Opinion
B211053
6-24-2009
In re J.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.P., Defendant and Appellant.
Torres & Torres and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Appellant J.P. appeals from an order declaring him a ward of the court under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging that he committed second degree robberies of D.O. and C.S. in violation of Penal Code section 211, two counts of making criminal threats against the same victims in violation of section 422, and one count of attempted carjacking in violation of sections 664 and 215, subdivision (a). Appellant was committed to camp for a term of nine months, with a maximum term of physical confinement of eight years six months.
As respondent indicates the victims may be minors, we protect their identities by referring to them by their initials.
All statutory references are to the Penal Code unless otherwise indicated.
Appellants maximum period of confined was based on a term of four years six months for the attempted carjacking, one year for each count of robbery, and eight months for each count of criminal threats. Eight months was added to the sentence due to a prior petition.
Appellant contends substantial evidence does not support the findings he committed robbery of C. and attempted carjacking of D., and the juvenile court erred in failing to declare if both criminal threat offenses were felonies or misdemeanors. He further contends punishment for one robbery allegation and both criminal threat allegations should have been stayed pursuant to section 654. We modify the finding that appellant committed robbery of C. by reducing the charge to attempted robbery in violation of sections 664 and 211. The term imposed for the robbery of D. must be stayed pursuant to section 654. The matter is remanded to allow the juvenile court to declare whether the criminal threats findings are felonies or misdemeanors and to recalculate the maximum period of physical confinement. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
C. and D. were leaving a party at 3:30 a.m. on August 3, 2008, when they were approached by appellant and an older man, who asked what they were laughing about. The older man stated, "You guys arent going anywhere," pulled out a knife, and demanded money, watches, and car keys from C. and D. C. and D. were afraid. D. gave the older man cash and denied having a car. When the older man lunged at D. and threatened to stab him, D. gave up his car keys. Appellant was an arms length away from the older man when this was occurring. C. testified: "I kept backing up. I must have backed up about 10 feet total, but with every step I took back, [appellant] took one forward." While keeping C. under his control, appellant instructed C.: "Hey, you, too. Take off your watch, give me your money, give me your car keys." C. objected, but appellant was firm, stating: "Give me your shit, or Im going to have him fucking stab you." The older man, too, addressed C.: "Whats your problem? Give me your shit now, or Im going to kill you."
C. pulled out his own knife and started backing away. Appellant and the older man immediately jumped back, but demanded C.s belongings again. C. refused. As C. and D. continued to back away, appellant stated he was going to kill C. C. and D. were very afraid appellant would carry out his threat.
C. returned to the crime scene approximately four hours later with Officer Jauregui to look for D.s car keys. C. spotted the older man, but Officer Jauregui failed to apprehend him. C. identified appellant sitting on the curb in police custody and identified him again as the younger robber at the adjudication.
Defense Case
Appellant testified that at about 11:30 p.m. on August 2, 2008, his mother dropped him off at the El Monte Boys and Girls Club. A few minutes later, he walked a girl home. They talked outside her house until approximately 4:30 or 5:00 a.m. They were seen outside the home by a neighbor. At approximately 5:00 a.m., as appellant was unable to reach his mother to pick him up, he went to sleep in the girls house. The girls cousin was also there. Appellant woke up at 8:00 a.m. and started to walk home. On the way, a police officer detained him on a curb. Appellant explained he was on his way home from the girls home and urged the police officer to confirm this with her. The officer refused. C. was brought to the curb to identify appellant.
The girls cousin testified that she lived in the home and saw appellant at approximately 11:00 p.m. on August 2 sitting in front of the house with her cousin. She saw him again at 2:00 or 3:00 in the morning, when her cousin woke her up to get permission for appellant to spend the night. He was to leave the house by 8:00 a.m.
The neighbor testified that at approximately 1:30 in the morning of August 3, he saw appellant sitting with the girl under a tree in front of her house.
The girl testified that appellant walked her home from the Boys and Girls Club at about 11:00 p.m. on August 2. They talked outside for hours. As it had gotten too late for him to walk home, her cousin allowed appellant to spend the night. She and appellant slept in the same room. He left the house at 8:00 the next morning.
DISCUSSION
The Finding Appellant Robbed C. is Not Supported by Substantial Evidence
Appellant contends the finding he robbed C. is not supported by substantial evidence because there is no evidence anything was taken from C. (See § 211 ["Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."].) The Attorney General agrees the record does not contain substantial evidence of a robbery of C., but states the finding should be reduced to attempted robbery (§§ 211and 664). Appellant did not reply to the Attorney Generals request to reduce the offense to attempted robbery. We agree that reduction of the finding is appropriate.
Attempted robbery is a lesser included offense of robbery; it requires "a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission." (People v. Medina (2007) 41 Cal.4th 685, 694.)
Section 1181 provides in pertinent part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] (6) When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed."
Section 1159 provides: "The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." "[S]ection 1159 applies to juvenile adjudications as well as to adult proceedings." (In re Christopher S. (1985) 174 Cal.App.3d 620, 623.)
Section 1260 provides: "The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances."
"The purpose for allowing an appellate court to modify the judgment to a lesser included offense [under section 1181, subdivision (6),] is to `obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime. [Citation.] [¶] . . . [¶] The same rationale also applies under . . . section 1260 authorizing appellate courts to modify a judgment to reflect a conviction of a lesser, necessarily included offense when the state of the evidence warrants it." (People v. Matian (1995) 35 Cal.App.4th 480, 487-488.)
