Opinion
A149305
06-30-2017
In re D.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J13-01125)
Minor D.R. appeals from the juvenile court's jurisdictional and dispositional orders, issued in a wardship proceeding conducted under Welfare and Institutions Code section 600 et seq. Minor argues the juvenile court punished her twice for indivisible conduct committed with a single objective in violation of Penal Code section 654 and that there was insufficient evidence to support the court's finding true the allegation that she committed felony vandalism that caused in excess of $400 of damage to a police car. We disagree with her first argument and agree with her second. Therefore, we affirm the orders appealed from, except we reverse the court's finding that minor committed felony vandalism and remand this matter to the juvenile court with the instruction that it sustain the allegation as misdemeanor vandalism.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
I.
The Wardship Petition
In June 2016, the Contra Costa County District Attorney filed a wardship petition regarding minor. As he amended the petition the next month, the district attorney alleged that minor, then age 15, committed four counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); counts 1 to 4), three counts of felony criminal threats (id., § 422; counts 5 to 7), two counts of felony vandalism (id., § 594, subd. (b)(1); counts 8 and 11), and one count each of obstructing or resisting an executive officer (id., § 69; count 9), threatening a public officer or school official (id., § 71; count 10), misusing teargas (id., § 22810, subd. (g)(1); count 12) and possessing teargas as a minor (id., § 22810, subd. (d); count 13). The district attorney alleged minor had committed the teargas-related acts on July 6, 2016, and the other acts on May 27, 2016, the incident that is the focus of this appeal.
II.
The Jurisdictional Hearing
In July 2016, the court held a contested jurisdictional hearing, after which the court ruled regarding nine of the petition counts. We summarize the evidence presented at the hearing that is relevant to this appeal.
During the hearing, the parties reached a negotiated disposition regarding counts 12 and 13. As a result, the court found the possessing teargas as a minor allegation, count 13, was true and dismissed the misusing teargas allegation, count 12. Pursuant to minor's motion under section 701.1 after the People's presentation of their case-in-chief, the court dismissed counts 2, 3 and 5; reduced count 8's felony vandalism allegation to a misdemeanor; and struck one officer's name from count 10. The court denied minor's motion regarding the other counts. As a result, the hearing proceeded regarding eight counts, those being counts 1, 4, 6, 7, 8, 9, 10 and 11. Thus, the court, including its ruling on count 13 upon the parties' negotiated disposition of it, ruled on a total of nine counts.
A. Evidence of Criminal Threats and Assault
Lorie Sartorious testified that she was the program supervisor manager at Harmony House in Concord, California. Harmony House provided temporary housing for children who social workers referred to it. At about 10 a.m. on May 27, 2016, Sartorious was working at Harmony House with Isabel Alvarez, Harmony House's program supervisor. Minor was staying temporarily at Harmony House, as was another minor, Nick, aged 14.
Sartorious testified that minor became agitated and angry after waking up, having breakfast and being offered the chance to take a shower. She slammed doors, hit things, talked under her breath, yelled and was "boisterous." According to Sartorious, minor said, "I'm going to pack my things; I'm getting out of here," and started to pack her belongings and items that did not belong to her and did not talk further about what disturbed her.
At some point, minor left a "teen room" and entered a front room, about 12 feet by 12 feet in size, where Sartorious, Alvarez and Nick were located. Minor, holding a flat, ten-inch long, one-inch wide wooden stick that displayed in raised letters the words, "live, love and laugh," walked over to a dining table and struck a fruit bowl with the stick. The words broke off the stick, exposing screws on the stick. Minor moved within an arm's distance of Sartorious, raised the stick over her head at a 90-degree angle and lunged at Sartorious as she said, "You're scared of me, aren't you?" Nick, standing next to Sartorious, said something; minor went over to the dining table and said, " 'So you're scared of me?' " She hit the fruit bowl with the stick ten times, shattering the bowl, and picked up a stray orange and threw it towards Sartorious and Nick.
Sartorious further testified that Nick spoke and moved towards minor, but Sartorious kept Nick immediately behind herself. Minor lunged forward holding the stick over her head and out as she said, "You're scared of me, you're scared of me." Sartorious and Nick backed away. Minor said "I'm going to kill you" three times while making eye contact with Sartorious, threatened to kill Nick and threatened to kill Alvarez, who was six to ten feet away. Sartorious and Nick constantly moved to avoid minor.
