In re Raymundo M.

Filed 7/14/20
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re RAYMUNDO M., a Person Coming
Under the Juvenile Court Law.
D076158
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J242112)
v.

RAYMUNDO M.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Browder

A. Willis III, Judge. Affirmed.

Elisabeth R. Cannon , under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Genevieve

Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

After he raised a switchblade-like knife head-high and chased another minor while

orally threatening him, Raymundo M. was charged in juvenile court with assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 making a criminal threat (§ 422), and

brandishing a weapon (§ 417, subd. (a)(1)), along with various enhancement allegations.

The juvenile court found the charges and certain of the enhancement allegations true,

declared Raymundo a ward of the court, and placed him with his mother under the

supervision of the probation department.

On appeal, Raymundo contends (1) insufficient evidence supports the true finding

on the assault count because he never got within striking distance of the victim or made

stabbing or slashing motions with the knife; (2) the juvenile court failed to expressly

declare whether it was treating the "wobbler" assault count as a felony or a misdemeanor,

as required by Welfare and Institutions Code section 702; and (3) the court erred by

imposing duplicative punishment on the criminal-threat and assault counts, in violation of

section 654. For reasons we will explain, we reject these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

In October 2018, I.S. was a 17-year-old high school senior. Raymundo did not

attend the same high school, but he and I.S. had known each other since elementary

school and had never had problems with each other.

1 Undesignated statutory references are to the Penal Code.

2 Because Raymundo's appeal implicates the substantial evidence standard of
review, we state the facts in the light most favorable to the juvenile court's disposition.
(In re Janee W. (2006) 140 Cal.App.4th 1444, 1448.)

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 One day during the school lunch break, Raymundo's younger brother (a freshman

at I.S.'s high school) bumped into I.S., and the two got into an argument. Raymundo's

brother apologized, and the incident seemed to blow over.

About one week later, I.S. and his younger brother (a freshman at the same high

school) were walking to I.S.'s car a few blocks from campus after school. Raymundo, his

brother, and two other males got out of a car and started "dogging" I.S. (i.e., staring

aggressively at him). I.S. told his brother, "[Y]ou might want to run, because they're

going to come after me." I.S. estimated Raymundo's group was about 21 feet away when

the incident began. I.S.'s brother initially estimated on direct examination that the groups

were 10-12 feet apart, but on cross-examination he estimated they were "about one house

length" apart.

Raymundo asked I.S., "Can you help me with something?" I.S. saw that

Raymundo was holding a knife about waist-high. The knife looked like a switchblade

with the blade already exposed. Raymundo then raised the knife about head-high and

began "lunging towards" and chasing I.S. I.S. was "in shock" and ran away; his brother

stayed "frozen" in place. Raymundo and his group chased after I.S.

During the foot pursuit, Raymundo yelled, "Fuck Maza," which I.S. understood to

be a gang reference, but it had no significance to I.S. because he was not involved with

gangs. When Raymundo got within 10 feet of I.S., Raymundo told him, "You're going to

die today." I.S. testified, "I just thought my life was going to end at that

moment . . . [b]ecause [Raymundo] [was] was lunging at me with knives and everything."

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I.S. believed Raymundo had the knife exposed throughout the chase, but I.S.

acknowledged on cross-examination that he looked back a few times and did not see it.

At some point, Raymundo and his group abandoned their pursuit of I.S. I.S.

returned to his school, calling 911 on the way. He told the dispatcher that four

"gangsters" had gotten "out of a car, with blades," and were chasing him, but he "got

away from 'em." The 911 call ended when I.S. found a campus security guard, who

contacted the police. I.S. told the police Raymundo was the assailant.

