Filed 10 / 19 / 20 In re M.A. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re M.A. , a Person Coming Under the Juvenile Court L aw. 2d Juv. No. B 299171 (Super. Ct. No. NJ28699 ) ( Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,

v.
M.A.

, Defendant and Appellant.

M.A. appeals a wardship order (Welf. & Inst. Code, § 602) committing him to the Div ision of Ju v enile Justice for a
maximum confinement peri o d of 36 years eight months after the trial court sustained a petition for two counts of ass ault with a firearm (counts 2 & 4; Pen. Code, § 245, subd. (a)(2)) 1 and attempted second degree robbery (count 3; §§ 66 4/211)

, with firearm enhancements (count 3 ; § 12022.53, subd. (b) ; count 2 ;

1 All statutory references are to the Penal Code unless otherwise stated.2

§ 12022.53, subds. (b)

- (d) ; count 4 ; § 12022.5)

, great bodily injury
enhancements (count 2; § 12022.7, subd. (a))

, and gang enhancements (counts 2

- 4; § 186.22, subd. (b)(1)(C) )

. A ppellant
contends (1) that the pretrial photo identification was unduly suggestive and violated his due process rights

, (2) that a firearm
enhancement should be stricken on count s 2 and 4 , and (3) that
the trial court erred in calculati ng the maximum perio d of confinement. The Attorney General agrees that issues 2 and 3
have merit. We re verse and direct the trial court to strike the firearm enhancement on count 2 (§ 12022.53) and count 4 (§ 12022.5), that it not use the great bodily injury enhancement
twi ce (§ 12022.7, subd. (a)) to calculate the maximum period of confinement on c ount 2, and that it re calculat e the maximum period of confinement . (We l f

. & In st. Code, § 726, subd. (d)(3).) The judgment is otherwise affirmed.

Facts and Procedural History On the evening of July 6, 2017, appellant and three

men confronted Brian R. and Antonio R. as they walked by the Anaheim Gardens a partments in Harbor Ci ty. Appellant , an active member of the Harbor City Crips, demanded to know where they were from

. Bri an said they were not in a gang. Appellant kept asking, pulled out a semi

- automatic handgun

, and pointed it at Brian ’s throat . Brian raised his hands and offered his phone, hat, and money. Appellant shoved Brian against a car with the handgun and held i t to Brian’ s neck.

An tonio told the m to leave Brian alone

. The group
tried to take Antonio ’ s bike but he fought back. Appellant shot at Antonio’ s leg and fired more shots as Antonio and Brian ran.

Brian and Antonio re ached the corner and called 911

. A ntonio was transported to the hospital for a gun shot to the leg.3

The police found blood and .380 caliber casing s on the sidew a lk outside the apartment complex. Brian and Antonio said the
shooter had an afro , a mustache and goatee, was skinny with a pointy face and high cheekbones , and wore a dark ho o die and pants and Nike Jordans shoes. The description matched appellant. Los A ngeles Pol ic e Officer Sterling Byrd stopped appellant ( aka Janky) and Harbor City Crips gang member
Zeach e R. ( aka Duda) fou r hours earlier , trespassing at the apartment complex about 20 feet from where the bullet casing s

were found

. Appellant was wearing a black hoodie, dark jeans,
and black Nik e shoes t hat resembl ed Nike Jordans.

On July 12, 2 0 17, six days after the shoot ing, Brian
was shown a six

- pack photo lineup

, circled appellant’s photo

, and
said “‘No. 1. Looks like the suspect.’” At the adjudication hearing, Brian was asked if appellant was the shoote r and said “I think so.” Anton i o was less sure and could no t iden tify appellant at
trial. When Antonio was shown the photo lineup before trial, he
said “ ‘ that guy looks like the guy that shot me ’ ” but was not 100 percent sure.

Officer Byrd, a gang expert, testified that the
Anah eim Gardens apartment s is a hangout f or the Harbor City Crips

, an organized street gang that commit s murders, attempted
murde rs, robberies, burglaries, and sells nar cotics

. G ang members often carry firearms and challenge others by asking
where they are fr om. Officer B yrd stated that appella nt was an active H arbor City C rip s gang member, had gang tatto o s , and performed in mus ic vid e os promot ing the gang

. The officer opin ed that the attempted robbery was for the benefit of the gang to obtain money for guns and drugs, and the sho oting was to4

s how the public that the gang would commit acts of violence against anyone who disre spect ed the gang.

