Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW124034-00 Jon E. Stuebbe, Judge.
Randall H. Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, Lewis A. Martinez and Leann LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Franson, J.
A juvenile court found true the allegations that appellant Christopher G.: 1) received stolen property (Pen. Code, § 496, subd. (a)); 2) used tear gas under circumstances other than self-defense (§ 12403.7, subd. (g)); and 3) purchased, possessed, or used tear gas as a minor (§ 12403.7, subd. (d)). The court set the maximum confinement period to four years, four months, but granted appellant probation with a 30-day commitment to juvenile hall and a 15-day commitment to the electronic monitoring program. Appellant’s sole contention on appeal is that the trial court erred in failing to stay his sentence for either count 2 or count 3 in violation of section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Frank Randel found that his GPS unit and a number of other items had been stolen from his truck sometime during the night or early morning of March 26 or 27, 2010. Checking online classified ads, he found a post for a GPS unit matching his stolen unit. He set up a meeting with the person who posted the ad, who turned out to be appellant. They met in a public place, and Randel confirmed the GPS unit was indeed his. He then asked some bystanders to call the police and proceeded to take appellant into his custody to wait for the police to arrive.
Appellant struggled against Randel, pulled out a can of pepper spray and sprayed Randel in the face two or three times. Randel managed to maintain his hold on appellant, eventually subduing him until police arrived.
Appellant testified he had found the GPS unit in a gutter. He had the pepper spray with him as protection in case the sale went awry, and claimed self-defense at the adjudication hearing.
DISCUSSION
Appellant contends his actions underlying counts 2 and 3 constitute an indivisible course of conduct with a single objective - to escape from Randel’s custody. Count 2 in the information alleged unlawful use of tear gas under section 12403.7, subdivision (g). Count 3 alleged unlawful purchase, possession, or use of tear gas by a minor under section 12403.7, subdivision (d). Appellant asserts the juvenile court interpreted count 3 to allege appellant’s use of tear gas, as opposed to mere possession or purchase, making count 3 repetitive to count 2’s use allegation. Respondent contends the juvenile court considered count 3 to be a possession charge, but the juvenile court erred in finding it to be a felony. Appellant asserted in passing in his opening brief that the juvenile court should have found count 3 to be a misdemeanor if it was for mere possession, but in his reply brief, asserts section 654 applies notwithstanding a finding that count 3 is a possession charge. We agree with respondent that the record indicates trial counsel and the court understood count 3 to be for possession of the tear gas, not use, and count 3 should thus be declared a misdemeanor and the maximum commitment period reduced. We find section 654 inapplicable. In all other respects, the judgment is affirmed.
Respondent and appellant agree the revised maximum confinement period would be four years, based on modifying count 3’s sentence to one year, and adding one-third of the one-year sentence to the sentences for counts 1 and 2, in apparent accordance with the formula set forth in section 1170.1, subdivision (a) and pursuant to Welfare and Institutions Code section 726, subdivision (c). (See also In re Eric J. (1979) 25 Cal.3d 522, 536-537 [including misdemeanor offenses under section 1170.1 for purposes of aggregation].)
Section 654 limits punishment for multiple convictions arising out of either an act or omission, or a course of conduct deemed to be indivisible in time, where the accused had only a single principal objective. (People v. Beamon (1973) 8 Cal.3d 625, 639.) “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (Ibid.) “[I]n determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury.” (People v. Centers (1999) 73 Cal.App.4th 84, 101.) “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Even where a defendant has similar but consecutive objectives, multiple punishments are permitted. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
The juvenile court impliedly found appellant had multiple objectives when it imposed consecutive sentences for the three counts. We find substantial evidence supports the juvenile court’s implied finding. Appellant testified he purchased the pepper spray as a safety precaution prior to the altercation, and that he “usually” carried it. It is reasonable the juvenile court could have found that appellant’s intent in possessing the tear gas was for protection, and not for use, merely as a deterrent against a buyer’s unpredictable behavior and formed well before his interaction with Randel. It is also reasonable the juvenile court could have found that appellant thus formed a separate, subsequent intent in using the tear gas on Randel once Randel took him into his custody. Substantial evidence supports the juvenile court’s findings.
Count 3 as a Misdemeanor
Count 3 constituted a violation of section 12403.7, subdivision (d), which states, “No person who is a minor shall purchase, possess, or use tear gas or tear gas weapons.” Subdivision (g) of the same section, states in pertinent part, “Any person who uses tear gas or tear gas weapons except in self-defense is guilty of a public offense and is punishable” as either a felony or a misdemeanor. Thus, subdivision (g) sets forth the punishment for use of tear gas only, and not for possession or purchase. Section 12403.7 is set forth in Article 1 (“General Provisions”) of Chapter 4 (“Tear Gas Weapons”). Section 12420 sets forth in Article 2 (“Unlawful Possession and Sale”) of the same chapter the punishment for unlawful possession of tear gas, which is imprisonment in the county jail for not exceeding one year, or a fine, or both. Unlawful possession of tear gas therefore appears to be a misdemeanor.
Section 12420 states in pertinent part: “Any person … who within this state knowingly … possesses, or transports any tear gas or tear gas weapon, except as permitted under the provisions of this chapter, is guilty of a public offense and upon conviction thereof shall be punishable by imprisonment in the county jail for not exceeding one year or by a fine not to exceed two thousand dollars ($2,000), or by both.” We note, nowhere in the chapter appears a provision designating punishment for unlawful purchase of tear gas.
The record makes clear that on multiple occasions, both the People and defense counsel referred to count 3 as a possession charge, and the court understood count 3 as a possession charge. Defense counsel in his closing argument stated, “Count III, possession of tear gas as a minor, he possessed the tear gas. I don’t think there’s any question about that.” The court, in handing down the judgment, stated, “as to Count III, that’s a felony. There’s no doubt. There’s no dispute.” At the dispositional hearing, defense counsel again clarified he considered count 3 to be a possession charge and even offered in mitigation to the charge the fact that appellant purchased the tear gas at a retail store, stating “[t]he minor truly wasn’t aware that he wasn’t allowed to carry this item.” The court summarized appellant’s conduct as first possession, then later use, of the tear gas: “when you combine all of those actions and his going to that scene with what turns out to be … an implement used to deal with violent situations, then he went ahead and used it....” The record indicates the parties and the court understood count 3 to be a possession charge. Consequently, count 3 should have been declared a misdemeanor and the maximum confinement period determined accordingly.
As appellant notes in his reply brief, the trial court is presumed to understand and properly apply the law. However, the presumption is not unrebuttable. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Here, as noted above, the record is clear that trial counsel and the court understood count 3 to be a possession charge, which should have thus been declared a misdemeanor.
DISPOSITION
Count 3 is modified to a misdemeanor charge and the juvenile court is directed to amend the dispositional order to reflect that count 3 is a misdemeanor and to reflect the concomitant reduction in appellant’s maximum confinement time. In all other respects, the judgment is affirmed.