Opinion
F041895.
11-13-2003
In re JERIMIAH V., A Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JERIMIAH V., Defendant and Appellant.
Elisabeth Jenny Wayland, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Robert P. Whitlock, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
In Jeremiahs eleventh appearance before the juvenile court, he admitted allegations of felony battery with injury on a peace officer (Pen. Code, § 243, subd. (c)(2)), misdemeanor resisting or obstructing an officer (§ 148, subd. (a)(1)), and violation of probation. The court adjudged him a continuing ward of the court (Welf. & Inst. Code, § 602), committed him to the California Youth Authority, and set his maximum confinement time at six years two months, less 757 days credit for time served. On appeal, Jeremiah challenges the courts authority under section 654 to impose punishment for both the battery and the resisting offenses because, he contends, both occurred during an indivisible course of conduct. We disagree and will affirm the orders of the juvenile court.
Further statutory references are to the Penal Code unless otherwise indicated.
FACTS
Jeremiah was admitted to the Tulare County Youth Facility on August 28, 2002. The first week he was there, he was involved in two fights with other cadets. The next week, Correctional Officer Torres told him he was being placed on the behavior roster for talking during quiet time. Jeremiah began to argue with Torres. Torres twice instructed all cadets to assume the cover position. Everyone complied but Jeremiah, who told Torres, "Im not going to cover. If you spray me for nothing, Im going to hit a lady." When Jeremiah ignored Torres third request to cover, she sprayed him with OC pepper spray. In response, Jeremiah pushed Torres with his forearms, lifting her off the floor and causing her to fall onto a table. Torres suffered a thoracic strain and contusions.
DISCUSSION
Jeremiah contends the court erred in failing to stay the term on either the resisting or the battery offense because both arose out of an indivisible course of conduct. We disagree.
Section 654 prohibits double punishment where a defendants criminal acts violated more than one statute but constituted an indivisible course of conduct. Whether a course of conduct is indivisible depends on the objective of the actor. If the offenses were incident to one objective, the defendant may be punished for one of the offenses but not for both. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a defendant harbored multiple criminal objectives is generally a question of fact. If there is no express finding on the issue in the record, a finding that the crimes were divisible is inherent in the judgment, and must be upheld if supported by the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.) Section 654 applies to the calculation of the maximum term of confinement in juvenile cases. (In re Billy M. (1983) 139 Cal.App.3d 973, 978.)
Respondent submits that Jeremiahs consent to the finding of guilt on two counts, rather than one, necessarily admitted the divisibility of his conduct. (Seiterle v. Superior Court (1962) 57 Cal.2d 397, 400-401 [by pleading guilty to multiple counts without reserving whether the kidnappings and the murders constituted indivisible transactions, petitioner, at least prima facie, admitted that the crimes were separate and not indivisible].) Regardless of whether Jeremiahs admissions were conclusive on the issue, we find it meritless.
Jeremiah argues that his conduct constituted one indivisible transaction with but one objective—to resist Officer Torres. We are not persuaded. The record discloses that Jeremiah engaged in separate acts, distinctly separated by the pepper spray, pursuant to separate objectives. First, he argued with Officer Torres, refused her orders to cover, and threatened to hit her. These acts constituted resisting and, according to staff reports, were motivated by Jeremiahs desire to "assert himself as a dominant force among the Youth Facility population." Second, Jeremiah assaulted Officer Torres after she sprayed him with pepper spray. This separate act constituted the battery and evidenced an objective to harm Officer Torres, divisible from his objective to resist her authority.
Jeremiah relies on cases where the court found that both crimes were committed pursuant to a single intent and objective. Those cases are distinguishable from his on their facts. (People v. Failla (1966) 64 Cal.2d 560, 570 ["technical kidnapping" to commit sexual misconduct]; Neal v. State of California (1960) 55 Cal.2d 11, 20 [attempted murder by arson]; People v. Beamon (1973) 8 Cal.3d 625, 639 [kidnapping for the purposes of robbery]; People v. Bauer (1969) 1 Cal.3d 368, 378 [robbery and car theft] and People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131 [ex-felon in possession on three separate occasions].)
Jeremiahs case is closer to the line of cases holding to the contrary. (E.g., People v. Coleman (1989) 48 Cal.3d 112, 162 [assault of robbery victim had separate intent and objective than the robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193, 196 [harming of unresisting robbery victim a separate objective from the robbery itself]; People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [dual objectives of rape and theft when entering the victims residences supported separate punishment for burglaries and rapes]; People v. Porter (1987) 194 Cal.App.3d 34, 37-39 [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)
Accordingly, the courts calculation of the maximum period of confinement to include a four-month consecutive term for each of his current offenses did not violate section 654. The punishment was commensurate with Jeremiahs culpability
DISPOSITION
The judgment is affirmed.