Opinion
F075683
03-20-2018
In re BRIAN P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BRIAN P., Defendant and Appellant.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. JJD 068394)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
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INTRODUCTION
Defendant/appellant Brian P. appeals from a judgment and disposition order declaring him a ward of the juvenile court pursuant to Welfare and Institutions Code section 602. Brian P. contends procedural and dispositional errors require remand for imposition of a new disposition. There is no need for remand, as the errors raised by Brian P. can be corrected without remanding the matter.
FACTUAL AND PROCEDURAL SUMMARY
Because Brian P. raises procedural and dispositional errors, we provide a recitation of only those facts and procedure relevant to the issues.
On November 4, 2014, a Welfare and Institutions Code section 602 petition (hereafter petition) was filed against Brian P. On August 18, 2015, an amended petition (hereafter amended petition) was filed against Brian P. The amended petition alleged in count 1 a violation of Penal Code section 245, subdivision (a)(4), assault by means of force likely to produce great bodily injury; count 2 alleged a violation of section 245, subdivision (a)(1), assault with a deadly weapon other than a firearm; and count 3 alleged a violation of section 182.5, participation in a criminal street gang.
All further statutory references are to the Penal Code unless otherwise stated.
The amended petition set forth multiple special allegations. As to counts 1 and 2, special allegations pursuant to section 182.22, subdivision (b)(1)(C); section 12022.7, subdivision (a); and section 969f were alleged. As to count 1, a special allegation pursuant to section 12022, subdivision (b)(1) also was alleged.
A contested jurisdictional hearing commenced on April 13, 2016, and was continued to June 22, 2016. At the conclusion of the June 22, 2016, hearing, the juvenile court stated it found count 1 true, along with the special allegation of great bodily injury pursuant to section 12022.7, subdivision (a), and the gang allegation pursuant to section 186.22, subdivision (b)(1)(C). The juvenile court further stated:
"Count 2 and 3, it is not necessary to be a member of a gang to have those charges be found true. Simply that you associate and participate. And it appears that he was the main participant in the actual stabbing portion that clearly had a plan because it didn't take much other than a few words. Next thing you know, he was stabbing him. So obviously, there was a plan beforehand. Just based on the circumstantial evidence of how it was carried out, is consistent with gang behavior.
Brian P. was remanded into custody pending disposition. The order setting forth the juvenile court's jurisdictional findings was filed June 22, 2016.
On September 13, 2016, Brian P.'s attorney notified the juvenile court a motion for new trial was going to be filed on Brian P.'s behalf. At a hearing on October 21, 2016, the juvenile court denied the motion for new trial.
The probation report recommended a term of four years for the count 1 offense, plus 10 years for the gang allegation, plus one year for the section 12022, subdivision (b)(1) special allegation, and three years for the section 12022.7, subdivision (a) special allegation. Probation also recommended a term of one year for the count 2 offense, 10 years for the gang special allegation, and three years for the section 12022.7, subdivision (a) special allegation. On count 3, a term of one year was recommended. It was recommended no term be imposed on the section 969f special allegation.
The disposition hearing was held on April 11, 2017. At that time, Brian P. was 18 years old. Brian P. was declared a ward of the juvenile court and placed at home on probation. Various terms and conditions of probation were imposed. The juvenile court set July 24, 2018, for a probation termination hearing.
Brian P. filed an appeal on May 19, 2017.
DISCUSSION
Brian P. contends the June 22, 2016, order setting forth the juvenile court's jurisdictional findings must be corrected because the order erroneously states that a section 12022 enhancement was found true as to count 2. He also contends there is some confusion as to whether the juvenile court sustained the original or amended petition. If the true findings pertain to the amended petition, then Brian P. asserts that both count 1 and count 2 cannot be found true, as they are the same offense. Finally, Brian P. contends the application of more than one sentencing enhancement to either count 1 or count 2 violates People v. Rodriguez (2009) 47 Cal.4th 501, 504 (Rodriguez).
I. Amended Petition Sustained
Brian P. contends there is some confusion as to whether the juvenile court sustained the original or amended petition. The People contend the juvenile court's oral pronouncement indicates it was sustaining the amended petition.
When a pleading is amended, the amended pleading supersedes the original. (Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 295; People v. Morales (2014) 224 Cal.App.4th 1587, 1597-1598.) We presume the juvenile court is aware of and follows the applicable law. (In re Julian R. (2009) 47 Cal.4th 487, 498-499.) Consequently, the juvenile court must have been addressing the amended petition filed August 18, 2015 at the jurisdiction hearing.
II. Count 2 Special Allegations
Brian P. contends that if the amended petition was sustained, then the jurisdiction order incorrectly notes that count 2 was subject to four special allegations, when the amended petition set forth only three special allegations as to count 2. The People concede this point. Count 2 alleged three special allegations; it did not allege a special allegation pursuant to section 12022, subdivision (b)(1) as stated in the written order.
As the People note, a section 12022, subdivision (b) enhancement cannot be appended to a section 245, subdivision (a)(1) count. (People v. Summersville (1995) 34 Cal.App.4th 1062, 1070.) We direct the June 22, 2016, jurisdiction order be corrected to delete the special allegation under section 12022, subdivision (b)(1). (People v. Rodriguez (2013) 222 Cal.App.4th 578, 586-587, disapproved on other grounds in People v. Hall (2017) 2 Cal.5th 494.)