Substantial evidence supports the finding that appellant had the specific intent to commit robbery of C. and took a direct, ineffectual act to commit the robbery. C. testified that appellant reinforced the older mans demand for C.s money, keys, and watch by issuing his own verbal order to C., backed up with a threat of physical harm if C. did not comply. Appellant prevented C. from getting away while the robbery was in progress. This is substantial evidence that appellant committed attempted robbery of C. We modify the judgment to reflect a true finding of attempted robbery of C.
Substantial Evidence Supports the Finding Appellant Committed Attempted Carjacking of D.
Appellant contends the evidence is insufficient to support the finding he committed attempted carjacking of D. in that, while there is evidence of intent to take D.s car keys, there is no evidence of intent to take D.s car. We disagree with the contention.
We review the evidence in the light most favorable to the order of wardship. (In re George T. (2004) 33 Cal.4th 620, 630-631.) The standard of proof in juvenile proceedings is the same as in adult criminal trials. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)
"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Where substantial evidence supports the trial courts finding, and other circumstances support a contrary finding, the trial courts finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Section 215, subdivision (a) provides: "`Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear."
C.s testimony provides substantial evidence that appellant intended to carjack D.s car. The fact that appellant and the older man ordered the victims to give up the keys to their cars indicates an intent to steal the cars. Appellant was in the process of trying to extract car keys from C. after D. gave up his car keys when the incident abruptly ended by the victims escape, which foiled the carjacking. Under the substantial evidence standard of review, the circumstance that the victims were not asked where their cars were before they escaped does not render the evidence of appellants intent to carjack insufficient.
The Juvenile Court Must Declare Whether the Offenses of Making Criminal Threats are Felonies or Misdemeanors
Appellant contends, the Attorney General concedes, and we agree the matter must be remanded for the juvenile court to make an express declaration whether the criminal threats offenses are felonies or misdemeanors.
Welfare and Institutions Code section 702 provides in pertinent part: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." "[F]ailure to make the mandatory express declaration requires remand of [the] matter for strict compliance with Welfare and Institutions Code section 702." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)
Making criminal threats in violation of section 422 is an offense punishable as a felony or misdemeanor. (See §§ 422, 17, subd. (a).) The juvenile court determined that appellants maximum term of confinement for the criminal threats was one-third of the felony midterm. However, in violation of Welfare and Institutions Code section 702, no express declaration was made, and the record does not indicate the juvenile court considered whether to declare the offense a felony or misdemeanor. (See In re Manzy W, supra, 14 Cal.4th at pp. 1207-1209.) Accordingly, the matter must be remanded "for an express declaration pursuant to Welfare and Institutions Code section 702 and possible recalculation of the maximum period of physical confinement." (Id. at p. 1211.)
Stay of Punishment Under Section 654
A. Punishment for the Finding Appellant Robbed D. Should Be Stayed
Appellant contends the imposition of consecutive terms for the findings he robbed D. and attempted to carjack D.s car violated section 654, because the robbery and attempted carjacking were part of an indivisible course of conduct. The Attorney General concedes the point and we again agree.
Section 654 prohibits multiple punishments for a single act or omission, even when that act or omission violates more than one statute and thus constitutes more than one crime. Thus, although a defendant may be charged with and convicted of multiple crimes arising from a single act, the defendant may be sentenced only on the crime carrying the highest punishment; the sentence on the other counts arising from the same act must be stayed. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) However, if the defendant "harbored `multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
The question whether a defendant harbored multiple objectives within the meaning of section 654 is a question of fact, and we will affirm if there is substantial evidence to support the trial courts implied finding that defendant in this case had different objectives with regard to the offenses. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.)
The record does not contain substantial evidence that appellant harbored two criminal objectives that were independent of each other when he robbed D. and attempted to carjack D.s car. While appellants conduct violated two separate criminal statutes, C.s undisputed testimony reveals appellants singular intent to simultaneously rob D. of his cash and car. The term for robbery of D. should have been stayed under section 654.
B. Punishment for the Criminal Threats Findings Should Not Be Stayed
Appellant contends the findings he committed criminal threats against D. and C. should have been stayed under section 654 because they were an indivisible part of the ongoing robbery. We disagree.
Appellant made a criminal threat against D. and C. after C. thwarted the robbery by brandishing a knife. Appellant and the older man jumped back when C. pulled out his knife, and C. and D. backed away from the robbers to escape. C. testified that, at that point, appellant stated he would find and kill him. The fact that both victims were fearful appellant would carry out his threat indicates the threat was directed at both victims. The fact that the threat was made after the robbery had been thwarted, and was unconditional, indicates appellants purpose was to intimidate the victims not to report the crime, rather than to accomplish a robbery. This is substantial evidence appellant harbored a separate and independent criminal objective when he uttered these criminal threats against the victims.
DISPOSITION
The finding in count 1 that appellant committed robbery of C. is modified to reflect a finding of attempted robbery of C. in violation of sections 664 and 211. The term of commitment for the robbery of D. in count 3 is stayed pursuant to section 654; the stay to become permanent upon completion of the term in count 5 for attempted carjacking in violation of sections 664 and 215, subdivision (a). The matter is remanded for an express declaration pursuant to Welfare and Institutions Code section 702 whether the offenses of making criminal threats in counts 2 and 4 are misdemeanors or felonies and recalculation of the maximum period of physical confinement. In all other respects, the judgment is affirmed.
We concur:
TURNER, P. J.
ARMSTRONG, J.