Filed 2/5/09

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re R.L., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,

Plaintiff and Respondent,

v.

R.L.,

Defendant and Appellant.

A120821

(Sonoma County

Super. Ct. No. 34790J)

This is a juvenile delinquency case. Following R.L.’s admission of an allegation that he unlawfully possessed a “billy” club, the prosecutor amended the juvenile petition to allege additional charges against him, including assault with a deadly weapon by means of force likely to produce great bodily injury. R.L. admitted the additional allegation of assault with a deadly weapon and the remaining allegations were dismissed. In this appeal, R.L. argues the juvenile court erred when it denied his motion to dismiss the amended petition brought under Penal Code section 654, and the holding of Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). In the published portion of this opinion, we conclude the prosecutor did not violate section 654’s bar to multiple prosecutions or the rule in Kellett because proceedings on the first petition were not yet concluded when the amended petition was filed. R.L. also contends the court failed to specify whether his offenses were misdemeanors or felonies, as required by Welfare and Institutions Code section 702. We agree and remand for that purpose. On remand, we also direct the juvenile court to determine whether section 654’s prohibition of multiple punishments limited R.L.’s possible maximum term of commitment.

FACTUAL AND PROCEDURAL BACKGROUND

R.L. was already a ward of the court when an October 26, 2007, petition alleged that he unlawfully possessed a “billy” club. R.L. admitted the allegation on October 29, and was referred for evaluation by the probation department. When the court took R.L.’s admission, the prosecutor stated, “for the record there ha[ve] been no promises regarding any further findings or filings based on incidents related to this event.”

On November 1, the prosecutor filed an amended petition that alleged R.L. committed four additional offenses on the same day as the “billy” offense, including assault with a deadly weapon and by means of force likely to produce great bodily injury. R.L. moved to dismiss the amended petition as barred under section 654 and the rule in Kellett. He argued that the prosecutor knew or should have known about the basis for the additional charges against R.L. before he admitted the “billy” offense. The prosecution argued that the amended petition was based on supplemental police reports received by the district attorney after R.L. admitted the “billy” offense, and involved criminal conduct that was not transactionally related to the “billy” offense. The court denied R.L.’s motion to dismiss on the basis that the amended petition was justified due to new evidence the prosecutor received from the police.

The parties thereafter reached a negotiated disposition in which R.L. agreed to admit the assault count in exchange for dismissal of the remaining charges. At the dispositional hearing, R.L. was continued as a ward on probation in the home of his grandmother, with various terms and conditions. His remaining maximum time of confinement was computed to be 56 months and six days, based on his admitted offenses and a prior misdemeanor vandalism. R.L. timely appealed.

DISCUSSION

A. Section 654’s Proscription Against Multiple Prosecutions

Section 654 provides, in relevant part: “An acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other.” In Kellett, our Supreme Court held that when “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.) The Kellett rule applies to juvenile proceedings. (See, e.g., In re Dennis B. (1976) 18 Cal.3d 687, 692-696; In re Benny G. (1972) 24 Cal.App.3d 371, 375-377.)

The Attorney General argues that section 654 and Kellett were not violated in this case because R.L. “was not convicted and sentenced for the ‘billy’ offense when he was charged with the amended offenses.” As the Attorney General points out, “the dispositional hearing for the ‘billy’ offense did not occur until after the amended charges were resolved by [R.L.’s] admission and were included in that disposition.” (See People v. Hartfield (1970) 11 Cal.App.3d 1073, 1080 [“under [section 654], successive prosecution is only prohibited after conviction and sentence”].) While “ ‘conviction’ and ‘sentence’ are terms of art not generally applicable to juvenile proceedings,” we agree with the Attorney General’s suggestion that “[u]nder juvenile rules, the sustaining of charges after a jurisdictional hearing . . . would be equivalent to an adult conviction, and the dispositional hearing would be equivalent to an adult sentencing.” R.L. would have us disregard the sentencing prong of section 654 and Kellett because “whether [he] was ‘sentenced’ at the time the amended charges were filed is not applicable here because this was a juvenile proceeding.” We will not do so.

The dispositional phase of a juvenile delinquency proceeding is the functional equivalent of criminal sentencing. Although it may not be retributive, just as in a criminal case, punishment is an authorized objective of a juvenile court dispositional order. (In re Josh W. (1997) 55 Cal.App.4th 1, 8.) Accordingly, the bar of section 654 was not violated in this case because, even though R.L. had admitted to the “billy” charge, when the petition was amended he was still awaiting disposition of the “billy” charge and the proceedings had not concluded.

Our result is consistent with the purpose of section 654 to prevent harassment of persons accused of crimes after they have been acquitted or received a sentence with which the prosecutor was not satisfied. (See, e.g., Kellett, supra, 63 Cal.2d at pp. 825-826 [were double punishment permissible, “[i]t would constitute wholly unreasonable harassment . . . to permit trials seriatim until the prosecutor is satisfied with the punishment imposed”]; In re Benny G., supra, 24 Cal.App.3d at pp. 376-377 [minor’s exoneration on robbery charge barred subsequent petition that alleged he was an accessory to the robbery]; cf. People v. Hartfield, supra, 11 Cal.App.3d at p. 1073 [purpose of section 654’s rule against multiple prosecution would not be served when there was no harassment of defendant].) Section 654 does not bar all successive prosecutions, only those that follow an acquittal or a conviction and sentence. (See § 654; Kellett, supra, at p. 827; People v. Hartfield, supra, at p. 1080.)

