Opinion
F078664
04-21-2020
In re A.J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.J., Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJD069987)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Judge. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Snauffer, J.
-ooOoo-
INTRODUCTION
In February 2017, appellant was declared a ward of the juvenile court after the court found true he had committed (1) residential burglary (Pen. Code, § 459); (2) robbery (§ 211); (3) assault with a deadly weapon (§ 245, subd. (a)(1)); and (4) battery with infliction of serious bodily injury (§ 243, subd. (d)). Appellant was ordered to serve 80 hours community service, along with other terms and conditions of probation.
All future statutory references are to the Penal Code unless otherwise noted.
Prior to the juvenile proceeding, appellant had confessed to the commission of these crimes to a police officer while undergoing a custodial interrogation. He argued on appeal that the juvenile court had prejudicially erred in allowing admission of his statements, which he contended were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. He further asserted the court misapplied the presumption of his incapacity to commit at least some of the charged crimes. Finally, he contended substantial evidence did not support the court's implied finding of his capacity.
Section 26 creates a rebuttable presumption that a minor under the age of 14 is incapable of committing a crime. (§ 26, subd. One; In re Manuel L. (1994) 7 Cal.4th 229, 231.)
In an unpublished opinion, this court considered and rejected appellant's arguments. We affirmed the juvenile court's order. (In re A.J. (Dec. 14, 2018, F075246).)
In March 2017, and just after the notice of appeal had been filed in the prior matter, the probation department filed a petition seeking to modify, change or set aside the juvenile court's previous orders. The petition alleged a violation of probation, contending appellant had (1) failed to attend school; (2) failed to report to probation; (3) failed to abide by curfew and his whereabouts were unknown; and (4) failed to enroll in required counseling services.
In April 2017, appellant admitted the violation of probation. The court announced that appellant faced a maximum period of confinement of nine years four months. In May 2017, the juvenile court declared that appellant would continue as a ward of the court, and appellant was placed on probation under the supervision of the probation officer. Appellant requested permission to reside with his aunt in Wisconsin, which the court determined was appropriate for his best interests. The court placed appellant in the custody of his mother but gave appellant permission to live with his aunt in Wisconsin. Appellant was made aware of the terms and conditions of his continuing probation.
In April 2018, the probation department learned from the aunt in Wisconsin that appellant had returned to California. It was stated that appellant was residing with his grandmother in Fresno. The probation department contacted the grandmother, who advised that appellant had stayed with her for a few days, and he then began living with his mother in Visalia. It was the grandmother's understanding that appellant had subsequently run away from his mother's residence.
In May 2018, the probation department filed a notice of violation of probation. It was alleged that appellant had failed to abide by the court's order regarding curfew and his current whereabouts were unknown. A warrant for his arrest was issued.
In October 2018, the probation department filed a new notice of violation of probation. It was alleged that appellant had been recently taken into custody by the Visalia police department after he was located as a passenger in a vehicle which had been stopped late at night and well after his required curfew. It was further alleged that appellant had given false information to the officer regarding his identity. Later that same month, appellant admitted the allegations regarding the violation of probation. The court ordered appellant to remain detained pending disposition.
On November 14, 2018, disposition occurred. Appellant was again deemed a ward of the court and his physical custody was removed from his parent or guardian. The court determined appellant faced a maximum confinement of nine years four months. According to the court, appellant was entitled to 111 days credit for time served. He was ordered to an in-custody program for 180 days. Various terms and conditions of probation were imposed.
In the present appeal, appellant argues his maximum term of confinement was erroneously calculated. He contends that, pursuant to section 654, his confinement cannot be based on the true findings in count 1 (residential burglary; § 459), count 3 (assault with a deadly weapon; § 245, subd. (a)(1)), and count 4 (battery with infliction of serious bodily injury; § 243, subd. (d)). He maintains these counts were part of a single and indivisible course of conduct to the robbery (§ 211) found true in count 2. He further asserts he is due additional custody credits of 14 days.
Respondent concedes that appellant is entitled to the additional custody credits. Respondent, however, opposes appellant's contentions regarding section 654. We agree with appellant that his burglary, robbery, assault, and battery were all a single and indivisible course of conduct. As such, we strike that portion of the juvenile court's disposition order that set appellant's maximum term of confinement at nine years four months. The juvenile court shall amend its order to reflect that appellant has a maximum term of confinement of six years. The court shall also amend its order to reflect that appellant has 125 days credit for time served. In all other respects, we affirm the juvenile court's order.
