People v. Jonathan R.People v. Jonathan R.
MARGULIES, J.—After Jonathan R. (minor) stabbed another young man during a brawl, he was alleged in a juvenile wardship petition to have violated
We conclude the minor‘s argument that the crimes specified in
In an amended juvenile wardship petition under
Testimony at the contested jurisdictional hearing established that the minor stabbed another young man in the abdomen during a brawl, using a folding pocketknife with a blade approximately three to four inches long. The resulting injury required a five-day hospital stay.
The juvenile court found true both counts of the petition, as well as all enhancement allegations. The minor was adjudged a ward of the court and committed to the county‘s Youthful Offender Treatment Program for a maximum period of nine years or until age 21. Among the probation conditions imposed was one requiring the minor to submit his property to a warrantless search at any time, “including any electronic device & cell phone & access codes.”
II. DISCUSSION
The minor contends the juvenile court erred in convicting him of both
A. Multiple Violations of Section 245
1. Governing Law
The statute governing the crime of aggravated assault,
It has long been accepted that, in general terms, “a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” [Citations.]’ [Citation.]
The Supreme Court‘s latest word on the issue of multiple convictions is Gonzalez, supra, 60 Cal.4th 533. The Gonzalez defendant sexually assaulted a woman who had been rendered unconscious by intoxication. He was convicted separately under two subdivisions of
Although the circumstances of Craig would appear to be materially indistinguishable from those in Gonzalez, the Gonzalez court permitted both convictions for oral copulation to stand, basing its conclusion on an analysis of the statutory structure. (Gonzalez, supra, 60 Cal.4th at pp. 537-538.)
Gonzalez distinguished Craig on the basis of the different structure of the two statutes involved. At the time Craig was decided, former section 261 stated, ” ‘[r]ape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances,’ ” and thereafter listed a variety of circumstances in separately numbered subparagraphs. No individual punishments were specified for the diffеrent circumstances. (Gonzalez, supra, 60 Cal.4th at p. 539, fn. 2.) According to Gonzalez, Craig “simply concluded, based on the wording and structure of the statute, that former section 261 set forth only one offense that could be committed under several different circumstances, as described in its several subdivisions. This conclusion flowed naturally from the wording and structure of former section 261. . . . [¶] . . . [¶] Section 288a is textually and structurally different from former section 261.” (Gonzalez, at p. 539, fn. omitted.)
2. Violations of Section 245, Subdivision (a)(1) and (4)
a. The Statutory Structure of Section 245
The statutory structure of
The rationale of Gonzalez precludes such an analysis. The court held, in effect, that the Legislature is deemed to have intended to create separate offenses whenever a statute isolates violations with separate elements and punishments in separate subdivisions. Under Gonzalez, this statutory structure was held to be an element of the plain language of the statute, and that language was held to be unambiguous in creating separately convictable offenses. Given the absence of ambiguity, expressions of intent in a statute‘s legislative history are irrelevant to its interpretation. (Gonzalez, supra, 60 Cal.4th at pp. 537-538.)
b. Necessarily Included Offenses
While we do not accept the minor‘s reаsoning, we find merit in his general point. Gonzalez acknowledges an exception to its general rule. As the court noted in discussing the subdivisions violated by the defendant: “These offenses differ in their necessary elements . . . and neither offense is included within the other.” (Gonzalez, supra, 60 Cal.4th at p. 539.) In other words, the court recognized that the general rule prohibiting multiple convictions for necessarily included offenses (Reed, supra, 38 Cal.4th at p. 1227) operates with respect to separate subdivisions within a single statute.4 Because, as
The separate aspects of aggravated assault found in
The crime of assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (
The distinction between assault with a deadly weapon other than a firearm and assault by force likely to produce great bodily injury was explored in People v. Aguilar (1997) 16 Cal.4th 1023 [68 Cal.Rptr.2d 655, 945 P.2d 1204] (Aguilar), in which the court considered “whether hands or feet can constitute ‘deadly weapons’ within the meaning of the statute.” (Id. at p. 1026.) In Aguilar, the defendant had severely beaten and kicked the victim, and the prоsecutor argued to the jury a conviction for aggravated assault was appropriate because hands and feet may be deadly weapons within the meaning of former section 245, subdivision (a)(1). (Aguilar, at p. 1029.) In disapproving the prosecutor‘s argument, the court noted weapons not inherently deadly “are defined by their use in a manner capable of producing great bodily injury.” (Id. at p. 1030.) For that reason, the clause “force likely to produce great bodily injury” would be rendered redundant if hands and feet could be considered “weapons” or “instruments.” (Ibid.) Rather, the separate
While the court found the prosecutor‘s argument to be improper, it concluded the prosecutor‘s argument was harmless, using reasoning directly pertinent to the issue before us. “Ultimately . . . , the jury‘s decisionmaking process in an aggravated assault case under [former] section 245, subdivision (a)(1), is functionally identical regardless of whether, in the particular сase, 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 used.” (Aguilar, supra, 16 Cal.4th at p. 1035.) That is, if the defendant acted by means of a weapon other than a firearm, it was necessary for the jury to find the defendant applied force likely to produce great bodily injury, regardless of whether the force was applied by means of an instrument or by hands and feet. As the court concludеd, 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.” (Id. at p. 1036.) Both aspects of former section 245, subdivision (a)(1) required the attempted or actual use of force likely to produce great bodily injury; they differed only in that subdivision (a)(1) required force to be applied through use of a weapon or other instrument.
Aguilar is conclusive here. When a defendant commits an assault using an instrument other than a firearm, the instrument is considered to be a “deadly weapon,” and therefore to qualify under
The Attorney General, citing Aguilar, argues
The Attorney General also argues that
Once the Lеgislature separated these provisions into different subdivisions, the logic of Mosley no longer holds. Under the reasoning of Gonzalez, the separation of the two aspects of aggravated assault into separate, self-contained subdivisions created two offenses where formerly there was one. Considered as separate offenses, for the reasons discussed above, assault by means of force likely to produce great bodily injury is necessarily included within assault with a deadly weapon.
For this reason, the court‘s true findings with respect to count two, which allеged a violation of
B., C.*
The juvenile court‘s findings with respect to the minor‘s violation of
In addition, the search condition of the dispositional order, which currently reads, “Submit person, property, any vehicle under minor‘s control, and residence to search and seizure by any peace officer any time of the day or night with or without a warrant[,] including any electronic device & cell phone & access codes,” is modified to read: “Submit your person and any vehicle, room, or property under your control to a search by the probation officer or a peace officer, with or without a search warrant, at any time of the day or night. Submit all electronic devices under your control to a search of any medium of communication reasonably likely to rеveal whether you are involved with drugs or are otherwise in violation of the remaining probation conditions, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified. Such media of communication includes text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.”
Humes, P. J., and Dondero, J., concurred.
Notes
“(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.
“(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.
“(3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 16880, or an assault weapon, as defined in Section 30510 or Section 30515, or a .50 BMG rifle, as defined in Section 30530, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.
“(4) Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”