1 Filed 3/7/13 In re A.D. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re A.D., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent,

v. A.D., Defendant and Appellant. A131450
(Contra Costa County Super. Ct. No. J0901539)

A.D. (appellant), born in August 1993, ap peals the juvenile court’s jurisdictional and dispositional orders. The cas e involves an incident in which appellant fired a firearm at a car occupied by five other minors. Among other things, appe llant contends that,
because there was no substantia l evidence he committe d the charged offenses in concert with another gang member, ther e was insufficient ev idence to support the juvenile court’s order sustaining a charge of active participa tion in a criminal stre et gang (Pen. Code, § 186.22, subd. (a)) 1 and gang sentencing enhancements (§ 186.22, subd. (b)( 1)) attached to six counts. Following the Supr eme Court’s recent decision in People v. Rodriguez (2012) 55 Cal.4th 1125 ( Rodriguez ), we conclude the evidence wa s insufficient to support the

1 All further undesignated statutory references are to the Penal Code.2 gang participation charge but sufficient to support the sentencing enhancements. We reject appellant’s other claims.
PROCEDURAL BACKGROUND A January 2010 supplemental petition under section 602 of the Welfare and Institutions Code, filed in Contra Costa Count y Superior Court, alleged that appellant, already a ward of the court, committed the follo wing offenses: five co unts of assault with a firearm (§ 245, subd. (a)(2); counts one through five) involving personal use of a firearm (§ 12022.5, subd. (a)(1)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), each count corresponding to a different victim; one co unt of active participation in a criminal street gang (§ 186 .22, subd. (a); count six); and one count of shooting at an occupied motor vehicle (§ 246; count seven) fo r the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). On November 24, 20 10, the juvenile court sustaine d all allegations of the petition after a contested jurisdictional hearing. In January 2011, the court continued appellant’s juvenile wardship and set the maximum term of confinement at eight years. This appeal followed.
FACTUAL BACKGROUND 2 On November 12, 2009, M.N ., a student at Antioch High School, got a ride home
from school with L.F. Also in the car, a green Honda Civic, were R.D., J.R., and A.V. After leaving the school, they encountered appellant and an unidentified companion and got into an argument; L.F. wa s in the driver’s seat of his car and appellant and his companion were walking on the other side of the street. Appellant’s companion produced a machete and used it to threaten L.F. L.F. began to drive away, and appellant removed a gun from his waist area.

2 On appeal we are obligated to view the eviden ce in the light most favorable to the juvenile court’s orders and to presume in their support the existence of every fact the court could reasonably deduce from the evidence. ( In re V.V. (2011) 51 Cal.4th 1020, 1026.) Our factual summary reflects this standard of review. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1056, fn. 1.)3 M.N. saw appellant run towards the ca r with the gun, ducked, and heard two gunshots. Before the shooting, J.R. saw appellant make a hand movement by placing his four fingers sideways and tu cking his thumb in his palm, indicating the number four. Appellant told L.F., “let’s go to 14th [Street]. And there we’ ll kick some ass.” J.R. saw appellant draw a gun. J.R. ducked and he heard two shots as L.F. drove the car away. At 2:56 p.m. on November 12, 2009, Antioch Police Officer Ryan Andelin was parked in a patrol car when he heard two gunshots. He then saw a green Honda Civic speed by his location. Officer Andelin dr ove up behind the Honda, and the Honda pulled over. The front passenger exited the Honda and told the officer someone had shot at the
car. The officer could see bullet holes in the rear left window and the back of the car.
Officer Andelin searched all of the occu pants of the car but found no weapons. Later that day, Officer Andelin searched appellant’s bedroom. He found a white piece of paper with the word “Norte” written tw ice in red and a rum bottle with the words
“Norte XIV” marked in red. Antioch Po lice Detective James Stenger, an expert on gangs, testified he believed appellant was a Norteño gang member. He based his opinion on a four dots tattoo on appellant’s hand, appe llant’s “Norteño-specific haircut,” the hand sign appellant flashed before the shooting, appellant’s reference to 14th Street, the Norteño symbols found in appellant’s bedroo m, appellant’s frequent association with Norteño gang members, and information that appellant had relatives who were Norteño gang members.
