In re L.H.



















Filed 4/2/13 In re L.H. CA4/2















NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

In re L.H., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. L.H., Defendant and Appellant.	E056239 (Super.Ct.No. RIJ1101023) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Roger A. Luebs,
Judge. Affirmed in part; reversed in
part.

Michelle
C. Zehner, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura
A. Glennon, Deputy Attorneys General, for Plaintiff and Respondent.





I

INTRODUCTION

On
January 24, 2012, a subsequent petition was filed by the Los Angeles County
District Attorney alleging that minor and appellant L.H. committed an assault
upon a peace officer under Penal Codehref="#_ftn1" name="_ftnref1" title="">^[1] section 245, subdivision (c), (count 1), and href="http://www.fearnotlaw.com/">second degree commercial burglary under
section 459 (count 2).href="#_ftn2"
name="_ftnref2" title="">^[2] On February 15,
2012,
the district attorney amended the petition to additionally allege that minor
had committed an assault with a deadly weapon under section 245, subdivision
(a)(1), (count 3). An adjudication
hearing was held on the same day.
Thereafter, the district attorney moved to dismiss count 2, and the
juvenile court made true findings as to counts 1 and 3. On February 15,
2012,
the case was transferred from Los Angeles County to Riverside County.

On
March 9, 2012, at the dispositional
hearing, the juvenile court (1) continued minor as a ward; (2) granted
minor probation; (3) committed minor to juvenile hall for not less than 55 days
and not more than 110 days; and (4) ordered minor to attend anger management
courses, to enroll in substance abuse counseling, and to pay restitution.

On May 7, 2012, minor filed a notice
of appeal. On appeal, minor contends
that the true finding as to count 3, assault with a deadly weapon, must be
vacated because it is a lesser included offense of count 1, assault with a
deadly weapon on a peace officer. The
People concede. For the reasons set
forth post, we agree with both minor
and the People and shall reverse the true finding as to count 3.

II

FACTUAL AND PROCEDURAL
BACKGROUND

On January 21, 2012, around 2:00 p.m., Los Angeles Police
Officers Archuleta and Vergara were conducting an undercover operation of
Lincoln Park Market because of recent complaints that alcohol was being sold to
intoxicated people. Both officers were
in undercover clothing. Neither of their
outfits had “L.A.P.D.” written on it.
The officers were also in an unmarked vehicle. Officer Archuleta, however, did have his
L.A.P.D. badge, which is “about 6 inches by 4 inches silver gold.”

Around
2:10 p.m., Officer Archuleta observed minor run out of the
market with a 32-ounce bottle of beer.
The owner of the store also ran after minor. Minor began running northbound. At this time, the officers began to pursue
minor. Minor was jogging very slowly,
and at one point, the officers identified themselves through the windshield of
their car, by showing their badges and saying, “‘Stop. Los Angeles Police Department. Stop running.’” Minor refused to stop, but looked back at the
officers several times.

Minor
eventually stopped in front of the vehicle, turned around, put his hands up in
a combative manner, and stated, “‘What?’”
As the officers continued to identify themselves, minor began running
toward their car. Officer Archuleta was
seated in the driver’s seat with the window down. As minor approached the officer, he threw the
full 32-ounce beer bottle at Officer Archuleta’s face. The bottle made contact with the officer’s
hand, hit the side of the car door, and then shattered. The glass from the bottle shattered all over
Officer Archuleta, causing a laceration to his hand, which required stitches. The officer first “picked off as much glass
as [he] could,” and then followed minor in his vehicle as minor ran in the
other direction.

The
officers were eventually able to catch up with minor and detain him.

III

ANALYSIS

Minor
contends that an assault with a deadly
weapon is a lesser included offense of assault with a deadly weapon against
a police officer; therefore, the juvenile court erred in entering true findings
for both charges, and that the lesser included offense should be vacated. The People agree.

In
this case, at the jurisdictional hearing, the People moved to amend the
petition to add count 3, assault with a deadly weapon. The prosecutor stated, “Before we proceed, I
wouldn’t say it’s necessarily lesser. I
would ask to add a count 3. It would be
assault with a deadly weapon, violation Penal Code section 245, subdivision
(a), subsection (1), felony. Same date
as count 1. Same named victim as count
1. And seems from the same facts.”

Minor
counsel responded, “I believe, your honor, it is, in fact, a lesser included
offense of count 1. I believe that . . .
the 245(c) encompasses 245 (a)(1) with an additional element. I believe it’s a lesser included.”

The
juvenile court then found that counts 1 and 3 were true. The court stated: “The People have proven beyond a reasonable
doubt both counts 1 and 3. So, I am
finding they are true. It’s only count 2
that is not true.” The matter was
thereafter transferred to Riverside County for disposition.

