Opinion
B210426.
7-15-2009
In re D.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.L., Defendant and Appellant.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Minor D.L. ("D.L.") appeals from the juvenile courts order declaring him a ward of the court based on a sustained Welfare and Institutions Code section 602 petition that alleged one count of carjacking (Pen. Code, § 215, subd. (a)), one count of second degree robbery (§ 211), two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and one count of grand theft auto (§ 487, subd. (d)(1)). On appeal, D.L. raises four arguments. First, he contends that the finding on the grand theft auto count must be reversed as a lesser included offense of robbery. Second, he asserts that the sentences imposed for the robbery count and one of the assault counts must be stayed under section 654. Third, he argues that the finding on the other assault count was not supported by sufficient evidence. Fourth, he claims that the probation condition prohibiting him from associating with users of illegal drugs was unconstitutionally vague and overbroad. For the reasons set forth below, we conclude that the grand theft auto finding must be reversed because it is a necessarily included offense of robbery, but otherwise affirm the juvenile courts judgment and sentencing.
Unless otherwise stated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Crimes Against James Lara And Jeffrey Morse
On May 11, 2008, at approximately 1:00 a.m., James Lara ("Lara") was driving his 2007 Cadillac CTS in the County of Los Angeles. His friend, Jeffrey Morse ("Morse"), was a passenger in the car. As Lara was driving home, a cream-colored car carrying four individuals pulled in front of his Cadillac and attempted to block him in. A black car carrying another four to five people was present nearby. The individuals inside the cream-colored vehicle yelled at Lara and Morse to "get out of the car." Neither Lara nor Morse said anything in response. Instead, Lara was able to maneuver his vehicle away and sped through a couple of stop lights in an attempt to lose the other cars. Both the cream-colored car and the black car followed closely behind and caught up with Lara and Morse after three or four blocks. The cream-colored car pulled ahead of Laras Cadillac and blocked him in the front, while the black car blocked Lara from behind.
Lara and Morse exited the car. As soon as they did, someone said to them, "where are you from?" Both men were then immediately attacked. At least three individuals attacked Morse as he ran up the street in an attempt to get away. By the time Morse turned around and began to head back toward Lara, their assailants were gone along with Laras Cadillac. Lara was lying on his back in the middle of the street, "pretty much unconscious." Laras military credit card was on the ground next to him.
Gregorio Prendiz ("Prendiz") witnessed the assault, which lasted about a minute and a half. Prendiz was standing in front of his house with his wife and daughter when he saw three vehicles speed by and stop suddenly at the end of the street. Between six and nine young men jumped out of their cars. Some of the men then "pounded" on two others in the middle of the street. Prendiz wife yelled at the youths to stop, but they did not seem to hear her. At some point, Morse, bleeding from his face, ran toward Prendiz while Lara remained lying in the street. After Prendiz saw all three cars take off, he and his wife called 911 and rendered aid to the men while waiting for an ambulance to arrive. Lara later awoke in the ambulance. He was unable to recall anything that had happened after he got out of his car.
Lara suffered a fractured nose, three chipped teeth, black eyes, and facial bruises. There were also shoe marks left on his face. At the time of the adjudication hearing three weeks later, Laras nose was "still a little sore." Morse suffered bleeding from his head, scratches to his face, and a cut lip. Along with Lara, Morse was taken to the hospital where he was told that he might need one or two stitches, but did not otherwise receive any treatment.
At the time of the assault, Lara was carrying approximately $300 in cash in his pocket. He also had on his person his drivers license, military identification, cell phone, watch, glasses, and shoes. When Lara awoke in the ambulance, he did not have any of these items with him. In his Cadillac, Lara had his wallet, $600 in gift certificates, an iPod, some CDs, Marine Corps jackets, photographs of his daughter, and an American flag signed by the men in his platoon who served with him in Iraq. When Laras car was later recovered, all of these items were missing.
