Opinion
NOT DESIGNATED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County No. PJ34850, Gary A. Polinsky, Temporary Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Jack Newman, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
The juvenile court sustained allegations of a Welfare and Institutions Code section 602 petition alleging the juvenile committed assault with a deadly weapon by means of force likely to produce great bodily injury, grand theft person and attempted second degree robbery. The juvenile appealed from the court’s order of wardship, claiming the evidence was insufficient to establish the offenses of attempted second-degree robbery and grand theft person. In the event the evidence was sufficient to sustain the court’s findings, the juvenile claimed he nevertheless could not be punished for both offenses because both theft crimes were committed with the same intent and objective against the same person. Finally, he argued the juvenile court erred in setting his maximum theoretical term of confinement.
In our initial decision we concluded the evidence did not support a finding the juvenile took the property “from the person” of the victim as is required for grand theft person. We thus reduced the offense in count two to the misdemeanor offense of petty theft, a lesser included offense of grand theft person, and affirmed the court’s findings in other respects. The Supreme Court granted the People’s petition for review. In a companion case to this case the Supreme Court in In re Jesus O. concluded the evidence of the juvenile’s intent to steal, plus the later taking of property which had been on the victim’s person, was, in combination, sufficient to sustain the grand theft person offense. Accordingly, the Supreme Court reversed our decision finding to the contrary and remanded the present matter to this court for reconsideration in light of its decision in In re Jesus O. We now affirm.
In re Jesus O. (2007) 40 Cal.4th 859.
FACTS AND PROCEEDINGS BELOW
Prosecution Evidence
Around 5:30 in the evening on July 5, 2004 Mario H. and his middle school companions, Alex S., Juan C. and George G., went to a McDonald’s restaurant on Vose Street in Van Nuys. Appellant, Roberto A., and his friend, Jesus O., sat at a table in the corner. Mario knew Jesus and recognized appellant from school. Mario and his friends sat at a table in the middle of the restaurant.
Appellant approached Mario and “claimed” “A. K.” He announced “A. K.” and “Assassin Kings.” Mario responded by saying “Whatever.” Appellant asked Mario, “What are you staring at?” Appellant asked Mario whether he had a problem.
Mario believed “A. K.” was a gang. After Mario and his friends finished eating they left the restaurant. Jesus and appellant followed them out. Mario and his friends walked to an alley behind McDonald’s to “lose” Jesus and appellant. However, when Jesus and appellant spotted them in the alley they yelled, “Hey, hold on.” Jesus and appellant set their drink containers down and approached Mario and his friends.
First appellant and then Jesus loudly announced “Assassin Kings.” Appellant asked Mario if he had any money. Mario replied, “I ain’t got no money.” A second later Jesus “sucker punched” Alex in the mouth. Mario pulled Alex behind him to protect Alex from further assault. Jesus and appellant began pushing Mario and a fight broke out.
At trial Juan testified both appellant and Jesus asked if he or Mario had any money.
Juan and appellant began fighting. They punched and kicked each other. Juan grabbed appellant’s head and placed him in a headlock. George punched appellant while in this position. Appellant wrestled out of Juan’s headlock and grabbed Juan’s head. Juan grabbed appellant’s throat to choke him and then threw appellant against the wall. At some point during the struggle Juan’s necklace broke and wound up in appellant’s hand. Juan grabbed his necklace from appellant and walked over to Mario and Jesus.
In the meantime Mario and Jesus had been fighting and wrestling on the ground. When Juan and appellant joined them Mario had managed to immobilize Jesus by holding him in a sort of bear hug from behind. Mario kept telling Jesus to calm down. Appellant ordered Mario to let Jesus go. Appellant pulled out a knife and unfolded its three to four inch blade. He told Mario, “I’m going to shank you, I’m going to fucking shank you.”
Mario and his friends got scared. Juan beseeched Mario to let Jesus go and “just get out of here.” The four boys ran down the alley and hopped a fence. Mario then checked his pants pocket and noticed his cell phone was missing. Mario did not want to go back to retrieve his cell phone, afraid they would get into another fight. Juan saw Mario’s cell phone lying on the ground in the alley. Then Juan saw appellant pick up the phone and put it in his pocket.
Defense Evidence
Juan Hernandez was working in Mendez Market on July 5, 2004. Around 5:30 p.m. he went into the alley behind the store to take out some trash. He saw six boys fighting in the alley 30 to 35 feet away. A minute later they all ran away. Hernandez did not see any boy with a knife. Hernandez did not hear any of the boys make any comment.
Appellant testified at the adjudication hearing. He testified Mario, Alex, George and Juan were making derogatory comments while he and Jesus were eating at the McDonald’s. Mario and his friends made fun of his nose. They also made unpleasant comments about Jesus’s disfigured eyelids. The boys called Jesus, “ve ciego” or “blind” and made fun of how he looked. Appellant asked, “What are you looking at?” Appellant admitted he invoked the name of his “crew”—the “Assassin Kings”—because he was angry and wanted to scare the boys who were taunting them. Appellant explained “Assassin Kings” was not a tagging crew but was a “regular crew.”
Appellant denied he and Jesus followed the boys out of the McDonald’s restaurant. However, he testified when they saw Mario and his friends in the alley, he and Jesus dumped out their sodas and walked up to them.
