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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 Law.

2d Juv. No. B299171

(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 Division of Juvenile Justice for a 

maximum confinement period of 36 years eight months after the 

trial court sustained a petition for two counts of assault with a 

firearm (counts 2 & 4; Pen. Code, § 245, subd. (a)(2))1and 

attempted second degree robbery (count 3; §§ 664/211), 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)). Appellant 

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 counts 2 and 4, and (3) that 

the trial court erred in calculating the maximum period of 

confinement. The Attorney General agrees that issues 2 and 3 

have merit. We reverse 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 

twice (§ 12022.7, subd. (a)) to calculate the maximum period of 

confinement on count 2, and that it recalculate the maximum 

period of confinement. (Welf. & Inst. 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 apartments in Harbor City. Appellant, an 

active member of the Harbor City Crips, demanded to know 

where they were from. Brian 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 it to Brian’s neck. 

Antonio told them 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 reached the corner and called 911.

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

The police found blood and .380 caliber casings on the sidewalk

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 hoodie and 

pants and Nike Jordans shoes. The description matched 

appellant. Los Angeles Police Officer Sterling Byrd stopped 

appellant (aka Janky) and Harbor City Crips gang member

Zeache R. (aka Duda) four hours earlier, trespassing at the 

apartment complex about 20 feet from where the bullet casings

were found. Appellant was wearing a black hoodie, dark jeans, 

and black Nike shoes that resembled Nike Jordans. 

On July 12, 2017, six days after the shooting, 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 shooter and said “I think 

so.” Antonio was less sure and could not identify 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 

Anaheim Gardens apartments is a hangout for the Harbor City 

Crips, an organized street gang that commits murders, attempted 

murders, robberies, burglaries, and sells narcotics. Gang 

members often carry firearms and challenge others by asking 

where they are from. Officer Byrd stated that appellant was an 

active Harbor City Crips gang member, had gang tattoos, and 

performed in music videos promoting the gang. The officer 

opined that the attempted robbery was for the benefit of the gang 

to obtain money for guns and drugs, and the shooting was to 
4

show the public that the gang would commit acts of violence 

against anyone who disrespected 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 suggestive and that any 

variance in the photos went to the weight of the identification. 

We independently review whether the photo lineup identification 

was unduly suggestive. (People v. Avila (2009) 46 Cal.4th 680, 

698-699.) “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 353, 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 and depict men 

with goatees and mustaches, and slender faces. 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. Antonio was shown the six-pack photo lineup, 

could not make a positive identification, and did not identify 
5

appellant at trial. Appellant cross-examined 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 used booking 

photos from the police computer system and did not manipulate 

or Photoshop the photos. 

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 nearly 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) 32 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.4th 1183, 1217 [same; defendant only 

person depicted in jail clothing not unduly suggestive].)

Assuming, arguendo, that the photo lineup was 

unduly suggestive, appellant must show the victims’

identification was not reliable “‘under the totality of the 

circumstances, 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

the confrontation, and the time between the crime and the 

confrontation [citation].’” (Ochoa, 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 that it denied 

him a fair trial. (People v. Nguyen (1994) 23 Cal.App.4th 32, 40.)

Appellant argues that a detective conducted the 

photo lineup in a suggestive way but the 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. Detective Rudy Avelar 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 identifications 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 unduly suggestive or rendered 

Brian’s in-court identification unreliable. (Ochoa, supra, 19 

Cal.4th at p. 412.) The photos depict men of the same general 

age, complexion, build, and appearance. “Minor differences in 

facial hair among the participants [do] not make the lineup 

suggestive. [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 firearm enhancement 

(§ 12022.53) on count 2 (ADW of Brian) was true. The 

enhancement does not apply because section 12022.53, 

subdivision (a)(7) limits the enhancement to the armed assault of 

a peace officer or a firefighter. (§ 245(d); see 3 Witkin & Epstein, 

Cal. Criminal Law, (4th ed. 2012) Punishment, § 359, p. 552.) We 

accordingly strike the true finding on the section 12022.53 

enhancement on count 2.

Appellant complains that the trial court imposed a 

10-year section 12022.53 firearm enhancement on count 2. The

trial court said it was adding 10-years 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 years . . . .” 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. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

Appellant complains that the trial court found all the 

count 2 enhancements true but did not specifically mention the 

section 12022.5 firearm enhancement. On count 4 (armed 

3

Selecting count 2 as the principal term, 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) [gang enhancement], adding 10 years. The court 

is adding the 12022.5 special allegation, adding another 10 years. 

So as to count 2, the court’s calculation is 27 years.” (Italics 

added.) 
8

assault on Brian), it found the section 12022.5 allegation was 

true, then backed up to count 2 and clarified that it was finding 

the count 2 “special allegations to be true beyond a reasonable 

doubt,” which included both the 12022.5 and 12022.53 firearm 

enhancements. It did not err. Because the section 12022.5 

enhancement is a lesser included enhancement of section 

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 enhancement is found true].) 

Dual Use of GBI Enhancement

Appellant argues and the Attorney General agrees 

that the trial court erred in imposing both a 10-year gang 

enhancement and a three-year great bodily injury (GBI) 

enhancement on count 2. Appellant’s commitment to the 

Department of Juvenile Justice cannot exceed the maximum 

term of imprisonment that could be imposed on an adult 

convicted of the same offense. (Welf. & Inst. Code, § 726, subd. 

(d)(1); see In re Eddie M. (2003) 31 Cal.4th 480, 488 [discussing 

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, subd. (a)) to elevate the armed assault 

(§ 245, subd. (a)(2)) to a violent felony, which in turn elevated the 
9

gang enhancement to 10 years (§ 186.22, subd. (b)(1)(C).) That is 

spelled out in the prosecution’s sentencing memo which asked the 

trial court to impose 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 GBI enhancement could be used only once and 

imposed a three-year GBI enhancement for a maximum 

commitment period of 27 years on count 2. The court said 

“[t]here were separate victims involved . . .” but count 2 involved 

just one victim (Antonio). Because the 10-year gang 

enhancement is the greater enhancement, we strike the threeyear 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 prior 

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 Attorney General agrees, 

that the trial court erred in imposing both a firearm 

4 Appellant has prior sustained petitions, one filed on 

February 1, 2016 for attempted burglary (§§ 664/459), and a 

second petition filed on June 3, 2016 for two counts of second 

degree robbery 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 injury (§ 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 confinement 

was 20 years. (In re M.A. (Aug. 17, 2017, B277400).)
10

enhancement (§ 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 enhancement because he 

“‘use[d] a firearm which use [was] charged 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 

punishment 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 firearm 

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 accordingly 

strike the one-year-four-month firearm enhancement (§ 12022.5, 

subd. (a) - one third the four-year enhancement term) and 

remand to give the trial court the opportunity to restructure 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. & Inst. 
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 Bernstein, 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. Davis, 

Deputy Attorneys General, for Plaintiff and Respondent.