R.L. was neither acquitted, nor had he received a disposition which was equivalent to a sentence before the amended petition was filed. Thus, section 654’s proscription of multiple prosecutions had no application to his case, and we need not address the parties’ additional arguments regarding whether an exception to the Kellett rule applied here because the prosecutor was “ ‘ “ ‘unable to proceed on the more serious charge[s] at the outset because the additional facts necessary to sustain th[ose] charge[s had] not occurred or [had] not been discovered despite the exercise of due diligence.’ ” ’ ” (People v. Davis (2005) 36 Cal.4th 510, 558.)

B. Section 654’s Prohibition of Multiple Punishment

Section 654, subdivision (a) also provides that “[a]n 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.” R.L. argues that the confinement periods assessed against him for possession of an unlawful weapon and assault with a deadly weapon “should have been imposed concurrently because the two offenses involved a continuous course of conduct for the same incident.” The Attorney General contends that “in light of [R.L.’s] possession of the billy before, during and after the assault, he was properly punished for both offenses.” The record does not indicate that the juvenile court considered this question, and we direct it to do so on remand.

C. The Felony-Misdemeanor Offenses

Welfare and Institutions Code section 702 provides, in relevant part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” Assault with a deadly weapon and unlawful possession of a weapon both come within this definition. (§§ 245, subd. (a)(1), 12020, subd. (a)(1).)

R.L. argues that the court failed to exercise its discretion to determine whether his offenses should be treated as misdemeanors or felonies, as required by Welfare and Institutions Code section 702 and the California Rules of Court. We agree, and remand to permit the court to do so. (See In re Manzy W. (1997) 14 Cal.4th 1199, 1210-1211.)

The Attorney General argues remand is not necessary because R.L.’s plea agreement specified the assault admitted by R.L. was a felony, and it is not reasonably probable that remand would result in a reduction of the weapon possession offense to a misdemeanor. Although it is unlikely that the juvenile court would classify R.L.’s offense as a misdemeanor in light of the plea agreement, the record of the plea hearing is equivocal and we cannot tell whether the court exercised its discretion to classify the crime as a felony. When it took R.L.’s plea, the court said: “So as to Count V, do you admit that on October 24th of last year you willfully and unlawfully committed an assault upon Andrew B. with a deadly weapon, which was a baseball bat, and by means of force likely to produce great bodily injury, violating Penal Code section 245(a)(1), which is a four-year felony?” R.L. then admitted the allegation.

Our Supreme Court has rejected the argument that the juvenile court’s imposition of a felony-length term following just such an admission is an “implied” declaration under the statute. (In re Manzy W., supra, 14 Cal.4th at pp. 1207-1209 [“neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony”], citing In re Kenneth H. (1983) 33 Cal.3d 616.) “Here, as in those cases, the crucial fact is that the court did not state at any of the hearings that it found the [offense] to be a felony.” (Id. at p. 620.) While the Attorney General contends the court’s approval of the plea precluded the designation of the assault offense as a misdemeanor, none of the cases he relies upon address the court’s discretion to determine the status of a felony misdemeanor offense. Nor does the Attorney General distinguish People v. Statum (2002) 28 Cal.4th 682, cited by R.L., where the court acknowledged as their remedy the People’s right to appeal from a trial court’s imposition of a misdemeanor sentence after the defendant pled guilty to a felony. (Id. at pp. 688-689 [observing that “when the superior court imposed a county jail sentence, it exercised a ‘ “sui generis” ’ power [citation] to modify the felony verdict or finding to a misdemeanor”; see also People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974-975 [holding that courts retain discretionary authority under the three strikes law to determine whether a wobbler should be reduced to a misdemeanor].)

Because the record does not establish the juvenile court was aware of, and exercised its discretion to categorize each of the sustained allegations as a felony or misdemeanor, we remand for the declaration required by Welfare and Institutions Code section 702 and the California Rules of Court. (See In re Manzy W., supra, 14 Cal.4th at pp. 1209-1210; In re Eduardo D. (2000) 81 Cal.App.4th 545, 548-549; In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.)

DISPOSITION

The case is remanded to allow the juvenile court to consider whether punishment for both offenses is barred by section 654, and to declare whether each of R.L.’s offenses is a misdemeanor or a felony, as required by Welfare and Institutions Code section 702 and the California Rules of Court. The court shall recalculate the maximum period of confinement as necessary in accordance with its determinations. The court’s orders are otherwise affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.

In re R.L., A120821

Trial Court: Sonoma County Superior Court

Trial Judge: Honorable Raima H. Ballinger

Counsel for Appellant: Jenny Huang

Candace Chen

Justice First

Counsel for Respondent: Edmund G. Brown, Jr.

Attorney General of the State of California

Dane R. Gillette

Chief Assistant Attorney General

Gerald A. Engler

Senior Assistant Attorney General

Laurence K. Sullivan

Supervising Deputy Attorney General

Martin S. Kaye

Supervising Deputy Attorney General