Opinion
A113443
4-20-2007
In re JOSEPH A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSEPH A., Defendant and Appellant.
NOT TO BE PUBLISHED
Joseph A. appeals from jurisdictional and dispositional orders sustaining allegations of automobile theft, receiving stolen property, evading arrest, resisting arrest, driving under the influence of alcohol and driving without a license, and committing him to the California Youth Authority (CYA). He contends the commitment order must be reversed because there was no evidence he would likely benefit from a commitment to the CYA. He additionally urges his maximum period of confinement must be recalculated. We agree that the maximum period of confinement must be recalculated and otherwise affirm the judgment.
As of July 1, 2005, the CYA became known as the Division of Juvenile Facilities within the Department of Corrections and Rehabilitation. (Welf. & Inst. Code, § 1710, subd. (a); Gov. Code, §§ 12838, 12838.5.) Since the record below and parties briefs on appeal use the name "CYA" however, we will do so to avoid confusion.
STATEMENT OF THE CASE
On September 27, 2005, the Contra Costa County District Attorney filed a supplemental petition (Welf. & Inst. Code, § 602) alleging Joseph had committed three felonies—unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)) and evading an officer (Veh. Code, § 2800.2, subd. (a)), and three misdemeanors—resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), driving under the influence (Veh. Code, § 23152, subd. (a)), and driving while unlicensed (Veh. Code, § 12500, subd. (a)). After a contested jurisdictional hearing held on October 24 and November 15 and 28, the trial court sustained all counts of the petition.
All further statutory references will be to the Welfare and Institutions Code unless otherwise specified.
A contested dispositional hearing was held on March 13, 2006, and appellant was committed to the CYA. The court determined the maximum period of confinement under section 726, subdivision (c), to be five years four months, and found under section 731, subdivision (b), that the maximum period of physical confinement should be three years. The court found appellant has "special educational needs" and ordered "mental health intervention immediately at CYA."
Appellant filed a timely notice of appeal on March 24, 2006.
STATEMENT OF FACTS
The current offenses
Sometime before noon on September 23, 2005, Ismail Ceylan parked his burgundy 1987 Toyota Camry in the parking lot of the Richmond BART station. When he returned after 7:00 p.m., the car was gone. Ceylan reported it as stolen.
Police Officer Aaron Leone was driving a marked El Cerrito police car at about 9:40 p.m. on September 24, 2005, when he saw a maroon Toyota Camry without headlights on turning from southbound San Pablo Avenue to eastbound Hill Street. As Leone followed, the Camry turned into the Del Norte BART parking lot. Leone activated his vehicles emergency lights and siren. The Camry continued driving around the perimeter of the parking lot, accelerating from about 20 to about 30 miles per hour, then returned to Hill Street, failing to stop at the stop sign at the parking lot exit. A car driving on Hill Street braked sharply and swerved to avoid a collision with the Camry. A short distance further east on Hill Street, the Camry made a "really wide and fast" turn into the bus-only lane, its right tires coming onto the sidewalk in a "shower of sparks," then returning to the bus lane. There were 25 to 30 people waiting on the sidewalk and benches at the bus stops. As the Camry skidded to a stop, both front doors opened and the driver and passenger got out and ran in opposite directions.
Leone chased the driver, whom he identified as appellant, through the BART parking lot, across San Pablo Avenue and through a shopping center parking lot, finding him crouched in an area of shrubbery. Leone and Officer Purdy, who had arrived at the scene, handcuffed appellant and put him in Purdys car to be transported to the police station. Leone smelled alcoholic beverage coming from appellant.
The door locks of the Camry appeared to have been pried open and Leone found a broken pair of scissors near the cars center console. Leone testified that the broken scissors could have been used to start the car.
Leone administered field sobriety tests to appellant at the police station. Breath tests showed a blood alcohol level of .07, and Leone noted that appellants eyes were bloodshot and his speech slightly slurred. Appellant was not able to produce a drivers license.
Appellant told Leone that he was initially the passenger in the Camry, with his acquaintance Deandre driving. While Deandre was driving, appellant drank a shot of gin that Deandre gave him. They switched seats after Deandre stopped at a store. Appellant realized the car was stolen when Deandre started it with the scissors, and that at this point Deandre threatened appellant with a gun.