Raymundo was charged with assault with a deadly weapon (§ 245, subd. (a)(1);

hereafter, § 245(a)(1)), with serious felony and gang enhancement allegations (§§ 1192.7,

subd. (c)(23), 186.22, subd. (b)(1)); making a criminal threat (§ 422), with serious felony

and weapon-use enhancement allegations (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1));

and brandishing a weapon (§ 417, subd. (a)(1)), with a gang enhancement allegation

(§ 186.22, subd. (d)). The juvenile court found the offense charges true; dismissed the

gang enhancement allegations for a lack of evidence; and found the remaining

enhancement allegations true. The court declared Raymundo a ward of the court, and

placed him with his mother under the supervision of the probation department.

DISCUSSION

I. Substantial Evidence of Assault With a Deadly Weapon

To commit an assault with a deadly weapon when the weapon used is not

inherently deadly, the perpetrator must use the " 'weapon . . . in such a manner as to be

capable of producing and likely to produce, death or great bodily injury.' " (People v.

Aguilar (1997) 16 Cal.4th 1023, 1028-1029, italics added (Aguilar).) Raymundo

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contends that because he was never within striking distance of I.S. and never made

stabbing or slashing motions with the knife, insufficient evidence supports the juvenile

court's finding that he used the knife in a manner likely to produce death or great bodily

injury. We disagree. Substantial evidence supports the juvenile court's factual findings

that Raymundo was within striking distance—or would have been, had I.S. not taken

evasive action—and used the knife in a manner likely to produce death or great bodily

injury.

A. Background

At the close of the prosecution's evidence, Raymundo moved to dismiss the

assault-with-a-deadly-weapon count on the basis the prosecution had not proven the

charge beyond a reasonable doubt. Raymundo argued that because he merely raised a

knife head-high from 21 feet away, he lacked the present ability to commit an assault and

had not used the knife in a manner "likely to cause injury." Raymundo also argued that

conflicting testimony "create[d] a reasonable doubt as to whether a weapon was even

involved" at all.

The prosecutor countered that Raymundo completed the assault by "pulling out the

knife, raising it up, and then starting [a] pursuit to close th[e] distance to presumably stab

or hurt" I.S.

The court denied Raymundo's motion to dismiss. The court found I.S.'s

"testimony credible . . . that there was a knife." The court further found there was an

adequate evidentiary showing that "[a] knife is capable of causing harm," and was likely

to do so because Raymundo raised it and ran toward I.S.

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 Moments later, in closing argument, the prosecutor distinguished Raymundo's

assaultive conduct from his brandishing conduct. The prosecutor posited that if

Raymundo had merely pulled a knife and stayed put, he would have committed only a

brandishing offense. But by raising the knife and "trying to pursue [I.S.] and close th[e]

distance," Raymundo converted a brandishing offense into an assault with a deadly

weapon. The prosecutor emphasized that the law did not require I.S. to "wait . . . to

actually get stabbed for" Raymundo to have committed an assault.

Raymundo's counsel argued that because I.S. acknowledged he saw the knife only

at the beginning of the incident and not when looking back during the chase, Raymundo

had not used the knife (if at all) in a manner likely to harm I.S.

The juvenile court found that the totality of circumstances—when viewed as a film

"reel" and not as individual "snapshot[s]"—established that Raymundo had committed an

assault with a deadly weapon. The court explained to Raymundo that he committed the

assault by "stepp[ing] out of the vehicle, raising the hand, the victim taking off, [and]

your giving chase . . . ." As to Raymundo's striking-distance theory, the court ruled that

"[t]he law does not require that you actually close the distance or actually make

contact"—it was "the totality of the act" in "attempting to close the distance and, in fact,

closing the distance," that gave rise to liability.

B. Relevant Legal Principles

1. Assault

The crime of assault with a deadly weapon has two components: "(1) the assault,

and (2) the means by which the assault is committed." (People v. Smith (1997) 57

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Cal.App.4th 1470, 1481; § 245 (a)(1) [defining the offense as "an assault upon the person

of another with a deadly weapon or instrument other than a firearm"].)