III. Count 1 Must Be Stricken
Brian P. also contends that both count 1 and count 2 cannot be sustained because they are essentially the same offense. Again, the People concede this issue.
Count 1 alleged a violation of section 245, subdivision (a)(4); count 2 alleged a violation of section 245, subdivision (a)(1). Assault by means of force likely to produce great bodily injury, the count one offense, is included in the offense of assault with a deadly weapon set forth in count two. (In re Jonathan R. (2016) 3 Cal.App.5th 963, 972-973.) A person cannot commit assault with a deadly weapon without also committing assault by means of force likely to produce great bodily injury. (Ibid.) A person cannot be convicted of both offenses based upon a single act. (Ibid.)
The People concede counts 1 and 2 are based upon a single act. Accordingly, the true finding on count one must be stricken. (In re Jonathan R., supra, 3 Cal.App.5th at pp. 972-973.) We will direct the June 22, 2016, jurisdiction order be corrected to strike the true finding on count 1 and the count 1 special allegations.
IV. Special Allegations
Brian P. contends that Rodriguez, supra, 47 Cal.4th 501, precludes the application of more than one special allegation to either count 1 or count 2 when the special allegation, or enhancement, provides for an enhanced sentence. Since we have concluded the count 1 true finding and special allegations must be stricken, we address Brian P.'s contention only as to count 2.
The count 2 offense was a violation of section 245, subdivision (a)(1), assault with a deadly weapon, with the special allegations of personal infliction of great bodily injury pursuant to section 12022.7, subdivision (a), and a gang allegation under section 186.22, subdivision (b)(1)(C). It also was found true that the offense was a serious felony under section 969f. Section 969f is not an enhancement that provides for aggravation of a sentence and therefore is not relevant to a discussion of the application of Rodriguez. (People v. Leslie (1996) 47 Cal.App.4th 198, 204.)
In Rodriguez, supra, 47 Cal.4th 501, the California Supreme Court held that when a defendant is convicted of a violent felony within the meaning of section 667.5, subdivision (c)(8), based on the defendant's use of a firearm under section 12022.5, the court cannot impose both the section 12022.5 enhancement and the section 186.22, subdivision (b)(1)(C) enhancement. Such multiple punishment violates section 1170.1, subdivision (f), which provides in relevant part that "[w]hen two or more enhancements may be imposed for ... using ... a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." (§ 1170.1, subd. (f); Rodriguez, supra, 47 Cal.4th at pp. 508-509.)
In People v. Gonzalez (2008) 43 Cal.4th 1118, 1122, (Gonzalez), the California Supreme Court considered whether section 12022.53, subdivision (f), which states that when "more than one enhancement per person is found true under this section, the court shall impose on that person the enhancement that provides the longest term of imprisonment," required that the enhancements providing shorter terms of imprisonment "must be stayed or stricken." The Gonzalez court concluded that the answer to the query was that "the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed." (Gonzalez, supra, at p. 1130.) The court concluded that section 12022.53, subdivision (f), "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, supra, 43 Cal.4th at p. 1127, original italics.)
Senate Bill 620, adding section 12022.53, subdivision (h), permitting a trial court to strike or dismiss an enhancement otherwise required to be imposed, became effective January 1, 2018. --------
Subsequently, in People v. Le (2015) 61 Cal.4th 416 (Le), the court applied the principles articulated in Rodriguez while implicitly endorsing the impose-and-stay procedure articulated in Gonzalez. In Le, the defendant was convicted of assault with an automatic firearm under section 245, subdivision (b), and allegations that the defendant personally used a firearm within the meaning of section 12022.5 and committed the offense for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1) were found true. (Le, at p. 420.) The trial court concluded it could not impose both enhancements, and imposed the section 186.22 enhancement, but stayed the section 12022.5 enhancement. (Le, at pp. 421-422.) The California Supreme Court affirmed and held that "a trial court is precluded from imposing both a firearm enhancement under section 12022.5 ... and a serious felony gang enhancement under section 186.22, subdivision (b)(1)(B) when the crime qualifies as a serious felony solely because it involved firearm use." (Id. at p. 429.)
Consequently, following the reasoning of Rodriguez, Gonzalez, and Le, section 1170.1, subdivisions (f) and (g), prohibit the imposition and execution of more than one enhancement based upon a defendant's firearm use or infliction of great bodily injury, but do not require that the additional enhancements be stricken.
In Brian P.'s case, the count 2 offense is assault with a firearm, with gang and great bodily injury true findings. Contrary to Brian P.'s contention that allowing all the true findings on the enhancements to stand presents "an unduly darker story," there is no requirement under section 1170.1 or Rodriguez, Gonzalez, or Le that any of the true findings be stricken.
Moreover, no maximum period of confinement was set by the juvenile court; Brian P. was placed at home on probation. Only when the minor is declared a ward of the court and removed from the physical custody of his or her parent is the juvenile court required to set a maximum period of confinement. (Welf. & Inst. Code § 726, subd. (d).) Until such time as the juvenile court sets a maximum period of confinement, if at all in Brian P.'s case, then there is nothing for this court to review in terms of application of section 1170.1 to the facts of this case. We decline to offer a premature advisory opinion before the juvenile court has ruled.
DISPOSITION
The count 1 true finding and the true finding on all special allegations appurtenant to count 1 are stricken; and the minute order for the June 22, 2016, hearing is ordered corrected to strike the section 12022, subdivision (b)(1) true finding appurtenant to count 2. In all other respects, the true findings and disposition order are affirmed.