Photo Lineup Identification Appellant argues that the six

- pack photo lineup was unduly suggestive and violated his due process rights because his photo is zoomed in and more close up than the other photos . The trial court found that it was not unduly suggesti ve and that any
variance in the photos went to the weight of the identification

. We independently review whether the photo lineup identification

w as unduly suggestive. ( People v. Avila (2009) 46 Ca l .4th 680,
6 98

- 699 .) “A due process violation occurs only if the identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification .’ [Citation.]” ( People v. Cook (2007) 40 Cal.4th 1334, 1355.) The burden is on appellant to show the photo lineup was unduly suggestive and the identification was unreliable under the totality of the circumstances. ( People v. Ochoa (1998) 19 Cal.4th 3 53, 412 ( Ochoa ).) “The question is whether anything caused defendant to ‘ stand out ’ from the others in a way that would suggest the witness should select him. [Citation.] ” ( People v. Carpenter (1997) 15 Cal.4th 312, 367.)

Here the photos are similar a nd depict men with goatee s and mustache s , and slender face s

. The men are of similar race, age, and build, have short afro hair and thin faces or high prominent cheekbones. The background in each photo is a different color and appellant ’ s head appears to be slightly larger

, but the discrepancies are minor. Brian did not notice any difference in the photos or select appellant’ s photo because the
head was larger. A ntonio was shown the six

- pack photo lineup, could not make a positive identification, and did not identify5

appellant at trial

. Appellant cross

- examine d Brian and Antonio
about the photo lineup and questioned the officers who conducted the photo identification procedure which was videotaped. The detective who prepared the six

- pack photo lineup us ed booking photos from the police computer s y st em and did not manipulate

or P hotoshop the photo s.

A perfect photo lineup does not exist. “[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nea rly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered
unconstitutional

. . . where one suspect’s photograph is much more distinguishable from the others in the lineup. [Citations.]” ( People v. Brandon (1995) 3 2 Cal.App.4th 1033, 1052 ; see People v. Carter (2005) 36 Cal.4th 1114, 1163 [difference in shirt colors, photo boarder, glossy versus semi

- glossy photos, background color and image size are trivial immaterial distinctions ]; People v.
Johnson (1992) 3 Cal.4 th 1183, 1217 [ s ame; defendant only person depicted in jail clothing not unduly suggestive].)

Assuming, arguendo, that the photo lineup was

un duly suggestive, appellant must show th e victims’ identification was not reliable “ ‘ under the totality of the

c ircumstances , taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’ s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at

t he confrontation, and the time between the crime and the confrontation [citation]. ’ ” ( O choa

, supra , 19 Cal.4th at p. 412 ; see also Manson v. Brathwaite (1977) 432 U.S. 98, 114 [listing identification factors] .) Brian got a good look at the shooter even though it was dark. They were face

- to

- face about 20 seconds.6

Other evidence linked appellant to the shooting and robbery. Officer Byrd stopped appellant and a fellow gang member four hours before the shooting outside the apartment complex. The officer’ s body camera captured photos of appellant that closely
matched the victims ’ physical description of the shooter

. Appellant makes no showing that the photo identification was constitutionally unreliable ( Ochoa

, at p. 412) or tha t it denied him a fair tria l. ( People v. Nguyen (1994) 23 Cal.App.4th 32, 40.)

