In re Daniel H. CA4/1 ( 2021 )

Filed 2/4/21 In re Daniel H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re DANIEL H., a Person Coming
Under the Juvenile Court Law.
D076825
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J241912)
v.
DANIEL H.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti and Ana Espana, Judges. Affirmed as modified.
Bruce L. Kotler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.
Pulos, Kathryn A. Kirschbaum, and Joseph C. Anagnos, Deputy Attorneys
General, for Plaintiff and Respondent.
The juvenile court adjudged Daniel H. a ward of the court based on true
findings on one count of attempting a criminal threat (Pen. Code, §§ 422, 664;
further statutory references are to the Penal Code), one count of threatening
a school official (§ 71), three counts of assault with a deadly weapon (§ 245,
subd. (a)(1)), one count of assault with force likely to produce great bodily
injury (§ 245, subd. (a)(4)), and two counts of robbery (§ 211). The court found
that the assault and robbery offenses were committed for the benefit of, at
the direction of, or in association with a criminal street gang. (§ 186.22,
subd. (b)(1).) The court also found that Daniel personally used a deadly or
dangerous weapon in connection with the robbery offenses. (§ 12022,
subd. (b)(1).) As to one count of assault with a deadly weapon, the court
found that Daniel personally inflicted great bodily injury on the victim.
(§ 12022.7, subd. (a).) As to the count of assault with force likely to produce
great bodily injury, the court found that Daniel personally used a deadly or
dangerous weapon and that he personally inflicted great bodily injury.
Daniel appeals. He contends (1) the evidence was insufficient to
support the finding that he committed robbery, (2) the court could not find
that he committed both assault with a deadly weapon and assault with force
likely to produce great bodily injury based on the same incident, and (3) the
court could not impose the enhancement for personal use of a deadly or
dangerous weapon on the count of assault with force likely to produce great
bodily injury. The Attorney General concedes the last contention, and we
agree the enhancement must be stricken. Daniel’s remaining contentions are
unpersuasive. We therefore modify the judgment to remove the enhancement
and reduce Daniel’s maximum term of confinement by one year. The
judgment, as modified, is affirmed.
2
FACTS
This matter arises from four separate incidents, only two of which are
relevant to Daniel’s contentions on appeal. The two relevant incidents are
discussed below. For purposes of this section, we state the facts in the light
most favorable to the judgment. (See In re Raymundo M. (2020)
52 Cal.App.5th 78, 82, fn. 2.)
On April 17, 2019, a teenaged lifeguard took a break from his shift at a
waterpark to get a meal at a nearby restaurant. While the lifeguard was
waiting for his food, Daniel approached him with several other minors and
made a gang sign. Daniel said he was in a gang and asked the lifeguard if he
was as well. The lifeguard said he was not, and Daniel responded, “ ‘Okay,
we’re cool.’ ” Daniel shook the lifeguard’s hand, which the lifeguard thought
was “odd,” and the lifeguard ate his meal.
Later, after the lifeguard’s shift was over, he walked to his car with a
coworker. It was around 10:30 p.m. They saw Daniel and his friends, and
the lifeguard told his coworker to hurry because he did not want to interact
with them again. The lifeguard and his coworker were unsuccessful. Daniel
and another minor ran up and stopped them. Daniel made a gang sign and
yelled that he was in a gang. The lifeguard said he just wanted to go home,
but Daniel and his friend said they were going to “attack” them. Daniel
pulled his hand out of his waistband and acted as if he had a gun. He made
his hand into the shape of a pistol, pointed it at the coworker’s head, and
said, “ ‘Bang.’ ” Daniel said he had “no problem” killing them. He pulled out
a knife and stabbed at the coworker’s stomach and neck. The coworker
jumped backward; he would have been hit if he had not moved. Daniel then
swung the knife toward the lifeguard. He would have been hit, too, if he had
3
not moved away. The coworker sought reassurance, but Daniel said, “ ‘I have
no problem killing you.’ ”
Daniel’s demeanor changed, and he asked if they wanted to “go bang up
some places” together. The lifeguard and his coworker declined. Daniel’s
friend circled behind them, which made them uncomfortable. The friend
asked for $20, which the lifeguard refused. But then Daniel asked for two
dollars for bus fare, and the lifeguard and his coworker agreed “because we
weren’t about to chance getting stabbed for two dollars.” They “feared for
[their] lives.” The coworker later testified, “I felt like I had to give him the
money.” The lifeguard and his coworker each handed over two dollars and
then “bolted towards [the coworker’s] truck,” where they waited until Daniel
and his friend left.
Two days later, a student was walking with friends to a public transit
center. He saw Daniel and another minor making gang signs. The student
started running away but he tripped. Daniel and the other minor attacked
him. Daniel had a knife and stabbed the student several times. Daniel and
his friend ran away when the student activated a Taser he was carrying. The
student suffered stab wounds on his arms and back. He spent two days in
the hospital.
