Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DL033233, Donna L. Crandall, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
Introduction
The juvenile court adjudged Jose T. (the Minor) a ward of the court under Welfare and Institutions Code sections 602 and 725, subdivision (b), after finding true beyond a reasonable doubt the allegations of an amended wardship petition charging the Minor with possession of a knife on school grounds (Pen. Code, § 626.10 [count 2]) and brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1) [count 3]). The court dismissed count 1, for aggravated assault in violation of Penal Code section 245, subdivision (a)(1). The court placed the Minor in the custody of the probation department for commitment to juvenile hall for 33 days (with credit for 33 days served) and placed him on formal supervised probation.
The Minor argues the juvenile court violated his due process rights by (1) granting the People’s motion on the day of the hearing to amend the wardship petition to add count 2, and (2) granting the People’s motion after the close of the People’s case to amend the wardship petition to add count 3. In addition, the Minor argues the allegations of count 2 were defective because they erroneously specified the subdivision of the statute under which he was charged.
We conclude the juvenile court did not violate the Minor’s due process rights by granting the People’s motion to amend the wardship petition with count 2, and the error in specifying the subdivision of Penal Code section 626.10 did not mislead the Minor. The Attorney General concedes the juvenile court erred in granting the motion to amend the wardship petition to add count 3. We affirm the true finding on count 2, and reverse the true finding on count 3 with directions to dismiss that count.
Facts
On the morning of November 13, 2008, at around 7:45 a.m., E.E., a student at an elementary school, was playing soccer on the school’s field. The Minor approached E.E. and asked him, “why [he] was talking about [the Minor] or saying things about [the Minor].” The Minor was accompanied by another student, Hugo S. E.E. asked the Minor, “who said I was talking about him.” The Minor said it was Sean H., another classmate. The Minor and E.E. were about five feet apart during this exchange.
The Minor reached into his pocket, removed a pocketknife with his right hand, and pointed the blade toward E.E. Seeing the knife blade, E.E. became scared and slowly backed away. The Minor moved toward E.E., who asked the Minor why he pulled the knife. The Minor replied he wanted to fight; E.E. retorted he would fight. The confrontation ended when the Minor put the knife in Hugo S.’s backpack, E.E. pushed the Minor, and each then walked away.
Procedural History
In November 2008, the Orange County District Attorney filed a petition under Welfare and Institutions Code section 602, charging the Minor with one count (count 1) for aggravated assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). At the beginning of the disposition hearing on December 15, 2008, before any evidence was presented, the People moved to amend the petition to add a second count (count 2) for possession of a knife on school grounds in violation of Penal Code section 626.10. The Minor’s counsel objected, stating: “I object on the basis of timeliness. This matter has been trailed throughout time. It is a different charge. It is not necessarily related out of this case and I would just say—out of timeliness I would object to it.”
The juvenile court and the People incorrectly specified subdivision (c) instead of subdivision (a) of Penal Code section 626.10.
The juvenile court granted the motion to amend, stating: “[T]he allegation as I understand it is that your client had the knife and lunged at the victim with the knife. So I don’t see where there is a lack of notice that he is alleged to have had a knife on school grounds.”
The next day, after the conclusion of the People’s case, the Minor’s counsel moved to dismiss count 1. The court granted the motion. The People then moved to add a third count (count 3) for brandishing a deadly weapon, in violation of Penal Code section 417, subdivision (a)(1). The Minor’s counsel opposed, arguing the motion was untimely and brandishing a deadly weapon is not a lesser included offense of assault with a deadly weapon.
The juvenile court granted the motion to add count 3, stating: “Okay, I’ll accept your [the Minor’s counsel’s] representation [that Penal Code section 417, subdivision (a)(1) is not a lesser included offense of Penal Code section 245]. [¶] However, I do feel that this does amount to a brandishing, and I do believe that the [People] can amend to conform to proof at any point in the proceedings. [¶] And, with that, the court will allow the proposed amendment and we will add a count 3, violation of Penal Code section 417, a misdemeanor, on the same date, November 13th, 2008.”
The juvenile court dismissed count 1. In the dispositional order, the court found true beyond a reasonable doubt the allegations in counts 2 and 3 of the amended wardship petition, and adjudged the Minor to be a ward of the court. The Minor timely appealed.
