In re Rafael G.

Filed 1/9/07  In re Rafael G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Commissioner.  Reversed and remanded with directions.

I.

INTRODUCTION

            Rafael G. (Rafael) admitted that he committed robbery (Pen. Code, §  211) (count 2) and assault by means of force likely to produce great bodily injury (Pen. Code, §  245, subd. (a)(1)) (count 3).  The trial court committed Rafael to the Division of Juvenile Justice (DJJ) (formerly known as California Youth Authority (CYA)), and set a maximum time of confinement of six years.  The trial court also imposed a restitution fine and designated both offenses as Welfare and Institutions Code^[1] section 707, subdivision (b) offenses.

            On appeal, Rafael claims that the trial court erred in failing to exercise its discretion pursuant to section 731, subdivision (b) to set his maximum term of physical confinement under the facts and circumstances of this case.  In addition, Rafael contends that the trial court failed to declare whether count 3 is a misdemeanor or a felony, as is required pursuant to section 702, and thus, that the court's designation of count 3 as a section 707, subdivision (b) offense is improper.  Rafael further claims that the term of commitment imposed on count 3 must be stayed pursuant to Penal Code section 654.  Finally, Rafael contends that the commitment order improperly states that the trial court imposed a $200 restitution fine, when the court in fact imposed a fine in the amount of $100.  We reverse and remand with directions.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A.        Factual background

            The probation officer's report^[2] describes the circumstances of the offenses as follows:

" The victims stated that on May 2, 2005, at approximately 2215 hours, they were walking through the corner of Dool Ave. and 5th Street when suddenly three Hispanic males approached them.  The first suspect, later identified as Rafael [G.], got in front of [Eric H.] and told him, 'Give me your bike or I'm going to take it.'  [Eric H.] refused.  Rafael [G.] suddenly punched him twice in the face with his right fist.  The second suspect, later identified as Arturo [G.], attempted to punch [G.G.] and told him to give up his bicycle.  [G.G.] stated that he dodged Arturo's punch and quickly gave his bicycle in fear that he might be hit.  Rafael took the bicycle from [Eric H.] by grabbing it and pulling the bicycle out of [Eric. H.'s] hands.  A third suspect stood and watch [sic]."

B.        Procedural background

            In August 2005, the People filed a juvenile wardship petition charging Rafael with two counts of robbery for street terrorism (Pen. Code, §§  211, 186.22, subd. (b)(1)) (counts 1, 2); assault by means of force likely to produce great bodily injury (Pen. Code, §  245, subd. (a)(1)) (count 3), and mayhem (Pen. Code, §  203) (count 4). 

            In September 2005, at the jurisdictional hearing, the People moved to strike the street terrorism allegation in count 2.  The court granted the People's motion.  Raphael then admitted that he had committed the offenses alleged in count 2, as amended, and count 3.  Thereafter, the People moved to dismiss counts 1 and 4.  The court granted the motion.

            In November 2005, at the dispositional hearing, the trial court committed Raphael to the DJJ and set a maximum time of confinement of six years four months.  In January 2006, the trial court amended Raphael's commitment order and set a maximum time of confinement of six years ─ five years on count 2, and one year consecutive on count  3. 

            Rafael timely appeals.

III.

DISCUSSION

A.        The trial court failed to exercise its discretion pursuant to section 731

            subdivision (b)

            Rafael claims the trial court failed to exercise its discretion pursuant to section 731, subdivision (b) to set his maximum term of physical confinement under the facts and circumstances of this case.

            The People contend Rafael forfeited this claim by failing to raise it in the trial court.  In In re Sean W.  (2005) 127 Cal.App.4th 1177, 1181-1182 (Sean W.), the court rejected an identical argument.  We agree with the Sean W. court, and consider Rafael's claim.

            Section 731, subdivision (b) provides:

" A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.  A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.  This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769." (Italics added.)

            In 2003, the Legislature added the italicized language in an amendment to section 731.  (Stats. 2003, ch. 4, § 1, No. 2 West's Cal. Legis. Service, p. 146.)  In construing this amendment, the Sean W. court stated, " [S]ection 731, subdivision (b), unambiguously provides that the juvenile court has discretion to set a maximum term of physical confinement, based on the facts and circumstances of the case, so long as that term does not exceed the maximum period that could be imposed on an adult convicted of the same offense."   (Sean W., supra, 127 Cal.App.4th at p. 1183.)  The Sean W. court applied section 731, subdivision (b) in concluding, " The record supports appellant's claim that the juvenile court did not believe it had any discretion with respect to the maximum term of confinement when it committed appellant to CYA."   (Sean W., supra, 127 Cal.App.4th at p.  1182.)

