Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV33686
ELIA, J.Jon H., a minor, appeals from an order of wardship (Welf. & Inst. Code, § 602) entered following findings by the juvenile court that he received stolen property (Pen. Code, § 496, subd. (a)), resisted arrest (Pen. Code, § 148, subd. (a)(1)), committed robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The court placed Jon on probation on the conditions that he serve 60 days in juvenile hall and thereafter, 60 days on electronic monitoring supervised release.
On appeal, Jon raises three issues. First, he contends that the juvenile court's true finding on the receiving stolen property count should be reversed because the prosecution failed to present substantial evidence of the corpus delecti of the offense. Second, he received ineffective assistance of counsel in that trial counsel failed to object to the "untimely" amendment to a Welfare and Institutions Code section 602 petition (hereafter 602 petition). Third, the punishment on the assault count should have been stayed pursuant to Penal Code section 654.
In an accompanying petition for writ of habeas corpus, which this court ordered considered with the appeal, Jon asserts two instances of ineffective assistance of counsel. Specifically, he contends that his counsel was ineffective in failing to seek to suppress statements that he made to a police officer. Further, his counsel was ineffective because counsel failed to object to an amendment to one of the 602 petitions that added a count of assault with force likely to cause great bodily injury. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
However, for reasons that follow we find it necessary to remand the case to the juvenile court for further proceedings.
Facts and Proceedings Below
In this case there were three separate 602 petitions. Accordingly, we set forth the evidence adduced at the jurisdiction hearing on each one.
602 Petition C: Resisting Arrest
On October 14, 2007, at approximately 5:00 p.m., Mountain View Police Officers Cuahutemoc Gonzalez and Curtis Lau went to Whisman Park to investigate a report of nine juveniles drinking alcohol and smoking marijuana. The officers entered the park from different directions. As Officer Gonzalez approached the group he could smell the odor of marijuana and could see smoke in the area by the juveniles. However, he could not see anyone in particular who was smoking. He did see somebody drinking, but at the hearing he could not remember who it was.
Officer Gonzalez, who was in uniform, identified himself to the juveniles as a police officer. Jon yelled "police" and he and two other juveniles ran from the group. Officer Gonzalez shouted for Jon to stop, but he continued to run toward a bridge away from the officer.
Officer Lau was near the bridge and heard Officer Gonzalez tell someone to stop. Officer Lau saw Jon and two individuals running across the bridge. After they crossed the bridge and headed north, Officer Lau ran after them. He told them to stop. Initially, they continued to run, but then "stopped, turned around, and came back" to where Officer Lau was standing. Officer Lau escorted the juveniles back to Officer Gonzalez so that he could complete his investigation.
During the subsequent investigation, two of the juveniles were found in possession of marijuana. Jon, however, did not have marijuana in his possession.
Jon testified that he did not hear Officer Gonzalez yell, "Stop" when he approached. Jon ran because everyone else was running. Jon denied that he shouted "Hey, Police. Run."
602 Petition B: Receiving Stolen Property
On July 21, 2007, Mountain View Police Sergeant Gregg Oselinsky stopped two people who were riding bicycles on the sidewalk of Rengstorff Avenue. Officer Oselinsky recognized the bicycles as being of a type that Google employees use for transportation on the Google campus. The bicycles seemed similar to the Google bicycles. Normally, Google bicycles have a wire basket on the front and a flag holder attached to the bicycle. The two bicycles in question were made by Huffy and had wire baskets and flag brackets, but the flags had been removed. One of the bicycles had a distinct paint pattern, with colors common to Google bikes. The other bicycle was black.
The two people that Officer Oselinsky stopped told him that they borrowed the bicycles from people they met at the basketball area of Rengstorff Park. According to Officer Oselinsky, the bicyclists said they borrowed the multicolored bicycle from a "young black male with light skin and a big afro." Officer Oselinsky released the bicycles to a Google security representative named Leonard Bravo. The representative came to identify the bicycles as belonging to Google and take them back. Only then was Officer Oselinsky able to positively identify the bicycles as stolen Google bicycles.
This testimony was admitted not for the truth of the matter, but to explain the officer's subsequent conduct.
