NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 315JV41194A)
In April 2015, the Santa Clara County District Attorney filed a petition alleging that Y.A., a minor (then 17 years old), came within the provisions of Welfare and Institutions Code section 602, and he had committed acts which would have constituted two separate felonies had they been committed by an adult, namely assault with a deadly weapon (Pen. Code § 245, subd. (a)(1); count 1), and infliction of corporal injury upon a person with whom he has, or previously had, a dating relationship (§ 273.5, subd. (a); count 2). The District Attorney also alleged two enhancements as to both counts: personal infliction of great bodily injury (§§ 12022.7, subd. (e); 1203, subd. (e)(3)); and personal use of a dangerous or deadly weapon (§ 12022, subd. (b)(1)). After a contested jurisdiction hearing, the court sustained the petition as to both counts and found true the enhancements. The court placed the minor on probation.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, the minor argues that the court should have stricken the weapon use enhancement as to count 1. He contends further that because both counts arose out of the same conduct, section 654 prohibited punishment for both offenses, and that therefore the trial court erred by failing to stay punishment for the count 2 finding and the weapon use enhancement as to that count. Lastly, he contends the weapon use enhancement as to count 2 should have been stayed.
We conclude that the court erred in failing to strike the weapon use enhancement as to count 1, but acted properly by not staying it as to count 2. Further, we reject as premature the minor's claim of error under section 654. We will therefore order that the dispositional order be modified to strike the true finding as to the weapon use enhancement as to count 1. As modified, we affirm the order.
The minor and the victim, Derrick, had been in a dating relationship for approximately five to six years. They attended the same high school. On March 31, 2015, they got into an argument at school. The minor showed Derrick some browser history on the minor's cellphone involving pornography, accusing Derrick of cheating on him. Derrick denied the accusation, and the two argued and later began pushing each other. When they noticed that schoolmates were watching them and trying to record the argument, they left school, walking toward the minor's home. When they arrived at the minor's apartment complex, their argument again turned physical. The minor punched Derrick and directed a homophobic epithet at him. Derrick responded by pushing the minor "really hard" into some bushes. As Derrick walked away, the minor stabbed him from behind with a knife.
After stabbing Derrick, the minor apologized and told Derrick they needed to come up with a story. Derrick agreed because he did not want the minor to get into trouble. They agreed to say that Derrick was stabbed by gang members who came up from behind him. They called the minor's mother, who drove them to Derrick's house. After the police arrived at Derrick's house, Derrick and the minor repeated the story to San Jose Police Officer Marc Beretta that Derrick had been stabbed by gang members. Officer Beretta checked the minor for weapons, and found a large folding knife with a lock-out style blade in his waistband.
Derrick told a paramedic while he was being transported to the hospital that his boyfriend had stabbed him with a knife he described as a "gentleman's stiletto." After receiving a report from the paramedic about Derrick's statement concerning what had happened, Officer Beretta contacted Derrick at the hospital later the same day; Derrick said that the minor had stabbed him. That evening, Officer Beretta reinterviewed the minor, who admitted in a recorded statement that he had stabbed Derrick. Derrick was hospitalized for two weeks with injuries that included a punctured lung.
The minor testified on his own behalf, admitting that he had stabbed Derrick but claiming self-defense. He described his relationship with Derrick as being a violent one. The minor said he had left out some information to protect Derrick after he admitted to Officer Beretta to having stabbed Derrick. The minor testified that while they were at the school, Derrick shoved the minor, pulled his hair, and ripped a chain from his neck. The minor tried to get away after he broke up with Derrick at school, but Derrick followed him to the apartments where the stabbing occurred. Derrick repeatedly asked the minor not to break up with him, and continued to yell at, grab, and push the minor. Derrick pushed the minor to the ground twice. The first time, the minor struck his head on concrete. On the second occasion, he was pushed into the bushes and struck his head on a metal object. While the minor was still in the bushes, he pulled out a knife and told Derrick to leave him alone. Derrick rushed toward the minor, and as Derrick attempted to lift the minor off the ground, the minor stabbed him with the knife. The minor lied to the police to protect Derrick, who he thought would get in trouble for assaulting the minor.