BACKGROUND
We set forth the facts taken from our prior unpublished opinion in In re A.J., supra, F075246.
In September 2016, appellant and his juvenile brother, T.M., broke into a residence in Visalia, California. The occupants, an elderly couple, were initially not home, but they returned while the juveniles were still inside the residence. The owners noticed that a screen had been removed from a bathroom window, which was open. There was a chair under that window, which had not been there before they left. The back door and the security door were open. These doors had been locked when the owners left. The husband entered the residence to investigate while his wife remained outside.
T.M. was not a party to the prior appeal.
Inside the residence, the husband saw that things were in disarray. He yelled out, "You mother fuckers are in the house. You need to get the fuck out of here because I have a gun, and I'm going to shoot you." Inside the master bedroom, the husband discovered appellant hiding under the bed. After coming out from hiding, the husband and appellant got into a wrestling match. Appellant began to fight the husband. In response, the husband grabbed appellant's fingers and tried to break them by bending them backwards. Their altercation escalated when T.M. joined in and struck the husband on his face. A fight ensued involving all three. The husband heard T.M. say, "Don't beat up my brother" because he is "autistic." At some point, the husband grabbed a pair of blunted scissors. He used them to scratch T.M.'s arm. During the altercation, the husband was struck over the head with multiple objects, including a weighted toilet paper dispenser and a humidifier. At some point, he possibly fell unconscious. The two juveniles ran from the home. Emergency personnel responded to the scene and the husband was transported to the hospital. He suffered a concussion, along with cuts and bruises to his head and face. Later that day, the owners realized that various objects were missing from their home, including a cell phone, a jar full of spare change, and phone chargers.
At the prior hearing, the husband confirmed that, while he did own a gun, he did not have it with him at the time of this crime. He yelled out about the gun because he was mad.
At the prior hearing, the husband admitted that he was trying to break appellant's fingers to stop appellant from hitting him. The husband said appellant was screaming when this happened.
No other evidence established or suggested that appellant is autistic.
A Visalia police officer investigated the crime that same day. He found potential witnesses in the neighborhood. The following day, he showed a six-pack photo lineup to a neighbor who identified both appellant and T.M. as suspects she saw fleeing from the victims' residence on the day in question.
The officer detained appellant, who was questioned at the police station. Appellant confessed to his involvement in this crime. He admitted that he and his brother entered the victims' residence through a bathroom window. They began going through cabinets and drawers until someone came home. They hid under the bed. Appellant was frightened because the male said he was going to shoot them. A male came in and saw him. According to appellant, the male grabbed them and pulled them out. A fight ensued. According to appellant, the male began to hurt him so he punched back in self-defense. Various items were thrown at the male, and the juveniles were able to get away. Appellant admitted to the officer that they fled with a stolen cell phone taken from the residence.
Appellant wrote an apology letter to the owners. He wrote, "Sorry for taking your phone." After interviewing appellant, the officer recovered the stolen cell phone from appellant's mother.
DISCUSSION
I. Section 654 Requires Appellant's Maximum Period Of Confinement To Be Reduced To Six Years.
Appellant claims his maximum period of confinement must be reduced pursuant to section 654. He contends the true findings regarding the charges in counts 1, 3 and 4 cannot be used to make this calculation.
A. Standard of review.
It is generally a factual matter regarding whether the facts and circumstances reveal a single intent and objective within the meaning of section 654. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.) In contrast, the meaning and dimension of section 654 is a legal question. (Dowdell, at p. 1414.) "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. [Citations.]" (Ibid.)
B. Analysis.
Appellant argues his residential burglary (count 1), assault with a deadly weapon (count 3), and battery with infliction of serious bodily injury (count 4) were part of a single course of conduct with his robbery (count 2). He relies primarily on People v. Guzman (1996) 45 Cal.App.4th 1023 (Guzman) and People v. Le (2006) 136 Cal.App.4th 925 (Le). He contends his maximum term of confinement must be modified to six years based on the true finding for the robbery (§ 211; count 2).
First degree burglary includes burglary of an inhabited dwelling house. (§ 460, subd. (a).) First degree burglary carries a maximum prison sentence of six years. (§ 461, subd. (a).)
Assault with a deadly weapon carries a maximum prison sentence of four years. (§ 245, subd. (a)(1).)