II. Detention Of D.L.
At the request of the Los Angeles Police Department, two police officers reported to an address where Laras Cadillac had been located. At that location, the officers detained D.L., then 16 years old, and another minor, P.M. On the morning of May 11, 2008, Los Angeles Police Detective Anthony Vairo interviewed D.L. after advising him of his Miranda rights. During the interview, Detective Vairo took D.L.s oral statement, committed it to writing, and instructed him to review it. D.L. then signed the following written statement:
"Sometime tonight, me and [P.M.] and other guys were driving around when this Cadillac cut us off. We chased him down one block which I think was in Sylmar. Until they stopped. We all got out and the fight was on.
"The big guy in the Cadillac ran away while we kept fighting with the other guy. While that guy was down on the ground, me and [P.M.] took the Cadillac. We drove down to Santa Monica beach and hung out for a little while. We then drove back to the San Fernando/Sylmar area.
"We stopped the Cadillac on the street and walked away. Thats when the police showed up. I was arrested. But [P.M.] took off."
III. Welfare and Institutions Code Section 602 Petition
On May 13, 2008, the Los Angeles County District Attorney filed a petition under Welfare and Institutions Code section 602, alleging that D.L. committed the following felony offenses: (1) carjacking (§ 215, subd. (a)) (count 1); (2) second degree robbery of Lara (§ 211) (count 2); (3) assault on Morse by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 3); (4) assault on Lara by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 4); and (5) grand theft auto (§ 487, subd. (d)(1)) (count 5). D.L. denied the allegations of the petition.
On June 3, 2008, the juvenile court found the allegations against D.L. to be true beyond a reasonable doubt and sustained the petition as to all counts. At a disposition hearing held on June 6, 2008, the juvenile court declared D.L. a ward of the court and ordered him placed in a one-year camp community placement program. The court awarded D.L. 27 days of pre-disposition credit and imposed various probation conditions, including an order to stay away from places where users of illegal drugs congregate. The court set the maximum term of confinement at 12 years, consisting of nine years for the carjacking offense, one year for the second degree robbery offense, one year for the assault offense against Lara, and one year for the assault offense against Morse.
The juvenile court concluded that the grand theft auto offense "merged" into the carjacking offense for sentencing purposes.
On July 30, 2008, D.L. filed a timely notice of appeal.
DISCUSSION
I. Grand Theft Auto
D.L. first contends that the juvenile courts finding on the grand theft auto count must be reversed because grand theft auto is a lesser included offense of robbery. The Attorney General concedes that D.L.s contention is correct. We agree, and accordingly, reverse that finding.
Multiple convictions are prohibited where one offense is necessarily included in another. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson (1986) 42 Cal.3d 351, 355.) "Theft, in whatever form it happens to occur, is a necessarily included offense of robbery," which includes the additional element of force and fear. (People v. Ortega, supra, at p. 699.) "[G]rand theft is simply one of the two degrees of the general crime of theft, and . . . the theft of an automobile is simply one of the many forms of theft that constitute grand theft." (Id. at p. 698.) As such, a defendant may not be convicted of both robbery and grand theft auto based upon the same conduct. (Id. at p. 699 [reversing grand theft auto convictions because they "were based, at least in part, upon the same conduct underlying [the] robbery convictions"].) Here, both the robbery and grand theft auto counts were based, in part, on the same conduct — the taking of Laras vehicle. The juvenile courts finding on the lesser included offense of grand theft auto must therefore be reversed.
Although reversal of the grand theft auto finding is required, it does not affect D.Ls sentence because the juvenile court did not include the grand theft auto count in determining the maximum term of confinement. (§ 654, subd. (a).)
II. Robbery And Assault On Lara
D.L. next asserts that the juvenile court should have stayed the sentences for the robbery and assault on Lara under section 654 because they were based upon the same course of conduct as the carjacking. As explained below, we conclude that the juvenile court did not err in imposing separate sentences on these counts.