On April 2, 2015, the Santa Clara County District Attorney filed a petition with the juvenile court under Welfare and Institutions Code section 602, subdivision (a), alleging that the minor had committed acts which would have constituted two separate felonies had they been committed by an adult, namely, assault with a deadly weapon (§ 245, subd. (a)(1); count 1), and infliction of corporal injury upon a person with whom he has, or previously had, a dating relationship (§ 273.5, subd. (a); count 2). It was also alleged as to both counts that the minor (1) personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (e); 1203, subd. (e)(3)), and (2) personally used a dangerous or deadly weapon, a knife (§ 12022, subd. (b)(1)).
The juvenile court conducted a three-day contested jurisdiction hearing in May 2015. On May 15, 2015, the court returned true findings as to both counts, determined them to both be felonies, and sustained the enhancement allegations. The minor was thereafter declared a ward of the court and was placed on probation with various conditions, including an order that he serve 90 days under the Electronic Monitoring Program.
I. Weapon Use Enhancement for Count 1 Should Be Stricken
The minor argues that the court erred in failing to strike the weapon use enhancement as to count 1. He notes that section 12022, subdivision (b) provides in part that "[a]ny person who personally uses a deadly or dangerous weapon in the commission . . . of a felony shall, upon conviction of such felony . . . be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted." (Italics added.) The minor cites People v. Summersville (1995) 34 Cal.App.4th 1062 (Summersville) in support of his position.
In Summersville, the defendant stabbed one man in a car while his accomplice stabbed to death another man in the car. (Summersville, supra, 34 Cal.App.4th at pp. 1065-1066.) The defendant was convicted of two offenses: second degree murder under an aider and abettor theory, and assault with a deadly weapon. (Id. at p. 1065.) The appellate court held that a weapon use enhancement (§ 12022, subd. (b)(1)) could not attach to the assault with a deadly weapon conviction "because personal weapon use is an element of section 245, subdivision (a)(1)." (Summersville, at p. 1070, citing People v. McGee (1993) 15 Cal.App.4th 107, 110.)
The Attorney General concedes error. We conclude that the trial court erred in imposing the weapon use enhancement under section 12022, subdivision (b)(1) on count 1, and we will order the enhancement stricken. (See Summersville, supra, 34 Cal.App.4th at p. 1070; see also People v. Memory (2010) 182 Cal.App.4th 835, 837 & fn. 1.)
II. No Stay of Punishment for Count 2 Finding and Weapons Enhancement
The minor also contends that the court erred by failing to stay punishment for the count 2 domestic violence finding and the weapon use enhancement. He argues that under section 654, he cannot be subjected to multiple punishment for the same act. He asserts that is precisely what occurred here, because the same act—stabbing Derrick with a knife—was the basis for the court's findings as to both assault with a deadly weapon (§ 245, subd. (a)(1)) and domestic violence (§ 273.5, subd. (a)) counts.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 591-592, italics added.) A determination of "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1468, italics added.)
We italicize "punishment" and "punished" because this represents the crux of the problem in this case: that section 654's proscription is triggered only when punishment has occurred, a circumstance not present here.
In the abstract, the minor appears to be correct in his contention that he cannot be punished twice for counts 1 and 2 because they are based upon the same indivisible course of conduct. (See, e.g., People v. Brown (1989) 212 Cal.App.3d 1409, 1426-1427 [sentencing of defendants for both assault with a firearm and robbery improper under section 654, where assault was in course of robbery and was not divisible act], disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577.) But the Attorney General responds that under the prevailing law—People v. Stender (1975) 47 Cal.App.3d 413 (Stender), overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240—any argument that the count 2 finding and the weapon use enhancement should be stayed under section 654 is premature because punishment has yet to be imposed.