"An assault is an unlawful attempt, coupled with a present ability, to commit a

violent injury on the person of another." (§ 240.) A defendant has the " ' "present ability

to injure" ' " " ' "[o]nce [he] has attained the means and location to strike immediately." ' "

(People v. Chance (2008) 44 Cal.4th 1164, 1174 (Chance).) In this context, immediacy

means that the defendant has "equip[ped] and position[ed] himself to carry out a

battery . . . , even if some steps remain to be taken, and even if the victim or the

surrounding circumstances thwart the infliction of injury." (Id. at p. 1172.) Thus, an

assault can occur even when the defendant makes no contact with the victim. (Aguilar,

supra, 16 Cal.4th at p. 1028.)

For purposes of assault with a deadly weapon under section 245(a)(1), "a 'deadly

weapon' is 'any object, instrument, or weapon which is used in such a manner as to be

capable of producing and likely to produce, death or great bodily injury.' [Citation.]

Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as

a matter of law; the ordinary use for which they are designed establishes their character

as such. [Citation.] Other objects, while not deadly per se, may be used, under certain

circumstances, in a manner likely to produce death or great bodily injury." (Aguilar,

supra, 16 Cal.4th at pp. 1028-1029.) "Because a knife can be, and usually is, used for

innocent purposes, it is not among the few objects that are inherently deadly weapons."

(People v. Aledamat (2019) 8 Cal.5th 1, 6.) "In determining whether an object not

inherently deadly or dangerous is used as such, the trier of fact may consider the nature of

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the object, the manner in which it is used, and all other facts relevant to the issue."

(Aguilar, at p. 1029.)

In In re B.M. (2018) 6 Cal.5th 528, the California Supreme Court clarified what it

means for an object to be "used in such a manner as to be capable of producing and likely

to produce, death or great bodily injury." (Id. at pp. 532-536.) The minor in In re B.M.

stabbed at her sister's blanket-covered legs using a butter knife. (Id. at p. 531.) The

butter knife did not "pierce" the blanket or cause serious bodily injury to the sister. (Id. at

pp. 531, 536.) On these facts, the Supreme Court found it "questionable" whether the

knife was "capable of causing great bodily injury" (id. at p. 539, italics added), and that

there was insufficient evidence to support that the minor's use of the knife was "likely to

do so" (ibid., italics added).

The In re B.M. court clarified the "likely to cause" prong in several respects. First,

the prong "requires more than a mere possibility that serious injury could have resulted

from the way the object was used." (In re B.M., supra, 6 Cal.5th at p. 534, italics added.)

Second, "the determination . . . must rest on evidence of how the defendant actually 'used'

the object"—"conjecture" about the manner of use is impermissible. (Ibid.)3 Third, "the

extent of actual injury or lack of injury is also relevant" because it "may suggest that the

nature of the object or the way it was used was not capable of producing or likely to

3 Although this second factor prohibits consideration of how the defendant could
have used the object, it allows consideration of "what harm could have resulted from the
way the object was actually used." (In re B.M., supra, 6 Cal.5th at p. 535, italics added.)
That is, "the evidence may show that serious injury was likely, even if it did not come to
pass." (Ibid.)

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produce death or serious harm." (Id. at p. 535.) Finally, the court clarified that "an

aggressor should not receive the benefit of a potential victim fortuitously taking a

defensive measure or being removed from harm's way once an assault is already

underway." (Id. at p. 537.)

Applying these principles, the In re B.M. court explained why insufficient

evidence showed that the minor's use of the butter knife was likely to cause death or great

bodily injury: the butter knife was not sharp; the minor thrusted it only at her sister's

blanket-covered legs and not more vulnerable body parts; the minor used such "moderate

pressure" that the knife neither "pierced the blanket" nor "cause[d] serious bodily injury"

to the sister; and the record did not support that the sister used the blanket defensively

(rather, she had already covered her legs with it because she had just gotten out of the

shower and was trying to cover herself). (In re B.M., supra, 6 Cal.5th at pp. 536-537.)

2. Standard of Review

Whether a perpetrator is within striking distance or uses an object in a manner that

renders it a deadly weapon are questions for the trier of fact, the resolution of which we

review for substantial evidence. (People v. Nguyen (2017) 12 Cal.App.5th 44, 49

(Nguyen) [striking distance]; Aguilar, supra, 16 Cal.4th at p. 1029 [nature of weapon].)

