Opinion
F075673
10-19-2018
In re DESMOND V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DESMOND V., Defendant and Appellant.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the nonpublished opinion filed herein on October 19, 2018, be modified in the following particulars:
1. On page 2, the second paragraph in the section entitled, "PROCEEDINGS," beginning with Count 1, is deleted and the following paragraph inserted in its place:
Count 1: assault with a deadly weapon on R.G. (Pen. Code, § 245, subd. (a)(1)), with a criminal street gang enhancement (gang enhancement) (§ 186.22, subd. (b)(1)(B));
2. On page 3, the first paragraph beginning with Count 2, is deleted and the following paragraph inserted in its place:
Count 2: assault by means likely to produce great bodily injury on R.G. (§ 245, subd. (a)(4)), with a gang enhancement (§ 186.22, subd. (b)(1)(B));
3. On page 3, the third through ninth paragraphs beginning with Count 4 and ending in Count 12, are deleted and the following paragraphs inserted in their place:
Count 4: assault with a deadly weapon on Officer Maxey (§ 245, subd. (a)(1)), with a gang enhancement (§ 186.22, subd. (b)(1)(B));
Count 5: assault by means likely to produce great bodily injury on Officer Maxey (§ 245, subd. (a)(4)), with a gang enhancement (§ 186.22, subd. (b)(1)(B));
Count 6: assault with a deadly weapon, a flashlight, on Officer C. Torres (§ 245, subd. (a)(1)), with a gang enhancement (§ 186.22, subd. (b)(1)(B));
Count 9: assault by means likely to produce great bodily injury on Officer Martinez (§ 245, subd. (a)(4)), with a gang enhancement (§ 186.22, subd. (b)(1)(B));
Count 10: assault with a deadly weapon, a flashlight, on Officer M. Garcia (§ 245, subd. (a)(1)), with a gang enhancement (§ 186.22, subd. (b)(1)(B));
Count 11: battery on Officer A. Velez (§ 243, subd. (b)), with a gang enhancement (§ 186.22, subd. (d));
Count 12: misdemeanor battery on Officer S. Lira (§ 243, subd. (b)), with a gang special enhancement (§ 186.22, subd. (d)).
Except for the modifications set forth, the opinion previously filed remains unchanged. This modification does not effect a change in the judgment.
Appellant's petition for rehearing filed on October 22, 2018, is denied.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD068216)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In December 2016, while Desmond V. was being housed in the Juvenile Detention Facility (detention facility) in Tulare County, he became involved in an altercation involving an assault of several probation officers and facility personnel in coordination with other juveniles housed in the facility. Desmond was charged with 12 counts alleging he committed assaults, personally inflicted great bodily injury, and committed the offenses for the benefit of a criminal street gang. The juvenile court found most of the allegations true except for two counts dismissed on the People's motion and the allegations Desmond inflicted great bodily injury. As set forth more specifically below, Desmond challenges the sufficiency of the evidence to support five counts and the related gang enhancement allegations. He also challenges gang enhancement allegations related to three counts.
PROCEEDINGS
Desmond was charged in a petition pursuant to Welfare and Institutions Code section 602 with 12 counts. At the conclusion of the contested jurisdiction hearing on April 18, 2017, the juvenile court granted the People's motion to dismiss counts 7 and 8. The juvenile court found not true an enhancement alleged in most of the counts that Desmond personally inflicted great bodily injury. The court struck the allegation in counts 1 and 4 that Desmond used a flashlight as a deadly weapon, but still found his hands and feet sufficed as a deadly weapon. After amendments to count 11 and the gang enhancements alleged in each count, the juvenile court found the remaining allegations true as follows:
Count 1: assault with a deadly weapon on R.G. (Pen. Code, § 245, subd. (a)(1)), with a criminal street gang enhancement (gang enhancement) (§ 188.22, subd. (b)(1)(B));
Unless otherwise designated, all statutory references are to the Penal Code.
