,
and Kushner got out and shot a man crossing the street. The
man, later identified as E.L., died at the scene.
             Investigators found five spent cartridge casings and a
bullet fragment near E.L.’s body, all of which had been fired from
the same nine-millimeter handgun. Police later searched
Cathey’s house and found a nine-millimeter handgun. They also




                                 2
found several cartridges and cartridge casings with the same
head stamp as the cartridges found at the crime scene. I.A.’s
fingerprints and DNA were not on the gun or on any of the
cartridges or cartridge casings.
             Prosecutors alleged that I.A. committed murder
(§ 187, subd. (a)) and conspired to commit murder (§ 182, subd.
(a)(1)) in a Welfare and Institutions Code section 602 petition.
They also alleged that I.A. committed his crimes for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a
principal personally used a firearm, personally and intentionally
discharged a firearm, and personally and intentionally
discharged a firearm causing death during the commission of the
crimes (§ 12022.53, subds. (b), (c), (d) & (e)(1)). They filed similar
charges against I.A.’s alleged accomplices.
                       Jailhouse conversations
             While awaiting trial on the charges, Cathey was put
in a cell with an undercover informant. Cathey told the
informant that I.A. was “one of the homies.” When the informant
said that police had arrested I.A., Cathey “wonder[ed] what they
got him for.” He said that he did not know why police would
arrest or even want to talk to I.A. since they had found the gun
used to shoot E.L. at Cathey’s house.
             Police later put Kushner in a cell with the informant.
Kushner admitted that he was in the Infiniti with Cathey and
R.G. on the day of E.L.’s murder. “We was tagging at first and
shit,” he said, “and then we end up . . . seein’ somebody.”
Thinking the person was a rival gang member, Kushner got out
of the Infiniti and used a nine-millimeter handgun to shoot him.
After the shooting Kushner gave the gun to Cathey. Kushner did




                                  3
not mention that I.A. or anyone else in the Chevrolet was
involved in E.L.’s murder.
              I.A. and R.G. were housed together in another cell.
During one conversation police recorded, R.G. said that he “just
told [police] that we was taggin’ . . . .” I.A. asked, “They already
know that?” R.G. replied that they did. I.A. then asked if R.G.
told police that I.A. had been tagging. R.G. said, “They know you
was there, bro.”
              In another recorded conversation, R.G. told I.A. that
police “said they gon’ get our fingerprint, everybody fingerprints,
they say they gon’ fingerprint that gun.” But I.A. had nothing to
worry about because “[he] ain’t touch that gun—” I.A. disagreed:
“[E]verybody touched that gun. . . . Everybody touched that gun.”
                 Facebook photograph and messages
              At the contested adjudication, prosecutors introduced
into evidence a picture of I.A. holding what appears to be an
assault rifle. They also introduced several Facebook messages he
sent or received in the months surrounding E.L.’s murder. In
January 2017, for example, I.A. wrote, “I’m tryin to get me a
gun.” A few days later he wrote, “Why would I get a 38 nigga got
that all ready[?]” and “UK no some body that sale a thang[?]”
              In February, I.A. sent a message to Cathey: “I got to
go home NK get my thang.” Cathey responded, “Ight u got one
now[.] . . . What kind[?]” I.A. replied, “Yea 38.”
              The following week, Cathey sent I.A. a message
asking, “Who got another one for the low[?]” I.A. replied, “They
don’t got nun for the low.” Cathey asked, “How u pay for urs[?]”
I.A. said, “300 but that because I was trying to get my shit to
fast.”




                                 4
             In April, I.A. sent a message to “Nifty Bkang” that
said, “Uk got a thAng 4k sale[?]” Later that month he told
Bkang, “We need some thangs.” Bkang responded, “UK got yo
38k.” I.A. replied, “Mank that its.”
             A few days after E.L.’s murder in June, Cathey told
I.A. that a person named “T.K.” was “trippin out” because
Kushner used T.K.’s handgun to shoot E.L. T.K. wanted Kushner
and his accomplices to purchase the gun.
             Later that day I.A. sent a message to “Laura Lenay.”
The message read, “Sis my gun at yo Moma.” Lenay asked,
“That’s the one he be having right?” I.A. replied, “Yea.” Lenay
said, “The police found it. . . . She didn’t have enough time . . . [t]o
hide it right.”
        Juvenile court findings and subsequent proceedings
             At the conclusion of adjudicatory proceedings in
October 2018, the juvenile court sustained the allegation that I.A.
committed murder, and deemed the murder to be second degree
(§ 189, now-subd. (c)). I.A.’s counsel asked the court for
clarification: “So you sustained the petition under a natural and
probable consequences theory with the targeted [offenses] you
mentioned, the tagging . . . and transfer of gun[,] and [you found
that] there’s insufficient evidence . . . under the first degree
murder theory; is that correct?” The court said that it was. It
then found true the gang and firearm allegations attached to the
murder, but found not true the allegation that I.A. conspired to
commit murder.
             At the January 2019 disposition hearing, I.A. moved
for a new adjudication pursuant to Senate Bill No. 1437 (S.B.
1437), which amended “the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is