Battery with infliction of serious bodily injury carries a maximum prison sentence of four years. (§ 243, subd. (d).)
First degree robbery includes robbery perpetrated in an inhabited dwelling house. (§ 212.5, subd. (a).) First degree robbery (when not conducted in concert with two or more other persons), carries a prison sentencing triad of three, four, or six years. (§ 213, subd. (a)(1)(A), (B).)
In contrast, respondent asserts the juvenile court "could have reasonably found that appellant's commission of the battery and robbery were animated by different objectives." Respondent contends it is possible that appellant held different intents when throwing the objects at the husband or striking the husband on his head. According to respondent, the juvenile court could have determined that appellant committed "gratuitous, independent acts of violence." Respondent relies primarily on three opinions: (1) People v. Ratcliffe (1981) 124 Cal.App.3d 808 (Ratcliffe); (2) People v. Coleman (1989) 48 Cal.3d 112 (Coleman); and (3) People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen). Respondent urges us to affirm the juvenile court's implied findings that section 654 did not prohibit a maximum term of confinement of nine years four months.
1. The issue is cognizable on appeal.
As an initial matter, appellant claims this issue is cognizable on appeal even though he did not object below. Respondent does not address this issue and impliedly concedes it. We agree with appellant that he has not forfeited this claim.
When a juvenile court orders a minor removed from the physical custody of his or her parent or guardian, the court is required to specify the maximum term the minor can be held in physical confinement. (Welf. & Inst. Code, § 726, subd. (d)(1); In re Danny H. (2002) 104 Cal.App.4th 92, 106.) The maximum term of confinement is the upper term for the particular offense, plus any enhancements proven true. (Welf. & Inst. Code, § 726, subd. (d)(2); In re Eddie L. (2009) 175 Cal.App.4th 809, 814-815.)
A sentencing court acts in " 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) An appellate court may correct a legal error resulting in an unauthorized sentence at any time, which includes an alleged misapplication of section 654. (People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)
Section 654 is applicable in juvenile matters. (See In re R.L. (2009) 170 Cal.App.4th 1339, 1345 [remanding matter to allow juvenile court to consider whether punishment for offenses was barred by section 654 and to recalculate the maximum period of confinement as necessary]; In re Maurice H. (1980) 107 Cal.App.3d 305, 311-312 [determining that section 654 is a part of a juvenile proceeding].)
Here, appellant claims the juvenile court failed to determine his proper maximum term of confinement. Because that issue involves an alleged misapplication of section 654, we may review this matter despite appellant's failure to object below.
2. Appellant's cited authorities establish that his maximum period of confinement must be reduced to six years.
Although a person may be convicted of more than one crime arising out of the same course of conduct, section 654 bars multiple punishments for the same criminal act. (People v. Correa (2012) 54 Cal.4th 331, 337.) When imposing sentence, the longest potential term of imprisonment shall be imposed, but the act or omission may not be punished under more than one provision. (§ 654, subd. (a).) The purpose of section 654 is to assure that punishment is equal to criminal culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Our Supreme Court has enunciated the following test: " '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.' [Citation.]" (People v. Latimer, supra, 5 Cal.4th at p. 1208.) It is the defendant's intent and objective, and not the temporal proximity of his or her offenses, which determines whether the transaction is indivisible. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
We summarize the five opinions which the parties rely upon.
a. Ratcliffe.
In Ratcliffe (a case cited by respondent), the defendant forcibly kidnapped the victim, physically threatened her with a baseball bat, demanded money, tied her to a bed, assaulted her with a knife, raped her, forced her to orally copulate him, and then forced her to drink bleach and swallow some pills. The defendant's conduct occurred over a six- hour period. (Ratcliffe, supra, 124 Cal.App.3d at p. 814.) The defendant claimed, pursuant to section 654, that he could not be punished for kidnapping, rape, oral copulation and false imprisonment because the objective of the kidnapping was to commit the sexual acts. (Ratcliffe, at p. 814.) The Ratcliffe court disagreed. It concluded the trial court could have properly found the defendant had entertained multiple criminal objectives. (Id. at p. 818.) These offenses occurred after the victim had repeatedly rejected the defendant. (Ibid.) The kidnapping was separate from the sexual offenses, which appeared to have been an afterthought. (Id. at p. 819.) The appellate court determined that multiple punishments were appropriate. (Ibid.)
b. Coleman.