            The court summarized the record in Sean W. as follows:

" The court twice mentioned appellant's maximum term of confinement during the proceedings.  First, on July 20, 2004, after appellant admitted to the allegations of the amended petition and the court found a knowing waiver of rights, the court said, 'I'm sorry, but at this time I do need to advise the minor of the maximum term.'  The prosecutor then said, 'It's eight years, eight months.'  The court then said, 'Do you understand that, sir?'  Appellant responded in the affirmative.  Second, at the August 4, 2004 dispositional hearing, the court stated, 'For the reasons I have stated on the record, the minor's committed to the Department of California Youth Authority for a term prescribed by law, for a period not exceeding eight years-and what was it? ─ '  The clerk answered, 'Eight months.'  The court then said, ─ 'eight years and eight months.'  The court, counsel, and the probation department indicated no awareness of court discretion in setting the maximum term of confinement."   (Sean W., supra, 127 Cal.App.4th at p. 1182.)

            The Sean W. court remanded the case to the trial court with directions to exercise its discretion in setting the maximum term of confinement, pursuant to section 731, subdivision (b).  (Sean W., supra, 127 Cal.App.4th at p. 1189.)

            Similarly, in In re Carlos E.  (2005) 127 Cal.App.4th 1529, 1533 (Carlos E.), the court concluded, " We find that, in light of the present language of section 731, the maximum term of a minor's confinement must be discretionarily determined by the juvenile court based on the facts and circumstances placing the minor before the court, not to exceed the maximum time prescribed by adult sentencing law."   The Carlos E. court noted that the " juvenile court set the maximum term of confinement at four years, based solely on the maximum term an adult would face."   (Ibid.)  The court remanded the matter to the trial court with directions to set a maximum term of confinement based on the facts and circumstances of the case.  (Id. at p. 1543.)

            In re Jacob J.  (2005) 130 Cal.App.4th 429, 432 (Jacob J.), the court noted that, " [T]he amendments to Welfare and Institutions Code section 731  .  .  .  require[] the trial court to set a maximum term of physical confinement at CYA based on the particular facts and circumstances of the matter or matters that conferred jurisdiction over the minor in juvenile court."   The Jacob J.  court held that the record must reflect that the court set a maximum term of confinement based on the facts and circumstances of the case:

" Given the wording of the statute and its legislative history, where, as here, the juvenile court sets the maximum term of physical confinement at CYA at the maximum term of an adult confinement, the record must show the court did so after considering the particular facts and circumstances of the matter before it.  We reach this conclusion considering not only the wording of the amendment to the statute, which we have discussed, but also the structure of the statute after its amendment.  Before the statute was amended, it said the maximum term of physical confinement at CYA could not exceed the maximum period of imprisonment that could be imposed on an adult convicted of the same offenses.  After its amendment, the statute spoke of a second and separate, although perhaps not different, period of physical confinement, that is, confinement set by the court given the particular facts and circumstances of the case under consideration.  When the court has stated only the maximum term of confinement that could have been imposed on an adult and is silent as to a maximum term based on the facts of the case, it has not spoken to the second, separate maximum called for by the amended statute.

" Thus, while the statute does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight, the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses.  The juvenile court having failed to set that term, the matter must be remanded to the court for that determination."   (Jacob J., supra, 130 Cal.App.4th at p. 438, italics added.)

            In this case, there is no indication in the record that the trial court exercised its discretion pursuant to the second sentence of section 731, subdivision (b).  At the dispositional hearing, the trial court did not state that it was setting a maximum term of confinement based on the facts and circumstances of the case.  Nor did the trial court make any statements suggesting that it was aware of its discretion under section 731, subdivision (b) in setting Rafael's maximum term of confinement.  Further, neither the probation officer's report, nor Rafael's opposition to the probation officer's report, referred to such discretion, and the parties did not mention it at the dispositional hearing. 

