Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV32555
OPINION
RUSHING, P.J.
Statement of the Case
On February 9, 2007, the Santa Clara County District Attorney’s Office filed a petition, later amended, under Welfare and Institutions Code section 602 to declare Keith C., a minor, a ward of the court. The petition alleged two counts of second degree robbery. As to one of those counts, the petition alleged that the minor personally used a deadly or dangerous weapon and was ineligible for probation. The petition also alleged one count of misdemeanor battery and one count of aggravated assault and further alleged that the minor personally used a deadly weapon and inflicted great bodily injury in committing the assault. (Pen. Code, §§ 211, 212.5, subd. (c), 242, 243, subd. (a), 245, subd. (a)(1), 1203, subd. (e)(2), 12022, subd. (b)(1), 12022.7.)
All unspecified statutory references are to the Penal Code.
On April 3, 2007, the minor admitted one robbery and the misdemeanor battery. After a contested jurisdictional hearing, the court found that the minor committed grand theft—i.e., a lesser offense included in the other robbery count—and the aggravated assault and further found that the minor personally used a deadly weapon and inflicted great bodily injury during the assault. (§§ 245, subd. (a)(1); 487, subd (c), 12022, subd. (b)(1), 12022.7.) The court declared the minor a ward of the court and calculated his maximum period of confinement (MTC) at 10 years 2 months. (Welf. & Inst. Code, § 726, subd. (c).)
On appeal from the jurisdictional order and disposition, the minor claims that the weapons-use enhancement must be stricken and that there is insufficient evidence to support a finding that he inflicted great bodily injury. He also claims the court erred in calculating his MTC.
We affirm the jurisdictional order but vacate the disposition and remand the matter for entry of a new one.
We summarize the facts concerning only the contested allegations of robbery and assault with a deadly weapon and related enhancements.
On February 7, 2007, around 11:40 a.m., Mohammad M. was walking home from school, listening to his iPod, when the minor approached him and asked for the time. Mohammad pulled the iPod from his pocket and held it out so the minor could see the time displayed on the screen. The minor immediately grabbed it and ran off. Mohammad chased after him. When Mohammad was 10 to 15 feet away, the minor picked up a rock and swung it at Mohammad’s head. Mohammad ducked, but while he was still crouched, the minor hit him in the head three times. He then continued his flight, stopping momentarily to throw the rock at Mohammad.
Mohammad sought help from a neighbor and then called the police. Paramedics took him to the hospital. Photographs of Mohammad reveal a substantial amount of bleeding from a laceration on his head, which doctors used three staples to close. Mohammad had the staples removed a week later.
A few hours after the assault, police brought Mohammad to an in-field show-up. Mohammad identified the minor but said he was now wearing different clothing and his hair had been slicked down. At the hearing, the minor’s hair appeared the same as it did during the assault.
After the minor’s arrest, his brother Joshua told police that the minor and his mother had argued that morning. As far as he knew, the minor had been at home all day except for some period of time between 11:30 a.m. and noon or shortly thereafter.
However, at the hearing, Joshua testified that he saw the minor in the carport around 10:30 a.m. Joshua then took their sister to school, and when he returned around 11:00 a.m., the minor was still in the carport. Ten minutes later, Joshua called the minor inside, and the two remained inside until around 12:05 p.m., when Joshua left to pick up their sister. When he returned, he, the minor, and their sister stayed at home until 2:00 or 2:30 p.m.
The minor’s mother testified that sometime after 10:45 a.m., she argued with the minor, and he went to the carport, where he remained for a while. She said she saw him there. Before noon, he came inside until 10 minutes after noon, when Joshua went to pick up his sister. The minor took a shower and remained at home until around 2:00 p.m.
The minor testified that he and his mother had argued sometime after 10:00 a.m. that morning, and he later went into the carport. He did not come back inside until Joshua returned from taking their sister to school. Eventually, he went back inside, ate breakfast, and made some phone calls. Then, Joshua went to pick up their sister. The minor stayed inside, listened to the radio, took a shower, and left at 2:30 p.m. He was then arrested.
Weapons-Use Enhancement
The minor contends that the one-year enhancement for personally using a deadly or dangerous weapon must be stricken because use of a deadly or dangerous weapon is an element of aggravated assault. We agree.
Section 12022, subdivision (b)(1) provides, in relevant part, “Any person who personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the use of a deadly or dangerous weapon is an element of that offense.” (Italics added.)
Aggravated assault in violation of section 245, subdivision (a)(1) requires proof that the perpetrator assaulted another person “with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . .” (§245, subd. (a)(1).)