According to Sartorious, minor then threw the stick across the room away from Sartorious, left the room and picked up a one-piece vacuum cleaner that was in a hallway. Sartorious said minor returned to the front room and swung the vacuum by its handle "at us like a bat and we're like a ball. She's swinging it. We're running all over the room to get away from her." As Sartorious yelled to call 911, minor swung the vacuum while saying, " 'I'm going to kill you; I'm going to kill you.' " At one point, Sartorious jumped onto the floor to avoid minor hitting her with the vacuum, which came right next to Sartorious's face, and the vacuum hit Sartorious's shoulder. After swinging the vacuum about five times, minor turned around and flung it down the hallway into a door, breaking the vacuum.
Sartorious testified that she was scared minor was going to hurt her and others in Harmony House. However, minor did not physically injure anyone that day. Sartorious said the incident continued for at least 20 minutes.
Isabel Alvarez, a program coordinator at Harmony House, testified that she was present for the May 27, 2016 incident with minor. The "tension was very high in the home" after minor had walked out of a bathroom aggressive and angry, apparently unable to find an item she expected to use in the bathroom. Minor started yelling and being "very unpleasant" with staff. Alvarez was in a room with Sartorious and Nick when minor walked in carrying the "live, love, laugh" stick. Minor broke a fruit bowl with the stick, scattering fruit and letters on the stick everywhere. Minor made threats to everyone in the room, saying, " 'I will kill you' " and " 'I'm going to kill them all,' " which terrified Alvarez. Minor started to aim the stick with its exposed nails at Sartorious and Nick as Alvarez called 911, but did not touch anyone with the stick. However, Alvarez testified, minor "ended up dropping [the stick] and looking for her own stuff because she knew I had called 911, and they were on their way. And she wanted to leave the building because she did say that she did know the system, and she would be back in three days." Alvarez also saw minor enter the room with a vacuum, and heard the vacuum hit a door when minor threw it. Alvarez recalled the entire incident went on for approximately an hour, and said it could have been a little bit longer.
B. Evidence of Vandalism
There was also evidence presented at the hearing that on the day of the incident, Concord Police Officer Michele Ligouri went to Harmony House to investigate a report of a disturbance involving a female minor who had been throwing things in the house. At Harmony House, Ligouri saw minor, who started to run away, detained her and put her in the back of a police car. Among other things, minor kicked a back window of the police car, shattering the glass and pushing out the window frame. Two photos showing this damage were admitted into evidence, copies of which are contained in the appellate record.
At the conclusion of the jurisdictional hearing, the court, having already sustained the allegations in count 13, also sustained the allegations in counts 1 (assault on Nick), 4 (assault on Sartorious), 6 (criminal threats to Alvarez), 7 (criminal threats to Sartorious), 8 (misdemeanor vandalism on property inside Harmony House), 9 (resisting an executive officer), 10 (threatening a public officer or school official), and 11 (felony vandalism on the police car).
At the subsequent dispositional hearing, the court ruled that minor, who had previously been declared a dependent of the court pursuant to section 300, subdivision (g), would instead be treated as a ward under section 600. The court ruled that sustained counts 8, 9, 10 and 13 were misdemeanors and the remaining sustained counts were felonies, ordered out-of-home placement for minor and determined that her maximum confinement time was eight years four months or until she reached the age of 21, whichever occurred first. This maximum confinement time appears to have been based on the court's imposition of a term of confinement for each offense, including counts 4 and 7, which both related to minor's actions against Sartorious in the front room of Harmony House on May 27, 2016.
Minor asserts that the trial court, although it did not explain the bases for its calculation of her maximum confinement time, appears to have reached this calculation by setting four years for violation of Penal Code section 245, subdivision (a)(4) (assault) as a base term, adding one third of the middle term for the remaining felonies and 4 months each for the misdemeanors, bringing the total term to 8 years and 4 months. The People do not challenge minor's assertion.
Minor filed a timely notice of appeal from the court's jurisdictional and dispositional orders.
DISCUSSION
I.
The Juvenile Court's Order of Separate Terms of Confinement for Counts 4 and 7 Did
Not Violate Penal Code Section 654 .
Minor first argues that the juvenile court erred by setting separate terms of confinement for counts 4 and 7 because they were based on indivisible conduct against Sartorious committed with a single objective and, therefore, separate terms were prohibited under Penal Code section 654. We disagree.
Penal Code section 654 states in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654, subd. (a).) Generally under Penal Code section 654, " ' "a person may be convicted of, although not punished for more than one crime arising out of the same act or course of conduct. '. . . [A] single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged.' " ' [Citations.] 'Section 654 bars separate punishment for multiple offenses arising out of a single, indivisible course of action.' [Citation.] Its purpose is 'to ensure that a defendant's punishment will be commensurate with his culpability.' " (People v. Deegan (2016) 247 Cal.App.4th 532, 541.) "This prohibition against multiple punishment applies to a juvenile court's aggregation of periods of confinement on multiple counts." (In re Calvin S. (2016) 5 Cal.App.5th 522, 532-533.)
