Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Superior Ct. No. FJ39657 Patricia Nieto, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Marta I. Stanton, 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, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
The juvenile court sustained a Welfare and Institutions Code section 602 petition against minor N.C. The petition alleged N.C. committed second degree robbery and assault with a firearm. The petition also alleged N.C. personally used a firearm in the commission of these offenses. On appeal, N.C. raises two arguments. First, because the court struck the firearm-use allegations, appellant contends the evidence was insufficient to support a finding that he committed an assault with a firearm. Second, appellant argues the court violated Penal Code section 654 by adding a term for the assault charge in calculating the maximum term of confinement.
We conclude substantial evidence supported the trial court’s finding that N.C. committed an assault with a firearm. The victim’s testimony about the gun’s appearance and the way N.C. used it supported a reasonable inference that the gun was not a toy but was real and loaded. The juvenile court’s dismissal of the firearm-use enhancement allegations was not an implied finding that N.C. did not commit assault with a firearm. The court erred, however, by adding a term for the assault charge to appellant’s maximum confinement term. Penal Code section 654 barred additional punishment for the assault, because it was based on the same criminal objective and conduct as the robbery.
FACTUAL AND PROCEDURAL BACKGROUND
As grocery store employee Tiffany Brice took her break just outside the store entrance, N.C. rode away from the store on his bicycle. He turned around, approached Brice, and pressed a gun against her back. He demanded that she give him her gold chain and looked down at his gun. Brice then looked at the gun too; as she did, N.C. snatched her necklace and bracelet. N.C. rode away on his bicycle, still holding the gun in his hand. Brice reported the robbery to her manager, who called the police.
Brice testified the gun was black and looked like the gun that belonged to the police officer who arrived later. It did not have an orange tip like a BB gun.
Police responding to the robbery call saw N.C. riding a bicycle about a mile from the crime scene. N.C. matched the description of the suspect, so the police detained him and arranged for Brice to be driven to their location. At the field show-up and later at the adjudication hearing, Brice identified N.C. as the person who robbed her. The police apparently did not recover a gun from N.C.
The juvenile court found true the allegations that N.C. committed second degree robbery and assault with a firearm. It sustained the petition, found each offense to be a felony, and declared appellant to be a ward of the court. The court struck the personal firearm-use allegations for each charge without giving a reason. The court put N.C. into a camp-community placement for three months. The court’s minute order reflects a maximum confinement term of six years.
DISCUSSION
1. Substantial evidence supports the assault with a firearm conviction.
N.C. argues that the striking of the firearm-use enhancement allegations reflects an implicit finding by the juvenile court that he did not use a real gun. He contends that the evidence therefore was insufficient to establish that he committed an assault with a firearm.
The same standard governs review of the sufficiency of evidence in adult criminal cases and juvenile cases: we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) Our consideration of the sufficiency of the evidence is not limited by an allegedly “inconsistent” verdict or finding. (People v. Lopez (1982) 131 Cal.App.3d 565, 571.)
A person who threatens someone with a gun commits assault with a firearm. There must be evidence the gun was real and loaded because the present ability to inflict a violent injury is a key element of assault. (Pen. Code, § 240; People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1325.) When no gun is recovered, circumstantial evidence may establish the weapon’s characteristics. (People v. Green (1985) 166 Cal.App.3d 514, 517.) “A defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a loaded weapon.” (People v. Rodriguez, supra, 20 Cal.4th at p. 13.) For example, in People v. Aranda (1965) 63 Cal.2d 518, the California Supreme Court concluded that a jury could infer that the gun a robber used was real, not a toy: “Testimony to the effect that the defendant was flourishing the pistol or pointing it at the victim and was using threatening words or conduct indicating that he intended to fire it if his demands were not met would be evidence from which the inference could be drawn.” (Id. at p. 533.)
An assault with a firearm also may be committed by using a gun -- loaded or not --as a club or bludgeon. (People v. Miceli (2002) 104 Cal.App.4th 256, 269-270.)
Substantial circumstantial evidence of N.C. ’s use of the gun supported the juvenile court’s implicit finding that the gun was real. Brice testified that the gun was black, did not have an orange tip, and looked like the police officer’s gun. Brice also testified that N.C. wielded the gun in a menacing manner. He placed it against her back and drew her attention to it by looking down at it; that action may be interpreted as an implied threat to shoot. He would not be able to shoot with either an unloaded real gun or a toy gun. As he rode away on his bicycle, N.C. still held the gun in his hand. That fact supports an inference that it was a real, loaded gun that N.C. valued and that he had to handle carefully to avoid an accidental shooting.
The court’s striking of the firearm allegations does not negate this evidentiary support for the juvenile court’s finding on the assault with a firearm count. The court did not find the allegations to be untrue; it simply struck them. If the court erred by doing so, the error favored N.C. Moreover, inherently inconsistent verdicts and findings are permissible and do not constitute a basis for reversal. “[I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of a substantive offense, effect is given to both.” (People v. Santamaria (1994) 8 Cal.4th 903, 911; Pen. Code, § 954.) Appellate courts view “inconsistent” acquittals or findings as the product of compromise, mistake, or leniency, “of which an appellant is not permitted to take further advantage.” (People v. Santamaria, supra, 8 Cal.4th at p. 911; People v. Pahl (1991) 226 Cal.App.3d 1651, 1657.)
Given the substantial evidence supporting a reasonable inference that the gun N.C. carried was real and loaded, any inconsistency between the court’s finding that the assault with a firearm count was true and its striking of the firearm-use enhancement allegations must be deemed an exercise of leniency. The purported inconsistency does not require a conclusion that the court found he did not commit an assault with a firearm. N.C. ’s contention fails.
2. Penal Code section 654 bars inclusion of any term for assault in N.C. ’s maximum confinement term.
At the disposition hearing, N.C. ’s attorney told the court that the maximum confinement term was six years. The court apparently accepted counsel’s calculation without question. N.C. contends, and respondent agrees, that the trial court violated Penal Code section 654 by adding one year to the maximum confinement term for the assault with a firearm.
When a court removes a minor from the custody of his parent as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed on an adult convicted of the same offenses. (Welf. & Inst. Code, § 726, subd. (c).) Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms on the basis of multiple counts in computing the maximum confinement term. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454.) When aggregating multiple counts, the court calculates the maximum confinement term by adding the upper term for the principal offense to one-third of the middle term for each of the remaining subordinate crimes. (Welf. & Inst. Code, § 726, subd. (c); Pen. Code, § 1170.1, subd. (a); In re Deborah C. (1981) 30 Cal.3d 125, 140.)
The upper term for second degree robbery is five years. (Pen. Code, § 213, subd. (a)(2).) The middle term for assault with a firearm is three years. (Pen. Code, § 245, subd. (a)(2).) It appears that defense counsel and the court arrived at the six-year maximum confinement term by adding five years for second degree robbery and one year (one-third of the three-year middle term) for assault with a firearm.
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.) Section 654 applies to juvenile court proceedings. (In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3.)
The parties agree that the assault and the robbery were not based on separate acts or supported by independent criminal objectives. We agree. Therefore, Penal Code section 654 bars adding the term for the assault to appellant’s maximum confinement term.
DISPOSITION
Appellant’s maximum term of confinement is modified to be five years, in accordance with Penal Code section 654. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.