1

Filed 5/23/24 In re J.W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 ONE

In re J.W., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.W.,

Defendant and Appellant.

 A164366

 (San Francisco City & County

 Super. Ct. No. JW196215)

J.W. appeals from orders of the juvenile court finding he committed 

first degree murder and attempted murder and committing him to a secure 

youth treatment facility (SYTF) for a time not to exceed his 25th birthday. 

Appellant asserts numerous grounds for the reversal of the court’s orders. 

We affirm in part and reverse in part.

BACKGROUND

The San Francisco District Attorney filed a wardship petition (Welf. & 

Inst. Code, § 602), alleging that on September 8, 2019, appellant, then age 17, 

committed murder (Pen. Code,1 § 187, subd. (a)), with a lying-in-wait 

1 All further undesignated statutory references are to the Penal Code.
2

allegation (§ 190.2, subd. (a)(15) [count I]), attempted murder with an 

allegation of premeditation and deliberation (§§ 187, subd. (a), 664 [count II]), 

assault with a semiautomatic firearm (§ 245, subd. (b) [count III]), two counts 

of carrying a loaded firearm (§ 25850, subd. (a) [counts IV & V]), carrying a 

concealed firearm in a vehicle (§ 25400, subd. (a)(1) [count VI]); and two 

counts of possession of a firearm by a minor (§ 29610) [counts VII & VIII]). 

With respect to the first three charges, the petition alleged appellant was 

armed with and personally and intentionally used a firearm, and inflicted 

great bodily injury. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. 

(a), 12022.53, subds. (c)-(d).) All offenses were alleged to have been 

committed on September 9, 2019, with the exception of count VIII, which was

alleged to have been committed on September 25, 2019.

The following evidence was admitted at the contested jurisdictional 

hearing, which took place over the course of 14 days:

On September 2, 2014, appellant’s older brother R.W. was fatally 

stabbed outside a liquor store in San Francisco. Appellant, then age 12, 

witnessed the stabbing; appellant identified Luis Q. as the perpetrator. Luis

was arrested and charged with causing R.W.’s death. However, several 

months later, the district attorney’s office dropped the charges.

On September 8, 2019, surveillance video recovered from the Bay 

Bridge Toll Plaza captured appellant driving his mother’s 2005 Acura TL

through the westbound toll lane at 7:56 p.m. On that day, Luis and his 

girlfriend, A.B., had been helping A.B.’s mother with a residential move 

within the Excelsior District. They used a moving van and Luis’s car to make 

multiple trips between the two residences; they finished sometime between 

8:00 p.m. to 9:00 p.m. Luis and A.B. were then going to meet A.B.’s mother 

at a restaurant in Glen Park.
3

Video footage retrieved from France Street, shows an Acura TL 

traveling past the moving van used by Luis and A.B. more than once. The 

Acura TL (the Acura), had characteristics consistent with model years 2004 

to 2008: two side marker lights (one on the front fender just below the right 

passenger side mirror and a second on the upper rear quarter panel); a 

bodyline (that ran from the front passenger side along the front side marker 

to the front passenger door handle, to the rear passenger door handle, and 

connected to the rear quarter panel side marker light); and five-spoke wheel 

rims.

Video footage captured an Acura following Luis’s car to a gas station 

located at Geneva Avenue and Naples Street. The driver double-parked the 

Acura, activated its hazard lights, and waited near the intersection of Naples 

Street and Geneva Avenue while Luis inflated his car’s tires at the gas 

station.

Additional surveillance footage, shows the Acura following Luis’s car as 

it drove away from the gas station, turned right onto Athens Street, and 

stopped on a residential street. A few seconds later, the driver parked the 

Acura a short distance behind Luis’s car, ran to the driver’s side door of Luis’s 

car, and fired 21 rounds from an FN Five-Seven semiautomatic pistol into the 

car, killing Luis and injuring A.B. The surveillance video shows the shooting 

occurring at 9:06 p.m.

Shortly thereafter at 9:19 p.m., a license plate reader and surveillance 

video captured appellant in his mother’s Acura traveling east on the Bay 

Bridge near Treasure Island. The time to drive to that location from the 

crime scene was approximately nine minutes.

A.B. observed the male shooter’s eyes when they were illuminated by 

the muzzle flash. The shape of the shooter’s eyes was similar to the shape of 
4

appellant’s eyes. A.B. called 911. She told the operator she did not know the 

identity of the shooter. She later described the shooter as a “light-skinned” 

Hispanic male. Appellant was a “mixed race” male, with a “light 

comple[xion].”

Responding officers collected 21 cartridge casings from the scene, all of 

which were 5.7-caliber. Forensic testing revealed the cartridge casings were 

fired from the same firearm—an FN Five-Seven semiautomatic handgun.

An FN Five-Seven semiautomatic handgun has a capacity of 21 rounds, 

consisting of 20 rounds in the magazine plus one round in the chamber. It is 

considered to be a somewhat expensive and rare gun, due to its unique 

characteristics (including markings on the pistol grip and rear slide, the 

curvature of the pistol grip, the magazine style, and side switches).

On September 18, 2019, a video was posted to the Instagram account of 

Joey La Pierre (also known as Joe or Joey Vega), depicting appellant sitting 

next to what appeared to be an FN Five-Seven pistol in the rear passenger 

seat of a vehicle.

Police arrested appellant on September 25, 2019. Police found an 

operational and loaded nine-millimeter Glock handgun with a laser sight and 

extended magazine clip in a backpack in appellant’s possession.

DISCUSSION

I. Motion for Mistrial

Appellant contends the court abused its discretion by denying a motion 

for mistrial based on the prosecution’s failure to disclose all of A.B.’s prior 

statements and for failing to impose a “predetermined” sanction to exclude 

non-discovered witness statements. The People appear to concede the 

discovery violation, but maintain evidentiary sanctions were not required, 

and any error in denying the mistrial motion was harmless.
5

A. Additional Background 

Prior to the jurisdiction hearing, the prosecution sought and obtained 

an order for the exclusion of “any evidence not previously discovered to the

prosecution” and for discovery of any unrecorded oral statements of witnesses 

communicated to the defense.

On November 30, 2020, A.B. testified at the jurisdictional hearing as 

the sole percipient witness to the murder and attempted murder. On direct 

examination, the only person she implicated as the shooter was Joey Vega.

Then, for the first time on cross-examination, A.B. said she had made 

statements to the District Attorney’s office suggesting that appellant could 

also be the shooter.

A.B. said she saw appellant at a January 10, 2020 pre-trial hearing, 

where she learned he was being charged in connection with Luis’s murder.

Defense counsel asked A.B., “At any time after being [at the January 10, 

2020 hearing], and seeing [appellant] did you say to any policeman, . . . any 

District Attorney or anything, hey, that’s the guy who did it?” A.B. answered, 

“Yes.” When asked whom she spoke to, A.B. responded, “To Maria and to 

whoever else I talked to in the DA’s office. I had many meetings with them. 

Even Chesa.” Defense counsel immediately requested a sidebar conference, 

which was denied. 

Upon resuming cross-examination, defense counsel asked A.B., “There 

is nothing right now as you sit there looking at [appellant] that indicates that 

he could be the shooter,” to which she responded, “The shape of his eyes.” 

During redirect, A.B. testified that as it was dark outside, she had only been 

able to see the shooter’s eyes during the flashes of light from the gunshots;

she was not focused on the shooter, but had been focused on Luis and the 

unfolding events.
6

Defense counsel moved for a mistrial based on A.B.’s testimony about 

her prior statements, stating, “I never received any discovery of any report 

that was ever made of any memorandum,” and concluding, “I think that I 

have been severely prejudiced by that. I have never been provided anything 

in discovery. I’m not ascribing fault to [the prosecutor] at all.” The 

prosecutor responded he was unaware that A.B. had made any prior 

statements that appellant’s eyes were “similar to the eyes of the shooter.”

The trial court ordered the prosecutor to look into whether there was 

“any discovery regarding this conversation between Ms. Reynoso and [A.B.]” 

and “to turn that over” to the defense. The court denied the motion for a 

mistrial.

B. Applicable Law 

Section 1054.1 requires the prosecutor in a criminal case to disclose 

certain information, including all “[r]elevant written or recorded statements 

of witnesses or reports of the statements of witnesses whom the prosecutor 

intends to call at the trial.” (§ 1054.1, subd. (f).) Discovery in juvenile 

delinquency cases is not governed by the discovery disclosure provisions of 

section 1054, et seq. (See Robert S. v. Superior Court (1992) 9 Cal.App.4th 

1417, 1421–1422.) However, “discovery practice in delinquency proceedings 

generally has been derived from, and parallels, that in adult criminal cases.” 

(City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 54.) Discovery in 

juvenile delinquency proceedings is also guided by California Rules of Court, 

rule 5.546.2 (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1334, fn. 5.)

2 California Rules of Court, rule 5.546 provides, in part, as follows: “(a)

General purpose [¶] This rule must be liberally construed in favor of 

informal disclosures, subject to the right of a party to show privilege or other 

good cause not to disclose specific material or information. [¶] (b) Duty to 

disclose police reports [¶] After filing the petition, petitioner must promptly 
7

If the prosecutor fails to comply with the statutory disclosure 

requirements, the court “may make any order necessary to enforce [those 

provisions], including, but not limited to, immediate disclosure, contempt 

proceedings, delaying or prohibiting the testimony of a witness or the 

presentation of real evidence, continuance of the matter, or any other lawful 

order.” (§ 1054.5, subd. (b); see People v. Verdugo (2010) 50 Cal.4th 263, 280.)

The court may exclude evidence “only if all other sanctions have been 

exhausted.” (§ 1054.5, subd. (c).) And a mistrial should be granted only 

when “ ‘a party’s chances of receiving a fair trial have been irreparably 

damaged.’ ” (People v. Welch (1999) 20 Cal.4th 701, 749.)

We review a court’s ruling on discovery matters for abuse of discretion.

(People v. Ayala (2000) 23 Cal.4th 225, 299.) This includes the court’s denial 

of a motion for a mistrial based on the prosecutor’s violation of the discovery 

statutes. (Id. at p. 282.) 

C. Analysis

Appellant contends the court abused its discretion by denying the 

mistrial motion and for failing to execute the so-called predetermined 

sanction for discovery violations.3 We disagree.

“We start with the basic ‘judicially created’ [citation] rule that in limine

rulings are not binding because the trial court has the power to reconsider, 

modify or set aside its order at any time prior to the submission of the cause. 

deliver to or make accessible for inspection and copying by the child and the 

parent or guardian, or their counsel, copies of the police, arrest, and crime 

reports relating to the pending matter. Privileged information may be 

omitted if notice of the omission is given simultaneously.” (Bold face 

omitted.)

3 We do not address the People’s forfeiture argument; we instead 

proceed to the merits of appellant’s claim and conclude it fails. 
8

(People v. Campa (1984) 36 Cal.3d 870, 885–886 . . . .)” (People v. Yarbrough

(1991) 227 Cal.App.3d 1650, 1655; see also People v. Karis (1986) 46 Cal.3d 

612, 634, fn. 16 [“a ruling on a motion in limine is not generally binding on 

the trial court, which is free to reconsider its ruling at the time the 

challenged evidence is offered”].) Therefore, contrary to appellant’s 

argument, the court was not “required to exclude the statements that 

pertained to those undisclosed communications in accordance with its 

pretrial order.” 

