In re Cristian B. CA5

California Court of Appeal Nov 15, 2013 No. F066784Unpublished

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Holding. The court held that the juvenile court erred by failing to apply Penal Code section 654 to aggregate terms for assault and elder abuse arising from a single indivisible course of conduct, requiring the subordinate term for elder abuse to be stricken.

Issues

Whether the juvenile court erred in its calculation of the maximum term of confinement by failing to apply Penal Code section 654 to multiple offenses arising from a single course of conduct.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“Section 654 generally prohibits the imposition of multiple punishments for offenses arising out of a single act or indivisible course of conduct.”

“the infliction of injury upon Marcos Cabrera is the only conceivable intent and objective behind the conduct upon which Counts 1 and 2 are based.”

“the one-year term under Count 2 must be stricken, thereby reducing the maximum period of confinement to seven years and four months”

Filed 11/15/13 In re Cristian B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CRISTIAN B., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, F066784

Plaintiff and Respondent, (Super. Ct. No. JJD066663)

v. OPINION CRISTIAN B.,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Jennifer Shirk, Judge. Kristen Owen, 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, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Gomes, Acting P.J., Detjen, J. and Peña, J.

-ooOoo-

Cristian B., a minor, appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed felony assault with a deadly weapon involving personal infliction of great bodily injury, felony elder abuse, and misdemeanor resisting arrest. Cristian contends the aggregate maximum term of confinement calculated by the juvenile court as part of its dispositional order violates Penal Code section 654.1 Respondent concedes error in this regard. We find the concession is appropriate and modify the order to reflect proper application of section 654. As modified, the order is affirmed. FACTUAL AND PROCEDURAL BACKGROUND On December 26, 2012, the Tulare County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging Cristian had committed assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); Count 1), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and committed physical elder abuse with infliction of great bodily injury against a 90-year-old victim (§ 368, subd. (b)(1) & (2); Count 2). Counts 1 and 2 arose from events which occurred on December 22, 2012. The petition included a third count which alleged that Cristian willfully resisted, delayed, or obstructed a peace officer during a separate incident on November 10, 2012 (§ 148, subd. (a)(1); Count 3). A jurisdictional hearing was held on January 18, 2013. Testimony was received from multiple witnesses including the victim identified in Counts 1 and 2 of the petition,

In re Cristian B. CA5

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THE PEOPLE, F066784

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