Forensic toxicologist Stephanie Williams testified that symptoms of driving impairment can occur at blood alcohol levels below . 05 and all people are significantly impaired with a blood alcohol level of .08. Williams testified that appellants driving and physical symptoms were consistent with being under the influence of alcohol.
Appellant, who was 17 years old at the time of the offenses, testified that he was standing in front of Joes Market at about 9:30 p.m. on September 24, when Deandre pulled up in a red Toyota. Deandre asked appellant to ride with him and see some friends; appellant got in the car and Deandre gave him a "little cup of gin." Deandre drove to a restaurant, brought his food to the car and asked appellant to drive. Appellant got into the drivers seat and waited for Deandre to give him the car keys; Deandre reached over and started the car with a pair of scissors. Appellant asked if the car was stolen and, when Deandre said it was, appellant said he wanted no part of this and asked to be taken back to the market. Deandre refused and told appellant to take him to the BART station to find another car because this one was low on gas. Appellant opened the door to get out and Deandre pulled a gun and told appellant to take him to the BART station. Appellant did, but Deandre could not find a car he could steal easily. Deandre, who still had the gun out, was "kind of drunk." Appellant felt his life was endangered: He did not know what Deandre was "capable of" or what Deandre was thinking.
At Deandres direction, appellant drove toward the Del Norte BART station. On the way, appellant asked Deandre to drop him at his house but Deandre told him to keep going. As they got to the BART station, a police car pulled up behind them. Deandre told appellant to drive normally. The police car followed them into the parking lot and activated its lights. Deandre told appellant to take off as fast as he could. As appellant drove into the bus stop area, Deandre pulled the emergency brake; the car stopped and Deandre fled. Appellant ran as well, thinking he would be blamed for stealing the car because he was the driver. He knew the police officer was chasing him. Appellant told the police that Deandre pulled a gun on him and that he would not have driven the car otherwise. Appellant did not have a drivers license.
Appellants background
Appellant was abandoned by his parents after he was born and lived with his paternal grandmother for a year, then with his maternal grandparents until he was five, when he returned to his paternal grandmother. His mother had been "involved with drugs and prostitution" and was murdered in 2003; his father had been in and out of prison, mostly on drug charges, and at the time of these proceedings was serving a sentence of 25 years to life for an unrelated murder. Appellants paternal grandmother had served time in prison for killing two men (a murder conviction and a voluntary manslaughter conviction) and setting another mans foot on fire.
Appellant was diagnosed with attention hyperactivity disorder in 1995 and took Ritalin for several months, until his grandmother reported to the doctor that the medication was not working. During the doctors appointment, the grandmother hit appellant with a yardstick when he did not follow her directions.
Appellant was adjudged a dependent child under section 300 in May 1997, when he was eight years old, after his grandmother refused to care for him and beat him with a belt in front of a police officer and with a yardstick in front of a doctor. He was placed in a group home, Roxanna House, where he "would run all over the house, throw chairs, bang his head against the walls, pick at sores on his skin and eventually attacked staff." He spent two weeks in Vallejo Hospital under section 5150, initially diagnosed with intermittent explosive disorder and depression and treated with an antidepressant, then on discharge diagnosed with post traumatic stress disorder, attention hyperactivity disorder and depression. He was placed in a foster home but ran away; when he was detained, he beat with his fists on the police officer who tried to return him to the home. He was taken to Walnut Creek Hospital under section 5150 and diagnosed with attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder.
On January 31, 2003, an original petition was filed under section 602, charging appellant (then 14 years of age) with exhibiting a deadly weapon (Pen. Code, § 417, subd. (a)(1)) and battery (Pen. Code, §§ 242/243, subd. (a)), based on incidents at a group home. Appellant pled no contest to the battery and the other count was dismissed. He was placed on probation (§ 725) for six months and continued as a dependent. He remained at Juvenile Hall for several months while the Social Services Department tried to find a placement for him. It was felt that he needed a "high level placement" because of his "out of control, injurious and damaging behaviors," and Seneca Center, a locked facility and the "only place that has been able to handle [his] behaviors," did not have space available. On June 12, 2003, he was placed at Seneca Center. The section 602 petition was dismissed on August 25, 2003. A subsequent social workers report related appellants statement that he "frequently awoled" from Seneca, was kicked out in October 2003, and was placed with his 29-year-old paternal aunt because social services "had run out of options."