DISCUSSION
I. The Juvenile Court Did Not Err in Rela tion to the Competency Determination Appellant contends the juvenile court made several reversible errors in relation to the determination of his compet ency to stand trial. He co ntends he was constitutionally entitled to appointment of a ne uropsychologist, the trial court abused its discretion in concluding the appointed psychologist was qua lified, and the determination that appellant was competent is not supported by substantial error and ba sed on an incorrect legal
standard.4 A. Background On July 12, 2010, counsel for appellant expressed doubt about appellant’s competency to assist in his defense due to information coun sel had received regarding an injury suffered by appellant in December 2 003. In particular, counsel informed the juvenile court that appellant was struck in the forehead with a bat on that occasion, and appellant informed a police officer that he suffered from headaches as a result of the injury. Counsel indicated his interactions with appellant also underlay his request, although he did not provide any specific info rmation. Counsel conc luded, “I do believe that there’s enough information here th at should lead us . . . to appoint a neuropsychologist to perform the necessary test s to determine whether he is competent to proceed in the jurisdictional hearing.” Th e juvenile court susp ended proceedings and ordered the appointment of an expert to eval uate appellant’s competency. After counsel reviewed a list of experts, the court appointed psychologist Dr. Paul Good to evaluate appellant and provide a report. On August 27, 2010, Dr. Good submitted his report. The doctor reported that appellant conversed appropriately and gave no i ndication of severe mental illness or gross cognitive deficits. Appellant’s “thought process was clear, cohe rent and goal directed.” Appellant was “engrossed” in his case and the testing showed he demonstrated an awareness and adequate understanding of the proceedings. The doctor commented, “Whatever cognitive impairment he may have , they do not appear to be of such proportion as to be grossly interfering with his thinking on the issues.” The doctor concluded that appellant “is competent to be adjudicated at the present time.” On September 17, 2010, appellant moved for the appointment of a neuropsychologist, to “conduct[ ] necessary psychological evaluations and assessments, and testify, if necessary, at the competency he aring or other proceedi ngs in this case.” Counsel submitted a declaration in support of the motion. The declaration relayed information provided by Dr. Patricia Weiss, a neuropsycho logist, that the type of head injury suffered by appellant “may result in significant lo ng-term damage, including, but not limited to, [appellant’s] ability to exerci se judgment, engage in rational thinking,5 evaluate cause and effect , and develop normally, wh ich would comprise overall functioning.” Counsel asserted that appella nt “has struggled in structured school environments since his head injury” and “expe riences migraines on [a] regular basis that he attributes to his head inju ry.” On October 1, it was ag reed that the juvenile court
would rule on the motion after Dr. Good had te stified at appellant’s competency hearing. On November 15, 20 10, the date of the competency hearing, appellant moved “for reconsideration [of] appointme nt of [a] qualified expert.” 3 The motion was supported by a declaration from appellant’s counsel that repeated many of the averments in his September 17 declaration. Re garding the 2003 injury, the declaration asserted that appellant “received no treatment for his h ead injury” an d that he stayed home from
school for two months. At the competency hearing, Dr. Good testified he is a clinical and forensic psychologist, but not a neuropsychologist. He does not do neurological testing. For 15- 20 years he has been on the court panel of ps ychologists and psychiatrists in six Bay Area counties. He has conducted 700-1,000 comp etency evaluations and testified regarding competency 40-50 times, 5-10 of which were juvenile cases. He has not testified regarding traumatic brain injury, although he has worked on cases involving such injury;
he could not recall whethe r any of those were juvenile case s. He had specialized training in the late 1990s regarding juvenile competen cy and he keeps abreast of published works on juvenile competency issues. He was familiar with the pu blished work suggesting that “there are developmental immaturities that ca n interfere with a juvenile’s understanding of competency.” He also pointed out that he has had a “lot of experience with adolescence,” in both forensic and clinical c ontexts. He was not familiar with a specific test to assess juvenile co mpetency, but he did not th ink his opinion would be any
different had he used such a te st. He stated, “if you consider [appellant] as an adult, he would have been competent without any shad ow of a doubt in my mind.” Dr. Good did

3 Although the motion was styled a motion for r econsideration, it is not clear whether the juvenile court had denied the original Se ptember 17 motion at the time the motion for “reconsideration” was filed.6 not keep abreast of developments in Ca lifornia case law on competency, but he was
familiar with the standard of Dusky v. United States (1960) 362 U.S. 402 ( Dusky ) (see part I(D), post ).
Dr. Good testified that the tests he administered in evaluating appellant for competency were “not developed to identify a neurological deficit. However, if a person has a deficit that impairs their competence, th en I would pick it up in terms of the -- the data showing incompetence on a particular answer.” Dr. Good reviewed the medical report describing appellant’s injury to the head from a bat. From the description of the injury in the report, it did not appear likel y appellant had suffered neurological injury. The juvenile court deemed Dr. Good qualif ied as an expert in the evaluation of competency. Dr. Good testified that appellant is competent. In particular, appellant has the ability to consult with co unsel and assist in his defense, and he has a rational understanding of the proceedings and the nature of the ch arges against him. In fact, Dr. Good testified appellant is “more competen t than many adults that I have found competent.” Dr. Good did not see any signs of developmental immaturity that would interfere with his competence. Regarding the possibility of neur ological injury, he testified appellant’s counsel did not provide him anything that suggested there was such injury, and even if ther e were such injury it did not inte rfere with appellant’s competence. The juvenile court denied the motion for reconsideration regarding appointment of a neuropsychologist. The court found appe llant was competent based on Dr. Good’s undisputed testimony. Amon g other things, the court stated, “I think Dr. Good’s testimony . . . was quite clear -- that if there was some neurological damage . . . then that damage would have shown up somehow in hi s assessment and there was no evidence that there was such damage that would impair hi s competence. [¶] And so I think that Dr. Good did take into account assessing for neurological problems that might impair [appellant’s] competency, but his te stimony is that he found none.”7 B. Appellant Did Not Have a Right To Appointment of a Neuropsychologist Appellant contends he was constitutionally entitle d to appointment of a neuropsychologist to determine his competen cy. His claim is based on two established constitutional rights. First, the criminal trial of an incompetent defendant violates due process. ( Medina v. California (1992) 505 U.S. 437, 453.) “Sim ilarly, a child subj ect to delinquency proceedings has a due process right to a competency hearing.” ( In re Christopher F. (2011) 194 Cal.App.4th 462, 468 ( Christopher F .); see also Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857 ( Timothy J .).) Second, “[a] criminal defendant has the due process right to the assistance of expert witnesses, including the right to cons ult with a psychiatrist or psychologist, if necessary, to prepare his defense. [Citation. ] The Sixth and Fourteenth Amendments to the United States Constitution also guarantee a defendant’s right to present the testimony of these expert witnesses at trial. [Citation.]” ( People v. San Nicolas (2004) 34 Cal.4th 614, 661-662.) That right is rooted in the proposition that “a criminal trial is fundamentally unfair if the State proceeds ag ainst an indigent defendant without making