" 'When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the

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judgment the existence of every fact the trier of fact reasonably could infer from the

evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings,

reversal of the judgment is not warranted simply because the circumstances might also

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither

reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias

(2016) 1 Cal.5th 838, 890 (Covarrubias).)

C. Analysis

Considering the record in the light most favorable to the juvenile court's factual

findings, we conclude substantial evidence supports the true finding that Raymundo

committed an assault with a deadly weapon.

I.S. testified Raymundo produced a knife that looked like a switchblade with the

blade already exposed. The juvenile court found this testimony credible and reasonably

inferred from the description of the knife that it was capable of causing harm. Raymundo

raised the knife from waist-high to head-high, indicating he intended to use it in an

offensive manner. Then, rather than merely brandish the knife while standing still,

Raymundo lunged and ran toward I.S. from 10 to 12 feet away.4 This evidence supports

the reasonable finding that, but for I.S. fleeing in fear for his life, Raymundo actually

4 We accept I.S.'s brother's estimate of 10 to 12 feet because it is most favorable to
the juvenile court's ruling. (Covarrubias, supra, 1 Cal.5th at p. 890.) We disregard
Raymundo's assertion that the brother's "house-length" estimate was "most favorable to
the People." It was, in fact, the least favorable.

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used the knife in a way capable of producing, and likely to produce, death or great bodily

injury—that is, as a deadly weapon.

The California Supreme Court upheld an assault conviction on substantially

similar facts in People v. Yslas (1865) 27 Cal. 630 (Yslas). As the high court more

recently summarized its earlier Yslas decision, "In Yslas, the defendant approached within

seven or eight feet of the victim with a raised hatchet, but the victim escaped injury by

running to the next room and locking the door. [The defendant] committed assault, even

though he never closed the distance between himself and the victim, or swung the

hatchet." (Chance, supra, 44 Cal.4th at p. 1174.) The Yslas court explained why the

victim's evasive actions did not immunize the defendant's conduct:

"It is not indispensable to the commission of an assault that the
assailant should be at any time within striking distance. If he is
advancing with intent to strike his adversary and come sufficiently
near to induce a man of ordinary firmness to believe, in view of all
the circumstances, that he will instantly receive a blow unless he
strike in self-defense or retreat, the assault is complete. In such a
case the attempt has been made coupled with a present ability to
commit a violent injury within the meaning of the statute. It cannot
be said that the ability to do the act threatened is wanting because the
act was in some manner prevented." (Yslas, supra, 27 Cal. at p.
634.)

Like the defendant in Yslas, Raymundo approached I.S. with a raised weapon.

(Yslas, supra, 27 Cal. at p. 631.) And like the victim in Yslas, I.S. escaped injury only by

retreating. (Ibid.) Thus, like the defendant in Yslas, Raymundo committed an assault

with a deadly weapon "even though he never closed the distance between himself and

[I.S.], or swung the [knife]." (Chance, supra, 44 Cal.4th at p. 1174, citing Yslas, at pp.

631, 633-634.)

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 Raymundo suggests the 10 to 12 feet at issue here meaningfully distinguishes this

case from the seven or eight feet at issue in Yslas. The Court of Appeal in Nguyen,

supra, 12 Cal.App.5th 44 rejected essentially the same argument.5 The Nguyen

defendant argued that, as a matter of law, he could not have committed an assault with a

deadly weapon because he was 10 to 15 feet away from police officers when he pointed a

knife "in the[ir] direction . . . and took a step toward them." (Id. at pp. 46-47.) The Court

of Appeal "decline[d] to distinguish, as a matter of law, a situation involving seven or

eight feet of separation between the perpetrator and the victim, from that involving 10 or

15 feet," instead finding it was "a factual matter within the province of the trier of fact."

(Id. at p. 49.)

