Opinion
B231358
12-01-2011
In re MATTHEW O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MATTHEW O., Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. KJ35714
APPEAL from a judgment of the Superior Court of Los Angeles County. Phyllis Shibata, Commissioner. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Minor and appellant, Matthew O. (minor), appeals from a judgment of the juvenile court ordering camp placement after the court sustained a petition filed pursuant to Welfare and Institutions Code section 602 (petition or section 602 petition). Minor contends that the juvenile court erred under Penal Code section 654 in setting a maximum possible term of confinement that combined the terms for both counts of the petition. We find no merit in minor's contention and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
The People filed a section 602 petition to declare minor a ward of the juvenile court alleging in count 1 that minor committed second degree robbery in violation of section 211. The petition further alleged in count 2 that minor made felony criminal threats against the same victim, Felipe C. (Felipe) in violation of section 422. It was initially alleged that both offenses were gang related pursuant to section 186.22, subdivision (b)(l)(B), but that allegation was dismissed at the outset of the adjudication hearing. Minor denied the allegations and the juvenile court heard the testimony of Felipe and Baldwin Park Police Officer Matthew Dehoog.
Felipe testified that in the afternoon of October 24, 2010, he was riding his skateboard on the Sierra Vista High School campus when he was approached by minor and another boy, Daniel, sharing a bicycle. While minor stood by, Daniel told Felipe to give him the skateboard or they would beat Felipe. Frightened, Felipe handed his skateboard to Daniel who handed it to minor. Daniel then ordered Felipe to give his cellular phone to Daniel or he would bang Felipe's head with the skateboard. Thinking he would be beaten if he did not comply, Felipe handed over the cellular phone. Before leaving with minor, Daniel told Felipe not to tell anyone what happened or Daniel would find him. This statement also frightened Felipe. Minor said nothing throughout the incident. Instead, he stood approximately four feet away, holding an iPod but not wearing earphones.
Officer Dehoog later identified the other boy as Daniel P. (Daniel).
Officer Dehoog testified that he went to the high school soon after the incident and spoke to Felipe, who appeared frightened, shaking and stuttering. Felipe told him what had happened, and said that the second threat Daniel made was, "Give me your cell phone or I'm gonna knock your ass out with this skateboard." After speaking to Felipe, Officer Dehoog searched the area and located minor and Daniel on a residential sidewalk. Minor was riding a skateboard and Daniel was on a bicycle. One of the boys yelled to someone in a nearby house, "The cops got me. Take my cell phone," as he threw the cellular phone toward the house. Officer Dehoog retrieved the phone and Felipe later identified both it and the skateboard as his.
The juvenile court found the allegations to be true and sustained both counts of the petition. On March 3, 2011, the juvenile court declared minor a ward of the court, removed him from his home and committed him to the custody of the Probation Department. Minor was placed in a short-term camp community program for three months. The court set the maximum term of confinement at five years eight months with four days predisposition credit. Minor filed a timely notice of appeal.
DISCUSSION
Minor contends that the juvenile court erred by failing to stay sentence on count 2 pursuant to section 654. He argues that the threats made by Daniel were committed during a single course of conduct with the same criminal objective: to rob the victim.
Welfare and Institutions Code section 726, subdivision (c) provides in relevant part that when the juvenile court removes a minor from the physical custody of his or her parent or guardian "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. [¶] . . .[¶] If the court elects to aggregate the period of physical confinement on multiple counts . . . , the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . ."
Section 1170.1, subdivision (a) provides that, subject to section 654 or as otherwise provided by law, the subordinate term, if run consecutively to the principal term, must be one-third the middle term provided for the offense. Section 213, subdivision (a)(2) sets the maximum term for second degree robbery at five years. The middle term for criminal threats is two years and one-third of that term is eight months. (§§ 18, 422.) Thus, the juvenile court set minor's maximum period of confinement at five years eight months.
"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." (§ 654, subd. (a).) Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208.) A course of criminal conduct is indivisible where all the offenses are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 18.) A defendant's intent and objective are factual questions for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) The trial court's ruling will be upheld if supported by substantial evidence. (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
The juvenile court did not expressly rule that the criminal threats were made with a separate intent or objective as the section 654 issue was not raised below. Nor did the juvenile court specify which of Daniel's threats qualified as a criminal threat. The court held: "As to count 2, it does appear there was the criminal threat made. The witness indicated he was scared. The officer . . . indicated that the victim was scared. The threat was . . . certainly . . . meant to be taken as a threat, and it . . . conveyed the immediate prospect of execution. So the court does find that all the elements of [section] 422 have been met."
The issue has not been forfeited; it may be raised on appeal without objection in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.)
The prosecution made no argument with regard to count 2. The thrust of defense counsel's argument was that the evidence was insufficient to show that minor aided and abetted Daniel's crimes as minor stood four feet away and did not speak. Defense counsel did not discuss the nature of the threats made by Daniel.
