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In re Jasmine V.

California Court of Appeals, Second District, Second Division
Feb 8, 2011
No. B220238 (Cal. Ct. App. Feb. 8, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. MJ16652 Robin R. Kessler, Juvenile Court Referee.

Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.


DOI TODD, J.

The juvenile court sustained a petition alleging that Jasmine V. (minor) committed two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The juvenile court ordered minor to be placed in the care, custody, and control of her probation officer for placement in a closed facility. The maximum confinement time was set at seven years.

All further references to statutes are to the Penal Code unless stated otherwise.

Minor appeals on the ground that the juvenile court erred in sustaining the allegation in count 3, since it was duplicative of the assault with force likely to result in great bodily injury allegations in counts 1 and 2.

FACTS

Prosecution Evidence

Police were called to minor’s home on January 10, 2009, when an argument between minor and her mother, S.G., escalated after S.G. refused to allow minor to go to the Wal-Mart. Minor kept yelling to S.G. that she should not come close to minor. Minor picked up an aluminum stick approximately four feet long and began waving it at S.G., telling her to stay away. The stick was approximately two feet from S.G.’s face as she went closer to minor and told her to calm down. Minor’s sister, S.B. heard the commotion. She approached minor from behind and took the stick away from her. S.B. saw minor hit her mother once with an open hand. Minor kept on screaming and next picked up a golf club. She waved it at S.G. and told her to stay away. The golf club was approximately two feet from S.G.’s person.

S.G. denied telling police that she believed minor really wanted to hurt her. Minor did not hit S.G. with the stick or the golf club, nor did she threaten to do so. After S.G. called the Psychiatric Emergency Team (PET) and learned they were gone for the day, S.G. asked S.B. to call the police. S.G. explained to the deputies who came to her home about her daughter’s mental condition and told them that she had called the PET team first. S.B. acknowledged that she told the deputies she was afraid minor was trying to hit S.G. with the stick and the golf club, and that is why she dialed 911. Sheriff’s Deputy Kamal Jannah confirmed that S.B. told him that it seemed minor was really trying to hit her mother with the two sticks. S.G. told the deputies that she wished to recant her statements when she discovered that minor was being taken to juvenile hall rather than a hospital.

When the deputies arrived, minor was in her bedroom. Minor told the deputies that she was very upset with her mother. Words were exchanged, and her mother pushed her. Minor picked up an aluminum stick and tried to hit her mother. She lost the stick, grabbed a golf club, and continued to chase her mother around. She tried to hit her mother with the golf club. She eventually got tired, and her mother took the golf club from her. They continued to argue.

Defense Evidence

S.G. asked Deputy Robert McGaughey (Deputy McGaughey) to send her daughter to a mental health facility, and he told her that was not possible because of the crime that occurred. S.G. told the deputy that minor had been diagnosed as schizophrenic and bipolar. Minor appeared calm to Deputy McGaughey.

DISCUSSION

I. Argument

Minor contends that, assuming the force likely to produce great bodily injury as alleged in count 3 relates to her use of the “deadly weapons” used in counts 1 and 2, count 3 is duplicative of those counts and must be stricken. Minor argues in the alternative that, if count 3 was sustained on the basis of minor striking S.G. with her hand, the evidence was insufficient to sustain the allegation. Respondent agrees that count 3 is duplicative and should be stricken.

II. Relevant Authority

Section 245, subdivision (a)(1) provides: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” There is no real distinction between assault by means of force likely to produce great bodily injury and assault with a deadly weapon. They are both the same offense, i.e., aggravated assault. (In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.)

III. Count 3 Must Be Stricken

The facts in the instant case show that count 3 is based on the same acts that constitute the offenses in counts 1 and 2. The information shows that count 1 describes the assault with the stick, and count 2 is the assault with the golf club. No other act or weapon is included in the allegation in count 3 of the information. The prosecutor argued to the juvenile court, “we have a girl who used two separate deadly weapons against her mother, swung them at her, and the force that she used was likely to produce injury.” And, “both times she picked up the weapons and she was aware of the facts that would lead a reasonable person to realize that her actions would produce great bodily injury. A reasonable person would believe that swinging a metal object at somebody would likely result in great bodily injury to that other person. She clearly had the ability to apply the force because she was in possession of these metal objects.”

Since minor committed only the two acts of assault described in counts 1 and 2, count 3 is clearly duplicative of the other counts. A defendant cannot be properly convicted of multiple counts alleging the same conduct absent legislative authorization. (People v. Ortega (1998) 19 Cal.4th 686, 699–700 [defendants cannot be convicted of both robbery and theft based on theft of the same property underlying those convictions, but can be convicted of carjacking and robbery based on the same conduct]; People v. Marquez (2000) 78 Cal.App.4th 1302, 1307–1308 [court erred in finding two robberies even though separately owned property was stolen in the course of single robbery transaction against a single victim].) The true finding in count 3 must be reversed.

Since the true finding in count 3 is reversed, minor’s maximum confinement time must be reduced accordingly. Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms, both on the basis of multiple counts, and on previously sustained Welfare and Institutions Code section 602 petitions in computing the maximum confinement term. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454–455.) The maximum term in this case is clearly the result of aggregation. When aggregating multiple counts and previously sustained petitions, the maximum confinement term is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. (Welf. & Inst. Code, § 726; § 1170.1, subd. (a); In re Deborah C. (1981) 30 Cal.3d 125, 140.) The reversal of the true finding in count 3 necessarily entails a reduction in the maximum confinement time.

It is not clear from the record whether minor has a prior sustained petition.

DISPOSITION

The true finding in count 3 is reversed. The superior court is directed to amend the minute order of the adjudication and dispositional hearing on September 29, 2009, to reflect convictions of counts 1 and 2 only and to reflect the concomitant reduction in minor’s maximum confinement time. In all other respects, the order appealed from is affirmed.

We concur: BOREN, P. J., ASHMANN-GERST, J.


Summaries of

In re Jasmine V.

California Court of Appeals, Second District, Second Division
Feb 8, 2011
No. B220238 (Cal. Ct. App. Feb. 8, 2011)
Case details for

In re Jasmine V.

Case Details

Full title:In re JASMINE V., a Person Coming Under the Juvenile Court Law. THE…

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

Date published: Feb 8, 2011

Citations

No. B220238 (Cal. Ct. App. Feb. 8, 2011)