Instead, the court “reconsidered” its ruling and exercised its authority 

under section 1054.5 to “make any order necessary to enforce the provisions 

of this chapter, including, but not limited to, immediate disclosure . . .” and 

admonished the prosecution to turn over discovery regarding the 

conversation between the district attorney’s office and A.B.

Turning to the issue of whether the trial court should have otherwise 

excluded the evidence, we find no abuse of discretion. In determining 

whether to exclude evidence that may affect the factfinding process, “the 

court must consider the extent to which exclusion of particular evidence may 

undermine the reliability of the fact finder’s conclusion.” (People v. Gonzales

(1994) 22 Cal.App.4th 1744, 1757 (Gonzales).) The court should also consider 

the effectiveness of lesser sanctions, the impact of exclusion of evidence at 

trial and the outcome of the case, the extent of surprise and whether the 

violation was willful and designed to obtain a tactical advantage. (Ibid.) 

Gonzales recognized that preclusion might be ordered to address prejudice to 

the surprised party or to punish the offending party. It concluded that if the 

sanction is being imposed to address prejudice, “the prejudice would 

necessarily have to be substantial and irremediable,” and the consequence to 

the truth-finding process would have to be balanced. (Id. at pp. 1757–1758.) 
9

Where the purpose of the sanction is to punish the offending party, Gonzales

concluded, “[A]bsent a showing of significant prejudice and willful conduct, 

exclusion of testimony is not appropriate as punishment.” (Id. at p. 1758.) 

Here, the record does not support any express or implied finding that 

the prosecutor’s failure to disclose A.B.’s prior statements amounted to willful 

misconduct to obtain a tactical advantage. Indeed, defense counsel conceded 

there was no foul play by the prosecution. Accordingly, our focus is on 

whether appellant established the non-disclosure resulted in substantial and 

irremediable prejudice. (Gonzales, supra, 22 Cal.App.4th at pp. 1757–1758.) 

Although defense counsel stated he had been “severely damaged” by 

the late disclosure, he made no attempt to specify what he would have done 

differently had A.B.’s statements been disclosed sooner. (See People v. 

Verdugo, supra, 50 Cal.4th at p. 283.) Appellant now suggests other actions 

that could have been taken had defense counsel received timely discovery of 

A.B.’s statements, including, “investigat[ing] the circumstances under which 

[A.B.] had made her observations, her location in the courtroom from which 

the observations were made, whether appellant had ever faced the spectators, 

the distance between them, the length of the observation and the conditions 

in the courtroom.” However, had defense counsel desired to address these 

issues, he could have requested a continuance or posed additional questions 

to A.B., who was excused subject to recall. In the absence of a request for a 

continuance, “a claim that any surprise enhanced the damaging effect of [the 

witness’s] testimony is speculative.” (People v. Arias (1996) 13 Cal.4th 92, 

151–152.)

We conclude the court did not abuse its discretion in denying 

appellant’s request for evidentiary sanctions and a mistrial.
10

II. Ineffective Assistance of Counsel

Appellant contends his counsel was ineffective at the jurisdiction 

hearing in several ways, primarily with respect to A.B.’s testimony, as well as 

by failing to produce evidence to support representations in opening 

statement, failing to object to other firearm evidence, and failing to argue the 

kill zone theory advocated by the prosecution was inapplicable.

“The due process right to effective assistance of counsel extends to 

minors in juvenile delinquency proceedings.” (In re M.V. (2014) 225 

Cal.App.4th 1495, 1528.) “ ‘In assessing claims of ineffective assistance of 

trial counsel, we consider whether counsel’s representation fell below an 

objective standard of reasonableness under prevailing professional norms and 

whether the defendant suffered prejudice to a reasonable probability, that is, 

a probability sufficient to undermine confidence in the outcome. [Citations.] 

A reviewing court will indulge in a presumption that counsel’s performance 

fell within the wide range of professional competence and that counsel’s 

actions and inactions can be explained as a matter of sound trial strategy. 

Defendant thus bears the burden of establishing constitutionally inadequate 

assistance of counsel. [Citations.] If the record on appeal sheds no light on 

why counsel acted or failed to act in the manner challenged, an appellate 

claim of ineffective assistance of counsel must be rejected unless counsel was 

asked for an explanation and failed to provide one, or there simply could be 

no satisfactory explanation. [Citation.] Otherwise, the claim is more 

appropriately raised in a petition for writ of habeas corpus.’ ” (People v. 

Carter (2005) 36 Cal.4th 1114, 1189.)

A. A.B.’s Testimony 

Appellant argues his retained defense counsel rendered ineffective 

assistance by: (1) eliciting damaging testimony on cross-examination 
11

regarding the shooter’s identity and failing to move to strike it; (2) failing to 

request exclusion of the late-disclosed statements; and (3) failing to elicit 

testimony that A.B. took Luis in the opposite direction of Glen Park. 

The extent of cross-examination is a classic tactical decision trial 

counsel must make. (People v. Cleveland (2004) 32 Cal.4th 704, 746 

[“normally the decision to what extent and how to cross-examine witnesses 

comes within the wide range of tactical decisions competent counsel must 

make.”].) Courts “ ‘ have been “reluctant to second-guess counsel” [citation] 

where a tactical choice of questions led to the damaging 

testimony.’ ” (Ibid.) Here, a tactical choice readily appears. Faced with new 

information, defense counsel attempted to elicit testimony that A.B. saw 

appellant at an earlier court proceeding and that she had not identified him 

as the shooter to anyone on the prosecution team before the jurisdiction

hearing. However, unbeknownst to both the defense and the prosecution, 

A.B. had previously made statements indicating that appellant could be the 

shooter. “Rigorous cross-examination risks eliciting damaging redirect 

examination. Whether to run that risk is a tactical choice counsel must be 

permitted to make. Moreover, here the damaging testimony came only from 

the same witness the defense necessarily was attempting to discredit.” (Ibid.) 

Contrary to appellant’s assertion, there was no legal ground for 

striking A.B.’s testimony that appellant could be the shooter. (See People v. 

Hovarter (2008) 44 Cal.4th 983, 996 [there must be a “legal ground for 

exclusion of otherwise relevant evidence”].) “[R]elevant evidence shall not be 

excluded . . . in any trial or hearing of a juvenile for a criminal offense, 

whether heard in juvenile or adult court.” (Cal. Const. art. I, § 28, subd. 

(f)(2).) Any motion to strike A.B.’s testimony would have been futile and 

nothing would have prevented the prosecution from presenting it on redirect 
12

examination. (See People v. Cudjo (1993) 6 Cal.4th 585, 616 [“[b]ecause there 

was no sound legal basis for objection, counsel’s failure to object to the 

admission of the evidence cannot establish ineffective assistance”]; People v. 

Diaz (1992) 3 Cal.4th 495, 562 [failure to object to admissible evidence does 

not constitute ineffective assistance of counsel because objection would have 

been futile].)

Equally unavailing is appellant’s claim that defense counsel was 

ineffective for failing to request the exclusion of A.B.’s testimony as a 

discovery violation sanction. A claim of ineffective assistance of counsel 

based on a trial attorney’s failure to make a motion must demonstrate not 

only the absence of a tactical reason for the omission, but also that the 

motion would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 

826, 876.) Here, as discussed, any motion to exclude A.B.’s testimony as a 

sanction for a discovery violation would have been denied. Thus, defense 

counsel was not ineffective for failing to make the motion. (People v. Weaver

(2001) 26 Cal.4th 876, 931 [“Counsel is not ineffective for failing to make a 

frivolous motion”]; People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 

[“[C]ounsel is not required to make futile motions or to indulge in idle acts to 

appear competent”].)

Finally, appellant argues defense counsel rendered ineffective 

assistance by failing to argue that A.B. took Luis in the opposite direction 

from Glen Park, which put him in a position to be shot.

4 This argument 

hinges on appellant’s unsupported theory that A.B. was in on the plan to kill 

Luis. Counsel’s failure to argue this speculative theory can hardly be deemed 

4 Previously, we deferred taking judicial notice of the map of the area; 

in considering the merits of the appeal, we have taken judicial notice, without 

any determination of relevance, of the map.
13

ineffective. (See People v. Williams (1988) 44 Cal.3d 883, 933 [“A factual 

basis, not speculation, must be established before reversal of a judgment may 

be had on grounds of ineffective assistance of counsel.”].)

B. Failure to Produce Evidence Supporting Opening Statement 

Appellant contends defense counsel was ineffective for failing to 

produce evidence to support his representations in opening statement, 

namely that cartridge casings tested positive for DNA for someone other than 

appellant. He further asserts defense counsel failed to impeach the 

investigating officer with stipulated evidence that appellant had been 

excluded as the contributor to DNA recovered from a spent casing. 

The parties stipulated to the admission of two reports from the People’s 

forensic DNA expert that summarized the 21 cartridge casings recovered at 

the crime scene and other firearms evidence. The reports indicated a DNA 

profile obtained from one of the cartridge casings from the crime scene was 

compared against reference samples provided by appellant and Vega, and 

both were excluded as the possible contributor. Subsequently, Sergeant 

Kasper testified on cross-examination that he was informed the cartridge 

casings at the crime scene were FN Five-Seven and that subsequent 

examination of the casings produced “negative results.” On redirect 

examination, Sergeant Kasper testified that “negative results” meant “there 

was no DNA recovered” from the cartridge casings. During closing argument, 

defense counsel stated, “The DNA evidence speaks for itself.”

The failure to impeach a witness is a matter that involves tactical 

decisions and seldom establishes an attorney’s incompetence. (People v. 

Frierson (1979) 25 Cal.3d 142, 158.) Here, defense counsel could have 

reasonably construed Sergeant Kasper’s testimony that the cartridge casings 

produced “negative results” to mean that the DNA testing results on the 
14

casings did not incriminate appellant. Defense counsel also could have made 

a strategic decision to rely on the stipulated evidence of the DNA test results 

and his closing argument to address this issue. (See People v. Johnsen (2021) 

10 Cal.5th 1116, 1165 [trial counsel may have strategically decided not to 

object to prosecutor’s comments and instead rely on the counterarguments in 

his closing argument]; People v. Bell (2020) 48 Cal.App.5th 1, 23 [assuming 

testimony was inaccurate, defense counsel could have reasonably decided to 

wait and draw attention to it during closing argument].)

Appellant also argues defense counsel rendered constitutionally 

deficient performance by failing to introduce evidence that individuals at the 

crime scene described the suspect vehicle as a Lexus. “Forgoing the 

presentation of testimony or evidence promised in an opening statement can 

be a reasonable tactical decision, depending on the circumstances of the 

case.” (People v. Stanley (2006) 39 Cal.4th 913, 955.)

