In re B.R.



















Filed 3/8/13 In re B.R. CA2/5













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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
FIVE




>

In re B.R., a Person Coming Under the Juvenile Court Law.	B242526 (Los Angeles County Super. Ct. No. YJ33957)
THE PEOPLE, Plaintiff and Respondent, v. B.R., Defendant and Appellant.

APPEAL from
orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Irma J. Brown, Judge.
Affirmed.

Steven A.
Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.





I. INTRODUCTION



B.R., a
minor, appeals from adjudication and disposition orders. The juvenile court found that on October 25, 2011, the minor
committed assault by means of force likely to produce great bodily injury
(count 1) and deadly weapon assault (count 3).
The juvenile court found the deadly weapon assault was a serious
felony. (Former Pen. Code,href="#_ftn1" name="_ftnref1" title="">^[1] §§ 245, subd. (a)(1) (Stats. 2004, ch.
494, § 1, pp. 4040-4041); 1192.7, subd. (c)(31).) At the time of the altercation, the minor was
on probation for petty theft. The
juvenile court sustained the Welfare and Institutions Code section 602 petition
and found the minor in violation of probation.
The minor was released home on probation. We affirm the orders under review.



II. THE EVIDENCE



The minor
was a combatant in a fight on the grounds of a public high school. Several students, including the minor,
confronted A.R., the victim. The minor
goaded another student to, “Hit him already.”
During the fight, the minor kicked and punched A.R. The minor also hit A.R. with a hard metal
object. A.R. suffered multiple
injuries. A.R. and a friend, C.D., an
eyewitness, both identified the minor as participating in the fight. A.R. and C.D. had known the minor since
middle school. A.R. and C.D. both
testified the minor used a metal object during the assault. There was evidence the minor was a member of
a gang.

The minor
denied participating in the fight. The
minor’s basketball coach, Anthony von Hilliard, heard but did not see the
commotion. Mr. von Hilliard
saw the minor standing off to the side.
Mr. von Hilliard called the minor over. The minor did not look like he had been in a
fight.



III. DISCUSSION



A. The Gang Membership Evidence



There was no gang allegation in the present case. However, the prosecution was allowed to
inquire whether the minor was a gang member.
The minor argues evidence he admitted gang membership was more
prejudicial than probative under Evidence Code section 352 and should have been
excluded.

The
circumstances under which the gang membership evidence was admitted were as
follows. The victim was cross-examined
by Deputy Public Defender Toral Malik.
The victim denied he was a gang member or was affiliated with any gang. Mr. Malik subsequently asked the minor about
the Hispanic individuals who had been involved in the fistfight. The minor testified they were members of a
“crew.” Mr. Malik asked, “As far as you
know, is [A.R.] part of that group?” The
minor responded, “He hangs out with most of them.” Deputy District Attorney June Miyagishima
subsequently sought to inquire whether the minor was in a gang. The juvenile court allowed the inquiry. The minor testified he was not a gang member;
further, he never told anyone, including campus police officer William Etue,
that he was a gang member. C.D. testified he had been, but no longer was
a gang member. The same was true for the
victim; he had once been but no longer was a gang member. Officer Etue testified, “On one of my
contacts [with the minor,] he told me that he was part of [a] criminal street
gang . . . .”

On appeal,
the Attorney General argues: “[The
minor] testified that [the victim] ‘hangs out’ with
the . . . crew. . .
. This raised the inference that [the
victim] may have been part of a gang-related fight and not quite the innocent
or credible victim he pretended to be.
Therefore, evidence that [the minor] might belong to a gang, a claim he
denied . . . , gave the court a more balanced view of both [the minor’s] and
[the victim’s] testimony and credibility.”


Our review
is for an abuse of discretion. (>People v. Brown (2003) 31 Cal.4th 518,
547; People v. Carter (2003) 30
Cal.4th 1166, 1194.) However, we need
not determine whether the juvenile court abused its discretion. It is not reasonably probable the result
would have been more favorable to the minor absent the gang membership
evidence. (Evid. Code, § 353, subd. (b);
People v. Earp (1999) 20 Cal.4th 826,
878; People v. Avitia (2005) 127
Cal.App.4th 185, 194.) The evidence of
the minor’s gang membership was limited and non-inflammatory. The matter was tried by the juvenile court
without a jury. The deputy district
attorney, Ms. Miyagishima, did not mention the minor’s gang affiliation in
argument to the juvenile court. The
deputy public defender, Mr. Malik, on the other hand, argued A.R.’s and C.D.’s
gang membership was relevant to their credibility and motive. A.R. and C.D. had known the minor since
middle school. They testified the minor
assaulted A.R. They further testified
the minor used his hands, feet and a metal object. The minor denied any involvement in the
fistfight. The juvenile court resolved
this credibility contest adversely to the minor. It is not reasonably probable the juvenile
court would have found in the minor’s favor on any issue absent the limited
gang membership evidence. And because
there was no prejudice, there was no denial of the minor’s fair trial
right. (People v. Valdez (2012) 55 Cal.4th 82, 134; People v. Carter, supra, 30 Cal.4th at p. 1196.)