Discussion
I.
The True Finding on Count 2 Is Affirmed.
A. The Amendment Adding Count 2 Was Not Untimely.
In juvenile cases, the provisions of the Code of Civil Procedure rather than the Penal Code govern amendments to the wardship petition (Welf. & Inst. Code, § 678), so long as those provisions comport with due process. (In re Man J. (1983) 149 Cal.App.3d 475, 480-481 (Man J.).) Due process is satisfied when (1) the trier of fact finds the minor committed a lesser included offense of that charged, (2) the trier of fact finds the minor committed a lesser related offense expressly pleaded in the wardship petition, or (3) the minor was notified in writing of the specific charge “‘at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.’” (In re Robert G. (1982) 31 Cal.3d 437, 442-443 (Robert G.).)
Possession of a knife on school grounds is not a lesser included offense of assault with a knife because assault can be committed without necessarily possessing the knife on a school ground. (See Robert G., supra, 31 Cal.3d at p. 444.) The wardship petition here, although alleging assault with a knife, did not allege the assault occurred on school grounds. Thus, the accusatory pleading in this case did not specifically allege possession of a knife on school grounds as a lesser related offense.
The amendment adding count 2 comported with due process only if it was made “‘at the earliest practicable time,’” or at least “‘sufficiently in advance of the hearing’” to permit the Minor to prepare a defense. (Robert G., supra, 31 Cal.3d at p. 442.) In Robert G., the wardship petition alleged the minor committed an assault with a deadly weapon by throwing a rock at a school custodian. (Id. at p. 439.) At the end of the People’s case, the minor moved for acquittal on the ground the evidence had shown he threw a one-inch rock, which is not a deadly weapon. (Ibid.) The juvenile court denied the motion, and, after the minor rested without presenting evidence, sustained the petition on the ground the evidence established the minor had committed a battery. (Id. at pp. 439-440.) The California Supreme Court reversed on the ground the amendment violated due process. (Id. at p. 439.)
The Robert G. court explained the due process notice requirement is satisfied “‘when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense’ [citations] or when ‘the lesser offense is “necessarily included” within the statutory definition of the charged offense....’” (Robert G., supra, 31 Cal.3d at pp. 440-441, quoting People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) However, the wardship petition in Robert G. did not allege battery, and battery is not a lesser included offense of assault with a deadly weapon. (Robert G., supra, 31 Cal.3d at p. 441.) The court rejected the argument that amendments to the accusatory pleading should be allowed unless the minor can show prejudice, and concluded: “[A] wardship petition under [Welfare and Institutions Code] section 602 may not be sustained upon findings that the minor has committed an offense or offenses 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.” (Id. at p. 445.) Due process required that the minor “‘have adequate notice of the charge so that he may intelligently prepare his defense.’” (Id. at p. 442.) Adequate notice means “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.’” (Ibid., quoting In re Gault (1967) 387 U.S. 1, 33.)
In Man J., supra, 149 Cal.App.3d at pages 477-478, the wardship petition charged the minor with malicious destruction of cars belonging to S. Wagner. At the close of the prosecution’s case, the juvenile court denied the minor’s motion to dismiss and ordered the wardship petition amended to allege malicious destruction of cars belonging to S. Wagner “‘and others.’” (Id. at p. 478.) After evidence was presented on the condition of the other cars, the juvenile court sustained the petition. (Id. at pp. 477, 479.)
The minor argued on appeal the court’s amendment of the wardship petition violated his due process rights. (Man J., supra, 149 Cal.App.3d at p. 479.) Affirming, the appellate court distinguished Robert G., supra, 31 Cal.3d 437 by noting the amendment in that case added a new offense. (Man J., supra, 149 Cal.App.3d at p. 479.) In contrast, the amendment challenged by the minor in Man J. only corrected the allegation that all the damaged cars belonged to. S. Wagner. (Ibid.) Analogizing to Penal Code section 1009, which governs amendments in criminal cases, the court concluded, “the 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.” (Man J., supra, 149 Cal.App.3d at p. 481.)