            We reject the People's contention that the record demonstrates that the court exercised it discretion under the second sentence of section 731, subdivision (b).  The People first note that Rafael cited section 731 in his opposition to the probation report.  However, Rafael cited section 731 merely for the proposition that the juvenile court has the authority to commit a minor to the DJJ.  Further, Rafael argued only that he should not be committed to the DJJ.  He did not refer to the court's discretion to set a maximum term of confinement under the facts and circumstances of the case or request that the court exercise such discretion in this case.^[3]

            The People next argue that the record demonstrates that the trial court considered the facts and circumstances of the case in setting the maximum term of confinement.  While the court did consider the facts and circumstances of the case, the record is clear that it did so only in connection with considering Rafael's request that he not be committed to the DJJ.  The court did not consider the facts and circumstances in exercising its discretion to set a maximum term of confinement.   (See Jacob J., supra, 130 Cal.App.4th at p. 438.)  There is no indication in the record that the court was aware of such discretion.

            Finally, the People argue, in the alternative, that if the trial court erred, the error was harmless because it is not reasonably probable that the trial court would have exercised its discretion at the dispositional hearing so as to provide Rafael with a more favorable commitment.  We reject this contention.  When a court " fail[s] to exercise a discretion conferred and compelled by law," such error " constitute[s] the denial of a fair hearing and deprivation of fundamental procedural rights compelling reversal."   (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1091; accord Jacob J., supra, 130 Cal.App.4th at p.  438; Carlos E., supra, 127 Cal.App.4th at p. 1543; Sean W., supra, 127 Cal.App.4th at pp.  1188-1189.)

            We conclude thatthe matter must be remanded to the juvenile court with directions to exercise its discretion in setting Rafael's maximum term of confinement under the facts and circumstances of this case, pursuant to the second sentence of section 731, subdivision (b).

B.        Because the trial court failed to declare whether count 3 is a misdemeanor

            or a felony, its designation of count 3 as a section 707, subdivision (b) offense

            is improper

            Rafael claims the trial court erred by classifying count 3 as a section 707, subdivision (b) offense.  Rafael points out that section 707, subdivision (b) applies only to felonies, and contends that the trial court did not declare the " wobbler" ^[4] offense of assault with force likely to produce great bodily injury in count 3 to be a felony when the court imposed punishment, as is required by section 702.  Accordingly, Rafael maintains that the trial court's designation of count 3 as a section 707, subdivision (b) offense is improper.

            1.         Factual and procedural background

            The People charged Rafael with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count 3).  The petition alleged that the offense was a felony.

            At the jurisdictional hearing, Rafael admitted that he committed the felony offense of assault by means of  force likely to produce great bodily injury.  The trial court stated, " Is that what you're prepared to do, admit this offense of robbery and the felony offense, assault by means of force likely to produce great bodily injury?"   Rafael responded in the affirmative.  The trial court also advised Rafael that the offense of assault by means of force likely to produce great bodily injury carried a maximum term of confinement of four years, which is the upper term of imprisonment specified for the felony offense.  (Pen. Code, §  245, (a)(1).)  After accepting Rafael's admissions, the court stated, " The allegations of the petition as admitted are true as alleged."   The minute order for the jurisdiction hearing indicates that Rafael admitted to misdemeanor assault with a deadly weapon other than a firearm. 

            At the dispositional hearing on November 17, 2005, the trial court stated that Rafael had admitted the felony offense of assault by means of force likely to produce great bodily injury.  The court set the maximum time of confinement at six years four months.

            On January 4, 2006, the trial court received a letter from DJJ.  The letter informed the court that DJJ perceived various errors in Rafael's commitment order and requested that the court provide it with an amended commitment order.^[5]  The letter stated that the term for the violation of Penal Code section 245(a)(1) was one year.  The letter also stated, " [W]e believe the [Penal Code section] 245(a)(1) to be a [section] 707 [subdivision] (b) offense, which will extend [our] jurisdiction time to age 25."

            On January 12, 2006, the court held a brief hearing for the purpose of considering the January 4 letter.  At the outset, the court stated that the maximum time of confinement was five years for the robbery and one year for the assault with means of force likely to produce great bodily injury, for a total maximum term of confinement of six years.  The court stated, " With respect to [the] failure to designate the offenses of the [section] 707, [subdivision] (b) offense [sic], I think both offenses are [section] 707 [, subdivision] (b) offenses."   The prosecutor responded, " I believe so."   Defense counsel stated, " Yes.  I looked at it last night."   Thereafter, the court said that it would submit an amended commitment.  The court stated that the maximum term of confinement was six years, and that both offenses were section 707, subdivision (b) offenses. 