In determining the applicability of Penal Code section 654, courts consider whether a defendant had one or multiple criminal objectives. (People v. Conners (2008) 168 Cal.App.4th 443, 458.) "Thus: '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. [Citation.] 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.' " (Ibid.) " 'It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.' " (People v. Hicks (1993) 6 Cal.4th 784, 789.) " 'Whether the facts and circumstances reveal a single intent and objective within the meaning of Penal Code section 654 is generally a factual matter; the dimension and meaning of section 654 is a legal question.' " (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)
A defendant may challenge a sentence on appeal based on Penal Code section 654 without first objecting in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.) If a trial court made no express findings, "a finding that defendant's crimes were divisible inheres in the judgment. If that implied finding is supported by the evidence, it must be upheld." (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) "We apply the substantial evidence standard of review to the trial court's implied finding that a defendant harbored a separate intent and objective for each offense." (People v. Dowdell, supra, 227 Cal.App.4th at p. 1414.)
The court found minor committed assault by means of force likely to produce great bodily injury (count 4) and criminal threats (count 7) against Sartorious. Assault is a general intent crime that "only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
The crime of criminal threats is committed by "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety." (Pen. Code, § 422, subd. (a).) "In determining whether conditional, vague, or ambiguous language constitutes a violation of [Penal Code] section 422, the trier of fact may consider 'the defendant's mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant.' " (People v. Wilson (2010) 186 Cal.App.4th 789, 808.)
Here, minor contends the juvenile court itself "acknowledged" that her assault and criminal threats were part and parcel of indivisible conduct committed with a single objective when it denied her motion to dismiss the People's criminal threats count, made under section 701.1 after the People's presentation of their case-in-chief. The court found there was an objectively reasonable basis for Sartorious's actual fear for her well-being and life—an element of a criminal threats crime—because minor, while threatening to kill Sartorious, was also "swinging objects"—an apparent reference to the stick and vacuum - at Sartorious. Therefore, minor argues, the court recognized that "[t]he assault . . . satisfied an element of the criminal threat allegation, and was thus indivisible from that threat allegation."
We disagree with minor that the juvenile court's ruling on her section 701.1 motion regarding count 7 constituted a finding that all of her acts of assault and criminal threats against Sartorious were indivisible. The court was merely stating its view that there was an objective basis for Sartorious's fear at some point during the incident, which by Sartorious's own account occurred over an extended period of time that lasted for at least 20 minutes.
Further, substantial evidence supports the court's implied finding that minor made a criminal threat and an assault against Sartorious during this extended incident involving separate objectives. The testimony of Sartorious and Alvarez indicates that minor first raised a stick with exposed screws above her head, held it out and lunged at Sartorious as she taunted Sartorious that she was in fact scaring, and intended to kill, Sartorious. Minor also indicated around the time she threw the stick aside that she was intending to leave Harmony House. This evidence together is substantial evidence that minor committed the crime of criminally threatening Sartorious with the intent to scare Sartorious and/or leave the home up to the point that she threw the stick aside.
However, minor, rather than leave the home, then went into a hallway, retrieved a vacuum and returned to the front room instead. At that point, minor began swinging the vacuum like a baseball bat, at one point swinging it so close to Sartorious's head that Sartorious felt it necessary to go to the floor. Even then, Sartorious could not avoid being hit on the shoulder by the vacuum minor wielded against her. While minor continued to threaten to kill Sartorious, the court could have reasonably found minor made these additional threats for a distinctly separate objective from her previous ones. That is, the court could have concluded these latter threats were part and parcel of minor's separate attempt to assault Sartorious with the vacuum after minor had thrown aside the stick. Therefore, the court did not err in imposing separate periods of confinement for counts 4 and 7. Minor's argument is without merit.
II.
There Was Insufficient Evidence to Support the Juvenile Court's Finding that Minor
Committed Felony Vandalism.
Minor also challenges the juvenile court's finding regarding count 11 that minor committed felony, rather than misdemeanor, vandalism regarding the damage she caused to the back window of the police car. She contends there is insufficient evidence to support this finding and, therefore, the court's finding should be reduced to misdemeanor vandalism. We agree.