Here, defense counsel could have reasonably decided that an initial 

report of the suspect vehicle as possibly being a Lexus carried much less 

weight than the lack of direct evidence connecting appellant to the crime 

scene. The record does not suggest counsel’s performance was obviously 

inadequate, or that there could be no satisfactory explanation for his actions 

or omissions.

C. Failure to Object to Firearm Evidence 

Appellant argues defense counsel rendered ineffective assistance of 

counsel related to the firearms evidence by failing to object that the gun in 

the Instagram post was “possessed” by appellant; failing to challenge the 

sufficiency of the evidence regarding gun possession; unjustifiably conceding 

the object in the Instagram post was an FN Five-Seven; and failing to object 
15

to the “unsupported assumption” that the murder weapon was an FN FiveSeven.

Even when there is a basis for objection, “ ‘ “[w]hether to object to 

inadmissible evidence is a tactical decision; because trial counsel’s tactical 

decisions are accorded substantial deference [citations], failure to object 

seldom establishes counsel’s incompetence.” “In order to prevail on [an 

ineffective assistance of counsel] claim on direct appeal, the record must 

affirmatively disclose the lack of a rational tactical purpose for the challenged 

act or omission.” ’ ” (People v. Majors (1998) 18 Cal.4th 385, 403.) Further, 

“[t]here are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client 

in the same way.” (Strickland v. Washington (1984) 466 U.S. 668, 689.)

Here, the record does not show that each claimed failure by defense 

counsel was without a rational tactical purpose. In summary, the court was 

presented with video surveillance that captured a shooter discharging 21 

rounds in six seconds into the victim’s vehicle, killing Luis and injuring A.B.

Officers responded to the scene and collected 21 cartridge casings, all of 

which were 5.7-caliber. The cartridges were analyzed and found to be all 

fired from the same weapon—an FN Five-Seven semiautomatic handgun.

Such a handgun has a capacity of 21 rounds, consisting of 20 rounds in the 

magazine plus one round in the chamber. Additionally, a video post to an 

Instagram account, ten days after the murder, depicted appellant in the 

backseat of a vehicle with an object on the seat right next to his leg. 

The prosecution established that the object looked like an FN fiveseven semi-automatic weapon. Specifically, Officer Ochoa testified that he 

recognized the type of firearm because he owned one and was able to describe 

the weapon’s rare and unique characteristics.
16

Given the state of the evidence in this case, defense counsel could have 

made a rational, tactical decision not to object and instead rely on 

counterarguments in his closing suggesting that the object was put there by 

someone other than appellant and point out, as he did, that “[t]here is no 

indication that it was the weapon that was used in the homicide. None.” 

(See People v. Bell, supra, 48 Cal.App.5th at p. 23) Ultimately, counsel made 

a reasonable, strategic decision to defend appellant in this manner and the 

record in this case does not preclude the possibility of a satisfactory 

explanation for said approach. Thus, appellant’s claims of ineffective 

assistance of counsel must be rejected. 

D. Attempted Murder 

Appellant raises several claims that defense counsel rendered 

ineffective assistance by failing: (1) to argue the kill zone theory was 

inapplicable; (2) to object to the prosecution’s reliance on facts not in evidence 

regarding the characteristics of the FN Five-Seven ammunition; (3) to argue 

the prosecution’s argument was an implied theory of malice, and (4) to object 

to the “misstatement” that A.B. was in the direct line of fire. Appellant 

argues these omissions were prejudicial because there was no substantial 

evidence of attempted murder. As we explain in the next section, substantial 

evidence supports the attempted murder finding under a kill zone theory. 

Accordingly, any claimed error was harmless. 

E. Cumulative Prejudice 

Finally, appellant contends that even if harmless individually, the 

cumulative effect of the trial errors mandates reversal. “Cumulative error is 

present when the combined effect of the trial court’s errors is prejudicial or 

harmful to the defendant.” (People v. Capers (2019) 7 Cal.5th 989, 1017.) 

Here, we have not found multiple errors to aggregate. (See People v. Bolin
17

(1998) 18 Cal.4th 297, 335 [rejecting defendant’s contention that “even if 

harmless individually, the cumulative effect of the trial errors mandates 

reversal,” because “we have rejected all of his claims, we perforce reject this 

contention as well”].)

III. Sufficiency of the Evidence Claims

Appellant challenges the sufficiency of the evidence supporting the 

findings that he was the shooter, committed premeditated attempted murder, 

and carried a concealed weapon in a vehicle. 

A. Identity of Shooter 

Our review must presume in support of the judgment the existence of 

every fact the trier of fact could reasonably have deduced from the evidence. 

(People v. Manibusan (2013) 58 Cal.4th 40, 87.) Where, as here, the evidence 

of guilt is largely circumstantial, our task is not to resolve credibility issues 

or evidentiary conflicts, nor is it to inquire whether the evidence might 

reasonably be reconciled with the defendant’s innocence. (Id. at p. 92; People 

v. Maury (2003) 30 Cal.4th 342, 403.) It is the duty of the trier of fact to 

acquit the defendant if it finds the circumstantial evidence is susceptible to 

two interpretations, one of which suggests guilt and the other innocence. 

(People v. Snow (2003) 30 Cal.4th 43, 66.) But the relevant inquiry on appeal 

is whether, in light of all the evidence, “any reasonable trier of fact could 

have found the defendant guilty beyond a reasonable doubt.” (People v. 

Towler (1982) 31 Cal.3d 105, 118.)

The central issue in this case was the identity of the shooter. The 

evidence that appellant was the shooter was entirely circumstantial—but it 

was sufficiently substantial to uphold his convictions.
18

1. Motive

There was substantial evidence that appellant had motive to kill Luis 

in revenge for R.W.’s death. (People v. Flores (2020) 9 Cal.5th 371, 412 

[motive to eliminate victim who was a witness to another murder and not 

loyal to the gang]; People v. Pride (1992) 3 Cal.4th 195, 245 (Pride) 

[defendant’s work history supplied a possible motive for the killings]; People 

v. Lewis (1963) 217 Cal.App.2d 246, 259–260 [defendant had motive for 

seeking vengeance against murder victim].)

2. Opportunity

There was also substantial evidence indicating that appellant had the 

opportunity to commit the offenses. It is undisputed appellant’s mother 

owned a 2005 model Acura TL sedan in September 2019. Bay Bridge 

surveillance video showed appellant driving an Acura on the westbound toll 

lane at 7:56 p.m. on September 8, 2019, about one hour before the shooting. 

Before the shooting, surveillance video captured a vehicle bearing the 

same characteristics of the Acura driving back-and-forth in front of the 

moving van used by Luis and A.B., and later waiting on Naples Street until 

Luis drove away from the gas station; then following Luis to Athens Street 

where the shooting occurred at 9:06 p.m.

About 13 minutes after the shooting, a license plate reader and 

surveillance video captured appellant’s mother’s Acura traveling east on the 

Bay Bridge near Treasure Island. The time to drive to that location from the 

crime scene was approximately nine minutes. Based on this evidence, the 

court could reasonably infer that appellant was present at the scene when the 

shooting occurred. (Pride, supra, 3 Cal.4th at p. 245 [evidence establishing 

time of death, defendant’s work schedule, the drive time from murder scene 
19

to defendant’s home supported reasonable inference that defendant was 

present at scene when murders occurred].)

3. Firearms Evidence 

Twenty-one cartridge casings, all of which were 5.7-caliber, were 

recovered at the crime scene. The weapon used to discharge the rounds was 

an FN Five-Seven, a semiautomatic handgun with a 21-round capacity. The 

weapon was somewhat rare and had unique characteristics, including 

markings on the pistol grip and rear slide, a curved pistol grip, and side 

switches. The Instagram video posted 10 days after the shooting showed 

appellant touching what appeared to be an FN Five-Seven pistol in the rear 

passenger seat of a vehicle.

Based on this evidence, the court could reasonably infer that appellant 

had access to an FN Five-Seven pistol and that he used it to kill Luis and, in 

his attempt to kill A.B. (See People v. Flores, supra, 9 Cal.5th at p. 413 

[rational jury could have logically concluded that ballistics evidence together 

with other evidence showed defendant murdered victim]; Pride, supra, 3 

Cal.4th at p. 246 [jury could infer from distinctive appearance of probable 

murder weapon that it was defendant’s knife and that it had not been stolen 

before the crimes].)

4. Consciousness of Guilt 

At the time of the shooting, the Acura’s grill was gray or silver in color 

and the wheel rims were silver or chrome. Ten days after the shooting, the 

Acura had dark-colored wheel rims. When the Acura was recovered 18 days 

after the shooting the wheel rims, grill, and front headlamp had been painted 

black. 

Based on this evidence the court could find appellant engaged in postcrime conduct from which it could reasonably infer a consciousness of guilt. 
20

(People v. Thompson (2010) 49 Cal.4th 79, 113 [attempts to conceal the crime 

by cleaning up the crime scene was highly probative of whether defendant 

committed the crime]; Pride, supra, 3 Cal.4th at p. 246 [defendant’s postcrime behavior of placing a jumpsuit over his work clothes before arriving 

home and uncharacteristic laundering of the same clothes evidenced 

consciousness of guilt].)

5. Physical Characteristics 

The video footage shows the shooter was average height, slim build, 

and fairly quick on their feet—indicative of someone young. By all accounts, 

appellant fit this description. A.B. testified appellant’s eyes were consistent 

with the shooter’s, which she described as a “unique eye shape.” A.B. later 

described the shooter as a “light-skinned” Hispanic male. It is undisputed 

that appellant had a “mixed race” heritage and a “light comple[xion].” Based 

on the circumstantial evidence presented, the court could reasonably infer 

that appellant’s physical appearance was consistent with the shooter’s build. 

In sum, we conclude the record contained substantial evidence to 

support the court’s finding that appellant was the shooter. Appellant’s 

arguments challenging the sufficiency of the evidence do not compel a 

contrary conclusion. 

In challenging the sufficiency of the evidence, appellant argues: (1) the 

evidence was speculative that he was the shooter because all signs pointed to 

Vega as the shooter; (2) A.B.’s testimony was suspect, including her 

explanation for stopping on Athens Street; (3) the evidence of motive was 

weak; (4) there was no evidence the FN Five-Seven pistol in the Instagram 

video was the murder weapon or that he had dominion and control of the gun 

in the video; (5) the shooter’s vehicle was unknown; (6) there was no direct 

evidence of his location at the time of the shooting; (7) the modification of the 
21

Acura was consistent with an innocent explanation; and (8) his clothing did 

not match the clothing of the shooter described by the 911 caller.