Count 2: assault by means likely to produce great bodily injury on R.G. (§ 245, subd. (a)(4)), with a gang enhancement (§ 188.22, subd. (b)(1)(B));
Count 3: false imprisonment of R.G. by violence (§ 236), with a gang enhancement (§ 186.22, subd. (b)(1)(A));
Count 4: assault with a deadly weapon on Officer Maxey (§ 245, subd. (a)(1)), with a gang enhancement (§ 188.22, subd. (b)(1)(B));
Count 5: assault by means likely to produce great bodily injury on Officer Maxey (§ 245, subd. (a)(4)), with a gang enhancement (§ 188.22, subd. (b)(1)(B));
Count 6: assault with a deadly weapon, a flashlight, on Officer C. Torres (§ 245, subd. (a)(1)), with a gang enhancement (§ 188.22, subd. (b)(1)(B));
Count 9: assault by means likely to produce great bodily injury on Officer Martinez (§ 245, subd. (a)(4)), with a gang enhancement (§ 188.22, subd. (b)(1)(B));
Count 10: assault with a deadly weapon, a flashlight, on Officer M. Garcia (§ 245, subd. (a)(1)), with a gang enhancement (§ 188.22, subd. (b)(1)(B));
Count 11: battery on Officer A. Velez (§ 243, subd. (b)), with a gang enhancement (§ 188.22, subd. (d));
Count 12: misdemeanor battery on Officer S. Lira (§ 243, subd. (b)), with a gang special enhancement (§ 188.22, subd. (d)).
The juvenile court ordered Desmond committed to the Department of Corrections, Division of Juvenile Justice (DJJ), on May 2, 2017. For the instant action, the court set Desmond's maximum term of confinement at 28 years 4 months. The court set Desmond's aggregate maximum term of confinement on all adjudications, including the instant case, at 35 years 3 months with custody credits of 520 days.
ISSUES ON APPEAL
Counts 1 and 2, respectively, allege assault with a deadly weapon and assault by means likely to cause great bodily injury of R.G. Desmond contends count 2 is a lesser included offense of count 1 and must be stricken because there is only one distinct act supporting both counts. The People reply that Desmond committed multiple acts thus supporting the true findings on both counts. Desmond argues the section 186.22, subdivision (b)(1)(B) gang enhancements in counts 2, 5, and 9 must be stricken because the felony alleged, a violation of section 245, subdivision (a)(4), is not a serious felony pursuant to section 1192.7, subdivision (c)(31). The People argue that counts 5 and 9 allege the victims were peace officers, making the assaults serious felonies.
The People concede this point as to count 2 because the victim was not a peace officer so assault by means likely to produce great bodily injury is not a serious felony.
The following issues are conceded by the People. Defendant argues count 3 alleging false imprisonment of R.G. cannot be punished under section 654 because the false imprisonment arose from the assault allegations alleged in counts 1 and 2 and therefore were done with a single criminal objective. Defendant contends count 4 and the related gang enhancement must be stricken because the juvenile court found defendant used his hands and feet to accomplish this allegation and hands and feet are legally not deadly weapons. Defendant finally contends there is insufficient evidence to support the allegations in counts 11 and 12 and these counts and the related gang enhancements must be stricken.
FACTS
The juvenile court granted the People's motion to admit a video of the incident that occurred at the detention facility on December 6, 2016. The court viewed the video and heard testimony from the probation officers who were attacked by Desmond. At the beginning of the jurisdiction hearing, the parties stipulated the Norteño gang is a criminal street gang within the meaning of section 186.22.
Gregory Powers, a supervising probation officer at the detention facility, testified he was called to there at 1:00 a.m. on December 6, 2016, due to an incident involving assaults and attempted escapes. When he arrived at the detention facility, he reviewed the video of the incident, which involved several juveniles housed in Unit C who went to Unit A where they assaulted correctional staff and another juvenile. The video depicted Desmond leaving his cell, hiding in a nearby shower stall, and then running over to the cell control podium. At the podium, Desmond began pressing buttons to allow other detainees to exit their cells and run into Unit A.
Before going into Unit A, Christopher S. briefly joined Desmond behind the podium where he bent down and grabbed a can of pepper spray. Flashlights were also stored under the podium. After Christopher left the podium, Officer Torres approached Desmond who was still behind the podium pressing buttons. The video depicts Desmond waving a flashlight in each hand in an aggressive manner toward Torres, pushing her out of the way, and running past her to Unit A.
Torres testified that the minors were running from Unit C to Unit A. Desmond was at the podium. Torres was calling cover, but Desmond did not comply with her command. Desmond was waving a flashlight in each hand toward Torres. The flashlights came from under the podium. Although Desmond did not hit Torres, she felt threatened that Desmond was going to hit her because of the way he was waving the flashlights in close proximity to her. Torres stepped back and Desmond ran to Unit A. Torres did not see Desmond holding a can of pepper spray.
In Unit A, Omar R. and Jose R. attempted unsuccessfully to open cell doors. Christopher followed them holding a can of pepper spray. Desmond and others later converged in Unit A. Institutional Supervisor Maxey entered Unit A with Officers Martinez and Lira attempting to stop the minors. When Maxey ordered the youths to take a cover position, Jose and other minors physically confronted and attacked Maxey. Maxey fell to the ground after stepping on Jose's foot and twisting his ankle. Jose and another minor began to punch and kick Maxey. Lira attempted to assist Maxey by pepper spraying Jose and the other minor. Christopher sprayed Maxey in the face with pepper spray.