Section 654 provides, in pertinent part, that "[a]n 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 statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of conduct is indivisible and constitutes a single act within the meaning of section 654 depends upon the "intent and objective" of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of the offenses were incidental to, or were the means of accomplishing or facilitating one objective, the defendant may receive only one punishment. (Ibid.) If, on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, he or she may be punished for each offense even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
The question of whether the defendant harbored a "single intent" is a factual determination to be made by the sentencing court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) In this case, the juvenile court made no express factual findings with respect to the application of section 654. Nevertheless, on appeal, we must sustain the juvenile courts implied factual determinations if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Substantial evidence 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. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) A judgment will not be reversed for insufficient evidence unless "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A. Robbery
D.L. argues that the one-year sentence on the robbery count should have been stayed because the theft of several articles from one victim at one time constitutes a single offense not subject to multiple punishments. It is generally true that where a carjacking and robbery are committed simultaneously for the singular purpose of depriving the victim of his or her property, the two crimes are not separately punishable. (See, e.g., People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [carjacking and robbery constituted the same act for purposes of section 654 where the defendant "placed [a] cold metallic object to the back of the victims neck and demanded `everything he had . . ." and "[s]imultaneously, the victim handed over his jewelry and van"].) On the other hand, where a carjacking and robbery involve more than one objective, or derive from two distinct acts occurring consecutively rather than concurrently, the offenses may be subject to separate sentences. (See, e.g., People v. Green (1996) 50 Cal.App.4th 1076, 1085 [where a carjacking was separated in time and place from a robbery of the victims purse, "the taking of the purse and the taking of the vehicle were separate incidents which merited separate and additional punishment"].)
Here, the juvenile court reasonably could have concluded that the taking of Laras car and the taking of the property on his person derived from distinct acts involving more than one criminal objective. When Laras assailants initially approached his vehicle at an intersection, they yelled at Lara and Morse to "get out of the car" and tried to block the car from moving. At that point, Lara was able to maneuver his car away and sped through a few stop lights in an effort to escape. The other cars continued to chase him, and after several blocks, succeeded in blocking Laras vehicle. Lara and Morse then got out of the car and were immediately attacked. Once Lara was rendered unconscious from the attack, his assailants took various personal items from his person. D.L.s accomplices then left in their cars, while D.L. and P.M. drove off in Laras vehicle.
Given this sequence of events, there was substantial evidence to support a finding that the carjacking and robbery involved separate intents. The first intent would have been to take Laras Cadillac, as evidenced by the assailants initial demand to Lara and Morse to "get out of the car" while they were stopped at an intersection. After chasing the car for several blocks and then assaulting both Lara and Morse, a separate intent was formed to take the cash and other items on Laras person as he was lying unconscious on the ground. It is true, as D.L. notes, that Laras car and personal property ultimately were taken from the same location within a short period of time. However, in light of the separation in time and place between the initial demand for Laras vehicle and the subsequent taking of the various items on his person, the juvenile court reasonably could have concluded that the robbery of Laras personal items involved an objective independent from the carjacking, thus warranting separate punishment.
B. Assault On Lara
D.L. similarly asserts that the one-year sentence for the assault on Lara should have been stayed because the only apparent purpose of the assault was to accomplish the robbery and carjacking. However, the amount of force applied in the assault on Lara was far more than necessary to facilitate the taking of his car and other personal property. As one appellate court has observed, "at some point the means to achieve an objective may become so extreme they can no longer be termed `incidental and must be considered to express a different and more sinister goal than mere successful commission of the original crime. . . . [¶]. . . [¶] . . . [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; see also People v. Cleveland (2001) 87 Cal.App.4th 263, 272 [defendant had "separate and simultaneous intents" in committing robbery and attempted murder where defendant beat victim with a board during the course of a robbery until victim was unconscious].)
