People v. Giovani M.

Opinion

WEISMAN, J.* I. Introduction

In a petition filed on August 3, 1999, it was alleged that appellant Giovani M. was a minor who came within the provisions of Welfare and Institutions Code section 602 in that the minor was 17 years old on July 30,1999, and on that date committed four felony offenses. It was alleged he committed: (1) assault with a firearm, and that he personally used a firearm in the commission of the offense (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subds. (a) & (d); count 1); (2) unlawful discharge of a firearm with gross negligence (Pen. Code, § 246.3; count 2); (3) unlawful possession by a minor of a firearm capable of being concealed upon the person (Pen. Code, § 12101, subd. (a)(1); count 3); and (4) unlawful possession of a firearm while in violation of an express condition of probation prohibiting such activity (Pen. Code, § 12021, subd. (d); count 4).

Pursuant to an agreement that the minor would receive an aggregated commitment to the California Youth Authority for a maximum of five years and two months on the instant petition1 and all other previously sustained petitions, the minor waived his rights and admitted the truth of the allegations in counts 2 and 3. The juvenile court sustained the petition and found the minor was a person described in Welfare and Institutions Code section 602. In the interest of justice, the juvenile court dismissed the more serious allegation in count 1 and the enhancement and strike allegation accompanying that count, as well as the allegation in count 4.

[1064]At the disposition hearing, the juvenile court followed the agreement it reached with the minor, and the minor was committed to the Youth Authority for a maximum aggregated period of five years and two months. The juvenile court imposed three years for count 2 and eight months for count 3, and then aggregated a total of 18 additional months for five previously sustained petitions involving misdemeanors. Credit was awarded for 938 days previously spent in custody.

The minor appealed from the dispositional order committing him to the Youth Authority. He contends that the juvenile court erred when it sustained the petition on counts 2 and 3, because count 3 constituted a necessarily included offense of count 2. He therefore argues that the petition should only have been sustained as to count 2. He further contends that the juvenile court violated Penal Code section 654 when it imposed an additional eight months for count 3, because counts 2 and 3 constituted a single indivisible transaction. We reject the minor’s contentions and affirm the orders of the juvenile court.