re W.R.
Filed
7/9/12 In re W.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 W. R., a
Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
W. R.,
Defendant and Appellant.
F062737
(Super. Ct. No. JW12466401)
APPEAL
from a judgment of the Superior Court of
Peggy
A. Headley, 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, Kathleen A. McKenna
and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On
July 4, 2010, appellant W.R., who was then 16 years old, killed Thaddeus Tanner
by hitting him in the back of the head with a small metal table. Although the killing occurred during a verbal
and physical altercation between two groups of people in front of Tanner’s
house, none of the numerous witnesses to the altercation saw Tanner hit anyone
during the altercation. Appellant
admitted to police that he hit Tanner in the back of the head with the table
but claimed Tanner hit him first.
Appellant stated that he was trying to protect himself and friends
involved in the altercation.
The
juvenile court sustained a Welfare and Institutions Code section 602 petition,
which alleged that appellant committed premeditated
murder (Pen. Code, § 187, subd. (a); count 1),
§ 192, subd. (a); count 2), and assault by means of force likely to
produce great bodily injury and/or with a deadly weapon (Pen. Code, § 245,
subd. (a)(1); count 3). The court found
true the allegations, attached to counts 1 and 2, that appellant personally
used a deadly or dangerous weapon in the commission of the offenses (Pen. Code,
§ 12022, subd. (b)). At the
disposition hearing, the juvenile court committed appellant to the California
Division of Juvenile Justice (DJJ) and set the maximum period of confinement at
life.
On
appeal, appellant contends: (1) the
juvenile court erred by failing to fix the degree of the offense in count 1;
(2) the true finding for count 2 must be reversed because count 2 is a lesser
included offense of count 1; (3) count 3 must be stayed or stricken pursuant to
Penal Code section 654; (4) the designation that count 3 is an offense listed
in Welfare and Institutions Code section 707, subdivision (b), must be
stricken; and (5) the restitution order must be amended. We conclude that the juvenile court
sufficiently described the offense in count 1 as that of second degree murder
to satisfy its degree-fixing obligation but, for purposes of clarification,
remand the matter to the court with directions to amend the commitment order to
specify the numerical degree of the offense.
Respondent concedes and we agree we must reverse the true finding for
count 2. In all other respects, we
affirm the juvenile court’s judgment.
The
parties on appeal are in agreement that the juvenile court’s statements at the
jurisdiction hearing indicate the court found appellant committed second degree
murder, not first degree murder as alleged in the Welfare and Institutions Code
section 602 petition. The court,
however, did not affirmatively declare the murder to be second degree murder by
numerical description. Consequently,
appellant contends the juvenile court erred under California Rules of Court,
rule 5.780(e)(5), by failing to fix the degree of the offense in count 1. He further contends “[t]he remedy for the
error is remand so the juvenile court may fix the degree of the Count 1
offense†and “includes the option of fixing the offense at manslaughter.†Respondent disagrees that such a leniency
option is available but otherwise “has no objection to having the juvenile
court amend the commitment order to reflect the offense to be second degree
murder.â€
We find no
error. Pursuant to California Rules of Court, rule
5.780(e)(5) the juvenile court must make findings on “the degree of the offense
and whether it would be a misdemeanor or felony had the offense been committed
by an adult.â€
name="_ftnref1" title="">[1]
“[T]he requirement of a finding as to the degree of the crime can be
satisfied by using a descriptive label as well as by a numerical degree.†(In re
Andrew I. (1991) 230 Cal.App.3d 572, 581 (Andrew I.).) “In juvenile
proceedings, the statutes and rule are met if, at the end of the jurisdiction
hearing, or during the disposition
hearing, the court makes a finding as to the degree of the crime either by
numerical designation or a sufficiently clear description of the offense. [Citation.]â€
(Andrew I., supra, 230 Cal.App.3d
at p. 581, footnote omitted.)
As the parties on appeal recognize,
the juvenile court’s findings at the end of the jurisdiction hearing
essentially described the crime of second degree murder.
