IN RE: M.D. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

This is an appeal from a final judgment in a wardship proceeding under Welfare and Institutions Code section 602.¹  The minor, M.D., contends the disposition order failed to reflect the maximum period of confinement for his offenses;  he also asserts the juvenile court failed to stay the judgment on certain counts pursuant to Penal Code section 654 and improperly found true allegations of stealing and receiving the same property.   We reverse the true finding on the receiving stolen property count, modify the order to reflect the maximum period of confinement, and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 2009, a wardship petition under Welfare and Institutions Code section 602 was filed against 16-year-old M.D., alleging four counts:  grand theft (Pen.Code, § 487, subd. (a)), receiving stolen property (Pen.Code, § 496, subd. (a)), and two counts of resisting a police officer (Pen.Code, § 148, subd. (a)(1)).   According to the probation report, the first count of resisting an officer occurred when M.D. complained of being harassed and struggled with the officer after being told he was being arrested for a curfew violation.   The other counts were based on an incident on September 18, 2008, when M.D.'s teacher reported her cellular phone was missing after M.D. had been taking a test near it in a hallway.   M.D. refused to allow an officer to search his pockets and struggled with the officer when he tried to restrain M.D. The missing cellular phone was found in M.D.'s pocket.   M.D. admitted the allegations, on condition he be placed on deferred entry of judgment.   The court placed M.D. on deferred entry of judgment.

Less than a month later, a second wardship petition was filed;  as amended, it alleged seven counts:  (1) second degree robbery (Pen.Code, § 211), (2) grand theft (Pen.Code, § 487, subd. (c)), (3) assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)), (4) false personation (Pen.Code, § 529, subd. (3)), (5) vehicle theft (Veh.Code, § 10851, subd. (a)), (6) driving under the influence, by a person under 21 years (Veh.Code, § 23136), and (7) driving without a license (Veh.Code, § 12500, subd. (a)).  The robbery, theft, and assault charges arose out of an incident in which John G., a 16-year-old boy, approached a store on a skateboard at about 10:00 p.m. A group of boys stopped him and one of them, later identified as M.D., asked for a cigarette.   When John G. denied having any, M.D. hit him in the face with a clenched fist and told John G. to give him the Xbox John G. was carrying.   John G. ran;  M.D. and another boy caught up with him, knocked him to the ground and hit and kicked him.   The other boy took items out of John G.'s backpack.   A third boy took the skateboard.   The remaining counts of the amended petition were based on an incident earlier the same evening, when the car M.D. was driving was stopped by police.   After a contested hearing, the juvenile court found the allegations of all counts of the September 22, 2009, petition true.

At the disposition hearing for both petitions, the court ended the deferred entry of judgment, and placed M.D. under the supervision of the probation officer, for placement with his parents.   It also ordered him to be committed forthwith to the Bear Creek Academy Short Term Program, specifying he was to serve all his time in custody and not be released on an electronic monitor.   M.D. appeals, contending the juvenile court improperly failed to specify in the judgment the maximum period of confinement to which he could be subjected, as required by section 726.   He asserts it also failed to stay the grand theft and assault counts of the September 22, 2009, petition pursuant to Penal Code section 654, although they arose from the same course of conduct as the robbery count.   He also contends the court erred in finding true both the grand theft count and the receiving stolen property count of the May 28, 2009, petition when both counts involved the same stolen property.

DISCUSSION

I. Maximum Period of Confinement

When a minor is adjudged a ward of the court under section 602 because he committed acts which would be crimes if committed by an adult, he may not be confined for a period longer than the maximum period of punishment that may be imposed on an adult who violates the same criminal statute or statutes.  (In re Francisco S. (2000) 85 Cal.App.4th 946, 953.)  “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (§ 726, subd. (c), italics added.)   Under section 726, the order cannot simply recite that “the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the [same] offense or offenses.”  (Id., subd. (c).)  It must specify what the maximum term is.   (In re James A. (1980) 101 Cal.App.3d 332, 339-340.)

The requirement that the wardship order specify the maximum period of confinement applies only when the ward is removed from the physical custody of his parent or guardian and placed in physical confinement. (§ 726, subd. (c).)  “ ‘Physical confinement’ ” is defined as “placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.” (§ 726, subd. (c).)  Cases have interpreted the requirement to apply when the minor is confined in a facility that is, or can be, a secure facility.  (In re Harm R. (1979) 88 Cal.App.3d 438, 442-444;  In re Randy J. (1994) 22 Cal.App.4th 1497, 1506.)

M.D. contends the trial court should have specified his maximum period of confinement in its order, which committed him to the Bear Creek Academy Short Term Program, but it failed to do so.   The Attorney General contends the order of wardship was not required to specify the maximum period of confinement, because M.D. was placed in his parents' custody.