certain that he has access to the raw material s integral to the building of an effective defense.” ( Ake v. Oklahoma (1985) 470 U.S. 68, 77.) T hus, the United States Supreme
Court “has often reaffirmed that fundamenta l fairness entitles indigent defendants to ‘an adequate opportunity to pres ent their claims fairly with in the adversary system,’ [citation]. To implement this principle, [the Court has] fo cused on identifying the ‘basic tools of an adequate defense or appeal,’ [cita tion], and [has] required that such tools be provided to those defendants who can not afford to pay for them.” ( Ibid. ) The right to the assistance of a psychiatric expert applies e qually in California juvenile delinquency proceedings. ( Tyrone B. v. Superior Court (2008) 164 Cal.App.4th 227, 231 ( Tyrone
B. ).) Applied in the juvenile delinquency context, those two rights—to a competency determination and to the assistance of a ps ychiatric expert where necessary—require the appointment of a psychiatric expert to assess a minor’s competency where it is in doubt.8 ( Tyrone B. , supra , 164 Cal.App.4th at p. 231.) “ ‘ “Counsel cannot effectively represent
a defendant who is unable to understand the proceedings or to rationally assist him.” [Citations.]’ [Citation.]” ( Ibid. ) But appellant goes further. He contends his constitutional right to the assistance of a psychiatric expert to determine competen cy obligated the tria l court to appoint a neuropsychologist to assess his competency. Appe llant’s authorities do not support his argument. The most pertinent case cited by appellant, Doe v. Superior Court (1995) 39 Cal.App.4th 538 ( Doe ), disapproved on another ground in James G. v. Superior Court (2000) 80 Cal.App.4th 275, 283-284, does not suggest that a defendant has the right to determine the specific qualifications of appointed experts. In Doe , a death penalty case, the defendant sought appointment of an expert on Battered Woman Syndrome (BWS) and Post Traumatic Stress Disorder (PTSD). ( Doe , supra , 39 Cal.App.4th at p. 541.) The Court of Appeal held that, where the de fense counsel “presented facts sufficient to demonstrate [defendant’s] need for a psychiat rist or psychologist with expertise in the fields of BWS and PTSD,” the defendant’s c onstitutional right to “ ‘access to a competent psychiatrist’ ” who “ ‘will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense, ’ ” required the trial court to appoint an expert with some expertise in those areas, ev en if such an expert could not be found on the court’s panel. ( Id. at pp. 543, 546, quoting Ake v. Oklahoma
, supra , 470 U.S. at p. 83.) In the present case, appellant was entitled to an expert regarding competency, and
the trial court found that Dr. Good had the requisite expertise. (Cf. Doe , supra , 39 Cal.App.4th at p. 546 [no ev idence showed whether any panel experts had experience with BWS and/or PTSD].) Although the reco rd shows that appellant suffered a serious head injury as a child, unlike the defendant in Doe , appellant did not show that neurological testing was necessary to the competency determina tion. His motion for appointment of a neuropsychologist was supp orted only by a declaration from his counsel including hearsay statements about what Dr. Weiss told counsel. As described in the declaration, Dr. Weiss’ hearsay opinion th at appellant’s injury could affect his9 competency was not based on any current behavior by appellant suggestive of neurological damage. Defense counsel’s declaration did not indicate that appellant had demonstrated any difficulty in assisting in the defense. (Cf. Tyrone B. , supra , 164 Cal.App.4th at p. 2 30 [“Counsel explai ned that petitioner did not have a ‘complete or even near complete grasp’ of court processes, participants, or potential ramifications.”].) Appellant did not show that any neurologi cal problems resulting from a head injury
would not manifest themselves in a comp etency examination conducted by a psychologist not specialized in neurology. Moreover, before denying the request for appointment of Dr. Weiss, the juvenile court heard the testimony of Dr. Good on the issue of competency. Dr. Good testified appellant was competent with a significant degree of certainty. Also, although he admitted his assessment was not designed to identify neurological de ficits, he testified that if any such deficits existed and impaired appellant’s competency, he would have seen the impact of such defi cits in his examination. In essence, appellant c ontends he was entitled to a neuropsychologist to assess his competency simply be cause he suffered a significant h ead injury seven years earlier, which hypothetically could aff ect competency, regardless of whether there is any present indication he is not competent to assist in hi s defense. We disagree. Absent a sufficient showing of circumstances making clear the need for a neurological examination, the juvenile court did not err in failing to appoint a neurological psychologist to assess appellant’s competency. (See Ake v. Oklahoma
, supra , 470 U.S. at p. 86 [listing
numerous circumstances that made it “clear” that the defendant’s mental state “was a substantial factor in his defense”].) Appellant does not have a “constitutional right to choose a psychiatrist of his personal liking[.]” ( Ake v. Oklahoma
, supra , 470 U.S. at p. 83.) Instead, he has the right to access an expert who is “competent” to a ddress the relevant ps ychological question at issue, in this case his competency. ( Ibid. ) Appellant has not shown, in the circumstances10 of this case, he was constitutionally entitled to the assistance of a neuropsychologist to address the issue of competency. 4

C. The Juvenile Court Did Not E rr in Finding Dr . Good Qualified Appellant contends that, even if he was not entitled to appointment of a neuropsychologist, the juvenile court abused its discretion in concluding that Dr. Good was qualified to render an expert opinion rega rding juvenile competency. In support of his argument, appellant asserts there have been major changes in California law governing juvenile competency resulting fro m “advances in scient ific understanding of development of the human brain during adol escence.” He argues Dr. Good was not qualified to render an opinion on competen cy that took into consideration those developments. We disagree. “A person is qualified to testify as an expert if he has special knowledge, skill, experience, tr aining, or education sufficient to qualify him as an expert on the subject to which his testimony rela tes.” (Evid. Code, § 720, subd. (a); People v.
