In re T.C.

Filed 4/7/10 In re T.C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Robert Totten, Commissioner. Reversed in part and affirmed in part.

Law Offices of Leslie G. McMurray and Leslie G. McMurray under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

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T.C. appeals from the order declaring him a ward of the court (Welf. & Inst. Code, 602) by reason of his having committed count 1, second-degree robbery (Pen. Code, 211)[1] and count 2, assault by means likely to produce great bodily injury ( 245, subd. (a)(1)). Appellant was committed to long term camp community placement with a maximum term of confinement not to exceed five years and eight months. We reverse in part and affirm in part.

CONTENTIONS

Appellant contends that: (1) there was insufficient evidence to find the robbery allegation to be true; and (2) the trial court should have stayed the commitment on count 2 under section 654.

FACTS AND PROCEDURAL HISTORY

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 11381139), the evidence established the following. On April 22, 2009, Ilmar DeLeon (DeLeon)[2] was approached by appellant who asked him if he wanted to buy a bicycle. DeLeon had just bought coffee and was heading to work and then on to school. Appellant took DeLeon to a nearby parking lot. Appellant then crossed the street and spoke to a woman whom he had identified to DeLeon as the owner of the bicycle. Appellant and the woman walked back to DeLeon, grabbed him and beat him. Appellant grabbed DeLeon around the neck and choked him. The woman hit DeLeon. DeLeon fell to the ground and appellant hit and kicked him. Appellant also stepped on DeLeons back. Both appellant and the woman tried to go over into DeLeons pockets. The woman hit DeLeon and went through his pockets. The woman took DeLeons wallet, a bus pass, and a cell phone. Appellant and the woman then walked away together. Appellant went to his workplace where a customer called the police. DeLeon identified appellant as his attacker at a field showup and at trial.

Appellants statement to police was admitted into evidence. He stated that he saw his friend Snoop fighting with DeLeon in a parking lot and that he went to assist her. He also claimed that DeLeon wanted to buy rock from Snoop and that Snoop went through DeLeons pockets after appellant pulled DeLeon off Snoop.

DISCUSSION

I. Substantial evidence supported the true finding on the robbery count

Appellant contends that there was insufficient evidence to sustain the juvenile courts true finding as to the robbery count because there was no evidence that appellant took DeLeons property, aided and abetted Snoop in taking DeLeons property, or that appellant evoked fear in DeLeon. We disagree.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Ceja, supra, 4 Cal.4th at pp. 11381139.)

Robbery 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.) An aider and abettor must share the specific intent of the direct perpetrator. (People v.Lee (2003) 31 Cal.4th 613, 624.) He or she must know the full extent of the direct perpetrators criminal purpose and aid or encourage with the intent of facilitating the direct perpetrators commission of the crime. (Ibid.) A persons presence at the scene may be considered along with other factors, such as companionship and conduct before or after the offense, to determine that a person is an aider or abettor. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)

Here, the evidence is sufficient to show that appellant aided and abetted the woman who actually took the wallet and other belongings from DeLeons pocket. The robbery appeared to be carefully planned. Appellant approached DeLeon, offering to sell him a bicycle. At one point, appellant left DeLeon in the parking lot and spoke to a woman whom he identified as the bicycle owner. Appellant and the woman acted in concert by then returning to DeLeon and violently assaulting him. Both appellant and the woman attempted to put their hands into DeLeons pockets. After the woman took DeLeons property, they walked away together.

In light of the force that was applied against DeLeon during the robbery, appellants argument that there was insufficient evidence that appellant evoked fear in DeLeon is immaterial. Moreover, appellants contentions that he was only defending Snoop from DeLeon and lacked the intent to rob, and that DeLeon gave inconsistent testimony and lacked credibility are merely attempts to have us reweigh the evidence, which we cannot do. (People v. Culver (1973) 10 Cal.3d 542, 548 [it is not the function of an appellate court to reweigh the evidence].) Appellants further argument that the juvenile court found that DeLeon did not make a trustworthy witness against appellant is also an attempt to have us reweigh the evidence. Furthermore, his argument is baseless in light of the juvenile courts statement that DeLeons testimony had the ring of credibility and that even though his testimony was all over the place the juvenile court [had] no doubt that the core of his testimony was true.

