Opinion
G053157
05-30-2017
In re J. M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J. M., Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on May 30, 2017, be modified as follows:
In the caption and the listing of counsel on page 1, the word "Defendant" is changed to "Minor."
In the fourth paragraph on page 2, and in the last sentence on page 4, the word "conviction" is changed to "adjudication."
This modification does not change the judgment.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DL044538) OPINION Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed in part, reversed in part, and remanded. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
A court found true allegations minor J.M. dissuaded a witness and committed a battery. The court granted probation and ordered minor to serve 180 less 24 days in custody.
Minor argues the court failed to orally pronounce a maximum term of confinement and the restitution fine amount, and imposed an overly broad curfew condition. The Attorney General concedes these points, and we agree.
Minor also asserts the court violated Penal Code section 654 (section 654) by imposing sentence on counts 1 and 2, but we find this contention to be meritless.
Therefore, we will vacate the sentence and remand the matter with directions to conduct a further sentencing hearing, but otherwise affirm the conviction.
FACTS
Minor, then 17 years old, asked his mother to rent movies for him on August 5, 2015. His mother said it was too late and she had no money. Minor yelled at his mother, punched a bathroom door, threw objects around the house, and smashed a bathroom mirror. Then minor wrapped his fingers around his mother's throat and choked her for a couple of seconds.
Minor's sister heard the arguing from her bedroom. When she came out to investigate, minor slapped her right cheek and advised her to not "get in it." Sister had a headache and her nose felt swollen after the slap.
Mother threatened to call the police, and minor grabbed the phone from her hand and said, "call the police and see what happens." So mother and sister packed a bag and went to the home of a relative. They reported the incident to police the next day. Although mother and sister had no outward signs of physical injury, the police officer who took their report testified they were extremely upset and emotional.
DISCUSSION
1. Section 654
The court imposed sentence on both counts (dissuading a witness and battery) because "they are two separate offenses." Minor argues imposition of sentence on both counts violates section 654. We disagree.
Section 654 bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, disapproved on another point in People v. Correa (2012) 54 Cal.4th 331, 341; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
The record supports the court's implied finding minor harbored separate intents and objectives. Minor threw an adult-sized temper tantrum right before he strangled his mother. It was only after mother threatened to call the police that minor grabbed her cell phone and dared her to "call the police and see what happens." These were two distinct acts with different motivations and intents. There was no violation of section 654.
DISPOSITION
The sentence is vacated and the case is remanded for a new sentencing hearing at which time the court shall orally pronounce minor's maximum term of confinement and the restitution fine amount, and modify the curfew condition of minor's probation to include appropriate hours. In all other respects, the conviction is affirmed.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.