Thus, the court stated, in part:
“I could not, in looking at all of the
evidence, find any basis for self-defense or defense of others. I think that it was clear to the Court, and I
find beyond a reasonable doubt, that at the time that the minor struck the victim,
first, that he caused the death of another person; I find that he
acted―that when he acted, he had a state of mind called malice
aforethought. That malice was implied
malice. He did not have the intent to
kill the victim, but he clearly did have the implied malice, and that is, one,
that he intentionally committed the act, the natural and probable consequences
of the act were dangerous to human life.
This table was―is clearly a deadly weapon. And the time he acted, he knew his act was
dangerous to human life. I find even at
his age at that time, and even the fact that he’d had some beer, that that was
clearly a known fact. And I find that he
deliberately acted with conscious disregard for human life. [¶] I
don’t find any basis for him striking this man in the back of the head at that
time, other than that he just at that point decided that that was going to be
his part in the fight. [¶] So I’m finding all of the elements of a
violation of Penal Code section 187 (a) … have been met and proved to my
satisfaction and beyond a reasonable doubt.
That is a felony conviction, and it is a serious felony .…â€
The
juvenile court’s specific findings that appellant acted with implied malice in
violating Penal Code section 187, subdivision (a), remove any doubt as to the
degree of the murder offense. “[S]econd degree murder with
implied malice has been committed ‘when a person does an act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.†(People
v. Nieto Benitez (1992) 4 Cal.4th 91, 104, citing People v. Watson (1981) 30 Cal.3d 290, 300.) We conclude that Andrew I., supra, 230
Cal.App.3d 572 was correctly decided and follow it here to find that the
juvenile court’s findings at the end of the jurisdiction hearing, while not
specifically designating the numerical degree of the offense, nonetheless
provided a sufficiently clear description of the offense of second degree
murder to satisfy the court’s obligation to make a finding on the degree of the
crime under California Rules of Court, rule 5.780(e)(5).
As mentioned
above, there is no dispute on appeal that the juvenile court found appellant
committed second degree murder. The only
dispute is as to the scope of the remand for the alleged violation of the
applicable court rules. Because we find
no violation occurred, remand is not strictly necessary. However, in light of the absence of any
objection by respondent and for purposes of enhancing clarity in the record, we
will remand with directions to the juvenile court to amend the commitment order
to specify the numerical degree of the offense in count 1 (i.e., second degree
murder).
Appellant
suggests that In re Dorothy B. (1986)
182 Cal.App.3d 509 (Dorothy B.) and
this court’s decision in In re Raymond M.
(1991) 228 Cal.App.3d 1508 (Raymond M.),
which relied on Dorothy B., are
controlling and necessitate a remand to give the juvenile court an opportunity
to exercise leniency by fixing count 1 at voluntary manslaughter. We need not resolve the parties’ dispute as
to whether Dorothy B. and
expressly disavowed the proposition earlier adopted in its prior decision in
discretion to reduce the degree of an offense when the evidence supports only
the higher degree. We find
In Dorothy B., the court
stated:
“[W]e believe [California Rules of
Court, rule 1355 (f)(5), a predecessor to rule 5.780(e)(5)] was designed to
have a salutary effect for the juvenile.
[The rule] permits a juvenile court to wait until it has received
dispositional information about the juvenile to determine, when necessary, the
degree of the offense or whether it would be a felony or a misdemeanor. Taking all the information into account, the
court can then exercise leniency by
declaring an offense to be of the lesser degree despite the fact the
circumstances of the offense alone
might justify sustaining the petition for a higher degree. In that way, the court, in most cases, can
circumscribe the maximum period of confinement.†(Dorothy
B., supra, 182 Cal.App.3d at pp.
520-521.)
As discussed
above, the record here indicates the juvenile court was aware of its obligation
to make findings as to the degree of the offense in count 1, and fulfilled that
obligation at the jurisdiction hearing by making findings that sufficiently
described the offense of second degree murder.
Furthermore, as respondent observes and appellant does not dispute, the
record of the disposition hearing reflects the juvenile court
leniency by choosing a lower term than the statutorily proscribed maximum
period of confinement but opted not to exercise that discretion in appellant’s
favor. The court also denied the
defense’s motion to reconsider its jurisdictional ruling, which motion asked
“the court to find either perfect self-defense or at the most, involuntary
manslaughter on the part of the minor.â€
On this record, we do not believe Dorothy
B. requires a remand with directions to the juvenile court that it has the
option of exercising leniency by declaring the offense in count 1 to be
something less than second degree murder.
