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In re Alejandro B.

California Court of Appeals, Fifth District

May 7, 2015

In re ALEJANDRO B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Appellant,
v.
ALEJANDRO B., Defendant and Respondent.

[As Modification on June 3, 2015]

APPEAL from a judgment of the Superior Court of Tulare County, No. JJD067747. Juliet L. Gallo, Judge.

Page 706

COUNSEL

Tim Ward, District Attorney, Dan Underwood, Assistant District Attorney, Barbara J. Greaver and Jennifer Fultz, Deputy District Attorneys, for Plaintiff and Appellant.

Kristen Owen, under appointment by the Court of Appeal, for Defendant and Respondent.

Page 707

OPINION

PEÑA, J.

INTRODUCTION

In People v. Vargas (2014) 59 Cal.4th 635 [174 Cal.Rptr.3d 277, 328 P.3d 1020] (Vargas), the court considered the question of “whether two prior convictions arising out of a single act against a single victim can constitute two strikes under the ‘Three Strikes’ law, ” and “conclude[d] they cannot.” (Id. at p. 637.) We consider whether the Vargas decision or reasoning applies to a case involving two current offenses arising out of a single act against a single victim. We conclude it does not. Comparing prior convictions to current offenses, as the juvenile court did in this case, is like comparing apples and oranges. Alas, the juvenile court’s admirable effort has proved fruitless. We reverse.

Defendant Alejandro B. was alleged to have committed two counts of assault with a deadly weapon and burglary. It was further alleged the crimes were committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. During the jurisdiction hearing, the court found one of the two assaults and the burglary to be true beyond a reasonable doubt, as well as the special allegations associated therewith. At the contested disposition, the minor’s counsel asked the court, based upon Vargas, supra, 59 Cal.4th 635, to dismiss one of the remaining two counts because both the assault and burglary arose from the same transaction and course of conduct and involved the same victim. The court struck the assault with a deadly weapon count and the special allegation, leaving in place a single conviction for burglary.

On appeal, the People argue the court erred in dismissing the assault count pursuant to Vargas because it is not applicable to the case. Vargas concerned two prior strike convictions arising from a single act, and the applicability of those prior convictions to sentencing following a new conviction. In this matter, the People assert there was no allegation of a sentence enhancement pursuant to a prior strike, nor was the court about to sentence the minor in a “Three Strikes” (Pen. Code, [1] §§ 667, subds. (b)-(i), 1170.12) case. Thus, the court should not have dismissed the assault count; it should have stayed the punishment associated with that count pursuant to section 654 rather than dismiss the count in its entirety. As urged by the People, we will remand the matter with directions to reinstate count 1 and stay imposition of the sentence on that count pursuant to section 654.

Page 708

PROCEDURAL AND FACTUAL BACKGROUND

In March 2014, Alejandro was alleged to have committed assault with a deadly weapon against A.L, Jr. (§ 245, subd. (a)(1), count 1), burglary against “A.I. AND OTHERS” (§ 459, count 2), and assault with a deadly weapon against A.L, Sr. (§ 245, subd. (a)(1), count 3). As to all counts, it was alleged the crimes were committed for the benefit of a criminal street gang (§ 186.22); it was further alleged he personally used a knife (§ 12022, subd. (b)(1)) during the commission of the crimes. Alejandro denied all allegations.

At the jurisdiction proceeding, the court found counts 1 and 2, as well as the special allegations asserted, to be true beyond a reasonable doubt. It dismissed count 3 as not proven beyond a reasonable doubt.

During dispositional proceedings, the trial court dismissed count 1 (assault with a deadly weapon) and proceeded with the prior adjudication concerning count 2 (burglary). The court committed Alejandro to the supervision of the probation department for out-of-home placement for 365 days at the ...


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