Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. 34057-J
Marchiano, P.J.
J.L. appeals a dispositional order of the Sonoma County Juvenile Court, entered February 20, 2008, which established him as a ward of that court under Welfare and Institutions Code section 602. He challenges the court’s underlying jurisdictional finding, that he committed petty theft, a misdemeanor violation of Penal Code section 484, and contends the court also erred when it ordered reimbursement under section 903.1 in the sum of $100. As discussed below, we agree the jurisdictional finding is erroneous and reverse the dispositional order. We also direct the juvenile court to follow the statutory procedure set out in section 903.45 prior to issuing any new order of reimbursement pursuant to section 903.1.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
On January 10, 2008, a neighbor observed two male youths enter the back yard of a residence in Windsor. She saw one enter the residence through a back door, while the other—the minor J.L.—remained in the yard. She did not recognize either youth and called the police. The neighbor then saw the minor enter the residence. Both youths thereafter reemerged and exited the back yard, with the minor pushing a bicycle. Police had by then arrived at the scene. They recovered some jewelry and cash from the minor’s companion, and, after arresting the youths, left the bicycle at the residence.
The owner of the residence later identified the jewelry as hers. She also identified the minor and his companion as individuals who had visited with her son in the past, but said it had been “a good year” since either had visited, and confirmed that she had given neither youth permission to enter her back yard or residence. The owner further stated, on cross-examination, that the minor and her son had in the past borrowed bicycles from one another. The owner’s son confirmed the minor was a friend of his, who in the past might sometimes borrow his bicycle, but testified he had not given the minor permission to enter his residence on the date of the incident, and had not exchanged bicycles with his friends “for a while.”
The minor admitted he took a “junkie” bicycle from the back yard of the residence. The bicycle appeared “functiona[l]” to him and he recognized it as one that had been “passed around” among his friends. He intended only to borrow it, according to the former custom of friends, who included himself and the son of the owner of the residence. The minor testified he did not know that his companion had taken anything from inside the residence, and said he himself went inside the back door only a few feet, and only for a moment, to get his companion to come out so they could leave.
The day following this incident, the district attorney filed a petition pursuant to section 602 that alleged the minor had committed felony violations of Penal Code sections 459 (burglary) and 496 (receiving stolen property).
At the jurisdictional hearing, held on February 4, the juvenile court heard the foregoing evidence and concluded the minor had not committed burglary, but rather a “misdemeanor theft.” The court asked: “So am I allowed to conform to proof?” After the district attorney replied in the affirmative, the court found “the petition true as amended [and] [c]onformed to proof.” That is, the court stated that it found true “a [misdemeanor] violation of Penal Code section 484.” The minute order in turn directed the dismissal of the two counts alleging felony violations of Penal Code sections 459 and 496. It further indicated the petition had been “[a]mended on [its] face” to add a third count—a misdemeanor violation of Penal Code section 484—and that the court had found this third count to be true beyond a reasonable doubt. As it appears in the record, however, the petition was not amended on its face, and does not set out an additional third count alleging a misdemeanor violation of Penal Code section 484.
On February 20, 2008, the juvenile court held its dispositional hearing, declared the minor to be a ward, and placed the minor in his father’s home with probationary terms. The dispositional order additionally directed that the “[p]erson(s) liable for the support of the minor shall pay the sum of [] $100 [] for reimbursement of defense counsel per 903.1 W & I.” This appeal followed. (§ 800, subd. (a).)
Discussion
A. The Jurisdictional Finding of Misdemeanor Theft
As we have noted, the juvenile court found true beyond a reasonable doubt that the minor had committed a misdemeanor violation of Penal Code section 484—that is, petty theft. (See Pen. Code, §§ 487, 488, 490.) The minor contends it was error for the court to do so, because the petition did not allege this violation, petty theft is not a lesser included offense of either of the violations that the petition did allege, and he never consented to the substitution of this charge. The Attorney General concedes the finding was erroneous and requires reversal of the judgment.
We agree. “The ‘preeminent’ due process principle . . . requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d 294, 317.) Thus, a juvenile court may not sustain a petition under section 602 “upon findings that the minor has committed an offense . . . other than one specifically alleged in the petition or necessarily included within an alleged offense, unless the minor consents to a finding on the substituted charge.” (In re Robert G. (1982) 31 Cal.3d 437, 445.)
