PEOPLE v. EDUARDO M

Filed 6/28/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Q. Clay, III, Judge. Affirmed in part, reversed in part, and modified in part with directions.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

In the published portion of this opinion, we hold that when a criminal defendant or delinquent ward is convicted of aiding and abetting two felony firearm assaults, he cannot also be convicted of being an accessory to those felonies solely on the basis of his immediate flight from the scene and later denials of his own involvement, even if that conduct incidentally helped the shooter escape.

The juvenile court declared Eduardo M. a delinquent ward after the court found that he committed two assaults with a semi-automatic firearm by aiding and abetting the actual perpetrator, in both of which a principal was armed with a firearm (counts 1 and 2), and that he was also an accessory to the assaults (count 4).^[1] (Welf. & Inst. Code, § 602, subd. (a); Pen. Code, §§ 245, subd. (b); 12022, subd. (a)(1); 32; all further undesignated section references are to the Welfare and Institutions Code.) Based on this case and an earlier sustained delinquency petition in which the court found that Eduardo had violated the terms of his probation, the court committed Eduardo to the Youth Authority for a maximum period of 13 years and 8 months.^[2]

Eduardo appeals, contending that (I) the finding that he was an accessory (count 4) must be reversed because his acts in aiding and abetting the assaults (counts 1 and 2) and helping the shooter escape did not sufficiently demonstrate a separate intent to aid the shooter's escape; (II) the findings that a principal was armed during both assaults (counts 1 and 2), and any related potential custody time, must be stricken because being armed with a firearm is an element of assault with a firearm; and (III) the court made several errors in its dispositional order, including (A) failing to determine whether Eduardo had exceptional educational needs; (B) failing to exercise its discretion in calculating his maximum confinement time; (C) declaring the accessory finding (count 4) to be a section 707, subdivision (b) offense; (D) incorrectly calculating his predisposition custody credits; (E) preparing the Youth Authority commitment form; and (F) committing him to the Youth Authority. (The Attorney General concedes issues II and III (B), (C), and (E).)

As explained in the published portion of the opinion, we agree with contention (I) and reverse the finding that Eduardo was an accessory (count 4). In the unpublished portion of the opinion, we agree with contentions (II) and (III) (A), (B), (D), and (E). We modify the adjudication and dispositional orders to strike the findings that a principal was armed during the commission of counts 1 and 2, and any related potential custody time. We also modify the dispositional order to strike the calculation of Eduardo's maximum confinement time and to award Eduardo 89 rather than 88 days of predisposition custody credit. Because we reverse with prejudice the count 4 finding that Eduardo was an accessory, we need not address whether count 4 qualified as a section 707, subdivision (b) offense. We remand for the court to conduct a new dispositional hearing at which it should determine whether Eduardo has special educational needs and determine his maximum possible confinement time taking our opinion into account. Because those determinations may affect the court's decision whether a Youth Authority commitment is appropriate, we also vacate the Youth Authority commitment order, which the court should reconsider on remand. In all other respects, we affirm the judgment (order of wardship).

FACTS

I. The Adjudication Hearing.

On December 3, 2003, the juvenile court declared Eduardo, who was born in April 1989, a delinquent ward based on his admission that on July 6, 2003, he illegally drove a vehicle belonging to someone else. (Veh. Code, § 10851, subd. (a).) The juvenile court placed Eduardo home on probation on condition, among others, that he obey all laws and not â€