We find the Nguyen court's reasoning persuasive. Thus, we likewise conclude it is

"within the province of the trier of fact" (Nguyen, supra, 12 Cal.App.5th at p. 49) to

determine whether a perpetrator is "advancing with intent to strike" from "sufficiently

near to induce a man of ordinary firmness to believe, in view of all the circumstances,

that he will instantly receive a blow unless he strike[s] in self-defense or retreat[s]"

(Yslas, supra, 27 Cal. at p. 634). The 10- to 12-foot distance at issue here is within a

range the trier of fact could reasonably conclude posed a danger of imminent bodily harm

5 The Nguyen court analyzed the striking-distance issue in the context of the
"present ability" element of assault, rather than the "likely to produce" harm element. We
view these elements as closely interrelated.

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to I.S., absent evasive action. Thus, substantial evidence supports the juvenile court's

rejection of Raymundo's striking-distance defense.6

Nor are we persuaded by Raymundo's contention that because he never made

swinging or stabbing motions with the knife, he did not use it in a manner likely to cause

death or great bodily injury. As noted, the courts have held that an assault with a deadly

weapon can occur even when the defendant never swings the weapon. (See Yslas, supra,

27 Cal. at pp. 631, 633-634; Chance, supra, 44 Cal.4th at p. 1174; People v. Bernal

(2019) 42 Cal.App.5th 1160, 1168 (Bernal) [affirming conviction for assault with a

deadly weapon where the defendant held up a knife to the victim and asked, " 'Do you

want to do this?' "].)

Contrary to Raymundo's suggestion, simply because the juvenile in In re B.M.,

supra, 6 Cal.5th 528 made stabbing motions with a butter knife (id. at p. 531), and the

defendant in People v. Koback (2019) 36 Cal.App.5th 912 made swinging or swiping

motions with the sharp end of a car key (id. at p. 918), does not mean that similar

movements are required to establish an assault with a deadly weapon in every case.

6 Even accepting I.S.'s estimate of 21 feet, we would decline to determine as a
matter of law that such a distance precluded the trier of fact from concluding Raymundo
posed an imminent threat to I.S. (See, e.g., Buchanan v. City of San Jose (9th Cir. 2019)
782 Fed. Appx. 589, 592 ["The 21-foot rule provides that a person at a distance of 21 feet
or less from an officer may pose a threat to the officer's safety."]; Minner, Deadly Force
in the Tenth Circuit (2019) 43 Okla. City U. L.Rev. 171, 195 ["Many police officers are
trained on the [21]-foot rule, which generally provides that a suspect with a knife within
[21] feet of an officer can attack the officer before the officer can react and fire his or her
weapon."].)

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Moreover, because the butter knife and car key at issue in In re B.M. and Koback,

respectively, are less conventionally weapon-like than the switchblade-like knife at issue

here, those courts' extensive discussions about the specific manners in which those

objects were used are less instructive here.

Finally, Raymundo's conduct is not excused merely because I.S. took evasive

action that thwarted the assault. (Yslas, supra, 27 Cal. at p. 634 ["It cannot be said that

the ability to do the act threatened is wanting because the act was in some manner

prevented."]; Chance, supra, 44 Cal.4th at p. 1173 ["an assault may occur even when the

infliction of injury is prevented by environmental conditions or by steps taken by victims

to protect themselves"]; Bernal, supra, 42 Cal.App.5th at p. 1168 ["a jury could

reasonably conclude that the [victim] would likely have been touched with the knife had

he not moved out of the way"]; In re B.M., supra, 6 Cal.5th at p. 537 ["an aggressor

should not receive the benefit of a potential victim fortuitously taking a defensive

measure or being removed from harm's way once an assault is already underway"].)

All things considered, substantial evidence supports the juvenile court's factual

finding that, by lunging and running toward I.S. with a raised switchblade-like knife from

a distance of 10 to 12 feet away, Raymundo used the knife in a manner that likely would

have caused great bodily injury to I.S. had I.S. not taken evasive actions.

