California Cases May 08, 2020: People v. O.M. (In re O.M.)

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 19CEJ600315-1)

OPINION

THE COURT

APPEAL from an order of the Superior Court of Fresno County. David Andrew Gottlieb, Judge.

Lindsey K. Terry, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

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The juvenile court found appellant O.M. had committed grand theft, a violation of Penal Code section 487, subdivision (c), and assault with force likely to produce great bodily injury, a violation of section 245, subdivision (a)(4). O.M. raises three issues: (1) his felony grand theft conviction must be reduced to a misdemeanor because no evidence was presented on the value of the stolen item; (2) the juvenile court failed to declare whether the assault count is a felony or misdemeanor pursuant to Welfare and Institutions Code section 702; and (3) the juvenile court should have stayed imposition of punishment for the theft offense pursuant to section 654. We reduce the theft offense to a misdemeanor and remand for the juvenile court to declare whether the assault is a felony or misdemeanor.

A Welfare and Institutions Code section 602 petition was filed against 17-year-old O.M. on June 25, 2019. It was alleged he committed second degree robbery, in violation of section 211; and assault with force likely to produce great bodily injury, in violation of section 245, subdivision (a)(4). The petition was later amended to allege a count of grand theft, in violation of section 487, subdivision (c), instead of robbery.

Testimony at the contested jurisdictional hearing established that on the night of June 21, 2019, Brian Alvarenga walked out of a liquor store carrying his backpack. He noticed three teenagers, including O.M., attempting to get a homeless man to buy them beer. Alvarenga ignored them and continued to walk away. Alvarenga noticed O.M. approaching him, so he turned around; if asked to buy beer for them he intended to say, "no."

Without notice, O.M. attacked Alvarenga, hitting him in the face and on his head. At one point, Alvarenga was knocked to the ground by the blows. After he was on the

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ground, another teenager joined in the attack and both teenagers punched and kicked Alvarenga.

During the attack and while he was on the ground, Alvarenga's backpack was yanked from him. He did not see who took the backpack, but heard one of the teenagers say something, like "Wait," before grabbing the backpack. Alvarenga thought taking the backpack was an "afterthought" and that the teenagers initially did not plan to steal the backpack.

A witness, Alicia Lopez, saw O.M. take the backpack. Lopez testified that after O.M. took the backpack, he continued to kick Alvarenga. Afterwards, the teenagers "took off running." Lopez went to help Alvarenga and saw "blood everywhere" on Alvarenga's face and observed his "mouth was foaming." Lopez thought Alvarenga had been beaten so badly that she believed he might be dead.

At the conclusion of the contested jurisdictional hearing, the juvenile court found the allegations of the amended petition true and declared O.M. a ward of the court. When speaking with the probation officer who prepared the probation report, O.M. stated he felt "ignored and disrespected" by Alvarenga, so he assaulted him and decided to take the backpack.

At disposition, O.M. was placed on probation for a period of one year, with a potential maximum period of confinement set at four years eight months.

O.M. filed a timely notice of appeal on August 6, 2019.

O.M. raises three issues in this appeal: (1) his felony grand theft conviction must be reduced to a misdemeanor because no evidence was presented on the value of the stolen item; (2) the juvenile court failed to declare whether the assault count is a felony or misdemeanor pursuant to Welfare and Institutions Code section 702; and (3) the juvenile court should have stayed imposition of punishment for the theft offense pursuant to section 654.

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I. Theft Conviction A Misdemeanor

Proposition 47 was approved by the voters on November 4, 2014, and went into effect the next day. ( People v . Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related offenses from felonies or wobblers to misdemeanors for qualified defendants. According to the Legislative Analyst's analysis provided with the voter's guide, Proposition 47 proposed to "reduce[] the penalties for the following crimes: [¶] Grand Theft ... [¶] Shoplifting ... [¶] Receiving Stolen Property ... [¶] Writing Bad Checks ... [¶] Check Forgery ... [¶ and] Drug Possession ." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, pp. 35-36, italics added.)