By these arguments, appellant is confusing the role of the appellate

court with that of the trier of fact. It is not the function of this court to 

reweigh the evidence. (People v. Demond (1976) 59 Cal.App.3d 574, 583 [lack 

of eyewitnesses or direct evidence of the manner in which victim’s injuries 

were inflicted does not sustain a claim of insufficient evidence where ample 

circumstantial evidence connects defendant with the crime].) The weight 

accorded to evidence and the credibility of witnesses is within the sole 

province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 

790.) To the extent the trial court made contrary inferences from the 

evidence, those conclusions are binding in this court. (People v. Teale (1969) 

70 Cal.2d 497, 505 [defendant’s challenge to the sufficiency of evidence would 

have the reviewing court draw contrary inferences from the evidence, which 

the court may not do]; People v. Hunt (1985) 174 Cal.App.3d 95, 104 [“Where 

two conflicting inferences may be drawn from the evidence, it is the reviewing 

court’s duty to adopt the one supporting the challenged order”].) Inferences 

that could have led the trier of fact to a different result do not, as a matter of 

law, undermine the substantial evidentiary support for the verdict. (People v. 

Casares (2016) 62 Cal.4th 808, 827 [rejecting claim of insufficient evidence 

based essentially on competing inferences defendant wished the jury had 

drawn], disapproved on other grounds by People v. Dalton (2019) 7 Cal.5th 

166, 214.)

Accordingly, we conclude substantial evidence supports the court’s 

implied finding that appellant was the shooter. 
22

B. Premeditated Attempted Murder

Appellant contends there is no substantial evidence to support the 

finding that he committed premeditated attempted murder under a kill zone 

theory of liability. We first address the kill zone theory and then turn to 

whether appellant acted with premeditation and deliberation.

1. Attempted Murder – Kill Zone 

Attempted murder requires the specific intent to kill, or express malice, 

and the commission of a direct but ineffectual act toward accomplishing the 

intended killing. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7; 

see also People v. Mumin (2023) 15 Cal.5th 176, 190 (Mumin).) “To be guilty 

of attempted murder, the defendant must intend to kill the alleged victim, 

not someone else. The defendant’s mental state must be examined as to each 

alleged attempted murder victim. Someone who intends to kill only one 

person and attempts unsuccessfully to do so, is guilty of the attempted 

murder of the intended victim, but not of others.” (People v. Bland (2002) 28 

Cal.4th 313, 328 (Bland).) “[A]lthough the intent to kill a primary target 

does not transfer to a survivor, the fact the person desires to kill a particular 

target does not preclude finding that the person also, concurrently, intended 

to kill others within what is termed the ‘kill zone’ ” for attempted murder. 

(Id. at p. 329.)

Bland illustrated the kill zone theory with the following hypothetical:

“[C]onsider a defendant who intends to kill A and, in order to ensure A’s 

death, drives by a group consisting of A, B, and C, and attacks the group with 

automatic weapon fire or an explosive device devastating enough to kill 

everyone in the group. The defendant has intentionally created a ‘kill zone’ 

to ensure the death of his primary victim, and the trier of fact may 

reasonably infer from the method employed an intent to kill others 
23

concurrent with the intent to kill the primary victim. When the defendant 

escalated his mode of attack from a single bullet aimed at A’s head to a hail of 

bullets or an explosive device, the factfinder can infer that, whether or not 

the defendant succeeded in killing A, the defendant concurrently intended to 

kill everyone in A’s immediate vicinity to ensure A’s death.” (Bland, supra, 

28 Cal.4th at p. 330.)

In People v. Canizales (2019) 7 Cal.5th 591 (Canizales) our Supreme 

Court “reaffirmed Bland’s concurrent intent theory but articulated its 

contours and limitations” and “explained how the theory relates to proving 

the specific intent to kill required for attempted murder.” (Mumin, supra, 15 

Cal.5th at p. 192.) “Bland’s adoption of the kill zone theory meant that a 

prosecutor charging attempted murder in a multi-victim case had an 

additional, alternative ground by which to prove the requisite intent to kill. 

Under appropriate facts, the prosecutor could attempt to show either that the 

defendant’s intent to kill one or more alleged victims arose independently of 

his actions toward any other victim, or that the defendant’s intent to kill an 

untargeted victim arose concurrently with his intent to kill a primary target.” 

(Canizales, at p. 603.) And it noted that “there are evidentiary bases, other 

than the kill zone theory, on which a fact finder can infer an intent to kill for 

purposes of attempted murder liability that do not depend on a showing that 

the defendant had a primary target . . . .” (Id. at p. 608.)

The Canizales court clarified “that a jury may convict a defendant 

under the kill zone theory only when the jury finds that: (1) the 

circumstances of the defendant’s attack on a primary target, including the 

type and extent of force the defendant used, are such that the only reasonable 

inference is that the defendant intended to create a zone of fatal harm – that 

is, an area in which the defendant intended to kill everyone present to ensure 
24

the primary target’s death – around the primary target[;] and (2) the alleged 

attempted murder victim who was not the primary target was located within 

that zone of harm. Taken together, such evidence will support a finding that 

the defendant harbored the requisite specific intent to kill both the primary 

target and everyone within the zone of fatal harm.” (Canizales, supra, 7 

Cal.5th at pp. 596–597; see id. at p. 609 [“ ‘[w]ithout a primary target, there 

cannot be concurrent intent because there is no primary intent to kill as to 

which the intent to kill others could be concurrent.’ ”].)

Canizales cautioned that “[t]rial courts should tread carefully when the 

prosecution proposes to rely on such a theory, and should provide an 

instruction to the jury only in those cases where the court concludes there is 

sufficient evidence to support a jury determination that the only reasonable 

inference from the circumstances of the offense is that a defendant intended 

to kill everyone in the zone of fatal harm. The use or attempted use of force 

that merely endangered everyone in the area is insufficient to support a kill 

zone instruction.” (Canizales, supra, 7 Cal.5th at p. 608.) 

Recently, in Mumin, the California Supreme Court clarified that “ ‘the 

only reasonable inference’ caveat” in Canizales was used “to explain how the 

jury should evaluate circumstantial evidence relating to the defendant’s 

intent. This discussion of the jury’s role does not suggest a departure from 

the traditional substantial evidence standard in evaluating whether the court

has properly instructed on a particular theory of conviction.” (Mumin, supra, 

15 Cal.5th at p. 201.) 

Here, the evidence was sufficient to support the reasonable inference 

that Luis was the primary target. Appellant witnessed the stabbing that 

fatally wounded his brother R.W. and he identified Luis as the perpetrator.

The shooting on September 8, 2019 occurred nearly five years to the date of 
25

R.W.’s murder on September 2, 2014. (See People v. Smith (2005) 37 Cal.4th 

733, 751 [evidence of motive can support intent to kill].)

Appellant created a zone of harm around Luis when he came up to the 

driver’s side window and used a semiautomatic pistol to fire 21 rounds in 

rapid succession. A.B., who was sitting next to Luis in the front passenger 

seat, was in the direct line of fire and suffered a gunshot wound to her right 

arm. (See Bland, supra, 28 Cal.4th at pp. 318, 333 [approaching a car in 

which rival gang member was seated in driver’s seat, opening fire with a .38-

caliber handgun, shooting numerous rounds into the vehicle and as it drove 

away “virtually compelled” finding kill zone theory applied]; Mumin, supra, 

15 Cal.5th at p. 204 [concurrent intent cases involving vehicle shootings have 

been described as employing a “ ‘flurry’ ” or “ ‘hail’ ” of bullets]; People v. 

Dominguez (2021) 66 Cal.App.5th 163, 187 [rapid firing of 21 shots into a 

small space enclosed on three sides supported kill zone theory]; People v. 

Windfield (2021) 59 Cal.App.5th 496, 517 [firing multiple bullets at close 

range against two people who were walking side by side supported kill zone 

theory].)

Contrary to appellant’s contention, there is no requirement that a 

defendant be aware of who is in the zone of fatal harm to support a conviction 

for attempted murder based on a kill zone theory. (See People v. Vang (2001) 

87 Cal.App.4th 554, 564 [rejecting defendants’ argument that they could not 

be convicted of attempted murder as to someone they did not know was in the 

residence when they opened fire at the residence]; see also People v. Adams

(2008) 169 Cal.App.4th 1009, 1023 [“[w]hether or not the defendant is aware 

that the attempted murder victims were within the zone of harm is not a 

defense, as long as the victims actually were within the zone of harm”].)
26

Appellant argues the evidence was insufficient to support the kill zone 

theory because: (1) there was no evidence of a “spray of bullets throughout 

the car”—the shooter fired solely at Luis; (2) due to the placement in the car, 

killing A.B. would not ensure the death of Luis; (3) the shooter was unaware

of A.B.’s presence—thus A.B. shooting “was an unintended consequence of 

moving her arm in the line of fire;” and (4) there was no evidence A.B. was in 

the direct line of fire. While defense counsel could have certainly made these 

arguments to the trier of fact, they are not dispositive as to the sufficiency of 

the evidence to support a kill zone theory. 

People v. Booker (2020) 58 Cal.App.5th 482 (Booker), is of no assistance 

to appellant. In that case, the defendants and the two victims had a brief 

encounter in a store. (Id. at p. 488.) Soon after the victims left in a car, 

defendants’ car pulled alongside them, and the shooter fired three to seven 

shots at the victims’ car, killing the driver but leaving the passenger 

uninjured. (Id. at pp. 488–489.) Citing to Canizales, the Booker court opined 

two of the factors to support the kill zone theory were present—the distance 

between the defendant and the alleged victims, and the closeness of the 

victim to the intended target. (Id. at pp. 500–501.) The court reasoned, 

however, the type and amount of force used did not support the kill zone 

theory. The court found it dispositive the “three to seven shots” from a nonsemiautomatic or automatic weapon were “directed at the front driver’s side” 

and “there were no bullet holes in the car’s body or doors that would have 

reflected a spray of bullets.” (Id. at p. 500.)

Here, unlike in Booker, appellant used a semiautomatic weapon to fire 

21 shots. The spray of bullets from the semiautomatic weapon hit various 

parts of Luis’s body, including his head, heart, chest, liver, and one of his 

kidneys. From this evidence it was reasonable to conclude appellant had a 
27

primary target—Luis—and reasoned he could not miss that intended target if 

he killed everyone in the area in which the target was located. (Canizales, 

supra, 7 Cal.5th at p. 607 [determination does not turn on effectiveness or 

ineffectiveness of attack].) 

The court could reasonably conclude that appellant intended to create a 

zone of fatal harm in the confined space of the front passenger compartment 

of Luis’s car, a zone within which A.B. was located, and that he had the 

concurrent intent to kill anyone in that zone in order to ensure that Luis was 

killed. (Canizales, supra, 7 Cal.5th at pp. 609–610.)

2. Premeditation and Deliberation 

Appellant next contends there was insufficient evidence of 

premeditation and deliberation. Although we conclude there is substantial 

evidence of a specific intent to kill A.B. under a kill zone theory, we 

nevertheless find there is insufficient evidence that appellant acted with 

premeditation and deliberation. 

For an attempted murder to be premeditated and deliberate “the intent 

to kill must have been formed upon a preexisting reflection and must have 

been the subject of actual deliberation and forethought.” (People v. Rowland

(1982) 134 Cal.App.3d 1, 7; see People v. Herrera (1999) 70 Cal.App.4th 1456, 

1462–1463, fn. 8 [“We do not distinguish between attempted murder and 

completed first degree murder for purposes of determining whether there is 

sufficient evidence of premeditation and deliberation”], disapproved on 

another point in People v. Mesa (2012) 54 Cal.4th 191, 199.)