In In re Johnny R. (1995) 33 Cal.App.4th 1579, 1581 (Johnny R.), the wardship petition charged the minor with assault with a deadly weapon. After examination of a prosecution witness, the court permitted an amendment to the petition to allege a weapons violation under Penal Code section 12020, subdivision (a). (Johnny R., supra, 33 Cal.App.3d at p. 1582.) At the end of trial, the juvenile court dismissed the assault count and sustained the weapons count. (Id. at p. 1583.) The appellate court concluded Robert G., supra, 31 Cal.3d 437 was applicable and reversed: “The only distinction between this case and In re Robert G. is the point in the trial at which the prosecutor was allowed to amend the petition. Here, the amendment was during the prosecution’s case, but after the direct examination of its principal witness. In Robert G., it was after the close of evidence. We see no meaningful distinction between the facts of the two cases. The trial here had commenced and the minor had never been put on notice of a need to defend against the weapons charge.” (Johnny R., supra, 33 Cal.App.4th at p. 1584.)
The amendment adding count 2, unlike the amendment in Man J., supra, 149 Cal.App.3d 475, did not correct the allegations of the wardship petition or make them more specific, but added a new charge for possession of a knife on school grounds. However, unlike Robert G. and Johnny R., the amendment to the wardship petition in this case was made at the commencement of the hearing, before either party presented evidence. Count 1 of the wardship petition alleged the Minor committed an assault on E.E. with a knife. There was never any question the alleged assault occurred on a school ground. Thus, whether the Minor possessed a knife on a school ground was an issue since the outset of the case. As the juvenile court remarked, “the allegation as I understand it is that your client had the knife and lunged at the victim with the knife. So I don’t see where there is a lack of notice that he is alleged to have had a knife on school grounds.”
In light of the facts of this case, the amendment adding count 2 was made sufficiently in advance of the hearing to permit the Minor to prepare a defense. The juvenile court therefore did not err in permitting the amendment.
B. Erroneous Identification of the Pertinent Subdivision Did Not Mislead the Minor.
Possession of a knife on school grounds is a misdemeanor under Penal Code section 626.10, subdivision (a). The Minor argues the amendment adding count 2 erroneously alleged a violation of section 626.10, subdivision (c). The court minutes include this notation: “Court ordered petition amended by interlineation as incorporated in the original petition[,] to wit: to add, ‘Count 2, 626.10 (C) PC, misdemeanor[.’]”
Charging a defendant under the wrong statute is “‘of no consequence’” when the defendant is informed of the nature of the offense and has not been misled by the error. (People v. Thomas (1987) 43 Cal.3d 818, 826-827.) On the first day of the hearing in this case, before presentation of evidence, the People moved “to amend the petition to add a count 2, a misdemeanor charge of [Penal Code section] 626.10, a misdemeanor, on the same date.” The Minor’s counsel objected, arguing, “[i]t is a different charge.” This exchange followed:
“The Court: “Let me just see what the elements of that charge are. Well, the charge is possession of a weapon. Specifically I am assuming [Penal Code section] 626.10[, subdivision] (c) is
“[Counsel for the People]: Correct. A knife with a locking blade.
“The Court: —A knife with a locking blade longer than two-and-a-half inches.”
The error in identifying the correct subdivision of Penal Code section 626.10 could not have misled the Minor because his counsel was present at the hearing and was on notice as to the intended charges. That error therefore does not justify reversal of the true finding on count 2.
II.
The True Finding on Count 3 Is Reversed.
The Attorney General concedes the juvenile court erred in granting the motion to amend the wardship petition by adding count 3. We agree. Brandishing is not a lesser included offense of assault with a deadly weapon (People v. Steele (2000) 83 Cal.App.4th 212, 218), and the wardship petition did not describe the charged offense in a way that would necessarily include brandishing (In re Alberto S. (1991) 226 Cal.App.3d 1459, 1464). The motion to amend to add count 3 was untimely because it was not made until after the People rested. (See Robert G., supra, 31 Cal.3d at pp. 440, 445.) We therefore reverse the true finding on count 3 and remand with directions to the juvenile court to dismiss that count.
Disposition
The true finding on count 2 is affirmed. The true finding on count 3 is reversed with directions to dismiss that count. Because the juvenile court made a single disposition order based on the true findings on both count 2 and count 3, we remand with directions to issue a new disposition order.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.