Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles County Super. Ct. No. FJ38978, Cynthia Loo, Referee.
Mary Bernstein, 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, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Maria P. appeals from the juvenile court’s order sustaining the Welfare and Institutions Code section 602 petition alleging she had committed assault with a deadly weapon (count 1) and had made a criminal threat (count 2). (Pen. Code, §§ 245, subd. (a)(1), 422.) On appeal, Maria P. contends the juvenile court erred by imposing separate punishment for the two offenses in violation of Penal Code section 654. Although we agree the two offenses arose from an indivisible course of conduct, we find no need to modify the disposition order (In re Ali (2006) 139 Cal.App.4th 569, 574) and affirm.
Count 3, alleging misdemeanor vandalism, was dismissed during the adjudication hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at the adjudication hearing established that on the evening of July 19, 2006, then 15-year-old Maria P. and her neighbor, Cecilia M. had a physical altercation in the hallway of their apartment complex. Both girls repeatedly exchanged blows, striking each other in the face. Maria P.’s mother became involved; she punched Cecilia M. in the nose, and Cecilia M. responded by hitting back.
The fighting stopped when Maria P. went inside her apartment. She returned to the hallway, holding a kitchen knife with an approximately six-inch blade and approached Cecilia M. When Maria P. came within three feet, she pointed the knife at Cecilia M., made a stabbing motion and said she was going to kill her. Other people in the hallway intervened and pulled the two girls away from each other.
Police recovered a kitchen knife in front of the apartment complex. When Maria P. was asked about the knife after waiving her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), she kept saying to police that she was very angry, that she was upset because she had been hit.
At the conclusion of the adjudication hearing, the juvenile court found the People’s witnesses were credible and sustained both counts. At the disposition hearing, the juvenile court declared Maria P. to be a ward of the court, ordered her home on probation, subject to various terms and conditions, and calculated the maximum term of confinement as 4 years 8 months. The court made no express findings as to the application of Penal Code section 654.
The court made no oral pronouncement as to whether the two offenses were felonies or misdemeanors, although the minute order from the hearing reflects that both counts were felonies. As Maria P. acknowledges, the juvenile court’s denial of her motion to reduce the felonies to misdemeanors under Penal Code section 17, subdivision (b), shows the court was aware of its discretion to determine whether the offenses were felonies or misdemeanors. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.)
DISCUSSION
Maria P. contends the juvenile court’s failure to stay the term of confinement for either aggravated assault or making a criminal threat contravenes Penal Code section 654. Specifically, she argues both offenses were part of an indivisible course of conduct – Maria P. advancing on Cecilia M. with a knife and threatening to kill her. Penal Code section 654 prohibits multiple punishment for a “single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “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.) The People argue, on the other hand, that the prohibition in Penal Code section 654 does not apply where the defendant held multiple criminal objectives independent of each other. Even if the acts were part of an otherwise indivisible course of conduct, the court may impose punishment for offenses committed in pursuit of each objective. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) According to the People, the evidence established that in approaching Cecilia M. with the knife, Maria P. intended to harm her, but in making the subsequent criminal threat, Maria P. intended to instill fear in Cecilia M., apart from intending to harm her.
A defendant’s criminal intent is determined from all of the circumstances and is primarily a factual matter for the trial court. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Here, the juvenile court made no explicit findings during disposition. However, the aggregated term of confinement suggests the court’s implied finding that each offense was a separate act of violence with an independent criminal objective or intent. On appeal, we will sustain the court’s implied factual determination if supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; see People v. Blake (1998) 68 Cal.App.4th 509, 512.)
The only evidence from which one can glean Maria P.’s intent for these crimes comes from the testimony of Cecilia M. and Isabel Cortez, a neighbor, and Officer Jose Diaz of the Los Angeles Police Department. Both Cecilia M. and Cortez testified that when Maria P. emerged from apartment she advanced toward Cecilia M., pointing a knife at her and threatening to kill her, although Cecilia M. also testified that Maria P. was making a “stabbing motion” with the knife, before the two girls were separated. Officer Diaz testified Maria P. repeatedly told him that she was still furious over the fist fight.
Maria P. and other defense witnesses, whom the trial court disbelieved, testified that when Maria P. emerged from her apartment carrying the knife, she was grabbed by her mother and taken back into the apartment; the knife fell from her hands.
The evidence indisputably shows that Maria P. was enraged after the fight and that her sole purpose in attacking Cecilia M. was to retaliate by killing her. The objective of her criminal threat was to make this intention clear to Cecilia M.; it was not motivated by an objective independent of her reason for attacking Cecilia M. with a knife. In short, no sufficient evidentiary basis exists to support the conclusion that Maria P. had multiple criminal intents for counts 1 and 2. As a result, pursuant to Penal Code section 654, the juvenile court erred by imposing a separate term of confinement on each count.
However, because Maria P. was ordered home on probation, the juvenile court was not required to set any maximum term of confinement. (In re Ali A., supra, 139 Cal.App.4th at p. 574.) Welfare and Institutions Code section 726, subdivision (c) provides in pertinent part: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (Italics added.) Because Maria P. was not removed from the physical custody of her parents, setting a maximum theoretical term of confinement was unnecessary and thus had no legal effect.
For this reason, the maximum term of confinement, however calculated, did not prejudice Maria P. because it did not and could not affect her in any event. (In re Ali A., supra, 139 Cal.App.4th at p. 573 [“By its express terms . . . section 726(c) applies only ‘[i]f the minor is removed from the physical custody of his or her parent or guardian. . .’”]. Because the theoretical maximum term of confinement the juvenile court imposed has no legal effect, there is no need to remand the matter for reconsideration or recalculation and the term may be disregarded.
DISPOSITION
The juvenile court’s order of wardship is affirmed.
We concur: PERLUSS, P. J., WOODS, J.