A p pellant ar gues that a detective conducted the photo lineup in a suggesti ve way but th e issue was not raised at
trial and forfeited

. ( Evid. Code, § 353; People v. Cunningham (2001) 25 Cal.4th 926, 989 .) On the merits, the argument lacks
merit. D etective Rudy Ave lar admonished Brian and Antonio they were under no obligation to identify anyone and the persons responsible for the shooting and attempted robbery may not be in
the photo lineup

. The photo identification s were in different rooms and videotaped

, and there is nothing to indicate that the
six

- pack photo lineup was assembled or presented in a suggestive

way

. 2

2 We have examined the photo lineup (Exhibit Nos. 14

- 16) and reject the argument that it is undu ly suggestive or rendere d Brian’ s in

- court identification unreliable. ( Ochoa

, supra , 19 Cal.4th at p. 412.) T he photos depict m en of the same general age, complexion, build , and appearance . “Minor differences in facial hair among the participants [do] not make the lineup
sugge stive. [Citation.] Nor [do] differences in background color and image size among the various photographs render the lineup impermissibly suggestive. [Citation.]” ( People v. Johnson (1992) 3 Cal.4th 1183, 1217.)7 Firearm Use Enhancement

– Count 2 Appellant argues, and the Attorney General agrees

, that the trial court erred in finding the f irearm en hancement (§ 12022.53) on count 2 ( ADW of Brian) was true

. The enhancement does not apply because section 12022.53, subd ivision (a)(7) limits the enhancement to the armed assault of a peace officer or a firefighter. (§ 245(d); see 3 Witkin & Epstei n, Cal. Criminal Law, (4th ed. 2012) Punishment, § 359, p. 552.) We accordingly strike the true finding on the s ection 12022

. 53 enhancement o n count 2.

Appellant complains that the trial court impos ed a 10

- year section 12022.53 firearm enhancement on count 2. T he
trial court s aid it was adding 10

- year s based on the section

12022.5 firearm enhancement

. 3 The disposition order erroneously states that on count 2 , the trial court imposed “12022

. 53(b)PC = 1 yea rs

. . . .” We remand with directions to
correct the June 12, 2019 disposition order to reflect that, on count 2, a 10

- year section 12022.5 firearm enhancement was imposed. ( Peopl e v. Mitchell (2001) 26 Cal.4th 181, 185.)

Appellant complains that the t rial court fou nd all the
count 2 enhancements true but did n ot specifically mention the
section 12022.5 firearm enhancement

. On count 4 ( armed

3 Selecting count 2 as the principal t erm, the trial court stated: “count 2, the 245(a)(2) [
, ] that carries a maximum of four years. The 12022.7, great bodily injury allegation, the court is adding 3 years to that principal. The court is also adding the 186.22(b)(1)(C) [gan g enhancement], ad ding 10 years. T he court is adding the 12022.5 special allegation

, adding another 10 years

. S o as to count 2, the court’s calculation is 27 years.” (Italics added.)8

assault on Brian)

, it f

ound the section 12022.5 allegation was

true , then backed up to count 2 and cla rified tha t it was finding
the c ount 2 “ special allegations to be true beyond a reasonable
doubt ,” which included both the 12022.5 and 12022. 5 3 firearm
enhancements. It did not err

. Because t he section 12022.5
enhancement is a lesser included enha n c ement of se ct io n 12022.53, a trial court may impose a section 12022.5 enhancement based on a finding that a section 12022.53
enhancement is true

. (See People v. Morrison (2019) 34 Cal.App.5th 217, 222 [court may impose a “ ‘ lesser included ’ ” enhancement when a greater en hancement is found true].)

Dual U se of GBI E nhancement Appellant argues and the A ttorney General agrees that the t rial court err ed in impos ing both a 10

- y e ar gang enhancement and a three

- year great bodily injury (GBI)
enhancement on count 2. A ppellant’ s commitment to the Department of Juvenile Justice cannot exceed the maximum

te rm of imprisonment that could be impose d on an adult convicted of the sa m e offense. (Welf. & I nst. Code, § 726, subd. (d)(1) ; see In re Eddie M. (2003) 31 Cal.4th 480, 488 [disc ussing former Welf. & Inst. Code, § § 726, subd. (c), 731, subd. (c); Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209,
1220 , disapproved on other grounds in In re C.B. (2018) 6 Cal.5th 118, 130. ) Where two or more enhancements may be imposed for a GBI on the same victim, on the same offense, only the greater enhancement may be imposed. (§ 1170.1, subd. ( g ); People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1331

- 1332.)