Desmond entered Unit A holding a flashlight in each hand and kicked Maxey in the back. Desmond kept the flashlights in each hand but did not strike Maxey with them. Martinez entered Unit A and explained that he quickly pepper sprayed Desmond. Christopher was under a stairwell near cell 6. As Desmond retreated to the stairwell, Christopher moved briefly toward Martinez and pepper sprayed him. Officers Garcia and Velez entered Unit A as Lira and Martinez continued to assist Maxey who was able to get to his feet. Martinez pepper sprayed Desmond. After retreating briefly to the stairwell, the assailants entered cell 6.
Lira testified that when she arrived at Unit A, she saw two minors punching Maxey and pepper sprayed them. Lira said she saw Desmond holding a large can of pepper spray, which he used to spray her on the right side of the face, neck, and arms. She did not notice Desmond holding a flashlight. Lira only identified Jose as one of the minors attacking Maxey.
Garcia explained that when he arrived at Unit A, he saw six minors punching Maxey including Desmond and Jose. Desmond was holding a can of pepper spray and using it on everyone. As Desmond began to pepper spray Garcia, Garcia pepper sprayed him back. The minors went into cell 6 where Garcia saw them attack R.G. who was on his bed in a fetal position. Garcia stated, "the youths that were in there were kicking him and punching him and hitting him with a flashlight." Two minors had flashlights, and both were hitting R.G. with the flashlights. R.G. was getting kicked and punched. When asked if everyone in the room was punching R.G., Garcia replied, "It is everyone in that room at least hit him at least once." On cross-examination, Garcia said he saw Desmond "hit or attack" R.G.
Garcia did not go into the room because it was not safe to do so. Desmond hit Garcia on the left arm with a flashlight when he later exited the room. Garcia was able to sprawl on Desmond and together with Martinez they took Desmond down and handcuffed him.
Velez stated that when he arrived, he saw three minors wrestling and hitting Maxey. Jose was one of the minors involved. The minors retreated to cell 6 and Maxey told Velez to retrieve the pepper spray from Maxey's office. When he returned, he counseled the minors to come out. Velez pepper sprayed some of the minors as they exited cell 6 and came toward him. A flashlight was thrown out of cell 6 in Velez's direction. Velez thought he brushed it away. The next day he saw a cut on his shin. Velez did not see who threw the flashlight. It was unclear from the video who threw the flashlight at Velez.
There was testimony establishing Desmond's Norteño gang membership and explaining how the Norteños qualified as a criminal street gang. Desmond has raised no challenge to the gang enhancement allegations. Also, these allegations are largely irrelevant to the issues raised on appeal. We therefore do not review the evidence supporting the criminal street gang enhancements.
Powers explained that he had known Desmond for a year. Desmond admitted being a northern gang member and had gang tattoos. Desmond had a history of being involved in gang-related crimes. When Powers questioned Desmond after the incident, Desmond explained how he jammed the lock to his cell so he could get out. Desmond admitted he went to the podium to push buttons that would open other cell doors. Desmond said he took something from the podium, but would not identify what he took. Desmond explained he and the other minors intended to get southerners or others they did not like. Desmond knew R.G. because they were both from Tulare. He also knew R.G. was housed in cell six. Desmond and the other minors attacked R.G. because of an earlier incident but he would not elaborate about what had happened before. R.G. knew southerners were housed in Unit A.
Powers questioned Desmond after reading him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Desmond indicated he understood those rights and was waiving them.
Although Lira and Garcia testified that they were pepper sprayed by Desmond, the surveillance video indicates he took two flashlights from under the podium in Unit C and brought them to Unit A. Christopher grabbed pepper spray from the same podium in Unit C and proceeded to Unit A. While Maxey was on the ground being assaulted by other minors, Christopher pepper sprayed him. Lira entered Unit A and tried to assist Maxey by pepper spraying the minors attacking him. From the video recording, it is clear that Christopher, not Desmond, pepper sprayed Lira.
Furthermore, Desmond had not yet entered Unit A at the time when Lira was exchanging pepper spray with one of the minors. When Desmond entered Unit A, he was carrying a flashlight in each hand but momentarily moved back from the attacks on Maxey. Desmond then joined in the assault on Maxey by kicking him in the back before retreating toward cell 6. Soon after, the video shows Garcia pepper spraying Christopher on the opposite side of the stairwell from where Maxey was being attacked. Christopher sprayed pepper spray toward Garcia before retreating into cell 6. Neither Lira nor Garcia reviewed the security video prior to testifying.