Officer Oselinsky took the two people to Rengstorff Park and asked them to point out the person that had lent them the bicycles. They identified Jon as that person. Officer Oselinsky went up to Jon who was in the basketball area of the park. Officer Oselinsky approached Jon alone while another officer stayed with the two people that Officer Oselinsky had stopped. Officer Oselinsky testified that Jon confirmed that he had lent the multicolored bicycle to one of the people that Officer Oselinsky had in custody. Further, Jon admitted that he knew the bicycle was stolen from Google. He told Officer Oselinsky that he found the bicycle in some bushes across the street from where the Century 16 movie theater is located. The movie theater is directly across the street from a Google building.
Again, this testimony came in not for the truth of the matter, but to explain what Officer Oselinsky did next.
Officer Oselinsky arrested Jon. According to Officer Oselinsky, after being given Miranda advisements, Jon told him that he had found the bicycle a week earlier and took it because he did not want to walk home from the theater. Jon said that he recognized the bicycle as a Google bicycle from the type of bicycle it was, the basket, and warnings from his friends who had been stealing them from Google.
Leonard Bravo, a representative of Google security, testified that the Mountain View Police Department called him on July 21, 2007, to identify two bicycles. He recognized the bicycles he saw as Google bicycles. Bravo testified that Google bicycles have a large sticker that is about a foot long that has a "big letter G and then Google." Bravo could not remember whether the two bicycles he saw on July 21, 2007, had stickers. He did not look at the serial numbers of the bicycles to determine if they belonged to Google and he did not have a report that either one of the bicycles was stolen.
During his testimony, Bravo appeared to be confused about which incident he was discussing. He referred to events involving throwing a bicycle into a fountain and other details that were unrelated to Jon's case. Jon's counsel moved to strike Bravo's testimony because it did not "look like he's recalling the actual incident." The court denied the motion. Ultimately, the prosecution asked the court to "throw out" Bravo's testimony because "he was not a very good witness" and it "didn't appear that he knew exactly which case he was talking about."
After Bravo testified, the prosecution recalled Officer Oselinsky. Officer Oselinsky testified that he had been to Google many times, was familiar with Google's practice of leaving unlocked bicycles on their property and knew that they had recently started painting their bicycles with the company logo to help identify them and prevent theft. The multicolored bicycle that Officer Oselinsky saw on the day in question was "painted with the company logo color." Google expected law enforcement to know that a bicycle was a Google bicycle by equipping it with a basket, flag and flag holder and informing the police that the bicycle was to be considered stolen if found outside of Google property. Officer Oselinsky determined that the two people he initially stopped were not Google employees.
Jon testified that he did not tell Officer Oselinsky that he knew the bicycles were stolen; and he did not loan them to anyone. However, he conceded that he "might have" told Officer Oselinsky that he "had picked up the bikes from someone or found some bikes somewhere near a theater." Jon explained that there were "bikes always around." On cross-examination, Jon admitted that in July 2007, he "might have" found a bicycle in Mountain View that "was multi-colored and that had a basket and looked like pretty much the bike [Officer Oselinsky] described." When pressed by the District Attorney to admit that it was the multicolored bicycle that was the subject of his case, Jon became evasive, and stated that he had forgotten whether or not he had found a bicycle similar to the one that Officer Oselinsky described to him when he was at Rengstorff Park.
602 Petition A: Robbery and Assault with Force Likely to Cause Great Bodily Injury
On October 19, 2007, James T. met two friends, Owen M. and Shawn B., after school to "hang out" in downtown Mountain View. While it was still light, the boys walked to the Moffett entrance to the Stevens Creek Trail. They saw a group of five males who appeared to be in their late teens. James had never seen them before. One of the youths was Caucasian and the others were African American. All had short hair except for one of the African American youths who wore his hair in an "afro" that was pulled back with a headband. The youths were standing about 20 feet away next to a bush and near a bridge. Shawn received a telephone call from his mother and left James and Owen.
The youths walked away down the trail to James's left. They returned about 20 minutes later accompanied by two more youths. One of the youths told James to "look over there" as he pointed to a group of manmade bike jumps. James and Owen accompanied the youths to the dirt jumps. Owen stopped at one of them, but James continued walking with five or six of the youths a little further to a dry creek bed. In an offensive manner, the Caucasian youth grabbed James and told him to give him what was in his pockets because they were going to take it. James was frightened, but said that he would not give the Caucasian youth his money. The youth hit James in the right eye with his left hand. James fell into some bushes.
