Filed 5/19/16 In re David CA2/2

Opinon following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 s pecified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re DAVID M. , a Person Coming Under the Juvenile Court Law. B261610 (Los Angeles County Super. Ct. No. JJ 1 9806 )

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,

v.

DAVID M. , Defendant and Appellant.

APPEAL from a judgment of the Superio r Court of Los Angeles County,
Catherine J. Pratt
, Commissioner

. Affirmed in part and reversed in part. Courtney M. Selan , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler and Lan ce E. Winters, Assistant Attorneys General, Steven D. Matthews and Analee J. Brodie , Deputy
Attorne ys General, for Plaintiff and Respondent.2

David M. (minor) appeals from the judgment entered after the juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 602 (section 602 petition) and adjudicated minor a ward of the court. He contends that the juvenile court erred in sustaining duplicate assault allegations, and respondent agrees. We concur and vacate the duplicate f indings. In addition, we reverse the disposition and remand the
matter for the juvenile court to exercise its discretion under Welfare and Institutions Code section 702, to expressly declare counts 2 and 4 to be either felonies or misdemeanors,
and to rec alculate the maximum period of confinement. We otherwise affirm the judgment, including the juvenile court’s determination that it had jurisdiction and the
order sustaining the allegations in counts 2, 4 , and 6

. BACKGROUND
The section 602 petition alleged that minor committed the following felonies : count 1, assault by means likely to produce great bodily injury upon Carlos G. in violation of Penal Code section 245, subdivision (a)(4) 1 ; count 2 , assault with a deadly

weapon upon Carlos G

. in violation of section 245, subdivision (a)(1); count 3, assault by means likely to produce great bodily injury against Julio G. in violation of section 245, subdivision (a)(4) ; count 4, assault with a deadly weapon against Julio G. in violation of section Code, 245, sub division (a)(1) ; and count 5, making criminal threats against Carlos
G. in violation of section 422, subdivision (a). 2 In addition, the petition alleged in count 6 that minor gave false information to a police officer in violation of section 148.9,
subdiv ision (a), a misdemeanor.
E vidence presented at the contested adjudication hearing showed that minor acted as a lookout when an accomplice hit Carlos G. in the face with a metal baseball bat, and

1 All further statutory references are to the Penal Co de, unless otherwise indicated.

2 The petition alleged pursuant to section 186.22, subdivision (b )(1)(C), that the offenses alleged in counts 1 through 5 were committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. T he juvenile court dismissed the gang allegations.3

then hit Julio G. in the back with a wooden two

- by

- four

. La ter, w hen minor was first
detained , he gave the police a false name. On January 15, 2015, the juvenile court found true all counts except count 5

. The
court ordered minor to Camp Community Placement for a term of five to seven months
, and set the maximum term of confinement at seven years ten months. Minor filed a timely notice of appeal from the judgment

. DISCUSSION
Minor contends that the true finding s of assault with force likely to cause great bodily injury as alleged in count s 1 and 3 are duplicativ e of the true findings of assault with a deadly weapon as alleged in count s 2 and 4
, and that two of the duplicative counts
must be reversed. Respondent agrees. In general, section 954 permits multiple convictions for a single act, subject to one judicial ly created exception which “‘ prohibits multiple convictions based on necessarily
included offenses. ’ [Citation.] ” ( People v. Reed (2006) 38 Cal.4th 1224, 1226

- 1227 .)
S ection 954 applies to juvenile adjudications. ( In re Jose H . (2000) 77 Cal.App.4th 10 90,
1094

- 1095.) It provides: “ An accusatory pleading may charge two or mo re different
offenses connected together in their commission, or different statements of the same
offense

. . . . The prosecution is not required to elect between the different off enses or counts set forth in the accusatory pleading, but the defendant may be convicted of any
number of the offense s charged .

. . .” ( § 954 .) However, “‘T he offense of assault by means of force likely to produce great bodily injury is not an offense se parate from

. . . the offense of assault with a deadly

weapon. ’ [Citation.]” ( People v. McGee (1993) 15 Cal.App.4th 107, 110, 114; see also In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) A defendant may not be convicted of more than one count of the sam e crime prohibited by the same statut e committed against a single victim

. (See People v. Craig (1941) 17 Cal.2d 453, 458; People v. Coyle (2009) 178 Cal.App.4th 209, 217

- 218; People v. Muhammad (2007) 157 Cal.App.4th 484, 494; People v. Ryan (2006) 138 Ca l.App.4th 360, 370

