In re L.J.
- Reporters:
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We agree with the minor that the punishment on the reckless evasion of police count must be stayed under
BACKGROUND
In August 2020, Antioch police officers responded to a call about a prowler in a residential neighborhood. The officers tried to stop a Pontiac sedan they found in the neighborhood that the caller had identified, but the Pontiac did not stop. Several police officers in different vehicles then pursued the Pontiac.
The Pontiac accelerated towards the officers at 10 to 15 miles per hour. The Pontiac struck the driver‘s door on the first vehicle as the officer opened it, slamming the door on the officer‘s ankle and trapping his foot, and causing a small scrape or dent on the bottom of the door.3 The Pontiac then hit the front bumper on the passenger‘s side of the second vehicle, causing no noticeable damage. The Pontiac veered to the left of the third vehicle to try to avoid hitting it head on, but still sideswiped and scratched the third vehicle on the driver‘s side.
The officers resumed the pursuit of the Pontiac in their three patrol vehicles. After an extended chase by police vehicles and pursuit by a California Highway Patrol helicopter, law enforcement officers eventually apprehended the three occupants
The People filed a petition alleging the minor came within the court‘s jurisdiction under
DISCUSSION
I. Section 654
” ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of
A. Separate intents and objectives
The minor raises two arguments under
The reckless evasion count is based on the same course of conduct as the assaults, as the assaults occurred during the extended flight from the police. The evidence does not support a finding that the minor‘s assaults on the officers were based on different intents and objectives than the minor‘s overall purpose of trying to evade the police officers. The low speed of the Pontiac (10 to 15 miles per hour), together with the fact that the minor evidently slalomed between the three police vehicles and struck them largely on the sides of the Pontiac and not head-on, indicates the minor was trying to get past the police vehicles rather than targeting them. The officer in the third vehicle admitted that at one point the Pontiac was approaching him dead-on, but the Pontiac veered to the side to avoid striking the third police vehicle. The lack of significant damage—a small scrape or dent on one car, no damage to the second, and a scratch
The Attorney General stresses that the road was wide enough to allow the Pontiac to pass the vehicles without striking them. This does not demonstrate that the intent or objective of the assaults was different from the objective of evading the police. The road was only three car-widths wide, and the police vehicles were on the right side and in the middle of it. The minor‘s failure to avoid contact with the police vehicles in such tight quarters indicates only the minor‘s attempt to elude the police at 10 to 15 miles per hour, not a deliberate targeting of the vehicles. The contact along the sides of the Pontiac and the police vehicles was so slight that it is unreasonable to think the minor had a separate intent to assault the officers.
The facts of this case may be contrasted with People v. Jimenez (2019) 32 Cal.App.5th 409, on which the Attorney General relies. There, a defendant fleeing from one law enforcement vehicle during a chase turned a corner and began driving towards a second law enforcement vehicle coming in the opposite direction. (Id. at pp. 413–414.) The defendant drove on the wrong side of the road in an attempt to intimidate the oncoming vehicle. (Id. at pp. 414, 425.) The Court of Appeal found substantial evidence supported the trial court‘s implied
Here, the minor took no action as dangerous as driving into oncoming traffic, and, in fact, attempted to avoid striking the third vehicle by veering away from it. The time from when the Pontiac reached the end of the road and the officer got out of the first vehicle to when the Pontiac took off was very brief. The contact between the Pontiac and the police vehicles was incidental to the overall purpose of escaping the dead-end street.