Although one can violate section 245, subdivision (a)(1) without using a deadly weapon or dangerous instrument—e.g., by means of force likely to produce great bodily injury—we determine whether the use of a deadly or dangerous weapon is an element of the offense for purposes of the exception in section 12022, subdivision (b)(1) by looking at the actual conduct of the accused and the means by which he or she committed the assault. Where the violation is factually based on the use of a deadly or dangerous weapon, then its use becomes an element of the offense, and an additional enhancement under section 12022, subdivision (b)(1) is barred. (People v. McGee (1993) 15 Cal.App.4th 107, 110-114; see People v. Sommersville (1995) 34 Cal.App.4th 1062, 1069-1070.)
Here, the petition alleged that defendant committed “an assault upon the person with . . . a deadly weapon and instrument other than a firearm, a RIVER ROCK, and by means likely to produce great bodily injury.” The petition also alleged that in committing the assault, the minor “personally used a deadly and dangerous weapon, a RIVER ROCK . . . .” More, importantly, the evidence established that the minor assaulted Mohammad with a rock.
The Attorney General concedes that use of deadly or dangerous weapon was an element of the assault, and therefore, the enhancement term included in the minor’s MTC under section 12022, subdivision (b)(1) must be stricken. However, citing In re Mosley (1970) 1 Cal.3d 913 (Mosley), the Attorney General argues that the enhancement finding itself should not be stricken, “since it is a fact beyond that necessary to establish the offense itself, and that factual determination may be important in any further delinquency proceedings involving appellant.”
In Mosley, the court observed that when a defendant is convicted of aggravated assault in violation of section 245, subdivision (a)(1), the court may specify the branch of the offense was violated—i.e., a deadly weapon, dangerous instrument, or force likely to produce great bodily injury. (Mosley, supra, 1 Cal.3d at p. 919, fn. 5.) However, Mosely does not suggest that it is proper or appropriate to leave an erroneous enhancement finding intact and eliminate the punishment attached to it. Simply put, since the enhancement did not apply and could not be applied, we believe the enhancement finding should be stricken.
Sufficiency of the Evidence
The minor contends that there is insufficient evidence to support the court’s finding that he inflicted great bodily injury on Mohammad. He asserts that Mohammad suffered at most a moderate laceration that might have healed without medical treatment. Indeed, he opines that effective medical treatment successfully guarded against great bodily injury. According to the minor, Mohammad’s injury was not “any different than any teenager might suffer if he fell off his bicycle while riding home from school.” We are not persuaded.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Section 12022.7, subdivision (f) defines great bodily injury as “a significant or substantial physical injury.” In People v. Escobar (1992) 3 Cal.4th 740, 746 (Escobar), the court held that under section 12022.7 a “ ‘significant or substantial physical injury’ ” does not define a particular standard for severity or duration. It need only be a substantial injury beyond that inherent in the offense itself. Whether a defendant causes great bodily injury is a question of fact. “ ‘A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly, it is the trier of fact that must in most situations make the determination.’ ” (Id. at p. 752.)
In Escobar, the court found that a rape victim’s injuries, which included bruises and abrasions, injury to her neck, and soreness over her vaginal area, which significantly impaired her ability to walk, were significant and substantial injuries because they exceeded the injury necessary to facilitate the rape. (Escobar, supra, 3 Cal.4th at pp. 750-751; see, e.g., People v. Brown (1985) 174 Cal.App.3d 762 [one-inch long laceration of victim’s vagina]; People v. Corona (1989) 213 Cal.App.3d 589 [swollen jaw, bruises to head and neck, and sore ribs]; People v. Sanchez (1982) 131 Cal.App.3d 718 [multiple abrasions and lacerations, swelling, and bruising]; People v. Bustos (1994) 23 Cal.App.4th 1747 [multiple lacerations, contusions, and abrasions]; People v. Muniz (1989) 213 Cal.App.3d 1508 [bruises lasting four months]; People v. Jaramillo (1979) 98 Cal.App.3d 830 [contusions, swelling, and severe discoloration visible day after infliction]; People v. Mixon (1990) 225 Cal.App.3d 1471 [strangulation causing momentary loss of consciousness, neck and facial bruises, and single blow that caused pain and bleeding]; compare with People v. Martinez (1985) 171 Cal.App.3d 727 [insufficient evidence where “minor laceration” or “pinprick” did not require hospitalization and prosecutor asked that the enhancement be stricken].)
Here, Mohammad suffered a head laceration that certainly exceeded the injury necessary to commit an assault. (People v. Hopkins (1978) 78 Cal.App.3d 316, 320 [injury not inherent in assault].) Indeed, an aggravated assault does not require the infliction of any injury. (People v. Covino (1980) 100 Cal.App.3d 660, 667.) Moreover, Mohammad’s head laceration caused substantial bleeding and was sufficiently serious to require staples to close. The minor’s view that Mohammad could have suffered a similar head injury in a bicycle accident does not suggest that the injury was not substantial. The minor’s speculation that the injury might have healed without the staples is irrelevant.