On September 30, 2004, a supplemental petition was filed alleging battery on a school employee. According to the probation departments report, appellant became disruptive in class, threatened his 74-year-old teacher, and pushed the teacher in the chest with two open hands. Appellant did not appear for the hearing on November 1, and a bench warrant was issued. He was detained in Juvenile Hall, a contested jurisdictional hearing was held on December 6, and the petition was sustained. The probation department recommended that appellant not be placed with his aunt, who admitted she was not capable of disciplining him, but noted that it might be difficult to place him because of his behavior in past placements. The probation officers report described appellant as "incapable of feeling remorse for his behavior" and acting aggressively toward others "without any concern for their physical or mental well being." The report noted that appellant had "been surrounded by constant chaos, abuse, abandonment and grief" during his upbringing, commenting, "[h]e has known nothing but death, anger and physical violence—its no wonder he has also become verbally and physically abusive."
On December 17, 2004, appellant was adjudged a ward of the court and ordered detained in Juvenile Hall pending placement. On February 3, 2005, he was placed at Summit Center. After a brief stay, he was returned to Juvenile Hall, again placed at Summit Center, and, by the end of February, again returned to Juvenile Hall. According to a subsequent report, on both occasions appellant requested to be removed from Summit Center because he did not want to participate in the program and his behavior was described as "confrontational, negative, disrespectful and hostile." Over the next months, the probation department found only one program willing to accept appellant, and it had a waiting list. On June 15, 2005, appellant was released to his aunt on electronic monitoring. On July 18, the monitoring was terminated.
On August 25, 2005, the probation department filed a notice of probation violation (§ 777), alleging that appellant left home without permission on August 5 and was living at his grandmothers house in Richmond, and that appellant failed to keep an appointment with his probation officer on August 23. During a meeting with his probation officer on August 5, appellant had said he wanted to live with his uncles wife in Sacramento because he and his aunts boyfriend did not get along. The probation officer said he would look into the situation, but directed appellant to remain in his aunts home until the court approved a change. Appellant failed to appear for an appointment on August 23, and when the probation officer called appellants aunt, she said she had kicked appellant out of her house on August 5. A subsequent report indicated the aunt took this action due to appellants "consistent verbal abuse" and her fear that he would "become violent towards her and her children." A bench warrant was ordered on August 31, and recalled on September 6. According to incident reports for September 6, appellants behavior in court was disruptive and threatening toward the judge, and when appellant returned to Juvenile Hall he tore up the mattress in his room. On September 15, the probation violation was sustained. Appellant was released to his aunt on electronic monitoring.
On September 21, 2005, appellants aunt reported that she had come home to find appellant gone and the electronic monitoring system still at the house. A notice of probation violation was filed alleging that appellant left home without permission and his whereabouts were unknown, and that appellant failed to keep an appointment with his probation officer on September 21. The probation violation was sustained on September 22, and the court ordered a bench warrant. The probation violation was subsequently dismissed on November 28, at the hearing on the current offenses.
The record contains a supplemental petition (§ 602) filed on September 29, 2005, alleging escape from juvenile custody (§ 871, subd. (d)) on September 20. At the hearing on the current offenses, appellants attorney indicated she had not received this supplemental petition; the court stated it was dismissing the probation violation, noting "weve never treated those as a substantive offense and nothing has been filed."
DISCUSSION
I.
Appellant contends the order committing him to the CYA must be reversed because there was no evidence in the record demonstrating he would likely benefit from the commitment.
"A juvenile courts commitment order may be reversed on appeal only upon a showing the court abused its discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416 [(Todd W.)].) `"We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them." (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.)" (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
"A fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection." (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) " `The purpose of the juvenile delinquency laws is twofold: (1) to serve the "best interests" of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and "enable him or her to be a law-abiding and productive member of his or her family and the community," and (2) to "provide for the protection and safety of the public . . . ." (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615 [noting also that § 202, subd. (b), authorizes punishment consistent with rehabilitative objectives]; see § 202, subds. (a), (b), (d).)" (In re Schmidt (2006) 143 Cal.App.4th 694, 716, fn. omitted.) To support a commitment to the CYA, "there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576-577.) A CYA commitment may be considered, however, without previous resort to less restrictive placements. (In re Asean D. [(1993) 14 Cal.App.4th 467], 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)" (In re Angela M., supra, 111 Cal.App.4th at p. 1396.) The court "must be `fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority. (§ 734.)" (In re Jimmy P., supra, 50 Cal.App.4th at p. 1684.)