Because the charge of reckless evasion of a police officer in violation of
B. Multiple Victims and Section 654
The minor next argues that
“The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.) The juvenile court found the minor committed assault against three different police officers. The minor could therefore have been punished separately for each victim of his assaults without violating
The prosecutor charged the minor with only two counts of assault on the same three officers in each count, but that does not change the application of the multiple-victim exception, as People v. Garcia, supra, 32 Cal.App.4th 1756 demonstrates. There, the defendant was convicted of shooting at an occupied motor vehicle and assaulting the four victims inside. (Id. at pp. 1762–1763.) The trial court imposed a sentence on the defendant for the count of shooting at an occupied motor vehicle and for the assault on one of the occupants, staying the charges for the other three assault counts. (Id. at pp. 1764–1765.) The Court of Appeal rejected the defendant‘s argument that this sentence violated
We recognize that in People v. Centers (1999) 73 Cal.App.4th 84, 101–102, which the minor cites, the court
The minor‘s theory that complete overlap of victims bars multiple punishments would lead to absurd results. It would mean a defendant who committed two crimes against the same two victims would be punished less severely than a defendant who committed two crimes against one victim and one crime against a second victim. It would also allow a prosecutor to selectively increase the punishment for a defendant simply by choosing not to charge or prove the defendant‘s guilt on a crime as to one of the victims, to avoid a complete overlap of victims. Thus, the prosecutor in this case could have avoided the reach of
”
A. Lesser included offense
For the minor‘s first argument, one offense is necessarily included within another “if the statutory elements of the greater offense include all of the statutory elements of the lesser offense.” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Construing substantially similar language in a former version of the statute, In re Mosely (1970) 1 Cal.3d 913, 919, fn. 5, stated that force-likely assault is not a lesser included offense of deadly weapon assault. More recently, People v. Aguayo (2019) 31 Cal.App.5th 758, 766, review granted May 1, 2019, S25454 (Aguayo),4 reached the same conclusion under the current version of the statute. Both decisions contradict the minor‘s argument.
Aguayo relied in large part on People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar). (Aguayo, supra, 31 Cal.App.5th at pp. 765–767.) Construing an earlier version of the statute (see Aguayo, at p. 765, fn. 5), Aguilar held that “except in those cases involving an inherently dangerous weapon,” a jury‘s decision when considering force-likely and deadly weapon assault is “functionally identical regardless of whether, in the particular case, the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force
Aguayo concluded from Aguilar that “although every force-likely assault must be committed in a way that is likely to produce great bodily injury (either with or without a deadly weapon), there is a subset of assaults with deadly weapons—those committed with inherently deadly weapons—that are not necessarily likely to produce great bodily injury.” (Aguayo, supra, 31 Cal.App.5th at p. 766.) In other words, because one element of force-likely assault is that the force used be likely to produce great bodily injury, while not every use of a deadly weapon is necessarily likely to produce such injury, force-likely assault is not a lesser included offense of deadly weapon assault. (See ibid.)
The minor distinguishes Aguayo on its facts, noting that the defendant‘s convictions there were based on hitting the victim with multiple different objects. (Aguayo, supra, 31 Cal.App.5th at p. 768.) We consider the facts of the minor‘s offense only to decide if the minor has established the threshold condition for application of
The minor urges us to follow In re Jonathan R. (2016) 3 Cal.App.5th 963, 970, 973–974, which held that force-likely assault is not a statement of the same offense as deadly weapon assault but is a lesser included offense of it. Jonathan R. focused on Aguilar‘s statement that “there is a ‘fundamental identity of the concepts of assault with a deadly weapon and assault by means of force likely to produce great bodily injury.’ ([Aguilar,] at p. 1036.)” (Jonathan R., at p. 973.) In a footnote, Jonathan R. declared the same was true of assault with an inherently deadly weapon, because such weapons ” ‘are “dangerous or deadly” to others in the ordinary use for which they are designed’ ” so that “[u]se of these weapons necessarily involves the use of force likely to produce death or serious injury.” (Jonathan R., at p. 973, fn. 5.)