Appellant denied either he or Jesus ever asked Mario or his friends for money. He testified Jesus got into an argument with one of the boys over an earlier slight and a fight broke out. Appellant agreed Jesus had thrown the first punch. Appellant was about to help Jesus when another one of the boys attacked him and they started fighting. When he saw Mario getting the better of Jesus appellant yelled, “Let him go, let him go.” By this time Jesus already had a black eye. Appellant tried to stop the fight by pretending to have a knife and threatening to “shank” them with his “pretend” knife. Appellant testified it was just a bluff he used to get Mario to release Jesus.
After the fight ended and Mario and his friends ran away appellant saw a cell phone lying on the ground. He picked the phone up because he wanted it. Appellant apparently changed his mind and threw the cell phone into the trash. When Jesus said he wanted the phone, appellant retrieved the cell phone from the trash and gave it to Jesus. Later in the day Jesus gave the phone back to appellant, who gave it to a girl, and the girl in turn gave it to appellant’s father. Appellant’s father turned the cell phone over to the police.
A Welfare and Institutions Code section 602 petition charged appellant in count one with assault with a deadly weapon by means of force likely to produce great bodily injury, in count two with grand theft person, in counts three and four with attempted second-degree robbery, and in count five with second-degree robbery.
Penal Code section 245, subdivision (a)(1).
Penal Code section 487, subdivision (c).
The juvenile court sustained the allegations of counts one, two and three of the petition and declared appellant a ward of the court. In its minute order for the day, the court indicated the assault, grand theft person and the attempted second-degree robbery offenses were felonies. The juvenile court dismissed counts four and five—one of the attempted second-degree robbery counts and the second-degree robbery charge. At disposition, and after a period in confinement, the court ordered appellant home on probation. The court set a theoretical maximum period of confinement of six years.
Appellant appealed from the order of wardship.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S FINDING APPELLANT COMMITTED ATTEMPTED SECOND-DEGREE ROBBERY.
Appellant contended the evidence was insufficient to support the finding he committed an attempted robbery of Mario. In our initial opinion we found the record contained substantial evidence of force or fear sufficient to sustain the juvenile court’s finding he committed attempted second-degree robbery. We reaffirm this conclusion.
II. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JUVENILE COURT’S FINDING APPELLANT COMMITTED GRAND THEFT PERSON.
In his initial appeal appellant contended the record evidence was insufficient to support the juvenile court’s conclusion he committed grand theft person. The Supreme Court in In re Jesus O. rejected this argument in appellant’s cohort’s case. The court noted the evidence showed appellant intended to steal when the assault began. This evidence of larcenous intent, plus the taking of the cell phone after it had become separated from the victim’s person as a result of his actions was sufficient evidence, in combination, to sustain the grand theft person finding. The In re Jesus O. court explained, “In this case, there was evidence that, while the telephone was still on Mario’s person, the juvenile asked him if he had any money. This evidence supports a finding that the juvenile and his cohort intended to steal property of some kind, even if not specifically the telephone, when the assault began, i.e., when the telephone was on Mario’s person. This generalized intent to steal at the time the telephone was on the victim’s person satisfies the larcenous intent element of grand theft.” This evidence of appellant’s larcenous intent, plus the evidence the property taken had been physically connected to the victim before the assault began, was sufficient to sustain the grand theft person finding.
In re Jesus O., supra, 40 Cal.4th 859, 867.
In re Jesus O., supra, 40 Cal.4th 859, 868.
In re Jesus O., supra, 40 Cal.4th 859, 868.
As an intermediate appellate court we are bound to follow the decisions of this state’s highest court. Accordingly, in following In re Jesus O. we necessarily find the evidence sufficient to sustain the finding of grand theft person.
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
III. PENAL CODE SECTION 654 DOES NOT PRECLUDE SEPARATE PUNISHMENTS FOR BOTH THEFT OFFENSES.
Appellant contended Penal Code section 654 precluded separate terms of punishment for both the theft and the attempted robbery offenses. In our initial opinion we found the two crimes were separated in time and involved different conduct. Accordingly, we found multiple punishments were not precluded by Penal Code section 654. We reaffirm this conclusion.
IV. RECALCULATION OR RECONSIDERATION OF APPELLANT’S THEORETICAL MAXIMUM TERM OF CONFINEMENT IS UNNECESSARY.
At disposition, and after a period in juvenile hall, the court ordered appellant home on probation. The court set a theoretical maximum term of confinement of six years.
Appellant contended in imposing the six-year theoretical maximum term of confinement the juvenile court erred in two respects. He argued the juvenile court failed to exercise its discretion under Welfare and Institutions Code section 731, subdivision (b) to impose a lesser term. He also argued the maximum term allowable should have only been five years and four months rather than the six-year term imposed. The People conceded the juvenile court’s miscalculation of the theoretical maximum term.
The juvenile court was not required to set any maximum term of confinement because appellant was ordered home on probation. 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.” Because appellant was not removed from the physical custody of his parents, setting a maximum theoretical term of confinement was unnecessary and thus had no legal effect.
In re Ali A. (2006) 139 Cal.App.4th 569, 574.
Italics added.
For this reason, the term, however calculated, did not prejudice appellant because it did not and could not affect him in any event. 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.
In re Ali A., supra, 139 Cal.App.4th 569, 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 . . . ’”].
DISPOSITION
The juvenile court’s order of wardship is affirmed.
We concur: PERLUSS, P. J. WOODS, J.