IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

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1 Filed 8/28/09 In re S.D. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re S. D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, v. S. D., Plaintiff and Respondent, Defendant and Appellant. A (Solano County Super. Ct. No. J34942) S. D. appeals from an order continuing him a ward of the court based on findings that he committed battery on school property (Pen. Code, , subd. (a)) (count 2), simple battery ( 242) (count 3), petty theft ( 484, subd. (a)) (count 4), second degree robbery ( 211) (count 5), burglary ( 459) (count 6), second degree auto burglary ( 459) (count 7), vandalism ( 594, subd. (b)(1)) (count 9), misdemeanor vandalism ( 594, subd. (b)(2)(a)) (count 11), misdemeanor interception of a police communication ( 636.5) (count 12), and receiving stolen property ( 496, subd. (a)) (count 13). At the disposition hearing, the court continued the minor a ward of the court and committed him to the Fouts Youth Facility for a maximum confinement time of 10 years and 8 months. The minor contends that: (1) The court erred in sustaining the allegations of both simple 1 Unless otherwise indicated, all further statutory references are to the Penal Code. 1

2 battery and battery on school grounds because a defendant cannot be found to have committed both the greater and the lesser included offense; (2) section 654 precludes punishment for both the robbery and burglary offenses; (3) the receiving stolen property finding must be dismissed because he cannot be found to have stolen and received the same property under section 496; (4) the evidence was insufficient to support the finding of wrongful interception of police communications ( 636.5); and the court improperly calculated the maximum term of confinement. The Attorney General concedes that the findings on simple battery and receiving stolen property must be dismissed, and that the matter must be remanded for recalculation of the maximum term of confinement. We agree with the Attorney General and also conclude that section 654 precludes punishment on the robbery. I. FACTUAL BACKGROUND The evidence presented at the jurisdictional hearing showed the following: A. Counts 2 and 3 On March 5, 2008, at approximately 12:30 p.m., the minor ran up to another student at Maine Prairie Continuation School in Dixon and pushed and slammed him into the wall. B. Count 4 At about 6:20 a.m. on March 8, 2008, the minor entered the 7-Eleven store at 1075 North First Street in Dixon, walked behind the counter, grabbed six to seven packs of cigarettes and fled. Sohen Atwel, the store manager, had seen the minor in the store on prior occasions, and identified him as the perpetrator to police later that day and also in court. C. Counts 5, 6, and 13 On May 25, 2008, at approximately 5:30 a.m., Michael Gunn was asleep at home when he was awakened by his dogs barking in the kitchen. When he went to investigate, he found that the front door of his house was open. He saw A. R. standing on the sidewalk in front of the door. Gunn went to get dressed before he confronted A. R. Gunn then went outside, saw A. R. about 25 to 50 feet away and said, Hey, come here. 2

3 What did you need? Gunn then saw the minor coming from the side of his house. Gunn went back to his house to tell his wife. He returned outside, heard A. R. say, [w]e re robbing you, and then the minor ran up to him and hit him in the face. Gunn returned to his house and called 911. Gunn discovered that an Apple laptop notebook, a Toshiba laptop, and a Mag flashlight were missing from his house. He subsequently found the laptops across the street in the bushes. The police found the flashlight in the neighbor s front garden. Later that day, Gunn identified both the minor and A. R. at a police show-up. Gunn later discovered that the side door to his house had been forced open. The minor admitted to police that he and A. R. decided to stop at Gunn s house for shits and giggles. He admitted that they took the laptops and hid them in the bushes. D. Count 11 At approximately 5:45 a.m. on May 25, 2008, Shanna Gong was awakened by a loud crash against the sliding glass door of her bedroom in Dixon. A few seconds later she heard another crash in the yard and got up to investigate. She saw a man with a shaved head wearing a red sweatshirt and jeans. She later noticed that two boards in her fence had been knocked out. E. Counts 7 and 9 Also on May 25, Guirong Wang parked and locked her car, an Acura, near the Safeway in Dixon. When she returned to the car between 10:00 and 11:00 a.m., the car had sustained over $1,000 in damage including damage to the left door, the windshield, and the right side of the car. Witnesses testified that they saw the minor smash the car window. F. Count 12 Officer Loren Ellefson responded to the burglary at the Gunn residence. In searching the area for the items stolen from Gunn, a man approached Ellefson and told him he had found a police scanner in the yard of 1230 Watson Ranch Way, about three houses away from the Gunn residence and across the street from where the laptops were found. Ellefson turned on the scanner and heard the police frequency being broadcast. 3