Catlin (2001) 26 Cal.4th 81, 131.) The trial court is given considerable latitude in determining the qualifications of an exper t; its ruling will not be disturbed on appeal unless an abuse of discretion is shown. ( People v. Bolin (1998) 18 Cal.4th 297, 321-322.) A reviewing court may find error only if the witness “ ‘ clearly lacks qualification as an

4 The other cases cited by defendant are fa cially distinguishable. (See, e.g., Porter v. McCollum (2009) 558 U.S. ___ , ___ [130 S.Ct. 447, 453] [defense counsel ineffective where he failed to investigate and present evidence of defendant’s mental health or mental impairment as mitigation evidence in penalty phase of capital trial]; Abdul-Kabir v. Quarterman (2007) 550 U.S. 233, 237, 252-256, 263-264 [jury instru ctions improperly prevented jurors from considering releva nt mitigating psychological evidence in determination of whether to impose death penalty]; State v. Izaguirre (Idaho Ct. App. 2008) 145 Idaho 820, 823 [trial court erred in denying a request for a neuropsychological evaluation to support a motion for a senten ce reduction where psychologist’s affidavit “identified a number of factors gleaned fro m [the defendant’s] personal history and behavior that led [the psyc hologist] to suspect that ne urocognitive abnormalities may have affected [the defendant’s ] behavior and would affect the risk of future aggressive behavior”]; Fitzgerald v. State (Okla. Crim. App. 1998) 972 P.2d 1157, 1167 [the defendant “made a showing of need when he presented de tailed evidence, including a psychologist’s report. . .”].)11 expert[.]’ ” ( People v. Hogan (1982) 31 Cal.3d 8 15, 852, disapprove d on another ground
in People v. Cooper (1991) 53 Cal.3d 771, 836.) As detailed previously, Dr. Good has b een a panel psychologist for 15-20 years, conducted 700-1,000 competency evaluations , and testified regard ing competency 40-50 times. He has received specialized training on juvenile competency, has kept abreast of developments in juvenile comp etency, and is experienced in working with adolescents. That Dr. Good could have demonstrated greate r familiarity with the recent developments in research does not mean he was clearly unq ualified to render an op inion on appellant’s competency. It is not significant that Dr. Good was not familiar with three California Court of Appeal decisions inquired about by appellant ’s counsel during the competency hearing, because those cases did not change the Dusky standard (see part I(D), post ). Moreover, Dr. Good testified he did not see any sign s of developmental immaturity that would interfere with appellant’s co mpetency, which was the matter addressed in one of those decisions, Timothy J., supra, 150 Cal.App.4th 847. Another decision, Tyrone B., supra, 164 Cal.App.4th 227, held only that the juve nile court erred in failing to appoint an expert after the minor’s counsel expressed a doubt as to the mi nor’s competency; the juvenile court here did appoint an expert to assess co mpetency. The final decision, In re Ricky S. (2008) 166 Cal.App.4th 232, 236 ( Ricky S .), held the juvenile court erred in concluding that the minor was competent because he could ga in an adequate understanding “ ‘over time.’ ” In this case, Dr. Good testified that appellant had a present understanding of the charges an d proceedings. Notably, all three decisions applied the Dusky standard for determining co mpetency; Dr. Good demonstrat ed familiarity with that standard. ( Timothy J.
, supra , 150 Cal.App.4t h at p. 857; Tyrone B. , supra , 164 Cal.App.4th at pp. 230-231; Ricky S.
, supra , 166 Cal.App.4th at p. 234.) The juvenile court did not abuse its di scretion in finding Dr. Good qualified.
D. Substantial Evidence Su pports the Juvenile Court’ s Competency Finding Finally, appellant contends that the j uvenile court’s order finding appellant competent was not supported by substantial evidence. The claim is without merit.12 The standard for determining a defendant’s competency to stand trial was set forth
in Dusky
, supra , 362 U.S. 402, and the same standard applies in juve nile delinquency proceedings. “Under that standard, the inquiry is whether the defend ant ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” ’ ” ( Timothy J.
, supra , 150 Cal.App.4th at p. 857, quoting Dusky
, supra , 362 U.S. at p. 402.) The test “doe s not define incompet ency in terms of mental illness or disability . . . The question is cognitive, whether the defendant’s mental
condition is such that he or she lacks that degree of ratio nality required by law [citation] so as to have ‘the mental acuity to see, hear and digest the evid ence, and the ability to
communicate with counsel in helping prepare an effective defense.’ [Citation.]” ( Timothy J.