            The court filed a commitment order on January 18, 2006.  The order indicated that both the robbery (Pen. Code, §  211) and the assault with means of force likely to produce great bodily injury (Pen. Code, §  245, subd. (a)(1)) were misdemeanors.  The commitment order further indicated that both offenses were section 707, subdivision (b) offenses. 

            On February 6, 2006, the trial court received another letter from the Division.  The letter stated, " [W]e are unsure of the court's intent regarding the offenses for this commitment for the following reasons  .  .  .  ."   Among the reasons listed was that, " [t]he new order indicates that both offenses are misdemeanors; however, the terms given relate to felonies  .  .  .  ."   The record does not indicate that the trial court took any action in response to this letter.  

            2.         Forfeiture

            The People claim Rafael forfeited this claim by failing to object in the trial court.  A claim that the juvenile court exceeded the court's statutory authority and imposed an unauthorized sentence, may be raised for the first time on appeal.  (In re Luisa Z. (2000) 78 Cal.App.4th 978, 982.)  Rafael's claim that the trial court improperly classified a misdemeanor offense as a section 707, subdivision (b) offense constitutes such a claim.  Accordingly, Rafael may claim for the first time on appeal that the trial court made such an unauthorized designation.

            3.         Governing law

            The juvenile court's jurisdiction over a person who has committed an offense designated in section 707, subdivision (b) is extended from age 21 to age 25.  (§  607.)  In addition, a section 707, subdivision (b) offense may qualify as a prior serious felony under the Three Strikes law.  (Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3).)  Section 707, subdivision (b) list a series of serious offenses, including " [a]ssault by any means of force likely to produce great bodily injury."   (§  707, subd. (b)(14).) 

            In In re Sim J.  (1995) 38 Cal.App.4th 94, 98 (Sim J.), the court considered whether the trial court erred in designating a  misdemeanor violation of Penal Code section 245, subdivision (a)(1) as a section 707, subdivision (b) offense.  The Sim J.  court noted that although assault by means of force likely to produce great bodily injury is listed in section 707, subdivision (b), the statute does not specify whether it applies to misdemeanor assaults.  (Sim J., supra, 38 Cal.App.4th at p. 98.)  The Sim J.  court noted that the offenses listed in section 707, subdivision (b) " constitute extremely serious offenses."   (Sim J., supra, 38 Cal.App.4th at p. 98.)  The court further reasoned that a section 707, subdivision (b) offense may qualify as a strike and observed that the Three Strikes law was not intended to increase punishment for prior misdemeanors.  (Sim J., supra, 38 Cal.App.4th at p. 98-99.)  The Sim J. court therefore concluded, " [S]ection 707 [, subdivision] (b) offenses do not include misdemeanor violations," and held that the trial court had erred in designating the minor's prior misdemeanor assault adjudication as a section 707, subdivision (b) offense.  (Sim J., supra, 38 Cal.App.4th at p. 99.)

            Section 702 provides, " If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony."   Assault by means of force likely to produce great bodily injury is such an offense.^[6] 

            Section 702, " requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult."   (In re Manzy W.  (1997) 14 Cal.4th 1199, 1204 (Manzy W.).)  The Manzy W. court explained, " The requirement is obligatory:  '[Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.'"  (In re Manzy W., supra, 14 Cal.4th at p. 1204.)  The Manzy W.  court also held that where the trial court fails to expressly declare the felony or misdemeanor status of an offense as required under section 702, remand is required unless, " the record  .  .  .  show[s] that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler."   (Id. at p.  1209.)  The Manzy W. court went on to state that neither the imposition of a felony-length term nor the acceptance of a plea to an offense pled as a felony demonstrates that the trial court was aware of such discretion (id. at pp 1207-1208), because neither act demonstrates that the trial court " consider[ed] the possibility of sentencing [the defendant] as a misdemeanant."   (Id. at p. 1207, quoting In re Dennis C. (1980) 104 Cal.App.3d 16, 23; cf. People v. Statum  (2002) 28 Cal.4th 682, 689 [noting that a trial court may impose a misdemeanor sentence after a defendant has pled guilty to a felony].

