Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YJ29129, Irma J. Brown, Judge.
Steven A. Torres, under appointment by the Court of Appeal, and Torres & Torres for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Johnny J. appeals from an order of wardship entered following true findings on allegations of “assault by means likely to produce great bodily injury” (Pen. Code, § 245, subd. (a)(1); count 1), making a criminal threat (§ 422; count 2), and “assault with a deadly weapon” (§ 245, subd. (a)(1); count 3), and further allegations that both assaults were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The minor also admitted misdemeanor vandalism (§ 594, subd. (a)), which was alleged in a separate petition. He contends that the evidence was insufficient to support the true findings on count 3 and on the gang allegations, section 654 bars the consecutive maximum terms of confinement that were imposed on him, and the juvenile court erred in failing to determine whether his assault offenses were felonies or misdemeanors and in imposing overbroad conditions of probation.
Further section references are to the Penal Code.
We reverse the true findings on count 3 and on the gang allegations with directions to dismiss them. We further conclude that the juvenile court erred in failing to determine whether the count 1 assault was a felony or a misdemeanor and in imposing overbroad conditions of probation. In all other respects, we affirm.
BACKGROUND
On the afternoon of July 12, 2006, 19-year-old Avery Martin was at a hamburger stand near Santa Monica High School with his girlfriend and his grandfather. As Martin was walking from the order window, he was approached by Benny Moreno. Moreno asked Martin, “Do you remember me from Santa Monica,” and hit Martin in the head. At that point, the minor, as well as minors Levy R., Cristian S., and Manuel S., also started to punch and kick Martin, who had fallen to the ground. Martin’s grandfather came to Martin’s defense, allowing Martin to get away. As Martin fled, the minor and Levy R. followed, threatening to kill Martin and calling him “nigger.” From distances of five to nine feet away, the minor also pointed an object at Martin that Martin believed to be a gun.
In the same proceeding as the one under review here, juvenile petitions were also sustained against Levy R., Cristian S., and Manuel S. All three of these adjudications have been reviewed by this court. (In re Cristian S. and In re Levy R. (Dec. 21, 2007, B193816 and B194153) [consol. nonpub. opn.]; In re Manuel S. (May 31, 2007, B193644) [nonpub. opn.].)
The minor was arrested shortly after the incident and was identified by Martin at an in-field show-up. Cristian S., who was arrested the day after the incident, told the arresting officer that he was a member of the Santa Monica 17 Street gang (SM 17) and that Martin is a member of the Graveyard Crips.
Santa Monica Police Officer Frank Marnell, a gang expert, testified that all the minors charged in this case were members of SM 17. The hamburger stand at which the assault took place is within the territory claimed by both SM 17 and the Graveyard Crips. Martin told officers that on several occasions he had been chased and beaten by SM 17 members because they mistakenly thought he was a member of the Graveyard Crips. Marnell has had at least 100 contacts with SM 17 members who had engaged in “shootings, ADW’s, robberies, burglaries, the whole gamut of the felonious crimes outlined in 186[.22] of the Penal Code.”
The minor, his mother, and his brother testified on the minor’s behalf. They asserted that the minor was elsewhere at the time of the incident and was arrested when he met Levy R. a few blocks away from the hamburger stand sometime later that afternoon.
The minor was placed in a camp community placement program. The maximum time included terms for the findings and enhancements on counts 1–3 and the misdemeanor offense.
DISCUSSION
1. Assault With a Deadly Weapon (Count 3)
The minor contends that the evidence was insufficient to support the finding of assault with a deadly weapon (count 3). We agree.
a. The record
Testifying at the adjudication, Martin stated that when he was being chased by the minor and Levy R., he “believe[d] [the minor] pulled out a gun.” Martin continued that the minor “pulled out something that looked like a gun.” “It was black.” “[I]t looked like a gun; was was [sic] holding it like a gun” “with his arm extended and index finger crooked and the other fingers cut back” “towards his palm.” Martin “[could not] say for sure it was a gun.”