, supra , 150 Cal.App.4th at p. 860.) The juvenile court’s competency
determination is reviewed fo r substantial evidence. ( Christopher F., supra, 194 Cal.App.4th at p. 471; In re Alejandro G. (2012) 205 Cal.Ap p.4th 472, 480 ( Alejandro
G .).) Substantial evidence is evid ence that “inspires confidence and is of ‘ solid value.’ ” ( People v. Marshall (1997) 15 Cal.4th 1, 34.) It is not clear which party bears the burden of proof of competency ( Christopher F.
, supra , 194 Cal.App.4t h at p. 472; Alejandro G.
, supra , 205 Cal.App.4th at pp. 4 81-482); for the purposes of this appeal we assume respondent bore the burden. Appellant contends Dr. Good’s report and testimony do not reflect that he “inquired into or analyzed [a ppellant’s] cognitive developmen t with an eye to his ability to rationally assist his counsel. ” But the report and testimony did address cognitive development. For example, the report stated that appellant’s “thought process was clear, coherent and goal directed. His thought co ntent was appropriate to the situation and contained no preoccupations, obsessions, co mpulsions, delusions or exaggerated concerns. [Appellant’s] perceptions containe d no abnormalities su ch as auditory or visual hallucinations. His immediate memory was good and he recalled remote events easily. He displayed a concrete ability for abst ract thought.” In his testimony, Dr. Good specifically stated he did not see any signs of develo pmental immaturity that would13 interfere with appellant’s comp etency. There is no evidence to the contrary, showing that appellant has defects in his cognitive de velopment that aff ect his competency. Appellant also disputes Dr. Good’s statement that any neurological damage w ould have manifested itself in his testing of appellant. To wit, D r. Good explained that “if a person has a deficit that impairs their competence, then I would pick it up in te rms of the . . . data showing incompetence on a particular answer.” Even if Dr. Good was not qualified to identify any neurological defects, he was qualified to de termine whether appellant was incompetent, regardless of the cause of any incompetency. As the doctor explained, “you’re competent or not regardless of why[.]” Appe llate counsel’s skepticism is not evidence that can undermine Dr. Good’s testimony. As explained above, Dr. Good’s report and testimony showed that appellant was competent under the Dusky standard. Dr. Good’s evaluation showed that appellant had sufficient present ability to cons ult with his lawyer with a reasonable degree of rational understanding, and he had a ra tional as well as factual unders tanding of the proceedings against him. ( Dusky
, supra , 362 U.S. at p. 402; Alejandro G.
, supra , 205 Cal.App.4th at p. 481.) In fact, Dr. Go od testified appellant was more competent than many adults he had concluded met the competency standard , and the doctor related a story of how appellant had conducted his own legal research to dete rmine the maximum possible sentence applicable to the ch arges. This was not a close case on competency, and the
record is devoid of any evidence showing that appellant is incompetent. Instead, appellant’s claim on appeal depends entirel y on speculation that his childhood injury caused a neurological defect th at rendered him incompetent in a manner entirely invisible to the competency assessments employed by Dr. Good. We reject that speculation and conclude substantial evidence supports the trial court’s finding that appellant is competent. 5

5 Because the recent case law deve lopments have not altered the Dusky standard (see part I(C), ante ), we also reject appellant’s contention th at the trial court’s finding based on Dr. Good’s testimony “incorporates an inco rrect legal standard by reference.”14 II. Appellant’s Claims Regarding the Gang Charge and Sentencing Enhancements Appellant next challenges the sufficiency of the evidence to support the juvenile court’s findings on the count 6 charge of activ e participation in a crim inal street gang (§ 186.22, subd. (a); hereafter § 186.22(a)) an d on the gang sentencing enhancements (§ 186.22, subd. (b)(1); hereafter § 186.22(b)(1)) attached to counts one through five and seven. He contends that, in the circumstances of this case, the charge and enhancements could only be sustained if he committed the charged offens es in concert with another Norteño gang member, and there was insuffi cient evidence his companion was a gang
member. 6

“We review claims of insu fficient evidence by examining the entir e record in the light most favorable to the judgment below. [Citation.] We review to determine if
substantial evidence exists for a reasonable trier of fact to find the counts against the minor true beyond a reasonable doubt. [C itation.] Substantial evidence must be reasonable, credible, and of solid value. [C itation.] We also presume the existence of every fact the lower court could reasonably deduce from the evidence in support of its judgment. [Citation.]” ( In re Frank S. (2006) 141 Cal.A pp.4th 1192, 1196.)
A. Legal Background to Secti ons 186.22(a) and (b)(1) Section 186.22 is part of the Calif ornia Street Terrorism Enforcement and Prevention Act, also known as the STEP Act. (§ 186.20.) Section 186.22 contains two relevant provisions, a substantive offense in subdivision (a) and a sentence enhancement in subdivision (b)(1). Secti on 186.22(a) states in per tinent part: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pa ttern of criminal gang activity , and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang” shall be punished as a felony or misdemeanor. Sec tion 186.22(b)(1) provides, with exceptions not relevant here, that “any pe rson who is convicted of a fe lony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific

6 Appellant does not dispute he is a member of the Norteños and the Norteños is a criminal street gang within th e meaning of section 186.22.15 intent to promote, further, or assist in any criminal conduct by gang members, shall” be punished by an enhanced penalty consec utive to the punishment for the felony.
