Filed 5/19/16 In re David CA2/2
Opinon following rehearing

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

In re DAVID M., a Person Coming Under                                B261610
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. JJ19806)


THE PEOPLE OF THE STATE OF
CALIFORNIA,

         Plaintiff and Respondent,

         v.

DAVID M.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Catherine J. Pratt, Commissioner. Affirmed in part and reversed in part.
         Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters,
Assistant Attorneys General, Steven D. Matthews and Analee J. Brodie, Deputy
Attorneys General, for Plaintiff and Respondent.
       David M. (minor) appeals from the judgment entered after the juvenile court
sustained a petition filed pursuant to Welfare and Institutions Code section 602 (section
602 petition) and adjudicated minor a ward of the court. He contends that the juvenile
court erred in sustaining duplicate assault allegations, and respondent agrees. We concur
and vacate the duplicate findings. In addition, we reverse the disposition and remand the
matter for the juvenile court to exercise its discretion under Welfare and Institutions Code
section 702, to expressly declare counts 2 and 4 to be either felonies or misdemeanors,
and to recalculate the maximum period of confinement. We otherwise affirm the
judgment, including the juvenile court’s determination that it had jurisdiction and the
order sustaining the allegations in counts 2, 4, and 6.
                                     BACKGROUND
       The section 602 petition alleged that minor committed the following felonies:
count 1, assault by means likely to produce great bodily injury upon Carlos G. in
violation of Penal Code section 245, subdivision (a)(4)1; count 2, assault with a deadly
weapon upon Carlos G. in violation of section 245, subdivision (a)(1); count 3, assault by
means likely to produce great bodily injury against Julio G. in violation of section 245,
subdivision (a)(4); count 4, assault with a deadly weapon against Julio G. in violation of
section Code, 245, subdivision (a)(1); and count 5, making criminal threats against Carlos
G. in violation of section 422, subdivision (a).2 In addition, the petition alleged in count
6 that minor gave false information to a police officer in violation of section 148.9,
subdivision (a), a misdemeanor.
       Evidence presented at the contested adjudication hearing showed that minor acted
as a lookout when an accomplice hit Carlos G. in the face with a metal baseball bat, and


1
       All further statutory references are to the Penal Code, unless otherwise indicated.
2
       The petition alleged pursuant to section 186.22, subdivision (b)(1)(C), that the
offenses alleged in counts 1 through 5 were committed for the benefit of, at the direction
of, and in association with a criminal street gang, with the specific intent to promote,
further and assist in criminal conduct by gang members. The juvenile court dismissed the
gang allegations.

                                              2
then hit Julio G. in the back with a wooden two-by-four. Later, when minor was first
detained, he gave the police a false name.
       On January 15, 2015, the juvenile court found true all counts except count 5. The
court ordered minor to Camp Community Placement for a term of five to seven months,
and set the maximum term of confinement at seven years ten months. Minor filed a
timely notice of appeal from the judgment.
                                       DISCUSSION
       Minor contends that the true findings of assault with force likely to cause great
bodily injury as alleged in counts 1 and 3 are duplicative of the true findings of assault
with a deadly weapon as alleged in counts 2 and 4, and that two of the duplicative counts
must be reversed. Respondent agrees.
       In general, section 954 permits multiple convictions for a single act, subject to one
judicially created exception which “‘prohibits multiple convictions based on necessarily
included offenses.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)
Section 954 applies to juvenile adjudications. (In re Jose H. (2000) 77 Cal.App.4th 1090,
1094-1095.) It provides: “An accusatory pleading may charge two or more different
offenses connected together in their commission, or different statements of the same
offense . . . . The prosecution is not required to elect between the different offenses or
counts set forth in the accusatory pleading, but the defendant may be convicted of any
number of the offenses charged . . . .” (§ 954.)
       However, “‘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.’ [Citation.]” (People v. McGee (1993) 15 Cal.App.4th 107, 110, 114; see also
In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) A defendant may not be convicted of more
than one count of the same crime prohibited by the same statute committed against a
single victim. (See People v. Craig (1941) 17 Cal.2d 453, 458; People v. Coyle (2009)
178 Cal.App.4th 209, 217-218; People v. Muhammad (2007) 157 Cal.App.4th 484, 494;
People v. Ryan (2006) 138 Cal.App.4th 360, 370-371.) It makes no difference that the
alternate ways of committing a single crime are described in two separate subdivisions of