In light of the cases noted above, we do not find the evidence insufficient as a matter of law to support a bodily-injury finding. Rather, the evidence reasonably supports a finding of great bodily injury.
Maximum Term of Confinement
The minor contends that the court erred in calculating his MTC at 10 years 2 months. In addition to the one year included for the weapon-use enhancement, which the Attorney General concedes must be stricken, defendant claims that section 654 bars inclusion of a separate, eight-month, subordinate term for the grand theft of Mohammad’s iPod. Thus, he argues that his MTC should be only 8 years 6 months. We agree.
The subordinate eight-month term represents one-third of the middle term of two years for grand theft. (See Welf. & Inst. Code, § 726, subd. (c) [aggregate MTC determined under § 1170.1, subd. (a) the subordinate term is one-third of the mid-term for offense]; In re Deborah C. (1981) 30 Cal.3d 125, 140; e.g., In re Eric J. (1979) 25 Cal.3d 522, 536-537.)
Section 654 is intended “to ensure that a defendant’s punishment is commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statue bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Conversely, where a defendant commits multiple criminal offenses during a single course of conduct, he or she may be separately punished for each offense that he or she committed pursuant to a separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
Whether a single course of conduct is divisible into different offenses based on separate objectives and intents is a question of fact for the trial court, and its express or implicit findings will be upheld on appeal when they are supported by substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) In this regard, we review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Ibid.)
These principles apply in calculating a minor’s MTC. (In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3; e.g., In re Asean D. (1993) 14 Cal.App.4th 467, 474-475.)
We first review some pertinent cases, including those cited by the parties.
In In re Jesse F. (1982) 137 Cal.App.3d 164, the victim was robbed and then forced to lie on the ground. When the victim got up and tried to run, he was assaulted. The court upheld separate punishment for robbery and assault, opining that “[w]hen there is an assault after the fruits of the robbery have been obtained, and the assault is committed with an intent other than to effectuate the robbery, it is separately punishable.” (Id. at p. 171.) In particular, the court explained, “The fruits of the robbery were theirs and their escape was apparently assured. Their attempt to murder [the victim] as he fled constituted a separate act not necessary to effectuate the robbery. . . . [¶] [Even though] the crime of robbery is not actually complete until the robber ‘has won his way to a place of temporary safety[ ]’ . . . it cannot mean every act a robber commits before making his getaway is incidental to the robbery.” (Ibid., italics added; see also, e.g., In re Chapman (1954) 43 Cal.2d 385, 390 [separate punishment where victim surrendered wallet and was later assaulted trying to flee].)
In People v. Johnson (1969) 270 Cal.App.2d 204, the defendant and his partner entered a gas station, robbed the attendants at gun point, and then left. The attendants did not resist or attempt to pursue the robbers. Nevertheless, as the robbers sped away, one of them fired a shot into the gas station at one of the attendants. The court upheld multiple punishment for robbery and assault. (Id. at pp. 206; see also, e.g., People v. McGahuey (1981) 121 Cal.App.3d 524, 529 [multiple punishment for burglary and assault, where after the burglar left with property, he threw a hatchet at victim inside who was calling police].)
In People v. Nguyen (1988) 204 Cal.App.3d 181, the defendant and his accomplice entered a store. While the defendant took money from the till, his accomplice escorted a clerk into a rear bathroom, robbed him, and forced him to lie face down on the floor. The defendant then shouted a Vietnamese battle phrase used when “ ‘someone was to kill or be killed.’ ” (Id. at p. 185.) The accomplice then kicked the clerk in the ribs and shot him in the back. (Ibid.) The court upheld multiple punishment for attempted murder and robbery, finding that the shooting “constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal Code section 654.” (Id. at p. 190, italics added.) “It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason.” (Id. at p. 191, italics added; see also, e.g., People v. Coleman (1993) 48 Cal.3d 112, 162 [where burglary was almost complete and victims had been neutralized, the gratuitous murder of one and assault of another to prevent reporting of the murder were separately punishable].)