B. Under Rodriguez , Section 186.22(a) Required Proof of Action in Concert
The substantive offense defined in s ection 186.22(a) has three elements: [1] “Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive. . . . [2] ‘[K]nowledg e that [the gang’s] members engage in or have engaged in a pattern of criminal gang ac tivity,’ and [3] . . . that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ (§ 186.22(a).)” ( People v. Lamas (2007) 42 Cal.4th 516, 523.) In People v. Castenada (2000) 23 Cal.4th 743 ( Castenada ), the Supreme Court considered the meaning of the phrase “actively participates” in section 186. 22(a). The court said the Legislature was cognizant of the holding in Scales v. United States (1961) 367 U.S. 203 ( Scales ) “that ‘mere association with a group cannot be punished unless there is proof that the
defendant knows of and intends to further its illegal aims.’ ” ( Castaneda
, supra , 23 Cal.4th at p. 749.) “This explains why th e Legislature expressl y required in section 186.22(a) that a defendant not only ‘actively pa rticipates’ in a criminal street gang . . .,
but also that the defendant doe s so with ‘knowledge that [t he gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and that the defendant ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ These statutory elements necessa ry to prove a violation of section 186.22(a) exceed the due process requirement of personal gu ilt that the United States Supreme Court
articulated in Scales [.]” ( Castenada
, supra , 23 Cal.4th at p. 749.)
In Rodriguez , the Supreme Court considered whether a gang member who acts alone in committing a felony violates section 186.22(a). ( Rodriguez
, supra , 55 Cal.4th at p. 1128.) The Court overruled two Court of Appeal decisions, People v. Salcido (2007) 149 Cal.App.4th 356 and People v. Sanchez (2009) 179 Cal.App.4th 1297, that held that a gang member acting alone could violate sec tion 186.22(a) by prom oting or furthering his own felonious conduct. ( Rodriguez
, supra , 55 Cal.4th at p. 1137 & fn. 8.) Instead, the Supreme Court focused on the Legislatur e’s use of the plural noun “members,”16 reasoning: “Section 186.22(a) sp eaks of ‘criminal conduct by members of that gang.’ (Italics added.) ‘[M]embers’ is a plural noun. The words ‘pro motes, furthers, or assists’ are the verbs describing the defendant’s acts , which must be performed willfully. The phrase ‘any felonious criminal conduct’ is the direct object of these verbs. The prepositional phrase ‘by members of that ga ng’ indicates who performs the felonious criminal conduct. Therefore, to satisfy th e third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct. The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang memb er. (See § 186.22, subd. (i).)” ( Rodriguez
, supra , 55 Cal.4th at p. 1132.) Although the Supreme Court stated the statutory language was plain, it also considered the Legislature’s intent. Refere ncing the due process concerns discussed in
Castaneda and Scales , the court stated, in “requiring that a person commit an underlying felony with at least one other gang member,” the Legislature “sought to avoid punishing mere gang membership[.]” ( Rodriguez
, supra , 55 Cal.4th at p. 1134.) Rodriguez further explained, “It is established . . . that one need not have the specific intent to promote, further, or benefit the gang to violate se ction 186.22(a), nor must one commit a gangrelated felony. . . . [I]n considering the STEP Act, ‘the Legislature was careful to observe that “mere membership [in a gang] is not pu nishable under the bill. The United States Supreme Court has held that mere associati on with a group cannot be punished unless there is proof that the defendant knows of and intends to further its illegal aims. [Citation.] This bill imposes sanctions on activ e participation in the gang only when the defendant knows about and specifically intends to further the criminal activity; or where
he knows of the criminal activ ity and willfully promotes, fu rthers, or assists it.” ’ [Citation.] The Legislature thus recogn ized the constitutional prohibition against punishing mere gang membersh ip, and its use of the plural ‘members’ in section 186.22(a) reflected the Legislature’s attemp t to provide a nexus between the felonious conduct and gang activity that av oided the concerns raised in Scales . [Citation.] The17 Attorney General’s interpretation that a gang member may satisfy th e statute simply by committing a felony alone reads out of the stat ute the nexus between defendant’s conduct and gang activity that the Legi slature put in the statute by requiring one act with another gang member.” ( Rodriguez
, supra , 55 Cal.4th at p. 1135.) In the present case there was no substan tial evidence appellant’s companion was a Norteño gang member. There was no evidence he wore any gang in dicia, flashed gang signs, or made comments including gang refere nces. Even if the juvenile court could reasonably infer the companion was aware a ppellant was a member of the Norteños based on comments made by appellant and th e gang sign flashed by appellant, that did not provide an adequate basis for the court to infer appellant’s companion was a gang
member , rather than merely a frie nd of appellant’s or a nonmem ber affiliate of the gang. (See In re Daniel C. (2011) 195 Cal.App.4th 1350, 1362 [referring to finding that minor was a gang “affiliate” rather than a “gang member”].) Gang expert Stenger’s testimony that a police detective told him a certain Norteño gang member “was identified as possibly being the subject with the machete” also did not constitute substantial evidence. Although the trial court qualified Stenger as an expert on criminal gang activity (see Evid. Code, § 720, subd. (a)), that did not encompass rende ring an opinion on whether appellant’s companion was a par ticular individual. In any event, Stenger did not render any such opinion, and the uncertain, unexpla ined, and uncorroborated hearsay related in his testimony did not constitute substantial evidence. (See In re Lucero L. (2000) 22 Cal.4th 1227, 1244-1245 [“Except in those instances recognized by statute where the reliability of hearsay is established, ‘hearsay evidence alone “is insu fficient to satisfy the requirement of due process of law, and me re uncorroborated hearsay does not constitute substantial evidence. [Cita tion.]” ’ [Citations.]”].)18 Because there was no substantial evid ence appellant’s co mpanion was a gang member, we must reverse the juvenile court’ s finding sustaining the gang participation charge. 7