OPERATION OF SECTION 954 FOR ATTACK ON R.G.
Introduction
The juvenile court found true allegations that Desmond committed assault with a deadly weapon on R.G. (§ 245, subd. (a)(1), count 1), assault by means likely to produce great bodily injury on R.G. (§ 245, subd. (a)(4), count 2), and false imprisonment of R.G. by violence (§ 236, count 3). The parties dispute whether Desmond's conduct in counts 1 and 2 constituted a single act or multiple acts.
Relying on In re Jonathan R. (2016) 3 Cal.App.5th 963, 967 (Jonathan R.), Desmond further argues that count 2 is a lesser included offense of count 1. The People reply that because there was separate conduct justifying each count, Desmond can be punished for each count. Jonathan R. has been criticized by the recent case of People v. Brunton (2018) 23 Cal.App.5th 1097 (Brunton), which held that section 245, subdivisions (a)(1) and (a)(4) are the same offense and convictions for both counts cannot stand. The conflict between the two cases is over how to interpret and apply section 954 to multiple convictions for violating different subsections of section 245, subdivision (a).
We disagree with the People's assertion that counts 1 and 2 involve separate criminal acts because there was only evidence that Desmond hit the victim with a flashlight. There was no evidence that he was personally kicking or hitting the victim with only his hands, and if he aided and abetted the other juveniles attacking the victim, Desmond did so by assaulting the victim with a flashlight. Under either analysis of Jonathan R. or Brunton, a second conviction, or in this case a second true finding by a juvenile court, involving a single act with a single criminal objective must be vacated pursuant to section 954. We therefore order count 2 vacated. Evidence of Assault on R.G.
Prior to analyzing the effect of section 954 on counts 1 and 2, we review the People's contention that Desmond committed multiple acts during the attack on R.G. in cell 6. This query concerns whether there is substantial evidence to support the People's contention that Desmond committed multiple acts.
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same in cases in which the People primarily rely on circumstantial evidence. Although a jury, or in this case the juvenile court, must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
When the minors were in cell 6, Garcia looked into the room and saw all the minors hitting or kicking R.G. Garcia testified, "the youths that were in there were kicking him and punching him and hitting him with a flashlight." Two minors had flashlights and both were hitting R.G. with the flashlights. R.G. was getting kicked and punched. When asked if everyone in the room was punching R.G., Garcia replied, "It is everyone in that room at least hit him at least once." On cross-examination, Garcia said he saw Desmond "hit or attack" R.G.
The video shows Desmond going into the cell with a flashlight in each hand but does not depict the assault inside the cell. The video only shows Garcia outside the cell looking in through the observation window. Garcia's testimony was very vague but from it, the trier of fact could reasonably infer Desmond and another minor were hitting R.G. with flashlights. It is not possible, however, to tease out from Garcia's testimony whether Desmond was otherwise hitting R.G. with his other hand or kicking R.G. with his feet. Garcia's testimony that each minor in the cell hit R.G. at least once does not clarify the nature of Desmond's assault on R.G. Garcia's statement on cross-examination that Desmond hit or attacked R.G. is also ambiguous because Desmond could have hit R.G. with a flashlight or by other means. Garcia's testimony fails to identify Desmond as committing multiple different acts other than the inference that he was hitting R.G. with a flashlight. There is not substantial evidence that Desmond committed multiple different assaults on R.G. or that he had multiple different objectives, other than assaulting R.G., when he entered R.G.'s cell.
In closing argument to the juvenile court, the issue of whether Desmond kicked R.G. or only hit him with a flashlight was argued by the parties. The prosecutor pointed out that even if Desmond was not kicking R.G. and only hitting R.G. with a flashlight, Desmond was aiding and abetting the other minors who were punching and/or kicking R.G. Even if Desmond's single act of hitting R.G. with a flashlight also aided and abetted the other minors who were kicking R.G. with their feet and hitting him with their hands, Desmond still committed only one act during a course of conduct with the other minors that had the single criminal objective of assaulting R.G. for a prior incident. The evidence adduced at the jurisdiction hearing does not support a true finding on counts 1 and 2 based on separate acts or assaults.
Operation of Section 954
Both Jonathan R. and Brunton consider whether section 954 authorizes multiple convictions for the different subsections of section 245, subdivision (a). Brunton noted that in 2011, the Legislature amended section 245, subdivision (a) to include more subsections. (Brunton, supra, 23 Cal.App.5th at pp. 1104-1106.)