In Stender, the defendant was found guilty of burglary, rape, kidnapping and attempted oral copulation, and the court suspended his sentence and granted probation, requiring defendant to serve nine months in the county jail. (Stender, supra, 47 Cal.App.3d at p. 416.) The defendant argued that the sentence was improper, contending that section 654 prohibited punishment for the rape conviction (in addition to punishment for the burglary) and for the attempted oral copulation conviction (in addition to punishment for kidnapping); he argued that the rape and attempted oral copulation sentences had to be set aside. (Stender, at p. 424.) The appellate court rejected the challenge, stating: "In the instant case no sentence was pronounced. The court suspended imposition of sentence and granted probation. [¶] . . . section 654 proscribes double punishment, not double conviction, and thus it is the double penalty, not the double conviction that is brought into question. . . . [¶] Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of . . . section 654. [Citations.]" (Id. at p. 425, original italics.)
The court in People v. Wittig (1984) 158 Cal.App.3d 124 (Wittig) reached a similar conclusion. There, the defendant claimed he had been subjected to double punishment in violation of section 654, in receiving concurrent sentences for assault with a deadly weapon and shooting at an occupied vehicle. (Wittig, at p. 137.) But he had been granted probation for three years on the condition that he serve 90 days in jail. (Id. at pp. 126-127.) The court rejected the defendant's challenge under section 654: "Imposition of sentence was suspended; each defendant was granted probation as to each offense. Because sentence was not imposed on either defendant, there is no double punishment issue. The section 654 issue should be presented to a court upon any future attempt to impose a double punishment upon either of these defendants in the event of a probation violation." (Wittig, at p. 137; see also People v. Lofink (1988) 206 Cal.App.3d 161, 168.)
The minor concedes the existence of this authority, but argues that Stender, supra, 47 Cal.App.3d 413 and Wittig, supra, 158 Cal.App.3d 124 were wrongly decided. He argues: "Application of section 654 should not be premised upon whether a criminal defendant's punishment is served as part of a prison sentence or rather ordered as a condition of probation. Such a distinction is artificial . . ." He asserts further that refusing application of section 654 would result in the factual finding concerning whether the two crimes arose out of a single indivisible act being made by a judge different from the trial judge, namely, the judge who subsequently revokes probation and imposes sentence.
We believe the reasoning of Stender and Wittig is sound and see no reason to reject it. While it is conceivable that in some instances, the judge revoking probation and imposing sentence will be different from the judge who initially tried the case and granted probation, this does not justify applying section 654 to circumstances to which the statute plainly does not apply. The fact remains that the minor, having received probation, has not been punished for the criminal acts that were alleged in the petition that the juvenile court sustained. Unless and until his probation is revoked, the application of section 654 to the count 2 finding is a theoretical concern. We thus conclude that the minor's challenge that punishment for the count 2 finding is premature, and reject it without prejudice.
III. No Stay for Weapon Use Enhancement for Count 2
The minor argues briefly that the weapon use enhancement as to the domestic violence finding (count 2) should have been stayed. He contends that, for the same reasons discussed in connection with the weapon use enhancement for count 1, under Summersville, supra, 34 Cal.App.4th 1062, the enhancement constitutes impermissible double punishment.
The minor—making the same argument that he made for the claim that the weapon use enhancement as to the count 1 finding should be stricken—argues that the enhancement as to the count 2 finding should be "stayed." Although it is apparent that the minor intended his argument here to be that the weapon use enhancement for the count 2 finding should have been stricken, since the claim has no merit, this ambiguity is immaterial. --------
We reject the minor's challenge. Summersville, supra, 34 Cal.App.4th 1062 applies where the conviction (or finding) involved a crime for which the weapon use was an element, precluding the imposition of an enhancement under section 12022, subdivision (b). The domestic violence finding (count 2), unlike the assault with a deadly weapon finding (count 1), did not include the use of a deadly weapon as an element of the offense. Thus, the court did not err in failing to stay (or strike) the allegation as to count 2.
The disposition order is modified to strike the true finding of the weapon use allegation under section 12022, subdivision (b) as to count 1. As modified, the order is affirmed.
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________