Filed 5/28/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                             DIVISION SIX


In re B.J., a Person Coming                2d Juv. No. B293545
Under the Juvenile Court Law.            (Super. Ct. No. YJ38738)
                                           (Los Angeles County)

THE PEOPLE,

     Plaintiff and Respondent,

v.

B.J.,

     Defendant and Appellant.


            What happens if a juvenile court sustains allegations
that a minor committed a series of offenses, some of which render
them eligible for Division of Juvenile Justice (DJJ) commitment
and some of which do not? Welfare and Institutions Code section
733, subdivision (c), is clear: DJJ commitment is permitted only
if the minor’s most recent offense is listed in Penal Code1 section
290.008, subdivision (c), or Welfare and Institutions Code section


        1 Further   undesignated statutory references are to the
Penal Code.
707, subdivision (b). (See also In re D.B. (2014) 58 Cal.4th 941,
947.) Because the latest offense B.J. committed is listed in
neither statute, we vacate the commitment order.
             Prosecutors alleged that B.J. committed kidnapping
during the commission of a carjacking (§ 209.5, subd. (a); count
1), kidnapping to commit robbery (§ 209, subd. (b)(1); count 2),
carjacking (§ 215, subd. (a); count 3), second degree robbery
(§§ 211, 212.5, subd. (c); count 4), and unlawfully driving or
taking a vehicle (Veh. Code, § 10851, subd. (a); count 5) one
evening in September 2017. In the same petition, prosecutors
also alleged that B.J. restricted or obstructed a peace officer
(§ 148, subd. (a)(1); count 7) later that night. The juvenile court
sustained the allegations, and found true allegations that B.J.
committed counts 1 through 5 for the benefit of a criminal street
gang (§ 186.22, subds. (b)(1)(A), (b)(1)(C) & (b)(4)) and that a
principal personally used a firearm during the commission of
counts 1 through 4 (§ 12022.53, subds. (b) & (e)(1)). The court
deemed counts 1 through 5 felonies; count 7, a misdemeanor. It
declared B.J. a ward of the court, and ordered him committed to
DJJ for a maximum term of life plus 21 years four months.
             B.J. contends: (1) insufficient evidence supports the
juvenile court’s true findings on the gang allegations, (2) the true
finding on count 3 should be reversed, and (3) the court erred
when it ordered him committed to DJJ. We reverse the court’s
finding on count 3, vacate the commitment order, and remand for
a new dispositional hearing.
            FACTUAL AND PROCEDURAL HISTORY
         The kidnapping, carjacking, and burglary crimes
             In September 2017, K.I. drove her friend’s black Audi
to El Segundo. Around 7:00 p.m., K.I. parked and started to get




                                 2
out of the car. A man pointed a gun at her and told her to get
back inside. As she moved to the front passenger seat, the man
demanded all of her possessions.
             The driver picked up B.J., then age 15, about 20
yards down the street. B.J. told the driver, “We need to hurry,
let’s go, dead bodies, my nigga, dead bodies.” He pointed a gun at
K.I. and demanded her cell phone. He looked through the
contents of the phone and said, “Oh, you look good too. This is
going to be fun.” He touched K.I.’s stomach, and the driver
touched her breast. K.I. thought the two were going to rape her.
             The driver stopped the Audi again and picked up
another passenger. K.I. begged to be let out of the car. The
driver stopped, threw K.I.’s purse at her, and told her to go. K.I.
got out and asked B.J. for her cell phone. He refused to return it.
K.I. ran down the street and called police.
                     The resisting arrest offense
             About four hours later, Los Angeles Police Officer
Leovardo Guillen saw a black Audi run a stop sign. Officer
Guillen activated his overhead lights and followed the car. The
Audi sped away, but stopped after a few blocks. B.J. got out and
ran. Officer Guillen chased and detained him. B.J. had socks on
his hands and K.I.’s cell phone in his pocket.
                           Gang evidence
             During booking, B.J. told Officer Guillen that he was
a member of the Rollin 90s gang and that his moniker was “Ken
Dog.” At the contested adjudication, Officer Guillen testified that
gang members sometimes wear socks on their hands to avoid
leaving fingerprints while loading a firearm or stealing vehicles.
             Detective Jesus Flores testified that, during the
investigation of a 2016 carjacking, B.J. admitted that he was a




