In re Marc P.








Filed 11/19/10 In re Marc P. CA2/1




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re MARC P., a Person Coming Under the Juvenile Court Law.	B220502 (Los Angeles County Super. Ct. No. MJ18524)
THE PEOPLE, Plaintiff and Respondent, v. MARC P., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robin Kesler, Juvenile Court Referee. Affirmed.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
_____________________
Marc P. appeals from the juvenile court order declaring him a ward of the court and ordering him home on probation, after the court found true allegations that Marc P. committed aggravated assault for the benefit of a criminal street gang, and street terrorism. Marc P. argues that the evidence was insufficient that he committed aggravated assault, that his maximum term of confinement was incorrectly calculated, and that the court failed to consider whether the aggravated assault should be a misdemeanor. We affirm.
BACKGROUND
A petition filed in Orange County Superior Court pursuant to Welfare and Institutions Code section 602 on May 14, 2009, alleged that Marc P. committed an aggravated assault, a felony (Pen. Code, § 245, subd. (a)(1))^[1] (count 1) and street terrorism (active participation in a criminal street gang), also a felony (§ 186.22, subd. (a)) (count 2). The petition also alleged that Marc P. committed the aggravated assault for the benefit of a criminal street gang (§ 186.22, subd. (b)).
After a contested hearing, the Orange County court found the allegations true. The court transferred the case to Los Angeles County Superior Court for disposition.^[2] At disposition, the Los Angeles court declared Marc P. a ward of the court and ordered him home on probation. Marc P. filed a timely notice of appeal.
The prosecution presented evidence at the hearing that on April 28, 2009, Juan A. was walking home from school in Tustin with three female students. Juan A. noticed a group of four males walking behind them. Juan A. knew three of the four, Marc P., Daniel M., and Joel N., from school. The fourth male was identified as Joel N.’s brother Christopher N.
Juan A. was turning a corner to go to his house, when Daniel M. hit the back of his head with a closed fist. The other males, including Marc P., also began hitting Juan A. with their fists. Juan A. fell to the ground and was kicked on his back, stomach and head. Juan A. saw Marc P. hit, kick, and stomp him. Juan A. heard the four males “claiming F-Troop,” which was a rival gang to Juan A.’s gang, “Lopers.” Juan A. saw a gun in the waistband of one of the attackers.
The attack lasted five minutes or more, until people working nearby ran over, and Marc P. and the other three males ran off. One of the assailants said “F-Troop gang” and that they were going to come back. Juan A. was left with a cut on the back of his head, bruises on his chest and back, and pain in his knuckles.
Juan A. had fought with Joel N. before over gang rivalry, and had been “mad-dogged” (given hard looks) at school by Joel N. and Daniel M.
Daniel M., one of the attackers, testified for the prosecution after having pleaded guilty and spent time in custody based on the assault. Daniel M. was from F-Troop at the time of the attack. Marc P., Joel N., and Daniel M. had planned the attack on Juan A., discussing it as “we’re going to jump a Lop.” Daniel M. believed that Marc P. “backs F-Troop,” which meant Marc P. hung around with F-Troop, and would have their back if an F-Troop member was in trouble or in a fight. He never heard Marc P. say “F-Troop” nor saw him with a weapon, and did not remember anyone saying “F-Troop” during the attack. Before the fight, he saw a knife in Joel N.’s possession.
Evelyn T., one of the female students walking with Juan A. on the day of the attack, testified that she saw Marc P. and the other three males beat Juan A. with closed fists, although she did not see them kick him. She did not see the whole fight. She saw Joel N. with a gun.
Detective Brian Stroud of the Tustin Police Gang Unit testified that F-Troop was a criminal street gang and that F-Troop was rivals with Lopers. Joel N., his brother Christopher N., and Daniel M. were all active members of F-Troop at the time of the attack. Given a hypothetical with facts similar to those in this case, Detective Stroud opined that the attack was committed for the benefit of, in association with, or at the direction of the F-Troop gang.
In Marc P.’s defense, a teacher who had Marc P. in her class for a few months and who also knew Juan A. testified that she had never seen Juan A. with injuries after the day of the attack, and that she not did know if Marc P. was a gang member. Diana A., a student at the time of the attack, testified that she had seen an earlier fight between Joel N. and Juan A., but she did not know Marc P. or recognize him from school, and she was not present at the attack. Amy R., a student, testified that she knew Marc P. from school and that she had seen a fight in April 2009 between Juan A. and some other guys.
DISCUSSION
I. Substantial evidence supported the finding of assault by means of force likely to produce great bodily injury
Section 245, subdivision (a)(1), penalizes “[a]ny person who commits an assault upon the person of another . . . by any means of force likely to produce great bodily injury . . . .” Marc P. argues that the evidence was insufficient to show that he used force likely to produce great bodily injury.
“The use of hands or fists alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury.” (People v. Wingo (1975) 14 Cal.3d 169, 176.) The testimony was that Marc P. used not only his hands or fists, but also his feet, in punching and kicking Juan A. Although Marc P. points out that Juan A. testified that he did not seek medical attention, the extent of Juan A.’s actual injuries is not determinative of whether the force used by Marc P. was likely to produce great bodily injury. “[B]ecause [section 245, subd. (a)(1)] focuses . . . on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) “‘The crime . . ., like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it. [Citation.]’” (People v. Duke (1985) 174 Cal.App.3d 296, 302.)
The evidence in this case was that Marc P. hit (with closed fists), kicked, and stomped Juan A., who had fallen to the ground, in an attack which lasted five minutes or more. Viewing this evidence in the light most favorable to the juvenile court order as we must (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1162), we conclude that substantial evidence supported the finding that Marc P. committed an assault likely to produce great bodily injury.
II. We need not consider whether the Orange County juvenile court correctly calculated the maximum term of confinement.