                                              3
the statute. (See People v. Tenney (1958) 162 Cal.App.2d 458, 461 [“When a single act
relates to but one victim, and violates but one statute, it cannot be transformed into
multiple offenses by separately charging violations of different parts of the statute”].)
       Prior to its amendment in 2012, assault with a deadly weapon and assault by
means likely to produce great bodily injury were both described in section 245,
subdivision (a)(1), as two different ways of committing the prohibited assault. (See
People v. Martinez (2005) 125 Cal.App.4th 1035, 1043.) In 2012, Assembly Bill No.
1026 separated them into two subdivisions, section 245, subdivision (a)(1), and section
245, subdivision (a)(4); however, the amendment was intended to make only technical,
nonsubstantive changes. (Legis. Counsel’s Dig., Assem. Bill No. 1026 (2011-2012 Reg.
Sess.) Stats. 2011, ch. 183, § 1.) As reflected in the legislative history, the Legislature
did not intend to create two separate crimes: “‘AB 1026 will allow for a more efficient
assessment of a defendant’s prior criminal history and would lead to a more accurate and
earlier disposition of criminal cases. AB 1026 does not create any new felonies or
expand the punishment for any existing felonies. It merely splits an ambiguous code
section into two distinct parts.’” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.) June 14, 2011, p. 3.)3
Thus, just as before the amendment, section 245 describes assault with a deadly weapon
and assault by means likely to produce great bodily injury as one crime.
       Although minor and respondent agree that the duplicate assault findings are error,
the parties have disagreed on the remedy. Minor requests that all findings be reversed
and the matter remanded to the juvenile court for new findings. Respondent suggests that
this court vacate the duplicate assault findings and otherwise affirm the juvenile court’s
judgment, but does not suggest which subdivision should be vacated. Though the

3
       Assault with a deadly weapon is a serious felony for purposes of recidivist
sentence enhancements, while assault by means likely to produce great bodily injury is
not, unless the defendant personally inflicted great bodily injury. (§ 1192.7, subd.
(c)(1)(8) & (31).) As respondent notes, the 2012 amendment avoids the problem of
discerning from criminal records which acts were committed. (See, e.g., People v.
Delgado (2008) 43 Cal.4th 1059, 1065.)

                                              4
appellate court has the authority to vacate one of two duplicate convictions (see People v.
Ceja (2010) 49 Cal.4th 1, 5-8), the question becomes which one to vacate. If one of the
offenses were a lesser included offense of the other, it would be appropriate to affirm the
greater and vacate the lesser. (See People v. Pearson (1986) 42 Cal.3d 351, 355.)
However, neither assault with a deadly weapon nor assault by means likely to produce
great bodily injury is a lesser included offense of the other. (See In re Mosley, supra, 1
Cal.3d at p. 919, fn. 5.) We agree with the court in People v. Ryan, supra, 138
Cal.App.4th at page 371, which under similar circumstances held that the better practice
is to affirm the conviction that appears to “more completely cover[]” the defendant’s acts,
and vacate the less factually apt conviction. In this case, that would mean vacating
counts 1 and 3, assault by means likely to produce great bodily injury, as alleged pursuant
to section 245, subdivision (a)(4), and affirm counts 2 and 4, assault with a deadly
weapon, as alleged pursuant to section 245, subdivision (a)(1).
       However simply striking the two duplicate assaults does not resolve other
questions raised by our review. The juvenile court did not expressly declare the offenses
to be felonies or misdemeanors; nor did the court explain how the maximum period of
confinement was computed or whether it included aggregation of terms on the basis of
prior sustained section 602 petitions. (See Welf. & Inst. Code, §§ 702, 726.)4
       “If the minor is found to have committed an offense which 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.” (§ 702.) Although the juvenile court’s minutes
state that the court declared all offenses to be felonies, the court made no such oral
statement on the record; nor could it do so as to count 6, which alleged a violation of
Penal Code section 148.9, a misdemeanor with no provision making it punishable
alternatively as a felony. (See Welf. & Inst. Code, § 702.) On the other hand, a violation
of Penal Code section 245, subdivision (a), is a so-called “wobbler” offense, as it is


4
        In this part of our discussion, all further statutory references are to the Welfare and
Institutions Code unless indicated otherwise.