II. Express Declaration of Assault as a Felony

Assault with a deadly weapon is a wobbler that can be treated in the court's

discretion as a felony or a misdemeanor. (§§ 17, 245(a)(1); Robert L. v. Superior Court

(2003) 30 Cal.4th 894, 907.) When a minor is found to have committed a wobbler, the

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juvenile court "shall declare the offense to be a misdemeanor or felony." (Welf. & Inst.

Code, § 702.) Raymundo contends the court failed to make this required declaration. We

disagree. The record, as a whole, reflects the juvenile court understood the scope of its

discretion and expressly declared the offense a felony.

A. Background

At the end of the adjudication hearing, the juvenile court made true findings as to

all three offenses and the remaining (i.e., non-gang-related) enhancement allegations. In

calculating Raymundo's maximum exposure, the court designated the assault the

principal offense, the criminal threat the subordinate offense, and the brandishing count

"absorbed in the assault" count under section 654. The court "also note[d] that the

[criminal-threat count] is a wobbler; and based on that fact that it is a wobbler, the Court

determines that the evidence supports that it is a felony." The court did not make similar

oral findings regarding the assault count. The court's minute order for the adjudication

hearing refers to each count as "a felony,"7 and states that, "as to [the criminal-threat

count], the court makes the findings pursuant to [Welfare and Institutions Code section]

702."

In advance of the disposition hearing, Raymundo filed a memorandum asking the

court to "exercise its discretion under Penal Code § 17(b) and reduce Count 1 [assault

with a deadly weapon] and Count 2 [criminal threat] of the petition to misdemeanors."

Specifically, citing Welfare and Institutions Code section 702, Raymundo argued, "The

7 The court later clarified that brandishing is a misdemeanor.

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court has the discretion to reduce the charges listed in Counts 1 and 2 to misdemeanors as

they are both 'wobblers' . . . ." Raymundo reasoned misdemeanor treatment was

appropriate because he would otherwise be "straddle[d] . . . with two strike offenses"

because the criminal threat (ordinarily not a strike) would be "transform[ed] into a strike

for future purposes" because it was committed alongside the aggravated assault (a strike).

At the outset of the disposition hearing, the court told Raymundo, "[Y]our attorney

has filed a disposition memorandum requesting that the court exercise its discretion and

reduce the felony true findings to misdemeanors, so we will have that discussion . . . ."

During that discussion, Raymundo's counsel argued misdemeanor treatment was

warranted because, "in the grand scheme of things, considering the circumstances of this

offense, I don't think it rises to the level . . . where it ultimately ends up strapping

Raymundo with two strikes for the rest of his life."

The prosecutor was "opposed to reducing both of the indicated counts to

misdemeanors" because, "[i]n looking at the facts of this case," Raymundo engaged in

conduct that "elevate[d] the situation, by having the knife there, by chasing the victim, by

telling the victim that, 'You're going to die today.' [¶] This is felony conduct . . . ."

However, the prosecutor acknowledged that if the court were to reduce the aggravated

assault count to a misdemeanor, "then the [criminal threat] will automatically no longer

be a strike."

The court stated it was "wrestling with the request" to reduce the offenses to

misdemeanors. On one hand, the court found it "an almost absurd result" that Raymundo

could receive an "incredibly disproportionate . . . two-strike finding" due to "a quirk in

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the law." But on the other hand, the court said, "I[] . . . still have the reality of what went

down on my mind. [¶] I found it to be a felony, so if the Court makes this reduction in

the future, it's more along the lines of an equitable consideration, which I'm willing to

make, but not today." (Italics added.)

The court deferred ruling and set "a six-month review to specifically address the

issue of the reduction." After advising Raymundo that unsatisfactory performance on

probation could result in a commitment to a state facility, the court ended the hearing on

an optimistic note: "Hopefully the only conversation that we have is the one . . . about

your performance over the next six months, how you're doing. I will make a ruling as to

the request to reduce."

