Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles County Superior Court, Juvenile Division, Irma J. Brown, Judge. Los Angeles County Super. Ct. No. YJ031891
Courtney Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
M.G., a minor, appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of his having committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2). The juvenile court declared both counts to be felonies and ordered appellant to home probation. Appellant contends that the juvenile court abused its discretion in declaring both counts to be felonies rather than misdemeanors.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse in part and affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2008, at approximately 3:00 p.m., J.A. walked with 11-year-old appellant and other boys to a liquor store. Inside the store, appellant pointed an Air soft pistol at J.A.’s back and told him to buy appellant some chips. J.A. refused, saying, “‘No. Use your own money.’”
The boys left the store. While walking away, appellant shot J.A. in the head. J.A. crossed the street to get away from appellant. Appellant followed him, got close and shot him several more times in the legs and feet.
J.A. broke into tears and ran to a store. A woman inside asked what happened and if he was okay. He told her what happened and that he was fine. She asked if he wanted her to call the police, to which he responded that he did not. He washed his face and left the store, trying to avoid appellant, who waited for him outside. Appellant approached J.A. and told him not to tell anyone what had happened. J.A. thought appellant also apologized.
As a result of the shots from the air gun, J.A. experienced headaches for a couple of days and bruising of his leg and foot that lasted one to two weeks.
Officer Ariel Popoy interviewed appellant two days after the shooting. Appellant admitted that he threatened to shoot J.A. if J.A. did not buy him candy. He also admitted that he shot J.A. once and, a few minutes later, shot him three more times. Appellant said that he knew that his conduct was wrong, and that he apologized to J.A. Appellant also acknowledged that had J.A. been hit in the eye, he could have been seriously injured.
As a result of the foregoing, a Welfare and Institutions Code section 602 petition was filed against appellant alleging one count of assault with a deadly weapon and one count of assault by means likely to cause great bodily injury. The juvenile court found the allegations to be true and declared both charges to be felonies. It ordered appellant to home probation.
DISCUSSION
At closing, defense counsel argued: “It’s my position also that this does not rise to the level of felonious conduct. It’s misdemeanor conduct. They’re young children. They’re playing. The playing got out of hand, and it does not rise to the level of felonious conduct.” The prosecutor argued that appellant shot J.A. once, and did not stop, but shot him three more times. “This was a deliberate attack on someone on multiple occasions.”
The juvenile court noted that it had read and considered the preplea report and several school reports and observed that appellant had “excellent grades as well as satisfactory citizenship and work habits, and [his] attendance [was] satisfactory as well.” The juvenile court nonetheless ruled: “I think it was children playing, and it got out of hand. But I don’t think that there was any lack of willfulness about it. I don’t think that it was accidental in nature. [¶] [M.G.] was mad because [J.A.] would not buy him chips, and he shot in his direction and shot him once in the head, as alleged in count 1. [¶]... [¶] The court finds count 1 and count 2 to be true beyond a reasonable doubt.”
In the course of arguing disposition, defense counsel pointed out that in addition to his good grades and citizenship at school, appellant had no criminal history, had supportive parents and performed community service. He argued that appellant should receive home probation.
Appellant’s sole contention on appeal is that the juvenile court abused its discretion in declaring the two counts to be felonies and not misdemeanors. He argues that appellant was only engaging in a harmless, childish prank, was just 11 years old, did not take the air pistol and go looking for J.A., and did nothing to J.A. at the time J.A. refused to buy him food. This contention has merit.
We review a lower court determination that a “wobbler” is a felony instead of a misdemeanor for an abuse of discretion. (See People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 981 (Alvarez).) “[S]ection 17 ‘vest[s] in the trial court discretion to sentence defendants convicted of [wobblers] to state prison or to jail, without mention of standards for exercise of that discretion.’ Nonetheless, the choice between felony and misdemeanor under section 17, subdivision (b)(1), ‘is dependent on a determination by the official who, at the particular time, possesses knowledge of the special facts of the individual case and may, therefore, intelligently exercise the legislatively granted discretion.’” (People v. Dent (1995) 38 Cal.App.4th 1726, 1730.) While this discretion is exceedingly broad, “‘t]he courts have never ascribed to judicial discretion a potential without restraint.’... [A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’” (Alvarez, supra, at p. 977.) The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational and arbitrary. (Ibid.) In the absence of such showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Ibid.)