C. Section 186.22(b)(1) Did Not Requ ire Proof of Action in Concert Section 186.22(b)(1) cont ains two prongs: proof that a felony was committed (1) “for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) “with the specific intent to promote, fu rther, or assist in any criminal conduct by gang members[.]” (§ 186.22(b)(1); see also People v. Albillar (2010) 51 Cal.4th 47, 59.) Appellant does not dispute there is sufficient ev idence on the first pr ong, that the assault
was committed for the benefit of the Norteños. Instead, he co ntends there is insufficient evidence regarding the intent prong which, he argues, requires a showing he promoted, furthered, or assisted criminal conduc t by another gang member. Although Rodriguez was not directly confronted with the questio n of whether section 186.22(b)(1) requires a showing that the defendant acted in concert with other gang members, the Supreme Court made it clear that no such showing is necessary to imposition of the sentencing
enhancement. Rodriguez pointed out that the gang participa tion offense and the gang sentencing enhancement “strike at different things.” ( Rodriguez
, supra , 55 Cal.4th at p. 1138.) In particular, section 186.22(b)(1) punishes felonies committed w ith the specific intent to benefit the gang, while section 186.22(a) punishes action in concert between gang members regardless of whether the felony was gang-related. ( Rodriguez
, supra , 55 Cal.4th at p. 1138.) In rejecting a contenti on it would be absurd to exempt a lone actor gang member from the coverage of section 186.22(a), the Supreme Court made it clear it
did not interpret section 186.22(b)(1 ) as requiring proof of acti on in concert. The court stated, “A lone gang member who commits a felony will not go unpunished; he or she will be convicted of the underlying felony. Further, such a gang member would not be

7 We need not and do not address appellant’s argument that, with respect to the second element of section 186.22(a), “no evidence wa s adduced as to [appellant’s] knowledge of the gang’s criminal activities.”19 protected from having that fe lony enhanced by section 186. 22(b)(1), which applies to ‘any person who is convicted of a felony comm itted 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 cr iminal conduct by gang member s. . . .’ Because the gang enhancement under section 186.22(b)(1) requir es both that the fel ony be gang related and that the defendant act with a specific intent to promote, further, or assist the gang, these requirements provide a nexus to gang activity su fficient to alleviate due process concerns. [Citation.] Furthermore, we note that th e lone perpetrator’s punishment under the sentencing enhancement would be more substa ntial than that imposed for a defendant who violates section 186.22(a).” ( Rodriguez
, supra , 55 Cal.4th at pp. 1138-1139, fn. omitted.) In a concurrence, Justice Baxter pointed out that the relevant language in sections 186.22(a) and 186.22(b)(1) is not identical, justifying diffe rent conclusions with respect to whether proof of acti on in concert is required. ( Rodriguez
, supra , 55 Cal.4th at p. 1139, conc. opn. of Baxter, J.) Even though Rodriguez’s comments on section 186.22(b )(1) are dicta, the court’s dicta generally should be followed, particul arly where the comments reflect the court’s considered reasoning. ( Hubbard v. Superior Court (1997) 66 Cal.A pp.4th 1163, 1169 [“When the Supreme Court has conducted a t horough analysis of the issues and such analysis reflects compelling logic, its di ctum should be followed.”]; see also In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403.) In the present case, the court’s construction of section 186.22(b)(1) was not ta ngential; it pointed to the availability of the sentencing enhancement as reassurance that its interpre tation of section 186.22(a) would not leave gang member s who commit solo gang-relate d felonies inadequately punished. ( Rodriguez
, supra , 55 Cal.4th at p. 1139.) Beca use the court’s statements in dicta were not “inadvertent” or “ill-considered” ( Jaramillo v. State of California (1978) 81 Cal.App.3d 968, 971), we follow Rodriguez in holding that a showing of action in concert between gang members was not nece ssary to sustain the section 186.22(b)(1)20 gang enhancements. 8 We affirm the juvenile court’ s findings sustaining the sentencing enhancements to counts one through five and seven.
III. Appellant’s Discriminatory Enforcement Claim Appellant contends the findings on the ga ng participation count (§ 186.22(a)) and the gang sentencing enhancements (§ 1 86.22(b)(1)) should be reversed because enforcement of those provisions of the STEP Act (§ 186.20 et seq.) constitutes discriminatory prosecution. A claim of discri minatory prosecution “goes . . . to a defect
of constitutional dimension in the initiation of the prosecution. [Citations.] The defect lies in the denial of equal protection to pers ons who are singled out for a prosecution that is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ [Citation.]” ( Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831.) “[T]he defendant must prove: (1) ‘t hat he has been deliberately singled out for prosecution on the basis of some invidious cr iterion:’ and (2) that ‘t he prosecution would not have been pursued exce pt for the discriminatory design of the prosecuting authorities.’ [Citation.]” ( People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 348.) Appellant contends the a llegations under the STEP Ac t constituted discriminatory prosecution because Detective Stenger had received substan tial training relating only to Hispanic gangs. We conclude the claim is not cognizable on appeal because the issue was not raised in the juvenile court. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-881 ( Sheena K .) The Supreme Court has directed that claims of discriminatory prosecution should be raised through a pr etrial motion to dismiss. ( Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293-294, fn. 4.) Appellant argues this court can resolve his claim because

8 Our holding is also supported by People v. Hill (2006) 142 Cal.App.4th 770, which concluded that the section 18 6.22(b)(1) sentencing enhancem ent could be imposed based on a defendant’s intent to promote his own cr iminal conduct in the charged offense. ( Id
., at p. 774 [“There is no requirement in section 186.22, subdiv ision (b), that the defendant’s intent to enable or promote cr iminal endeavors by gang members must relate to criminal activity ap art from the offense defendant commits . . . . Therefore, defendant’s own criminal threat qualified as the gang-rela ted criminal activity. No further evidence on this element was necessary.”].)21 the forfeiture rule does not apply to “co nstitutional challenges that present ‘pure questions of law[.]’ ” ( Sheena K.
