IN RE: MOSES C. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Moses C. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the juvenile court's finding that he committed three crimes:  count one, assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1));  count two, battery on a school employee (Pen.Code, § 243.6);  and count three, battery with serious bodily injury (Pen.Code, § 243, subd. (d)).  The court declared counts one and three to be felonies and placed appellant home on probation.   Appellant contends the juvenile court erred in setting a maximum term of confinement because he was placed in the custody of his parents.   We agree with appellant and strike the maximum term of confinement.   Appellant's second contention is that the court erred in sustaining an enhancement pursuant to Penal Code section 12022.7 as to count three because it violates the double jeopardy clause of the federal Constitution.   Appellant's double jeopardy claim fails, but the record indicates that the court did not impose the enhancement because it did not impose a term of imprisonment.   Moreover, the enhancement is not permitted as to count three under the plain language of the statute because infliction of great bodily injury is an element of the offense.  (Pen.Code, § 12022.7, subd. (g).)  We affirm in all other respects.

FACTUAL AND PROCEDURAL SUMMARY

On March 14, 2009, Gonzalo Perez was working as a teacher advisor at the Abraham Friedman Occupational Center in Los Angeles County.   Perez was at school in response to a request from a teacher for security assistance regarding an incident the prior Saturday involving appellant.   Perez went to the teacher's classroom to speak with appellant, but the teacher said that appellant was not in the classroom.

When appellant returned to the classroom, Perez and the school security officer escorted appellant to the main office and asked him not to return to the classroom until they spoke with his father.   Perez left, and appellant waited in the counseling office while the school counselor tried to contact his father.   Appellant was seated in a small testing room, where another school employee, Alejandro Mejia, also was seated.   No one else was in the area, but the security officer was in the hallway adjacent to the counseling office.

When Perez returned to the counseling office, appellant came up behind him, extended his right hand toward him, and said, “ ‘This is not the last you've heard – this is not the last you've seen of me.’ ”   This was the last thing Perez remembered before he woke up on the floor, being attended to by medical personnel.   He awoke in pain, bleeding, and with bruises on his face.   He received stitches in the back of his head where he hit the floor, and he suffered a concussion and a broken nose.

Mejia did not see what happened because he was sitting at his desk working, but he heard a loud sound, which was either the sound of appellant hitting Perez or Perez falling on the floor.   When Mejia got up from his desk to investigate, he saw Perez lying on the floor and appellant standing a few feet away.

Los Angeles Police Officer Steve Jeong responded to the call about the incident.   After appellant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, he told Officer Jeong that he was in the office because he was in trouble, and that he became angry at the smirk on Perez's face when Perez addressed him.   Appellant therefore approached Perez to shake his hand and, while they were shaking hands, appellant used his other hand to punch Perez several times.

A petition was filed under Welfare and Institutions Code section 602, alleging that appellant committed the crimes of assault by means likely to produce great bodily injury, battery on a school employee, and battery with serious bodily injury, all felonies.   The petition further alleged as to all three counts that appellant personally inflicted great bodily injury on Perez, within the meaning of Penal Code section 12022.7, subdivision (a).

At the adjudication hearing, the court asked the prosecutor the difference between the allegations of great bodily injury and serious bodily injury in counts one and three.   After some discussion, the court decided that appellant's conduct was egregious enough to justify the more serious charge of assault by means likely to produce great bodily injury under Penal Code section 245.

The juvenile court found the allegations in counts one, two, and three to be true and sustained the petition, stating that the counts merge pursuant to Penal Code section 654.   The court did not specifically address the allegations of great bodily injury under Penal Code section 12022.7.   The court declared counts one and three to be felonies, reduced count two to a misdemeanor, and declared a maximum confinement term of four years.   The court declared appellant a ward of the court and placed him home on probation.   Appellant filed a timely notice of appeal.

DISCUSSION

I. Maximum Term of Confinement

Appellant contends the juvenile court erred in setting a maximum term of confinement because the court committed him to the custody of his parents.   We agree.

Welfare and Institutions Code section 726, subdivision (c), provides that “[i]f 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 [Welfare & Institutions Code] 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.”   This provision applies only if a minor is removed from the physical custody of his or her parent or guardian.  (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)   Where, as here, a minor is placed home on probation and not removed from his parents' custody, the juvenile court lacks the authority to set the maximum period of confinement.  (Ibid.) We therefore order the maximum term of confinement stricken.

