Opinion
F079804
06-30-2020
In re O.E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.E., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. 19CEJ600088-2)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Gregory T. Fain, Judge. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
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Appellant O.E. assaulted another teen after he refused to give up his iPhone. Eventually, appellant took the iPhone. Appellant continued to assault the teen until he gave up the passcode to the iPhone and then left.
Appellant contends the assault was incidental to the robbery and therefore Penal Code section 654 prohibits double "punishment" here. We conclude the trial court's implied finding to the contrary is supported by substantial evidence and affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Teenager A.R. testified that he went to the swimming pool at Edison High School at around 10:30 p.m. on June 12, 2019. A.R. was accompanied by his brother and his brother-in-law. Initially, the three of them were the only ones at the pool. Some 30 minutes later, a group of five "guys" came to the pool area. The group left, but returned with 10 or 12 additional people, including appellant.
A.R. knew that security would be coming soon, so he began to leave around 11:20 p.m. Before getting to the car, A.R. heard people say, "[C]atch that fade" and then saw them punch his brother-in-law. A.R. saw "the whole group" - including appellant-begin to come after him. A.R. heard appellant say, "Give me that iPhone." A.R. and his brother ran. Appellant caught up and kicked A.R.'s brother. A.R. observed that appellant had on an "ankle bracelet."
Appellant told A.R. to give him the iPhone, to which A.R. responded, "[F**]k off." Appellant then tripped A.R., causing him to fall. Appellant began punching A.R. and stomping his head. Another assailant also kicked the back of A.R.'s head. Appellant then reached into A.R.'s pocket and took his phone. Appellant asked A.R. for the password to his iPhone. Appellant kept kicking A.R. As A.R. kept getting kicked and punched, he began to get dizzy and therefore told appellant the password. Appellant and the other assailant left once A.R. gave them the password.
A.R.'s brother and brother-in-law testified to similar effect.
A.R. identified appellant out of a six-person photographic lineup about six days after the assault.
Appellant's Version of Events
Appellant told a police detective that one of the individuals at the pool struck him with a glass bottle. Appellant admitted that he then ran after the person and tripped them. Appellant claimed he was not involved in the robbery.
Procedural History
The juvenile court sustained the district attorney's allegations that appellant committed second degree robbery (count 1; § 211), assault by means likely to produce great bodily injury (count 2; § 245, subd. (a)(4)), and misdemeanor battery (count 3; § 242.) The probation officer recommended a maximum period of confinement of six years six months, based on the following: a base term of five years for count 1 (robbery); plus four years on count 2 (assault with great bodily injury), only one year of which would be imposed consecutively to count 1; plus six months on count 3 (misdemeanor battery), only two months of which would be imposed consecutively; plus another one year for an offense listed in a separate petition, four months of which would be consecutive.
At the dispositional hearing, the juvenile court ordered appellant serve 180 days at the Juvenile Justice Campus and remain a ward of the court under supervision of the probation department. The court found "[t]he crimes and objectives were independent of one another." The court imposed what it called "consecutive sentences" and set appellant's maximum period of confinement at six years six months.
DISCUSSION
I. The Indivisible Transaction Rule Prohibits Double "Punishment"
Appellant argues he cannot be punished for both robbery (count 1) and assault by means of force likely to produce great bodily injury (count 2) pursuant to section 654.
A. Law
" ' "[S]ection 654 of the Penal Code proscribes multiple punishment for a single 'act or omission which is made punishable' by different statutes, i.e., a single criminal act or omission." ' [Citations.]" (In re Calvin S. (2016) 5 Cal.App.5th 522, 533.) Courts have expanded this prohibition on double punishment to include circumstances " ' "where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.]" ' " (Ibid.)
" ' "Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' [Citation.]" (In re Calvin S., supra, 5 Cal.App.5th at p. 533.) "This prohibition against multiple punishment applies to a juvenile court's aggregation of periods of confinement on multiple counts. [Citations.]" (Ibid.)
"When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. [Citation.] 'A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 129.) We review the court's determination on section 654 issues "in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
B. Analysis
A finder of fact " 'may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses ....' " (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.) Here, appellant claimed one of the individuals at the pool struck him with a glass bottle. Appellant admitted that he then ran after the person and tripped him. A.R. testified that he was the person appellant ran after and tripped. Appellant denied being involved in a robbery. Thus, under appellant's own version of events, his physical engagement with the victim was for a reason apart from any robbery - it was a response to the victim allegedly striking him first.
The juvenile court could have accepted appellant's claim that he tripped A.R. during an altercation unrelated to any ongoing or planned robbery (while also rejecting appellant's claim he was not involved in any subsequent robbery). This would be consistent with the fact that appellant also assaulted A.R.'s brother, even though he was not the one with the phone. Furthermore, the court could have accepted A.R.'s testimony that appellant's physical engagement went beyond tripping to include punching and stomping. If so, the court could reasonably conclude that the assault and robbery were not committed pursuant to a single objective. We affirm the court's implied finding to that effect.
Cases like People v. Flowers (1982) 132 Cal.App.3d 584 (Flowers), on which appellant relies, are inapposite. In that case, the defendant struck the victim, knocking him unconscious. (Id. at p. 587.) The defendant then choked the victim and tore off his wristwatch. (Id. at pp. 587-588.) The defendant proceeded to strike the victim with six to eight blows before leaving. (Id. at p. 588.) Afterwards, the victim was missing money from his pockets, his wristwatch, his shirt and a suitcase. (Ibid.)
The People argued in Flowers that the defendant possessed distinct and independent objectives to (1) rob and (2) assault the victim. (Flowers, supra, 132 Cal.App.3d at p. 589.) This court concluded, however, that it seemed "clear" that the "whole purpose of the confrontation ... was to commit a robbery." (Ibid.)
In the present case, however, there is evidence that appellant himself attributed the beginnings of the assault to an objective other than robbery. There was no equivalent evidence in Flowers.
DISPOSITION
The disposition order is affirmed.