Filed 12/13/13 In re D.C. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re D.C., a Person Coming Under the                                B244347
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. TJ19990)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

D.C.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Tamara E.
Hall, Judge. Reversed with directions.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for
Plaintiff and Respondent.
                                             ——————————
       A juvenile against whom a Welfare and Institutions Code section 602 petition was
sustained contends that the trial court: (1) erred when it made multiple true findings for a
single offense of aggravated assault, (2) erred in computing his maximum term of
confinement, and (3) committed reversible error by failing to declare whether the
“wobbler” assault offense was a felony or misdemeanor, and by failing to exercise its
discretion. We agree and remand with directions.
                             PROCEDURAL BACKGROUND
       On June 11, 2012, the district attorney filed a three-count petition, pursuant to
Welfare and Institutions Code section 602, alleging that appellant D.C. committed assault
with a deadly weapon upon Brea P. (Pen. Code, § 245,1 subd. (a)(1); count 1), assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and
misdemeanor battery upon Shondra Williams (§ 242; count 3). (No victim was identified
as to count 2.)
       The allegations of the petition were sustained following a contested adjudication
hearing. Appellant admitted allegations from two prior petitions.2 He was ordered
placed in short term camp for a maximum term of five years, eight months.
                                FACTUAL BACKGROUND
Prosecution evidence
       Appellant lived on the same street as 13-year-old Brea and her eight-year-old
brother Jashawn. On June 7, 2012, appellant hit Jashawn in the head with an acorn or a
pinecone after trying to take away his bicycle. Brea later confronted appellant. She was
angry, yelled at him and threatened to tell her parents.




       1   All statutory references are to the Penal Code unless otherwise indicated.
       2Two petitions filed on May 10, 2012, alleged that appellant committed a battery
on a school employee (§ 243.6), and a trespass on school grounds (§ 626.2), both
misdemeanors.

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       Brea told her mother, Shondra Williams, about the incident. The next day,
Williams encountered appellant as she headed up the street intending to speak to his
mother about the acorn incident. Williams was accompanied by Brea and Brea’s 23-
year-old (unnamed) sister. The three females stopped about five feet from appellant.
Williams asked appellant where his mother was and why he had hit Jashawn in the head.
Brea stated appellant hit her little brother. Appellant, who was holding a baseball bat,
became angry and threatened to hit Brea. He started spitting and moved toward Brea
wildly swinging the bat. Williams stepped between the two to keep appellant from
hitting Brea, and Brea’s sister tried to grab the bat from appellant’s hands.
       Appellant swung the bat “everywhere.” Brea stepped back and her sister and
mother tried to wrest the bat from appellant’s grasp. Williams tried to block appellant’s
blows, as he hit her near an eye and grabbed her hair, pulling her head from side to side.
Appellant tried to get around Williams to reach Brea. Eventually, Brea’s sister was able
to get the bat away from appellant. William suffered a swollen eye, bruising and a
hairline fracture. None of the females struck appellant. Moments later, Williams’s
husband arrived on the scene, grabbed appellant and slammed him against a wall then let
him go.
       An officer summoned to the scene spoke with appellant and recovered an
aluminum baseball bat.
Defense evidence
       Appellant and his brother De. testified. On June 8, 2012, appellant was 14 years
old, five feet two inches tall and weighed 90 pounds. He and his brother were headed to
the park to play baseball when Brea and her mother came up.
       De. testified that Brea, her sister and Williams yelled at appellant, asking why he
threw an acorn at Jashawn. At first they were about five feet away, but soon the women
got “in” appellant’s face, about a foot from him. Appellant told them the incident with
the pinecone had been an accident. Two of the females grabbed appellant, and a third
took the bat. Brea hit appellant about 20 times. At one point during the attack, she

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pinned him against a car with her mother’s help. Appellant responded in self-defense,
although De. never saw him hit Williams or swing the bat. De. tried unsuccessfully to
break up the fight.
       Appellant testified that when the three women confronted him, he explained that
he and a friend had been tossing a pinecone back and forth as Jashawn rode by on his
bicycle. Jashawn got hit with the pinecone thrown by the friend at appellant, who
ducked. The females closed in on appellant and were belligerent and raised their voices
at him. Brea and Williams grabbed appellant, while Brea’s older sister took the bat away.
Brea hit appellant and a scuffle ensued. In self-defense appellant grabbed Williams’s hair
and punched back. He knew he had hit someone but did not know who until he later saw
Williams’s eye. Appellant claimed to have been hit 20 to 25 times in the face during a
period of three to five minutes. He denied ever swinging the bat.
Rebuttal
       The officer who responded to the scene testified that appellant never told him he
was on his way to play baseball with his brother when the argument started, or that he
had been hit 20 to 25 times. The officer had not seen any injuries on appellant.
Appellant told the officer that Williams had separated him from Brea because Brea was
attacking him.
                                      DISCUSSION
1.     True findings for aggravated assault
       Appellant contends the court erred when it made two true findings of aggravated
assault because both counts 1 and 2 refer to a single act—his attempt to hit Brea—and
cannot be charged separately as both an assault with a deadly weapon and an assault by
means of force likely to cause great bodily injury.
       An assault is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) Assault is a general intent crime and
does not require specific intent to injure the victim. (People v. Wyatt (2010) 48 Cal.4th
776, 780; People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono).) “[T]he