                                   5
not imposed on a person who [was] not the actual killer, did not
act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The juvenile court
denied I.A.’s motion, concluding that he had to file a section
1170.95 petition if he wanted the true finding on the murder
allegation set aside. (In re R.G., supra, 35 Cal.App.5th at pp.
145-151.) It declared him a ward of the court, and ordered him
committed to the Division of Juvenile Justice (DJJ) for a
maximum term of 40 years to life.
             I.A. filed the requisite petition, and the juvenile court
determined that he made a prima facie showing he was entitled
to relief. Over prosecutors’ objections, the court granted I.A.’s
petition the following month. Prosecutors then urged the court to
redesignate its true finding on the murder allegation as findings
that I.A. possessed a concealable firearm (based on the theory
that he constructively possessed the gun Kushner used to shoot
E.L.) and committed vandalism, and that he committed those
crimes for the benefit of a criminal street gang. I.A. argued the
evidence did not support these allegations, but the court
disagreed. It made the requested redesignations, deemed the
offenses felonies, and declared I.A. a ward of the court. It ordered
a camp community placement for six years eight months.
                             DISCUSSION
             I.A.’s contentions are cognizable on appeal
             Before we turn to I.A.’s insufficiency-of-the-evidence
contentions, we first consider the Attorney General’s arguments
that they are not cognizable on appeal. The Attorney General
argues: (1) the doctrine of invited error prevents consideration of
I.A.’s contentions, (2) I.A. forfeited his contentions because he did




                                  6
not object to the court’s redesignation of its murder finding, and
(3) permitting I.A. to raise his contentions on appeal conflicts
with the legislative intent underlying section 1170.95. None of
these arguments is persuasive.
                            1. Invited error
              “‘The doctrine of invited error is designed to prevent
an accused from gaining a reversal on appeal because of an error
made by the . . . court at [their] behest.’” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 49.) The Attorney General claims
this doctrine bars consideration of I.A.’s sufficiency-of-the-
evidence contentions because “the resentencing outcome [he]
obtained was the result of his own affirmative legal action”: the
filing of a section 1170.95 petition. This claim misconstrues what
occurred in the proceedings below.
              In his petition, I.A. simply requested that the
juvenile court vacate its murder finding. He did not request
redesignation of that finding to findings on firearm possession
and vandalism, as the Attorney General implies. The court made
those findings of its own volition, based on its view of the
evidence produced at the contested adjudication. And I.A.
challenged those findings as unsupported by the evidence. Any
error with those findings thus cannot be attributed to him. The
doctrine of invited error is inapplicable. (Lambert v. General
Motors (1998) 67 Cal.App.4th 1179, 1183 [doctrine inapplicable if
defendant neither creates nor foresees error].)
              Moreover, applying the doctrine of invited error to a
situation like this one would require a minor to either: (1) refrain
from filing a section 1170.95 petition and accept a murder finding
based on a now-invalid theory, or (2) have their murder finding