“ ‘ “[P]remeditated” means “considered beforehand,” and “deliberate” 

means “formed or arrived at or determined upon as a result of careful 

thought and weighing of considerations for and against the proposed course 

of action.” ’ ” (People v. Felix (2009) 172 Cal.App.4th 1618, 1626 (Felix).) 
28

“ ‘ “The true test is not the duration of time as much as it is the extent of 

reflection.” ’ ” (Ibid.)

“ ‘ “The process of premeditation and deliberation does not require any 

extended period of time.” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1182.) 

There is no requisite minimum length of time between the prior reflection on 

killing a person and taking action to commit the killing. (People v. Thomas

(1945) 25 Cal.2d 880, 900.) “ ‘Thoughts may follow each other with great 

rapidity and cold, calculated judgment may be arrived at quickly. . . .’ ” 

(People v. Perez (1992) 2 Cal.4th 1117, 1127.)

“In examining whether the evidence is sufficient to show that a 

defendant premeditated, a reviewing court may consider a tripartite 

framework—(1) planning activity, (2) motive, and (3) manner of the killing or 

attempt—in determining whether such intent may be inferred from the trial 

record.” (Felix, supra, 172 Cal.App.4th at p. 1626.) These categories are 

“ ‘descriptive, not normative,’ ” and “reflect the court’s attempt ‘to do no more 

than catalog common factors that had occurred in prior cases.’ ” (People v. 

Young, supra, 34 Cal.4th at p. 1183.) “The categories of evidence . . . do not 

represent an exhaustive list of evidence that could sustain a finding of 

premeditation and deliberation, and the reviewing court need not accord 

them any particular weight.” (Ibid.) While these categories are helpful for 

review, they are not a sine qua non to finding first degree premeditated 

murder, nor are they exclusive. (People v. Koontz (2002) 27 Cal.4th 1041, 

1081.) “However, ‘[w]hen the record discloses evidence in all three categories, 

the verdict generally will be sustained.’ ” (People v. Stitely (2005) 35 Cal.4th 

514, 543.)

In essence, the fundamental inquiry is whether “the crime occurred as 

a result of preexisting reflection rather than a rash or unconsidered impulse.” 
29

(Felix, supra, 172 Cal.App.4th at p. 1626.) This is generally inferred from the 

circumstances of the crime. (People v. Ramos (2004) 121 Cal.App.4th 1194, 

1207–1208.) 

Here, we cannot infer premeditation and deliberation from the record. 

There is no evidence that appellant had a motive to kill A.B. or that he 

specifically targeted her. Indeed, there is little evidence suggesting appellant 

knew A.B. was in the car. While this fact, as we have explained does not 

insulate appellant from kill zone liability (see People v. Vang, supra, 87 

Cal.App.4th at p. 564), it nevertheless suggests that he did not act with 

premeditation and deliberation with respect to A.B. 

We conclude there is insufficient evidence to support the conclusion 

that appellant’s attempted murder of A.B. was premeditated and deliberate. 

Thus, the premeditation and deliberation finding must be reversed. 

C. Carrying a Concealed Firearm in a Vehicle 

Appellant argues no testimony or evidence was ever presented 

regarding the manner in which the gun was carried in the Acura on 

September 8, 2019. We agree there is insufficient evidence to support the 

court’s true finding on count VI, which charged appellant with carrying a 

concealed weapon within a vehicle. (§ 25400, subd. (a)(1)). 

Section 25400, provides in subdivision (a)(1) that a person is guilty of 

carrying a concealed firearm when he carries “concealed within any vehicle 

that is under the person’s control . . . any pistol, revolver, or other firearm 

capable of being concealed upon the person.” (Italics added.) No evidence 

supported a conclusion that appellant carried a gun concealed within a car he 

controlled on September 8, 2019. 

A concealed weapon inside a car might be found underneath a floor mat 

(People v. Jefferson (2015) 238 Cal.App.4th 494, 499), hidden in the gap in a 
30

split bench seat (People v. Padilla (2002) 98 Cal.App.4th 127, 132, 137), in an 

air vent under the dashboard (People v. Redmond (1966) 246 Cal.App.2d 852, 

855), or in an unlocked container behind a seat (People v. Hodges (1999) 70 

Cal.App.4th 1348, 1355.) Here there was no evidence of such concealment 

inside the car. 

The People suggest video footage of appellant removing a firearm from 

his pocket as he got out of the car supports an inference that “appellant 

caused the firearm to be concealed within the Acura.” We disagree. The 

mere fact that appellant got out of the car with a gun does not in any way 

suggest the manner in which he possessed the gun within the car. The cases 

cited by the People are distinguishable because they involved reasonable 

inferences based on circumstantial evidence. (See People v. May (1973) 33 

Cal.App.3d 888, 890–891 [handgun visible to officer through defendant’s open 

pocket was concealed weapon]; People v. Watkins (2012) 55 Cal.4th 999, 1024 

[applying reasonable inference principle to acts of attempted robbery that 

were not seen by victims]; People v. Story (2009) 45 Cal.4th 1282, 1298 

[finding reasonable inferences of rape and murder based on circumstantial 

evidence at scene and condition of victim].) Here, the inferences suggested by 

the People are purely speculative and do not constitute substantial evidence 

that appellant concealed the gun in the car.

Similarly lacking is the People’s assertion that appellant’s “clandestine 

activity” of parking against the flow of traffic, idling in the street, and 

making a “three-point turn” could reasonably support the inference that “he 

had concealed the firearm inside his vehicle to avoid detection from anyone 

whom he encountered . . . .” Although arguably suspicious, these activities do 

not support a reasonable inference that appellant had concealed the gun in 

the car.
31

With no evidence that appellant concealed the gun somewhere inside 

the car, we must reverse the court’s true finding on count VI.

IV. Two Penal Code Section 25850 Offenses

In counts IV and V, the delinquency petition alleged that on September 

8, 2019, appellant carried a loaded firearm in public, both on his person (Pen. 

Code § 25850, subd. (a) [count IV]) and in a vehicle (ibid. [count V].) The 

court found both allegations to be true. 

Appellant contends, and the People concede, a true finding was 

appropriate on either count IV or V but not both because both counts were 

based on carrying the same firearm in public on the same date. We agree. 

(People v. Vidana (2016) 1 Cal.5th 632, 650 [multiple convictions not 

permitted for different statements of same offense arising from same act or 

course of conduct]; People v. Ramon (2009) 175 Cal.App.4th 843, 857

[unlawful carrying of loaded weapon while a member of street gang and 

unlawfully carrying of loaded weapon for which one was not the registered 

owner did not define separate crimes; rather, they established penalty based 

on circumstances of offense and offender].)

Accordingly, the true finding on count V is hereby vacated.

V. SYTF Commitment

Appellant raises three related arguments challenging his SYTF 

commitment: (1) the court abused its discretion in dismissing a nonqualifying offense for the purpose of making him eligible for SYTF 

commitment; (2) the court’s findings setting forth the basis of the SYTF 

commitment are inadequate; and (3) substantial evidence does not support 

the SYTF commitment.

“[T]he juvenile court has long enjoyed great discretion in the disposition 

of juvenile matters . . . .” (In re Greg F. (2012) 55 Cal.4th 393, 411.) It has 
32

“ ‘maximum flexibility to craft suitable orders aimed at rehabilitating the 

particular ward before it.’ ” (Ibid.) A juvenile court’s commitment order may 

be reversed on appeal only upon a showing that the court abused its 

discretion. (In re Miguel C. (2021) 69 Cal.App.5th 899, 908.) “ ‘ “[A] trial 

court abuses its discretion when the factual findings critical to its decision 

find no support in the evidence.” ’ ” (In re Nicole H. (2016) 244 Cal.App.4th 

1150, 1154.) 

A. Dismissal of Non-Qualifying Offense 

A minor may not be committed to the Department of Corrections and 

Rehabilitation, Division of Juvenile Facilities, unless his or her most recent 

offense alleged in any petition and admitted or found true by the court is one 

described in Welfare and Institutions Code section 707, subdivision (b). 

(Welf. & Inst. Code, § 733, subd. (c); In re J.B. (2022) 75 Cal.App.5th 410, 

418.) Appellant’s most recent offense, firearm possession by a minor (count 

VIII), is not a listed offense. (Welf. & Inst. Code, § 707, subd. (b); Pen. Code, 

§ 29610.) On the prosecution’s motion, the court dismissed count VIII and 

later committed appellant to a SYTF.

Appellant contends the court was without authority to dismiss count 

VIII for the sole purpose of making him eligible for SYTF commitment. He 

further contends the court failed to adequately provide its reasons for 

dismissing the non-qualifying offense. As we explain, the court did not err 

dismissing the non-eligible offense. However, a limited remand is required 

for the court to set forth its reasons in the record.

1. Additional Background 

As relevant here, the murder and attempted murder occurred on 

September 8, 2019 and the second gun possession occurred on September 25, 

2019 (count VIII). Following the multi-day, contested jurisdictional hearing,
33

the court found true the allegations in the delinquency petition on January 

29, 2021. At the April 22, 2021 contested disposition hearing, the court 

committed appellant to the Division of Juvenile Justice (DJJ) for a maximum 

term of 83 years, four months. Appellant sought writ relief from this court on 

the grounds that his most recent offense—the September 25, 2019 gun 

possession—was not an enumerated offense, which made him ineligible for 

DJJ commitment. The People agreed the DJJ commitment was in error. We 

granted the unopposed petition and directed the court to vacate the DJJ 

commitment and remanded the matter for a new dispositional hearing.

On remand, after the court vacated the DJJ commitment, the 

prosecutor asked for the dismissal of count VIII—the September 25, 2019 gun 

possession allegation—which was the most recent offense alleged in the 

delinquency petition. At a September 14, 2021 hearing, the prosecutor 

argued it was “in the interest of justice and for the welfare of the now nonminor, to be committed to DJJ . . . [¶] Since the Court found true the lying in 

wait first degree and attempted murder and the allegations of discharging a 

firearm, the minor is subject to mandatory DJJ commitment. With the 

dismissal of the [non-]DJJ eligible charge, the remaining charges are eligible 

for DJJ commitment.” The prosecutor added, “This scenario comports with 

the one imagined by the dissent and addressed by the majority in [In re Greg 

F. (2012) 55 Cal.4th [393] at [pages] 413 to 414]. Again, the Court has 

previously decided that the DJJ commitment is in the best interest of justice 

and welfare of the minor after a contested dispositional hearing.” The 

prosecutor also asked the court to order the DJJ commitment nunc pro tunc 

to the original disposition date of April 22, 2021.

In denying the nunc pro tunc request, the court noted the prosecution 

“knew about this case and the charges for a long time.” The court then 
34

summarily granted the prosecution’s motion, ruling, “The motion to dismiss 

is granted.” The corresponding minute order reflects, “District attorney’s oral 

motion to dismiss Count 8 of petition dated 9-27-19 pursuant to 782 W&I –

granted.”