"In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history." (§ 725.5.)
According to the probation departments report for the December 12, 2005 hearing on the current offenses, appellant was detained in Juvenile Hall on September 24, 2005, and was a "level three." Staff reported that he had "numerous discipline contacts for defiance, disrespect to staff, not following directions, profanity to the teacher and threats to unit staff." He had also been uncooperative regarding phone calls to his aunt, asking for calls at inappropriate times and "act[ing] out" when he did not receive them. Appellant stated that he had been using marijuana daily since the age of seven and felt he was calmer and more relaxed when high. He used alcohol four to five times a month, on weekends. He did not feel he had an anger issue or needed medication.
Appellant had been screened for placement at the Starlight facility, but it was "doubtful that they would accept him due to his recent behaviors and charges," and it was mentioned that appellant had twice been released from the Seneca program "due to his violent behavior towards staff." Appellants case was screened for the Orin Allen Youth Rehabilitation Facility but deemed inappropriate because, due to his "extreme violent behaviors towards group home and juvenile hall staff, it was felt that he presented a significant threat to staff at the ranch, other minors and the community at large. It was also mentioned that [appellant] seemed to be beyond the programming abilities at [the Orin Allen Youth Rehabilitation Facility]." Appellants case was also screened for the CYA, where he would receive substance abuse counseling, victims awareness classes, anger management classes and a high school education[, and] would be considered for parole in approximately one year.
According to the probation officer, appellant was "in desperate need of a structured environment that will teach him how to deal with his feelings of anger, abandonment and grief as well as the skills to become a productive citizen in the community. Unfortunately, [appellants] poor decisions thus far have prevented him from being accepted into any of the lesser restrictive programs that are available to juveniles in the justice system. Thus creating the only option readily available, the California Youth Authority. This program will provide [appellant] with the skills that he will need in order to hopefully, become a lawful citizen. The C.Y.A. program will offer [appellant] the ability to achieve this G.E.D. or high school diploma, obtain anger management and victim awareness classes as well as complete a substance abuse program. As [appellant] will be the age of majority when he is released from whatever program the court directs, these skills will be beneficial to [appellant]s future."
On February 6, 2006, the probation department reported that appellants behavior in Juvenile Hall had "rapidly declined" and related a number of incidents in which appellant threatened and attempted to physically assault staff, "incited the unit," and threatened suicide. Appellants statements to one staff member included, " `Im going to rape your daughter, `I killed that bitch, and `Your [sic] going to join your dead daughter. " The probation officer stated that probation was "concerned with [appellants] continued violent behaviors toward the Juvenile Hall staff members. It is this type of behavior that is limiting probations ability to place [appellant] into either a boys ranch or a placement facility."
At the dispositional hearing on March 13, 2006, appellants probation officer testified that until several weeks before the hearing, appellant had been receiving "discipline contacts" for threatening staff and their family members, and making derogatory remarks two to three times a month. Appellant had been involved in a fight with another inmate but had not physically assaulted staff. With respect to the recommendation for CYA, the probation officer stated that no other placement would be appropriate because other facilities would not accept him in light of his having been kicked out of a "level 14" facility. Her understanding was that appellant would receive therapy at the CYA, but she did not know how often.
In committing appellant to the CYA, the court explained:
"I have considered all local less restrictive programs and forms of custody and [am] fully satisfied they are inappropriate dispositions.
"At this time that the minor can better benefit from the various programs provided by the Department of Youth Authority. The Court finds that mental and physical condition and qualifications of the minor are such to render it probable that the minor will be benefited by the reformatory educational or other treatment and hopefully significant mental health treatment provided by the Department of Youth Authority. . . .
"The Court finds the minor does have special educational needs.
"Theres many reasons that the Court feels its appropriate to send this minor to the California Youth Authority. I do believe he is a danger to others and because of his actions and his terrible temper and awful awful things he says to people that must terrify them I think hes also a danger to himself because of the reactions of people to the terrible things that he says. Some of the things are just unconscionable the threats that he says to people. And the fact that hes had no assaults in Juvenile Hall I think goes greatly to the skill and the handling of the Juvenile Hall staff. [¶] . . . [¶]
". . . I believe this minor is very dangerous. I think many people believe this minor is very dangerous. And I dont think theres much more evidence than the awful things that he has said, the fights hes had, the threats hes made.