Section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
Analyzing a factual scenario in which the defendant was charged with violations of subdivision (a)(1) of section 245, and subdivision (a)(4) of the same statute for a single act of choking a cellmate with a tightly rolled towel, Brunton found the statutes were merely different statements of the same offense and the defendant could not be convicted of violating both subdivisions. (Brunton, supra, 23 Cal.App.5th at pp. 1105-1107, relying on People v. Vindana (2016) 1 Cal.5th 632, 647-651 [holding larceny and embezzlement were the same offense and section 954 does not authorize multiple convictions for different statements of the same offense].) Brunton noted that the Legislature made clear in its 2011 amendments that it was making only technical, nonsubstantive changes to section 245 after courts had construed former section 245, subdivision (a)(1) as a single offense. Brunton held that one of the convictions had to be vacated. (Brunton, at p. 1108.)
Jonathan R. also involved a prosecution and true findings for a minor violating section 245, subdivision (a), subsections (1) and (4), where the minor stabbed another minor during a brawl. The juvenile court found both violations, as well as enhancement allegations, true. (Jonathan R., supra, 3 Cal.App.5th at p. 966.) Jonathan R. analyzed the multiple conviction scenario under section 954 differently than did the court in Brunton. (Jonathan R., at pp. 966-970.) Jonathan R. found both subsections of subdivision (a) of section 245 were not separate offenses, but that the subdivision (a)(4) allegation was a lesser included offense of the subdivision (a)(1) allegation. (Jonathan R., at pp. 966-975, relying on People v. Gonzalez (2014) 60 Cal.4th 533, 539-540 [finding that where a defendant is convicted of committing oral copulation on an unconscious victim under section 288a, subd. (f), as well as committing the same sex act on an intoxicated victim under section 288a, subd. (i), the two subdivisions set forth different circumstances under which a single act of oral copulation can be committed and are not clearly divisible distinct acts].) Jonathan R. ordered the juvenile court to vacate its findings on the lesser included offense to reduce the minor's maximum term of confinement on the substantive offense and related enhancements. (Jonathan R., at pp. 975-976.)
Jonathan R. and Brunton consider whether a single act can lead to a conviction for violating subsections (1) and (4) of section 245, subdivision (a); they hold that section 954 requires that a second conviction under the statute must be vacated. Jonathan R. finds that section 245, subdivision (a)(4) is a lesser included offense of section 245, subdivision (a)(1). Brunton reasons that the two subsections are the same offense. Under either rationale, true findings on separate counts that Desmond committed both assault by means likely to produce great bodily injury and assault with a deadly weapon cannot both stand where, as here, the minor violated each statutory provision with a single act. Count 2 and the related gang enhancement are therefore vacated pursuant to section 954.
Assuming arguendo that aiding and abetting the other minors in count 2 constituted a separate criminal act, counts 1, 2, and 3 still constitute a single criminal objective and course of criminal conduct. If count 2 did not have to be dismissed pursuant to section 954 because Desmond's conduct could be construed as supporting an additional factual basis to support a second true finding, any term of confinement would have to be stayed pursuant to section 654 as discussed in the following section concerning false imprisonment by force (count 3).
OPERATION OF SECTION 654 ON COUNT THREE
The parties agree that Desmond's confinement cannot be increased on count 3 for false imprisonment by force pursuant to section 654 because Desmond committed counts 1 and 3 with the same criminal intent and objective during a single course of conduct.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. If all the crimes committed pursuant to that course of conduct are merely incidental to or were the means of accomplishing or facilitating a single objective, the defendant may receive only one punishment. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Islas (2012) 210 Cal.App.4th 116, 129.) The defendant's intent and objective are factual questions for the trier of fact. To apply multiple punishments, there must be evidence to support a finding the defendant formed a separate objective and intent for each offense for which he or she was sentenced. (People v. Islas, supra, at p. 129, citing People v. Adams (1982) 137 Cal.App.3d 346, 355.)
A single course of conduct is defeated where there is a separation of time between different acts. (See People v. Hicks (2017) 17 Cal.App.5th 496, 516.) Here, there was no separation of time between counts 1, 2, and 3—they all occurred simultaneously. There was uncontroverted evidence, including an admission by Desmond, that the minors attacked R.G. because he was a southerner, they were northerners, and R.G. was involved in a prior incident with Desmond and/or his compatriots. There was no separate criminal objective in attacking R.G. and the attack constituted a single course of conduct. Desmond's term of confinement and the associated gang enhancement must be stayed pursuant to section 654.