2. Analysis 

Juvenile courts have long had the authority to dismiss juvenile 

petitions in the interests of justice and in a minor’s best interests. (Welf. & 

Inst. Code, § 782; In re Greg F., supra, 55 Cal.4th at p. 400.) Recently, this 

discretion has been held to include the dismissal of a portion of a petition. (In 

re J.P. (2023) 94 Cal.App.5th 74, 77; see also In re J.B. (2022) 75 Cal.App.5th 

410, 413 [dismissal of previously adjudicated petitions].) 

The dispute centers around Welfare and Institutions Code section 733, 

which outlines the offenses that are eligible for DJJ commitment, and 

Welfare and Institutions Code section 782, which authorizes the juvenile 

court to dismiss a petition. Welfare and Institutions Code section 733, 

subdivision (c) provides, “A ward of the juvenile court who meets any 

condition described below shall not be committed to the [DJJ]: [¶] . . . [¶] (c) 

The ward has been or is adjudged a ward of the court pursuant to [Welfare 

and Institutions Code,] [s]ection 602, and the most recent offense alleged in 

any petition and admitted or found to be true by the court is not described in 

subdivision (b) of Section 707 [of the Welfare and Institutions Code] or 

subdivision (c) of Section 290.008 of the Penal Code.” “[T]he language of 

[Welfare and Institutions Code] section 733[, subdivision] (c) is clear and 

lends itself to only one reasonable interpretation. The statute premises [DJJ] 

eligibility on the nature of ‘the most recent offense alleged in any petition and 

admitted or found to be true by the court.’ [Citation.] Plainly, this language 

refers to the last offense that was adjudicated to have been committed by the 
35

minor. A minor can be committed to [DJJ] only if this particular offense is 

listed in [Welfare and Institutions] section 707[, subdivision] (b) or Penal 

Code section 290.008[, subdivision] (c).” (In re D.B. (2014) 58 Cal.4th 941, 

947.)

Welfare and Institutions Code section 782 provides, “A judge of the 

juvenile court in which a petition was filed . . . may dismiss the petition, or 

may set aside the findings and dismiss the petition, if the court finds that the 

interests of justice and the welfare of the person who is the subject of the 

petition require that dismissal, or if it finds that [he or she] is not in need of 

treatment or rehabilitation.”

We review the juvenile court’s dismissal of a petition under Welfare 

and Institutions Code section 782 for abuse of discretion. (See Greg F., supra,

55 Cal.4th at p. 420 [dismissal “is appropriate . . . so long as the juvenile 

court, in its discretion, finds that the dismissal is required by the interests of 

justice and the welfare of the minor”].)

Our Supreme Court has recognized that Welfare and Institutions Code 

sections 733 and 782 are not “irreconcilably in conflict.” (Greg F., supra, 55 

Cal.4th at p. 407.) In Greg F., the court held the juvenile court retains 

discretion to commit a minor to DJJ by using its authority under Welfare and 

Institutions Code section 782 to dismiss the most recent sustained charge or 

petition which rendered him or her ineligible for such a commitment. Section 

782 provides a discretionary tool for the juvenile court “to control the 

operative petition for purposes” of Welfare and Institutions Code section 733, 

subdivision (c) and, “consequently, expand its dispositional options.” (Greg 

F., at p. 408.) If the juvenile court exercises its discretion under Welfare and 

Institutions Code section 782 to dismiss a delinquency petition, “its decision 
36

does not nullify or abrogate” Welfare and Institutions Code section 733, 

subdivision (c). (Id. at p. 408.)

Appellant contends Greg F. is “not a good fit” for his case because here 

the dismissal was “accomplished long after the dispositional hearing.” He 

further asserts Greg F. is inapposite because it addressed DJJ commitments

instead of SYTF commitments. Appellant’s attempt to distinguish Greg F.

fails. First, appellant’s characterization of the record is somewhat 

disingenuous and ignores the procedural history of the case. In granting 

appellant’s petition for mandate, we ordered the April 22, 2021 disposition 

order to be vacated. The prosecution’s motion to dismiss count VIII occurred 

after the juvenile court vacated the original disposition and before the new 

disposition proceedings had occurred. Second, although there are differences 

in DJJ and SYTF commitments, nothing purports to limit the juvenile court’s 

discretion under Welfare and Institutions Code section 782.

To support his case, appellant cites In re A.O. (2017) 18 Cal.App.5th 

390, 392–393 (A.O.), which reversed the juvenile court’s dismissal of an 

ineligible charge nearly three years after the disposition. However, A.O. 

limited its analysis to Welfare and Institutions Code section 733 because, in 

dismissing the non-eligible offense, the juvenile court “never purported to 

invoke” Welfare and Institutions Code section 782.

5 (A.O., at p. 394.) The 

reviewing court assumed a juvenile court could have post-dispositional 

authority to dismiss for the sole purpose of securing a DJJ commitment. (Id.

at p. 396.) But based on the “the sparse record,” the court could not 

determine whether the juvenile court’s dismissal of the disqualifying offense 

5 Similarly, in In re D.B., supra, 58 Cal.4th at p. 945, cited by appellant 

the juvenile court did not consider (or even mention) Welfare and Institutions 

Code section 782.
37

was a proper exercise of discretion. (Id. at pp. 396–397.) The record of the 

underlying proceedings was not part of the record on appeal; thus the court 

had “no idea whether appellant made the admissions pursuant to a plea 

agreement, or whether any representations were made with regard to his 

possible placements.” (Id. at p. 396.) Indeed, the A.O. court did not have 

“any record of the facts underlying the offense that purportedly qualifie[d]

him for a DJ[J] commitment.” (Ibid.)

Equally unavailing is appellant’s reliance on In re Albert M. (1992) 7 

Cal.App.4th 353, 358–359, in which a juvenile court dismissed a petition, on a 

minor’s request, without making any express or implied findings, but “merely 

noted that the matter had been continued many times, and that the minor 

had spent as much time in court as he would have spent in juvenile hall if 

‘convicted.’ ” In reversing, the court explained the mere passage of time, 

without a showing of prejudice to the minor, was not a valid finding under 

Welfare and Institutions Code section 782. (Ibid.)

Here, unlike in A.O., our review is not hindered by a “sparse record.” 

Quite the contrary. The instant appeal is one of five cases either previously 

considered by or pending before this court. There is ample evidence 

regarding the underlying offenses and the evidence before the juvenile court. 

The jurisdictional hearing spanned 14 days, with numerous witnesses and 

exhibits. The court was well-versed with the specifics of appellant’s case and 

had previously determined DJJ was an appropriate placement. 

Unlike in Alfred M., the record supports an implied finding that the 

dismissal was not granted merely due to the passage of time. Rather, the 

prosecution, citing Greg F., supra, 55 Cal.4th 393, made the motion on the 

grounds that it was in the best interest of justice and welfare of appellant, 
38

which the juvenile court recognized when it ordered the initial DJJ 

commitment. 

It is true that neither the prosecution nor the juvenile court expressly 

mentioned Welfare and Institutions Code section 782 at the hearing. And, 

the court did not provide its reasons for granting the dismissal at the 

hearing. However, at the time of the hearing, the juvenile court had no 

express obligation to state its reasons on the record.6 (See former Welf. & 

Inst. Code, § 782, as amended by Stats. 2014, ch. 249, § 1.) Nevertheless, the 

court was obligated to provide a statement of its reasons in the minutes. 

(Greg F., supra, 55 Cal.4th at p. 413; Cal. Rules of Court, rule 5.790(a)(2)(A).) 

It did not do so. This requirement is mandatory, not directory. (In re Juan 

C. (1993) 20 Cal.App.4th 748, 753.) “Accordingly, the failure to comply with 

this requirement renders the dismissal ‘without effect.’ ” (A.O., supra, 18 

Cal.App.5th at p. 396.) We conclude the matter must be remanded for the 

limited purpose of allowing the court to correct this defect by setting forth its 

reasons in a written order entered upon the minutes. (See People v. Bonnetta

(2009) 46 Cal.4th 143, 153 [providing for a limited remand in context of an 

analogous § 1385 dismissal]; People v. Superior Court (Arthur R.) (1988) 199 

Cal.App.3d 494, 498, fn. 3 [“Although juvenile proceedings are not criminal

. . . and not controlled in all respects by statutes and rules applicable to 

criminal proceedings and appeals, a general parallel has been 

acknowledged”].)

6 Effective January 1, 2023, Assembly Bill No. 2629 (2021-2022 Reg. 

Sess.) amended Welfare and Institutions Code section 782, subdivision (b), to 

provide: “The reasons for a decision under this section shall be stated orally 

on the record. The court shall also set forth the reasons in an order entered 

upon the minutes if requested by either party or in any case in which the 

proceedings are not being recorded electronically or reported by a court 

reporter.” (Welf. & Inst. Code, § 782, subd. (b).)
39

B. Sufficiency of Findings Supporting SYTF Commitment 

Appellant next claims the court’s findings are insufficient because the 

court failed to address any less restrictive alternatives and did not articulate 

its analytical process as to why such alternatives could not reasonably protect 

the state’s interests.

In making the determination to commit a youth to a secure treatment 

facility, the juvenile court “shall consider all relevant and material evidence, 

including the recommendations of counsel, the probation department, and 

any other agency or individual designated by the court to advise on the 

appropriate disposition of the case. The court shall additionally make its 

determination based on all of the following criteria: [¶] (A) The severity of the 

offense or offenses for which the ward has been most recently adjudicated, 

including the ward’s role in the offense, the ward’s behavior, and harm done 

to victims[;] [¶] (B) The ward’s previous delinquent history, including the 

adequacy and success of previous attempts by the juvenile court to 

rehabilitate the ward[;] [¶] (C) Whether the programming, treatment, and 

education offered and provided in a secure youth treatment facility is 

appropriate to meet the treatment and security needs of the ward[;] [¶] (D) 

Whether the goals of rehabilitation and community safety can be met by 

assigning the ward to an alternative, less restrictive disposition that is 

available to the court[;] [¶] (E) The ward’s age, developmental maturity, 

mental and emotional health, sexual orientation, gender identity and 

expression, and any disabilities or special needs affecting the safety or 

suitability of committing the ward to term of confinement in a secure youth 

treatment facility.” (Welf. & Inst. Code, § 875, subds. (a)(3)(A)–(a)(3)(E).)

Appellant argues the court committed him to SYTF without discussing 

any of the factors except B, noting he had no prior delinquent history. As to 
40

the other factors, he contends the court “merely recited the statutory 

language.” In rendering its decision, the court stated, “The Court finds that a 

less-restrictive alternative disposition is unsuitable. The youth is committed 

to the secure youth treatment facility.” Appellant argues the court’s 

“perfunctory recitation did not meet the requirements for evaluating the 

criteria, thwarted the purpose of the legislation, and its finding was 

unsupported by the record.” We disagree.

“[T]here is no rule that [a SYTF] placement cannot be ordered unless 

less restrictive placements have been attempted, and there is no requirement 

that the juvenile court expressly state on the record the reasons for rejecting 

less restrictive placements.” (In re Nicole H., supra, 244 Cal.App.4th at p.

