Opinion
A150817
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DARREN MICHAEL PETERS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR175262) MEMORANDUM OPINION
This appeal is appropriate for disposition by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Defendant, while in the process of trying to rob a jewelry store, assaulted employee Robert Porter with a pair of pliers. The beating continued after Porter was on the ground and incapacitated. Porter suffered a heart attack, had to be resuscitated at the scene, and required a defibrillator pacemaker as a result of the attack. Defendant was 17 years old at the time and was prosecuted as an adult.
Defendant was charged by amended information with attempted murder (count 1); attempted robbery (count 2); second degree commercial burglary (count 3); assault with a deadly weapon (count 4); assault by means of force likely to produce great bodily injury (count 5); conspiracy to commit robbery (count 6); and conspiracy to commit second degree burglary (count 7). He was convicted by a jury of counts 2 (Pen. Code, §§ 211, 664), 4 (§ 245, subd. (a)(1)), 5 (§ 245, subd. (a)(4)), and 6 (§§ 182, subd. (a)(1), 211), and acquitted of counts 1 and 3. Count 7 was dismissed. He was sentenced to six years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated. --------
On appeal, defendant contends (1) under recently enacted Proposition 57, his convictions should be conditionally reversed and the case remanded to the juvenile court to determine whether he is suitable for trial in adult court; (2) he cannot be convicted of both assault with a deadly weapon and assault likely to produce great bodily harm because they are the same offense; and (3) his sentence on the assault conviction should be stayed under section 654. The Attorney General does not take issue with defendant's first two contentions.
Proposition 57
Although defendant was a juvenile when he committed the crimes at issue, the prosecutor filed the criminal charges in superior court, as was then permitted under former Welfare and Institutions Code section 707, subdivision (d). (Former Welf. & Inst. Code, § 707, subd. (d)(1).) In November 2016, California voters enacted the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which prohibits "prosecutors from charging juveniles with crimes directly in adult court." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) Post-Proposition 57, "[i]f the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct . . . a 'transfer hearing' to determine whether the matter should remain in the juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult." (Lara, at p. 303; see Welf. & Inst. Code, § 707, subd. (a).) Proposition 57's prohibition against direct filing in the superior court applies retroactively to cases not yet final on appeal. (Lara, at pp. 308-309.) Since defendant's conviction is not yet final, his Proposition 57 claim has merit, as the Attorney General concedes.
Lara also specified the procedure we are to follow in ordering a reversal and remand: Defendant's convictions must be conditionally reversed, and the matter remanded for the juvenile court to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. (Lara, supra, 4 Cal.5th at pp. 310, 312-313.) "When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer [the] cause to a court of criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [the defendant] to a court of criminal jurisdiction because he is 'not a fit and proper subject to be dealt with under the juvenile court law,' then [his] convictions are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).) . . . On the other hand, if the juvenile court finds that it would not have transferred [him] to a court of criminal jurisdiction, then it shall treat [his] convictions as juvenile adjudications and impose an appropriate 'disposition' within its discretion." (Id. at p. 310, quoting People v. Vela (2018) 21 Cal.App.5th 1099, 1113, italics omitted.)
Multiple Assault Convictions
As the Attorney General also concedes, defendant cannot be convicted of both assault with a deadly weapon (count 4) and assault by means of force likely to produce great bodily injury (count 5), as count 5 "is a necessarily included offense" of count 4. Accordingly, the conviction on count 5 and the concurrent three-year sentence term imposed are ordered stricken. (See In re Jonathan R. (2016) 3 Cal.App.5th 963, 975.)
Staying Sentence under Section 654
Section 654 provides in 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).)
Plainly stated, section 654 prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Reyes-Tornero (2016) 4 Cal.App.5th 368, 376.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [¶] . . . [¶] If, on the other hand, defendant harbored, "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." ' " (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005 (Rodriguez).)
Whether section 654 " 'applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.)
Here, defendant entered the jewelry store and demanded " 'the fucking money and the jewelry.' " When Porter calmly told him " '[n]o,' " defendant said, "very aggressively and angry, 'Give me the fucking jewelry. Give me the fucking money.' " Defendant then went behind the counter and confronted Porter. Porter stood up, stepped back, and raised his arms to fend off an attack. Defendant began to assault Porter, and Porter "went down." Defendant continued to hit Porter.
Hearing the commotion, another employee, Kent Gardella, came from the back room after tripping the silent alarm. He saw defendant on top of Porter beating him on the head and back with a pair of pliers. According to Gardella, Porter was face down on the ground, and defendant was thrashing him—"it just kept going boom, boom, boom."
Gardella grabbed a ring mandrel ("a long metal bar" used to size rings) and twice threated to break defendant's legs if he did not stop hitting Porter, and defendant responded, " 'I hope you do, bitch.' " Gardella continued to try and hit defendant's legs. Defendant, in turn, tried to kick Gardella to fend him off. Gardella was eventually able to get defendant off Porter, and defendant ran to the door and out of the store. Porter had no recollection of the attack and spent three weeks in the hospital.
Defendant maintains his "assault on Mr. Porter was the force and fear element in the attempted robbery" and there was no "separate, gratuitous use of force," requiring that the sentence on the section 245 conviction be stayed under section 654. However, as the evidence recited above shows, the trial court had an ample basis for concluding defendant had time to reflect on and cease his violent beating of Porter.
Defendant first struck Porter when Porter calmly denied defendant's demands for money or jewelry. Defendant then continued to beat Porter long after Porter was incapacitated—conduct that can be viewed as separate and distinct from the attempted robbery. Defendant did not, for example, run behind the counter to obtain a key to a jewelry case; rather, he attacked Porter, who was not armed, without provocation, and after that, he repeatedly and gratuitously continued to beat Porter, even after Porter was flat on the ground and in no way a threat to the attempted robbery. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 190 ["gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not 'incidental' to robbery for purposes of . . . section 654"], disapproved on other grounds as stated in Ballard v. Estelle (9th Circ. 1991) 937 F.2d 453, 458, fn. 6.) In fact, defendant continued to strike Porter after Gardella tried to intervene, kicking Gardella several times in the process. Defendant only stopped when Gardella finally managed to hit defendant in the shins.
In short, defendant had an opportunity to reflect on and cease his brutal, assaultive conduct. Accordingly, the trial court did not err in refusing to stay the sentence on the assault conviction. (See Rodriguez, supra, 235 Cal.App.4th at pp. 1007-1008; People v. Hicks (2017) 17 Cal.App.5th 496, 514.)
DISPOSITION
The judgment is conditionally reversed for further proceedings in accordance with Proposition 57, and the case is remanded to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. If, at the transfer hearing, the juvenile court determines it would not have transferred defendant to a court of criminal jurisdiction, his criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date, and the juvenile court will conduct a dispositional hearing.
If, on the other hand, the juvenile court determines it would have transferred defendant to a court of criminal jurisdiction, the judgment shall be reinstated as of that date with regard to all convictions and enhancement findings except as to count 5. The conviction as to count 5 is reversed and the sentence as to that count is stricken. In all other respects, the judgment is confirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.