From Casetext: Smarter Legal Research

In re Joshua E.

California Court of Appeals, Second District, Second Division
Sep 17, 2008
No. B201623 (Cal. Ct. App. Sep. 17, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Catherine J. Pratt, Commissioner, No. JJ5101

Jonathan B. Steiner and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.


CHAVEZ, J., J.

The juvenile court conducted a jurisdictional hearing on a petition alleging that Joshua E. (minor) had committed two counts of attempted forcible rape (Pen. Code, §§ 664/261, subd. (a)(2)) (counts 1 and 2) and two counts of sexual battery by restraint (§ 243.4, subd. (a)) (counts 3 and 4). During the hearing, the juvenile court granted the People’s motion to amend counts 1 and 2 to allege that minor had committed assault with intent to commit rape in violation of section 220. At the close of the hearing, the juvenile court amended counts 1 and 2 to categorize the offenses as assault with intent to commit sexual assault and found true counts 1 and 2 as amended. The allegations in counts 3 and 4 were found not true and dismissed.

All statutory references are to the Penal Code unless otherwise indicated.

The juvenile court declared minor a ward of the court pursuant to Welfare and Institutions Code section 602 and declared the offenses to be felonies. The juvenile court placed minor at home under terms and conditions of probation.

Minor appeals on the grounds that: (1) his conviction must be reversed because he was convicted of a nonexistent crime, and (2) in the alternative, the juvenile court’s true finding must be reversed because the petition was improperly amended after jeopardy attached and minor was denied his constitutional right to due process.

FACTS

Prosecution Evidence

Following an after school tutoring session, Jane B., Jane S., minor, and several boys were sitting on a bench in their school at approximately 4:30 p.m. Minor asked another boy, J., to jump through the window of a locked classroom and open the door. Minor said he was going to take someone into the classroom, and he looked at Jane B. and Jane S. Minor tugged on Jane B.’s arm and pulled her into the classroom. The door closed, and minor began dragging Jane B. into the back of the room. Jane B. ended up leaning on a table while minor tried to pull down her pants as he pressed against her. Jane B. was pushing against minor and was also trying to pull up her pants from the back. Minor kept repeating, “You might as well.” Jane B. felt that she was going to be raped. After Jane B. pulled up her pants for the third time, minor let her go.

As in the petition, we refer to the victims as Jane B. and Jane S.

Jane B. walked out of the room, got her backpack and began to walk off. As Jane S. was leaning over the bench getting her backpack, minor grabbed Jane S., pulled her into the room, and closed the door. When Jane S. entered the room with minor, Jane B. did not hear anything coming from the room at first. She began knocking on the door, and she heard furniture being moved around.

Minor and Jane S. went to the back of the room. Jane S. leaned against a table and minor pushed her back. Her legs were up in the air, and minor pulled her pants and panties up with both hands as she lay on her back. Her arms were at her side. She was able to move her arms and she remembered slapping minor once and kicking. When asked if minor tried to restrain her arms, she said that he held her wrists together with two hands and that this occurred after he had pulled her pants and panties toward her knees. Minor told Jane S. that she might as well not fight it because she knew he was stronger than she. He then said that he “was seeing which one of you was going to be the first,” and that was when he let her go. When Jane S. came out of the room, she “stormed off.” Jane B. and Jane S. then left the building together.

On the following day, Mr. A., one of Jane B.’s English teachers, saw that Jane B. was “unusually reserved from her normal behavior, and she seemed sick.” He therefore approached her to see if everything was all right and told her to let him know if she needed to talk to him about anything. Jane B. later spoke with him and told him what minor had done. Jane B. said she was trying to stop minor but he was too strong. Jane S. joined Mr. A. and Jane B. When Mr. A. asked if she had anything to say, Jane S. said, “No. That’s pretty much it.”

Defense Evidence

J. testified that he, minor, Jane B., Jane S., and some other boys were talking together when the subject of sex came up. Jane S. initiated the conversation about who was a virgin and who was not. J. was told to climb through the window and open the classroom door. There was some conversation about who was going into the room. J. did not remember which girl went into the room first. When the first girl went into the room with minor, the rest of the boys climbed up to the window and watched the girl and minor hugging, kissing, and talking. The other girl sat outside on the bench. After approximately 15 seconds, minor and the first girl came out. J. had not seen anyone’s pants being lowered.

The girl who had remained outside was laughing, and the one who had been inside the room told her to go into the room. Everyone was laughing, and one of the boys was chasing the second girl. She then went into the room with minor. All the boys went back to the window and watched them hugging and kissing. The other girl remained standing by the bench. Minor and the second girl came out after approximately 15 seconds. Everyone was laughing, and the two girls left.

DISCUSSION

I. Proceedings Below

After the first victim had testified, the juvenile court granted the People’s motion to amend counts 1 and 2 to read: “Assault with intent to commit rape in violation of Penal Code section 220” instead of attempted rape. At the close of the jurisdictional hearing, the juvenile court partially sustained the petition. The court stated, “Well, I have considered the evidence of all four witnesses and, frankly, it’s not particularly easy to sort out what happened in this situation. But based upon the information that I have considered, the evidence of those four witnesses, I am going to find the counts 1 and 2 of the May 29, 2007, petition to be true as amended with one exception. I believe that the offense itself should be referred to as assault with intent to commit sexual assault.” The court then explained its credibility assessments and concluded by saying, “So with all of that information, I am going to find beyond a reasonable doubt that the allegations are true as amended.”