Among the factors to be considered in exercising this discretion are “‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at trial.”’ (Alvarez, supra, 14 Cal.4th at p. 978.) The trial court must consider the individualized considerations of the offense, the offender and the public interest. (Ibid.) The juvenile court should also, when appropriate, consider the general objectives of sentencing. (Ibid.) Where a juvenile has engaged in delinquent conduct, those objectives are to rehabilitate the juvenile, provide the juvenile with care, treatment and guidance consistent with their best interests, to hold them accountable for their behavior, to impose punishment consistent with the rehabilitative objectives, and to provide for the public safety and protection. (Welf. & Inst. Code, § 202; see also In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
We conclude that the trial court abused its discretion in finding appellant’s two wobbler offenses to be felonies, as its decision was not “‘grounded in reasoned judgment.’” (Alvarez, supra, 14 Cal.4th at p. 977.) The juvenile court essentially articulated only one factor to support its decision; that appellant’s acts were willful and not accidental. But that finding provides little guidance as to whether a wobbler should be characterized as a misdemeanor or felony. It is merely a reiteration of the fact that the offense was committed. Assault with a deadly weapon and assault by means of force likely to produce great bodily injury are general intent crimes. (People v. Valdez (2002) 27 Cal.4th 778, 787; People v. Sargent (1999) 19 Cal.4th 1206, 1222.) The intent required for a general intent crime “is the purpose or willingness to do the act or omission” in question. (People v. Johnson (1998) 67 Cal.App.4th 67, 72.) Consequently, finding that appellant committed the offenses willfully and not accidentally adds nothing to the juvenile court’s finding that the offenses were committed.
The record otherwise lacks justification for considering appellant’s offenses as felonies. In discussing appellant’s conduct, even the trial court characterized it as merely young children’s play “g[etting] out of hand.” J.A. did not suffer any serious injury. Further, in its disposition, the juvenile court placed appellant on home probation, a comparatively mild sanction on the continuum of progressively restrictive sanctions available. (In re M.S., supra, 174 Cal.App.4th at p. 1250.) This bears on its assessment of the seriousness of appellant’s conduct.
While we do not underestimate the seriousness of that conduct, it must be evaluated in the context in which it occurred. Appellant was only 11 years old at the time he committed the offenses. Though that is certainly old enough for him to have understood the seriousness and wrongfulness of his actions, it must still be evaluated differently than if committed by a teenager. Also, it appears that appellant quickly realized that his conduct was wrong, as he apologized to J.A. shortly after having shot the BB gun at him. Appellant admitted his wrongdoing to Officer Popoy and acknowledged that it was wrong to shoot at someone.
All of the evidence regarding appellant’s character, depicted an otherwise well-behaved child. He had no criminal record, had supportive parents and performed community service. He was a good student. The juvenile court characterized his grades as “excellent” and his citizenship and attendance as satisfactory. The probation report indicates that appellant “[was] a very good boy at home” and “[was] very respectful.” He got along well with his family, helped with chores around the house and usually came home right after school. Appellant was cooperative during the probation interview.
In light of these factors, we do not find that the juvenile law’s objective of rehabilitating minors would be fostered by branding appellant a felon and thereby elevating his offense to that of some of the most heinous offenses. We find no justification in the facts before us for doing so. If such a characterization were appropriate here, we doubt that there would be many 11-year-old boys who would not be felons for having engaged in senseless, mean or dangerous conduct.
DISPOSITION
The finding that appellant’s offenses are felonies is reversed and the order appealed from is modified to characterize the adjudicated offenses as misdemeanors, and is otherwise affirmed.
We concur: BOREN, P. J. DOI TODD, J.