IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

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1 Filed 12/7/10 In re Christopher M. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re CHRISTOPHER M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, v. Plaintiff and Respondent, CHRISTOPHER M., Defendant and Appellant. A (Contra Costa County Super. Ct. No. J ) Christopher M. was found to have committed first degree robbery and first degree burglary, with an enhancement on each count for personal use of a firearm, and committed to a program at juvenile hall. He contends the true finding on the enhancement attached to the burglary count must be reversed because the enhancement does not apply to the offense of burglary. He further contends the juvenile court erred in its calculation of his maximum term of confinement and his custody credits. We agree with these contentions. 1

2 STATEMENT OF THE CASE Appellant was first adjudged a ward of the court (Welf. & Inst. Code, 602) on March 6, 2008, on the basis of a sustained petition alleging misdemeanor trespass. 1 He was placed on probation, to reside at home. On April 18, 2008, appellant was charged with violating probation by being suspended from school for disruptive behavior. On May 9, he was additionally charged with violating probation by having gang graffiti in his bedroom. Appellant admitted the two violations on May 13, and was detained in juvenile hall. On May 28, he was released to his mother and placed on electronic monitoring for 30 days. On October 20, appellant was charged with violating probation by failing to enroll in school. He was arrested on December 17, after marijuana plants were found in his home, and another probation violation was charged. On December 23, the violation for growing marijuana was sustained and the violation for failing to enroll in school was dismissed. Appellant was detained in juvenile hall, where he had been in custody since his arrest. On January 8, 2009, he was committed to the Orrin Allen Youth Rehabilitation Facility (OAYRF) for 90 days. His maximum period of custody was stated to be six months, and he was given 23 days of credit. On March 4, 2009, appellant was charged with violating probation because he had been removed from OAYRF for throwing urine-soaked sandals at another resident. He admitted the violation and 24 days were added to his commitment. He was subsequently released from OAYRF on May 1, As of that date, he had served 159 days in custody. On July 2, appellant was charged with violating probation by testing positive for cocaine. On the same date, a supplemental petition was filed under Welfare and Institutions Code section 602, subdivision (a), alleging two felony counts, first degree 1 Appellant was initially charged with one count of misdemeanor vandalism; the petition was amended to allege a count of misdemeanor trespass and the vandalism count was dismissed. 2

3 robbery in concert (Pen. Code, 2 211/212.5, subd. (a)/213, subd. (a)(1)(a)) of Shawn Johnson, and first degree burglary ( 459/460, subd. (a)) of Shawn Johnson. An enhancement for personal use of a firearm pursuant to section , subdivision (b), was alleged in connection with each count. The prosecution gave notice that it would seek to aggregate the prior sustained trespassing charge. Appellant was detained in juvenile hall. On October 20, appellant admitted the July 2 probation violation and disposition was deferred pending determination of the supplemental petition. A contested jurisdictional hearing resulted in the court sustaining the allegations of the supplemental petition, and appellant was detained in juvenile hall pending disposition. After a contested dispositional hearing, on March 19, 2010, appellant was continued as a ward and committed to the Youthful Offender Treatment Program (YOTP) at juvenile hall, with a maximum custody time of 30 years six months and 262 days of custody credit. Appellant filed a timely notice of appeal on April 16, STATEMENT OF FACTS 3 At approximately 8:15 a.m. on July 1, 2009, a 911 operator received a call in which he did not speak to a specific individual but heard an argument in the background and someone saying, I ll get the money. About three and a half minutes later, the operator initiated a call which was answered by Shawn Johnson. Johnson said three Hispanics, two males and a female, armed with a rifle with a clear clip, had just kicked in the door to the apartment where he was staying and were outside in front of the house with a black Lexus and a green Pontiac. They were trying to leave but their car was messed up. One of the males was wearing a camouflage coat and the other a black shirt. 2 All further statutory references will be to the Penal Code unless otherwise specified. 3 Only the facts underlying the supplemental petition are relevant to the issues raised in this appeal. 3

