People v. E.R.

Opinion

POLLAK, J. This is one of four appeals now before us arising from a single trial in which wardship and commitments to the Division of Juvenile Justice (DJJ) have been imposed on four minors for their roles in a gang-related shooting in which one innocent youth was killed and another wounded.

[468]On March 16, 2007, Antwanisha Morgan, Thomas J.,1 Antoine S., Chante R, and other young people were talking outside a recreation center in the Bayview district of San Francisco. About a month earlier, some of these youths (not identified as members of any gang) had chased members of the G-3 criminal street gang away from a talent show at the International Studies Academy (ISA), a high school, in the Potrero Hill district where the gang members had started a disturbance. On March 16, three members of the G-3 gang, T.Tr., E.R., and D.B., came to the recreation center and two of the three shot at the group of youths that were congregated there, killing Antwanisha and wounding Thomas J. Immediately after the shooting, all three drove off in a waiting car driven by Kamisha Gray and occupied by two other gang members, T.Tu. and another youth. An expert on criminal street gangs testified that he believed each of the four accused minors was a member of the G-3 gang, and that the shooting was in retaliation for the prior incident at the talent show and an attempt to rehabilitate the reputation of the gang by instilling fear in the community.

The juvenile court found that E.R. committed conspiracy, first degree murder, two counts of attempted murder, and assault with a deadly weapon. The court found true allegations that E.R. personally used a firearm in the commission of these offenses. The court also found that he committed the crimes for the benefit of or in association with a criminal street gang. E.R. was committed to the DJJ for a maximum of two terms of 25 years to life for the conspiracy and the murder, and additional concurrent terms for the remaining offenses. A maximum term of 25 years to life was imposed but stayed for the gang enhancement.

E.R. contends that after the court found him guilty of second degree murder, the court improperly changed its “verdict”2 on the murder charge from second degree to first degree, that the court improperly changed its finding on personal use of a firearm, that there was insufficient evidence to support the court’s findings on the conspiracy, gang and assault allegations, and that the juvenile court erred in various ways in its dispositional order. In the published portion of this opinion, we conclude that the juvenile court erred when it changed its verdict on the murder charge. In the unpublished portions we conclude that the disposition order must be corrected in several respects, but find no merit to E.R.’s remaining contentions.