In re Andrew B.

Filed 6/21/06 In re Andrew B. CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Andrew B. appeals from the juvenile court order committing him to the California Youth Authority for a maximum term of 102 years to life. He contends that the juvenile court incorrectly determined his maximum period of confinement and that Penal Code section 654 prohibits the use of adjudications for burglary and false imprisonment in computing this period. We remand for calculation of the maximum period of confinement.

Background

According to the probation report, one morning in December 2004 appellant, then 15 years old, and his 22-year-old uncle Richard Strain came to the Salinas home of John Chioino. When Chioino answered the door, appellant pointed a small revolver at him and said, "Get down, I want your money." When Chioino tried to grab the gun, Strain appeared with a gun, forced Chioino to the ground, and hit him in the back of the head. When Chioino said that his money was in his bedroom Strain grabbed him by the hair and took him there. Appellant waited in the hall, asking several times if Strain had obtained the money. Appellant stepped into the bedroom of Chioino's 12-year-old stepdaughter and asked for a phone. When the stepdaughter said she did not have a phone, appellant, concealing his gun under his arm, "stood guard" at her door and "asked her if she was aware that her stepfather was a drug dealer." After talking to her for a while, he told the stepdaughter not to tell anyone what had happened, shook her hand, and said, "we're cool, right?"

Meanwhile, Strain ransacked other rooms and took some jewelry. When Strain and appellant began to leave the stepdaughter heard Strain say, "Let me get this fool." Chioino took a handgun from the dresser and shot at appellant and Strain. One of them fired back at him. They left, but Chioino heard pounding and kicking in the garage. There was another exchange of gunfire. The stepdaughter left the house with her brother and baby sister. She told the police that she was aware that "her stepfather had contacted Strain and/or [appellant] via telephone on several occasions."

Appellant dragged his uncle a short distance and then dropped him after he could no longer support him. He ran away, knocking on the doors of several houses and discarding his gun in a recycling bin. Appellant entered an occupied residence crying and in a state of panic. He made a phone call and said, "They got Uncle Richard." One of the residents of the house gave appellant a ride to a street where appellant's aunt lived.

Strain was found on the grass across from Chioino's house. He had two "through and through" gunshot wounds and died at the hospital. In his possession were Chioino's cell phone and night vision goggles and over $4,000 in cash. Of the 12 rounds recovered by the police at the scene, at least one was from appellant's gun and five were from Chioino's.

Appellant admitted the allegations of a five-count juvenile delinquency petition charging him with one count of murder of Strain, one count each of attempted murder, residential robbery, and residential burglary of Chioino, and one count of false imprison-ment of the stepdaughter by force, menace, fraud or deceit. (Pen. Code, §§ 187, 664/187, 212.5, 459, 236.) Appellant also admitted an enhancement for personal use of a firearm for each count. (Pen. Code, § 12022.5.) The juvenile court committed appellant to the California Youth Authority saying, "I've made independent review of each of these charges, and event [sic] and the maximum time of confinement is 102 years to life." The commitment document reflects this figure by taking a 35-years-to-life term for the murder and adding to that consecutive, aggravated, full terms for all of the remaining counts.

Discussion

Appellant contends that the juvenile court erred in computing Andrew's maximum period of confinement. Respondent agrees that the maximum term "should be computed first by separately calculating the indeterminate term (for the count 1 murder) and the determinate terms (for the counts 2-5 attempted murder, robbery, burglary, and false imprisonment) (People v. Reyes (1989) 212 Cal.App.3d 852, 856), as the latter term is served before the former (ibid.); second by selecting the longest determinate term with its enhancement as the principal term; and third by imposing one-third the midterms for the remaining, subordinate, offenses, and one-third the imposed terms for the enhancements (Welf. & Inst. Code, § 726, subd. (c); In re Jovan B. (1993) 6 Cal.4th 801, 812)."

The parties agree that the indeterminate term here should be 35 years to life. This represents 25 years to life for the murder count and 10 years for the firearm use enhancement. Regarding the determinate term, both parties recognize that the juvenile court should have selected the attempted murder (count 2) as the principal term with the subordinate terms for the remaining counts and enhancements. Appellant calculates the determinate term as 23 years, eight months. Respondent calculates this term as 32 years, four months. The difference between these calculations is that appellant contends that Penal Code section 654 precludes punishment for the burglary and false imprisonment counts. The burglary "was merely incident to and a means of perpetrating the robbery" and "[t]he objective of the false imprisonment of [the stepdaughter] was to facilitate the robbery by permitting Strain to search Chioino's room without concern that other people in the house . . . could interrupt the commission of this offense by contacting the authorities." Thus, "[t]he false imprisonment was incident to and merely a means of accomplishing or facilitating the commission of the robbery and as such may not be a basis for aggregating [appellant's] maximum period of confinement."

Respondent states, "We agree that depending on whether the robbery and false imprisonment are viewed as having discrete intents and objectives of the burglary or viewed as merely being discrete crimes of violence against separate victims, either the term for the burglary or the term for the false imprisonment must be stayed. In no case must both be stayed."

Penal Code section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d 873, 885.) It prohibits multiple punishment not only for a single act that violates more than one statute but also where separate statutes are violated by a single course of conduct engaged in by the defendant pursuant to a single intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-638; People v. Latimer (1993) 5 Cal.4th 1203, 1208.) An exception exists when the defendant's act or course of conduct results in an act of violence against multiple victims. (People v. Champion (1995) 9 Cal.4th 879, 934-935, Neal v. State of California (1960) 55 Cal.2d 11, 20-21.) When a defendant's violent conduct injures multiple persons, the defendant may be separately punished for injuring each of those persons, notwithstanding section 654. (People v. Champion, supra, 9 Cal.4th at pp. 934-935.) "The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent." (People v. Garcia (1998) 32 Cal.App.4th 1756, 1784.)

The statutory prohibition of Penal Code section 654 applies to consecutive, or aggregated, terms calculated under Welfare and Institutions Code section 726, subdivision (c), because that section incorporates Penal Code section 1170.1, subdivision (a), which in turn expressly refers to Penal Code section 654. (In re Billy M. (1983) 139 Cal.App.3d 973, 978.) " '[S]ection 726 authorizes the court in a section 602 proceeding to "aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602 . . . ." ' " (In re Adrian R. (2000) 85 Cal.App.4th 448, 454, citing In re Richard W. (1979) 91 Cal.App.3d 960, 982.) Aggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court. (Ibid.) "The applicability of Penal Code section 654 is properly determined by the juvenile court that adjudicates and sustains a petition against a youth." (In re David H. (2003) 106 Cal.App.4th 1131, 1137.) Here, despite the court's statement that it had made an "independent review of each of these charges" the record here suggests that the juvenile court simply engaged in computation, rather than exercising its discretion concerning aggregation or determining the applicability of Penal Code section 654. Although we understand, as did the juvenile court, that the term here serves largely theoretical purposes, in that "juvenile law jurisdiction will expire due to age until his 25th birthday," the matter should be remanded to the juvenile court for proper consideration and computation of the maximum term of confinement.

Disposition

The matter is remanded to the juvenile court with directions to exercise its discretion in deciding appellant's maximum term of confinement at the California Youth Authority under Welfare and Institutions Code section 726 and, if it elects to aggregate within the meaning of that section, for its determination of the applicability of Penal Code section 654. The judgment is otherwise affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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