                                              4
criminal intent required for assault is ‘the general intent to wilfully commit an act the
direct, natural and probable consequences of which if successfully completed would be
the injury to another.’ [Citation.]” (Wyatt, at p. 780.) “Although the defendant must
intentionally engage in conduct that will likely produce injurious consequences, the
prosecution need not prove a specific intent to inflict a particular harm.” (Colantuono, at
p. 214.)
       Respondent asserts that appellant’s argument there can be but one true finding of
aggravated assault, because counts 1 and 2 each refer to the same act—appellant’s
attempt to hit Brea—and cannot be charged as separate forms of aggravated assault is
misplaced as it rests on the flawed assumption that both counts involve the same victim,
which is not necessarily the case. Relying on People v. Griggs (1989) 216 Cal.App.3d
734 (Griggs), respondent argues a reasonable inference may be drawn from the record
that the unidentified, unnamed victim in count 2 is Brea’s sister.
       In Griggs, the defendant shot at a crowd of people who fled before police could
identify the victims. The defendant was charged and convicted of assault with a deadly
weapon on an unidentified victim. On appeal, the court rejected defendant’s argument
that the absence of a named victim was a denial of due process. (Griggs, supra, 216
Cal.App.3d at pp. 742–743.) The court held that an identifiable, named victim was not a
required element to prove an assault with a deadly weapon. But, the circumstances in
Griggs were unusual. As the court explained, “[t]his is not to say that the People need
not name a victim whenever they charge an assault with a deadly weapon. In those cases
where further specificity is reasonably possible, such should be provided.” (Id. at
p. 743.) The court said it would offend public policy to allow defendant’s act of shooting
into a crowd to go unpunished because of the fortuity that the crowd dispersed before the
victims who fled could be identified by diligent police officers, whose attention was
occupied at first with checking for injuries and apprehending the shooter. (Ibid.) The
court concluded: “There was no confusion here of what act defendant was tried and
convicted. If the prosecution’s evidence was believed, there were clearly victims of

                                              5
defendant’s actions, although not individually named,” and defendant was not taken by
surprise. (Ibid.)
       The circumstances here are different. On this record, if Brea’s sister was the
victim as to count 2, as respondent asserts, there appears to have been no reason she
could not easily have been identified and named in that count. Unlike Griggs, supra, 216
Cal.App.3d 734, this is not a circumstance in which unidentified victims fled after the
crime and could not be located by law enforcement. Although Brea’s adult sister—and
Williams’s daughter—was not identified by name at trial, it is reasonable to assume she
could be readily identified by a reasonably diligent investigation. Here, due process
requires naming of the victim of the offense.
       Appellant argues that what occurred here was a single assault on Brea committed
in two ways, viz., he swung a bat either as a deadly weapon or with force likely to cause
great bodily. Under People v. Aguilar (1997) 16 Cal.4th 1023, he may not be found
liable for both, and count 2 must be stricken. We agree.
       The theory upon which the case was tried was that appellant, angry at and
attempting to confront Brea, was flailing wildly with a bat, and that Williams stepped
between them protect her daughter and to get the bat away from appellant. Brea and
Williams each testified that they believed Brea was appellant’s intended target. Brea
believed appellant meant to hit her when he swung the bat and inadvertently hit her
mother. The misdemeanor battery was charged as count 3, and the named victim in that
count was Williams. The record reflects that appellant committed a single assault against
Brea. And, while it is possible that the victim in count 2 was Brea’s sister, who was also
presumably within striking distance as appellant swung the bat, the juvenile court made
no finding to that effect and it is not for us to speculate.
       Prior to its amendment in 2012, section 245, subdivision (a)(1) read: “assault
upon the person of another with a deadly weapon or instrument other than a firearm or by
any means of force likely to produce great bodily injury . . . .” In In re Mosely (1970) 1
Cal.3d 913, 919, footnote 5, the California Supreme Court held that the statute “defines

                                                6
only one offense.” The recent amendment to section 245, subdivision (a), separated the
clause referring to “a deadly weapon” from the clause referring to “force likely to
produce great bodily injury.” (See § 245, subd. (a)(1), (a)(4).) But, as analysis of the
amendment by the district attorney observed, the amendment did not make any
substantive changes in the law, did “not create any new felonies or expand the
punishment for any existing felonies. It merely split[] an ambiguous code section into
two distinct parts.” (Argument Before Sen. Public Safety Com. in Support of Assem. Bill
No. 1026, June 14, 2011; from Official Website of Legislative Counsel,
legislativecounsel.ca.gov.)
       Accordingly, the rule in In re Mosley, supra, 1 Cal.3d 913 and People v. Aguilar,
supra, 16 Cal.4th 1023, obtains here, and section 245, subdivisions (a)(1) and (a)(4)
define only one offense. “The offense of assault by means of force likely to produce
great bodily injury is not an offense separate from . . . the offense of assault with a deadly
weapon.” (Mosley, at p. 919, fn. 5.) “If prosecutors were permitted to divide [former]
section 245, subdivision (a)(1) into two separate offenses regardless of the defendant’s
conduct, . . . similarly situated defendants who assaulted their victims with deadly
weapons other than firearms and were charged with violating section 245, subdivision
(a)(1) could receive disparate punishment depending solely upon the language used in the
pleadings.” (People v. McGee (1993) 15 Cal.App.4th 107, 117.) Here, appellant
committed a single aggravated assault and the true finding as to count 2 must be stricken.
2.     New disposition
       Our determination that count 2 must be dismissed renders it unnecessary for us to
address appellant’s contention that the maximum term of confinement declared by the
juvenile court was improper. Remand for a new disposition order is required as to all
remaining counts.