SERIOUS FELONY TO SUPPORT GANG ENHANCEMENTS
Introduction
Desmond contends his convictions in counts 5 and 9 for assault by means likely to produce great bodily injury pursuant to section 245, subdivision (a)(4) do not support the gang enhancement allegations on those counts because assault by means likely to produce great bodily injury is not a serious felony. The juvenile court found the gang enhancements alleged in counts 5 and 9 true pursuant to section 186.22, subdivision (b)(1)(B), which provides increased punishment where the underlying felony is "a serious felony, as defined in subdivision (c) of Section 1192.7 ...." Desmond argues that section 1192.7, subdivision (c)(31) defines a serious felony as assault with different classes of firearms pursuant to section 245, or assault on a peace officer pursuant to subdivision (c) of section 245.
Section 1192.7, subdivision (c)(31) defines the following as serious felonies: "assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic weapon or assault on a peace officer or firefighter, in violation of Section 245 ." (Italics added.) The People respond that subdivision (c)(31) of section 1192.7 does not specify that assault on a peace officer has to be pursuant to subdivision (c) of section 245; it only refers to section 245. The People further point out that the petition alleged Desmond committed assault by means likely to produce great bodily injury on an officer and the evidence at the jurisdiction hearing established Maxey (count 5) and Martinez (count 9) were correctional officers at the detention facility. We agree with the People that because the alleged victims in counts 5 and 9 were peace officers, an assault on them is a serious felony regardless of which subdivision of section 245 was violated.
Count 2 alleged the same gang enhancement for an assault on R.G. pursuant to section 245, subdivision (a)(4). The parties concede the gang enhancement would have to be vacated because R.G. is not a peace officer. (See People v. Delgado (2008) 43 Cal.4th 1059, 1065.) As explained above, count 2 and the gang enhancement are being vacated on another ground.
Analysis
Desmond argues that because section 245, subdivision (c) is a specific statute, and section 245, subdivision (a)(4) is a more general statute, the specific statute applies where the assault is on a peace officer. Because section 245, subdivision (a)(4) is not defined as a serious felony under section 1192.7, subdivision (c)(31), Desmond argues the gang enhancement allegation is inapplicable to the charged offense. This argument rests on the Williamson rule (In re Williamson (1954) 43 Cal.2d 651, 654 (Williamson)). In People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy), the California Supreme Court noted the Williamson rule holds that "if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute." The rule is not a constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict. (Murphy, at p. 86; People v. Walker (2002) 29 Cal.4th 577, 586.)
Subdivision (c) of section 245 provides in relevant part: "Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter ..., shall be punished by imprisonment in the state prison for three, four, or five years." Section 245, subdivision (a)(4) is a wobbler offense that can be punished as a misdemeanor or in state prison for two, three, or four years.
Absent indication of legislative intent to the contrary, the Williamson rule applies when (1) each element of the general rule corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of a special statute will necessarily or commonly result in a violation of the general statute. In its clearest application, it gets triggered when a violation of a provision of a special statute would inevitably constitute a violation of the general statute. In Williamson, the defendant was convicted under a general conspiracy statute of conspiring to commit a crime of contracting without a license in violation of another statute under the Business and Professions Code. A violation of conspiracy could be punished as a misdemeanor or a felony. The defendant argued his conduct was punishable only under the Business and Professions Code, which made his offense a misdemeanor. The Williamson court agreed, finding that it would be inconsistent to apply the more general conspiracy statute rather than the Business and Professions Code statute that made a conspiracy only a misdemeanor. (Murphy, supra, 52 Cal.4th at pp. 86-87; Williamson, supra, 43 Cal.2d at p. 654.)
Murphy noted that the rationale underlying the Williamson rule is based on the Legislature's adoption of a specific statute focusing its attention on a particular type of conduct and has identified that conduct as deserving a particular punishment. Murphy explained reviewing courts consequently infer the Legislature intended that such conduct be punished "under the special statute and not under a more general statute which, although broad enough to include such conduct, was adopted without particular consideration of such conduct. Whether the Legislature has addressed the specific conduct in a separate statute rather than in a clause or subdivision of a statute that includes other conduct is not determinative in our effort to discern the Legislature's intent." (Murphy, supra, 52 Cal.4th at p. 91.)
In Murphy, the defendant filed a false vehicle theft report. The question was whether filing a false report of a vehicle theft should be prosecuted under section 115 proscribing the offering of false or forged documents, a felony, or Vehicle Code section 10851, which makes similar conduct a misdemeanor. Murphy concluded the Williamson rule applied because the more specific conduct applicable to the defendant was defined under the Vehicle Code, which created an exception to the felony punishment specified in section 115. (Murphy, supra, 52 Cal.4th at pp. 94-95.)
