Opinion
C091209
07-31-2020
In re E.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.V., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV139975)
The minor, E.V., appeals the juvenile court's dispositional order following the contested jurisdictional finding that he committed robbery (Pen. Code, § 211) while armed with a firearm (§ 12022, subd. (a)(1)). He argues the trial court erred in imposing the firearm enhancement because his use of the gun was an element in the underlying robbery. The People dispute this, arguing that the use of a firearm is not an element of the crime of robbery. The People also ask that we correct an error in the calculation of the minor's maximum confinement time. We agree with the People on both points and will affirm the judgment as modified.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The People's March 5, 2019 wardship petition alleged the minor had committed robbery (§ 211), carjacking (§ 215, subd. (a)), and buying or receiving a stolen vehicle (§ 496d, subd. (a)). The minor admitted to felony aiding and abetting the robbery after the fact (§§ 32/211) in exchange for dismissal of the remaining allegations. The juvenile court adjudged the minor a ward of the court subject to supervision by the probation department and ordered that he serve 90 days, consisting of 17 days in juvenile hall, 43 days of electronic monitoring, and 30 days of home supervision, with credit for time served.
A separate September 19, 2019 wardship petition alleged the minor committed robbery (§ 211) with an allegation that he was armed with a gun in the offense (§ 12022, subd. (a)(1)). Following a contested jurisdictional hearing, the juvenile court sustained the robbery charge and found the firearm enhancement true. The juvenile court continued the minor as a ward and ordered that he serve 90 days in juvenile hall with credit for time served. The juvenile court adopted the maximum confinement time calculated by the probation department as six years. This was comprised of five years for the robbery from the second petition (the principal term), four months for the firearm enhancement (one-third of one year), and eight months for the previous accessory finding (one-third of two years). The minor timely appealed.
DISCUSSION
I
Being Armed with a Gun is not an Element of Robbery
Even When a Gun is Used to Effectuate that Robbery
The minor argues the juvenile court erred in imposing the firearm enhancement because his use of the gun was an element of the underlying robbery. He reasons that because the only evidence meeting the required element of force or fear was the minor's loading of the gun in the victim's presence, use of a firearm was an element in the robbery offense, thus precluding the imposition of a section 12022, subdivision (a)(1) enhancement. We disagree.
Section 12022, subdivision (a)(1) provides in pertinent part: "[A] person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense." (Italics added.) "The phrase 'element of the offense' signifies an essential component of the legal definition of the crime, considered in the abstract. [Citations.]" (People v. Hansen (1994) 9 Cal.4th 300, 317 (Hansen), overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1199.)
Here, the alleged felony was robbery, which is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Thus, being armed with a firearm is not an element in a prima facie case for robbery. (See, e.g., People v. Smith (1985) 163 Cal.App.3d 908, 912 ["being armed with a firearm is not an element of robbery"].)
The minor nonetheless argues we should find that gun use was an element of the offense based upon the facts of this specific case, relying on People v. McGee (1993) 15 Cal.App.4th 107, People v. Landry (2016) 2 Cal.5th 52, and People v. Brunton (2018) 23 Cal.App.5th 1097. We find these cases distinguishable and instead look by analogy to our high court's analysis in Hansen, supra, 9 Cal.4th at pages 316 through 317.
These cases involved charges in which the definition of the substantive offense could be proven via alternate elements (assault by means likely to cause great bodily injury or assault with a deadly weapon), and the associated enhancement of assault with a deadly weapon would be prohibited if premised upon one theory, but not the other. Thus, the court had to look at the facts proven to determine whether the element of the substantive assault included the use of a deadly weapon. (People v. Landry, supra, 2 Cal.5th at pp. 128-130 [also analyzing McGee]; People v. Brunton, supra, 23 Cal.App.5th at pp. 1107-1108.)
In Hansen, the defendant was convicted of second degree felony murder premised upon the underlying felony of discharging a firearm into an inhabited dwelling. The high court upheld imposition of a separate firearm use enhancement because the crime of second degree murder, "considered in the abstract, does not include use of a firearm as an element. Second degree murder may be committed in a myriad of ways, some that involve use of a firearm, and others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. Under [former] section 12022.5, subdivision (a), the enhancement applies unless 'use of a firearm is an element of the offense,' and not merely the means by which the offense was committed or the factual predicate of a theory upon which the conviction was based." (Hansen, supra, 9 Cal.4th at p. 317.)
As in Hansen, the requisite force or fear element for robbery may be supplied in many ways. As such, the minor's use of the gun to instill fear to effectuate the robbery does not mean the minor's arming himself with a gun was an element of the robbery offense so as to preclude imposition of an enhancement. (See also In re Anthony H. (1980) 108 Cal.App.3d 494, 499 [while being armed with a knife supplied the fear necessary for robbery, it was not an element of robbery such as to preclude the § 12022 enhancement].) Accordingly, this claim fails.
II
Correction of the Minor's Total Confinement Time
The People request that we modify the judgment to correct the calculation of the minor's maximum custody time available. Specifically, they assert that the court erred when it treated the section 12022 firearm enhancement as a subordinate term, imposing four months instead of one year.
"The Welfare and Institutions Code incorporates the Penal Code's determinate sentencing scheme to set a minor's maximum term of confinement. [Citations.]" (In re G.C. (2020) 8 Cal.5th 1119, 1125; see also Welf. & Inst. Code, § 726, subd. (d).) Because the enhancement was associated with the principal term, it was error for the juvenile court to reduce it. (§ 1170.1, subd. (a)(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"]; In re George (1993) 14 Cal.App.4th 376, 381-382 [the maximum term of confinement for the principal term is the outer maximum term for the substantive offense and any associated enhancements].) We will modify the judgment to correct this nondiscretionary sentencing error.
DISPOSITION
We modify the judgment to reflect that the maximum confinement time associated with the gun use enhancement (§ 12022, subd. (a)(1)) is one year, not four months. This brings the minor's maximum confinement time to a total of six years eight months. The juvenile court shall modify the disposition order to reflect this modification and forward the modified order to the juvenile probation department. The judgment is affirmed as modified.
KRAUSE, J. We concur: HULL, Acting P. J. DUARTE, J.