Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV121895.
OPINION
SIMS, Acting P.J.
Anthony C., a minor, appeals from the juvenile court’s order declaring him a ward of the court and placing him on home probation based upon the court’s finding that he possessed an illegal knife on a public school ground in violation of Penal Code section 626.10, subdivision (a).
Undesignated section references are to the Penal Code.
The minor contends he was denied due process by the juvenile court when it permitted the People to amend the accusatory pleading “to add a charge for possessing a knife with a locking blade on a school campus.” We reject the contention.
PROCEDURAL AND JURISDICTIONAL FACTS
Section 626.10, subdivision (a), criminalizes the possession of any “knife having a blade longer than 2 1/2 inches, [or] folding knife with a blade that locks into place” upon the grounds of a public school providing instruction for kindergarten or grades through 1 to 12.
While serving as a resource officer at a local high school, Sacramento Police Officer Brian Kinney searched the minor and found a “butterfly” knife in his pocket. The minor was charged with “a violation of Section 626.10(a) . . . in that said minor did unlawfully bring and possess a butterfly knife with a 4” blade” on a public school ground.
In a combined motion to suppress evidence and contested jurisdictional hearing, Officer Kinney described a butterfly knife as one which, in a closed position, has two handles which open up like a butterfly’s wings, thereby exposing the blade, and the handles lock open like the handle of a dagger. Officer Kinney opened the knife he found on the minor to be sure it was a butterfly knife. He “manipulated the knife to see if all of its functions” worked and the knife locked in the open position.
The motion to suppress was denied and is not at issue.
The butterfly knife itself was not before the court at the time of the jurisdictional hearing. Instead, in evidence was a photocopy of the knife which was made by Officer Kinney. Using the photocopy, Kinney measured the length of the blade from “where the blade starts”; it was two and three-quarter inches. Kinney also measured the length of the blade from where the sharpened portion of the blade starts; it was “at least 2 9/16 inches.”
At the close of the People’s case, the minor argued, among other things, that because of the poor quality of the photocopy, it could not be determined whether the blade actually exceeded the two and one-half inches required by section 626.10. The court accepted the minor’s argument and found a reasonable doubt as to the blade’s length. However, the court did not have a reasonable doubt that the knife, although described as a butterfly knife, was a folding knife with a blade that locked into place. Concerned with whether it could amend the petition by adding language that the butterfly knife was one with a blade that locked in place, the court continued the hearing for the parties to brief the issue.
Approximately one month later court reconvened. Reasoning that a butterfly knife is simply a specific kind of folding knife with a blade that locks, the court permitted the charge to be amended to read that the minor possessed a “folding knife with a blade that locks into place, to wit, a butterfly knife.” As amended, the court sustained the petition.
DISCUSSION
The minor contends, as he did in the court below, that the amendment prejudicially denied him due process by charging a new and different offense. For reasons to follow, we conclude the juvenile court correctly analyzed the propriety of permitting the amendment and that the minor suffered no prejudice thereby.
It is fundamental that “[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]” (In re Robert G. (1982) 31 Cal.3d 437, 440-442.) These principles are equally applicable to juvenile proceedings. (Id. at p. 442.) However, “[T]he juvenile court has discretion to permit amendment of a juvenile court wardship petition to correct or make more specific the factual allegations supportive of the offense charged when the very nature of the charge remains unchanged.” (In re Man J. (1983) 149 Cal.App.3d 475, 481.)
Here, contrary to the minor’s claim, the amendment produced no change in the charge. Section 626.10 proscribes possession of a “knife having a blade longer than 2 1/2 inches” or a “folding knife with a blade that locks into place.” These two categories are not mutually exclusive. That is to say, possession of a knife with a blade that locks into place and which has a blade in excess of two and one-half inches is within the scope of both categories.
Per the testimony of Officer Kinney, a butterfly knife is a folding knife with a blade that locks into place. Thus, a butterfly knife is a member of the class of folding knives with blades that lock into place. This being the case, the amendment to the petition simply explained the general statutory category into which the butterfly knife fell and, therefore, did not alter the charge.
The minor claims the amendment prejudiced him because “[w]hen the prosecution presented its case the charge was only that the blade exceeded the permitted [two and one-half inch] length”; that a continuance “would not have cured anything”; and that “[i]t is impossible to know how the defense might of [sic] cross-examined Officer Kinney or otherwise scrutinized the prosecution’s proffered evidence had the defense known in advance that the locking feature would be at issue.” No prejudice has been shown.
All of the minor’s reasons purporting to have prejudiced him rely on his initial claim that the amendment charged a new offense, thereby depriving him of notice of the charge against which he must defend. Since there was no new charge, i.e., the minor was charged with possession of a butterfly knife, which is a folding knife with a blade that locks into place, he was on notice of the charge and cannot claim otherwise.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.