B. The Assault Counts



At
the time the minor committed the present offenses, former section 245,
subdivision (a)(1) set forth two forms of aggravated assault. Former section 245, subdivision (a)(1)
provided: “Any person who commits an
assault upon the person of another with a deadly weapon or instrument other than
a firearm or by any means of force likely to produce great bodily injury shall
be punished . . . .” (Stats. 2004, ch.
494, § 1, p. 4040.) Former section
245, subdivision (a)(1) defined only one crime, aggravated assault. (People
v. Aguilar (1997) 16 Cal.4th 1023, 1036-1037; In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) But former section 245, subdivision (a)(1),
set forth two forms of the same offense:
first, with a deadly weapon, and second, with force likely to produce
great bodily injury. (>People v. Delgado (2008) 43 Cal.4th
1059, 1069; In re Mosley, supra, 1
Cal.3d at p. 919, fn. 5.) As the Court
of Appeal for the Third Appellate District explained in People v. McGee (1993) 15 Cal.App.4th 107, 114: “Section 245, subdivision (a)(1) speaks in the
alternative, specifying two forms of prohibited conduct. The statute can be violated by assaulting a
person with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. . . .
Hence, section 245, subdivision (a)(1) can be violated without
necessarily using a deadly weapon. (See
1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 419, pp. 480-481 and
cases cited therein.)”

The
minor argues that in the present case there was one continuous assault;
therefore, he could not be found to have committed two assaults. We disagree.
An accused may be convicted of more than one crime, including different
descriptions of the same offense, arising out of a single course of
conduct. (§ 954; People v. Milward (2011) 52 Cal.4th 580, 585; People v. Sloan (2007) 42 Cal.4th 110, 119.) Section 954 states in part, “An accusatory
pleading may charge two or more different offenses connected together in their
commission, or different statements of the same offense or two or more
different offenses of the same class of crimes or offenses, under separate
counts . . . [and] the defendant may be convicted of any number of the offenses
charged . . . .” The statutory language
is direct and clear. (>People v. Sloan, supra, 42 Cal.4th at p.
114; In re Jose H. (2000) 77
Cal.App.4th 1090, 1095.) The only
exception prohibits multiple convictions based on necessarily included
offenses. (People v. Milward, supra, 52 Cal.4th at p. 585; >People v. Reed (2006) 38 Cal.4th 1224,
1227.) The minor does not claim that
assault with force likely to produce great bodily injury is a lesser included
offense of assault with a deadly weapon, nor could he. (In re
Mosley, supra, 1 Cal.3d at p. 919, fn. 5; People v. Martinez (2005) 125 Cal.App.4th 1035, 1044.) The juvenile court, as trier of fact,
impliedly found the minor guilty of successive acts of assault with force
likely to produce great bodily injury and assault with a deadly weapon. Substantial evidence supported those
findings. Therefore, the minor was
properly found to have committed two assaults.

With
respect to count 1, it is well established that an assault by means of force
likely to produce great bodily injury may consist of an attack by use of hands
or fists. (People v. Aguilar, supra, 16 Cal.4th at p. 1028;> People v. Wingo (1975) 14 Cal.3d 169,
176; People v. Tallman (1945) 27
Cal.2d 209, 212; People v. Hinshaw (1924)
194 Cal. 1, 18; People v. McDaniel (2008)
159 Cal.App.4th 736, 748; People v.
Kinman (1955) 134 Cal.App.2d 419, 422.)
Division Four of the Court of Appeal for this appellate district has
held, “Great bodily injury is bodily injury which is significant or
substantial, not insignificant, trivial or moderate. (See People
v. Covino (1980) 100 Cal.App.3d 660, 668; CALJIC No. 9.02.)” (People
v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; accord, People v. McDaniel, supra, 159 Cal.App.4th at p. 748.) Whether the force used was likely to produce
great bodily injury is a question of fact for determination by the trier of
fact. (People v. Sargent (1999) 19 Cal.4th 1206, 1221; >People v. Armstrong, supra, 8
Cal.App.4th at p. 1066.)