After the Caucasian youth hit James and he was on the ground, the other youths were talking about taking his property and were kicking him hard. James could feel them going through his pockets and taking everything out. The youths walked away laughing.
James got up and walked back to where Owen was still standing. Owen asked James what had happened. According to Owen, James told him that he had been jumped by the African American youth with an afro. James explained that one of the youths grabbed him around the arms and told him to empty his pockets, but when he refused the youths began beating him. James said that he fell to the ground and three of the youths began "kicking him and stomping on him." The youths were taking property from his pockets. James told him that the youth with the afro had hit him.
The court allowed Owen to testify to what James had told him under the spontaneous statement exception to the hearsay rule.
When Owen saw James's eye he said that they had to get help. Owen's father took James to Stanford hospital where he was treated for the eye injury and bruises. James received four stitches along the edge of his eye.
When the police questioned James at the hospital he gave descriptions of the youths. The police returned an hour later and handed James a digital camera with three photos of a possible suspect. James told one of the police officers that he recognized the person in the photograph as one of the African American youths involved in the incident. Owen also viewed the photographs and identified the person in the photograph as being at the scene. The photographs were of Jon. James made an in-court identification of Jon as one of the youths present during the incident in the creek bed.
When asked to rate the certainty of his identification of Jon on a scale of "one to ten, with ten being most positive," James replied, "Ten that he was present, but that he assaulted me six."
Jon testified in his own defense that he was not involved in the incident involving Owen and James, neither of whom he had met before.
Discussion
Corpus Delecti of Receiving Stolen Property
Jon contends that the true finding on the receiving stolen property count should be reversed because the prosecution failed to present substantial evidence of the corpus delecti of the offense. Alternatively, if this issue is not preserved for review, his counsel was ineffective for failing to raise an objection in the juvenile court.
Penal Code section 496, subdivision (a) provides in relevant part: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year."
"To convict an accused of a criminal offense, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the perpetrator. Though no statute or constitutional principle requires it, California, like most American jurisdictions, has historically adhered to the rule that the first of these components-the corpus delicti or body of the crime-cannot be proved by exclusive reliance on the defendant's extrajudicial statements." (People v. Alvarez (2002) 27 Cal.4th 1161, 1164-1165 (Alvarez).)
Thus, "[i]n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause." (Alvarez, supra, 27 Cal.4th at p. 1168.) The general rule is that the prosecution cannot satisfy this burden by relying solely on the defendant's "extrajudicial statements, confessions, or admissions." (Id. at p. 1169.)
At the outset, we point out that no objection is necessary to raise this issue on appeal. In essence, Jon is raising a sufficiency of the evidence argument. Claims based on insufficiency of the evidence with regard to the corpus delecti rule may be raised on appeal absent an objection in the trial court. (Alvarez, supra, 27 Cal.4th at p. 1172, fn. 8, 1178; People v. Rodriguez (1998) 17 Cal.4th 253, 262 [in general an appellant need not have objected at trial to preserve the right to review the sufficiency of evidence on appeal].)
On review, we examine the record for "some evidence" of the corpus delicti. (Alvarez, supra, 27 Cal.4th at p. 1178.) The evidence may be circumstantial, and "is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible." (Id. at p. 1171; see also People v. Morales (1989) 48 Cal.3d 527, 553.) Once the prosecution has provided the "necessary quantum of independent evidence" to establish the corpus delicti, "the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues." (Alvarez, supra, at p. 1171.)
"[T]he purpose of the corpus delicti rule is 'to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.' [Citation.] As one court has explained, 'Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.' [Citation.]" (People v. Jennings (1991) 53 Cal.3d 334, 368.)