On count 2, the prosecution elected to use the GBI
enhancement (§ 12022. 7 , su bd. (a)) to elevate the armed assault (§ 245, subd. (a)(2) ) to a violent felony , which in turn elevated the9

gang enhancement t o 10 years (§ 186

. 22, subd. (b)(1)(C).) That is spelled out i n the prosecution’ s sentencing memo which asked the
trial court to i mpose a four

- year upper term on count 2 (ADW; § 245(a)(2)), plus 10 years on the gang enhancement, plus 10 years on the firearm enhancement (§ 12022.5, subd. (a)), for a maximum term of 24 years. The trial court overruled appellant’s objection that the GB I enhancement c ould be used only once and imposed a three

- year GBI e n hancement for a maximum
commitment period of 27 years on count 2

. The court said “[t]here were separate victims involved . . .” but c ount 2 involved just one victim ( Antonio ). Because t he 10

- year gang enhancement is the greater enhancement, we strike the three

year GBI enhancement and remand with directions to recalculate
the maximum period of confinement which , in the trial court’s
discretion may include consecutive terms from the two p rior

sustained petitions

, filed in 2016

. 4 (Welf. & Inst. Code, § 726, subd. (d)(3) ; In re David H. (2003) 106 Cal.App.4th 1131, 1133

- 1134 .) Count 4

- Firearm Enhancement

Appellant argues, and the A ttorney G eneral agree s , that the t r ial court erred in im posing both a firearm

4 Appellant has prior sustained petitions, one filed on February 1, 2016 for attempt ed burglary (§§ 664/459), and a second petition filed on June 3, 2016 for two counts of second degree robbe ry with a gang enhancement (§§ 212.5, subd. (c), 186.22, subd. (b(1)(C)), and two counts of assault by means of force likely to cause great bodily in jury ( § 245, subd. (a)(4)) with gang enhancements (§ 186. 22 , subd. (b)(1)(C)). We affirmed the judgment on the second petition but modified the disposition order to reflect that the aggregate maximum term of c onfinement was 20 years. ( In re M.A. (Aug. 17 , 2017, B277400) .)10

enh ancement ( § 12022.5, subd. (a)) and a gang enhancement (§ 186

. 22
, subd. (b)(1)(C) ) in calculating the maximum period of confinement on count 4. Unlike count 2 (ADW of Antonio), there was no GBI enhancement on count 4 (ADW of Brian ) to elevate
the armed assault to a violent felony

, and then use the ADW violent felony to elevate the gang enhancement to 10 years

. (See People v. Rodriguez (2009) 47 Cal.4th 501, 509.) Appellant

, however, was eligible for a 10

- year gang e nhancement bec ause he

“ ‘ use[d] a firearm which use [was] cha rged and proved as provided in

. . . Section 12022.5.’ (§ 667.5, subd. (c)(8).) [The] firearm use resulted in additional punishment not only under section 12022.5’ s subdivision (a) (providing for additional

p unishment for personal use of a firearm ) but also under section 186.22’ s subdivision (b)(1)(C), for committing a violent felony as defined in section 667.5, subdivision (c)(8) (by personal use of firearm) to benefit a criminal street gang. Because the fir earm use was punished under two different sentence enhancement provisions, each pertaining to firearm use, section 1170.1’ s subdivision (f) requires imposition of ‘ only the greatest of those
enhancements ’ with respect to [ count 4]. ” ( Ibid .) We accordingl y strike the one

- year

- four

- month firearm e nhancement (§ 12022.5, subd. (a)

- one third the four

- year enhancement term ) a nd remand to give the trial court the opportunity to restr ucture its sentencing choices. ( Ibid .) Disposition

The judgment is reversed with directions to: (1) strike
the section 12022.53 firearm enhancement on count 2; (2) strike the section 12022.5 firearm enhancement on section 4; and (3)
recalculate the maximum period of confinement. (Welf. & In st.11

Code, § 726, subd. (d)(3).) In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED

.
YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.John C. Lawson, II, Judge

Superior Court County of Los Angeles

______________________________ Mary Berns tein, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters

, Chief Assistant Attorney General, Susan Sullivan Pithey , Senior Assistant Attorney General, William H. Shin, Roberta L. Davi s , Deputy Attorneys General, for Plaintiff and Respondent.