On the other hand, in People v. Guzman (1996) 45 Cal.App.4th 1023, the victim saw some men take his motorcycle out of the garage, put it into their truck, and drive off. He chased them in his car and cornered them, whereupon they got out and assaulted him and then left with the motorcycle. (Id. at pp. 1025-1026.) The court held that section 654 barred multiple punishment for burglary and robbery. The court explained that the burglars had not yet reached a place of temporary safety when they beat the victim, who had thwarted their escape. Consequently, since the burglary was still in progress when the robbery occurred, both offenses were committed pursuant to one objective—to steal the motorcycle—and there was but a single continuous course of conduct. (Id. at p. 1028; see also, e.g., People v. Le (2006) 136 Cal.App.4th 925, 929-931 [multiple punishment for burglary and robbery barred where violence was used against store employees trying to thwart escape]; People v. Miller (1977) 18 Cal.3d 873, 885 [burglary, robbery, and assault were incidental to primary objective of theft of contents of jewelry store]; People v. Niles (1964) 227 Cal.App.2d 749, 755 [assault committed while attempting to escape from a burglary could not be separately punished]; People v. Perry (2007) 154 Cal.App.4th 1521, 1526-1527 [same, where defendant removed radio from car and then used pointed object to threaten owner who tried to thwart theft and escape]; but see, e.g., People v. Vidaurri (1980) 103 Cal.App.3d 450, 465 [multiple punishment permissible for burglary and assaults, where the defendant entered a store, took merchandise, left, and then assaulted a security guard and motorist while trying to escape]; People v. Hooker (1967) 254 Cal.App.2d 878, 880-881, disapproved on other grounds in People v. Corey (1978) 21 Cal.3d 738, 746 [same].)
In People v. Vidaurri, supra, 103 Cal.App.3d 450, the court declined to adopt a general rule that an escape with stolen property is or is not part of the continuous transaction including the underlying offense and instead relied on the general rule that divisibility of a course of criminal conduct depends on the perpetrator’s intent and objective. (Id. at p. 464.)
We glean a general approach in cases that involve a theft and assault during a continuous course of conduct. Where (1) a perpetrator’s primary objective is to steal another’s property; (2) the perpetrator has successfully taken possession of the property; (3) the perpetrator has a relatively assured and unhampered means of escape with the property—e.g., the victim tries to run away from the perpetrator, the victim offers no resistance and does not attempt to pursue, or the victim is otherwise neutralized—and (4) the perpetrator nevertheless assaults the victim, courts find that the assaultive violence was gratuitous and unnecessary and committed for a malicious, vengeful, or sadistic reason unrelated to stealing property and successfully escaping with it. Accordingly, section 654 does not bar separate punishment for the assault. However, where the victim of a theft resists the taking or tries to thwart the perpetrator’s escape, and in response, the perpetrator assaults the victim, courts do not consider the assault to be separate and independent of the theft. Rather, the assault is a means of completing the theft.
With this in mind, we turn to the facts of this case. It is undisputed that the theft and assault were part of a single, continuous transaction. In imposing separate terms for the theft and assault, the court implicitly found that the assault was not incidental to the theft. However, the record does not support such a finding.
The minor grabbed Mohammad’s iPod and tried to escape, which reflects his intent to steal Mohammad’s property, that is, to permanently deprive him of it. (People v. Davis (1998) 19 Cal.4th 301, 305 [intent to steal “is the intent, without a good faith claim of right, to permanently deprive the owner of possession”].) However, Mohammad immediately chased after the minor, trying thwart the minor’s escape. When Mohammad was only 10 or 15 feet behind him, the minor turned and assaulted him with a rock. Only then did he successfully escape with the iPod.
These circumstances do not suggest that the assault on Mohammad was a gratuitous afterthought committed for some malicious or vengeful purpose separate and independent of the theft. Nor do the circumstances suggest that the minor had some reason to assault Mohammad other than to escape with the iPod. Rather, the assault was the means that the minor used to do so and thereby achieve his primary objective: to permanently deprive Mohammad of his iPod. That the elements of grand theft had been satisfied before the assault is neither controlling nor material in determining whether section 654 bars separate punishment for the assault committed during a continuous course of conduct. (People v. Perry, supra, 154 Cal.App.4th at p. 1527.) Accordingly, we agree with the minor that the assault was incidental to the grand theft, and section 654 bars including the subordinate eight-month term in the MTC.
As noted, the petition alleged that the minor personally used the rock during the commission of a robbery, but the court found the lesser offense of grand theft, presumably because the minor did not use force or fear to take the iPod. We note, however, that robbery includes asportation of the victim’s property, and therefore, the use of force during asportation elevates a mere theft to a robbery. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) Thus, had the juvenile court found that the minor committed robbery based on his assault with the rock, section 654 would have barred separate punishment for robbery and assault.
Returning to the minor’s claim concerning calculation of his MTC, we note that when the one-year weapon-use enhancement and the eight-month term for grand theft are subtracted from the court’s determination of 10 years 2 months, the resulting MTC is 8 years 6 months.
The Attorney General concedes that if section 654 bars imposition of a term for grant theft, then the MTC should be 8 years 6 months.
Disposition
We affirm the jurisdictional order. The disposition is vacated, and the matter is remanded. The juvenile court is directed to enter a new disposition, striking the enhancement for personal use of a weapon and recalculating the minor’s MTC at 8 years 6 months.
WE CONCUR: PREMO, J., ELIA, J.