" ' "Wigmore explains [the rule] this way: every crime 'reveals three component parts, first the occurrence of the specific kind of injury or loss (as in homicide, a person deceased; in arson, a house burnt, in larceny, property missing); secondly, somebody's criminality (in contrast, e.g. to accident) as the source of the loss, -- these two together involving the commission of a crime by somebody; and thirdly, the accused's identity as the doer of this crime.' By the great weight of authority, the first two without the third constitute the corpus delicti." [Citation.] [¶] California distinguishes between the evidentiary and the proof sides of the corpus delicti rule since "[it] is not a requirement of federal law, and it has no basis in California statutory law." [Citation.] The evidentiary side of the rule, that "restrict[s] the admissibility in evidence of otherwise relevant and admissible extrajudicial statements of the accused," has been abrogated by article I, section 28(d) of the California Constitution (the "truth-in-evidence" law [Proposition 8]). [Citation.] However, "section 28(d) did not eliminate the independent-proof rule . . . that prohibits conviction where the only evidence that the crime was committed is the defendant's own statements outside of court." [Citation.]' " (People v. Davis (2008) 168 Cal.App.4th 617, 633.)
" 'No universal and unvariable rule can be laid down in regard to the proof of the corpus delicti. Each case depends upon its own peculiar circumstances.' [Citations.]" (People v. Ochoa (1998) 19 Cal.4th 353, 405.)
"Significant here, 'the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm]. Rather, the foundation may be laid by introducing evidence which creates a reasonable inference that the [harm] could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event.' [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p. 405.)
Jon argues that the evidence that the bicycles belonged to Google and were loaned to the bicyclists does not support a reasonable inference that Google sustained a loss or that this loss had occurred by a criminal agency. We reiterate that the prosecution need not eliminate all inferences tending to show a noncriminal cause of the harm. (People v. Jacobson (1965) 63 Cal.2d 319, 327.)
Jon does not cite any cases where the prosecution failed to establish the corpus delecti of receiving stolen property. As the Second District Court of Appeal pointed out in People v. Riccio (1996) 42 Cal.App.4th 995, 1000, such cases are "rare."
The independent evidence establishes that bicycles belonging to Google were found in the possession of two individuals, who were not Google employees, on a street in the City of Mountain View, not on the Google campus. From the evidence that Google had informed the police that any of their bicycles found away from the Google campus could be considered stolen, establishes that Google does not loan their bicycles out for purposes other than to be used on the campus. Taken together this evidence establishes the occurrence of a specific kind of injury or loss (stolen property in the possession of someone other than the owner) and somebody's criminality (the bicycles were stolen) as the source of the loss.
However, we have to question whether this is enough where a crime such as receiving stolen property is concerned. Generally, proof of the corpus delicti does not require proof of the identity of the perpetrator of the crime, or proof that the defendant committed the crime. (People v. Cobb (1955) 45 Cal.2d 158, 161.). However, as to the corpus delicti of receiving stolen property, because it is a possessory offense in the sense that the accused must have acquired a measure of dominion or control over the property (People v. Land (1994) 30 Cal.App.4th 220, 224) it cannot be shown that the crime has been committed without identifying the accused as the perpetrator. Thus, the independent proof must implicate the accused in order to show that the crime has been committed. (See Smith v. United States (1954) 348 U.S. 147 [75 S.Ct. 194] [as to crimes in which there is no tangible corpus delecti, the independent evidence must implicate the accused in order to show that the crime has been committed].)
For purposes of the corpus delecti rule, receiving stolen property consists of two elements: the receipt of stolen property and the knowledge that the property was stolen. (People v. Barnes (1962) 210 Cal.App.2d 740, 744; People v. Riccio, supra, 42 Cal.App.4th 995, 1000-1001; see also People v. Hawkins (2004) 124 Cal.App.4th 675, 680 [for a variety of crimes the corpus delicti includes evidence of the defendant's mental state].)
To establish the corpus delecti in this case, logically, there must be prima facie evidence that Jon was in possession of the bicycles at some point knowing they were stolen. While the facts necessary to establish a prima facie case may not come from Jon's admissions, they can come from Jon's testimony. (People v. Martinez (1994) 26 Cal.App.4th 1098, 1104, [a defendant's testimony is admissible to prove the corpus delecti].)