4 The minor later told another officer that [w]e had the scanner, but we still got caught. II. DISCUSSION A. Simple Battery The minor contends that the court should not have sustained count 3, the simple battery allegation, because the offense was a lesser included offense of battery on a school ground. The Attorney General concedes the error. Simple battery is a necessarily included offense of battery on school grounds. (See People v. Lewis (2008) 43 Cal.4th 415, 518.) [M]ultiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct. (Ibid.) We, therefore, reverse the finding on count 3. B. Section 654 The minor next contends that section 654 bars punishment for both the robbery and burglary of the Gunn residence. We conclude that section 654 requires a stay of the term attributable to the robbery. Section 654 proscribes multiple punishments where several crimes are committed during an indivisible course of conduct with a single criminal objective. 2 The divisibility of a course of conduct depends on the intent and objective of the defendant. [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) If the evidence discloses that the offenses are incident to one objective, the defendant may 2 Section 654 provides in pertinent part: (a) 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.... 4

5 be punished for any one of them but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 18-20; People v. Latimer (1993) 5 Cal.4th 1203, ) The question of whether a defendant entertained multiple criminal objectives is a factual one for the trial court which has broad latitude in making its determination. The court s express or implied findings on the issue must be upheld on appeal if they are supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) The minor relies on People v. Perry (2007) 154 Cal.App.4th 1521, 1526 (Perry), in which the court determined that section 654 precludes multiple punishment on facts similar to those here. There, the victim returned to his car to find the defendant inside it. The defendant jumped out of the car holding the victim s car stereo in one hand and a screwdriver or ice pick in the other. The defendant ran, but the victim chased him and managed to tackle the defendant. (Perry, at p ) The court held that the defendant s objective in committing both the burglary and robbery was the theft of the car stereo. The court determined that the robbery was committed when the victim confronted the defendant at the car and the defendant adopted a fighting stance while holding the screwdriver/pick. (Id. at p ) Although the robbery entailed a different type of action, i.e., the implied threat to use the screwdriver or ice pick, the underlying objective was necessarily identical: to steal [the victim s] car stereo. (Ibid.) As the court explained, if property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property. Admittedly, an additional objective of preventing the victim or another person from taking back the property generally will exist, but may be incidental to, rather than independent of, the objective of stealing the property. (Id. at pp ) The Perry court further distinguished cases involving burglary and assault where the courts have found multiple punishments permissible, concluding that the offenses reflect independent objectives. Assault reflects an intent to perform an act that, by its 5

6 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 taken during a burglary reflects, in essence, an intent to apply, attempt to apply, or threaten to apply force to a person, rather [than simply] an intent to steal property. (Perry, supra, 154 Cal.App.4th at p. 1526; see also People v. Nelson (1989) 211 Cal.App.3d 634, [section 654 did not preclude punishment for both burglary and assault where it was reasonable to infer that assault on victim of residential burglary was separate and apart from theft].) Here, as in Perry, the evidence shows that the minor s only objective in committing the burglary and robbery was theft. Indeed, this was the People s theory below. In closing argument, the prosecutor argued, [w]ith regards to a robbery, basically, the property has to be taken from the person or [his or her] immediate presence. The People s argument is basically the minor and his coresponsible have not reached a place of safety yet. The robbery was still occurring as well as the burglary [when the minor punched Gunn], and the items were taken not from the person but in his immediate presence. There is no evidence to support the theory the Attorney General advances here that the minor intended to commit a sex or assaultive crime as well as theft. Consequently, section 654 requires a stay of the term on the robbery count. C. Receiving Stolen Property The minor further contends that the true finding on receiving stolen property must be reversed because convictions for both receiving stolen property and theft of the same property are prohibited by section 496. This contention has merit. Section 496, which defines the offense of receiving stolen property, provides that (a)... [ ]... no person may be convicted both pursuant to this section and of the theft of the same property. Here, the receiving stolen property count was charged as an alternative to the burglary and robbery allegations pertaining to the Gunn residence, and as the Attorney General concedes, the minor cannot be found to have stolen and 6