B. Relevant Legal Principles

Welfare and Institutions Code section 702 states in 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." The court is required to make an "explicit declaration" whether

a wobbler offense is a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th

1199, 1204; Cal. Rules of Court, rule 5.780(e)(5) ["the court must . . . expressly declare

on the record that it has made such consideration, and must state its determination as to

whether the offense is a misdemeanor or a felony"].) This rule ensures that the juvenile

court is aware of—and actually exercises—its discretion to treat the offense as a felony or

a misdemeanor. (In re Manzy W., at p. 1207.) If the court did not make the required

express determination, but the record shows it was aware of—and, in fact, exercised—its

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discretion, the matter need not be remanded. (Id. at p. 1209.) However, if the record

does not show such an exercise of discretion, the matter must be remanded. (Ibid.)

C. Analysis

Based on our review of the record as a whole, we conclude the juvenile court

made the informed declaration required by Welfare and Institutions Code section 702.

First, the juvenile court expressly declared the aggravated assault a felony at the

disposition hearing. In weighing Raymundo's request to reduce the assault and criminal-

threat offenses to misdemeanors, the court expressly stated, "I found it to be a felony."

(Italics added.) This statement immediately follows the court's reference to "the reality of

what went down," which we construe as referring to the entire incident (and not, as

Raymundo suggests, only the criminal threat).

Additional context supports our interpretation. The petition alleged the assault

count as a felony and included a serious felony enhancement allegation. The minute

order documenting the adjudication hearing expressly referred to the offense as "a

felony." And the court treated the offense as a felony for purposes of calculating

Raymundo's maximum exposure by designating it the principal offense. Although none

of these factors is sufficient on its own to satisfy Welfare and Institutions Code section

702's express declaration requirement, they are nonetheless helpful in construing the

juvenile court's express oral declaration at the disposition hearing.

Second, the record shows the court was aware that aggravated assault is a wobbler

and that the court had the discretion to treat it as either a felony or misdemeanor. To

begin with, Raymundo explicitly told this to the court in his disposition memorandum.

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And we know the court read the memorandum because the court described it to

Raymundo at the outset of the disposition hearing. The court's description to Raymundo

expressly referenced the "court[']s . . . discretion [to] reduce the felony true findings to

misdemeanors." The court also heard extensive argument from counsel on the issue and

deferred ruling, indicating the court would revisit the reduction request in six months.

Even more fundamentally, the fact the court was considering reducing the assault

count to a misdemeanor at all reflects the court's understanding that the offense was a

wobbler. This is because courts do not have the authority to reduce straight felonies to

misdemeanors; courts can only reduce wobblers. (See Sannmann v. Department of

Justice (2020) 47 Cal.App.5th 676, 683.)

Raymundo argues that because the court's consideration of the wobbler issue arose

in response to his motion to reduce the offense under section 17, and not spontaneously

under Welfare and Institutions Code section 702, the court was not fully aware of its

discretion because "under [section] 17[, subdivision] (b), the court exercises leniency,

while under [Welfare and Institutions Code section] 702, a court must actually adjudicate

whether the evidence reflects a misdemeanor." (Italics added.) But while Raymundo

supports this argument with citations to the standard governing section 17 reductions, he

cites no authorities supporting his argument that a different standard applies to the

"adjudication" he contends is required by Welfare and Institutions Code section 702.

Indeed, that statute says nothing about an adjudication—or a determination or any other

deliberative action—it requires only a declaration. Absent any authority that the court's

awareness of its discretion under section 17 is an insufficient basis to make an informed

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declaration under Welfare and Institutions Code section 702, Raymundo has not met his

burden of showing error.

III. Section 654

For his final challenge, Raymundo contends the juvenile court erred by failing to

stay punishment under section 654 on his criminal-threat count as impermissibly

duplicative of his punishment on the assault count.8 We are not persuaded.

Section 654 "generally precludes multiple punishments for a single physical act

that violates different provisions of law [citation] as well as multiple punishments for an

indivisible course of conduct that violates more than one criminal statute." (People v.