1159.) 

Nothing in Welfare and Institutions Code section 875, subdivision (a)(3) 

requires a court to include a statement of reasons in support of a finding of 

the unsuitability of a less restrictive alternative disposition. Rather, the 

statute merely states the additional five criteria that a juvenile court must 

consider in making its determination. When a requirement for a statement 

of reasons exists, the Legislature knows how to include such a provision in a 

statute. For example, in amending Welfare and Institutions Code 

section 782, the Legislature added subdivision (b), which states in relevant 

part, “The reasons for a decision under this section shall be stated orally on 

the record.” Similarly, Welfare and Institutions Code section 707, the statute 

governing fitness hearings, provides, “If the court orders a transfer of 

jurisdiction, the court shall recite the basis for its decision in an order entered 

upon the minutes, which shall include the reasons supporting the court’s 

finding that the minor is not amenable to rehabilitation while under the 

jurisdiction of the juvenile court.” (Id. at subd. (a)(3).)
41

“When the Legislature uses materially different language in statutory 

provisions addressing the same subject or related subjects, the normal 

inference is that the Legislature intended a difference in meaning.” (People v. 

Trevino (2001) 26 Cal.4th 237, 242; In re A.E. (2019) 38 Cal.App.5th 1124, 

1146 [same].) Accordingly, there is no merit to appellant’s assertion that 

Welfare and Institutions Code section 875 requires a statement of reasons on 

the record. (See, e.g., In re A.L. (2022) 73 Cal.App.5th 1131, 1156 [juvenile 

court not statutorily required to recite specific findings when it concludes at 

permanency-planning stage of dependency proceedings that termination of 

parental rights would not be detrimental].)

C. Sufficiency of Evidence Supporting SYTF Commitment 

Finally, appellant claims the record does not support the juvenile 

court’s conclusion that there was no less restrictive alternative available.7 He 

contends his rehabilitative needs could have been met in the community due 

to his low risk of reoffending, and the court improperly relied upon the nature 

of the crime to justify the placement.

1. Additional Background

Before issuing its commitment order, the court considered the following 

evidence: 

i. Probation Department’s Addendum Report

On October 13, 2021, probation filed an Addendum Dispositional 

Report and Recommendation, providing the following information: Although 

appellant’s achievements were “stellar” and he had a “very supportive 

extended family, a family of working professionals,” probation recommended 

he be committed to the Juvenile Justice Center (JJC). JJC was “the only 

7 Appellant does not challenge the juvenile court’s finding that SYTF 

commitment would provide a probable benefit to him. 
42

appropriate secure setting program available” and that a secure option was 

appropriate “based on the severity of the charges and ensures [appellant’s] 

safety, while allowing him access and engage[ment] in rehabilitative services 

in an effort to become a successful and productive member of society.”

Additionally, examination of “the family history has shown severe 

psychological trauma. [Appellant’s] older brother, [R.W.], was stabbed to 

death in 2014, the crime was witnessed by [appellant] and his younger 

brother. The deceased victim in the current case is believed to have been at 

the scene of [R.W.’s] stabbing. . . There are no records of [appellant] or any of 

his family members engaging in grief counseling/therapeutic support or 

requesting support from any community-based organizations to address the 

death in the family and cope with this enormous loss.” This evidence 

supported the conclusion in the report that appellant “must complete an 

intensive rehabilitation program in a secure setting prior to release.”

The probation department had “considered all available dispositional 

options taking into consideration [appellant’s] safety, the safety of the 

community, and the seriousness of the crime. [Appellant’s] safety is a 

concern as retaliation would most likely be imminent—which means that any 

local placement would not be safe for him.” The “[f]amily members offered to 

relocate to provide a Resource Family Approval . . . placement [outside of 

California],” but the probation department believed appellant “must complete 

an intensive rehabilitation program in a secure setting prior to release.” 

Appellant “did not meet the criteria for placement in a California [short-term 

residential therapeutic program] . . . as he is 19 years old with a High School 

Diploma and due to the seriousness of the offense.” Additionally,

commitment to an out-of-state facility was “not possible due to the recent 

decertification of out-of-state placements.” Also, there was “no viable ranch 
43

type facility, and a non-secure setting would not be an appropriate 

recommendation[.]” 

ii. Appellant’s Addendum Report

On November 23, 2021, appellant filed an Addendum Dispositional 

Report, attaching an assessment and report from the Center for Juvenile and 

Criminal Justice (CJCJ) recommending he be permitted to relocate and 

attend college as discussed in the report, and a report about trauma resulting 

from juvenile incarceration. On November 30, 2021, appellant filed a report 

of a psychological evaluation, indicating he had a low risk to reoffend.

iii. Dispositional Hearing

At the dispositional hearing on December 1, 2021, appellant’s probation 

officer Tony Hurley recommended that appellant be committed to juvenile 

hall. He had considered a DJJ commitment, but it was no longer an option 

due to the change in the Juvenile Court Law. Although appellant had made 

“[e]xcellent” progress, Hurley recommended he remain in juvenile hall 

because “he need[ed] to be held accountable for his actions and continue with 

services.” 

Dr. Rami Mogannam, Ph.D., a licensed clinical psychologist,

testified as an expert for the defense. Dr. Mogannam conducted a 

psychological evaluation of appellant and diagnosed him with post-traumatic 

stress disorder (PTSD). Appellant had mitigated his PTSD through his own 

efforts, and to some degree through treatment. Dr. Mogannam opined that 

appellant presented a low risk to public safety.

Malik Wade and Laura McDonnell were facilitators of Next Steps 

Liaison Project, a youth advocacy program that promoted emotional literacy 

inside JJC. Wade began working with appellant since he had been in

juvenile hall; Wade had contact with appellant on a weekly basis. Every 
44

week, appellant seemed to have attained a new level of growth and maturity. 

Appellant “never cease[d] to amaze” Wade in terms of his ability to 

understand the seriousness of his predicament. Although Wade and 

appellant never discussed the specifics of the underlying crimes, Wade did 

not believe he was a threat to society. Appellant was “very smart” and was 

also “very goal oriented” in terms of reuniting with his family. Wade did not 

believe appellant would engage in criminal conduct if released.

McDonnell described appellant as “settling into some maturity, 

thinking about the long term of his life.” He was very committed to his 

college classes, which really kept him focused. McDonnell believed appellant 

would be able to continue his focus if released; she had no reason to believe 

he would pose any threat to society.

Carlos Morales, appellant’s uncle and a college faculty member, 

testified about the family plan where appellant would go to a safe location to 

continue his education and rehabilitation by enrolling in a university and 

obtaining appropriate therapy. Morales would supervise and support

appellant. Speaking as an educator, Morales said that the conditions in 

juvenile hall, such as lack of access to computer time, resources, and 

instructors, had been limiting, and appellant had not had the appropriate 

time to enroll full-time in college, which kept him from performing at his 

peak. 

Madelin Orr worked for CJCJ. Orr had filed two reports regarding the

CJCJ’s plan for appellant to relocate to a safe, non-secure location; the 

service providers for the plan were ready to work with appellant 

immediately. 

The court then heard argument from counsel. Defense counsel began 

by stating appellant was the most extraordinary person he had encountered 
45

in the juvenile justice system in decades of practice - “a young person who is 

so well socialized, has got so much family support, who has achieved such 

great accomplishments.” He acknowledged the seriousness of the offense, but 

also noted that there was no prior criminal history. He argued treatment 

was available in the community, and appellant’s maturity and low risk level 

showed that the less restrictive placement option was suitable.

The prosecutor asked for the court to follow probation’s

recommendation and keep appellant in JCC. He argued the plan proposed by 

the defense was “wholly inadequate” for appellant’s wellbeing because it 

lacked safety measures, was not in a locked facility, and offered “no 

confidence of success.” He concluded that, “It is not an appropriate 

disposition for the gravity of his conduct, his situation, his safety, and his 

growth.”

2. Analysis 

As discussed, in the context of SYTF commitments, courts are 

instructed to consider the following criteria: “(A) The severity of the offense or 

offenses for which the ward has been most recently adjudicated, including the 

ward’s role in the offense, the ward’s behavior, and harm done to victims. [¶] 

(B) The ward’s previous delinquent history, including the adequacy and 

success of previous attempts by the juvenile court to rehabilitate the ward. 

[¶] (C) Whether the programming, treatment, and education offered and 

provided in a secure youth treatment facility is appropriate to meet the 

treatment and security needs of the ward. [¶] (D) Whether the goals of 

rehabilitation and community safety can be met by assigning the ward to an 

alternative, less restrictive disposition that is available to the court. [¶] (E) 

The ward’s age, developmental maturity, mental and emotional health, 

sexual orientation, gender identity and expression, and any disabilities or 
46

special needs affecting the safety or suitability of committing the ward to a 

term of confinement in a secure youth treatment facility.” (Welf. & Inst. 

Code, § 875, subd. (a)(3)(A)–(E).)

Appellant asserts “[t]he circumstances indicate that the SYTF 

commitment order was based on the seriousness of the offense since all other 

factors were in appellant’s favor,” and “the Legislature has specified that the 

seriousness of the offense is only a single factor,” and argues that his 

continued incarceration serves “an overwhelmingly punitive purpose in 

violation of the Juvenile Court law.” In support of this position, appellant 

seeks to discredit the probation department’s reports. He further contends 

that in light of his low risk of reoffending, combined with his stellar academic 

and personal achievements, plus an extremely supportive family, placement 

in the community was a suitable less restrictive means. 

Conflicting evidence does not render a juvenile court’s commitment 

order an abuse of discretion or warrant its reversal; the evidence may not be 

reweighed on appeal. (In re N.C. (2019) 39 Cal.App.5th 81, 87–88.) In 

making a placement determination, a juvenile court need not follow any 

particular order in its placement of a juvenile, i.e., from least to most 

restrictive, and a juvenile court does not necessarily abuse its discretion by 

committing a youth to a secure facility before other options have been 

exhausted. (See John L. v. Superior Court (2004) 33 Cal.4th 158, 184–185, 

fn. 10.) So long as a court concludes that alternative placements would be 

ineffective, a court need not try other placements prior to ordering 

commitment to a secure facility. (See In re Ricky H. (1981) 30 Cal.3d 176,

183; In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) When “ ‘there is evidence 

in the record to show a consideration of less restrictive placements was before 

the court, the fact the judge does not state on the record his consideration of 
47

those alternatives and reasons for rejecting them will not result in a 

reversal.’ [Citation.] On the other hand, ‘there must be some evidence to 

support the judge’s implied determination that he sub silentio considered and 

rejected reasonable alternative dispositions.’ ” (In re Nicole H., supra, 244 

Cal.App.4th at p. 1159.)

The record makes clear that the considerations of less restrictive 

placements was before the court. The disposition report stated that a local 

placement would not be safe for appellant as “retaliation would most likely be 

imminent,” that family relocation outside of California was not available 

until appellant completed “an intensive rehabilitation program in a secure 

setting prior to release,” that placement in a short-term residential 

therapeutic program was not appropriate because appellant was then “19

years old with a High School Diploma and due to the seriousness of the 

offense,” that an out-of-state facility was “not possible due to the recent 

decertification of out-of-state placements,” and there was “no viable ranch 

type facility, and a non-secure setting would not be an appropriate 

recommendation.” Defense counsel argued at length in favor of a treatment 

program in the community as being a less restrictive placement. 