Here the petition did not specifically allege a violation of Penal Code section 484, and it does not appear that such a violation is necessarily included within either of the specified alleged violations. An offense is “necessarily included” when the statutory definition of the charged offense cannot be committed without also committing the lesser offense, or when the charging allegations include language describing the offense in such a way that commission of the acts described necessarily constitute commission of the lesser offense. (In re Alberto S. (1991) 226 Cal.App.3d 1459, 1463-1464 (Alberto S.).) The petition in this case alleged that the minor (1) “did enter an inhabited dwelling house . . . with the intent to commit larceny and any felony;” and (2) “did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding property, to wit, MONEY, JEWELRY, AND A BICYCLE, which had been stolen, knowing that said property had been stolen.” Such allegations merely restate the statutory definitions of burglary and receipt of stolen property set out respectively in Penal Code sections 459 and 496, subdivision (a). The commission of these allegations, or the acts they describe, does not in either case result necessarily in a theft, which is defined as an act by which a person “feloniously steal[s or ] take[s] . . . the personal property of another.” (Pen. Code, § 484, subd. (a).)
Nor can it be said that the minor consented to the juvenile court’s finding on the substituted charge. The record shows that the court made no prior indication that it intended at the conclusion of the jurisdictional hearing to find true an uncharged allegation of theft. The minor had no warning or notice that he would be subjected to such a charge, in effect a lesser related offense. Thus, the failure of minor’s trial counsel to object at the time the court made its finding cannot support an inference that the minor consented to that finding. (See Alberto S., supra, 226 Cal.App.3d at p. 1465.) Moreover, by its dismissal of the charged offenses, the court effectively acquitted the minor. It thus exceeded its authority when it proceeded to find that the minor had committed an uncharged violation of Penal Code section 484. (Alberto S., supra, at p. 1466; see also People v. Parks (2004) 118 Cal.App.4th 1, 7.)
For these reasons, the judgment resulting from the juvenile court’s erroneous jurisdictional finding must be reversed.
As such,we need not reach the minor’s other arguments for reversal.
B. Reimbursement of Defense Counsel Costs Under Section 903.1
A parent or other person liable for support of a minor is also liable for costs to the county of legal services rendered by a public defender, public attorney, or other attorney appointed by a juvenile court to defend or represent the minor in a dependency or delinquency proceeding. (§ 903.1, subd. (a).) The juvenile court in this case appointed a public defender to represent the minor at the time of the detention hearing. As we have noted, the court in its dispositional order directed “reimbursement” pursuant to section 903.1 in the sum of $100, to be paid by the “[p]erson(s) liable for the support of the minor . . . .”
The minor contends the order of reimbursement was error because the juvenile court failed to follow the proper statutory procedure, and in particular made no prior finding of the “liable” parent’s ability to pay.
We will assume the minor has standing to raise this issue, to the extent his estate may also be liable for the payment of any enforceable reimbursement order. (See § 903.1, subd. (a).) Further, we address the issue notwithstanding our reversal of the judgment, because it appears the juvenile court, on remand, may order reimbursement regardless of its ultimate disposition. A person liable for a minor’s support is not liable for a county’s defense costs in a juvenile proceeding only in circumstances that cannot apply here—when the juvenile court has dismissed a dependency petition under section 300 at or before the jurisdictional hearing. (§ 903.1, subd. (b).)
For purposes of proceedings on remand, we simply direct the juvenile court’s attention to the procedures that apply to an order of reimbursement of the defense costs for which a parent may be liable under section 903.1. In particular, the juvenile court, at the close of the dispositional hearing, may direct a person liable under section 903.1 to appear for a financial evaluation of his or her ability to pay reimbursement costs, before a county officer appointed for that purpose. (§ 903.45, subd. (b).) If the officer determines that a liable parent has the ability to pay all or part of the reimbursement of defense costs, that officer “shall petition the court for an order” requiring the liable parent to pay the county the sum so determined. (Ibid.) If the liable parent and the county officer cannot reach an agreement regarding the terms and amount of reimbursement, the parent has a right to a hearing before the court to challenge the county officer’s determination. (Ibid.) In evaluating a parent’s ability to pay, both the officer and the court must consider several specified factors. (Ibid.)
In this case, the record indicates compliance only with the first step of the foregoing procedures. That is, the juvenile court’s dispositional order directed the probation officer to “investigate [the] parent(s) . . . for reimbursement.” On remand, any new order of reimbursement of defense costs under section 903.1 must comply with all the procedures mandated by section 903.45.
Disposition
The judgment is reversed and remanded for further proceedings consistent with this opinion.
We concur: Margulies, J. Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.