The crime of vandalism can be either a felony or misdemeanor depending on the value of property destroyed. Vandalism is a felony "[i]f the amount of . . . damage" is $400 or more; it is a misdemeanor if the value is less than $400. (Pen. Code, § 594, subds. (b)(1), (b)(2)(A); In re Kyle T. (2017) 9 Cal.App.5th 707, 709.) Penal Code section 594 does not define how to determine the "amount of damages." However, courts have looked to the cost of repair as a measure of damage. (See, e.g., In re Kyle T., at p. 714 [noting that under Penal Code section 594 felony vandalism might be determined based on "a contractor's estimate of the cost to repair the actual damage that [defendant] caused"].)
In reviewing minor's claim of insufficient evidence, we review the whole record in the light most favorable to the People, and presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The proper test is whether any rational trier of fact could find minor guilty beyond a reasonable doubt. (People v. Barnes (1986) 42 Cal.3d 284, 303.) So long as there is substantial evidence supporting the judgment, our own opinion that the evidence might also be reconciled with contrary findings does not warrant reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1213.)
The juvenile court stated its view of the amount of vandalism damages minor caused to the police car when it denied her motion under section 701.1 to dismiss count 1, which alleged minor had committed felony vandalism. The People had presented two photographs of the damage to the window of the police car, which were admitted into evidence. Minor's counsel argued the count should be reduced to a misdemeanor because "there's been no testimony as to the amount of damage [and] there would be no way to know whether or not from this evidence . . . beyond a reasonable doubt that it was more than $400." The People argued the photographs of the shattered window and bent frame were sufficient evidence of damage in excess of $400.
The court denied minor's motion regarding count 11 based on its view that it was "common knowledge" that the cost of repairing the police car exceeded $400. The court stated, "A complete window frame bent out and a shattered window, in this age, over a 100 years since the automobile was invented and the common knowledge that everyone has of the price of vehicles—I can see this is a relatively new vehicle—and the damage described it is more than proof beyond a reasonable doubt that the damage exceeds $400. There's no place anyone could have that repair done for less than $400. It makes a vehicle that's worth multiple thousands of dollars unusable for its purpose. [¶] So the damage clearly is proven beyond a reasonable doubt to me to be a felony . . . ."
The parties have not provided law to us regarding the parameters of "common knowledge" that a fact finder may rely on in such a circumstance. We have found in our own research that our Supreme Court has quoted another jurisdiction approvingly for the general proposition that " '[s]tatements of common knowledge are an exception to the rule against arguing facts outside the evidence.' " (People v. Monterroso (2004) 34 Cal.4th 743, 784, quoting Gomez v. State (Tex.App. 2000) 35 S.W.3d 746, 748.) And appellate courts have applied "common knowledge" now and again when they have concluded laypersons have common knowledge of a matter. (See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732 [concluding as a matter of law that a defect in the sidewalk was not dangerous despite contrary expert testimony below because "it is well within the common knowledge of lay judges and jurors just what type of defect in a sidewalk is dangerous"], followed in Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389.) Also, our research indicates that in California law, a "common law exception" to the need for expert evidence has been applied to situations in medical malpractice actions "in which . . . a layperson 'is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.' " (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)
We conclude from this case law review that at a minimum, knowledge must be commonly known to laypersons, rather than require specialized knowledge, to be considered "common knowledge" that a fact finder may rely upon. Based on this, we conclude there is not sufficient evidence to support the juvenile court's conclusion that it was "common knowledge" that the cost of repair of the police car as depicted in the two photographs exceeded $400 dollars. We reach this conclusion because the photographs do not make apparent the cost to repair the police car, and the police car was not established to be that of an individual who would seek its repair in a typical automobile repair business, which was an assumption implicit in the juvenile court's reasoning. Rather, the Concord Police Department, a government entity, used the car, and we can reasonably assume the department regularly uses a large number of police cars. It is hardly common knowledge to a layperson how the department would have repaired a vehicle with the damage minor caused in this case. For example, the department could have had its own repair facilities or a way of repairing its vehicles that cost less than what a similar repair would cost an individual. We do not know and neither does the average layperson. In other words, under the circumstances of this case, it is speculation, rather than common knowledge, to conclude the cost to repair the damage to the police car caused by minor was $400 or more. Therefore, the juvenile court's sustaining of count 11 as a felony was supported by insufficient evidence. The court's finding must be reduced to that of a misdemeanor.
We offer no opinion regarding whether the evidence here would be speculative if the cost of repairing the vehicle were to be paid by an individual. --------
DISPOSITION
The orders appealed from are affirmed, except that we reverse the juvenile court's sustaining of count 11 as felony vandalism and remand this matter to the juvenile court with instructions that it sustain count 11 as misdemeanor vandalism.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.