The wardship order declared M.D. a ward of the court and order he be placed in the custody of his parents, under the supervision of the probation officer.   However, it also reflected the juvenile court's finding that “[t]he welfare of the child requires that physical custody be removed from the parent or guardian.”   The court ordered M.D. to serve 91 days in juvenile hall, with credit for 91 days served.   It ordered that M.D. be committed to the Bear Creek Academy Short Term Program, Level III, and “obey the reasonable and proper orders of the Juvenile Justice Complex staff while confined in the institution.”   At the prosecutor's request, the juvenile court specified that M.D. was to serve all the time at Bear Creek Academy in custody, and he was not to be released early on an electronic monitor.

We conclude the wardship order required that M.D. be removed from the physical custody of his parents.   Further, the placement in Bear Creek Academy is the type of placement that qualifies as physical confinement for purposes of section 726, subdivision (c).  Accordingly, the juvenile court was required to specify the maximum period of confinement to which the minor could be subjected for his offenses.

II. Stay of Grand Theft and Assault Counts

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”  (Pen.Code, § 654, subd. (a).)  Penal Code section 654 applies not only when one act violates more than one statute, but also when a course of conduct comprising an indivisible transaction violates more than one statute.  (Neal v. State of California (1960) 55 Cal.2d 11, 19.)  “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.”  (Ibid.)

M.D. contends that the first three counts of the September 22, 2009, petition (robbery, grand theft, and assault) all occurred as part of an indivisible course of conduct and, therefore, the punishment for counts 2 and 3 should be stayed.   In People v. Medina (1972) 26 Cal.App.3d 809, defendant Morrison committed an assault in the course of a robbery.   The court stated:  “The assault by Morrison was the means of committing the robbery and was merely incidental to the primary object of robbing Bumb. [Citations.]  Accordingly, Morrison may only be punished for the more serious offense of robbery.”   (Id. at p. 824.)

Counts 1 and 2 of the September 22, 2009, petition alleged M.D. took personal property from John G.;   both were based on the same incident and the taking of the same property.   Count 3 alleged M.D. assaulted John G. The testimony at the jurisdictional hearing indicated John G. was assaulted and the property was taken from him in one incident.   That incident began when M.D. hit John G. in the face and demanded his Xbox;  it continued when M.D. and a companion hit and kicked John G. and the companion took items from John G.'s backpack.   As in Medina, the assault was the means of committing the robbery.   At the dispositional hearing, the prosecutor conceded Penal Code section 654 applied, and the theft and assault charges could not be separately punished.   The Attorney General offers no contrary argument here.

When the evidence shows multiple punishments were imposed for multiple offenses that were committed as part of an indivisible course of conduct, “the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.”  (People v. Flowers (1982) 132 Cal.App.3d 584, 589.)   It is not necessary to stay the punishments on counts 2 and 3, however.   The wardship order need only specify the maximum period the minor may be confined, which may not exceed “the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (§ 726, subd. (c).)  At the November 13, 2009, disposition hearing, the prosecutor calculated the maximum period of confinement for both petitions as seven years 10 months.   This calculation took into account Penal Code section 654, and included a term for the robbery count, but not for the grand theft or assault count.   M.D., in his opening brief, also calculated the maximum period of confinement and reached the same result.   Accordingly, the order of wardship should specify that the maximum period M.D. may be confined on these petitions is seven years 10 months.

III. Grand Theft and Receiving Stolen Property Counts

M.D. contends he may not be convicted of stealing and receiving the same stolen property.   Count 2 (grand theft) and count 3 (receiving stolen property) of the May 28, 2009, petition were both based on the theft of a cellular phone from M.D.'s teacher.   Therefore, he contends, the order finding true the allegations of count 3 must be reversed.

Penal Code section 496, which makes receipt of stolen property unlawful, also provides that “no person may be convicted both pursuant to this section and of the theft of the same property.”  (Pen.Code, § 496, subd. (a).)  If a defendant is convicted of both, the reviewing court must reverse the conviction of receiving stolen property and allow the theft conviction to stand.   (People v. Ceja (2010) 49 Cal.4th 1, 10.)   The Attorney General concedes as much.   Accordingly, the true finding on count 3 of the May 28, 2009, petition must be reversed.

DISPOSITION

The true finding on count 3 of the May 28, 2009, petition (receiving stolen property) is reversed.   The remainder of the November 20, 2009, disposition order is modified to reflect a maximum period of physical confinement on both petitions of seven years 10 months, and, as so modified, is affirmed.

HILL, J.

WE CONCUR:

LEVY, Acting P.J.

POOCHIGIAN, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.