The record contains evidence supporting an implied determination that 

less restrictive alternatives would have been inappropriate, based, for 

example, on the “severity of the offense” (Welf. & Inst. Code, § 875, subd. 

(a)(3)(A))—appellant used a semiautomatic firearm to fire 21 shots into the 

passenger compartment of a vehicle, killing one occupant and injuring 

another—as well as the “security needs of the ward” (Id. at subd. (a)(C))—as 

noted by probation retaliation would be “imminent”—as well as “[w]hether 

the goals of rehabilitation and community safety can be met by assigning the 

ward to an alternative, less restrictive disposition” (Id. subd. (a)(3)(D))—
48

probation believed appellant “must complete an intensive rehabilitation 

program in a secure setting prior to release.”

That appellant presented contrary evidence does not alter our 

conclusion. Rather, indulging all reasonable inferences to support the 

juvenile court’s decision” (In re Angela M. (2003) 111 Cal.App.4th 1392,

1396), we find substantial evidence supports the juvenile court’s finding of 

the inappropriateness or ineffectiveness of the less restrictive alternatives. 

Accordingly, the court did not abuse its discretion in ordering the

SYTF commitment. 

VI. Custody Credits

Appellant contends the court erred by applying his custody credits to 

his theoretical maximum exposure instead of the actual physical custodial 

term. 

He relies on our decision in In re Ernesto L. (2022) 81 Cal.App.5th 31, 

40–43 (Ernesto L.), which held that in a DJJ commitment a minor’s 

precommitment credits should be applied against a ward’s actual maximum 

custodial term imposed under Welfare and Institutions Code section 731, 

subdivision (b) rather than against the theoretical maximum calculated 

under Welfare and Institutions Code section 726, subdivision (d). 

While we understand the parallel appellant seeks to draw between 

commitments to an SYTF under Welfare and Institutions Code section 875 

and commitments to the DJJ under Welfare and Institutions Code 

section 731, the applicable statutes differ. 

In Ernesto L., we held when a minor is committed to the DJJ, the 

juvenile court must apply any precommitment custody credits against the 

maximum custodial term under Welfare and Institutions Code section 731 
49

rather than against the maximum exposure term of confinement set under 

section 726. (Ernesto L., supra, 81 Cal.App.5th at p. 34.) 

Appellant argues because SYTF commitments have now replaced DJJ 

commitments, we should apply the reasoning of Ernesto L. and apply the 

credits to the baseline term set under Welfare and Institutions Code 

section 875, subdivision (b). While appellant’s argument has some facial 

appeal, we are not persuaded that our reasoning in Ernesto L. should extend 

to confinements under Welfare and Institutions Code section 875.

Welfare and Institutions Code section 875, subdivision (b) provides that 

the juvenile court “shall set a baseline term of confinement,” which “shall 

represent the time in custody necessary to meet the developmental and 

treatment needs of the ward and to prepare the ward for discharge to a 

period of probation supervision in the community.” The “baseline term of 

confinement” concept did not exist prior to the enactment of Welfare and 

Institutions Code section 875 as part of the realignment of wards from the 

now-closed DJJ to county-based custody. (Legis. Counsel’s Dig., Sen. Bill No. 

92 (2021-2022 Reg. Sess.) Previously, when a ward was committed to the 

DJJ, in addition to the maximum term of confinement required by Welfare 

and Institutions Code section 726, the court was required to “set a maximum 

term based upon the facts and circumstances of the matter or matters that 

brought or continued the ward under the jurisdiction of the court and as 

deemed appropriate to achieve rehabilitation.” (Welf. & Inst. Code, § 731, 

subd. (b).) Welfare and Institutions Code section 731 thus “permit[ted] the 

juvenile court in its discretion to impose either the equivalent of the 

‘maximum period of imprisonment that could be imposed upon an adult 

convicted of the offense or offenses’ committed by the juvenile [Welf. & Inst. 

Code] (§ 731, subd. (c)) or some lesser period based on the ‘facts and 
50

circumstances of the matter or matters that brought or continued’ the 

juvenile under the court’s jurisdiction.” (In re Julian R. (2009) 47 Cal.4th 

487, 498.)

The baseline term is meant to “represent the time in custody necessary 

to meet the developmental and treatment needs of the ward and to prepare 

the ward for discharge to a period of probation supervision in the 

community.” (Welf. & Inst. Code, § 875, subd. (b)(1).) It is subject to change 

at regular intervals, depending on the ward’s progress: The court is required 

to hold a “progress review hearing for the ward not less frequently than once 

every six months” and, at each hearing, the court must “evaluate the ward’s 

progress in relation to the rehabilitation plan” and “determine whether the 

baseline term of confinement is to be modified.” (Id. at subd. (e)(1)A).) The 

court, at each hearing, has discretion to order that the ward “remain in 

custody for the remainder of the baseline term” or that the baseline term be 

reduced by a period “not to exceed six months for each review hearing.” 

(Ibid.) At the conclusion of the baseline confinement term, the court must 

discharge the ward to a period of probation supervision in the community 

unless the court finds that the ward “constitutes a substantial risk of 

imminent harm to others in the community if released from custody.” (Id. at 

subd. (e)(3).) If the court so finds, it may order that the ward remain in 

custody for “up to one additional year of confinement, subject to the review 

hearing and probation discharge hearing provisions of this subdivision and 

subject to the maximum confinement provisions of subdivision (c).” (Ibid.)

It is evident that the baseline term is a modifiable period intended to 

reflect the minor’s treatment needs and rehabilitative progress on an ongoing 

basis. Welfare and Institutions Code section 875 calls for the court to 

determine the initial baseline term based on the ward’s most serious offense 
51

and time deemed necessary for treatment and rehabilitation, and then to 

regularly evaluate the ward’s progress and shorten the baseline term if 

warranted by that progress. Applying precommitment custody credits—

which have nothing to do with a ward’s rehabilitative progress—to the 

baseline confinement term would upset the legislatively crafted process of 

tailoring the baseline confinement term of confinement to the ward’s 

“developmental and treatment needs” and preparation for discharge from 

custody.

We find the baseline term is not equivalent to the maximum custodial 

term set under Welfare and Institutions Code section 731 that we addressed 

in Ernesto L. Thus, we decline to extend Ernesto L. to baseline terms for 

SYTF commitments, which are governed by Welfare and Institutions Code 

section 875 and may be adjusted downward as soon as six months from the 

disposition order.8 

In sum, the juvenile court did not err by applying appellant’s custody 

credits against his maximum period of confinement.

VII. Restitution

Appellant argues, and the People concede, the court erroneously 

imposed a $10 restitution administrative fee for each felony. We agree.

At the disposition hearing on December 29, 2021, the court ordered 

appellant “to pay [a] state restitution fine of each felony of $100, $10 

administrative fee—and an administration fee of $10 per felony.” The 

restitution fine and administrative fees do not appear on the written 

8 As the People correctly note, Welfare and Institutions Code 

section 875 was amended in 2022 to specifically state that “[p]recommitment 

credits for time served must be applied against the maximum term of 

confinement as set pursuant to this subdivision.” (Welf. & Inst. Code, § 875, 

subd. (c)(1)(C), amended by Stats. 2022, ch. 58, § 41.)
52

disposition order. As best we can tell, it appears the court ordered a $100 

restitution fine and a discretionary $10 fee per felony multiplied by seven 

felonies for an additional amount of $70. 

Pursuant to Welfare and Institutions Code section 730.6, subdivision 

(b), “[i]f a minor is found to be a person described in Section 602, the court 

shall impose a separate and additional restitution fine.” The fine is set 

commensurate with the seriousness of the offense and, for felony offenses, the 

fine shall not be less than one hundred dollars ($100) and not more than one 

thousand dollars ($1,000). (Id., subd. (b)(1).) Beyond the statutory 

minimums, Welfare and Institutions Code section 730.6 provides for 

discretionary administrative costs in collecting the restitution fine. (Id., 

subd. (q).) Specifically, subdivision (q) provides: “At its discretion, the board 

of supervisors of any county may impose a fee to cover the actual 

administrative cost of collecting the restitution fine, not to exceed 10 percent 

of the amount ordered to be paid, to be added to the restitution fine and 

included in the order of the court, the proceeds of which shall be deposited in 

the general fund of the county.”

Appellant does not challenge the imposition of the statutory minimum 

restitution fine pursuant to subdivision (b)(2) of Welfare and Institutions 

Code section 730.6. Rather, he argues the administrative costs were 

statutorily unauthorized in light of a City and County of San Francisco 

ordinance that abolished such fees in 2018. (San Francisco Ord. No. 131-18. 

§ 2, eff. July 1, 2018.)9 San Francisco Ordinance No. 131-18 eliminated 

section 8.36 of the San Francisco Municipal Code, which previously 

authorized the Juvenile Probation Department “to collect a fee to cover the 

9 We granted appellant’s request to take judicial notice of San Francisco 

Ordinance No. 131-18.
53

actual administrative cost of collecting any victim restitution fine included in 

an order of the court pursuant to Welfare and Institutions Code 

section 730.6.” (San Francisco Ord. No. 131-18, § 2, at p. 5.)

Based on the deletion of section 8.36 from the San Francisco 

Administration Code in 2018, the trial court no longer had authority to 

impose the discretionary collection fees set forth in subdivision (q) of Welfare 

and Institutions Code section 730.6. As noted, however, neither these fees 

nor the statutory minimum restitution fine were included in the written 

disposition order. The oral rendition of judgment controls over any 

discrepancy with the ministerial minutes. (People v. Delgado (2008) 43 

Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. 

Sharret (2011) 191 Cal.App.4th 859, 864.) The written disposition order must 

be modified to reflect the disposition orally imposed by the court, which 

included a mandatory $100 restitution fine. (People v. Gabriel (2010) 189 

Cal.App.4th 1070, 1073.)

DISPOSITION

The jurisdictional and dispositional findings and orders as they pertain 

to counts I, III, IV, and VII are affirmed. 

With respect to count II, the jurisdictional and dispositional findings 

are affirmed, but the premeditation and deliberation finding as to count II is 

vacated. 

The jurisdictional and dispositional findings and orders as they pertain 

to counts V and VI are vacated. 

The restitution collection fines ordered by the juvenile court are 

vacated. 

The matter is remanded for the juvenile court to provide a revised 

dispositional order: (1) adding the $100 required restitution fine; and (2)
54

stating its reasons for dismissing count VIII.

The order committing J.W. to a SYTF is affirmed.

Upon completion of the actions hereby directed the juvenile court shall 

amend its records as may be appropriate and prepare, file and serve a new 

corrected order of commitment.
55

LANGHORNE WILSON, J.

WE CONCUR:

HUMES, P. J.

CASTRO, J.

A164366N

 Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.