Like Aguayo, we decline to follow Jonathan R. (Aguayo, supra, 31 Cal.App.5th at p. 767.) Jonathan R. relies on Aguilar‘s reasoning about the similarity between force-likely and deadly weapon assaults while ignoring Aguilar‘s explicit exception that prevented the two concepts from collapsing into one and making one concept surplusage. As Aguayo pointed out, Aguilar
B. Statement of the same offense
The minor‘s second argument under
These cases demonstrate that unlike the test for whether one offense is included within another (which depends on the elements of the offenses), the test for whether two provisions are statements of the same offense depends ultimately on legislative structure and intent. Thus, in Vidana, supra, 2 Cal.5th at pages 648–649, the court concluded that larceny and embezzlement were statements of the same offense, even though they have different elements and neither is included within the other,
Applying the Supreme Court‘s framework to force-likely and deadly weapon assault demonstrates the point. We have already concluded that force-likely and deadly weapon assault have different elements, so that force-likely assault is not a lesser included offense of deadly weapon assault. The only way for force-likely assault to be a statement of the same offense as deadly weapon assault would be if there were some indication in section 245‘s structure, historical context, or legislative history that the Legislature intended this result. Section 245‘s history and context may in fact demonstrate this intent, as described in People v. Cota (2020) 44 Cal.App.5th 720, 724–729, review granted April 22, 2020, S261120, briefing deferred pursuant to rule 8.512(d)(2), Cal. Rules of Court, pending disposition of People v. Aguayo, S254554. But even if Cota were correct on this score (which we need not and do not decide), force-likely and deadly weapon assault would be statements of the same offense despite having different elements, not because they have the same elements. Since the elements of these two types of assault are analytically irrelevant to the question of whether they are statements of the same offense, there is no reason to treat force-likely assault as included within assault with a deadly weapon on
III. Designation as felonies or misdemeanors
The minor argues, the Attorney General concedes, and we agree that an adult‘s conviction for reckless evasion of a police officer in violation of
IV. Probation condition
The minor challenges the juvenile court‘s imposition of a probation condition requiring the minor to “report any police contact related to criminal activity and any arrests to the Deputy Probation Officer within 24 hours.” The minor argues this condition is unconstitutionally vague and overbroad.
“The juvenile court has wide discretion to select appropriate conditions and may impose ’ “any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person‘s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Id. at p. 890.)
The minor‘s vagueness and overbreadth arguments rely primarily on In re I.M. (2020) 53 Cal.App.5th 929. There, a juvenile court imposed a probation condition requiring a minor to ” ‘to report any police contacts’ to the deputy probation officer within 24 hours.” (Id. at p. 931.) The Court of Appeal held this condition was vague and overbroad because it ” ‘does indeed leave one to guess what sorts of events and interactions qualify as reportable,’ ” and ” ‘casts an excessively broad net over what would otherwise be activity not worthy of reporting.’ ” (Id. at p. 936.) The Court of Appeal rejected a suggested modification of the condition to require the minor to report ” ‘any police contacts related to criminal activity, arrests, or an officer‘s request for the minor‘s identification.’ ” (Ibid.) The court explained, “[T]his proposed modification remains vague as it does not indicate whether appellant is required to report police contacts concerning criminal activities and arrests based solely on her own conduct or whether it also includes criminal activities and arrests of other persons which appellant may witness.” (Ibid.)
The minor asserts the condition the juvenile court imposed here is identical to that in In re I.M., but this is inaccurate. The condition in In re I.M., supra, 53 Cal.App.5th at page 931, required a minor to report “any contacts,” which could include innocent contact with police officers such as requests for directions. (Cf. People v. Relkin (2016) 6 Cal.App.5th 1188, 1197 [concluding a similar instruction would apply if a “defendant says ‘hello’ to a police officer“].) Here, the condition applies to police contacts “related to criminal activity.” This narrows the scope of potential contacts that require reporting and makes clearer to the minor what is required of him. The minor hypothesizes that the condition does not tell him whether he would have to report attending a Black Lives Matter demonstration where police officers were present and other people were teargassed, arrested, or detained. The minor‘s hypothetical does not involve any police contact with the minor, merely presence near police officers, so the condition by its own terms would not apply. If the minor were to speak to the police about the arrests or detention of
In re I.M. believed a condition like this would be unconstitutional because it does not indicate whether it is limited to criminal activity based on the minor‘s own conduct or whether it includes crimes that the minor may witness. (In re I.M., supra, 53 Cal.App.5th at p. 936.) We disagree. Giving the condition a meaning apparent to a reasonable, objective reader (People v. Olguin (2008) 45 Cal.4th 375, 382) and requiring only ” ’ “reasonable specificity” ’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890), the lack of any limitation regarding the parties responsible for the criminal activity indicates that the condition applies to both kinds of criminal activity.
Contrary to the minor‘s contentions, however, the condition does not sweep too broadly. The purpose of juvenile probation conditions is to enhance the reformation and rehabilitation of a minor. (
DISPOSITION
The matter is remanded to the juvenile court with instructions to designate counts 1 (reckless evasion of a peace officer in violation of