In re Cristian B.
Filed 11/15/13
In re Cristian B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CRISTIAN B., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
CRISTIAN B.,
Defendant and
Appellant.
F066784
(Super.
Ct. No. JJD066663)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Jennifer Shirk, Judge.
Kristen
Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Cristian B., a minor, appeals from an order of wardship pursuant to
Welfare and Institutions Code section 602 upon a finding that he committed
felony assault with a deadly weapon involving personal infliction of great
bodily injury, felony elder abuse, and misdemeanor
of confinement calculated by the juvenile court as part of its dispositional
order violates Penal Code section 654.
Respondent concedes error in this regard. We find the concession is appropriate and
modify the order to reflect proper application of section 654. As modified, the order is affirmed.
FACTUAL AND PROCEDURAL
BACKGROUND
On December 26, 2012, the Tulare County District Attorney filed a
juvenile wardship petition under Welfare and Institutions Code section 602,
subdivision (a), alleging Cristian had committed assault with a deadly weapon
by means of force likely to produce great bodily injury (§ 245, subd. (a)(1);
Count 1), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and
committed physical elder abuse with infliction of great bodily injury against a
90-year-old victim (§ 368, subd. (b)(1) & (2); Count 2). Counts 1 and 2 arose from events which
occurred on December 22, 2012. The petition
included a third count which alleged that Cristian willfully resisted, delayed,
or obstructed a peace officer during a separate incident on November 10, 2012
(§ 148, subd. (a)(1); Count 3).
A jurisdictional hearing was held on January 18, 2013. Testimony was received from multiple
witnesses including the victim identified in Counts 1 and 2 of the petition,
Marcos Cabrera. Mr. Cabrera testified
that he was 90 years old
name="_ftnref3" title="">[2] and
the owner of a bar/pool hall located in the city of Woodlake where the crimes
were alleged to have occurred.
According to Mr. Cabrera, Cristian came into his establishment carrying
a bottle of beer and proceeded to break a cue stick over one of the pool
tables. Mr. Cabrera told the minor that
he was not old enough to be in the bar and ordered him to leave. Cristian responded by striking Mr. Cabrera in
the face with a piece of the broken pool cue.
The blow knocked Mr. Cabrera unconscious, broke one of his dentures, and
caused a facial laceration that required five stitches. The victim admitted on cross-examination that
he had pushed Cristian while telling him to leave the bar.
Cristian did not take the stand at the
the physical altercation at Mr. Cabrera’s bar was a man named Juventino
Cisneros. Mr. Cisneros’ testimony was
generally consistent with that of the victim, but differed on certain
details. Whereas the victim recalled
only three people being present during the incident (himself, Cristian, and “a man
that was watching TVâ€), Mr. Cisneros explained that he saw the minor enter the
bar behind a fourth individual from whom he was trying to obtain a cigarette.
The minor picked up a cue stick and followed the other man in circles
around the pool tables, continuing to ask for a cigarette. Mr. Cabrera intervened and made physical
contact with the minor as he instructed him to vacate the premises (“he tried
to hug him to get him to leaveâ€). The
minor then broke the pool cue and struck Mr. Cabrera with part of the stick.
Cristian’s legal counsel attempted to argue a theory of self-defense,
claiming the minor responded justifiably to the initiation of physical contact
by Mr. Cabrera without intending to cause him serious harm. The juvenile court ruled there was
insufficient evidence to support such a defense. All counts and special allegations contained
in the petition were found true beyond a reasonable doubt.
A disposition hearing was held on February 11, 2013. The juvenile court found the welfare of the
minor required his removal from the physical custody of his parent or guardian
and declared Cristian a ward of the court.
He was ordered committed to the Tulare County Youth Facility for 365
days.
It was further determined that the maximum amount of time Cristian
could be confined for the offenses sustained in the petition was eight years
and four months, less 51 days of credit for time served. The maximum period of confinement was
apparently determined pursuant to the following calculation, as recommended by
the probation department: the upper term of four years for felony assault with
a deadly weapon under Count 1, plus three years for the great bodily injury
enhancement under section 12022.7, subdivision (a), plus one year for felony
elder abuse under Count 2 (representing one-third of the middle term), plus
four months for misdemeanor resisting arrest under Count 3 (also representing
one-third of the middle term).
