Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. JW114231-00. Robin Walters, Temporary Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Hill, J. and Poochigian, J.
It was alleged in a juvenile wardship petition that appellant B.L., a minor, committed felony violations of Penal Code section 487, subdivision (d)(1) (grand theft of an automobile; count 1), and Vehicle Code section 10851, subdivision (a) (unlawful taking or driving of a vehicle; count 2). Following a jurisdiction hearing, the juvenile court found both allegations true and, pursuant to Penal Code section 17, subdivision (b), declared both offenses to be misdemeanors. In a disposition hearing covering the instant case and a separate case in which appellant suffered an adjudication of disobeying a court order (Pen. Code, § 166, subd. (a)(4)), was placed on probation and was later found to be in violation of probation, the court continued appellant on probation for a period not to exceed three years; declared appellant’s maximum term of imprisonment (Welf. & Inst. Code, § 726, subd. (c)) to be one year six months, less 105 days credit for time served; and ordered him committed to Camp Erwin Owen.
On appeal, appellant argues as follows: The court erred in adjudicating him of both of the instant offenses. Alternatively, he argues, if both adjudications may stand, the court erred in failing to stay punishment on one of them pursuant to Penal Code section 654.
We will conclude that one of appellant’s adjudications must be reversed and remand for further proceedings.
FACTS
Police Officer Oscar Macias testified to the following. At approximately 11:00 a.m. on September 23, 2008 (September 23), he and his partner were in a police vehicle, on patrol, when he saw a green Honda Civic, in which appellant was riding as a passenger, fail to stop at a stop sign on Compton Avenue in Los Angeles. At that point, the officers attempted to effect a stop of the car, but it drove off, increased its speed and shortly thereafter crashed into two parked cars. Appellant got out of the car and fled on foot. Officer Macias and his partner gave chase and apprehended appellant in a nearby parking lot.
Jesus Mendez testified to the following. He is the owner of the car in which appellant was riding. On the morning of September 23, he drove to work and, at approximately 6:55 a.m., parked his car near the intersection of Pico Boulevard and Lorena Street in Los Angeles. He locked the car and gave no one permission to take it. He did not realize it was missing until the police contacted him.
Police Officer Michael Smith testified to the following. On the afternoon of September 23, after he read appellant his Miranda rights, he “asked [appellant] roughly did he take [Mendez’s car] and his response was yes.” (Unnecessary capitalization omitted.) Appellant told the officer “he knew the car was stolen” and “he was actually there when the car was taken.” (Unnecessary capitalization omitted.)
DISCUSSION
Appellant contends the juvenile court erred in adjudicating him of both grand theft of a car and illegally taking or driving the same car, and that therefore only one of these two adjudications can stand. The People concede the point. We agree.
The case of People v. Kehoe (1949) 33 Cal.2d 711 (Kehoe) is directly on point. In that case, the defendant was charged with violating Penal Code section 487 and former Vehicle Code section 503, the predecessor statute to section 10851, which, like its current version, proscribed the driving or taking of a vehicle without the consent of the owner. (Kehoe at p. 716 (conc. opn. of Carter, J.).) The evidence showed that a car was taken in Humboldt County and the defendant was apprehended driving it eight days later 400 miles away in another county. However, the information charged that each offense was committed on or about the same day in Humboldt County. Our Supreme Court held: “[I]n the absence of any evidence showing a substantial break between Kehoe’s taking and his use of the automobile in that county, only the conviction for one offense may be sustained.” (Id. at p. 715.)
Here, the evidence shows the following: a car was unlawfully taken from its location in Los Angeles; appellant admitted being present when the car was taken and admitted, “roughly,” that he took it; and he was riding in the car when it was recovered approximately four hours later in the same city. As in Kehoe, there was no evidence of a “substantial break” between the taking of the car and appellant’s “use” of it some four hours later in the same city. Accordingly, one of appellant’s adjudications in the instant case must be reversed.
There is no dispute that the evidence was sufficient to support findings appellant aided and abetted, and was therefore a principal in, both offenses (Pen. Code, § 31).
Because we reverse one of appellant’s adjudications, we need not address his argument that punishment for one of them must be stayed pursuant to Penal Code section 654.
We turn now to the question of the proper disposition. Appellant suggests that we simply reverse one of his adjudications, but he does not specify which one. The People argue that the matter must be remanded, and the juvenile court directed to strike one of the adjudications—also unspecified—and “clarify the confinement time on both petitions.”
We see no need for clarification of what the People refer to as “confinement time.” Pursuant to Welfare and Institutions Code section 726, subdivision (c) (section 726(c)), the court declared appellant’s maximum term of imprisonment (MTI) to be one year six months, less custody credits. Section 726(c), provides, in pertinent part, that where, as here, a minor is removed from the physical custody of his or her parent or guardian as the result of a juvenile wardship order, “the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (Italics added.) This subdivision goes on to provide, subject to exceptions not relevant here, as follows: the MTI is, for a felony, the longest of the three periods prescribed for the offense; the MTI for a misdemeanor is “the longest term of imprisonment prescribed by law”; and where the court elects to aggregate confinement periods for multiple felony offenses, the MTI must be specified in accordance with the formula set forth in Penal Code section 1170.1, i.e., the sum of the “principal term” (the longest term imposed for any of the offenses) and “subordinate terms” (one-third of the middle term imposed for each other offense). Subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)
Thus, the setting of the MTI requires no act of judicial discretion. (§ 726(c).) As the People point out, it appears that the court calculated appellant’s MTI as follows: six months on appellant’s adjudication in the prior proceeding plus one year on one of the instant offenses, with punishment on the other stayed pursuant to Penal Code section 654. (Pen. Code, § 19 [maximum term for violating Pen. Code, § 166.4, subd. (d): six months], Pen. Code, § 489, subd. (b) [maximum term for misdemeanor grand theft: one year], Veh. Code, § 10851, subd. (a) [maximum term for misdemeanor violation of § 10851, subd. (a); one year].) Now, with the reversal of one of the instant offenses, the MTI can only be, again, one year six months, consisting of six months on the earlier adjudication and one year on the remaining offense in the instant case. There is no need to remand for a determination of the MTI.
Remand, however, is appropriate for the purpose of determining which adjudication must be reversed. In Kehoe, the Supreme Court reversed the conviction on the lesser of the two offenses, an option not available here because, as indicated above, the two instant offenses carry identical one-year terms. The parties, as also indicated above, do not address the issue, and thus nothing in their briefing suggests any basis on which to distinguish the two offenses vis-à-vis which should be reversed. Given that we are not prepared to conclude on the basis of the briefing before us that no such basis exists, remand is appropriate to allow the parties to address the issue below.
DISPOSITION
One, and only one, of appellant’s adjudications is reversed. The matter is remanded to the juvenile court. On remand, the juvenile court is directed to determine which adjudication cannot stand and to vacate that adjudication.