A criminal threat is a statement, willfully made with the specific intent that it be taken as a threat, threatening to commit a crime which will result in death or great bodily injury to another person "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 . . . ." (§ 422.)
Without distinguishing the threats made in this case, minor argues that Daniel threatened Felipe with the single intent and objective of robbing him of his skateboard and cellular phone. In the absence of authority involving criminal threats and robbery, minor relies on the rule that where assaultive conduct is part of the taking of a victim's property in the course of a robbery, the perpetrator is said to have harbored a single intent and objective and only one punishment is permissible under section 654. (See, e.g., In re Jesse F. (1982) 137 Cal.App.3d 164, 171; People v. Galvin (1957) 148 Cal.App.2d 285, 296.) Minor argues that like the assaults in those cases, Daniel's threats were intended to force Felipe to comply with his demands to hand over Felipe's property. Minor points out that the theft of several articles at one time is a single offense (People v. Dominguez (1995) 38 Cal.App.4th 410, 420), and concludes that because a threat preceded each demand in this case, one for the skateboard and another for the cellular phone, the threats were comparable to two assaults accomplishing one theft of several articles.
We agree that the assault/robbery comparison is apt. However, minor's argument assumes that there were only two threats made against Felipe. Minor makes no effort to analyze the third threat made after Daniel and minor took Felipe's property just before leaving the scene. Daniel told Felipe not to tell anyone or he would find him. There can be little doubt that Daniel meant this statement as a threat since a threat, by its nature, "is made to convince the victim to do something 'or else.'" (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)
Standing alone, a threat to find someone if that person reported a crime does not directly convey a threat to do bodily harm. However, the circumstances, not just the words, must be considered to clarify the meaning of the threat. (In re George T. (2004) 33 Cal.4th 620, 635.) For example, in People v. Martinez (1997) 53 Cal.App.4th 1212, 1218, the words, "I'm going to get you," were found to be a criminal threat because defendant yelled them as he angrily rushed at the victim and placed his face very close to the victim's face. Daniel's words to Felipe clearly implied a threat to inflict great bodily injury. Daniel had just robbed Felipe and threatened to beat him, bang his head, and knock his ass out. The first threat was that they would beat him, and minor was standing nearby. After that, Daniel handed the skateboard to minor and threatened to use it as a weapon. Thus, Felipe could expect both Daniel and minor to find him and beat him if he reported the crime. Under the circumstances of this case, "Don't tell or I'll find you" is comparable to "I'm going to get you," the threat in Martinez.
The statement satisfied other elements of section 422, as well. The circumstances demonstrated Daniel's specific intent that his words be taken as a threat to inflict great bodily injury on Felipe if he reported the crime. The statement was "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" (§ 422); and Felipe was frightened by the words, apparently believing them. Felipe's fear was sustained; he was still visibly shaking when he spoke to Officer Dehoog sometime later.
The "immediate" element does not foreclose threats to inflict harm in the future. (People v. Melhado, supra, 60 Cal.App.4th at p. 1537-1538.) Further, a threat need not necessarily communicate a time or precise manner of execution; it is sufficient under section 422 if the defendant intended the victim to receive and understand the threat, and the threat was "such that it would cause a reasonable person to fear for his or her safety or the safety of his or her immediate family. [Citation.]" (People v. Wilson (2010) 186 Cal.App.4th 789, 806.)
The third threat was not made in order to obtain Felipe's property. That had already been achieved. Once a robbery is essentially complete, an assault committed "with the intent and objective of preventing the victim from sounding the alarm" manifests an intent and objective "separate from, not incidental to, the robbery. [Citations.]" (People v. Coleman (1989) 48 Cal.3d 112, 162-163.) Minor agrees with this principal, but distinguishes it by referring to the wrong threat.
Respondent also refers to the wrong threat, arguing that Daniel's second threat, "I'm gonna knock your ass out," was made pursuant to a separate intent and objective because it was unnecessary, since Felipe had already complied by giving him the skateboard and would no doubt continue to comply to hand over his property without further threat. Respondent compares these facts with those in People v. Phan (1993) 14 Cal.App.4th 1453, 1466, where there were two assaults during the course of one robbery. As minor observes, Phan involved the multiple victims exception to section 654, which is not applicable here. (See People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142.)
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We must presume that the juvenile court did not base its ruling on the threats that would render the judgment incorrect. (See In re Julian R. (2009) 47 Cal.4th 487, 498-499.) Next, we conclude that substantial evidence supports a finding that the intent and objective in making the threat to find Felipe if he told anyone, the third threat, was separate from the first two threats. We thus conclude that the juvenile court found count 2 true based upon the third threat, made with a separate intent and objective. Section 654 was therefore inapplicable, and the juvenile court did not err.
DISPOSITION
The judgment of the juvenile court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________, J.
CHAVEZ
We concur:
_______________, P. J.
BOREN
_______________, J.
ASHMANN-GERST