Here, Lara was attacked by multiple assailants who "pounded" on him until he was "pretty much unconscious." Although Lara was unable to recall the details of the assault, the shoe marks left on his face support the inference that he was lying helpless on the ground during part of the attack. Laras physical injuries were serious in nature and included a fractured nose, three chipped teeth, black eyes, and multiple facial bruises. Given the severity of the beating, there was substantial evidence to support a finding that the assault on Lara was not merely incidental to the taking of his property, and that D.L. harbored an intent far beyond that necessary to facilitate a carjacking or robbery. Therefore, the juvenile court did not violate section 654 in imposing separate sentences for the carjacking, robbery, and assault on Lara.
III. Assault On Morse
D.L. also argues that there was insufficient evidence to support the juvenile courts finding that the assault on Morse was made with force likely to cause great bodily injury. We conclude, however, that the juvenile courts finding on this count was supported by substantial evidence.
Section 245, subdivision (a)(1) prohibits an assault "by any means of force likely to produce great bodily injury." "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Because the statute focuses on the use of force likely to produce great bodily injury, it is immaterial whether the victim in fact suffers any harm. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; see also People v. Colantuono (1994) 7 Cal.4th 206, 217 [gravamen of the crime defined by section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury].) Accordingly, "[t]he essential determination is whether the force was likely to produce great bodily injury rather than the actual injury incurred. [Citation.]" (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) If, however, injury is inflicted, it may be considered in connection with other evidence to determine if the assault was of the sort likely to cause great bodily injury. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.)
It is well-settled that the use of hands or fists alone may support a conviction for assault by means of force likely to produce great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at p. 1028; People v. Wingo (1975) 14 Cal.3d 169, 176.) Indeed, a single blow to the face may, under all of the circumstances, constitute the use of such force within the meaning of section 245, subdivision (a)(1). (In re Nirran W., supra, 207 Cal.App.3d at pp. 1161-1162.) Whether the force applied in an assault was likely to produce great bodily injury is a question of fact for the trier of fact that must be sustained on appeal if supported by substantial evidence. (People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.)
In this case, the evidence was sufficient to support the juvenile courts finding that the assault on Morse was committed with a force likely to produce great bodily injury. Morse was attacked by at least three individuals immediately upon exiting Laras vehicle. As the men were hitting Morse with their hands, he ran up the street in an attempt to get away. Prendiz, who witnessed the assault, testified that he saw "all kinds of kids . . . pound[ing] on two guys out in the middle of the street," and that Morse was "bleeding from his face" as he ran toward Prendiz and his wife. Prendiz also recalled that his wife yelled at the attackers to stop, but that they were so involved in what they were doing that they did not seem to hear her. As a result of the attack, Morse suffered bleeding from his head, scratches to his face, and a cut lip.
D.L. reasons that Morse essentially escaped the assault by running away and that his injuries must have been minor because he did not receive any medical treatment at the hospital. However, the critical determination is not whether Morse actually suffered great bodily injury, but whether the nature of the force inflicted was likely to cause great bodily injury. Thus, the fact that Morses injuries were seemingly minor in nature and that he was able to avoid more serious harm by fleeing did not preclude a finding that the force used in the attack was of the sort likely to produce great bodily injury within the meaning of section 245, subdivision (a)(1). Based on the evidence presented, the juvenile courts finding that the assault against Morse was made with a force likely to produce great bodily injury was supported by substantial evidence.
IV. Probation Condition On Association With Users Of Illegal Drugs
Finally, D.L. claims that the probation condition requiring him to "stay away from places where users congregate" was unconstitutionally vague and overbroad because the juvenile court, in orally pronouncing this condition at the disposition hearing, did not restrict its prohibition to persons known to D.L. to be drug users. On appeal, the Attorney General concedes that the juvenile courts oral pronouncement failed to include a knowledge requirement, but contends that the courts minute order remedied any ambiguity in the reporters transcript by clarifying that D.L. was only ordered to "stay away from places where persons whom you know to use illegal drugs or substances congregate." We agree that the courts written order clarified its oral statement at the disposition hearing and that the probation condition, as set forth in the minute order, expressly includes the knowledge element necessary to satisfy due process.