A defendant may not rely on the Williamson rule if there is sufficient evidence the Legislature intended to authorize prosecution under both the special and general statute. (Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1008.) Neither subdivision (a)(4) nor subdivision (c) of section 245 precludes prosecution of a defendant for assault on a peace officer. Both subdivisions are all-encompassing with no distinction between the general or special statutes as long as the criminal activities are within the proscribed scope of such enactments. (See generally People v. Jenkins (1980) 28 Cal.3d 494, 505-506; People v. Butler (1996) 43 Cal.App.4th 1224, 1243-1244.) Desmond has not pointed to, nor have we found, any public policy reason why assault on a peace officer has to be prosecuted pursuant to section 245, subdivision (c) rather than section 245, subdivision (a)(4). A defendant can be prosecuted pursuant to section 245, subdivision (a)(4) as long as the victim is a peace officer as alleged in the Welfare and Institutions Code section 602 petition filed against Desmond.
In determining the Legislature's intent, we begin by examining the statute's words, giving them a plain and commonsense meaning. We do not consider statutory language in isolation. We look to the entire substance of the statute to determine the scope and purpose of a provision, construing the words in question in context, keeping in mind the obvious purpose of the statute. We must harmonize the parts of a statutory enactment by considering the particular clause of the section in the context of the statutory framework as a whole. (People v. Murphy (2001) 25 Cal.4th 136, 142.)
If the statutory language is clear and unambiguous, the plain meaning of the statute governs. (People v. Licas (2007) 41 Cal.4th 362, 367; People v. Lopez (2003) 31 Cal.4th 1051, 1056.) If there is no ambiguity or uncertainty in the statutory language, the Legislature is presumed to have meant what it said, and it is not necessary to resort to the legislative history to determine a statute's true meaning. (People v. Licas, supra, at p. 367; People v. Cochran (2002) 28 Cal.4th 396, 400-401.)
Section 1192.7, subdivision (c)(31) does not expressly require section 245, subdivision (c) as the underlying offense that qualifies as a serious felony. In addition to various types of firearms, section 1192.7, subdivision (c)(31) defines a serious felony as "assault on a peace officer or firefighter, in violation of Section 245 ." (Italics added.) This subdivision does not limit an assault on a peace officer to subdivision (c) of section 245, but uses expansive language that encompasses any violation of section 245 against a peace officer. The plain meaning of the words and terms used in section 1192.7, subdivision (c)(31) require no further legislative history. Furthermore, the reference to the entirety of section 245 without further reference to its individual subdivisions is unambiguous and not subject to other interpretation.
We conclude that an assault in violation of any of the provisions of section 245, as long as it is on a peace officer, is a serious felony. The fact that Desmond was charged in counts 5 and 9 with assault on a peace officer under section 245, subdivision (a)(4) suffices for the crime to be a serious felony under section 1192.7, subdivision (c)(31). The juvenile court's true findings on the section 186.22, subdivision (b)(1)(B) gang enhancements on counts 5 and 9 are affirmed.
HANDS AND FEET AS DEADLY WEAPONS
Count 4 alleged Desmond committed assault by means likely to produce great bodily injury on Maxey pursuant to section 245, subdivision (a)(1). The video showed that when Desmond entered Unit A, he kicked Maxey in the back but did not hit or threaten Maxey with the flashlights he was holding. Desmond contends the juvenile court's true finding on count 4 must be reversed because the juvenile court found he committed assault with a deadly weapon on Maxey using his hands and feet. The parties agree that hands and feet do not constitute a deadly weapon as a matter of law and count 4 along with the related gang enhancement must be dismissed.
A deadly weapon under section 245, subdivision (a)(1) is any object, instrument, or weapon employed in a manner capable of causing death or great bodily injury. Objects such as dirks and blackjacks have been found to be deadly weapons as a matter of law because their ordinary use establishes their nature as such. Other objects, although not deadly per se, can be used in a manner likely to produce death or great bodily injury. In determining if an object not inherently deadly or dangerous is employed in such a manner, the trier of fact may consider the nature of the object, the manner in which it was used, and any other facts relevant to the issue. (People v. Perez (2018) 4 Cal.5th 1055, 1065, citing People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
Only objects that are extrinsic to the body qualify as deadly weapons. A defendant's bare hands, feet, or other body parts are not deadly weapons within the meaning of section 245. (People v. Perez, supra, 4 Cal.5th at p. 1065; People v. Aguilar, supra, 16 Cal.4th at pp. 1027, 1034.) Regular footwear does not constitute a deadly weapon although some footwear, such as hobnailed or steel-toed boots, is capable of being wielded in a way likely to cause death or serious injury within the meaning of section 245, subdivision (a)(1). (People v. Aguilar, supra, at pp. 1034-1035.) There was no evidence produced at the jurisdiction hearing that Desmond was wearing hobnailed or steel-toed boots when he kicked Maxey. Desmond's feet could not constitute a deadly weapon as found by the juvenile court. We therefore agree with the parties that count 4 and the related gang enhancement must be vacated.