Here, in effect, Jon admitted that at some point he had "picked up the bikes from someone" or had "found some bikes somewhere near a theater," and that in July 2007, one of the bicycles he found was multicolored. The inference to be drawn from this testimony is that at least the multicolored bicycle was in Jon's possession at some time. Further, we are satisfied a reasonable inference of knowledge that this bicycle was stolen can be shown by the circumstances surrounding Jon's possession of it. "Possession of a stolen item in and of itself is a factor which could assist a reasonable person in formulating a strong suspicion that the recipient knew the item was stolen." (People v. Martin (1973) 9 Cal.3d 687, 696.) As noted, evidence of the corpus delecti of an offense may be circumstantial and "is sufficient if it permits an inference of criminal conduct, even if a non criminal explanation is also plausible." (Alvarez, supra, 27 Cal.4th at p. 1171.)
Here, there was prima facie circumstantial evidence to establish a reasonable inference that Jon knew that the multicolored bicycle he was riding in 2007 was stolen. He found the bicycle on the street, he knew that it was not his, and he admitted that there are always bicycles "like that around." When asked by the District Attorney if he had found the multicolored bicycle that was the subject of the case, Jon became evasive, saying that he had forgotten whether or not he found a bicycle similar to the one Officer Oselinsky described to him. A reasonable inference to be drawn from this evasive testimony concerning finding the bicycle is that Jon knew it was stolen.
Accordingly, we reject Jon's challenge to the true finding on the receiving stolen property count. Since we have addressed Jon's challenge on the merits we need not address his contention that his attorney was ineffective in failing to preserve this issue below.
Ineffective Assistance of Counsel
Originally, 602 Petition A was filed on October 23, 2007. This petition contained only the robbery count. On January 18, 2008, at the start of the jurisdiction hearing, the prosecutor informed the court that he wished to add count two—assault by means of force likely to produce great bodily injury—to the petition. The prosecutor informed the court that he had informed Jon's counsel of his intention "shortly after we set the case for hearing." When the court asked if Jon's counsel had any objection, counsel acknowledged that the prosecutor had given him notice. Then, he went on to say that he did not "know currently if the People can amend the petition to add counts based on the facts." Then, he submitted the issue. The court granted the People's request and Jon's counsel waived a reading of the new charge.
Jon argues that his counsel was ineffective in failing to object to the amendment to the petition.
A party who contends he received ineffective assistance has the burden of proving that (1) trial counsel's performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Furthermore, an appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: " 'If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected. [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 936, see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Moreover, "A claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission (People v. Fosselman (1983) 33 Cal.3d 572, 584), but also that the motion or objection would have been meritorious, if the defendant is to bear his burden of demonstrating that it is reasonably probable that absent the omission a determination more favorable to defendant would have resulted. [Citations.]" (People v. Mattson (1990) 50 Cal.3d 826, 876 [also considering likelihood of granting motion; even if granted, no reasonable probability of more favorable outcome given the state of the evidence].)
It is important to note that Jon does not claim lack of notice of the proposed amendment to the petition. Rather, Jon speculates that the court might have exercised its discretion to deny the amendment because the prosecutor offered no justification for the delay; the amended petition added a layer of complication to an already convoluted jurisdiction hearing; and the amendment "acted as an overwhelmingly harsh 'trial penalty,' sanctioning [Jon] for having the temerity to proceed to a jurisdictional hearing by adding a second 'strike' count . . . ."
Here, Jon cannot surmount the first hurdle of showing that counsel's performance was deficient. It is apparent that there is a logical reason why counsel would not have objected to the amendment. As a factual matter, we can infer that counsel was fully aware of the evidence against Jon in hitting or kicking James and the injuries that James suffered, which could form the basis for a charge of assault likely to cause great bodily injury. Jon's counsel had notice of the proposed amendment. Thus, he knew that Jon's due process rights were not being violated. Accordingly, we can infer that counsel was aware that an objection to the amendment would have been futile. A defense attorney is not required to advance unmeritorious arguments on the minor's behalf (see People v. McPeters (1992) 2 Cal.4th 1148, 1173,superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1257), nor is counsel " 'required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel.' [Citations.]" (People v. Harpool (1984) 155 Cal.App.3d 877, 886.)
The essence of due process is actual notice and a "meaningful opportunity" to be heard. (In re Donnell L. (1989) 212 Cal.App.3d 185, 191-192.)
Accordingly, we conclude that Jon has failed to carry his burden of showing his counsel was ineffective.