In Coleman (a case cited by respondent), the defendant completed a robbery inside a residence. As he did so, he compelled the first victim to assist him as he gathered valuables. (Coleman, supra, 48 Cal.3d at p. 162.) A second victim then entered the room, and the defendant killed her with a shotgun. He ordered the first victim to lie down and he stabbed her in the back. (Ibid.) Our Supreme Court determined that the trial court could have properly concluded the defendant "committed the assault with the intent and objective of preventing the victim from sounding the alarm about the murder, and that this intent and this objective were separate from, not incidental to, the robbery." (Id. at pp. 162-163.) The high court rejected the defendant's claim that he could not be sentenced for both the assault with intent to murder the first victim, and his robbery of the same victim. (Ibid.)
c. Nguyen.
In Nguyen (a case cited by respondent), the defendant asserted that the trial court violated section 654 by imposing consecutive sentences for an attempted murder and robbery. (Nguyen, supra, 204 Cal.App.3d at p. 189.) The appellate court concluded that substantial evidence supported the sentencing court's implied finding of divisibility. (Id. at p. 190.) While the defendant had "remained at the store's till, his crime partner took the victim into a back room, relieved him of his valuables, and then forced him to lie on the floor in an obvious attempt to forestall any resistance. Only after the clerk assumed that position did [the defendant's] accomplice shoot him." (Ibid.) The Nguyen court determined this was "an example of gratuitous violence against a helpless and unresisting victim" which was not traditionally viewed as " 'incidental' to robbery" for purposes of section 654. (Nguyen, at p. 190.) It held "that a separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654." (Id. at p. 193.)
d. Guzman.
In Guzman (a case cited by appellant), two defendants, along with other accomplices, stole a motorcycle from the victim's garage. They put the motorcycle in the back of a truck and they drove away when the victim spotted them and yelled. (Guzman, supra, 45 Cal.App.4th at p. 1025.) The victim's wife called the police, and the victim drove after the defendants. He encountered them a short distance away. Using his vehicle, the victim was able to block the defendants. A physical encounter ensued, and some of the men fought and beat the victim. The burglars drove away. (Id. at p. 1026.) Undeterred, the victim got off the ground and he again drove after the burglars. A short distance later, he again caught up with their vehicle, and the burglars led him on a high-speed chase. The burglars were eventually cornered at a dead-end street. The police saw part of the chase, and authorities were able to arrest the two defendants. (Ibid.) On appeal, one defendant argued he was improperly sentenced for burglary, grand theft, and robbery. The Guzman court agreed. (Id. at pp. 1027-1028.) The defendants had not reached a place of temporary safety after the burglary occurred. The victim had intervened and attempted to thwart their escape. It was during the ongoing burglary when the defendant used force to retain the motorcycle. As such, the burglary was still in progress when the robbery was committed, and both offenses were committed pursuant to one objective. There was a single continuous course of conduct. (Id. at p. 1028.)
e. Le.
In Le (a case cited by appellant), the defendant was convicted of second degree burglary and second degree robbery in connection with the theft of merchandise from a drugstore. (Le, supra, 136 Cal.App.4th at p. 928.) The robbery conviction was based on the defendant's physical altercation with a store manager in a parking lot outside of the establishment as he was trying to flee. (Id. at p. 929.) The appellate court concluded that both offenses were the means of accomplishing the single intent of stealing merchandise. (Id. at p. 931.) The robbery offense arose because the defendant struggled with the manager after leaving the store with the merchandise. (Ibid.) As such, consecutive sentencing on the burglary count violated section 654. (Le, at p. 932.)
f. The facts from this matter.
In this matter, appellant and his brother broke into the victims' home through a bathroom window while the victims were away. The couple returned home and the husband entered alone to investigate. The husband found appellant in the master bedroom hiding under a bed. They got into a wrestling match, which became more physical. Their altercation further escalated when the brother struck the husband on his face. A fight ensued involving all three. During the altercation, the husband was struck over the head with multiple objects, including a weighted toilet paper dispenser and a humidifier. At some point, he possibly fell unconscious. The two juveniles ran from the home. Later that day, the owners realized that various objects were missing from their home, including a cell phone, a jar full of spare change, and phone chargers. Appellant later admitted to the police officer that he and his brother fled with a stolen cell phone taken from the residence. Appellant wrote an apology letter to the owners. He wrote, "Sorry for taking your phone." After interviewing appellant, the officer recovered the stolen cell phone from appellant's mother.