4 The police officers who arrived at the scene found minor Fernando L., wearing a camouflage jacket, in the driver s seat of a black Lexus; A. M. standing by the raised hood of a green Pontiac; and appellant in the passenger seat of the Pontiac. The three individuals were detained and a search revealed $730 in cash in Fernando s right front pants pocket, $500 in cash on A. s person, and nothing of evidentiary value on appellant s person. The police found a loaded sawed-off rifle with a clear magazine in the Pontiac. Johnson identified the rifle as the one the intruders had used. The police found the door frame to the apartment had been shattered like it had been kicked in or forced open. Inside the apartment, they found an unfired bullet consistent with the bullets in the sawed-off rifle some five to seven feet from the doorframe. Johnson was interviewed. He said that he and his friend, Devon Canada, had been lying on their beds when he heard knocking at the door. Not expecting anyone, Johnson ignored the knocking, which continued. Johnson heard a loud boom and the door opened. Johnson got out of bed, asking what was going on, and the intruders said, Just give us the money, just get us the money. Johnson told them, [d]on t shoot me, and called to Canada to get the money off his dresser. The female intruder grabbed the gun from the intruder in the green coat, pointed it at Johnson, and told him to get the money. Johnson gave them his cell phone and $350. They left the phone, took the money, and left the apartment. Johnson called 911; Canada had already called when the door was kicked in. At the jurisdictional hearing, Johnson claimed he did not remember calling 911 and reporting that someone had kicked in his door, and stated he did not recall to virtually every question he was asked about the incident. He ultimately acknowledged he did not want to testify, stated he had never been a victim of crime or had anything stolen from him, and said he was not answering questions because he did not want to be testifying. Johnson was in jail at the time of the hearing, charged with possession of marijuana, and was on probation for shooting at a vehicle. 4

5 DISCUSSION I. As stated above, the juvenile court sustained all the allegations of the supplemental petition, including the section , subdivision (b), enhancements on both counts. Appellant contends the true finding on the enhancement attached to the burglary count must be stricken because burglary is not an offense to which section applies. Respondent concedes the point. Section , subdivision (b), provides for an additional, consecutive term of 10 years for any person who personally uses a firearm in the commission of a felony specified in subdivision (a). Burglary is not among the felonies listed in subdivision (a). As respondent recognizes, imposition of the enhancement on the burglary count resulted in an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354.) The enhancement must be stricken. II. Appellant next contends the juvenile court erred in calculating appellant s maximum custody time, and asks us to correct the error. He urges that section 654 precludes punishment for both the robbery and the burglary, and that because the trial court did not state that it was imposing a consecutive term for the aggregated trespass count, the term should be deemed concurrent. Accordingly, appellant contends the correct maximum custody time is 19 years, consisting of the upper term of nine years for the count of robbery in concert ( 213, subd. (a)(1)(a)) plus the 10-year additional term for the section , subdivision (b), enhancement. When a juvenile court sustains criminal violations resulting in an order of wardship (Welf. & Inst. Code, 602), and removes a youth from the physical custody of his parent or custodian, it must specify the maximum confinement term, i.e., the maximum term of imprisonment an adult would receive for the same offense. (Welf. & Inst. Code, 726.) Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms, both on the basis of multiple counts, and on previously sustained section 602 petitions in computing the maximum confinement term. 5

6 (In re Adrian R. (2000) 85 Cal.App.4th 448, 454.) When aggregating multiple counts and previously sustained petitions, the maximum confinement term is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. (Welf. & Inst. Code, 726; Pen. Code, , subd. (a); In re Deborah C. (1981) 30 Cal.3d 125, 140.) (In re David H. (2003) 106 Cal.App.4th 1131, ) Section 654 provides: 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. The purpose of the statute is to ensure that a defendant s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.) The section 654 prohibition applies to consecutive, or aggregated, terms calculated under Welfare and Institutions Code section 726, subdivision (c). (In re Asean D. (1993) 14 Cal.App.4th 467, 474.) Section 654 precludes multiple punishment for a single act or omission or for an indivisible course of conduct. (People v. DeLoza (1998) 18 Cal.4th 585, 591.) 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. (Neal v. State of California [(1960)] 55 Cal. 2d [11], 19.) (People v. Kwok, supra, 63 Cal.App.4th at p ) Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial court s findings will not be disturbed on appeal if they are supported by substantial evidence. (Id. at pp ) Appellant argues that he could not be punished for both the robbery and the burglary because both offenses were committed with the single intent of taking Johnson s money. (People v. Le (2006) 136 Cal.App.4th 925, 931; People v. Smith (1985) 6