7 possessed the same property. Accordingly, we reverse the finding on the receiving stolen property count. (People v. Smith (2007) 40 Cal.4th 483, ) D. Interception of Police Communication The minor also argues that the evidence is insufficient to support that he intercepted a police communication in violation of section because there was no evidence that the communication at issue was authorized by the Federal Communications Commission (FCC) as required by the statute. Section provides that [a]ny person not authorized by the sender, who intercepts any public safety radio service communication, by use of a scanner or any other means, for the purpose of using that communication to assist in the commission of a criminal offense or to avoid or escape arrest, trial, conviction, or punishment... is guilty of a misdemeanor. [ ]... [ ] As used in this section, public safety radio service communication means a communication authorized by the Federal Communications Commission to be transmitted by a station in the public safety radio service. We agree with the Attorney General that the People were not required to prove that the public safety radio service communication was authorized by the FCC as an element of the crime. The primary duty of a court when interpreting statutes is to give effect to the clear language of the law, in order to achieve the intent of the Legislature, and effectuate the purpose of the law. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1413, quoting People v. Kennedy (2001) 91 Cal.App.4th 288, 293.) We construe the words of the statute, giving them a plain and commonsense meaning. (Gonzalez, supra, 116 Cal.App.4th at pp ) If the words of a statute are clear and unambiguous, we presume the Legislature meant what it said. (Id. at p ) Here, there is nothing in the language of section requiring that the People prove the public safety radio service communication was authorized by the FCC as an element of the offense. Rather, the statute simply defines the term public safety radio service communication. The juvenile court presumably was aware that a police dispatch over Dixon s police frequency is an FCC authorized communication. (See People v. 7

8 Brown (1988) 46 Cal.3d 432, [whether a Garden Grove police officer is a peace officer within the meaning of section 190.2, subdivision (a)(7) is not an element of the offense but a question of law].) We must presume that the juvenile court knew the law concerning public safety radio service communications and correctly applied it. (Evid. Code, 664.) E. Remand for Recalculation of Maximum Term of Confinement Finally, the minor asserts that his case must be remanded for a recalculation of the maximum term of confinement because the court erred in calculating the subordinate terms. The Attorney General concedes the error. Under [Welfare and Institutions Code] section 726, if the juvenile court chooses to sentence consecutively on multiple counts or multiple petitions, the maximum term must be specified in accordance with the formula set forth in subdivision (a) of Penal Code section , i.e., the sum of the principal term (the longest term imposed for any of the offenses) and subordinate terms (one-third of the middle term imposed for each other offense). (In re Eric J. (1979) 25 Cal.3d 522, 536, fn. omitted.) When aggregating multiple counts and previously sustained petitions, the maximum confinement term is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. (In re David H. (2003) 106 Cal.App.4th 1131, ) Here, although the record is silent on how the court calculated the maximum term of confinement, its ultimate calculation of 10 years and 8 months was in error because it exceeded the term mandated by Welfare and Institutions Code section 726, subdivision (c). 3 As the minor points out in his opening brief, the court s disposition, assuming affirmance on all counts, should have been nine years and six months. Since the simple battery (count 3) finding must be reversed, and the term on the robbery count (count 5) stayed, the calculation would be further reduced by the two-month subordinate 3 The court appears to have adopted the recommendation of the probation department. The department, however, did not set forth how it arrived at its calculation in its report. 8

9 term for the battery and the one-year subordinate term for second degree robbery. ( 243, subd. (a), 213, subd. (a)(1)(b)(2), , subd. (a).) In addition, however, it is unclear whether the court intended to aggregate subordinate terms for two offenses from a previously sustained petition. In light of the foregoing, we remand the matter to the juvenile court for a recalculation of the maximum term of confinement in accordance with Welfare and Institutions Code section 726, subdivision (c). III. DISPOSITION We reverse the court s order sustaining counts 3 and 13. The matter is remanded to the juvenile court for a recalculation of the maximum term of confinement and the court is directed to enter a stay on the term attributable to count 5. In all other respects, the order is affirmed. RIVERA, J. We concur: RUVOLO, P.J. REARDON, J. 9