People v. Jonathan R.

I

n an amended juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), the minor was alleged to have violated Penal Code^[1] section 245, subdivision (a)(1), assault with a deadly weapon other than a firearm (count one), and section 245, subdivision (a)(4), assault by force likely to produce great bodily injury (count two). Both counts also alleged the minor used a deadly weapon, a knife, and inflicted great bodily injury on the victim. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).)

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.”

The minor contends the juvenile court erred in convicting him of both subdivision (a)(1) and (4) of section 245 and argues the enhancement alleging use of a knife under count one should be stricken because use of a deadly weapon is an element of the crime of assault with a deadly weapon. He also challenges the imposition of the probation condition permitting warrantless search of his electronic devices.

A. Multiple Violations of Section 245

1. Governing Law

The statute governing the crime of aggravated assault, section 245, has undergone a gradual expansion over its history. For much of the first half of the last century, the section read, “ ‘Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison . . . , or in a county jail . . . , or by fine

or by both such fine and imprisonment.’ ” (In re Mosley (1970) 1 Cal.3d 913 , 918, fn. 4 [ 83 Cal.Rptr. 809 , 464 P.2d 473 ]; see Stats. 1933, ch. 847, § 1, p. 2216.) In 1961, this provision was designated subdivision (a), and a subdivision (b) was added separately criminalizing aggravated assault against a peace officer. (Stats. 1961, ch. 802, § 1, p. 2067.) In addition to other statutory changes to section 245 not pertinent here, subdivision (a) was later split into two parts, dividing the crime into (1) assault with a deadly weapon other than a firearm or by force likely to produce great bodily injury, and (2) assault with a firearm. The latter imposed the new requirement of a minimum six-month jail term. (Stats. 1982, ch. 136, § 1, p. 437; see People v. Milward (2011) 52 Cal.4th 580 , 585 [ 129 Cal.Rptr.3d 145 , 257 P.3d 748 ].) In 1989, subdivision (a)(3) was added to sechon 245, specifying the crime of assault with a machinegun or assault weapon, which carried a mandatory prison term, unlike the other provisions of subdivision (a). (Stats. 1989, ch. 18, § 1, p. 52.) Finally, in 2011, subdivision (a)(1) was split into the crimes of assault with a deadly weapon other than a firearm, which remained subdivision (a)(1), and assault by force likely to produce great bodily injury, which became subdivision (a)(4). Although stated in separate subdivisions, the two crimes continued to carry the same range of punishments, which were separately specified in each subdivision. (Stats. 2011, ch. 183, § 1.) As a result of these changes, subdivision (a) of section 245 now specifies four different crimes, each with its own elements and range of punishments.^[2]

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.] Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It

prohibits multiple punishment for the same ‘act or omission.’ ” (People v. Reed (2006) 38 Cal.4th 1224 , 1226-1227 [ 45 Cal.Rptr.3d 353 , 137 P.3d 184 ] (Reed).) This general rule is subject to “[a] judicially created exception,” which “ ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” (Id. at p. 1227.) Many cases have found that only a single offense can arise from a single statute, but that has never been a hard-and-fast rule.^[3]

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 section 288a, which prohibit oral copulation of an unconscious person (id., subd. (T>) and oral copulation of a person rendered defenseless by intoxication (id., subd. (i)). The defendant contended he could not be convicted of both offenses because he had committed a single act of oral copulation. (Gonzalez, at p. 536.) His appeal was premised on Craig, supra, 17 Cal.2d 453 , 455, in which the defendant was convicted of two counts of rape based on a single act of forcible intercourse with an underage girl. This conduct violated two subdivisions of section 261, which separately criminalized sex with a minor and forcible intercourse. In requiring consolidation of the convictions, the Craig court reasoned: ‘“Under [section 261], but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the [statutory] subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act. . . . The victim was not doubly outraged, once because she was forcibly attacked and once because she was under 18 years of age. There was but a single outrage and offense.” (Id. at p. 455.) The court expressly distinguished conduct that violated more than one statute, noting different statutes are ‘“based upon an independent public policy.” (Id. at p. 458.)

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.)

The minor encourages us to find subdivision (a)(1) and (4) of section 245 do not constitute separate offenses on the basis of the legislative history of the amendment creating subdivision (a)(4), which described the legislation as a “technical, nonsubstantive” change. (Legis. Counsel’s Dig., Assem. Bill No. 1026 (2011-2012 Reg. Sess.).) According to the bill’s author, the purpose of the amendment was to make it easier for prosecutors and defense attorneys to determine whether a defendant’s past aggravated assault conviction involved the use of a weapon when examining a defendant’s criminal history, since past aggravated assault convictions involving the use of a weapon are treated differently for certain purposes than those not involving a weapon. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.) Apr. 26, 2011, pp. 1-2.) Because criminal histories typically list prior crimes according to the statute violated, a citation to section 245, subdivision (a)(1) was ambiguous in this respect prior to the amendment. (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.) Apr. 26, 2011, p. 2.) The minor argues no separate offense was created by the amendment because the two clauses specified different methods of committing a single offense before the amendment and the Legislature expressed no intent to change that situation in enacting the amendment.