Penal Code Section 654At the disposition hearing, instead of following the recommendation of the probation officer for a ranch commitment, the trial court ordered that Jon spend 60 days in juvenile hall. In addition, the court ordered that Jon spend an additional 60 days on electronic monitoring after his return to the custody of his parents upon completion of the juvenile hall commitment. The order of probation indicates that the court declared the minor a ward of court, but permitted him to return home on probation. The court set Jon's maximum confinement time as seven years with credit for eight days.
Impliedly, Jon argues that in calculating his maximum time of confinement, the court ran the sentence on the assault count consecutive to the sentence on the robbery count. Therefore, Jon argues that the assault count should have been stayed pursuant to Penal Code section 654 because the assault and robbery counts were based on a single course of conduct.
Initially, we note a sentence offending Penal Code section 654 is "unauthorized" and may be challenged on appeal despite the absence of an objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Jon urges this court to follow our decision in People v. Fry (1993) 19 Cal.App.4th 1334 (Fry) and stay the sentence on the assault count. In Fry, the Attorney General conceded that Penal Code section 654 precluded imposition of sentences for arson of a vehicle concurrent to a sentence of arson of a structure that contained the vehicle. (Id. at p. 1340.) We modified the sentence that had been imposed even though its execution had been stayed in favor of a grant of probation. (Id. at pp. 1336, 1341.) In so doing, we rejected the Attorney General's suggestion "that we need do nothing about this error because defendant was placed on probation." (Id. at p. 1340.) We concluded: "Defendant was entitled to have the trial court follow the proper procedures in imposing sentence, and the judgment should so reflect. Thus, having decided to treat the four-year term for arson of a structure as the principal term, the court should have separately stayed execution of the term imposed for arson of the vehicle in the carport." (Ibid.)
Relying on In re Danny H. (2002) 104 Cal.App.4th 92 (Danny H.) the People argue that the disposition was not erroneous. In Danny H., the minor "was ordered home on probation in the home of his parents. The court did not order [him] removed from the physical custody of his parents." (Id. at p. 106.) Nevertheless, Danny H. asserted that the juvenile court erred in calculating his "maximum theoretical period of confinement, which appeared to include consecutive confinement periods on counts one and two"-- the latter of which should have been stayed under section 654. (Ibid.)
However, the Second District Court of Appeal saw "no need to decide the issue." (Danny H., supra, 104 Cal.App.4th at p.106.) The court reasoned that it is only when a court orders a minor removed from the physical custody of his parent or guardian that the court is required to specify the maximum term the minor can be held in physical confinement. Thus, there was no need to decide the Penal Code section 654 issue or to correct the trial court's order calculating the minor's maximum theoretical period of confinement. (Ibid.)
Accordingly, the People contend that because Jon was not removed from the custody of his parents Penal Code section 654 does not apply. Thus, by implication the People contend that this court need do nothing about correcting the juvenile court's disposition order. The People reason that the juvenile court "always retains jurisdiction to impose whatever disposition it deems fitting after a probation violation [fn. omitted], and, in removing the minor from the custody of parents or guardian would not be required to impose the theoretical maximum confinement set originally."
At the outset, we note that it is arguable that the difference between this case and Danny H. is that Jon was removed from the custody of his parents by having to spend 60 days in juvenile hall. The disposition order incorporated the probation officer's report, which the court adopted as amended as findings and orders. Paragraph five of the probation officer's report reads, "That it be found that the welfare of said minor requires that his physical custody be taken from the parents and that the return of the minor's physical custody to the parents would be detrimental to the welfare of the minor." However, the disposition order is in conflict with the juvenile court's order of probation, which provides that the minor was declared a ward of court and was "permitted to return to your home on Probation . . . ." The 60-day county jail sentence is designated as a "special condition[] of . . . Probation."
Welfare and Institutions Code section 726, subdivision (c), provides in part, "If the minor is removed from the physical custody or his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, 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."
The court is required to "specify and note in the minutes" this "maximum period of confinement . . . ." (Cal. Rules of Court, rule 5.795(b).)
As used in Welfare and Institutions Code section 726, subdivision (c) " 'maximum term of imprisonment' means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled." (Welf. & Inst. Code, § 726, subd. (c).)