                                 3
member of the Rollin 90s gang with the moniker “Tiny Ken Dog.”
B.J. committed that crime with three other people, including
another Rollin 90s gang member and a Rollin 40s gang member.
             Detective Don Sasaki testified that B.J. told him that
he was a Rollin 90s gang member with a moniker of “Tiny Nine
Bang” in February 2017.
             Officer Robert Resurreccion testified that the Rollin
90s gang is a clique of the Neighborhood Crips street gang,
together with the Rollin 30s, 40s, 50s, 60s, and 100s. The Rollin
90s gang’s primary activities include vandalism, burglaries,
robberies, carjackings, and firearms possession. Carjacking a
“high-end car” like an Audi allows a gang member to show off the
vehicle and gain respect from fellow gang members. It also
allows them to drive to rival gang territory and commit
additional crimes. The proceeds from these crimes benefit the
gang financially and permit them to buy firearms or narcotics.
             Officer Resurreccion said that the carjacking in this
case was committed in Rollin 40s gang territory. It occurred on
“Hood Day,” a day of celebration for the Rollin 90s. Younger gang
members often commit crimes on Hood Day to demonstrate their
respect for and loyalty to the gang and to establish themselves as
members.
             Officer Resurreccion believed that B.J. was an active
Rollin 90s gang member based on his prior admissions, prior
crimes, and gang tattoos. He did not know whether B.J.’s
accomplices in the carjacking were gang members.
             Given a hypothetical scenario based on the facts of
this case, Officer Resurreccion opined that the hypothetical gang
member would have committed the crimes for the benefit of, at
the direction of, and in association with the Rollin 90s street




                                4
gang: It was the gang’s Hood Day, the stolen car benefitted the
gang financially, and it increased the gang member’s prestige
within the gang. That the gang member may have committed the
crimes with non-gang members did not change the officer’s
opinion since it was possible the non-gang members were
attempting to “work their way into the gang.”
                           DJJ commitment
             The juvenile court ordered B.J. committed to DJJ for
a maximum term of life plus 21 years four months: a lifetime
commitment on count 1, plus a consecutive 10 years on the
attached gang enhancement, plus a consecutive 10 years on the
firearm enhancement; a consecutive one year on count 4; and a
consecutive four months on count 7. Pursuant to section 654, the
court imposed and stayed the commitments on all remaining
counts.
                            DISCUSSION
                           Gang allegations
             To sustain a gang allegation, the juvenile court must
conclude that: (1) the minor’s offense was gang related, or was
committed “for the benefit of, at the direction of, or in association
with” the gang, and (2) the minor had “‘the specific intent to
promote, further, or assist in any criminal conduct by gang
members.’” (People v. Albillar (2010) 51 Cal.4th 47, 60, 65; see
§ 186.22, subd. (b)(1).) B.J. contends there was insufficient
evidence of the first of these requirements. We disagree.
             When evaluating a challenge to the sufficiency of the
evidence, our review is limited to determining 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.) We view the evidence “in




                                 5
the light most favorable to the prosecution and presume in
support of the [findings] the existence of every fact the [court]
could reasonably have deduced from the evidence.” (Ibid.)
“‘Conflicts and even testimony that is subject to justifiable
suspicion do not justify the reversal of a [finding], for it is the
exclusive province of the [court] to determine the credibility of a
witness and the truth or falsity of the facts upon which a
determination depends.’” (Ibid.) Reversal “‘is unwarranted
unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the [court’s findings].
[Citation.]” (Ibid.)
             “‘Expert opinion that particular criminal conduct
benefited a gang’ . . . can be sufficient to support [a] gang
enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
Here, Officer Resurreccion opined that a gang member like B.J.
would have committed his crimes for the benefit of the Rollin 90s
gang. The evidence supports that opinion.
             Detective Flores, Detective Sasaki, Officer Guillen,
and Officer Resurreccion all testified that B.J. was a Rollin 90s
gang member. Carjacking is one of that gang’s signature crimes.
Rollin 90s gang members often commit carjackings with members
of other cliques of the Neighborhood Crips, such as the Rollin 40s
(as B.J. had done previously), or in those cliques’ territories (as
was the case here). And as was the case here, they often wear
socks on their hands while doing so. Carjacking a “high-end” car
like an Audi would help a young gang member like B.J. earn
respect from older gang members by permitting him to commit
additional crimes that financially benefit the gang. Committing
the crime on the gang’s Hood Day would allow B.J. to
demonstrate his loyalty to the gang. This evidence is sufficient to