, supra , 40 Cal.4th at p. 884 .) However, appellant’s claim does not present a pure question of law because there are numerous facts that are potentially relevant to his claim. For example, the record does not disclose what training Detective Stenger received re garding non-Hispan ic gangs, whether other local law enforcement officers were experts on non-Hi spanic gangs, whether there are local nonHispanic gangs, whether appellant’s prosecutio n under the STEP Act was causally related to the training received by Det ective Stenger, and how often th e STEP Act is used in the prosecution of any non-Hispanic gangs. Appellant’s claim of discriminatory pros ecution has been forfeited. Appellant has
also forfeited his claim of ineff ective assistance of counsel fo r failure to support the claim with reasoned argument and citations to authority. ( Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
IV. The Juvenile Court Did Not Err in its Disposition Appellant contends the juvenile court abused its discretion in committing him to the Division of Juvenile Justice (DJJ) 9 because there was insuffi cient evidence to support a finding of probable benefit to him. In reviewing a DJJ commitment for abuse of discretion ( In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 ( Angela M .), we must indulge all reasonable inferences to support the juvenile court’s de cision and will not dist urb its findings if they are supported by substantial evidence. ( In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) The record must demonstrate both a probable benefit to the minor by a DJJ commitment and the inappropriateness or in effectiveness of less restrictive alternatives. ( Angela M.
, supra , 111 Cal.App.4th at p. 1396 .) These criteria must be considered in conjunction with the purposes underlying the juvenile cour t law, including the “protection and safety

9 The California Youth Authority (CYA) wa s renamed the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, effective July 1, 2005. (Gov. Code, §§ 12838, 12838.5, 12838.13; see also In re Jose T. (2010) 191 Cal.App.4th 1142, 1145, fn. 1.)22 of the public” (Welf. & Inst. Code, § 202, subd. (a)) and “care, treatment, and guidance that is consistent with [the minors’] best in terest, that holds them accountable for their behavior, and that is appropriate for their circumstances.” (Welf. & Inst. Code, § 202, subd. (b).) (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) “Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placemen ts have been attempted. [Citations.] A
DJJ commitment is not an abuse of disc retion where the evidence demonstrates a probable benefit to the minor from the commitment and less re strictive alternatives would be ineffective or inappropriate. [Citation.]” ( In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) “[I]t is not merely the programs at DJJ which provide a benefit to [a] minor, but the secure setting as well.” ( In re Jonathan T. (2008) 166 Cal.A pp.4th 474, 486.) In the present case, the probation report pointed out that appellant had been on probation since he was 12 year s old and had committed a range of criminal offenses. The report recommended, “Due to the minor’s on-going criminal behavior, complete disregard for the safety of others and for the protection of the community it is
recommended the minor be removed from the comm unity and placed in a secure facility. The [DJJ] offers this option and is recommend ed for this minor. With a commitment to the DJJ, the minor will have the opportuni ty to benefit from the reformatory and
educational services offered there. While at the DJJ, the minor will be contained in a secure, highly structured and closely superv ised environment. He will be given the opportunity to complete his high school ed ucation and participate in counseling to address his behaviors, the impact of crime on its victims, and ot her socialization and decision making skills. Hopefully the minor will take this opport unity to examine his behavior and develop appropriate ways on how to handle himself in the community.” The juvenile court followed that recommendation in stating, “I do find local resources are inappropriate in rehabilitation of this young ma n. I find he’s too da ngerous. We do not have a secure placement for a length of tim e that would provide the rehabilitation he needs and the safety to the community. I do find the mental and physical qualifications23 of the minor will render it probable that he ’ll be rehabilitated and helped by the reformatory and discipline or treatment provided by the [DJJ].” The court’s commitment of appellant to DJJ was well within its discretion. Appellant’s offenses and criminal history s upport the court’s finding that he was too dangerous to be confined in a less structured facility. Th e court also found that DJJ would be beneficial to appella nt. Appellant disputes the c ourt’s finding that his mental qualifications made a DJJ commitment suitable. He contends the court could not have
made the determination in the absence of re sults from a neuropsychological examination. However, the juvenile court had the benefit of a psychological examination by Dr. Good that found that appellant was competent and uncovered no evidence of significant mental deficiencies. Appellant failed to present any evidence to the court to the contrary, beyond the bare fact of his injury over seven years before the date of the disposition. Appellant has presented no authority that the court was required to obtain a neurological report before making a disposition in the circumstances of this case. Any other objections to the disposition have been forfeited for lack of support by reasone d argument with citations to authority. ( Badie v. Bank of America
, supra , 67 Cal.App.4th at pp. 784-785.)24 DISPOSITION We reverse the juvenile court’s jurisdicti onal finding on count six and remand for further proceedings consiste nt with this decision.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.