7 163 Cal.App.3d 908, 912.) Respondent does not argue otherwise regarding appellant s intent, but maintains section 654 should not apply because appellant committed crimes of violence against two people, as Johnson s friend Canada was also in the apartment at the time of the offenses. Section 654 does not preclude multiple punishment when the defendant s violent act injures more than one victim. (People v. Deloza, supra, 18 Cal.4th at p. 592; People v. Miller (1977) 18 Cal.3d 873, 885.) The robbery of a victim at gunpoint has been held to be an act of violence such as to preclude application of section 654 in the case of multiple convictions involving multiple victims. (People v. Miller, at p. 886.) Burglary may also be treated as a crime of violence when the defendant personally used a firearm in committing the offense. (People v. Centers (1999) 73 Cal.App.4th 84, 99.) To preclude application of section 654, however, each of the crimes must have involved at least one different victim. (Id. at p. 102; People v. Garcia (1995) 32 Cal.App.4th 1756, ; People v. Miller, at p. 886, fn. 11.) The petition alleged only one victim of the robbery and the burglary, Johnson, and was found true as alleged. In People v. Centers, supra, 73 Cal.App.4th 84, , upon which respondent relies, the defendant entered a residence and kidnapped one of the three occupants, and the multiple victim exception was applied to permit sentencing on both the kidnapping and burglary convictions. The information in Centers did not allege specific victims of the burglary, but the evidence supported the conclusion that at least one was not also a victim of the kidnapping. (Ibid.) Here, however, the petition did specifically allege the victim of each charged offense, and the single victim, Johnson, was the same in each of the offenses. Additionally, it is not clear that the evidence would have supported finding Canada was a victim of either offense. Canada did not give a statement to the police or testify at the hearing; his involvement in the events is described only in Johnson s statement to the police. From that statement, it appears that Canada was in bed when the intruders entered the apartment, that Johnson s interaction with the intruders occurred in a hallway, not in a bedroom, and that Johnson called to Canada to get money from Johnson s dresser but was then sent by the intruders to get the money 7

8 himself. There was no evidence Canada was confronted by the intruders or even that he heard or saw them. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. (People v. Perez (1979) 23 Cal.3d 545, , fn. 3.) (People v. Hester (2000) 22 Cal.4th 290, 295.) Appellant s maximum period of custody must be calculated without inclusion of the term for the burglary. In addition to the section 654 issue, appellant contends his maximum custody time must be based on a concurrent rather than a consecutive term for the prior trespass. The juvenile court did not explain how it calculated the maximum custody time of 30 years six months, including whether it intended a concurrent or a consecutive term for the trespass count. The juvenile court has discretion to impose either concurrent or consecutive terms when aggregating multiple counts or petitions. (In re Jesse F. (1982) 137 Cal.App.3d 164, ; Welf. & Inst. Code, 726.) Where the court fails to specify whether terms for multiple counts are to run concurrently or consecutively, any doubt is resolved in the minor s favor and the terms are deemed to be concurrent. (In re James A. (1980) 101 Cal.App.3d 332, 339.) Appellant correctly points out that neither the court itself, nor the probation report recommending a maximum term of 30 years six months, stated whether it intended the terms for the current and prior offenses to run concurrently or consecutively. Indeed, the court never actually stated it was aggregating the current and prior petitions, although appellant was given notice that the prosecutor was seeking aggregation. However, there is no way the court could have calculated a maximum term of 30 years six months other than to aggregate the petitions and impose consecutive terms. The current petition resulted in sustained charges of robbery in concert, for which the term of punishment is three, six or nine years ( 213, subd. (a)(1)(a)); first degree burglary, carrying terms of two, four or six years ( 461, subd. (a)); two section , subdivision (b), enhancements, each carrying a term of 10 years; and the prior trespass, with a term of six months ( 19). The only way a sentence of 30 years six 8

9 months could be reached with this combination of offenses was to use the robbery as the principal offense, with an upper term of nine years; add one third of the middle term for the burglary, 16 months; add 20 years for the two enhancements; and add one third of the term for trespass, two months. Had the court not intended to aggregate the petitions, or intended to impose a concurrent term on the trespass, the maximum term of confinement would have been 30 years four months, not 30 years six months. We conclude appellant s maximum term of confinement must be corrected to exclude the term for the burglary as well as the 10-year term for the enhancement on that count. The correct maximum term is 19 years two months. III. Appellant further contends the juvenile court s order must be modified to add credits for the time he spent in custody on the trespass charge as well as time he spent on the current charges. The court gave appellant credit for 262 days in custody, reflecting the time from his July 1, 2009 arrest through the March 19, 2010 dispositional hearing. Appellant had previously spent 159 days in custody in connection with the trespass count of the prior petition. When the juvenile court aggregates the maximum period of confinement on multiple petitions, it must also aggregate the predisposition custody credits attributable to the multiple petitions. (In re Emelio C. (2004) 116 Cal.App.4th 1058, 1067.) Respondent concedes that appellant s argument is correct if the juvenile court aggregated the petitions, but argues that the record is unclear as to whether the court did so. As discussed above, the court s calculation of the maximum term of confinement necessarily demonstrates the court did aggregate the petitions. The orders must be corrected to reflect an additional 159 days of credit. DISPOSITION The true finding on the section , subdivision (b), allegation attached to count 2 of the petition (burglary) must be stricken. The juvenile court s orders must be corrected to reflect a maximum custody term of 19 years two months, and a total of 421 days of custody credit. As so corrected, the orders are affirmed. 9

10 Kline, P.J. We concur: Haerle, J. Lambden, J. 10