- 371.) It makes no difference that the alternate ways of committing a single crime are described in two separate subdivisions of4

the statute. (See People v. Tenney (1958) 162 Cal.App.2d 458, 461 [“When a single act
relates to but one vi ctim, and violates but one statute, it cannot be transformed into multiple offenses by separately charging violations of different parts of the statute”].) Prior to its amendment in 2012, assault with a deadly weapon and assault by means likely to produce great bodily injury were both described in section 245, subdivision (a)(1), as two different ways of committing the prohibited assault. ( See People v. Martinez (2005) 125 Cal.App.4th 1035, 1043.) In 2012, Assembly Bill No.
1026 separated th em into two su bdivisions, section 245, subdivision (a)(1), and section 245, subdivision (a)(4) ; however
, the amendment was intended to make only technical, nonsubstantive changes. ( Legis. Counsel’s Dig., Assem. Bill No. 1026 (2011

- 2012 Reg. Sess.) Stats. 2011, c h . 183, § 1.) As reflected in the legislative history, t he Legislature
did not intend to create two separate crimes: “‘ AB 1026 will allow for a more efficient assessment of a defendant’s prior criminal history and would lead to a more accurate and earlier dispo sition of criminal cases. AB 1026 does not create any new felonies or expand the punishment for any existing felonies. It merely splits an ambiguous code section into two distinct parts. ’ ” (Sen. Rules Com., Off. o f Sen. Floor Analyses, 3d reading a nalys is of Asse m. Bill No. 1026 (2011

- 2012 Reg. Sess.) June 14, 2011, p. 3 .) 3 Thus, just as before the amendment, section 245 describes assault with a deadly weapon and assault by means likely to produce great bodily injury as one crime. Although minor and res pondent agree that the duplicat e assault findings are error, the p arties have disagree d on the remedy. Minor request s that all findings be reversed
and the matter remanded to the juvenile court for new findings. Respondent suggest s that
this c ourt vacate the duplicate assault findings and otherwise affir m the j uvenile court’s judgment, but d oes not suggest which subdivision should be vacated. Though t he

3 Assault with a deadly weapon is a serious felony for purpose s of recidivist sentence enhancements, while assault by means likely to produce great bodily injury is not, unless the defendant personally inf licted great bodily injury. ( § 1192.7, subd. (c) (1)(8) & (31).) As respondent notes, the 2012 amendment avoids the problem of discerning from criminal records which acts were committed. (See, e.g., People v. Delgado (2008) 43 Cal.4th 1059, 1065 .)5

appellate court has the authority to vacate one of two duplicate convictions ( s ee People v. Ceja (2010 ) 49 Cal.4th 1, 5

- 8) , t he question become s which one to vacate. If one of the
offenses were a lesser included offense of the other, it would be appropriate to affirm the greater and vacate the lesser. (See People v. Pearson (1986) 42 Cal.3d 351, 355.)
H owever, neither assault with a deadly weapon nor assault by means likely to produce great bodily injury is a lesser included offense of the other. (See In re Mosley
, supra , 1 Cal.3d at p. 919, fn. 5.) We agree with the court in People v. Ryan
, supra , 138 Cal.App.4th at p age 371, which under similar circumstances held that the better practice
is to affirm the conviction that appears to “more completely cover[]” the defendant’s acts, and vacate the less factually apt conviction. In this case, that would me an vacating counts 1 and 3, assault by means likely to produce great bodily injury, as alleged pursuant to section 245, subdivision (a)(4), and affirm counts 2 and 4
, assault with a deadly weapon, as alleged pursuant to section 245, subdivision (a)(1).
H ow ever simply striking the two duplicate assaults does not resolve other questions raised by our review

. The juvenile court did not expressly declare the offenses
to be felonies or misdemeanors ; nor did the court explain how the maximum period of
confinemen t was computed or whether it included aggregation of terms on the basis of prior sustained section 602 petitions

. (See Welf. & Inst. Code
, §§ 702, 726.) 4
“If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” (§ 702.) A lthough the juvenile court ’s minutes
state that the court declared all offenses to be felonies, the court made no such oral

stateme nt on the record; nor could it do so as to count 6, which alleged a violation of
Penal Code section 148.9, a misdemeanor with no provision making it punishable alternatively as a felony

. (See Welf. & Inst. Code, § 702.) On the other hand, a violation
of Penal Code section 245, subdivision ( a), is a so

- called “wobbler” offense, as it is

4 In this part of our discussion, all further statutory references are to the Welfar e and Institutions Code unless indicated otherwise.6

punishable as either a felony or a misdemeanor , and thus subject to section 702

. ( In re
Brandon T

. (2011) 191 Cal.App.4th 1491, 1495 , fn. 4 .) When required, the juvenile c ourt must make the declaration expressly on the record. ( In re Manzy W