            4.         The trial court failed to comply with the mandate of section 702

            The trial court failed to declare whether count 3 would be a felony or misdemeanor in the case of an adult.  The court thus failed to comply with section 702.  (Manzy W., supra, 14 Cal.4th at p. 1204.)  In addition, the record does not demonstrate that the court exercised its discretion to determine the felony or misdemeanor nature of count 3.  While the People claim that the court's admonishments to Rafael prior to his plea and the court's acceptance of his admission to a felony offense indicates that the court considered count 3 to be a felony, neither is sufficient, under binding California Supreme Court precedent, to demonstrate that the court " was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler."   (Manzy W., supra, 14 Cal.4th at p. 1209.)  Further, the fact that both Rafael's commitment order and the minute order from the disposition hearing state that count 3 is a misdemeanor supports the conclusion that the record does not indicate that the court exercised its discretion in determining that count 3 is a felony.

            As the Supreme Court made clear in Manzy W., one of the reasons for insisting that the trial court comply with its obligation under section 702 to declare an offense to be either a misdemeanor or a felony, is that a felony finding " may  .  .  .  have substantial ramifications in future criminal adjudications of the minor, including under Penal Code section 667, subdivision (d)(3)(A) ─ the 'Three Strikes' law ─ which provides that certain prior juvenile adjudications 'shall constitute a prior felony conviction for the purposes of sentence enhancement.'"   (Manzy W., supra, 14 Cal.4th at p. 1209.)  Among the " prior juvenile adjudications" (ibid.), that may qualify as a prior felony conviction for purposes of the Three Strikes law are those designated as section 707, subdivision (b) offenses.  (Pen. Code, § 667, subd. (d)(3).) 

            The trial court's commitment order states that count 3 is a misdemeanor and that it is a section 707, subdivision (b) offense.  The trial court thus imposed an unauthorized sentence.  (See In re Sim J., supra, 38 Cal.App.4th at p. 99.)  We conclude that the matter must be remanded to allow the trial court to declare whether count 3 is a felony or misdemeanor pursuant to section 702 and, if the court declares the offense a felony, to determine whether section 707, subdivision (b) applies to count 3.

C.        The commitment imposed on count 3 must be stayed pursuant to Penal Code

            section 654

            Rafael claims that the one year commitment imposed on count 3, assault by means of force likely to produce great bodily injury (Pen. Code, §  245, subd. (a)(1)), is barred by section Penal Code section 654 because the assault was committed to facilitate the robbery charged in count 2.

            Although Rafael did not raise his section 654 claim in the trial court and the trial court did not address the issue at the disposition hearing, " [i]t is well settled  .  .  .  that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654.  [Citations.]"   (People v. Scott  (1994) 9 Cal.4th 331, 354, fn. 17.)  Therefore, an appellant may raise for the first time on appeal a claim that section 654 bars imposition of a term of imprisonment.  (People v. Flowers  (1982) 132 Cal.App.3d 584, 589 (Flowers).) 

            Penal Code section 654 applies to juvenile court sentencing.  (In re Michael B.  (1980) 28 Cal.3d 548, 556.)  Penal Code section 654, subdivision (a) provides in relevant part, " An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."   " Section 654 prohibits multiple punishments for the same acts or for acts arising out of the same course conduct."   (People v. Cuevas  (2006) 142 Cal.App.4th 1141, 1148.) " Where, as a matter of law, the uncontradicted evidence shows an indivisible course of conduct for which multiple prison terms were imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.  [Citations.]"   (Flowers, supra, 132 Cal.App.3d at p. 589.)

            In Neal v. State  (1960) 55 Cal.2d 11 (Neal), the California Supreme Court outlined section 654's prohibition on multiple punishment for offenses incident to one criminal objective, with specific reference to cases involving a robbery during which an assault was committed:

" 'Section 654 has been applied not only where there was but one " act" in the ordinary sense  .  .  .  but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.'  [Citation.]  [¶]  Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.  If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

" Thus in People v. Logan [1953] 41 Cal.2d 279, 290 [260 P.2d 20] [(Logan)], defendant, who chose to commit robbery by first knocking out his victim with a baseball bat and then taking his valuables was convicted of both robbery and assault.  We reversed the assault conviction on the ground that the double punishment violated section 654.  In In re Chapman [1954] 43 Cal.2d 385, 387 [273 P.2d 817], however, we held that when the assault is not a means of perpetrating the robbery but is an act that follows after the robbery is completed the defendant is guilty of two punishable acts."   (Neal, supra, 55 Cal.2d at pp. 19-20.)