"I am very comfortable in the fact that CYA is the only possible disposition. I was somewhat encouraged from the fact the last couple of weeks that he has not threatened anybody in a couple of weeks and thats quite something over a period of a long history of serious threats which gives me encouragement that perhaps at the Youth Authority he would be able to get the kind of mental health treatment that he needs, and he needs it right away.
"And on my commitment papers here Im going to write that I want mental health intervention immediately on this minor. I do not want a long assessment period for that to happen. I want that mental health intervention immediately. He has not had a[n] easy life. I think everyone feels badly about that as does this Court. I take it into consideration. But I always have the community to worry about as well as the minor himself and the dangerousness that he puts himself in."
Appellant contends no evidence was presented at the dispositional hearing from which the court could have concluded that he would benefit from a commitment to the CYA, in that the probation officers testimony that appellant would receive substance abuse counseling, victim awareness classes, anger management classes and a high school education at the CYA was speculative, and the probation officer "knew virtually nothing" about mental health programs at the CYA. Appellant further argues that he received no services from probation during his confinement in Juvenile Hall, and that he could not be committed to the CYA simply because he presented a problem for placement.
The probation officers report for the December 12, 2005 hearing stated that at the CYA appellant would receive substance abuse counseling, victims awareness classes, anger management classes and a high school education. At the dispositional hearing, asked what psychiatric programs appellant would receive at the CYA, the probation officer stated: "According to—speaking to the intake officer my understanding is that he would be receiving therapy." She did not know how frequently therapy would be provided. The probation officers statement in her report about the counseling and classes appellant would receive at the CYA was based on the the CYAs screening of appellants case. While the probation officer did not provide detail, it is clear that her statements about the services appellant would receive at the CYA were based on what she had been told by the CYA, not on speculation.
In committing appellant to the CYA, the court specifically took into consideration his age, the circumstances of his offenses and his previous drug history. The court stated it had "considered all local less restrictive programs and forms of custody" and was "fully satisfied they are inappropriate dispositions." Indeed, the record reflects that various placements had proven unsuccessful for appellant due to his disruptive and threatening conduct, including Seneca Center, a locked facility described by the Children and Family Services Bureau as the only place that had been "able to handle" appellants behavior. (Cf. In re Luis H. (1986) 187 Cal.App.3d 546, 548-549.) The record supports the trial courts conclusion that appellant was dangerous to others and to himself and that it was probable appellant would be benefited by the "reformatory educational or other treatment and hopefully significant mental health treatment" provided by the CYA. The courts explicit consideration of safety of the community as well as of appellant himself was proper. The courts order for immediate mental health intervention was obviously intended to circumvent any "long assessment period" to which appellant might otherwise be subjected before provision of mental health services, and so to provide the maximum benefit to appellant.
Appellants argument that he could not be committed to the CYA simply because he was a placement problem relies heavily on Todd W., supra, 96 Cal.App.3d 408, 411.) Todd W. involved a 13-year-old minor whose current offense was automobile theft and whose history consisted of several runaways and one alleged joyriding. (Id. at p. 411.) The trial court rejected the alternative of placing him at a ranch program willing to accept him because it was not a locked facility, and committed him to the CYA. The court indicated a concern with protection of the community and with the minors need for discipline, remedial education and treatment of emotional problems. (Id. at p. 416.) The appellate court reversed, finding the minor was primarily a placement problem and his history revealed neither criminal sophistication nor violent or assaultive behavior. (Id. at p. 419.) Todd W. emphasized that a CYA commitment was not authorized "`merely because various local alternatives have been tried unless the underlying conduct upon which the commitment is based can be classified as being one of the more serious type cases (In re Aline D. [(1975)] 14 Cal.3d [557,] 564) for which commitment to the CYA "as the final treatment resource available" (at p. 564) is justified. " (Todd W., at p. 419, quoting In re Carrie W. (1979) 89 Cal.App.3d 642, 648.)
Todd W. was decided at a time when "juvenile commitment proceedings were designed for the purposes of rehabilitation and treatment, not punishment" and commitment to the CYA was viewed "as a last resort in only the most serious cases." (In re Lorenza M., supra, 212 Cal.App.3d 49, 53-55.) "Aline D., Carrie W. and Todd W. predate the amendment of former Welfare and Institutions Code section 502 (now § 202) regarding the purposes of the Juvenile Court Law. In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. (Stats. 1984, ch. 756, §§ 1, 2.) The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law (In re Todd W., supra, 96 Cal.App.3d at pp. 416-417), we evaluate the exercise of discretion with punishment and public safety and protection in mind. Such was not the case before 1984." (In re Lorenza M., at pp. 57-58, fn. omitted.) As in Lorenza M., in the present case it is clear that less restrictive sanctions had been tried and had proven ineffective. (Id. at p. 58.)
