Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, No. JJ16407, Robert S. Ambrose, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Remanded with directions.
Tonja R. Torres, 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, Senior Assistant Attorney General, David C. Cook and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
L.R. appeals from the juvenile court’s order declaring him a ward of the court and directing a short-term placement in a camp-community program after sustaining petitions pursuant to Welfare and Institutions Code section 602 alleging he had committed robbery and two counts of aggravated assault. L.R. contends the court erred by failing to determine whether one of the aggravated assault counts was a felony or a misdemeanor and by calculating his maximum period of physical confinement by including the related robbery and assault charges in violation of Penal Code section 654. The People acknowledge the juvenile court erred. We remand the matter for a new disposition hearing.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Police detained L.R., then 16 years old, for robbery and aggravated assault in early August 2008 after he had attacked Angel Monterrosa and took his wallet. On August 5, 2008 the People filed a section 602 petition alleging L.R. had committed second degree robbery and assault by means of force likely to produce great bodily injury.
In September 2008 police detained L.R. for aggravated assault after he threw several large rocks at Fabiola Mejia’s face and head. A second section 602 petition was filed on September 23, 2008 alleging L.R. had committed assault with a deadly weapon.
At a jurisdiction hearing on October 14, 2008 the juvenile court sustained both counts of the first petition. The following day, pursuant to a negotiated disposition, the People amended the second petition reducing the aggravated assault allegation to a misdemeanor. L.R. admitted the misdemeanor offense, and the court sustained the second petition as amended.
The two petitions were consolidated for disposition. The juvenile court adjudicated L.R. a ward of the court, subject to certain terms and conditions of probation, and ordered him into a short-term (three months) camp community placement program. L.R.’s maximum period of physical confinement was calculated as six years four months: five years for the robbery as alleged and sustained in the August 5, 2008 petition, plus one year (one third of the middle term) for the aggravated assault as alleged and sustained in that petition, plus four months (one third the one-year term) for the misdemeanor assault alleged in the amended September 23, 2008 petition.
DISCUSSION
1. The Juvenile Court Erred in Failing To Declare the First Aggravated Assault Count a Felony or Misdemeanor
Assault by means of force likely to produce great bodily injury may be either a felony or misdeameanor. (Pen. Code, § 245, subd. (a)(1).) When a juvenile is found to have committed an offense that in the case of an adult could be punished as either a felony or a misdemeanor, section 702 requires the juvenile court to declare the offense to be a misdemeanor or felony. The requirement “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion” under the statute. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.) An express declaration is necessary. The court’s failure to comply with this mandate requires a remand unless the record shows the juvenile court was aware of, and actually exercised, its discretion to determine the offense to be a felony or a misdemeanor. (Id. at p. 1209.)
In this case the juvenile court failed to declare at the disposition hearing whether the aggravated assault count in the first petition was a felony or misdemeanor. In fact, the minute order from the hearing accurately reflects the court’s computation of the maximum period of physical confinement, which treated the assault count as a felony (adding a consecutive one year period—one third the middle term of three years for a felony violation of Penal Code section 245, subdivision (a)(1)), but also indicates that both assault charges were misdemeanors. As the People acknowledge, a remand is necessary for the court to make an explicit finding whether the initial aggravated assault is a felony or misdemeanor under section 702. (In re Manzy W., supra, 14 Cal.4th at pp. 1207-1209.)
2. The Juvenile Court Erred in Including the Assault Count from the First Petition in Its Calculation of the Maximum Term of Physical Confinement
Penal Code section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19; see Latimer, at p. 1208.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she “may be punished for each statutory violation committed in pursuit of each objective” even though the violations were otherwise part of an indivisible course of conduct. (Harrison, at p. 335.) “‘The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances....”’” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
Penal Code section 654, subdivision (a), provides: “An 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, at p. 1312; Herrera, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “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.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “‘separate intents’” reviewed for sufficient evidence in light most favorable to the judgment].)
The juvenile court made no express finding regarding L.R.’s intent with respect to the robbery and aggravated assault of Monterrosa. Nonetheless, based on the court’s calculation of the maximum term of physical confinement, which included separate terms for those two offenses, it impliedly found each offense was a separate act with an independent criminal intent. Although we will sustain that implied finding if supported by substantial evidence (see People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Blake (1998) 68 Cal.App.4th 509, 512), as the People concede, the evidence in this case is simply insufficient to allow us to affirm the juvenile court.
The victim, Angel Monterrosa, and his friend, William Lemus, both testified at the jurisdiction hearing they were distributing church flyers on the street when L.R. and two confederates approached Monterrosa from behind and began punching him in the face and head. The three attackers then kicked Monterrosa and attempted to throw him to the ground before searching his pants pockets, removing his wallet and fleeing. There was no other testimony describing the attack and robbery.
L.R. did not testify. Los Angeles Police Officer Kenneth Busiere, called as a defense witness, described his interview with Lemus, which did not include any discussion of the crime itself.
The limited evidence presented at the jurisdiction hearing thus described an assault that facilitated, and was the means to commit, the robbery. There is no suggestion Monterrosa knew or had prior contacts with L.R. and his confederates, which might support a finding the assault was motivated by a criminal objective other than robbery. (Cf. People v. Cleveland, supra, 87 Cal.App.4th at pp. 266-267 [finding of separate intent for aggravated assault and robbery bolstered by evidence defendant and victim had a history of negative interactions].) Nor was the assault itself, though aggravated, so vicious as to demonstrate an additional intent to injure the victim or to show gratuitous violence. (Cf. Cleveland at p. 267 [defendant beat victim senseless with a board during robbery].)
DISPOSITION
The matter is remanded to the juvenile court to conduct a new disposition hearing at which (1) pursuant to section 702, the court exercises its discretion to determine whether the sustained assault count in the petition filed August 5, 2008 is a felony or misdemeanor, and (2) pursuant to Penal Code section 654, the court calculates the maximum term of physical confinement recognizing that no separate period may be included for the sustained assault count in the petition filed August 5, 2008.
We concur: ZELON, J., JACKSON, J.