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In re Antonio M.

California Court of Appeals, First District, Second Division
Mar 10, 2008
No. A117042 (Cal. Ct. App. Mar. 10, 2008)

Opinion


In re ANTONIO M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTONIO M., Defendant and Appellant. A117042 California Court of Appeal, First District, Second Division March 10, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Solano County Super. Ct. No. J35572

Richman, J.

Antonio M. was already a juvenile ward due to several stolen car possessions when charged here by a new petition (Welf. & Inst. Code, § 602, subd. (a)) for driving with willful disregard to evade an officer (count 1; Veh. Code, § 2800.2, subd. (a)), the unlawful driving or taking of a vehicle (count 2; Veh. Code, § 10851, subd. (a)), and receipt of a stolen vehicle (count 3; Pen. Code, § 496d, subd. (a)). All charges arise from an incident in which police caught him, after a high speed chase, driving a stolen car. The court sustained all counts and, at disposition on February 8, 2007, rejected a probation report recommendation for Fouts Springs Youth Facility and placed Antonio instead on probation in his mother’s home, with electronic monitoring and time in juvenile hall.

Antonio appeals, claiming only a need to correct double-punishment error (Pen. Code, § 654) in a stated maximum confinement term of six years, eight months. The People concede that the term is eight months too long but urge that we need not decide given Antonio’s release to his mother’s custody.

We modify and affirm the judgment.

I. THE BACKGROUND

The defense for the charges was that one of two other youths in the car with Antonio was the driver and that Antonio did not know the car was stolen. Since the court rejected those arguments in sustaining each count beyond a reasonable doubt, we recite the evidence in that light for the double punishment question as well.

The car, a red Chevrolet Monte Carlo, was stolen between 11:20 p.m. on December 18, and 4:45 a.m., December 19, 2006, and Suisun City police officers first spotted Antonio driving it, with the others inside, at 10:15 p.m. on December 20. When a first patrol officer activated his overhead lights to effect a stop, Antonio first slowed and pulled toward a curb but then quickly accelerated away, leading the officer on a five-mile chase at speeds up to 60 and 110 miles per hour, violating other rules of the road and, at one point, weaving around and through railroad crossing arms that had descended for an Amtrak train to pass. The chase ended on Airbase Parkway, where the Monte Carlo slowed and stopped and all three occupants exited, at gunpoint, upon police command. Four patrol cars in all were on the scene. The car had shards of broken glass on the right rear seat, and that window was broken out but covered with a plastic bag secured with duct tape.

Defense witness Kathleen Riley, a good but “[s]trictly platonic” friend of Antonio’s, testified that Antonio spent five hours with her at a hotel in Fairfield that night before getting into the front passenger seat of the Monte Carlo between 9:45 and 10 p.m. He returned about 10 minutes later to hand her a soft drink before leaving again. Antonio had driven the car, Riley said, but earlier that night. Antonio himself did not testify.

II. DISCUSSION

Penal Code section 654 “protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. If all offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. If, on the other hand, 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. The question of whether there was a single intent is generally factual, but the statute’s applicability to conceded facts is a question of law. (Ibid.) This affects terms calculated under Welfare and Institutions Code section 726, subdivision (c), for that section directs use of the principal/subordinate scheme of Penal Code section 1170.1, which in turn refers to Penal Code section 654. (In re Asean D. (1993) 14 Cal.App.4th 467, 474.)

Initially, in his opening brief, Antonio claims that all three counts in this case “stemmed from one course of conduct—driving a stolen car the night of December 20, 2006,” and that Penal Code section 654 therefore forbids multiple punishment “because his actions stemmed from a single intent.” He adds that he “cannot be punished for both auto theft and receiving stolen property when both counts related to the same car,” citing People v. Allen (1999) 21 Cal.4th 846, 851.

The People take the citation to Allen as meaning that Antonio also disputes his double convictions for theft and receipt of the same car, and they counter that double conviction was permitted here under People v. Garza (2005) 35 Cal.4th 866, which holds that a conviction for receiving a stolen vehicle is allowed so long as a tandem conviction under Vehicle Code section 10851, subdivision (a), is for post-theft driving. We do not read Antonio’s briefing as including a challenge to double convictions—only to double punishment for those offenses.