The record here indicates the juvenile court was aware of all its
discretionary powers and, thus, this case does not implicate the concerns
raised in Dorothy B. and the few
decisions that follow it. (See e.g.,
58, 63 [“Where a judge has failed to make an express finding of degree, it is
possible the judge has overlooked his or her discretion on this issue.â€].)
Included Offense of Count 1
Appellant
contends the juvenile court erred in returning a true finding for count 2
because voluntary manslaughter is a lesser included offense of murder. Respondent concedes and we agree the juvenile
court erred in this regard. (
181 [voluntary manslaughter is a lesser included offense of murder];
518 [“multiple convictions may not be based on necessarily included offenses
arising out of a single act or course of conductâ€].) Therefore, we will reverse the true finding
on count 2.
654
Appellant contends count 3 (assault by means of force likely to
produce great bodily injury and/or with a deadly weapon) must be stayed or
stricken pursuant to Penal Code section 654, because counts 1 and 3 were based
on “appellant’s single act of striking the victim with the table.â€
Penal
Code section 654 states an act punishable in different ways by different
provisions of the Penal Code may be punished under only one such
provision. The section, however, applies
not only to a single act violating multiple provisions of the code but also to
an indivisible course of conduct violating several statutes. Whether a course of conduct is indivisible
for purposes of section 654 depends on the intent and objective of the
defendant. If all the criminal acts were
incident to one object, then punishment may be imposed only as to one of the
offenses committed. (
636-637; People v. Saffle (1992) 4
Cal.App.4th 434, 438.)
Penal Code
section 654 has a limited application in delinquency cases. Welfare and Institutions Code section 726,
subdivision (c), states that a minor removed from the custody of his or her
parents cannot be held in physical confinement for a period longer than the
maximum term of imprisonment that could be imposed on an adult convicted of the
same offenses. Since the calculation of
a term of imprisonment involves application of Penal Code section 654, that
section is necessarily applicable to the calculation of a ward’s maximum
allowable period of physical confinement.
However, since Welfare and Institutions Code section 726, subdivision
(c), is concerned with actual periods of confinement and not concepts of double
punishment, there is no necessity that a juvenile court employs the rubric of
staying the term of confinement for one of two offenses to which Penal Code
section 654 applies. It is merely
necessary that the term not be used to calculate the maximum period of physical
confinement. (In re Asean D. (1993) 14 Cal.App.4th 467, 474-475;
32, 34; In re Billy M. (1983) 139
Cal.App.3d 973, 978-979.)
As the parties
recognize, the record shows the juvenile court found Penal Code section 654
applied to count 3. Consequently, the
court did not include any time for count 3 when it calculated appellant’s
maximum term of confinement. The court’s
actions thus satisfied the requirements of Penal Code section 654 in the
delinquency context, and we find unpersuasive appellant’s arguments to the
contrary.
Institutions Code Section 707, subdivision (b)
Appellant contends the juvenile
court erred in designating count 3 as a violation coming within Welfare and
Institutions Code section 707, subdivision (b).
In
attachment 6 to the commitment order, the juvenile court designated counts 1
and 3, but not count 2, as violations coming within section 707, subdivision
(b). Thus, under the column titled “707(b),†the
words “Yes†appear with respect to counts 1 and 3, and the word “No†appears
with respect to count 2.
California
Rules of Court, rule 5.805 provides, in relevant part:
“If the court orders the youth
committed to the California Department of Corrections and Rehabilitation,
Division of Juvenile Justice (DJJ):
[¶] (1) The court must complete
Commitment to the California Department of Corrections and Rehabilitation,
Division of Juvenile Justice (form JV-732).
[¶] (2) The court must specify
whether the offense is one listed in section 707(b).†(Italics omitted.)
Section
707, subdivision (b), is a list of serious crimes. A determination by the juvenile court that
the violation resulting in a true finding on a section 602 petition is a crime
listed in section 707, subdivision (b), has several consequences. Among them are that the court’s jurisdiction
over the person is extended from age 21 to age 25 (§ 607, subd. (b)), and that
the true finding is a “strike.†(Pen.