In arguing count 3 to the court, the prosecutor stated that when the minor and Levy R. chased Martin, “[t]hey threatened him with the ultimate threat ‘we are going to kill you’ and then a racial expletive. And then [the minor] pulled out what appeared to be a firearm. The charge of assault with a deadly weapon, count 3 of [the minor’s] petition, is predicated upon that conduct. [¶] What did he brandish? Well, [Martin] said he was close to them. In other words, they were about five feet away. He pulled it out, held it like a gun. It looked like a gun. It was metallic, and he pointed it at [Martin] while saying, ‘I am going to kill you’ with the racial expletive. [¶] And the issue is what could that object have been? Well, it certainly could have been a firearm. That is not what is charged in this case. Not assault with a firearm but assault with a deadly weapon. [¶] It could have been a firearm. It was handled like a firearm, treated like a firearm. . . . Could have been a pellet gun. It could have been some kind of weapon that fires something else or it could have been a metal object shaped like a gun. But, either way — and this is the critical point for count 3 in [the minor’s] petition — a metal object, whether it’s shaped like a gun or shaped like brass knuckles, is a deadly weapon. [¶] Certainly, a metal object can be used in an attack on another person . . . . [¶] [The minor] and Levy [R.] were five feet away from [Martin], and close enough to do immediate and consequential physical damage to him even if it wasn’t a firearm. I am not talking about shooting, but close enough to do immediate and grievous injury to him with that metal object that was being held by [the minor]. And based on that, the elements of assault with a deadly weapon have been met.”
After the arguments of counsel, the court made the following findings: “So as to each of the minors, the court finds that count 1 [assault by means of force likely to produce great bodily injury] is true, and that the People have met their burden. [¶] With regard to count 2 [criminal threat] that is alleged as to Johnny J[.], it is pretty straightforward testimony with regard to the People’s theory, in that he was identified by the victim as being the person who chased him, . . . and that during the pursuit of Avery Martin, he was in possession of what Avery Martin believed to be a handgun and came within five feet of him, threatened to take his life, and pointing whatever the object was in a manner that would suggest that it was, in fact, a firearm. But that is not a necessary finding for count 2. [¶] I think that the factual scenario, accompanied by the witness’s testimony that he was in fear of his life, is sufficient for a finding as to count 2 on Johnny J[.] [¶] As to count 3, the ADW, I think that . . . charge flows from the same conduct as alleged in count 2, minus the threat, the verbal threat that would have to accompany count 2, that Johnny J[.] did, in fact, chase Avery Martin with the object that was believed to be a firearm.”
b. Analysis
“Section 245, subdivision (a)(1), punishes assaults committed by the following means: ‘with a deadly weapon or instrument other than a firearm,’ or by ‘any means of force likely to produce great bodily injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Section 245, subdivision (a)(2), punishes assault with a firearm. Here, irrespective of whether the evidence might have supported a finding that the object in the minor’s hand was a firearm, the minor was charged with violation of the deadly weapon clause of section 245, subdivision (a)(1), and not with violation of section 245, subdivision (a)(2). Thus, the prosecutor’s argument was limited to assault with a deadly weapon and the juvenile court explicitly refrained from finding that the object in the minor’s hand was a firearm. Rather, the court concluded only that the minor possessed an object held in a manner “that would suggest that it was, in fact, a firearm” and that Martin “believed [it] to be a firearm.”
The Attorney General correctly notes that an object such as the one described by Martin could be used as a bludgeon and therefore qualify as a deadly weapon. (See, e.g., People v. Reid (1982) 133 Cal.App.3d 354, 365 [metal toy gun capable of being used as a deadly weapon]; People v. Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [same, as to a starter pistol].) But “[i]t is much easier to find that a particular item is a dangerous and deadly weapon when it is actually used to deliver blows.” (People v. Reid, supra, 133 Cal.App.3d at p. 365.) In order to consider the firearm-like object in the minor’s hands to be a deadly weapon, there must have been evidence that he intended to use it as a bludgeon. (People v. Godwin, supra, 50 Cal.App.4th at p. 1574.) Viewed in the light most favorable to the juvenile court’s finding, the evidence presented below was not sufficient to establish that the minor intended to use the object in this way. (See People v. Rodriguez (1999) 20 Cal.4th 1.) Accordingly, the finding on count 3 must be reversed.