The People concede improper double punishment as to counts 2 and 3—that he harbored the same intent in driving the stolen car (Veh. Code, § 10851, subd. (a)) as he did in receiving it (Pen. Code, § 496d, subd. (a)), on these facts, but they persuasively urge that his intent for the count 1 evasion of the officers—obviously to elude capture—was distinct from his intent to joyride. Antonio seems to accept that analysis in his reply brief, offering no contrary argument.

The court did not articulate how it arrived at the stated maximum term of six years, eight months, but the People point out that this mirrors the figure contained in the probation report and offer this calculation, which appears to be correct: All three current felony offenses bore state prison term ranges of 16 months, two years or three years (Veh. Code, §§ 2800.2, subd. (a), 10851, subd. (a); Pen. Code, § 496d, subd. (a); see also Pen. Code, § 18), making it academic which one is used for the principal term, i.e., the greatest imposed for any count (Pen. Code, § 1170.1, subd. (a)). We start with a principal term of 36 months plus a subordinate term (one-third the middle terms for felonies) (ibid.) of 16 months. To the subordinate term we then add time for four prior admitted receipt-of-stolen-vehicle offenses (Pen. Code, § 496d, subd. (a))). These add 24 months for three felony violations, and then 4 months evidently chosen for one misdemeanor. The grand total (36 + 16 + 24 + 4) is 80 months, which is the court’s announced figure of 6 years, 8 months. From this we subtract eight months for the erroneously included double punishment, leaving six years.

In his opening brief, Antonio arrived at a figure of six years to be further reduced by the amount of error. His calculation, however, mistakenly used four months, not eight, as one-third of the middle terms for two of the current felonies. In his reply brief, Antonio accepts the People’s calculation and urges correction to six years.

Despite their agreement on the existence of error, the parties disagree whether it requires correction. The People rely on uniform case authority holding that such error is moot when a ward is placed on probation in parental custody. These decisions observe that the calculation is not needed and is thus of no legal effect, unless a ward is removed from parental custody (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574 & fn. 2; In re Danny H. (2002) 104 Cal.App.4th 92, 106; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744), and that, in the event of a later commitment to a facility, the appellate opinion, reflecting the error, will be a part of the file so that the error will not be repeated (In re Ali A., supra, at p. 574, fn. 2).

Antonio counters correctly, however, that his release to home probation was prefaced with time in juvenile hall, and that juvenile hall is one variety of “physical confinement” defined in Welfare and Institutions Code section 726, subdivision (c), as triggering the duty to state a maximum commitment term. Thus, it does appear that the calculation here was not gratuitous or without legal effect.

Nevertheless, correction seems to us still to lack any conceivable benefit. The court ordered 140 days of juvenile hall time, with that amount reduced by 50 days of credit for time served and 60 of the remaining 90 days satisfied by in-lieu release on an electronic monitoring program (EMP). Thus the true effect was that Antonio would serve only 30 days in juvenile hall, and he has no doubt long satisfied that obligation, plus his 60 days of EMP time. We also see in the record an order of February 22, 2007, two weeks after the appealed order, that shows Antonio having been released on EMP so that he can start attending high school.

The matter appears almost certainly moot but because this issue has not been briefed, we correct the error without remand.

III. CONCLUSION

The disposition order of February 8, 2007, is amended to reflect a maximum commitment term of six years. As so amended, the order is affirmed.

We concur: Kline, P.J., Haerle, J.


Summaries of

In re Antonio M.

California Court of Appeals, First District, Second Division
Mar 10, 2008
No. A117042 (Cal. Ct. App. Mar. 10, 2008)
Case details for

In re Antonio M.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO M., Defendant and…

Court:California Court of Appeals, First District, Second Division

Date published: Mar 10, 2008

Citations

No. A117042 (Cal. Ct. App. Mar. 10, 2008)