"The juvenile court has wide discretion to select appropriate conditions and may impose `"any reasonable condition that is `fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) "`[A] condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. . . ." (Ibid.) Nevertheless, to avoid unconstitutional overbreadth, "[a] probation condition that imposes limitations on a [minors] constitutional rights must closely tailor those limitations to the purpose of the condition." (Id. at p. 890.) To avoid unconstitutional vagueness, the probation condition "`must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." (Ibid.)
In Sheena K., the California Supreme Court considered a probation condition that prohibited a minor from associating with anyone disapproved of by her probation officer. (Sheena K., supra, 40 Cal.4th at p. 880.) Because the probation condition, "[b]oth as orally pronounced by the juvenile court, and as set forth in the minute order, . . . did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer," the Supreme Court held that it was unconstitutionally vague. (Id. at pp. 891-892.) The Court made clear, however, that such a probation condition could be rendered constitutional on judicial review if modified to include a knowledge requirement that "explicitly direct[ed] the probationer not to associate with anyone `known to be disapproved of by a probation officer or other person having authority over the minor." (Id. at p. 892.)
As the Supreme Court also observed in Sheena K., "a probation condition that otherwise would be deemed vague may be constitutional because the juvenile court offered additional oral or written comments clarifying that the minor must have knowledge of the persons disapproved of by the authorities." (Sheena K., supra, 40 Cal.4th at p. 891.) For instance, in In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 (Byron B.), the Fourth District rejected a minors constitutional challenge to a probation condition prohibiting contact with any person disapproved of by a parent, guardian, or probation officer because "unlike the juvenile courts oral ruling, its minute order did include the crucial words, `known to be." Recognizing that "[t]he clerks minutes and the reporters transcript are to be harmonized, if possible," the court concluded that the clerks transcript "simply clarifie[d] a point that the reporters transcript left ambiguous." (Ibid.) Because "the minute order correctly recite[d] the juvenile courts ruling," the court held that the probation condition was "not unreasonable, overbroad, or void for vagueness." (Ibid.)
The same reasoning applies here. It is generally true that the oral pronouncement of judgment controls over the clerks minute order and that any discrepancy between the two is presumed to be a clerical error in the minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471). However, as the court in Byron B. noted, the two should be harmonized where possible. (Byron B., supra, 119 Cal.App.4th at p. 1018; see also People v. Harrison (2005) 35 Cal.4th 208, 226 ["As a general rule, a record that is in conflict will be harmonized if possible."].) "`[W]hether the recitals in the clerks minutes should prevail as against contrary statements in the reporters transcript, must depend upon the circumstances of each particular case. [Citations.]" (People v. Smith (1983) 33 Cal.3d 596, 599.) In this case, as in Byron B., the juvenile courts minute order simply clarified its oral pronouncement of the probation condition at issue by expressly limiting the prohibition on D.L.s association with drug users to "persons whom you know to use illegal drugs or substances."
D.L. concedes that the courts minute order does contain the express knowledge element that he claims is necessary to comply with due process. He accordingly does not challenge the constitutionality of the probation condition as set forth in the written order. Rather, D.L. argues that there is nothing in the record to establish that he ever saw the minute order and read the restriction on association with known drug users. However, D.L. clearly has notice of the probation condition now since he has been served with copies of the appellants briefs filed on his behalf. Moreover, the specific remedy that D.L. seeks on appeal — modification of the probation condition to include a knowledge requirement — has already been granted to him in the juvenile courts written order.
In sum, we conclude that the juvenile courts written order served to clarify its oral pronouncement of the probation condition at issue and that such condition only prohibits D.L. from associating with individuals known to be users of illegal drugs. As such, the probation condition is neither unconstitutionally vague nor overbroad.
DISPOSITION
The juvenile courts true finding on the grand theft auto count is reversed. In all other respects, the judgment is affirmed.
We concur:
WOODS, Acting P. J.
JACKSON, J.