In
California, it has long been held that multiple convictions may not be based on
necessarily included offenses. (>People v. Pearson (1986) 42 Cal.3d 351,
355.) This is a judicially created
exception to section 954, which expressly allows a defendant to be convicted of
“‘any number of the offenses charged.’”
(People v. Ramirez (2009) 45
Cal.4th 980, 984; see also People v.
Ortega (1998) 19 Cal.4th 686, 692.)
When multiple convictions are based on necessarily included offenses,
the conviction for the greater offense is controlling, and the conviction for
the lesser offense must be reversed. (>People v. Pearson, at p. 355, citing People v.
Moran (1970) 1 Cal.3d 755, 763.)

There are two tests for
determining whether an offense is necessarily included in another: the “‘elements’ test” and the “‘accusatory
pleading’ test.” (People v. Ramirez, supra, 45 Cal.4th at pp. 984-985.) Both tests are used in determining whether a
defendant received adequate notice of the charges against him and may therefore
be convicted of an uncharged crime, but only the elements test is used in
determining whether a defendant may be convicted of multiple >charged crimes. (People
v. Reed (2006) 38 Cal.4th 1224, 1229-1230; see also People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166 [observing
that “only a statutorily lesser included offense is subject to the bar against
multiple convictions in the same proceeding. . . .”], 168-171
[explaining the origins of and reasons underlying the judicially created bar
against multiple convictions based on necessarily included offenses].)

Under the elements test, we
look strictly to the statutory elements of the offenses, not to the facts of
the case. (People v. Ramirez, supra, 45 Cal.4th at p. 985.) We ask whether “‘“all the legal ingredients
of the corpus delicti of the lesser offense [are] included in the elements of
the greater offense.” [Citation.]’” (People
v. Lopez (1998) 19 Cal.4th 282, 288.)
In other words, “if a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the
former.” (Ibid.; see also People v.
Montoya (2004) 33 Cal.4th 1031, 1034.)

In
this case, minor was found to have committed assault on a peace officer (§ 245,
subd. (c)), and assault with a deadly weapon (§ 245, subd. (a)(1)). Minor and the People agree that assault with
a deadly weapon is a lesser included offense of assault with a deadly weapon on
a peace officer. For the reasons set
forth post, we agree.

Section
245, subdivision (c), assault on a peace officer, states: “Any person who commits an assault with a
deadly weapon or instrument, other than a firearm, or by any means likely to
produce great bodily injury upon the person of a peace officer or firefighter,
and who knows or reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, when the peace
officer or firefighter is engaged in the performance of his or her duties shall
be punished by imprisonment in the state
prison for three, four, or five years.”

CALCRIM
No. 860 states the elements of this offense as follows:

“(1)
The defendant did an act with a deadly weapon that by its nature would directly
and probably result in the application of force to a person; [¶] (2) The
defendant did that act willfully; [¶] (3) When the defendant acted, he was
aware of facts that would lead a reasonable person to realize that his act by
its nature would directly and probably result in the application of force to
someone; [¶] (4) When the defendant acted, he had the present ability to apply
force with a deadly weapon to a person; [¶] (5) When the defendant acted, the
person assaulted was lawfully performing his duties as a peace officer; and [¶]
(6) When the defendant acted, he knew, or reasonably should have known, that
the person assaulted was a peace officer who was performing his duties.”

Penal
Code section 245, subdivision (a)(1), assault with a deadly weapon
provides: “Any person who commits an
assault upon the person of another with a deadly weapon or instrument other
than a firearm 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.”

CALCRIM
875 states the elements of this offense as follows:

“(1)
The defendant did an act with a deadly weapon that by its nature would directly
and probably result in the application of force to a person; [¶] (2) The
defendant did that act willfully; [¶] (3) When the defendant acted, he was
aware of facts that would lead a reasonable person to realize that his act by
its nature would directly and probably result in the application of force to
someone; and [¶] (4) When the defendant acted, he had the present ability to
apply force with a deadly weapon to a person.”

Elements
one through four of both offenses are identical. While the People, at the time of amendment to
the petition, contended count 3 was not a lesser included offense of count 1,
it conceded that the additional count was for the same date, victim, and
facts. Moreover, the evidence did not
present an alternate set of facts to establish that count 3 was based on a
separate act than the act alleged in count 1.
Therefore, the completed offense of assault with a deadly weapon on a
peace officer necessarily includes an assault with a deadly weapon. Consequently, minor’s conviction of assault
with a deadly weapon, as alleged in count 3, must be reversed.href="#_ftn3" name="_ftnref3" title="">^[3]

IV

DISPOSITION

The
true finding on count 3, assault with a deadly weapon under section 245,
subdivision (a)(1), is reversed. In all
other respects, the judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:





RAMIREZ

P. J.





KING

J.