II. Enhancement as to Count Three

Appellant's second contention is that the trial court erred in sustaining the great bodily injury enhancement under Penal Code section 12022.7 as to count three, battery with serious bodily injury (Pen.Code, § 243, subd. (d)), because this constitutes double punishment for the same offense in violation of the double jeopardy clause.   Although appellant's double jeopardy claim fails, the record indicates that the juvenile court did not impose the enhancement because the court did not impose a term of imprisonment.¹  In any event, the enhancement could not be applied to count three under the plain language of Penal Code section 12022.7.   The petition accordingly sought an enhancement that was prohibited by law.

Penal Code section 12022.7 provides in pertinent part that “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”  (Pen.Code, § 12022.7, subd. (a).)  Great bodily injury is defined as “a significant or substantial physical injury.”  (Id., subd. (f).)  Relevant to this case, the enhancement provided by subdivision (a) “shall not apply if infliction of great bodily injury is an element of the offense.”  (Id., subd. (g).)

The substantive offense that the juvenile court found appellant committed was battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d).  Serious bodily injury is defined as “a serious impairment of physical condition, including, but not limited to, the following:  loss of consciousness;  concussion;  bone fracture;  protracted loss or impairment of function of any bodily member or organ;  a wound requiring extensive suturing;  and serious disfigurement.”  (Pen.Code, § 243, subd. (f)(4).)

“Cases have construed ‘great bodily injury’ to be the same as ‘serious bodily injury.’  [Citations.]”  (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1042;  accord People v. Arnett (2006) 139 Cal.App.4th 1609, 1613 [stating that numerous courts have recognized that the terms have substantially the same meaning].)   Great bodily injury, therefore, is an element of the substantive offense of battery with serious bodily injury.

There is no question that Penal Code section 12022.7 does not apply “ ‘where serious bodily injury is already an element of the substantive offense charged.  [Citation.]’  [Citation.]”  (People v. Weaver (2007) 149 Cal.App.4th 1301, 1326.)   It is also clear that serious bodily injury is already an element of Penal Code section 243, subdivision (d), the substantive offense charged in count three.   Thus, the enhancement could not be imposed as to count three.  (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376 [because great bodily injury as defined by section 12022.7 is an element of the crime of battery under section 243, subdivision (d), it was error to sentence appellant to the consecutive three-year enhancement];  People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550 [great bodily injury enhancement in section 12022.7 ordinarily may not be applied to a term imposed for a violation of Penal Code section 243, subdivision (d), because serious bodily injury is “the essential equivalent” of great bodily injury];  cf.  People v. Beltran (2000) 82 Cal.App.4th 693, 696–697 [section 12022.7 enhancement was erroneously imposed because infliction of serious bodily injury is an element of the substantive offense of evading a peace officer].)

The record indicates that the juvenile court did not specifically address the enhancement allegations when it sustained the petition.   The court simply stated that “[c]ount[s] 1, 2, and 3 are found true.”   We construe the court's decision to sustain the petition as a finding that the factual allegations of the petition are true.   However, we decline to infer that the court necessarily found that the enhancement applies because the court did not impose any sentence, but instead placed appellant home on probation.   As discussed above, the court could not have imposed the enhancement under the terms of the statute.

DISPOSITION

The maximum term of confinement is stricken.   In all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Appellant's double jeopardy claim fails because “[c]onduct enhancements cannot be imposed standing alone as additional punishment.   By definition an enhancement is ‘an additional term of imprisonment added to the base term.’  [Citations.]  For that reason alone, an enhancement cannot be equated with an offense.  [Citation.]”  (People v. Izaguirre (2007) 42 Cal.4th 126, 134.)   Enhancements such as that found in Penal Code section 12022.7 therefore “ ‘do not constitute separate crimes or offenses' [citation]” for purposes of the federal double jeopardy clause.   (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.).  FN1. Appellant's double jeopardy claim fails because “[c]onduct enhancements cannot be imposed standing alone as additional punishment.   By definition an enhancement is ‘an additional term of imprisonment added to the base term.’  [Citations.]  For that reason alone, an enhancement cannot be equated with an offense.  [Citation.]”  (People v. Izaguirre (2007) 42 Cal.4th 126, 134.)   Enhancements such as that found in Penal Code section 12022.7 therefore “ ‘do not constitute separate crimes or offenses' [citation]” for purposes of the federal double jeopardy clause.   (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.)

EPSTEIN, P. J. SUZUKAWA, J.