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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specified 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 This opinion has not been certified for publication 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. JJ19806)

THE PEOPLE OF THE STATE OF 

CALIFORNIA,

Plaintiff and Respondent,

v.

DAVID M.,

Defendant and Appellant.

APPEAL from a judgment of the Superior 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 Lance E. Winters, 

Assistant Attorneys General, Steven D. Matthews and Analee J. Brodie, Deputy 

Attorneys 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 findings. 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 recalculate 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, subdivision (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, 

subdivision (a), a misdemeanor.

Evidence 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 Code, 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. The juvenile court dismissed the 

gang allegations.
3

then hit Julio G. in the back with a wooden two-by-four. Later, when 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 findings of assault with force likely to cause great 

bodily injury as alleged in counts 1 and 3 are duplicative of the true findings of assault 

with a deadly weapon as alleged in counts 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 

judicially created exception which “‘prohibits multiple convictions based on necessarily 

included offenses.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) 

Section 954 applies to juvenile adjudications. (In re Jose H. (2000) 77 Cal.App.4th 1090, 

1094-1095.) It provides: “An accusatory pleading may charge two or more different 

offenses connected together in their commission, or different statements of the same 

offense . . . . The prosecution is not required to elect between the different offenses or 

counts set forth in the accusatory pleading, but the defendant may be convicted of any 

number of the offenses charged . . . .” (§ 954.)

However, “‘The offense of assault by means of force likely to produce great 

bodily injury is not an offense separate 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 same crime prohibited by the same statute 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 Cal.App.4th 360, 370-371.) It makes no difference that the 

alternate ways of committing a single crime are described in two separate subdivisions of 
4

the statute. (See People v. Tenney (1958) 162 Cal.App.2d 458, 461 [“When a single act 

relates to but one victim, 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 them into two subdivisions, 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, ch. 183, § 1.) As reflected in the legislative history, the 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 disposition 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. of Sen. Floor Analyses, 3d 

reading analysis of Assem. 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 respondent agree that the duplicate assault findings are error, 

the parties have disagreed on the remedy. Minor requests that all findings be reversed 

and the matter remanded to the juvenile court for new findings. Respondent suggests that

this court vacate the duplicate assault findings and otherwise affirm the juvenile court’s 

judgment, but does not suggest which subdivision should be vacated. Though the 

 

3 Assault with a deadly weapon is a serious felony for purposes of recidivist 

sentence enhancements, while assault by means likely to produce great bodily injury is 

not, unless the defendant personally inflicted 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 (see People v. 

Ceja (2010) 49 Cal.4th 1, 5-8), the question becomes 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.) 

However, 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 page 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 mean 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).

However 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 

confinement 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.) Although the juvenile court’s minutes 

state that the court declared all offenses to be felonies, the court made no such oral 

statement 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 Welfare 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 court 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 setting 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 the maximum period of 

confinement pursuant to section 726. Subdivision (d)(3) of that section provides in 

relevant part: “If the court elects to aggregate the period of physical 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. 

1202, 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 the 
7

record establishes the juvenile court’s awareness of its discretion under section 702.5 

Nevertheless, minor suggests that the announced maximum period of confinement 

indicates that the juvenile court considered the assaults to be felonies, and that the court 

calculated the period by aggregating it with prior sustained petitions, pursuant to section 

726. Minor speculates that the court calculated the maximum period of confinement by 

beginning with a four-year term as to the count 1 assault, adding three one-year 

consecutive terms for the remaining three assaults, and then adding an additional 10 

months, consisting of the middle terms of three misdemeanors, as follows: the current 

violation of Penal Code section 148.9 (two months); and sustained allegations in two 

prior petitions, a violation of Penal Code sections 594, subdivision (a), and 148 (four 

months each).

Aggregation 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 prior 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. (1991) 

229 Cal.App.3d 46, 56-57.) Here, there is 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 contends 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 computation. (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 juvenile 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 

misdemeanors, 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 determining that the court had jurisdiction and 

sustaining 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 judgment ordering the disposition is reversed. The cause is 

remanded with directions for the trial court to exercise its discretion in compliance with 

Welfare and Institutions Code sections 702 and 726, to declare on the record whether 

counts 2 and 4 are felonies 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