The minor filed a timely notice of
appeal on February 13, 2013.
DISCUSSION
“When a juvenile court sustains criminal violations resulting in an
order of wardship (Welf. & Inst. Code § 602), and removes a youth from the
physical custody of his parent or custodian, it must specify the maximum confinement
term, i.e., the maximum term of imprisonment an adult would receive for the
same offense. (Welf. & Inst. Code, § 726, [subd. (d)].)†(In re
David. H. (2003) 106 Cal.App.4th 1131, 1133 (David H.).) In doing so, the
court may elect to aggregate the period of physical confinement on multiple
counts or multiple petitions. (Welf.
& Inst. Code, § 726, subd. (d).)
When multiple counts are aggregated, the maximum period of confinement
is calculated by adding the upper term for the principal offense, plus
one-third of the middle term for each of the remaining subordinate felonies or
misdemeanors. (Ibid.; § 1170.1, subd. (a); David
H., supra, at pp.
1133-1134.)
Cristian argues, and the Attorney General concedes, that the juvenile
court erred in failing to apply section 654 in its calculation of his maximum
term of confinement, specifically with respect to the elder abuse offense under
Count 2. Section 654 generally prohibits
the imposition of multiple punishments for offenses arising out of a single act
or indivisible course of conduct. (§ 654,
subd. (a); People v. Hester (2000) 22
Cal.4th 290, 294 (Hester).) The statute has been held to apply to
juvenile court sentencing in relation to consecutive or aggregated terms
calculated under Welfare and Institutions Code section 726. (In re
Michael B. (1980) 28 Cal.3d 548, 556, fn. 3; In re Asean D. (1993) 14 Cal.App.4th 467, 474.)
The intent and objective behind the offender’s behavior determines
whether two crimes are part of an indivisible course of conduct for purposes of
section 654. (People v. Harrison (1989) 48 Cal.3d 321, 335.) If two or more offenses were incident to a
single criminal objective, only one of the offenses may be relied upon for
purposes of calculating the maximum period of physical confinement. (In re
Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744.) “When a trial court sentences a defendant to
separate terms without making an express finding the defendant entertained
separate objectives, the trial court is deemed to have made an implied finding
each offense had a separate objective.â€
(People v. Islas (2012) 210
Cal.App.4th 116, 129.) Such findings
will be upheld on appeal if supported by substantial evidence. (Ibid.)
Here we are concerned with the crimes of assault and elder abuse. Assault is defined as “an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of
another.†(§ 240.) Physical elder abuse
is broadly defined to include any act which, “under circumstances or conditions
likely to produce great bodily harm or death, willfully causes or permits any
elder or dependent adult to suffer, or inflicts thereon unjustifiable physical
pain….†(§ 368, subd. (b)(1).) Cristian was found to have committed both
physical elder abuse and assault with a deadly weapon by means of force that
resulted in great bodily injury.
However, the juvenile court made no express findings with regard to his
intentions or objectives.
To the extent the juvenile court impliedly found that section 654 was
not applicable to Counts 1 and 2, the record does not contain substantial
evidence to support its conclusion. We
agree with the parties that the infliction of injury upon Marcos Cabrera is the
only conceivable intent and objective behind the conduct upon which Counts 1
and 2 are based. Although Cristian’s
behavior violated more than one statute, the record does not support a finding
that he harbored separate objectives for each offense.
“Errors in the applicability of section 654 are corrected on appeal
regardless of whether the point was raised by objection in the trial court or
assigned as error on appeal.†(
Despite the minor’s failure to raise the issue at the time of
sentencing, the maximum period of physical confinement must be recalculated to
account for the applicability of section 654 to Counts 1 and 2. Since the juvenile court selected Count 1 as
the principal offense, the one-year term under Count 2 must be stricken,
thereby reducing the maximum period of confinement to seven years and four
months, less the 51 days of credit for time served.
DISPOSITION
The dispositional order is modified to reduce the
minor’s maximum term of confinement from eight years and four months to seven
years and four months, less 51 days of pre-commitment credit. The juvenile court shall prepare an
amended dispositional order and transmit it to the appropriate
authorities. As modified, the judgment
is affirmed in full.
Peña, J.
references are to the Penal Code unless otherwise noted.