II.
Appellant additionally contends his maximum period of confinement must be recalculated because Penal Code section 654 precluded his being sentenced on all five counts. "Penal Code section 654 . . . prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)" (In re David H. (2003) 106 Cal.App.4th 1131, 1134.) "The question of whether a defendant held multiple criminal objectives presents a question of fact, and an appellate court reviews the trial courts finding on this issue under the substantial evidence test. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Monarrez (1998) 66 Cal.App.4th 710, 713; People v. Avalos [(1996)] 47 Cal.App.4th [1569,] 1583.)" (People v. Arndt (1999) 76 Cal.App.4th 387, 397.)
Appellant argues his offenses were committed with a single intent, "to drive around in [a] car stolen by his acquaintance Deandre." Accordingly, he urges he cannot be punished for both theft and receiving stolen property involving the same car. On this point, respondent agrees. (People v. Austell (1990) 223 Cal.App.3d 1249, 1252, fn. 3.)
Respondent takes issue, however, with appellants further contention that he could not be punished for both evading arrest and resisting arrest based on his running away from the police officer. Respondent urges that the evading count, based on appellants attempt to flee from the police while driving, and the resisting count, based on appellants running from the car and hiding in the shrubbery, involved separate acts and intents. According to respondent, the evading count posed danger to appellant, Deandre, Officer Leone, and members of the public who were in the vicinity of the car chase and, therefore, involved recklessness unrelated to appellants later conduct in fleeing from Leone on foot.
Respondent relies upon People v. Arndt, supra, 76 Cal.App.4th at pages 397-398, which found violations of Vehicle Code section 23153, subdivision (a), causing bodily injury while driving under the influence, and Health and Safety Code section 11352, subdivision (a), unlawful transportation of a controlled substance, involved different acts and objectives. The former statute is "violated when a person steers or controls a vehicle while it is in motion, and while doing so, either commits a legally forbidden act or neglects a duty imposed by law," while the latter offense "occurs when a person moves contraband from one place to another." The court found separate punishment for the two offenses corresponded to the defendants culpability because each offense violated a different legislative ban, one intended to reduce highway deaths and injuries and the other intended to inhibit trafficking in controlled substances. (Id. at p. 398.)
Respondents citations refer to the different intents required by the statutory definitions of the offenses at issue here: Penal Code section 148, subdivision (a), "is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence" (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330), while Vehicle Code section 2800.2 proscribes attempting to elude a peace officer by driving with "willful or wanton disregard for the safety of persons or property," that is, with " `consciousness of conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of the consequences " or "intentional disregard for safety." (People v. Dewey (1996) 42 Cal.App.4th 216, 221-222.)
Respondent is no doubt correct that appellants conduct in attempting to elude Leone while driving the Camry posed a danger to himself and others not present in his flight on foot after the car stopped. The gravamen of both offenses, however, was the flight from a pursuing officer. The two acts—driving away from the officer and running away from him—were part of a single, uninterrupted sequence, the latter replacing the former when the car stopped. There is no evidence appellant harbored distinct intents and objectives in the two aspects of his flight; his single intent and objective was plainly to avoid arrest. Accordingly, Penal Code section 654 precludes separate punishment for the two offenses.
The commitment order must be corrected to reflect a recalculated maximum period of confinement in accordance with the above discussion. In addition, respondent points out that the commitment order in the record contains an error in that the aggregate of the terms listed for the six offenses totals six years six months, rather than the stated maximum period of confinement of five years four months. On remand, the juvenile court shall stay the term for the count of resisting arrest (Pen. Code, § 148, subd. (a)) and the term for either the count of unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a)) or the count of receiving stolen property (Pen. Code, § 496d, subd. (a)), recalculate appellants maximum period of confinement, and modify the commitment order accordingly.
The matter is remanded for recalculation of the maximum period of confinement and modification of the commitment order in accordance with the views expressed herein. In all other respects, the judgment is affirmed.
We concur:
Haerle, J.
Richman, J.