Opinion
F074963
11-03-2017
In re S.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.R., Defendant and Appellant.
Elizabeth J. Smutz, 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, Julie A. Hokans and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ600695-1)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Elizabeth J. Smutz, 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, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
The court adjudged appellant S.R. a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging her with second degree robbery (Pen. Code, § 211/count 1), assault with a deadly weapon (§ 245, subd. (a)(1)) and a great bodily injury enhancement (§ 12022.7, subd. (a)) in count 2. On appeal, appellant contends: (1) the court erred by its failure to determine her maximum term of confinement (MTC); and (2) section 654 requires that the term for the robbery be stayed in calculating her MTC. We find these contentions meritorious, modify the judgment accordingly, and affirm as modified.
All further statutory references are to the Penal Code unless otherwise noted.
FACTS
On September 26, 2016, at approximately 8:12 p.m., Andric Pimentel got off a bus on Shaw Avenue in Fresno, California, to buy something to eat at a Burger King. As he walked across the street, he had his cellphone in his right hand and was about to text his wife when appellant ran up by him on his left side, grabbed the phone, and ran away. Pimentel did not have a good grip on the phone when appellant grabbed it, and the only force she used to take the phone was the force she used to pull it out of his hand. Pimentel did not have time to react.
Appellant also took a debit card and Pimentel's license that were in the back of the case the cellphone was in.
Appellant ran down the street and then down a driveway towards a Toys "R" Us store with Pimentel in pursuit. A red SUV pulled over and Pimentel told the driver his cellphone had just been stolen before he continued pursuing appellant even though he had lost sight of her. Pimentel walked briskly to Toys "R" Us and was allowed to call his wife to tell her to lock his cellphone. He then left the store and walked toward a Grocery Outlet store. Pimentel saw appellant exiting that store and approached her as she was at the threshold of the entrance. Appellant became anxious when she saw Pimentel and told him to stay away from her. Pimentel told appellant to return the cellphone and he "would go away." Appellant then held a knife with a three and one-half inch blade in her left hand down at her side as she told him to stay away or she would stab him. Pimentel pulled out his own knife and convinced appellant to put her knife away. Pimentel started walking toward her and again told her to return his cellphone. Appellant looked like she was going to run past Pimentel, so he grabbed her in a bear hug and tried to wrestle her back into the store. As he struggled with appellant and yelled for employees to call the police, appellant slipped out of his hold and cut him on the face with her knife. Pimentel continued to try to hold onto appellant but she was able to slip out and flee.
The gash he received required stitches. --------
At approximately 8:26 p.m., a police officer detained appellant at gunpoint a block away from the Grocery Outlet and she was subsequently arrested. Five to six minutes elapsed between the time appellant took Pimentel's phone and when she stabbed him.
At the close of the prosecution's case, defense counsel moved for dismissal of the robbery charge. In opposition to the motion, the prosecutor argued that the force used to accomplish the robbery was the slashing of the victim's face. After the court denied the motion, during closing arguments the prosecutor again argued that the slashing of the victim's face was the force appellant used to commit the robbery and that she did so to retain possession of the cellphone. In sustaining the robbery charge, the court found that by slashing the victim, appellant used force to retain the cellphone.
On January 3, 2017, the court removed appellant from the physical custody of her legal guardian and committed her to juvenile hall for a year, but it did not declare appellant's MTC. Although the court signed a document that contained the probation department's recommendation of an MTC of eight years, it did not indicate on the appropriate part of the document that it was adopting the probation department's recommended MTC.
DISCUSSION
Appellant contends the court erred by its failure to make an oral pronouncement of her MTC. She further contends section 654 prohibits the use of any term for her robbery offense in calculating her MTC. Thus, she requests that her MTC be modified to seven years. We agree and we will modify appellant's dispositional order accordingly.
"If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] Section 602, 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." (Welf. & Inst. Code, § 726, subd. (d)(1).) " 'Physical confinement' [includes] placement in a juvenile hall[.]" (Id., subd. (d)(5).)
Since the court removed appellant from the physical custody of her guardian when it committed her to juvenile hall, it erred by its failure to calculate her MTC.
Moreover, section 654, subdivision (a) provides, 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."
"Section 654 prohibits multiple punishment for a single act that violates different provisions of law. (People v. Jones (2012) 54 Cal.4th 350, 358; People v. Mesa (2012) 54 Cal.4th 191, 199 [defendant cannot be punished twice for single act even if defendant harbored multiple criminal objectives].) ' "It is the singleness of the act and not of the offense that is determinative." Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once.' " (People v. Mitchell (2016) 4 Cal.App.5th 349, 352-353 (Mitchell).) Section 654 applies to juvenile court dispositions. (In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3.)
" 'Robbery is the ... taking of ... property ... accomplished by means of force or fear.' (§ 211.) Accordingly, 'to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear.' " (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) This includes the use of force to retain possession of the property. (People v. Hill (1998) 17 Cal.4th 800, 850.)
Here, the prosecutor argued and the court found that the assault with the knife provided the force element of the robbery charge because appellant committed the assault to prevent the victim from reclaiming his property. Since the assault was the means of committing the robbery, in calculating appellant's MTC, section 654 permits the use of only the term for the offense that provides for the longest potential term of imprisonment, i.e., the aggravated assault with the great bodily injury enhancement attached to it. (Mitchell, supra, 4 Cal.App.5th at p. 353.) Thus, appellant's MTC should not include a term for her robbery offense.
Respondent contends section 654 does not apply to appellant's assault offense because the force appellant used in grabbing the victim's phone from his hand was sufficient to satisfy the force element of robbery. We disagree.
"In terms of the amount of force required to elevate a taking to a robbery, 'something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.' [Citation.] But the force need not be great: ' " '[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the
victim's resistance ....' " ' " (People v. Lopez (2017) 8 Cal.App.5th 1230, 1235.)
The victim testified that he did not have a good grip on the phone when appellant snatched it from his hand, that the only force appellant used to procure the phone was the force she applied when she pulled it out of his hand, and that he did not have time to react. Thus, the record does not support an inference that appellant used more than the quantum of force necessary to take the phone from the victim's hand.
The probation department calculated the eight-year term it recommended for appellant's MTC as follows: the aggravated term of four years for her assault count, a three-year term for the great bodily injury enhancement in that count, and a one-year term for the robbery count (one third the middle term of three years). Therefore, since section 654 prohibits the use of the term for the robbery count in calculating appellant's MTC, we will reduce appellant's MTC to seven years.
DISPOSITION
The judgment is modified to set appellant's maximum term of confinement at seven years, consisting of four years for the assault with a deadly weapon offense and three years for the great bodily injury enhancement attached to that offense. As modified, the judgment is affirmed.