Similar to Guzman and Le, appellant had not reached a place of temporary safety when the husband confronted him inside the master bedroom. It was during the ongoing burglary when appellant and his brother used force to retain the stolen property. As such, the burglary was still in progress when the robbery was committed. Appellant's use of force was not separate from the burglary, but, instead, was used in an effort to escape. When appellant and his brother fled from the residence, they carried away property belonging to the owners. Thus, appellant's burglary, robbery, assault, and battery were all committed pursuant to one objective, to steal property. These crimes were a single continuous course of conduct, and section 654 is applicable. (See Guzman, supra, 45 Cal.App.4th at p. 1028; Le, supra, 136 Cal.App.4th at p. 929.)
We reject respondent's position that Ratcliffe, Coleman, and Nguyen support the juvenile court's implied finding that appellant's burglary, battery, and robbery were based on divisible acts. In Ratcliffe, the defendant had been repeatedly rejected by the victim and it was clear he wanted to humiliate her. He did multiple acts to her over an extended period of time. In Coleman, the defendant completed a robbery before murdering a second victim. The defendant ordered the first victim to lie down and he stabbed her in the back. In Nguyen, the defendant remained at the store's till while his crime partner took the victim into a back room and ordered him to lie down. The accomplice then shot the victim, which the appellate court deemed an example of gratuitous violence against a helpless and unresisting victim.
Unlike respondent's cited authorities, appellant's fight with the husband only occurred because the husband intervened and attempted to thwart the burglary, which was still ongoing. It was only because the husband intervened that the robbery, assault, and battery occurred. The violence committed upon the husband was not separate from the ongoing burglary, and appellant and his brother were able to flee to a place of temporary safety with the owners' property. Ratcliffe, Coleman, and Nguyen are factually distinguishable.
Based on this record, substantial evidence does not support the juvenile court's implied finding that appellant harbored separate intents and objectives for each of the offenses which were found true in this matter. Instead, all of appellant's offenses were incident to one objective. As such, he may not receive multiple punishment. (See People v. Latimer, supra, 5 Cal.4th at p. 1208.) Thus, appellant's maximum term of confinement must be reduced to six years, which represents the upper term in count 2. Accordingly, we will strike the juvenile court's disposition order in this regard. The court shall amend its order to reflect appellant's maximum term of confinement of six years.
We select count 2 as the operative term based on appellant's request. We note it is immaterial whether count 1 or count 2 is used to calculate appellant's maximum term of confinement. Both first degree burglary and first degree robbery (when not conducted in concert with two or more other persons) carry a maximum prison sentence of six years. (§ 213, subd. (a)(1)(A), (B) [robbery]; § 461, subd. (a) [burglary].)
II. Appellant Is Entitled To Additional Custody Credits.
"A juvenile is entitled to credit against his maximum period of physical confinement for any time he spends in actual custody prior to disposition." (In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231-1232; In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.)
Here, the parties agree, as do we, that appellant is entitled to additional custody credits. Instead of 111 days, appellant is entitled to 125 days. When the probation department initially calculated appellant's custody credits, the dispositional hearing was set for October 31, 2018. The dispositional hearing, however, was continued to November 14, 2018.
Appellant was detained on October 13, 2018, and he remained in custody until the dispositional hearing on November 14, 2018. Including both October 13 (a Saturday) and November 14 (a Wednesday), that period is 33 days. The probation report erroneously failed to include the two-week continuation. Instead, the probation report credited appellant with 19 days, and not the required 33 days, for his custody time before the dispositional hearing on November 14, 2018.
The probation report also reflects that appellant had previously accumulated 92 additional days of in-custody credits. According to the report, appellant had accumulated 111 total days credit for time served. This was erroneous because appellant was entitled to an additional 14 days of credit. As such, the total credit should be 125 days. Accordingly, we will strike the juvenile court's disposition order in this regard. The court shall amend its order to reflect the correct custody credits.
DISPOSITION
We strike that portion of the juvenile court's November 14, 2018, disposition order that set appellant's maximum term of confinement at nine years four months. The court shall amend its order to reflect that appellant has a maximum term of confinement of six years. We further strike that portion of the same disposition order that gave appellant 111 days credit for time served. We direct the court to amend its order to reflect that appellant has 125 days credit for time served.
The juvenile court shall have its corrected disposition order forwarded to any necessary authorities. In all other respects, the juvenile court's disposition order is affirmed.