                                 6
support Officer Resurreccion’s opinion that B.J. committed his
crimes for the benefit of the Rollin 90s gang.
              The cases on which B.J. relies do not require a
contrary conclusion. Like the situation here, in none of the cited
cases did the defendant “call out a gang name, display gang
signs, wear gang clothing, or engage in gang graffiti while
committing” their crimes. (People v. Ochoa (2009) 179
Cal.App.4th 650, 662; see People v. Franklin (2016) 248
Cal.App.4th 938, 950; People v. Ramirez (2016) 244 Cal.App.4th
800, 819.) But unlike the situation here, those defendants’
crimes did not occur in gang-targeted territory or on their gangs’
Hood Days. Those factors sufficiently distinguish this case to
support the juvenile court’s findings.
                        Carjacking allegation
              B.J. contends, and the Attorney General concedes,
the juvenile court’s true finding on count 3 should be reversed
because carjacking is a lesser included offense of kidnapping
during the commission of a carjacking. We agree.
              When the juvenile court determines that a minor
committed “both a greater and a necessarily lesser included
offense arising out of the same act or course of conduct, and the
evidence supports the [finding] on the greater offense, that
[finding] is controlling, and the [finding] of the lesser offense
must be reversed. [Citations.]” (People v. Sanders (2012) 55
Cal.4th 731, 736; In re Marcus T. (2001) 89 Cal.App.4th 468,
471.) Here, the court found true allegations that B.J. committed
kidnapping during the commission of a carjacking (count 1) and
carjacking (count 3). The latter is a lesser included offense of the
former. (People v. Montes (2014) 58 Cal.4th 809, 898.) Both
offenses arose out of the same course of conduct, and B.J. does




                                 7
not challenge the true finding on count 1. The findings on count
3 and its attendant allegations must thus be reversed. (Ibid.)
                            DJJ commitment
              B.J. contends, and the Attorney General concedes,
that the juvenile court erred when it ordered him committed to
DJJ custody. The parties are correct: A minor is eligible for DJJ
commitment only if “the last offense that was adjudicated to have
been committed” is listed in section 290.008, subdivision (c), or
Welfare and Institutions Code section 707, subdivision (b). (In re
D.B., supra, 58 Cal.4th at p. 947; see Welf. & Inst. Code, § 733,
subd. (c).) B.J.’s “last offense that was adjudicated”—resisting or
obstructing a peace officer—is not listed in either subdivision.
The commitment order must therefore be vacated.
              Our concurring colleague deems this result “absurd,”
and concurs only “under compulsion of In re D.B.” (Conc. opn.
post, at p. 1.) But it is not only In re D.B. that compels the result
we reach here; it is the plain language of Welfare and
Institutions Code section 733, subdivision (c), itself—something
this court has recognized previously. (See In re A.O. (2017) 18
Cal.App.5th 390, 393 [Welfare and Institutions Code section 733,
subdivision (c), “‘lends itself to only one reasonable
interpretation’”].) Moreover, the Supreme Court decided In re
D.B. more than three years before B.J. committed his crimes,
giving prosecutors ample notice of the requirements of Welfare
and Institutions Code section 733, subdivision (c). Had they
wanted to avoid the result that statute requires, they could have
easily exercised their discretion at the charging stage. They did
not do so.
              B.J. also contends the juvenile court failed to exercise
its discretion and consider the facts and circumstances of his case




