Opinion
E056239
04-02-2013
In re L.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.H., Defendant and Appellant.
Michelle C. Zehner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura A. Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. RIJ1101023)
OPINION
APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed in part; reversed in part.
Michelle C. Zehner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura A. Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On January 24, 2012, a subsequent petition was filed by the Los Angeles County District Attorney alleging that minor and appellant L.H. committed an assault upon a peace officer under Penal Code section 245, subdivision (c), (count 1), and second degree commercial burglary under section 459 (count 2). On February 15, 2012, the district attorney amended the petition to additionally allege that minor had committed an assault with a deadly weapon under section 245, subdivision (a)(1), (count 3). An adjudication hearing was held on the same day. Thereafter, the district attorney moved to dismiss count 2, and the juvenile court made true findings as to counts 1 and 3. On February 15, 2012, the case was transferred from Los Angeles County to Riverside County.
All further statutory references are to the Penal Code unless otherwise indicated.
An earlier petition under Welfare and Institutions Code section 602 was filed in August 2011 by the Riverside County District Attorney. The petition alleged that minor had committed one count of possessing a controlled substance under Health and Safety Code section 11350 (count 1). On September 22, 2011, at the initial hearing on the petition, minor admitted count 1. The juvenile court then made a true finding as to that count. Minor was continued in the custody of his mother and granted probation with various conditions. Minor was entered into the deferred entry of judgment program.
On March 9, 2012, at the dispositional hearing, the juvenile court (1) continued minor as a ward; (2) granted minor probation; (3) committed minor to juvenile hall for not less than 55 days and not more than 110 days; and (4) ordered minor to attend anger management courses, to enroll in substance abuse counseling, and to pay restitution.
On May 7, 2012, minor filed a notice of appeal. On appeal, minor contends that the true finding as to count 3, assault with a deadly weapon, must be vacated because it is a lesser included offense of count 1, assault with a deadly weapon on a peace officer. The People concede. For the reasons set forth post, we agree with both minor and the People and shall reverse the true finding as to count 3.
II
FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 2012, around 2:00 p.m., Los Angeles Police Officers Archuleta and Vergara were conducting an undercover operation of Lincoln Park Market because of recent complaints that alcohol was being sold to intoxicated people. Both officers were in undercover clothing. Neither of their outfits had "L.A.P.D." written on it. The officers were also in an unmarked vehicle. Officer Archuleta, however, did have his L.A.P.D. badge, which is "about 6 inches by 4 inches silver gold."
Around 2:10 p.m., Officer Archuleta observed minor run out of the market with a 32-ounce bottle of beer. The owner of the store also ran after minor. Minor began running northbound. At this time, the officers began to pursue minor. Minor was jogging very slowly, and at one point, the officers identified themselves through the windshield of their car, by showing their badges and saying, "'Stop. Los Angeles Police Department. Stop running.'" Minor refused to stop, but looked back at the officers several times.
Minor eventually stopped in front of the vehicle, turned around, put his hands up in a combative manner, and stated, "'What?'" As the officers continued to identify themselves, minor began running toward their car. Officer Archuleta was seated in the driver's seat with the window down. As minor approached the officer, he threw the full 32-ounce beer bottle at Officer Archuleta's face. The bottle made contact with the officer's hand, hit the side of the car door, and then shattered. The glass from the bottle shattered all over Officer Archuleta, causing a laceration to his hand, which required stitches. The officer first "picked off as much glass as [he] could," and then followed minor in his vehicle as minor ran in the other direction.
The officers were eventually able to catch up with minor and detain him.
III
ANALYSIS
Minor contends that an assault with a deadly weapon is a lesser included offense of assault with a deadly weapon against a police officer; therefore, the juvenile court erred in entering true findings for both charges, and that the lesser included offense should be vacated. The People agree.
In this case, at the jurisdictional hearing, the People moved to amend the petition to add count 3, assault with a deadly weapon. The prosecutor stated, "Before we proceed, I wouldn't say it's necessarily lesser. I would ask to add a count 3. It would be assault with a deadly weapon, violation Penal Code section 245, subdivision (a), subsection (1), felony. Same date as count 1. Same named victim as count 1. And seems from the same facts."