2. Gang Finding
The minor contends that there was insufficient evidence to support the gang findings on counts 1 and 3. (Our reversal of the true finding on count 3 renders the contention moot as to that count.) In so doing, he notes that in the appeals of two of his co-minors we reversed gang findings, concluding that the testimony of the gang expert did not establish the requisite element of a pattern of criminal activity by showing the consistent and repeated criminal activity of the SM 17 gang. (In re Cristian S. and In re Levy R., supra, B193816 and B194153, at p. 7.) We also concluded that further adjudication of the gang activity was barred under the doctrine of double jeopardy and ordered that the gang allegations be dismissed on remand. (Id. at p. 8.)
The Attorney General aptly concedes that this case is controlled by our opinion in In re Cristian S. and In re Levy R. Accordingly, we shall reverse the relevant gang finding here and order that it be dismissed on remand.
3. Disposition
a. Section 654
The juvenile court imposed separate maximum terms of confinement on counts 1–3. The minor first contends that section 654 bars separate punishment on counts 2 and 3, but advances this argument only if count 3 is allowed to stand. Because count 3 is being reversed, we need not address this contention. The minor further contends that all three offenses were part of a single course of conduct with a single intent, and therefore section 654 permits punishment on only one of the offenses. We disagree.
With respect to count 1 (assault by means of force likely to produce great bodily injury) and count 2 (criminal threats), we note that Martin was first subjected to a group beating in which the minor participated and, after Martin’s grandfather intervened, Martin was chased by the minor and Levy R., who threatened him during the chase. The minor’s acts were thus each “volitional and calculated, and were separated by periods of time during which reflection was possible. [Neither] was spontaneous or uncontrollable.” (People v. Trotter (1992) 7 Cal.App.4th 363, 368.) “Section 654 is applicable when there is a single ‘act.’ But here, there were . . . separate acts, not one ‘made punishable in different ways by different provisions of [the Penal Code] . . . .’ [Citations.]” (Ibid.) The juvenile court did not err in imposing consecutive terms on counts 1 and 2.
b. Determination of felony or misdemeanor
The crime of assault under section 245, subdivision (a), is an alternative felony or misdemeanor. The minor contends, and the Attorney General aptly concedes, that the juvenile court erroneously failed to declare whether the count 1 assault in this case was a felony or a misdemeanor and that the matter must be remanded to permit the court to declare the nature of the offense. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) We shall so order.
c. Conditions of probation
At disposition, the juvenile court orally ordered as condition of probation No. 15 that the minor not associate with anyone “that you know to be disapproved of by your probation officer,” but the minute order does not include a knowledge requirement. Condition of probation No. 16 in both its oral and written form, which prohibits the minor from having weapons in his presence or being present where anyone else is armed, also fails to require that the minor have knowledge of weapons in the possession of others.
The minor contends, and the Attorney General aptly concedes, that the written version of both of these conditions of probation should contain the requirement of knowledge. (See In re Sheena K. (2007) 40 Cal.4th 875, 890–892.) We shall order that appropriate modifications be made.
DISPOSITION
The gang finding on count 1 is reversed with directions on remand to dismiss the gang finding and to determine whether the assault was a felony or a misdemeanor. The true finding on count 3 is reversed with directions on remand to dismiss that count. The juvenile court is further directed to modify condition of probation No. 15 to include the requirement that the minor not associate with anyone known to him to be disapproved of by his probation officer and to modify condition of probation No. 16 to include the requirement that the minor have knowledge that other persons in his presence possess a deadly or dangerous weapon. In all other respects, the order under review is affirmed.
NOT TO BE PUBLISHED.
We concur: VOGEL, J., ROTHSCHILD, J.