DISCUSSION
I
Sufficiency of the Evidence for Robbery
Daniel first contends the evidence does not support the court’s finding
that he committed robbery against the lifeguard and his coworker. “Our
review of [Daniel’s] substantial evidence claim is governed by the same
standard applicable to adult criminal cases. [Citation.] ‘In reviewing the
sufficiency of the evidence, we must determine “whether, after viewing the
4
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.”
[Citation.] Under the substantial evidence rule, we must presume in support
of the judgment the existence of every fact that the trier of fact could
reasonably have deduced from the evidence. [Citation.] Thus, if the
circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant reversal of the judgment.’ ” (In re
V.V. (2011) 51 Cal.4th 1020, 1026.)
“Robbery is the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) “Robbery is larceny with
the aggravating circumstances that ‘the property is taken from the person or
presence of another . . .’ and ‘is accomplished by the use of force or by putting
the victim in fear of injury.’ ” (People v. Anderson (2011) 51 Cal.4th 989, 994.)
“[T]o support a conviction of larceny the defendant must have intended to
steal the property at the time he took it; if the intent arose after the act of
taking, the crime may be embezzlement or a lesser offense but it cannot be
larceny. [Citations.] The same rule must therefore apply to robbery: ‘Since
robbery is but larceny aggravated by the use of force or fear to accomplish the
taking of property from the person or presence of the possessor [citation], the
felonious intent requisite to robbery is the same intent common to those
offenses that, like larceny, are grouped in the Penal Code designation of
“theft.” ’ (Fn. omitted.) [Citation.] We conclude that like the nonviolent
taking in larceny, the act of force or intimidation by which the taking is
accomplished in robbery must be motivated by the intent to steal in order to
5
satisfy the requirement of section 20: if the larcenous purpose does not arise
until after the force has been used against the victim, there is no ‘joint
operation of act and intent’ necessary to constitute robbery.” (People v. Green
(1980) 27 Cal.3d 1, 54, fn. omitted; see § 20 [“In every crime or public offense
there must exist a union, or joint operation of act and intent, or criminal
negligence.”].)
Daniel contends that the union of act and intent necessary to support
the court’s robbery findings is absent. He argues that his acts of intimidation
were unaccompanied by any intent to steal and “there was nothing about the
manner of the request for money from [Daniel] or his companion that evinced
a threat of any kind.” Daniel is incorrect. Based on Daniel’s prior threats
and intimidation, the court could reasonably find that he took money from
the victims by force or fear. His “request” was not a request at all, but a
demand backed by the implied threat of violence. The victims testified that
they understood Daniel’s “request” as a threat, and they complied out of fear
for their lives.
As one court explained, “ ‘The element of fear for purposes of robbery is
satisfied when there is sufficient fear to cause the victim to comply with the
unlawful demand for his property.’ [Citations.] It is not necessary that there
be direct proof of fear; fear may be inferred from the circumstances in which
the property is taken.” (People v. Morehead (2011) 191 Cal.App.4th 765, 774-
775.) “The requisite fear need not be the result of an express threat or the
use of a weapon. [Citations.] Resistance by the victim is not a required
element of robbery [citation], and the victim’s fear need not be extreme to
constitute robbery [citation]. All that is necessary is that the record show
‘ “ ‘conduct, words, or circumstances reasonably calculated to produce
fear . . . .’ ” ’ [Citation.] [¶] Intimidation of the victim equates with fear.
6
[Citation.] An unlawful demand can convey an implied threat of harm for
failure to comply, thus supporting an inference of the requisite fear.” (Id. at
p. 775.)
On reply, Daniel argues, “Neither [victim] characterized the request for
money as a demand or order. Thus, while [the victims] may have been acting
under fear, there was insufficient evidence that [Daniel’s] acts of force and
intimidation were motivated by an intent to steal.” Daniel’s focus is
misplaced. The court could reasonably find that Daniel’s “request” was a
demand for money. Rather than being exculpatory, the fact that Daniel’s
friend initially asked for $20 supports the inference that their goal was to
obtain money from the victims. Because that was Daniel’s intent, and it was
accomplished by force or fear, the evidence supports the court’s finding that
he committed robbery. “Contrary to [Daniel’s] arguments, the failure of the
evidence to conclusively rule out various scenarios under which [he] might
not be guilty of robbery does not render the evidence insufficient to support
the robbery verdict.” (People v. Bolden (2002) 29 Cal.4th 515, 553.)
II
Multiple Assault Findings
Daniel next contends the court could not have made true findings of
both assault with a deadly weapon (§ 245, subd. (a)(1)) and assault with force
likely to cause great bodily injury (§ 245, subd. (a)(4)) based on the transit
center attack. He argues that the two subdivisions are different statements
of the same offense or, alternatively, that assault with force likely to cause
great bodily injury is a lesser included offense of assault with a deadly
weapon. These issues are currently under review by our Supreme Court.
(See People v. Aguayo (2019) 31 Cal.App.5th 758, review granted May 1,
2019, S254554.) Despite their importance, we need not address them here.