Because count 4 must be vacated, Desmond's alternative argument that count 4 is a lesser included offense of count 5 is moot.
SUFFICIENCY OF EVIDENCE FOR COUNT 11
The juvenile court found true the allegation in count 11 that Desmond committed battery (§ 243, subd. (b)) on Velez. The parties agree that there is insufficient evidence to support the juvenile court's true finding on this count.
The record, including the video recording, establishes that Desmond took two flashlights from underneath the podium in his unit before running to Unit A after waving the flashlights at Torres. When Desmond ran into Unit A, he was holding a flashlight in each hand before joining in the assault on Maxey and kicking him in the back. Seconds later, other officers entered Unit A including Velez. Desmond and other minors retreated underneath the stairwell and then into cell 6. It did not appear Desmond gave up either flashlight upon entering the cell.
As officers approached the door of the cell, a flashlight was thrown out of the cell striking Velez in the left leg as he stood at the stairwell. Velez did not see who threw the flashlight. Garcia testified that he saw two minors, Desmond presumably one of them, hitting R.G. with flashlights. When Desmond and another minor exited the cell, he had a flashlight in his right hand and used it to strike Garcia on the left arm. Velez ended the assault by pepper spraying Desmond and the other minor.
Given this record, there was not sufficient evidence that Desmond threw a flashlight out of the cell toward Velez. Garcia testified that another minor also had a flashlight. Although Desmond exited the cell holding only one flashlight, there is no certainty who threw the flashlight from the cell, Desmond or another minor. The video of the incident depicts most of the action that occurred in Unit A in the area that the cells open into, but the video does not show what was happening inside cell 6. We therefore vacate count 11 and the related gang enhancement.
Desmond's alternative argument that the case has to be remanded for a finding by the juvenile court whether the section 186.22, subdivision (d) gang enhancement, a wobbler, is a misdemeanor or a felony is moot in light of our holding.
SUFFICIENCY OF EVIDENCE FOR COUNT 12
The juvenile court found true the allegation in count 12 that Desmond committed misdemeanor battery (§ 243, subd. (b)) on Lira. Desmond contends, and the People concede, that there was insufficient evidence to support the juvenile court's true finding on this count and the related gang allegation must be vacated. We agree with the parties.
Although Lira and Garcia testified that they were pepper sprayed by Desmond, the surveillance video indicates he took two flashlights from under the podium in Unit C and brought them to Unit A. Christopher grabbed pepper spray from the same podium in Unit C and proceeded to Unit A. While Maxey was on the ground being assaulted by other minors, Christopher pepper sprayed him. Lira entered Unit A and tried to assist Maxey by pepper spraying the minors attacking him. From the video recording, it is clear that Christopher, not Desmond, pepper sprayed Lira.
Furthermore, Desmond had not yet entered Unit A at the time when Lira was exchanging pepper spray with one of the minors. When Desmond entered Unit A, he was carrying a flashlight in each hand but momentarily moved back from the attacks on Maxey. Desmond then joined in the assault on Maxey by kicking him in the back before retreating toward cell 6. Soon after, the video shows Garcia pepper spraying Christopher on the opposite side of the stairwell from where Maxey was being attacked. Christopher sprayed pepper spray toward Garcia before retreating into cell 6. Neither Lira nor Garcia reviewed the security video prior to testifying. Lira admitted that she did not know which minors were assaulting Maxey, had never worked in the pod where the assaults occurred, and only knew one minor who was not Desmond or Christopher.
Because there is no evidence to support the juvenile court's findings that count 12 and the related gang enhancement were true, we vacate those findings.
Desmond's alternative argument that the case has to be remanded for a finding by the juvenile court whether the section 186.22, subdivision (d) gang enhancement, a wobbler, is a misdemeanor or a felony is moot in light of our holding.
DISPOSITION
The juvenile court's true findings on counts 2, 4, 11, and 12, as well as its true findings on the gang enhancements associated with each of these counts, are vacated. The court's remaining true findings are affirmed. The court's determination of Desmond's maximum term of confinement is reversed. The court's imposition of a term of confinement on count 3 and the related gang enhancement must be stayed pursuant to Penal Code section 654. On remand, the juvenile court shall recalculate Desmond's maximum term of confinement and forward this information to the appropriate authorities.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.