            In the wake of Neal, courts have repeatedly held that " if an assault is committed as the means of perpetrating a robbery, section 654 requires the sentence for the assault to be stayed."   (E.g, In re Jesse F.  (1982) 137 Cal.App.3d 164, 171.)  In contrast, " When there is an assault after the fruits of the robbery have been obtained, and the assault is committed with an intent other than to effectuate the robbery, it is separately punishable." (Ibid.)

            The probation officer's report indicates that Rafael demanded Eric H.'s bicycle and Eric H. refused.  Rafael then assaulted Eric H. and took his bicycle.  Under these circumstances, which are indistinguishable from those in Logan as discussed in Neal, supra, 55 Cal.2d at pp. 19-20, it is clear that Rafael's assault was committed as the means of perpetrating the robbery.

            The People cite People v. Nguyen  (1988) 204 Cal.App.3d 181 (Nguyen) in arguing that section 654 does not preclude imposition of the one year commitment for the assault in this case.  In Nguyen, the court described the circumstances of the two offenses as follows:  " While Nguyen remained at the store's till, his crime partner took the victim into a back room, relieved him of his valuables, and then forced him to lie on the floor in an obvious attempt to forestall any resistance.  Only after the clerk assumed that position did Nguyen's accomplice shoot him."   (Nguyen, supra, 204 Cal.App.3d at p. 190.)  The Nguyen court concluded that the shooting " constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not 'incidental' to robbery for purposes of Penal Code section 654."   (Id. at p. 190.)  The Nguyen  court reasoned:

" It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there.  But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.  Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason."   (Id. at p. 191.)

            Unlike in Nguyen, Rafael committed the assault before obtaining any of the fruits of the robbery, prior to having neutralized any potential resistance from the victims, and while Eric. H. was resisting Rafael's demand for his bicycle.  In addition, Rafael's striking of Eric H. did not constitute " gratuitous violence," far beyond that reasonably necessary to accomplish the robbery.  Rather, the evidence indicates that Rafael committed the assault as a means of perpetrating the robbery.  Under these circumstances, Penal Code section 654 applies (see Nguyen, supra, 204 Cal.App.3d at p. 190), and requires staying imposition of the one year term of commitment for the assault. 

D.        The commitment order must be amended to correct two additional errors

            Rafael claims the commitment order improperly states that the trial court imposed a $200 restitution fine, when the court in fact imposed a $100 fine.  The People concede the error.  We accept the People's concession and direct the trial court to amend the commitment order to reflect the imposition of a $ 100 restitution fine.

            The commitment order also incorrectly states that count 2, a robbery (Penal Code, §  211), is a misdemeanor.  The trial court is directed to amend the commitment order to state that count 2 is a felony.

IV.

DISPOSITION

            The judgment is reversed.  The matter is remanded to the trial court with directions to exercise its discretion to set Rafael's maximum term of physical confinement under the facts and circumstances of this case, pursuant to the second sentence of section 731, subdivision (b).  The trial court is also instructed to declare whether the assault with force likely to produce great bodily injury in count 3 is a felony or misdemeanor pursuant to section 702 and, if a felony, to determine whether section 707, subdivision (b) applies to count 3.  The court is further directed to stay the term of commitment imposed on count 3 pursuant to Penal Code section 654, to amend the commitment order to impose a $100 restitution fine, and to amend the commitment order to state that the robbery conviction on in count 2 is a felony.  Finally, the trial court shall determine Rafael's maximum period of imprisonment pursuant to the first sentence of section 731, subdivision (b) and enter a new commitment order consistent with this opinion.

AARON, J.

WE CONCUR:

                         BENKE, Acting P. J.

                                   O'ROURKE, J.

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^[1]           Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.

^[2]           We use the probation officer's statement of facts because there was no trial in this case.

^[3]           Rafael stated in his opposition, " The power of the Juvenile Court to commit a ward to the Youth Authority is set forth in W & I section 731.  The statute authorizes the commitment, but other statutes restrict that power."

^[4]           " A wobbler is any crime that may be punished as either a misdemeanor or felony."   (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1443, fn. 3.)

^[5]           The court's original commitment order is not contained in the record.

^[6]           Penal Code section 245, subdivision (a)(1) provides in relevant part, " Any person who commits an assault upon the person of another . . . by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."