After enactment of Prop. 47, unless the item stolen is worth more than $950, the offense is a misdemeanor. (§§ 488, 487, subd. (c); see People v . Van Orden (2017) 9 Cal.App.5th 1277, 1288.) At the time O.M. took Alvarenga's backpack, the prosecution was required to prove the value of the backpack and its contents exceeded $950 in order to establish the offense as felony grand theft. As the Supreme Court reiterated in People v . Bullard (2020) 9 Cal.5th 94, 104-105 in cases arising, or tried, after Prop. 47, the People bear the burden of proof on value.

The People concede there was no evidence presented at the jurisdiction hearing to establish the value of the backpack and its contents as required for a conviction, or adjudication, for felony grand theft. Accordingly, O.M.'s felony grand theft conviction must be reduced to a misdemeanor. (See People v . Navarro (2007) 40 Cal.4th 668, 678.)

II. Status of Assault Conviction

O.M. argues that the juvenile court was required to designate the assault conviction as either a felony or misdemeanor, pursuant to Welfare and Institutions Code section 702, but failed to do so. Section 702 of the Welfare and Institutions Code provides in part:

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"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."

The statute is obligatory; it requires the court to make an affirmative declaration, on the record, whether the offense is a felony or a misdemeanor. ( In re Manzy W . (1997) 14 Cal.4th 1199, 1204 ( Manzy W .); In re Jorge Q . (1997) 54 Cal.App.4th 223, 238.)

The requirement serves two purposes. It provides a record from which the maximum term of confinement can be determined, particularly in the case of future adjudications. ( Manzy W ., supra , 14 Cal.4th at p. 1205.) Generally speaking, the maximum term of confinement for a juvenile offender is equal to the longest term of imprisonment that could be imposed on an adult convicted of the same offense. ( Id . at pp. 1205-1206; Welf. & Inst. Code, § 731, subd. (b).) It establishes the upper limit on an indeterminate term; actual time served is determined by the Department of Juvenile Justice. ( In re Ismael A . (1989) 207 Cal.App.3d 911, 919.)

"The requirement of a declaration by the juvenile court whether an offense is a felony or misdemeanor [is] thus directed, in large part, at facilitating the determination of the limits on any present or future commitment to physical confinement for a so-called 'wobbler' offense." ( Manzy W ., supra , 14 Cal.4th at p. 1206.)

The second purpose of the Welfare and Institutions Code section 702 requirement is to ensure "that the juvenile court is aware of, and actually exercises," its discretion. ( Manzy W ., supra , 14 Cal.4th at p. 1207.) Therefore, in the absence of an explicit declaration by the court, the matter must be remanded for such a declaration to be made unless "the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." ( Id . at p. 1209.) The fact the petition or minute order identified the offense as a felony, or that the court set a felony-level period of confinement, is not enough to show that the court was aware it could have done otherwise. ( Id . at p. 1208.)

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The People contend that O.M. has forfeited this claim by failing to raise it in the juvenile court and if not forfeited, the matter must be remanded for the juvenile court to make a determination. The People suggest that to the extent Manzy can be viewed as support for the proposition a Welfare and Institutions Code section 702 claim cannot be forfeited, it should not be followed. However, in its recent decision in In re G . C . (2020) 8 Cal.5th 1119, the Supreme Court reaffirmed its holding in Manzy and indicated an appellate court should remand the matter to the juvenile court for a declaration under Welfare and Institutions Code section 702. ( In re G . C . at p. 1125.) Therefore, we will remand the matter for the juvenile court to declare whether the assault charge is a felony or misdemeanor and, if appropriate, recalculate the maximum term of confinement.

III. Section 654

Appellant contends the imposition of punishment for both the theft and assault counts violated section 654 because both counts arose from a single, indivisible course of conduct. We disagree.

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."

Thus, under the plain language of the statute, multiple punishment may not be imposed for a single "act or omission." (§ 654, subd. (a).) In addition, however, section 654 prohibits multiple punishment for multiple acts which comprise an "indivisible course of conduct." ( People v . Hester ( 2000) 22 Cal.4th 290, 294.)