Minor counsel responded, "I believe, your honor, it is, in fact, a lesser included offense of count 1. I believe that . . . the 245(c) encompasses 245 (a)(1) with an additional element. I believe it's a lesser included."
The juvenile court then found that counts 1 and 3 were true. The court stated: "The People have proven beyond a reasonable doubt both counts 1 and 3. So, I am finding they are true. It's only count 2 that is not true." The matter was thereafter transferred to Riverside County for disposition.
In California, it has long been held that multiple convictions may not be based on necessarily included offenses. (People v. Pearson (1986) 42 Cal.3d 351, 355.) This is a judicially created exception to section 954, which expressly allows a defendant to be convicted of "'any number of the offenses charged.'" (People v. Ramirez (2009) 45 Cal.4th 980, 984; see also People v. Ortega (1998) 19 Cal.4th 686, 692.) When multiple convictions are based on necessarily included offenses, the conviction for the greater offense is controlling, and the conviction for the lesser offense must be reversed. (People v. Pearson, at p. 355, citing People v. Moran (1970) 1 Cal.3d 755, 763.)
There are two tests for determining whether an offense is necessarily included in another: the "'elements' test" and the "'accusatory pleading' test." (People v. Ramirez, supra, 45 Cal.4th at pp. 984-985.) Both tests are used in determining whether a defendant received adequate notice of the charges against him and may therefore be convicted of an uncharged crime, but only the elements test is used in determining whether a defendant may be convicted of multiple charged crimes. (People v. Reed (2006) 38 Cal.4th 1224, 1229-1230; see also People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166 [observing that "only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. . . ."], 168-171 [explaining the origins of and reasons underlying the judicially created bar against multiple convictions based on necessarily included offenses].)
Under the elements test, we look strictly to the statutory elements of the offenses, not to the facts of the case. (People v. Ramirez, supra, 45 Cal.4th at p. 985.) We ask whether "'"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]'" (People v. Lopez (1998) 19 Cal.4th 282, 288.) In other words, "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (Ibid.; see also People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
In this case, minor was found to have committed assault on a peace officer (§ 245, subd. (c)), and assault with a deadly weapon (§ 245, subd. (a)(1)). Minor and the People agree that assault with a deadly weapon is a lesser included offense of assault with a deadly weapon on a peace officer. For the reasons set forth post, we agree.
Section 245, subdivision (c), assault on a peace officer, states: "Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties shall be punished by imprisonment in the state prison for three, four, or five years."
CALCRIM No. 860 states the elements of this offense as follows:
"(1) The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] (2) The defendant did that act willfully; [¶] (3) When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] (4) When the defendant acted, he had the present ability to apply force with a deadly weapon to a person; [¶] (5) When the defendant acted, the person assaulted was lawfully performing his duties as a peace officer; and [¶] (6) When the defendant acted, he knew, or reasonably should have known, that the person assaulted was a peace officer who was performing his duties."
Penal Code section 245, subdivision (a)(1), assault with a deadly weapon provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
CALCRIM 875 states the elements of this offense as follows:
"(1) The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] (2) The defendant did that act willfully; [¶] (3) When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and [¶] (4) When the defendant acted, he had the present ability to apply force with a deadly weapon to a person."
Elements one through four of both offenses are identical. While the People, at the time of amendment to the petition, contended count 3 was not a lesser included offense of count 1, it conceded that the additional count was for the same date, victim, and facts. Moreover, the evidence did not present an alternate set of facts to establish that count 3 was based on a separate act than the act alleged in count 1. Therefore, the completed offense of assault with a deadly weapon on a peace officer necessarily includes an assault with a deadly weapon. Consequently, minor's conviction of assault with a deadly weapon, as alleged in count 3, must be reversed.
Minor also argues that the juvenile court erred in failing to make a specific finding as to whether count 3, assault with a deadly weapon, was a felony or misdemeanor. We need not address this argument since we have determined that minor's conviction on count 3 must be reversed.
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IV
DISPOSITION
The true finding on count 3, assault with a deadly weapon under section 245, subdivision (a)(1), is reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur: RAMIREZ
P. J.
KING
J.