                                  8
when it set his maximum commitment term. (See Welf. & Inst.
Code, § 731, subd. (c); In re Julian R. (2009) 47 Cal.4th 487, 495.)
Because we are vacating the DJJ commitment order, we do not
resolve this contention.
             Finally, B.J. points out that the DJJ commitment
form contains several clerical errors: It states that the
commitments for various offenses were stayed pursuant to
Welfare & Institutions Code section 654 rather than that section
of the Penal Code, and cites to “1022.53(B)&(E)(1)PC” rather
than section 12022.53 for the firearm enhancements. Because we
are vacating the commitment order, these errors no longer exist.
We presume any new commitment form will accurately reflect
the juvenile court’s judgment.
                           DISPOSITION
             The juvenile court’s true finding on the carjacking
allegation in count 3 is reversed. The order committing B.J. to
DJJ custody is vacated, and the matter is remanded for a new
dispositional hearing. In all other respects, the judgment is
affirmed.
             CERTIFIED FOR PUBLICATION.


                                     TANGEMAN, J.
We concur:


             GILBERT, P. J.



             YEGAN, J.




                                 9
YEGAN, J., Concurring:
              I concur under compulsion of In re D.B. (2014) 58
Cal.4th 941. An intermediate appellate court is bound to follow
Supreme Court precedent where, as here, the presenting facts are
not “fairly distinguishable.” (People v. Triggs (1973) 8 Cal.3d 884,
890-891, disapproved on another ground in People v. Lilienthal
(1978) 22 Cal.3d 891, 896; see also People v. Musante (1980) 102
Cal.App.3d 156 (conc. opn. of Gardner, P. J.).) As Presiding
Justice Gardner would say, the Supreme Court is wrong. The
statute, if literally applied can lead to, and here does lead to, an
absurd result as a matter of law.
              The Supreme Court should reconsider the rule
articulated in D.B. There, the Supreme Court recognized the
problem but said that the language chosen by the Legislature
was not “so absurd” to warrant rejection of the plain language.
(In re D.B., supra, 58 Cal.4th at p. 948.) In my view, something is
either absurd or it is not absurd. Absurdity has many synonyms
according to the Merriam-Webster dictionary: asininity, betise,
fatuity, folly, foolery, foppery, idiocy, imbecility, inanity, insanity,
lunacy, and stupidity. (See Merriam-Webster dictionary,
https://www. merriam-webster.com/dictionary/ absurdity.) It has
a unique meaning in the law. (See, e.g., People v. Clayburg
(2012) 211 Cal.App.4th 86, 88.) The courts follow the “plain
meaning rule” but we should not subscribe to the “‘dictionary
school of jurisprudence.’” (Ibid.) For example, I cannot believe
that the Legislature actually intended that a juvenile who is
apprehended for an offense that would qualify for Division of
Juvenile Justice (DJJ) commitment is precluded where the
juvenile, upon arrest therefor, assaults a peace officer. This is




                                   1
the “plain meaning” of the statute and it is absurd. I am still
waiting for someone to tell me that it is not absurd.
             Our hypothetical question at oral argument in this
matter further illustrates the absurdity here at play: a juvenile
commits a murder with a firearm. On the way home he stops at
a market and steals a coke. The police arrest him when he gets
home. The prosecutor charges murder with the use of a firearm
and the petty theft. The juvenile court sustains both substantive
charges and finds the use of a firearm allegation to be true. He
cannot be committed to the DJJ. He must be treated at the local
level. This is beyond unwise. It is absurd. A premium is placed
on committing more “disqualifying” crimes after a juvenile
commits a qualifying crime.
             The statute chills the prosecutor’s charging power
and discretion. And, it does more than chill the judicial
“sentencing” process. It shackles the juvenile court and requires
it to impose an unjust “sentence” because of the charging process.
The separation of powers principle of government is undermined
by the D.B. holding.
             Public safety cannot and should not be ignored. The
statute does little, if nothing, to foster public safety. We are
fortunate that no one was killed or suffered great bodily injury as
a result of appellant’s offenses. I agree with the juvenile court
that these offenses, committed by this juvenile, warrant a
commitment to DJJ. No one can logically argue to the contrary.
               CERTIFIED FOR PUBLICATION.




                                     YEGAN, J.




                                 2
                  Christopher J. Smith, Judge

             Superior Court County of Los Angeles

                ______________________________

            Steven A. Torres, 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, Idan
Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff
and Respondent.