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 reasoning, 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

clause “force likely to produce great bodily injury” was included in the statute to cover the application of such force without the use of an instrument. (Ibid.)

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 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 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 concluded, 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 section 245, subdivision (a)(1), only if the instrument is used in a manner likely to produce death or great bodily injury. For that reason, when assault with a deadly weapon other than a firearm is found to have occurred, the trier of fact necessarily must have concluded the defendant used or attempted to use force likely to produce great bodily injury, since that likelihood is what makes a weapon or instrument “deadly.” If the use of the instrument was not likely to produce great bodily injury, the defendant’s conduct could not satisfy subdivision (a)(1). Because both subdivisions require the use or attempted use of force likely to produce great bodily injury, subdivision (a)(4) does not “differ in [its] necessary elements” from subdivision (a)(1), and subdivision (a)(4) is “included within” subdivision (a)(1).^[5] (Gonzalez, supra, 60 Cal.4th at p. 539.)

A defendant who has been convicted of a violation of subdivision (a)(1) therefore cannot also suffer a conviction under subdivision (a)(4) based on the same assault.^[6]

The Attorney General, citing Aguilar, argues subdivision (a)(4) of section 245 is not included within subdivision (a)(1) because a violation of subdivision (a)(1) requires the use of a weapon, while subdivision (a)(4) is addressed to an assault using only hands or feet. The argument reflects the Legislature’s original motivation in adding the phrase “force likely to produce great bodily injury” to section 245, which was to include violent assaults committed without the use of a weapon or other instrument within the aggravated assault statute. (Aguilar, supra, 16 Cal.4th at pp. 1030-1031.) We would agree with the Attorney General if the Legislature had expressly included this limitation in subdivision (a)(4) by excluding assaults carried out by means of an instrument. In that case, the two offenses would be mutually exclusive, rather than overlapping. That is not, however, the language of subdivision (a)(4). As written, the subdivision encompasses any use of force likely to produce great bodily injury, which necessarily includes the application of that force by use of a weapon or other instrument. The juvenile court recognized as much when it found the minor to have violated both provisions on the basis of an assault using a knife. Were subdivision (a)(4) restricted in the manner argued by the Attorney General, the minor’s conviction under subdivision (a)(4) would have been unsupported by the evidence.

The Attorney General also argues that subdivision (a)(4) of section 245 requires the application of force, while subdivision (a)(1) does not. The argument ignores the definition of assault, which is incorporated into section 245. An assault includes an attempt to apply force as well as the actual application of force. It is commonly held that a defendant need not make any physical contact with the victim to commit aggravated assault. (E.g., People v. White, supra, 241 Cal.App.4th at p. 886; People v. Brown (2012) 210 Cal.App.4th 1 , 7 [ 147 Cal.Rptr.3d 848 ] [“Because the statute speaks to the capability of inflicting significant injury, neither physical contact nor actual injury is required to support a conviction.”].) Under subdivision (a)(4), a powerful punch that misses is an aggravated assault to the same degree as the same punch that lands, at least in theory. (E.g., People v. Leonard (2014) 228 Cal.App.4th 465 , 488 [ 175 Cal.Rptr.3d 300 ] [evidence that person swung fist toward the victim with force sufficient to smash a car window supports conviction for aggravated assault].)

We are aware In re Mosley, supra, 1 Cal.3d 913 , states that assault by means of force likely to produce great bodily injury is not a lesser included offense of assault with a deadly weapon under former section 245. (Mosley, at p. 919, fn. 5.) At the time Mosley was decided, however, the two were not separate offenses. As discussed above, all aspects of the crime of aggravated assault were encompassed within a single statutory paragraph that included both provisions. (Id. at p. 918, fn. 4.) As the court explained its reasoning: “Section 245 . . . defines only one offense, to wit, ‘assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury. . . .’ The offense of assault by means of force likely to produce great bodily injury is not an offense separate from—and certainly not an offense lesser than and included within—the offense of assault with a deadly weapon.” (Id. at p. 919, fn. 5.) The explanation makes clear that the court’s conclusion was based on the structure of the statute, which specified use of a deadly weapon and use of force likely to produce great bodily injury as alternative means to commit the same offense, aggravated assault. (See People v. Martinez (2005) 125 Cal.App.4th 1035 , 1043 [ 23 Cal.Rptr.3d 508 ] [“As is readily apparent, [former section 245, subdivision (a)(1)] describes two different ways of committing a prohibited assault: (1) by use of a deadly weapon or instrument other than a firearm or (2) by means of force likely to produce great bodily injury.”].)

Once the Legislature 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 alleged a violation of subdivision (a)(4) of section 245, must be vacated, and the enhancements alleged in count two must be stricken. Given these modifications, we also must vacate the juvenile court’s calculation of the minor’s maximum term of confinement and restitution fine.^[7]

B„ C.^[8]