. (1997) 14 Cal.4th 1199, 1204; In re Ricky H . (1981) 30 Cal.3d 176, 191

- 192; Cal. Rules of Court, rules 5.790(a)(1), 5.780(e)(5).) “[N]either the pleading, the minute order, nor the s etting of a felony

- level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]” ( In re Manzy W

. , at p. 1208.) Remand for the declaration is required unless “ the record as a whole establishes that the juvenile
court was aware of its discretion to treat the offense as a misdemeanor and to state a
misdemeanor

- length confinement limit .” ( Id . at p. 1209.) In addition to the absence of an express declaration under section 702
, the record does not reveal the juvenile court’s formula for computing th e maximum period of
confinement pursuant to section 7 26

. Subdivision ( d ) (3) of that section provides in relevant part: “If the court elects to aggregate the period of p hysical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a ) of Section 1170.1 of the Penal Code.” Thus, “computation of the maximum period of confinement involves determining the upper term of imprisonment for the most serious offense

. . . then adding any consecutive time imposed for other counts. [Citation.]” ( In re Manzy W

. , supra , at p. 120 2 , fn. 1 .) The subordinate consecutive terms are computed as one

- third the middle term for offenses declared by the juvenile court to be felonies; and for offenses declared to be misdemeanors with only one term specified , they are computed as one

- third that

term. ( In re Eric J. (1979) 25 Cal.3d 522, 536

- 537.)
The parties were asked to provide further briefing regarding these issues, and both
have filed letter briefs which we have considered. Neither party has suggested that the7

record establishes the juvenile court ’s awareness of its discretion under section 702. 5 Nevertheless, m inor suggest s that the announced maximum period of confinement
indicates that the juvenile court considered the assaults to be felonies , and th at the court calculated the period by aggregating it with prior sustained petition s , pursuant to section
726. Minor speculates that the court calculated the maximum period of confinement by beg i nn in g with a four

- year term as to the count 1 assault
, adding three one

- year consecutive terms for the remaining three assaults
, and then add ing an additional 10
months
, consist ing of the middle term s of three misdemeanors , as follows : the current violation of Penal Code section 148.9 (two months); and sustained al legations in two prior petitions, a violation of Penal Code sections 594, subdivision (a), and 148 (four months each).
A ggregation of the current offenses with prior offenses is within the juvenile court’s discretion; “however, where the prior offenses are to be considered to aggregate the maximum term to extend it beyond that which could be imposed for the new offense, due process requires notice of the juvenile court’s intention [and] a meaningful opportunity to rebut any derogatory material within its pr ior record. [Citations.]” ( In re
Michael B . (1980) 28 Cal.3d 548, 553.) Such notice must include the possible amount of additional time that might be added due to the prior offenses. (See In re Steven O . (199 1) 229 Cal.App.3d 46, 56

- 57.) Here, t here i s no indication in this record that the juvenile court exercised such discretion or that due process was satisfied. The only use the court apparently made of the prior offenses was to support a finding that camp was a suitable placement

. Respondent conten ds that until the juvenile court exercises its discretion to declare the two assaults misdemeanors or felonies, the maximum period of confinement cannot be accurately calculated. We agree. The declaration required by section 702 is key to that computatio n. ( In re Manzy W ., supra , 14 Cal.4th at p. 1208.) As the record does not

5 Both parties agree that Penal Code section 654 is inapplicable here, and neither party suggests that it figured in the juv enile court’s computation of the maximum period of confinement.8

establish that the juvenile court was aware of its discretion to treat the assaults as
mis demeanors, remand is required for an express declaration and recalculation of the
maximum period of confinement

. ( Id . at p. 1209 ; see also In re Samuel C. (1977) 74 Cal.App.3d 351, 360 [where trial court’s intent is not necessarily reflected in the maximum term of confinement, remand is appropriate].)
DISPOSITION That part of the judgment dete rmining that the court had jurisdiction and

susta ining allegations in counts 2, 4 , and 6 is affirmed. The orders sustaining the allegations of counts 1 and 3
, assault by means likely to produce great bodily injury
, are vacated , and that part of the judgme nt ordering the disposition is reversed

. T he cause is
remanded with directions for the trial court to exercise its discretion in compliance with
Welfare and Institutions Code section s 702 and 726, to declare on the record whether
counts 2 and 4 are feloni es or misdemeanors , to fix the maximum period of physical confinement in accordance with this opinion , and to enter a new dispositional order

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

____________________________, J. CHAVEZ

We concur:

__________________________, Acting P. J. ASHMANN

- GERST

__________________________, J. HOFFSTADT