Code, § 667, subd. (d)(3)(A)-(D).)
One of the violations
listed in section 707, subdivision (b), is “assault by any means of force
likely to produce great bodily injury.â€
(§ 707, subd. (b)(14).)
Subdivision (b)(14) has been interpreted to include both forms of
assault defined in Penal Code section 245, subdivision (a)(1), i.e., assault
with a deadly weapon or by any means likely to produce great bodily
injury. (In re Pedro C. (1989) 215 Cal.App.3d 174, 182.) In this case, count 3 alleged both forms of
assault under Penal Code section 245, subdivision (a)(1), the juvenile court
made a true finding on that count and designated it a section 707, subdivision
(b), violation in the commitment order.
Appellant does
not argue directly that the designation of count 3 as a crime listed in section
707, subdivision (b), was legally incorrect.
Rather, he claims the designation in this case “should be viewed as a
clerical error†and stricken from the commitment order. Appellant observes that, at the disposition
hearing, the juvenile court stated that two of the counts were listed under
section 707, subdivision (b) but did not specify which counts. The probation officer’s report was similarly
nonspecific. Appellant concludes that
the juvenile court must have been referring to counts 1 and 2, not count
3. This is so, appellant asserts,
because “[m]urder and voluntary manslaughter are plainly within section 707(b)â€
and “[b]y contrast, a section 245(a)(1) offense committed with a deadly weapon
that is not a firearm, is not listed under section 707(b) although section
707(b)(14) does list ‘assault by any means of force likely to produce great
bodily injury.’â€
The observations
offered by appellant do not establish clerical error. The juvenile court’s comments at the
jurisdiction hearing indicate the court believed (correctly) count 2 was
subsumed in count 1. Thus, the court’s
failure to designate count 2 as a section 707, subdivision (b) offense is not
inconsistent with the court’s view that count 2 was made “moot†by its true finding
on count 1.
title="">[4] For reasons discussed above,
the true finding on count 2 must be stricken because it is a lesser included
offense of count 1. This leaves counts 1
and 3, both of which were properly designated as section 707, subdivision (b)
offenses. We find no basis to conclude
that any error occurred when the court completed the commitment order as
required under California Rules of Court, rule 5.805.
We also reject appellant’s assertion that
California Rules of Court, rule 5.805’s requirement that the juvenile court
specify whether an offense is listed in section 707, subdivision (b), “does not
apply when, as here, the offense is not the basis for the juvenile’s [DJJ]
commitment and has no impact upon upon the juvenile’s maximum term of
confinement.†This claim is without
supporting authority and based on an inapt analogy to Penal Code section 654.
Appellant’s last contention on appeal (i.e., that the commitment
order must be amended to reflect a restitution amount of $25,843.48) appears to
be moot. The juvenile court has since
provided this court with notice showing it has made the amendment requested by
appellant and provided a copy of the amended commitment order to the DJJ.
The
true finding on count 2 is reversed. The
matter is remanded to the juvenile court to amend the commitment order to
specify the numerical degree of the offense in
count 1 (i.e., second degree murder) and to
strike the court’s true finding on count 2 (voluntary manslaughter). In all other respects, the judgment is
affirmed.
_____________________
Hill,
P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Poochigian, J.
name="_ftn1" title="">[1] Appellant
also cites California Rules of Court, rule 5.795(a), which provides: “Unless determined previously, the court [at
the disposition hearing] must find and note in the minutes the degree of the
offense committed by the youth, and whether it would be a felony or a
misdemeanor had it been committed by an adult.â€
name="_ftn2" title="">[2] Although
the prosecution’s main theory was that appellant committed premeditated murder,
the prosecution also presented the second-degree murder theory reflected in the
juvenile court’s findings. For example,
the prosecutor argued: “Now, if the
Court were, for some reason, to find that this is not first-degree murder, that
the crime was committed without deliberation of premeditation, it has to be
second-degree murder. It has to be. The facts support second-degree murder. And all I need to prove for second degree is
that the minor killed with malice, it either needs to be express or implied,
and that when he acted, he acted with conscious disregard for human life.â€