                                              5
punishable as either a felony or a misdemeanor, and thus subject to section 702. (In re
Brandon T. (2011) 191 Cal.App.4th 1491, 1495, fn. 4.)
       When required, the juvenile court must make the declaration expressly on the
record. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204; In re Ricky H. (1981) 30 Cal.3d
176, 191-192; Cal. Rules of Court, rules 5.790(a)(1), 5.780(e)(5).) “[N]either the
pleading, the minute order, nor the setting of a felony-level period of physical
confinement may substitute for a declaration by the juvenile court as to whether an
offense is a misdemeanor or felony. [Citation.]” (In re Manzy W., at p. 1208.) Remand
for the declaration is required unless “the record as a whole establishes that the juvenile
court was aware of its discretion to treat the offense as a misdemeanor and to state a
misdemeanor-length confinement limit.” (Id. at p. 1209.)
       In addition to the absence of an express declaration under section 702, the record
does not reveal the juvenile court’s formula for computing the maximum period of
confinement pursuant to section 726. Subdivision (d)(3) of that section provides in
relevant part: “If the court elects to aggregate the period of physical confinement on
multiple counts or multiple petitions, including previously sustained petitions adjudging
the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be the
aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the
Penal Code.” Thus, “computation of the maximum period of confinement involves
determining the upper term of imprisonment for the most serious offense . . . then adding
any consecutive time imposed for other counts. [Citation.]” (In re Manzy W., supra, at p.
1202, fn. 1.) The subordinate consecutive terms are computed as one-third the middle
term for offenses declared by the juvenile court to be felonies; and for offenses declared
to be misdemeanors with only one term specified, they are computed as one-third that
term. (In re Eric J. (1979) 25 Cal.3d 522, 536-537.)
       The parties were asked to provide further briefing regarding these issues, and both
have filed letter briefs which we have considered. Neither party has suggested that the




                                              6
record establishes the juvenile court’s awareness of its discretion under section 702.5
Nevertheless, minor suggests that the announced maximum period of confinement
indicates that the juvenile court considered the assaults to be felonies, and that the court
calculated the period by aggregating it with prior sustained petitions, pursuant to section
726. Minor speculates that the court calculated the maximum period of confinement by
beginning with a four-year term as to the count 1 assault, adding three one-year
consecutive terms for the remaining three assaults, and then adding an additional 10
months, consisting of the middle terms of three misdemeanors, as follows: the current
violation of Penal Code section 148.9 (two months); and sustained allegations in two
prior petitions, a violation of Penal Code sections 594, subdivision (a), and 148 (four
months each).
       Aggregation of the current offenses with prior offenses is within the juvenile
court’s discretion; “however, where the prior offenses are to be considered to aggregate
the maximum term to extend it beyond that which could be imposed for the new offense,
due process requires notice of the juvenile court’s intention [and] a meaningful
opportunity to rebut any derogatory material within its prior record. [Citations.]” (In re
Michael B. (1980) 28 Cal.3d 548, 553.) Such notice must include the possible amount of
additional time that might be added due to the prior offenses. (See In re Steven O. (1991)
229 Cal.App.3d 46, 56-57.) Here, there is no indication in this record that the juvenile
court exercised such discretion or that due process was satisfied. The only use the court
apparently made of the prior offenses was to support a finding that camp was a suitable
placement.
       Respondent contends that until the juvenile court exercises its discretion to declare
the two assaults misdemeanors or felonies, the maximum period of confinement cannot
be accurately calculated. We agree. The declaration required by section 702 is key to
that computation. (In re Manzy W., supra, 14 Cal.4th at p. 1208.) As the record does not

5
       Both parties agree that Penal Code section 654 is inapplicable here, and neither
party suggests that it figured in the juvenile court’s computation of the maximum period
of confinement.

                                              7
establish that the juvenile court was aware of its discretion to treat the assaults as
misdemeanors, remand is required for an express declaration and recalculation of the
maximum period of confinement. (Id. at p. 1209; see also In re Samuel C. (1977) 74
Cal.App.3d 351, 360 [where trial court’s intent is not necessarily reflected in the
maximum term of confinement, remand is appropriate].)
                                       DISPOSITION
       That part of the judgment determining that the court had jurisdiction and
sustaining allegations in counts 2, 4, and 6 is affirmed. The orders sustaining the
allegations of counts 1 and 3, assault by means likely to produce great bodily injury, are
vacated, and that part of the judgment ordering the disposition is reversed. The cause is
remanded with directions for the trial court to exercise its discretion in compliance with
Welfare and Institutions Code sections 702 and 726, to declare on the record whether
counts 2 and 4 are felonies or misdemeanors, to fix the maximum period of physical
confinement in accordance with this opinion, and to enter a new dispositional order.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                   ____________________________, J.
                                                   CHAVEZ

We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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