                                 7
redesignated but lose the ability to challenge that redesignation
on appeal. Either choice raises serious constitutional concerns.
             As to the former, due process requires a prosecutor to
“‘convince [the juvenile court] beyond a reasonable doubt of the
existence of every element of the offense’” alleged against a minor.
(In re Miguel L. (1982) 32 Cal.3d 100, 105, italics added, quoting
Jackson v. Virginia (1979) 443 U.S. 307, 316.) Malice
aforethought is one element of murder. (§ 187, subd. (a).) But
since the Legislature passed S.B. 1437, “malice can no longer ‘be
imputed to a [minor] based solely on [their] participation in a
crime.’ [Citation.]” (In re R.G., supra, 35 Cal.App.5th at p. 144;
see § 188, subd. (a)(3).) A finding that a minor committed murder
based on a natural and probable consequences theory thus does
not guarantee that the prosecutor proved beyond a reasonable
doubt that the minor acted with malice, as due process requires.
             A separate due process violation would occur if a
murder finding is redesignated but the minor cannot challenge
the redesignated offense. A minor deemed a ward of the juvenile
court has a statutory right to appeal. (In re Kevin S. (2003) 113
Cal.App.4th 97, 106-107; see Welf. & Inst. Code, § 800, subd. (a).)
That “‘statutory appeal procedure must be administered fairly to
all persons’” (Kevin S., at p. 115), and must provide the minor
with “full and effective appellate review” (id. at p. 117). Full and
effective appellate review includes ensuring that any sustained
allegations were proven beyond a reasonable doubt at
adjudication (In re Winship (1970) 397 U.S. 358, 368), and are
supported by substantial evidence on appeal (In re Ryan N.
(2001) 92 Cal.App.4th 1359, 1371). Were we to conclude that a
minor cannot challenge the sufficiency of the evidence of
redesignated target offenses, we would be denying the minor of




                                 8
those due process rights. Indeed, were we to accept the Attorney
General’s position, the court below could have redesignated its
finding that I.A. committed murder as a finding that he
committed a burglary—a crime for which there is no support in
the record—and he would be unable to do anything about it.
That is not the law.
             The Attorney General’s attempts to avoid these
constitutional concerns are unavailing. He first claims that,
instead of pursuing his section 1170.95 petition with the juvenile
court, I.A. could have appealed the denial of his motion for a new
adjudication and then requested S.B. 1437 relief directly on
appeal. But such a request would have lacked merit: S.B. 1437
does not apply retroactively on direct appeal. (In re R.G., supra,
35 Cal.App.5th at pp. 145-146; see People v. Martinez (2019) 31
Cal.App.5th 719, 722-729.) A minor is not required to pursue
unmeritorious requests. (See People v. McPeters (1992) 2 Cal.4th
1148, 1173, superseded by statute on an unrelated point as stated
in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
             Acknowledging that S.B. 1437 relief would not have
been granted on appeal, the Attorney General claims I.A. could
have appealed the denial of his motion for a new adjudication and
then filed a section 1170.95 petition in the juvenile court after
appellate proceedings concluded. But this claim ignores the
prejudice I.A. would have suffered in the interim. I.A. would
have spent months—perhaps years—in DJJ custody while courts
considered his appeal and subsequent petition. Postponing
consideration of a challenge only to have a minor languish in the
“most restrictive placement” for a juvenile ward is patently
untenable. (In re Eddie M. (2003) 31 Cal.4th 480, 488.)




                                9
                             2. Forfeiture
             Alternatively, the Attorney General argues I.A.
forfeited his sufficiency-of-the-evidence contentions because he
did not object to the juvenile court’s redesignation of its murder
finding. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590
[contention forfeited without timely, specific objection].) The
Attorney General again misconstrues the proceedings below.
             Though I.A. petitioned the court to vacate its murder
finding, he did not request that it redesignate that finding as a
finding on specific target offenses. And when prosecutors urged
the court to redesignate its finding as findings that he possessed
a concealed firearm and committed vandalism, I.A. objected and
asserted there was insufficient evidence he committed those
crimes. This case is thus unlike those in which a defendant
forfeited their challenge because they consented to being
convicted of a specific lesser offense. (See People v. Delgado
(1989) 210 Cal.App.3d 458, 461 [compiling cases].) There was no
forfeiture here. (Id. at pp. 464-465 [challenge to conviction of
lesser offense permissible where defendant maintained his
innocence through trial]; see also In re Alberto S. (1991) 226
Cal.App.3d 1459, 1465 [same]; People v. Delahoussaye (1989) 213
Cal.App.3d 1, 113 [challenge permitted where court implied it
could convict defendant of lesser offense].)
             We would reach the same conclusion even if I.A. had
not objected to the redesignated offenses. No objection is
necessary to preserve a challenge to the sufficiency of the
evidence for appeal. (See, e.g., People v. McCullough (2013) 56
Cal.4th 589, 596; People v. Butler (2003) 31 Cal.4th 1119, 1126;
People v. Rodriguez (1998) 17 Cal.4th 253, 262.) This is true even
if the appellate challenge is to a lesser offense than the one