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3.     Juvenile court’s failure to declare offense as felony or misdemeanor
       Appellant contends the juvenile court’s failure to expressly state on the record
whether the aggravated assault was a felony or a misdemeanor necessitates remand for
that purpose.3 We agree.
       Welfare and Institutions Code section 702 (section 702) provides that when a
juvenile defendant is found to have committed a “wobbler”—i.e., an offense that would
in the case of an adult be punishable alternatively as a felony or a misdemeanor—“the
court shall declare the offense to be a misdemeanor or felony.” (See also Cal. Rules of
Court, rule 5.795(a) [“[i]f any offense may be found to be either a felony or a
misdemeanor, the court must consider which description applies and expressly declare on
the record that it has made such consideration, and must state its determination as to
whether the offense is a misdemeanor or a felony”].) A primary purpose of section 702 is
to ensure that the juvenile court understands it has the discretion to treat the offense as a
misdemeanor and exercises that discretion. (Manzy W., supra, 14 Cal.4th at p. 1207.) To
that end, section 702 requires an express, formal finding. (Id. at p. 1204.) Aggravated
assault is a wobbler. (§§ 245, subds. (a)(1), (4); 17, subds. (a) & (b).) Thus, an “explicit
declaration by the juvenile court” is required. (Manzy W., at p. 1204.)
       Here, the juvenile court did not indicate that it was aware it had discretion to treat
the assault as a misdemeanor or a felony. The minute order for the July 2, 2012
adjudication hearing states that counts 1 and 2 are felonies. Restating the allegations of
the petition, the court found, as to count 1, “the crime of assault by a deadly weapon,
violation of [section 245, subd. (a)(1)], as a felony . . . as true.” As to count 2, the court
similarly found “the crime of assault by means likely to produce great bodily injury, in
violation of [section 245, subd. (a)(4)], as a felony, is true beyond a reasonable doubt.”

       3  Respondent contends appellant forfeited this argument by failing to raise it in the
juvenile court. Not so. (See In re Manzy W. (1997) 14 Cal.4th 1199, 1210 (Manzy W.)
[error is not forfeited by failure to object if the court fails entirely to record its exercise of
discretion under section 702].)

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The minute order from the August 30, 2012 disposition reflects that the juvenile court
read and considered the probation officer’s report. But, as with other parts of the record,
neither that minute order nor the contents of the report indicate the court was aware it had
discretion to treat the assaults as misdemeanors. And the line on the minute order in
which the court should have indicated which, if any, “[o]ffense(s) [were] declared to be a
□ felony (count[s] __ ) [and/or] □ misdemeanor (count[s] __)” was left blank.
       Reversal is not automatically compelled when a juvenile court fails to make the
required declaration. (Manzy W., supra, 14 Cal.4th at p. 1209.) The error may be found
harmless if it is absolutely clear that the juvenile court exercised its discretion and
intended to designate the offenses as felonies. (Ibid.) Respondent argues that the court’s
recitation at the adjudication of the language of the petition satisfies Manzy W.’s
requirement for an express declaration. We disagree. The court’s statement regarding
counts 1 and 2 tracks the language of the petition, and reflects its finding that appellant
committed the charged violations. But it gives no hint the court was aware of or intended
to exercise its discretion. A court’s statement that an offense was a felony does not itself
indicate the court’s awareness that it has discretion to treat the offense as a misdemeanor
nor an exercise of that discretion. (In re Jacob M. (1987) 195 Cal.App.3d 58, 63,
abrogated on other grounds by In re Andrew I. (1991) 230 Cal.App.3d 572, 581–582.)
On this record it is unclear whether the court understood it had discretion to characterize
the wobbler as a misdemeanor or exercised that discretion one way or the other. (See In
re Ricky H. (1981) 30 Cal.3d 176, 191; see also In re Kenneth H. (1983) 33 Cal.3d 616,
619–620.) Under these circumstances the matter must be remanded so the juvenile court
may exercise its discretion.




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                                   DISPOSITION
      The matter is remanded with directions to dismiss count 2, determine whether the
relevant offense is a misdemeanor or a felony and to recalculate the maximum term of
confinement and to reconsider placement.
      NOT TO BE PUBLISHED.


                                                JOHNSON, J.


We concur:


             MALLANO, P. J.


             ROTHSCHILD, J.




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