We conclude that sufficient evidence supported the true finding on the robbery count.

II. The commitment term

Appellant contends that the juvenile court did not state that count 2 was to be merged into count 1 under section 654 and that the term for count 2 should be stayed. He contends that the maximum term of five years, eight months was unauthorized and should be reversed. We reverse the order and remand with directions to the juvenile court.

The People concede that section 654, which prohibits multiple punishment, but not multiple convictions, for a single act or an indivisible course of action applies to this juvenile court proceeding. (People v. Deloza (1998) 18 Cal.4th 585, 591594; In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3 [superseded by section 777 on other grounds].) The People agree that the assault was incidental to the robbery and there was no evidence that appellant harbored any objective aside from committing a robbery. The People request that this court either remand the matter to the juvenile court for a new disposition hearing or find that the maximum term of confinement for the present offense is five years and reduce the term stated by the juvenile court by eight months. ( 1260; People v. Pena (1992) 7 Cal.App.4th 1294, 1313.)

When a juvenile court removes a minor from the custody of his parent as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed on an adult convicted of the same offenses. (Welf. & Inst. Code, 726, subd. (c).) Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms on the basis of multiple counts in computing the maximum confinement term. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454 [superseded by section 777 on other grounds].) When aggregating multiple counts, the juvenile court calculates the maximum confinement term by adding the upper term for the principal offense to one-third of the middle term for each of the remaining subordinate crimes as well as any time for prior sustained petitions. (Welf. & Inst. Code, 726, subd. (c); 1170.1, subd. (a); In re David H. (2003) 106 Cal.App.4th 1131, 11331134 [superseded by section 731 on other grounds as stated in In re Geneva G. (2006) 141 Cal.App.4th 754, 759].)

At the beginning of the disposition hearing, the juvenile court noted that it was addressing the pending disposition as well as a previous Welfare and Institutions Code section 777 probation violation. Later, in pronouncing the commitment term, the juvenile court noted that the term was five years on the robbery and three years on the assault. It then asked do [section] 245 and [section] 211 merge? The prosecutor stated If its same date, same victim . . . it should just be a five-year term. We note that the upper term for count 1, second degree robbery is five years. ( 211, 213, subd. (a)( 2).) The middle term for count 2, assault by means likely to cause great bodily harm is three years. ( 245, subd. (a)(1).) Thus, the upper term of five years for the robbery, plus one year (one-third the midterm of three years) for assault totals six years. However, the trial court ultimately imposed a maximum commitment term of five years, eight months, immediately after the merger discussion. It stated: Five years, and then we have eight months. And credit fromarrested on 4/24, 40 days of credit.

It is unclear whether the eight-month term refers to count 2, the assault charge, or to an aggregation of time for appellants previously sustained petition, which was referred to by the juvenile court and counsel in the context of a probation violation.  But it is apparent that the juvenile court was required to, but did not, impose and stay the maximum term on the assault charge.  We therefore reverse and remand for a new disposition hearing with directions to the juvenile court to clarify the commitment term on count 1 and to impose and stay a commitment term on count 2. Furthermore, if the juvenile court decides to include aggregation of time for previously sustained petitions, on count 1 and/or count 2, it must so state.

DISPOSITION

The order is reversed and remanded for a new disposition hearing with directions to the juvenile court to clarify the commitment term on count 1 and to impose and stay a commitment term on count 2. Furthermore, if the juvenile court decides to include aggregation of time for previously sustained petitions, on count 1 and/or count 2, it must so state. In all other respects, the order under review is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

____________________, Acting P. J. ______________________, J.

DOI TODD CHAVEZ

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Throughout the appellate record, Deleons name is spelled Deleon and DeLeon. We use the spelling DeLeon.