                               10
originally charged. (See, e.g., People v. Tully (2012) 54 Cal.4th
952 [challenge to burglary underlying first degree murder];
People v. Long (1940) 15 Cal.2d 590 [challenge to manslaughter
as lesser included offense of murder]; People v. McCloud (2012)
211 Cal.App.4th 788 [challenge to assaults as lesser included
offenses of attempted murder].) A minor’s “failure to object to a
court’s [true] finding [on] a lesser related offense after the
decision is announced does not support a reasonable inference of
consent to [a finding on] the offense.” (In re Alberto S., supra, 226
Cal.App.3d at p. 1465.)
                         3. Legislative intent
             Finally, the Attorney General argues I.A. cannot
raise his sufficiency-of-the-evidence contentions on appeal
because permitting him to do so would conflict with the
legislative intent underlying section 1170.95. (Cf. People v.
Anthony (2019) 32 Cal.App.5th 1102, 1156 [S.B. 1437 is “an act of
lenity”].) In the Attorney General’s view, it would be absurd to
permit I.A. to obtain leniency pursuant to section 1170.95 and
then allow him to contend the mechanism for granting that
leniency itself constitutes error. But that is not what I.A.
contends.
             I.A. requested that the juvenile court vacate its
murder finding pursuant to section 1170.95. He does not now
contend the court employed the wrong “mechanism” when it
granted that request; he contends the court erred when it
identified the target offenses. In other words, his challenge is not
to the process of redesignation but to its results. We thus have no
occasion to consider the Attorney General’s legislative intent
argument. (Kinney v. Clark (2017) 12 Cal.App.5th 724, 734
[refusing to consider argument not germane to the case].)




                                 11
                            4. Conclusion
             In conclusion, where a juvenile court vacates its true
finding on a generic murder allegation and redesignates it as a
finding on an uncharged target offense, and does so before a
minor has had the opportunity to contest the court’s findings or
orders, the minor may challenge the sufficiency of the evidence of
the redesignated offense on appeal. Section 1170.95 does not
force a minor to choose between accepting a murder finding and a
loss of appellate rights. (Cf. § 1170.95, subd. (f) [“[t]his section
does not diminish or abrogate any rights or remedies otherwise
available to” a minor].) Such a choice is “no choice, except a
choice between the rock and the whirlpool[]—an option to [forgo]
a privilege [that] may be vital to [one’s] livelihood or submit to a
requirement [that] may constitute an intolerable burden.” (Frost
& Frost Trucking Co. v. Railroad Commission of California
(1926) 271 U.S. 583, 593.) We thus turn to I.A.’s sufficiency-of-
the-evidence contentions.
                     Sufficiency of the evidence
             I.A. contends insufficient evidence supports the
juvenile court’s findings that he possessed a concealable firearm
and committed vandalism. We agree.
                       1. Standard of review
             We review I.A.’s contentions using the same standard
of review that applies in adult criminal cases. (In re V.V. (2011)
51 Cal.4th 1020, 1026.) Specifically, we determine whether
substantial evidence—“evidence that is reasonable, credible, and
of solid value”—supports the juvenile court’s findings. (People v.
Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) We view the
evidence “in the light most favorable to the prosecution and
presume in support of the [findings] the existence of every fact




                                12
the [court] could reasonably have deduced from the evidence.”
(Ibid.) We “accept [all] logical inferences that the [court] might
have drawn from the . . . evidence” (People v. Maury (2003) 30
Cal.4th 342, 396), but reject inferences “‘based on suspicion alone,
or on imagination, speculation, supposition, surmise, conjecture,
or guess work’” (People v. Morris (1988) 46 Cal.3d 1, 21 (Morris),
disapproved on another point by In re Sassounian (1995) 9
Cal.5th 535, 543, fn. 5). We will reverse only if “‘it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the [court’s findings].” (Zamudio, at p. 357.)
                2. Possession of a concealable firearm
             A minor possesses a concealable firearm if they
“‘“‘have actual control, care, and management of’”’” the weapon.
(People v. Martin (2001) 25 Cal.4th 1180, 1186.) That possession
may be actual or constructive. (People v. McKinnon (2011) 52
Cal.4th 610, 687.) It is “actual” if “‘“the weapon is in [the minor’s]
immediate possession or control,”’ i.e., [if the minor] is actually
holding or touching it. [Citations.]” (People v. Bay (2019) 40
Cal.App.5th 126, 132 (Bay).) It is “constructive” if the minor
“‘knowingly exercise[s] a right to control the [firearm], either
directly or through another person.’ [Citation.]” (Ibid.)
             “‘“[U]pon no hypothesis whatever is there sufficient
substantial evidence to support”’” the juvenile court’s finding that
I.A. possessed a concealable firearm. (Zamudio, supra, 43
Cal.4th at p. 357.) Prosecutors’ theory of the case was that I.A.
constructively possessed the gun Kushner used to shoot E.L. But
the only evidence tying I.A. to that gun was that he: (1) once
touched it, (2) was in the Chevrolet following the Infiniti from
which Kushner emerged when it was used, and (3) knew that
Kushner had the gun when Kushner used it against E.L. “‘[M]ere




