Filed 4/27/18 In re M.G. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re M.G., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

M.G.,

Defendant and Appellant.

F075739

(Merced Super. Ct.
No. JL003713-N)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Merced County. Carol K. Ash, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Erick Christoffersen, Louis M. Vasquez, Michael D. Dolida, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
BACKGROUND
A wardship petition (Welf. & Inst. Code, § 602, subd. (a)) filed February 15, 2017, alleged that on November 5, 2016, minor M.G. criminally threatened his grandmother, Margaret B. (count 1 - Pen. Code, § 422, subd. (a)); unlawfully, maliciously, and intentionally killed an animal (count 2 - Pen. Code, § 597, subd. (a)); committed elder abuse (count 3 - Pen. Code, § 368, subd. (b)(1)); and assaulted Margaret B. with force likely to produce great bodily injury (count 4 - Pen. Code, § 245, subd. (a)(4).) The petition was later orally amended to add count 5 for “violating probation.” (§ 777, subd. (a).)
M.G. admitted counts 2 and 4, and the court found count 5 true. The court dismissed counts 1 and 3. The court committed M.G. to the Division of Juvenile Facilities (DJF).
FACTS
M.G.’s grandmother, Margaret B., told officers that on November 5, 2016, she smelled marijuana. Margaret confronted M.G. in front of his friends about using marijuana. M.G. told her, “You’re nothing but a bitch.” Margaret responded, “You’re nothing but a fucking sissy who won’t do nothing.” M.G. became increasingly upset and said, “I’ll hit you where it really hurts, watch.” M.G. pushed Margaret on her chest with both of his hands. Margaret’s dog ran and stood by her legs. M.G. grabbed the dog and, while doing so, pushed Margaret again with his shoulders and upper body. M.G. ran upstairs as Margaret pleaded with him to let go of her dog. M.G. said, “[S]hut up or I’ll kill you too!” M.G. swung the dog in circles above his head. Then, M.G. lifted the dog above his head and violently threw it over a balcony on to the ground. M.G. ran down the stairs and said, “You’re next!” M.G. fled. The dog died about 40 minutes later.
DISCUSSION
A minor adjudged a ward of the court under section 602 may not be committed to DJF if “the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code.” (§ 733, subd. (c).) Assault by means of force likely to produce great bodily injury is a qualifying offense, but animal cruelty is not. (See § 707, subd. (b)(14).) M.G. argues that because animal cruelty was his “most recent offense,” he may not be committed to DJF. (See § 733, subd. (c).)
First, we must determine whether minor’s premise – that animal cruelty was his “most recent offense” – is correct. If, as M.G. argues, his assault of his grandmother ended before he committed animal cruelty, then animal cruelty was his “most recent offense.” If, however, the Attorney General is correct that M.G.’s assault continued until he fled, then assault would be M.G.’s “most recent offense.”
The duration of a crime can become relevant in various contexts. Few cases have analyzed the duration of a crime in the context of section 733, subdivision (c). One such case is In re M.L. (2015) 243 Cal.App.4th 21, 27. There, the court cited People v. Navarette (2003) 30 Cal.4th 458, 502 (Navarette), for the proposition that “ ‘the crime of robbery continues “as long as the loot is being carried away to a place of temporary safety.” ’ [Citation.]” (In re M.L., supra, at p. 27.) Navarette observed that while robbery is ongoing “as long as” the loot is being carried away, the crime is actually completed upon the slightest movement. (Navarette, supra, at p. 502.) From this we glean the following principle: The fact that all the elements of the crime have been satisfied at a particular moment does not mean the crime is over at that same moment.
Great bodily injury and weapon enhancements are another context in which duration of a crime is relevant. Several such enhancements apply when the defendant uses a weapon or inflicts great bodily injury “in the commission of” an offense. (E.g., Pen. Code, §§ 12022.3, 12022.53, subds. (b)–(d), 12022.7.) To decide whether something occurred “in the commission of” a particular crime, it is often necessary to determine how long that crime lasted. (E.g., People v. Jones (2001) 25 Cal.4th 98, 107–111.) In this context as well, courts have not limited the duration of a crime to the moment of its “technical completion.” (Id. at p. 110.) For example, an assault is considered ongoing “as long as the defendant [i]s present with [a] resisting victim ….” (People v. Elder (2014) 227 Cal.App.4th 411, 422 (Elder).)
Here, M.G. pushed his grandmother twice, before throwing her dog off of a balcony. M.G. then ran downstairs, told his grandmother, “You’re next!” and fled. While M.G.’s assault began before the animal cruelty, it continued while he remained in the presence of his victim. (Cf. Elder, supra, 227 Cal.App.4th at p. 422.) As a result, the assault was the “most recent offense” because it ended after the animal cruelty ended.
M.G. responds that an assault is “complete once a person either attempts to apply, or actually applies, sufficient force upon the victim to ‘likely’ produce great bodily injury.” (Italics added.) He cites cases that hold the “crime of assault by means of force likely to produce great bodily injury is completed before any injury is inflicted. [Citation.]” (People v. Hopkins (1978) 78 Cal.App.3d 316, 320; see also People v. Yeats (1977) 66 Cal.App.3d 874, 878.) But those cases are using the word “completed” to refer to the moment when all the elements of assault are satisfied, not necessarily when the crime of assault is over. For example, the crime of robbery can be “completed” – in the sense that all its elements are satisfied – when the defendant makes a slight movement with the loot. (Navarette, supra, 30 Cal.4th at p. 502.) But that does not mean the robbery is over. To the contrary, “ ‘the crime of robbery continues “as long as the loot is being carried away to a place of temporary safety.” ’ [Citation.]” (In re M.L., supra, 243 Cal.App.4th at p. 27.) In sum, the cases cited by minor use “completed” to refer to the first moment all of the elements of the crime are satisfied, but we are concerned with the last moment the crime is considered ongoing.
Because we conclude assault with force likely to cause great bodily injury was M.G.’s “most recent offense,” section 733, subdivision (c) did not prohibit the juvenile court from committing him to DJF.
DISPOSITION
The disposition order is affirmed.