A course of conduct is "indivisible" if the defendant acts with "a single intent and objective." ( In re Jose P . (2003) 106 Cal.App.4th 458, 469.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation

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committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " ( People v . Harrison (1989) 48 Cal.3d 321, 335.) Separate objectives may be found when "the objectives were either (1) consecutive even if similar or (2) different even if simultaneous." ( People v . Britt (2004) 32 Cal.4th 944, 952.)

"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal." ( People v . Herrera (1999) 70 Cal.App.4th 1456, 1466.) The trial court "is vested with broad latitude in making its determination." ( People v . Jones (2002) 103 Cal.App.4th 1139, 1143.) The court's findings may be either express or implied from the court's ruling ( People v . McCoy (1992) 9 Cal.App.4th 1578, 1585), and our review of those findings is made "in the light most favorable to the respondent and [we] presume the existence of every fact the trial court could reasonably deduce from the evidence." ( People v . Jones , supra , at p. 1143.)

O.M. argues that his course of conduct in committing the instant offenses was indivisible for section 654 purposes because he committed both offenses in order to achieve a single objective, viz., stealing Alvarenga's backpack. He maintains all his conduct was motivated by only one objective and "theft naturally followed immediately after the assault[ ]." To the extent O.M. suggests that in committing both offenses his actions were part of an indivisible course of conduct with a single objective and section 654 precludes punishment for both offenses, we disagree. As indicated above, criminal objectives may be separate even if they exist simultaneously. The evidence supports the juvenile court's finding that separate punishment for the theft and assault are not barred by section 654.

In People v . Vidaurri (1980) 103 Cal.App.3d 450, 465-466, it was held that multiple punishment was permissible for burglary, in which goods were stolen from a

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store, and numerous assaults on innocent bystanders and store employees who were attempting to prevent the defendant from getting away with the goods he had stolen.

In People v . Perry (2007) 154 Cal.App.4th 1521 ( Perry ), the court explained the ability to impose punishment for both assault and robbery, arises out of "the difference between the intent necessarily reflected in convictions of robbery and assault." ( Id ., at p. 1526.) "Assault reflects an intent to perform an act that, by its nature, will probably and directly result in the application of physical force to another person. [Citation.] Robbery, while involving the use of force or fear, reflects an intent to deprive the victim of property. Accordingly, a conviction of assault committed during an escape with property ... reflects, in essence, an intent to apply, attempt to apply, or threaten to apply force to a person, rather [than] an intent to steal property." ( Ibid .)

Here, O.M. attacked Alvarenga, hitting him on the head and knocking him to the ground, and then O.M. and others continued to kick and punch Alvarenga. At some point during the attack and while Alvarenga was on the ground, O.M. yanked Alvarenga's backpack from him. After taking the backpack, O.M. continued to kick Alvarenga. Alvarenga was bleeding profusely, his mouth was foaming, and Lopez thought he might be dead.

Alvarenga testified that he did not believe O.M. and the others were initially planning to steal from him. Alvarenga stated, "I don't think they were planning on stealing from me, but I think they saw me on the floor already just kind of beaten, and they saw my bag, and they just decided to grab it."

The assault on Alvarenga was far in excess of any force necessary to take the backpack and the assault continued after O.M. was in possession of the backpack, strongly indicating O.M. harbored separate intents. O.M.'s objective in taking the backpack was not the same as his objective in assaulting Alvarenga, even after taking the backpack. His objective in committing the former offense was to steal Alvarenga's backpack, whereas O.M.'s objective in committing the assault was to apply force to a

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person and "deter, interrupt, or put a stop to any pursuit," similar to the assaults in Vidaurri and the other assault cases discussed in Perry , in which it was held section 654 did not preclude multiple punishment. ( Perry , supra , 154 Cal.App.4th at p. 1526.)

Substantial evidence supports the juvenile court's conclusion that appellant acted with separate criminal intents in committing the theft and assault. Therefore, the juvenile court did not violate section 654 in imposing punishment on both offenses.

The grand theft offense is reduced to a misdemeanor. The matter is remanded for the juvenile court to declare whether the assault offense is a felony or misdemeanor and if needed, to modify the maximum possible term of confinement. In all other respects, the dispositional findings are affirmed.