With
respect to count 3, our Supreme Court has held, “[A] ‘deadly weapon’ [as used
in former section 245, subdivision (a)(1)] is, ‘any object, instrument, or
weapon which is used in such a manner as to be capable of producing and likely
to produce death or great bodily injury.’”
(People v. Aguilar, supra, 16
Cal.4th at pp. 1028-1029, quoting In re
Jose R. (1982) 137 Cal.App.3d 269, 275-276; accord, People v. Brown (2012) 210 Cal.App.4th 1, 6.) Hands and feet are not deadly weapons. (>People v. Aguilar, supra, 16 Cal.4th at
pp. 1037-1038; People v. Beasley (2003)
105 Cal.App.4th 1078, 1087.) Whether an
instrument is a “deadly weapon” is for the trier of fact to determine based on
the nature of the object and the manner in which it was used and any other
relevant matter. (In re David V. (2010) 48 Cal.4th 23, 30, fn. 5; >People v. Aguilar, supra, 16 Cal.4th at
p. 1029.)

There was
evidence the minor kicked and punched the victim. There was also testimony the minor hit the
victim with a hard metal object. The
juvenile court could reasonably find the minor committed successive aggravated
assaults against A.R. with two sets of destructive weapons. Count 1 involved hands and feet. Count 3 involved the use of the hard metal
object. The minor could properly be
found to have committed two counts of aggravated assault based on separate acts. (§ 954; cf. People v. Johnson (2007) 150 Cal.App.4th 1467, 1473-1474 [“[W]here
multiple applications of physical force result in separate injuries, the
perpetrator has completed multiple violations of section 273.5.”]; >People v. Healy (1993) 14 Cal.App.4th
1137, 1139-1140 [separate acts of physical abuse against a cohabitant (§ 273.5)
occurring over time may be charged separately]; 1 Witkin, Cal. Crim. Law (4th
ed. 2012) Crimes Against the Person, § 67, p. 858; see People v. Sloan, supra, 42 Cal.4th at p. 119 [“[Under section 954,]
a defendant may be convicted of more than one offense even if they arise out of
the same act or course of conduct.”]; People
v. Scott (1994) 9 Cal.4th 331, 344, fn. 6; People v. Shields (2011) 199 Cal.App.4th 323, 331, 334 [multiple
sexual photographs of minor taken on single occasion]; People v. Alvarez (2009) 178 Cal.App.4th 999, 1006-1007.)

The minor
relies on three cases: >People v. Oppenheimer (1909) 156 Cal.
733, 739-740; People v. Jefferson (1954)
123 Cal.App.2d 219, 220-221; and People
v. Mitchell (1940) 40 Cal.App.2d 204, 211.
In both Oppenheimer and >Jefferson, the defendant was charged
with and convicted of only one count of assault with a deadly weapon. But the evidence showed two weapons were
used. The issue was whether the prosecution
was required to elect which of the two weapons it relied upon for a
conviction. The courts held no election
was required. (People v. Oppenheimer, supra, 156 Cal. at pp. 739-740; >People v. Jefferson, supra, 123
Cal.App.2d at pp. 220-221.) In >Oppenheimer, our Supreme Court further
held a unanimity instruction would have applied if requested. (People
v. Oppenheimer, supra, 156 Cal. at pp. 739-741.)

In >People v. Mitchell, the defendant was
charged with and convicted of a single count of assault by means of force
likely to produce great bodily injury. (>People v. Mitchell, supra, 40 Cal.App.2d
at pp. 205, 208.) The evidence showed
the defendant first punched the victim in the forehead. Then the defendant hit the side of the
victim’s head with a beer bottle. (>Id. at pp. 206-207.) The defendant demurred to the information on
grounds it failed to specify the character of the force used. The Court of Appeal for the First Appellate
District held the information was legally sufficient. (Id. at
pp. 208-210.) The defendant further
argued from the information, evidence and verdict, it was impossible to tell
for which assault he had been found guilty.
Therefore, defendant in Mitchell
argued, “[I]n the event of a subsequent prosecution he would be deprived of his
right to plead once in jeopardy.” (>Id. at p. 210.) The court found no merit in that
contention. (Id. at pp. 210-211.) There
is no issue before us in the present case of:
an unanimity instruction; due process notice of charges to be defended
against; or double jeopardy. Further,
only one of the two counts, assault with a deadly weapon (count 3), is a
serious felony (§ 1192.7, subd. (c)(31)), which may be charged in subsequent
adult prosecutions. (§§ 667, subds.
(b)­ (i); or 1170.12.) Under these
circumstances, the trial court could properly sustain the allegations in counts
1 and 3 of the petition. (See >In re Jose H., supra, 77 Cal.App.4th at
pp. 1095-1096.)



IV. DISPOSITION



The
adjudication and disposition orders are affirmed.



NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS



O’NEILL,
J.href="#_ftn2" name="_ftnref2" title="">^*



We concur:



MOSK,
Acting P. J. KRIEGLER,
J.