Newman (2015) 238 Cal.App.4th 103, 111-112; People v. Rodriguez (2009) 47 Cal.4th

501, 507.)9 " '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. If all of the offenses were incident to one objective, the defendant

may be punished for any one of such offenses but not for more than one.' " (Rodriguez,

at p. 507.) "If, on the other hand, '[the defendant] entertained multiple criminal

8 Although Raymundo did not raise this argument in the juvenile court, "[e]rrors in
the applicability of section 654 are corrected on appeal regardless of whether the point
was raised by objection in the trial court or assigned as error on appeal." (People v.
Hester (2000) 22 Cal.4th 290, 295.)

9 Section 654 provides in relevant part: "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." (Italics added.)

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objectives which were independent of and not merely incidental to each other, he may be

punished for independent violations committed in pursuit of each objective even though

the violations shared common acts or were parts of an otherwise indivisible course of

conduct.' " (People v. Martin (2005) 133 Cal.App.4th 776, 781; see People v. Leonard

(2014) 228 Cal.App.4th 465, 499 (Leonard).)

"In the absence of any reference to . . . section 654 during sentencing, the fact that

the court did not stay the sentence on any count is generally deemed to reflect an implicit

determination that each crime had a separate objective." (People v. Tarris (2009) 180

Cal.App.4th 612, 626.) "A trial court's express or implied determination that two crimes

were separate, involving separate objectives, must be upheld on appeal if supported by

substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618; see Leonard, supra,

228 Cal.App.4th at p. 499.)

Substantial evidence supports the juvenile court's implicit finding that Raymundo

acted with separate objectives when he assaulted and then threatened I.S. That is, the

court could reasonably have found that Raymundo committed the assault with the

objective of inflicting physical harm on I.S., whereas Raymundo criminally threatened

I.S. with the separate objective of inflicting mental or emotional harm. Courts routinely

recognize similar distinctions. (See, e.g., People v. Mejia (2017) 9 Cal.App.5th 1036,

1047 ["a reasonable trier of fact could conclude that the criminal threats were in

furtherance of a separate criminal objective" of "mentally or emotionally terrorizing the

victim," whereas the objective in committing torture was "the intent to cause extreme

physical pain"]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022 (Solis) [defendant who

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made criminal threats and attempted to burn down victim's house "had distinct objectives:

in making the [criminal] threats, the defendant intended to frighten whereas in

committing arson an hour later the defendant intended to burn"]; People v. Louie (2012)

203 Cal.App.4th 388, 398 ["There was sufficient evidence to support a finding by the

trial court that defendants harbored multiple independent objectives when they threatened

[the victim], then set her apartment on fire."]; People v. Phan (1993) 14 Cal.App.4th

1453, 1466 ["the robbery of [K.D.] and the threat to cut off the hand of her 8-year-old

son . . . were separate and divisible acts"]; People v. Tom (2018) 22 Cal.App.5th 250,

261 ["The court reasonably could have concluded that in strangling [the dog], defendant

intended to kill the dog, and that in putting oil on [the dog]'s body and attempting to light

it on fire, defendant intended to burn the evidence that he had killed the dog thereby

avoiding detection of his crime."].)

Raymundo misplaces his reliance on People v. Mendoza (1997) 59 Cal.App.4th

1333, in which the Court of Appeal concluded the trial court erred by imposing separate

punishments for making a criminal threat and dissuading a witness. But in Mendoza,

"[t]he parties agree[d] [the defendant]'s two convictions arose from a single act" (id. at p.

1346, italics added), whereas Raymundo's assault and criminal-threat counts arose from

separate conduct that the juvenile court could reasonably have concluded were

undertaken pursuant to separate objectives. (See Solis, supra, 90 Cal.App.4th at p. 1022

[finding Mendoza "clearly distinguishable" because "the same conduct formed the factual

basis of both convictions"].)

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 Accordingly, the juvenile court did not err in implicitly concluding section 654 did

not apply.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.

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