Prior to its amendment in 2007, Penal Code section 1170, subdivision (b) provided in relevant part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Stats.2004, ch. 747, § 1.) We note that Penal Code section 1170 was amended such that "provisions of subdivision (b)" no longer require the middle term be imposed. (Stats.2007, ch. 3, § 2, effective March 30, 2007.)
However, what Welfare and Institutions Code section 726 does is direct the juvenile court to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender without regard to mitigating or aggravating circumstances. (Welf. & Inst. Code, § 726, subd. (c); In re Carlos E. (2005) 127 Cal.App.4th 1529, 1536.)
Furthermore, Welfare and Institutions Code section 726, subdivision (c) provides that 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 [Welfare and Institutions Code] 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, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code. [¶] If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the 'maximum term of imprisonment' is the longest term of imprisonment prescribed by law. [¶] 'Physical confinement' means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority." (Italics added.)
An adult convicted of robbery (Pen. Code, §§ 211-212.5, subd. (c)), assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and receiving stolen property (Pen. Code, § 148, subd. (a)(1)), assuming that Penal Code section 654 did not apply, could receive anything from a maximum of six years eight months to as little as three years eight months. These calculations are based on the fact that the robbery count in this case carried a sentencing triad of two, three, or five years (Pen. Code, § 213, subd. (a)(2)); the assault count carried a sentencing triad of two, three, or four years (Pen. Code, § 245, subd. (a)(1)); and the receiving stolen property count carried a triad of 16 months, two years, or three years. (Pen. Code, §§ 496, subd. (a) & 18.) Penal Code section 1170.1 mandates that "when any person is convicted of two or more felonies . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
Accordingly, assuming that the juvenile court used the robbery count upon which to base the principal term, the term would have been five years -- the longest period of incarceration applicable to an adult offender without regard to mitigating or aggravating circumstances. (Welf. & Inst. Code, § 726 subd. (c).) Then, if the court ran the punishment for the assault count consecutive to the robbery count the subordinate term would have been one-third of three years, i.e., one year. Again, if the court ran the punishment for the receiving count consecutive to the other two counts, that subordinate term would be one-third of two years, i.e., eight months. Five years plus one year plus eight months equals six years eight months.
However, "[b]y directing in section 726 that the juvenile court measure the maximum period of confinement for 'multiple counts' in accordance with subdivision (a) of Penal Code section 1170.1, without restricting the application of the consecutive term provisions of that subdivision to felony counts, the Legislature recognized the different circumstances of juvenile and adult commitments, and indicated its intent that the aggregation provisions of section 1170.1 be applied whether the offenses committed by the minor are felonies or misdemeanors." (In re Eric J. (1979) 25 Cal.3d 522, 538; In re Luis H. (1986) 187 Cal.App.3d 546, 549.)
Accordingly, the misdemeanor resisting arrest count, which as a misdemeanor carries a maximum one-year county jail term, must be included in the calculation. Thus, one-third of one year is four months. Adding this to the previous calculation of six years eight months brings the total to seven years. Thus, in setting Jon's maximum term of confinement, it is apparent that the court conducted the calculation without regard to Penal Code section 654.
In People v. Beamon (1973) 8 Cal.3d 625, our Supreme Court felt "compelled to the conclusion as a matter of law that on the record here both crimes were committed pursuant to a single intent and objective . . . ." (Id. at p. 639, italics added.) Based on that conclusion, the court modified the judgment to stay the lesser conviction. (Id. at p. 640; see also, e.g., Fry, supra, 19 Cal.App.4th at pp. 1340, 1341 [judgment modified on appeal to stay the sentence on the second arson count, where the record showed only one criminal act and the trial court made a specific finding supporting a single criminal objective].)
As a general rule the question "whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Accordingly, with this in mind, we conclude that the better course here would be to remand the matter to the juvenile court for its determination on whether to stay the assault count. We do this even though it is arguable that the minor was not removed from the custody of his parents because we are mindful of the inherent worth of an accurate record of judgment. (See Fry, supra, 19 Cal.App.4th at p. 1340 [a court should follow the proper procedures in imposing sentence, and the judgment should so reflect it].)
Disposition
The case is remanded for the juvenile court to determine whether to stay the punishment for the assault count under Penal Code section 654. In all other respects, the challenged jurisdiction and disposition orders are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.