Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J32619
RAYE, Acting P. J.The Attorney General concedes both issues raised by the minor K.M. and argues that we should strike great bodily injury and weapons use enhancements with a corresponding reduction of his maximum confinement from eight years four months to four years four months. We agree the court erred by allowing the prosecution to amend the petition midway through the adjudication hearing and by imposing an enhancement for weapon use when the pleading charges defendant with an offense involving use of a weapon. The great bodily injury and personal weapon use enhancements are stricken.
FACTS
The underlying facts involving the minor’s transgressions are irrelevant to the issues on appeal. Suffice it to say, he was involved in a brutal assault involving at least seven people. After five of the victims had testified during the adjudication hearing, the prosecutor sought to add enhancement allegations for personal infliction of great bodily injury (Pen. Code, § 12022.7) and personal use of a weapon (Pen. Code, § 12022, subd. (b)). Defense counsel objected and pressed the objection at the dispositional hearing. The court overruled the objection and allowed the amendment.
DISCUSSION
Section 678 of the Welfare and Institutions Code allows for the amendment of accusatory pleadings in juvenile proceedings. Nonetheless, due process applies. “‘[D]ue process requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense. [Citation.]’ [Citation.] Compliance with this requirement has been held by the Supreme Court to mandate that the minor ‘be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.’ [Citation.]” (In re Robert G. (1982) 31 Cal.3d 437, 442.)
Here, as the Attorney General points out, the prosecution did not seek to amend the accusatory pleading until after the bulk of the prosecution evidence had been presented. Thus, the timing of the amendments did not provide adequate notice of the need to defend against the enhancement allegations. (In re Johnny R. (1995) 33 Cal.App.4th 1579, 1584.) Moreover, the minor was charged with assault with a deadly weapon, but the allegation that he had personally inflicted great bodily injury would not necessarily be included because such an assault can be committed without harmful contact to another. As a result, the petition did not give the minor notice to defend against the great bodily injury allegation, and the violation of due process requires us to strike the enhancement.
We must also strike the personal weapon use enhancement. Penal Code section 12022, subdivision (b)(1) provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” Again, the Attorney General correctly points out that enhancement for the minor’s personal use of a deadly weapon under section 12022, subdivision (b) was improper because his use of a deadly weapon was an element of the Penal Code section 245, subdivision (a) offense. (People v. Summersville (1995) 34 Cal.App.4th 1062, 1069-1070.)
DISPOSITION
The great bodily injury and personal weapon use enhancements are stricken. As modified, the judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.