7
We conclude that even if the two subdivisions are different statements of the
same offense, or one is a lesser included offense of the other, Daniel was
properly subject to both because they were based on different acts of assault.
“In general, a person may be convicted of, although not punished for,
more than one crime arising out of the same act or course of conduct. ‘In
California, a single act or course of conduct by a defendant can lead to
convictions “of any number of the offenses charged.” ’ ” (People v. Reed (2006)
38 Cal.4th 1224, 1226.) “However, a ‘judicially created exception to this rule
prohibits multiple convictions based on necessarily included offenses.’ ”
(People v. Sanders (2012) 55 Cal.4th 731, 736.) This exception has been
extended to prohibit multiple convictions based on different statements of the
same offense. (People v. Vidana (2016) 1 Cal.5th 632, 651 (Vidana).)
These principles presuppose that the multiple convictions are based on
the same act or course of conduct. Where, as here, the convictions (or true
findings) are based on different acts, “a separate conviction is permissible for
each completed charged offense, even if the defendant had the same intent
and objective in committing multiple crimes and even if the defendant
committed the crimes at or near the same time.” (People v. Kopp (2019)
38 Cal.App.5th 47, 62 (Kopp), review granted Nov. 13, 2019, S257844.)
For example, in Kopp, this court affirmed multiple assault convictions,
based on the same attack, where the evidence showed “separate acts”
underlying each count of assault. (Kopp, supra, 38 Cal.App.5th at p. 63,
review granted.) One count was “based on the use of a knife,” and another
was “based on punches and kicks to the head.” (Ibid.) This court concluded,
“The fact that these separate acts occurred during the same altercation does
not bar the jury from convicting [the defendant] under both counts.” (Ibid.,
fn. omitted.)
8
Daniel attempts to distinguish Kopp because it involved a multifaceted
attack, with both knives and bare hands and feet, whereas the attack here
involved the repeated stabbing with the same knife. This distinction is not
persuasive. Kopp held that multiple acts within the same attack could
constitute multiple assaults, since an assault requires only a single act for its
completion. (Kopp, supra, 38 Cal.App.5th at p. 63, review granted; see § 240.)
The same logic applies here. Daniel committed multiple acts of assault
during the attack and could properly be held to account for each. (See People
v. Campbell (2017) 12 Cal.App.5th 666, 673 [“Multiple convictions for
violating a statute are appropriate . . . where the actus reus prohibited by the
statute (the gravamen of the offense) is committed more than once.”].) The
fact that Daniel committed “identical” acts “in short succession against a
single victim” does not bar multiple true findings of assault. (See People v.
Harrison (1989) 48 Cal.3d 321, 334 (Harrison).) Cases involving multiple
convictions for a single act are inapplicable. (See People v. Cota (2020)
44 Cal.App.5th 720, 729-730, review granted April 22, 2020, S261120 [single
act of hitting the victim with a chair]; People v. Brunton (2018)
23 Cal.App.5th 1097, 1101, 1107 (Brunton) [single act of choking the victim
with a twisted towel]; see also In re Jonathan R. (2016) 3 Cal.App.5th 963,
967 [single act of stabbing].)
Daniel suggests that his stabbings should be seen as a single course of
conduct. He analogizes the attack to a series of thefts or embezzlement. (See
Vidana, supra, 1 Cal.5th at pp. 635, 650.) But theft-based offenses have
historically been treated differently, and courts have refused to extend this
logic to non-theft offenses. (See, e.g., People v. Washington (1996)
50 Cal.App.4th 568, 578-579.) Moreover, the fact that the stabbings occurred
in the same manner, during the same attack, and against a single victim is
9
not dispositive. (See Kopp, supra, 38 Cal.App.5th at p. 63, review granted;
People v. Johnson (2007) 150 Cal.App.4th 1467, 1477; see also Harrison,
supra, 48 Cal.3d at p. 334.)
Finally, we note that although the court made true findings on both
counts of assault, it did not punish Daniel for both. Like the court in Kopp, it
found that section 654 applied. (See Kopp, supra, 38 Cal.App.5th at p. 63,
fn. 11, review granted.)
III
Personal Weapons Use Enhancement
As to both assault findings arising from the transit center stabbing,
Daniel contends the court erred by imposing enhancements for personal use
of a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) Daniel is incorrect
that the enhancement was applied to both assault findings. The record
shows that it was imposed only for the finding of assault with force likely to
cause great bodily injury. (§ 245, subd. (a)(4).) As to this finding, the
Attorney General agrees that the enhancement should not have been
imposed. We agree. (See Brunton, supra, 23 Cal.App.5th at p. 1107.) We
therefore modify the judgment accordingly.
DISPOSITION
The judgment is modified to strike the personal weapons use
enhancement imposed on count 10 (assault with force likely to cause great
bodily injury) and to reflect that the maximum term of confinement is
26 years 8 months. As so modified, the judgment is affirmed. On remand,
10
the trial court shall prepare an amended adjudication minute order reflecting
these modifications.
GUERRERO, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
11