After Marc P.’s hearing in Orange County juvenile court and the finding that the allegations in the petition were true, Marc P.’s counsel informed the court that Marc P.’s father, who lived in Los Angeles County, now had custody of Marc P. The court transferred the case to Los Angeles County. The court accepted the prosecutor’s representation that the maximum term of confinement was 14 years, 8 months. The Orange County minute order reflected the true findings, stated the “court finds matter to be a felony with maximum term of confinement as 14 years, 8 months,” and because Marc P.’s and his father’s legal residence was in Los Angeles County, ordered all proceedings transferred to Los Angeles County for disposition. At the disposition hearing in Los Angeles, the court declared Marc P. a ward of the court under Welfare and Institutions Code section 602, and placed Marc P. on probation in the home of his father^[3] “under the following terms: court will not set a maximum confinement time today as he won’t be detained any further.” The Los Angeles juvenile court’s disposition order reflected the placement at home on probation, and did not specify a maximum period of confinement.
Marc P. argues that the Orange County court incorrectly calculated his maximum period of confinement. Although the court did not specify how it calculated the maximum term, Marc P. argues it improperly imposed a second five-year gang enhancement and improperly failed to stay his sentence on count 2 under section 654.
First, we note that the Orange County court transferred the case to Los Angeles County for disposition. Second, at disposition, the Los Angeles County juvenile court expressly declined to state a maximum term of confinement. Third, even if the maximum period of confinement which Marc P. challenges had appeared in Marc P.’s disposition in Los Angeles County, “[t]here is no need to decide the issue. . . . Only when a court orders a minor removed from the physical custody of his parent or guardian is the court required to specify the maximum term the minor can be held in physical confinement.” (In re Danny H. (2002) 104 Cal.App.4th 92, 106; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1744.) When a minor is committed to the custody of his parents, subject to the supervision of a probation officer, “the juvenile court was not required by . . . statute to include a maximum term of confinement in its dispositional order. [¶] In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents’ custody. [Citation.] If that happens, then at that time the juvenile court will have to comply with [statutes] in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case.” (In re Ali A. (2006) 139 Cal.App.4th 569, 573–574, fn. omitted.)
We therefore need not address the correctness of the Orange County court’s calculation of the maximum term of confinement. (See In re Danny H., supra, 104 Cal.App.4th at p. 106.)
III. The Orange County court’s pronouncement that the assault was a felony satisfied Welfare and Institutions Code section 702.
Marc P.’s final contention is that the Orange County juvenile court erred in not stating on the record whether it exercised its discretion under Welfare and Institutions Code section 702 to treat the assault as either a felony or a misdemeanor. Aggravated assault in violation of section 245, subdivision (a)(1) is a “wobbler” which may be treated either as a felony or misdemeanor. (§ 17, subd. (b); In re Grayden N. (1997) 55 Cal.App.4th 598, 600, fn. 1; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903.) Welfare and Institutions Code section 702 states: “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 California Rules of Court implementing the statute, rule 5.780(e)(5), provides that at the adjudication hearing, “[i]f any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony.” The determination of whether an offense is a felony or misdemeanor may be deferred until the disposition hearing (ibid.), in which case an identical requirement applies. (Cal. Rules of Court, rule 5.790(a)(1).)
When the trial court fails to make the mandatory express declaration of status for an offense that may be punishable alternatively as a misdemeanor or a felony, and imposes a felony level of physical confinement, the reviewing court is to search the entire record for any evidence the court understood that it had the discretion to impose a misdemeanor level period of confinement for the same offense, and actually exercised that discretion. (In re Manzy W. (1997) 14 Cal.4th 1199.) Requiring that the court make an express declaration “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702.” (Id. at p. 1207.) “[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.].” (Id. at p. 1208.)
In this case, the petition alleged that the assault (count 1) and the street terrorism (count 2) were both felonies. The Orange County minute order stated “Court finds matter to be a felony with maximum term of confinement as 14 years, 8 months.” The Orange County court stated at the adjudication hearing “the court would find on the two counts and the enhancement that the elements have been proved beyond a reasonable doubt. Count 1 would be a felony, and count 2 is a felony. And that would be the ruling of the court.”
The Orange County court’s statement in the minute order that it “finds matter to be a felony” (italics added) did not merely state that the offenses were felonies, but also indicated that it exercised its discretion in so concluding. This statement and the court’s further statement at the hearing that count 1 (the assault) was a felony (“[a]nd that would be the ruling of the court”, constitute the required express declaration of status for a “wobbler” offense under Welfare and Institutions Code section 702. Further, the court’s statements demonstrate that in addition to making a finding that the allegations were true, the court understood that it had the discretion to “consider which description applie[d]” (Cal. Rules of Court, rule 5.780 (e)(5)), and found that the assault was a felony rather than a misdemeanor.
Although neither party raises this issue, active participation in a criminal street gang (count 2) is also a wobbler punishable as either a misdemeanor or a felony. (§ 186.22, subd. (a); People v. Robles (2000) 23 Cal.4th 1106, 1112–1113.) On the same record as described above (in which the court stated that it found the “matter” to be a felony, and further stated that count 2 was a felony) we conclude that the court expressly declared that it had considered the felony/misdemeanor question and that it found Marc P.’s active participation in a criminal street gang to be a felony, and that the court understood that it had the discretion to treat the offense as a felony or a misdemeanor.
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

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