                                 13
proximity’ or opportunity to access [a gun], ‘standing alone, is not
sufficient evidence of possession.’ [Citations.]” (Bay, supra, 40
Cal.App.5th at p. 132.) Nor is knowledge of a gun’s presence. (In
re Jorge M. (2000) 23 Cal.4th 866, 878.) What is required, and
what prosecutors failed to show here, is that I.A. exercised
dominion and control over the gun. (Ibid.)
             The Attorney General counters that “[i]n the months
preceding the murder, [I.A.’s] Facebook account [was] replete
with messages regarding his desire to purchase, and his
acquisition of, a gun,” and that his Facebook profile showed a
picture of him holding an assault rifle. But even if we assume
that I.A. did, in fact, acquire a gun, prosecutors presented no
evidence that the gun I.A. acquired was the one used to shoot
E.L. The evidence was to the contrary: I.A. referenced a .38-
caliber weapon in his messages and held a rifle in his picture, but
a nine-millimeter handgun—purportedly owned by “T.K.”—was
used to kill E.L. Without proof that I.A. exercised dominion and
control over that gun, the juvenile court’s finding that he
possessed a firearm was based on little more than “‘speculation,
supposition, surmise, conjecture, or guess work.’” (Morris, supra,
46 Cal.3d at p. 21.) Reversal is required. (People v. Sifuentes
(2011) 195 Cal.App.4th 1410, 1419-1420 [no possession where
prosecutors showed only “possibility” that defendant “might have
had the right to exercise control over” fellow gang member’s
weapon], disapproved on another point by People v. Farwell
(2018) 5 Cal.5th 295, 304, fn. 6.)
                            3. Vandalism
             We reach the same conclusion with respect to the
vandalism finding. A minor commits vandalism if they
maliciously damage, destroy, or deface with graffiti any real or




                                14
personal property that is not their own. (§ 594, subd. (a).) To
uphold the finding that I.A. committed this crime, “there must be
sufficient proof that the crime actually occurred and that [I.A.]
was the perpetrator.” (In re D.A. (2018) 24 Cal.App.5th 768, 770.)
“The first of these elements—the corpus delicti—must be
established ‘independently from [I.A.’s] extrajudicial statements,
confessions, or admissions.’ [Citation.]” (Ibid.) It must also be
established “independently of and without considering the
extrajudicial statements of” I.A.’s accomplices. (Jones v. Superior
Court (1979) 96 Cal.App.3d 390, 397 (Jones).)
              Here, the Attorney General claims I.A.’s statements
to R.G. constitute adoptive admissions, and were thus
admissible—and sufficient—to prove he committed vandalism.
(See Evid. Code, § 1221.) But even if the statements were
admissions, they do not, by themselves, establish that any
vandalism actually occurred. (In re D.A., supra, 24 Cal.App.5th
at p. 770.) Nor do the statements of R.G. and Kushner regarding
“tagging.” (Jones, supra, 96 Cal.App.3d at p. 397.) Because the
Attorney General cites no other evidence to support the juvenile
court’s vandalism finding, there is insufficient proof of the corpus
delicti of that offense. The finding must be reversed.




                                15
                           DISPOSITION
             The juvenile court’s findings that I.A. possessed a
concealable firearm and committed vandalism are reversed, and
the corresponding gang allegations are vacated. The court is
directed to vacate the jurisdiction and disposition order entered
February 6, 2019, and to dismiss the Welfare and Institutions
Code section 602 petition filed August 11, 2017.
             CERTIFIED FOR PUBLICATION.


                                     TANGEMAN, J.
We concur:


             GILBERT, P. J.


             PERREN, J.




                                16
                  Christopher J. Smith, Judge

             Superior Court County of Los Angeles

                ______________________________



           Lynette Gladd Moore, under appointment by the
Court of Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