II. Argument

Minor contends that because “assault with intent to commit sexual assault” is not punishable as a crime in California, his conviction cannot stand. Since assault is itself an attempt to commit a crime, “assault with intent to commit sexual assault” unreasonably convicts minor of an unlawful attempt to commit an unlawful attempt to commit rape. Minor also contends that, because the juvenile court found minor guilty of assault with intent to commit sexual assault, it impliedly acquitted minor of the charged crime, and principles of double jeopardy bar amending the petition to add related offenses arising from the same transaction. Therefore, the true finding must be reversed and the petition must be dismissed.

Minor argues in the alternative that, because assault with intent to commit rape is an offense greater than attempted rape, the juvenile court erred in allowing the prosecutor to amend the petition. Minor adds that if this issue is deemed forfeited, his trial counsel was ineffective in failing to object.

Respondent agrees that the offense named by the juvenile court does not exist. Respondent contends, however, that the record is unclear regarding the juvenile court’s order, and the matter should be remanded to allow the juvenile court to clarify which section of the Penal Code it found minor to have violated.

With respect to minor’s alternative argument, respondent argues that minor forfeited his claim regarding improper amendment of the petition. Respondent also contends that minor’s counsel was not ineffective because counsel could reasonably have concluded an objection was not warranted, since the petition provided notice that appellant was charged with conduct constituting assault in counts 3 and 4. Furthermore, any objection likely would have been overruled and thus no prejudice occurred.

III. Reversal Required

We agree with minor and respondent that the offense of assault with intent to commit sexual assault does not exist. The term “assault,” is defined in section 240 as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Therefore, the offense of which minor was convicted was tantamount to an attempted assault. In California, there is no offense of “attempted assault.” (See In re James M. (1973) 9 Cal.3d 517, 521-522 (James M.); People v. Toledo (2001) 26 Cal.4th 221, 231-232.)

It is true that discrepancies exist in the record. The minute order of the jurisdictional hearing states that the May 29, 2007, petition was amended by interlineation as reflected on its face by amending counts 1 and 2. The minute order then states that counts 1 and 2 were found true and the petition was sustained as amended. Counts 3 and 4 were dismissed as untrue. The petition was amended by interlineation in count 1 to read that the crime of “assault w/ intent to commit sexual assault found true after trial” (the word “rape” was written after “commit” and then crossed out). In count 2, the interlineation reads “assault w/ intent to commit rape PC 220 found true after trial.” This appears to indicate that two different crimes were found true in counts 1 and 2. It is clear, however, from the oral pronouncement of judgment, quoted ante, that the juvenile court did not believe minor was guilty of assault with intent to commit rape. The juvenile court “believe[d] that the offense itself should be referred to as assault with intent to commit sexual assault.” We agree with minor that the oral pronouncement of judgment is controlling. (§ 1207; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188; People v. Mesa (1975) 14 Cal.3d 466, 471.)

We also agree with minor that the petition cannot now be amended. In James M., the court held that a finding that a person “was guilty only of attempted assault . . . constituted an implied acquittal of the charged assault itself,” and the person “could not be tried again for an offense of which he had been acquitted.” (James M., supra, 9 Cal.3d at p. 520.) “Protection against double jeopardy applies to juvenile offenders as well as to adults.” (Ibid.) The same reasoning applies in the instant case. Therefore, minor cannot be tried again for the offense of which he has been acquitted, i.e., for the violation of section 220, without placing him twice in jeopardy. (§ 1118.2; U.S. Const., 5th Amend.; Cal. Const., art. I, § 15; see People v. Duens (1976) 64 Cal.App.3d 310, 314-315.)

Given our determination with regard to double jeopardy we need not consider minor’s second argument. However, we note that minor’s second argument is also valid, i.e., that the juvenile court erred by allowing the prosecutor to amend the petition midtrial to charge two counts of assault with intent to commit rape (§ 220) instead of attempted forcible rape (§§ 664/261, subd. (a)(2)). The California Supreme Court observed in People v. Rupp (1953) 41 Cal.2d 371, 382 that “an assault with intent to commit rape is . . . an aggravated form of an attempted rape . . . .” (See also People v. Ghent (1987) 43 Cal.3d 739, 757 [same].) It is noteworthy that the punishment for assault with intent to commit rape is greater than that of attempted rape. The range of prison terms for a violation of section 220 is two years, four years, or six years. Because the range of prison terms for rape is three years, six years, or eight years, the punishment for attempted rape (half of these terms) is 18 months, three years, or four years. (§§ 664, subd. (a), 264, subd. (a).) Moreover, a violation of section 220 is a violent offense within the meaning of section 667.5, subdivision (c). Assault with intent to commit rape is therefore not a lesser included offense of attempted rape, and the petition should not have been amended to include this offense.

The case law refutes respondent’s arguments on this point. In In re Robert G. (1982) 31 Cal.3d 437 (Robert G.), the minor argued that his right to due process was violated because he was not given adequate notice that the People would seek to sustain the petition based on an offense that was not charged and was not a necessarily included offense of the charged offense. (Id. at pp. 439, 440.) The California Supreme Court agreed with the minor, relying on People v. Lohbauer (1981) 29 Cal.3d 364 (Lohbauer), where an adult criminal defendant’s conviction of an offense not necessarily included in the charged offense could not be sustained “‘“whether or not there was evidence at his trial to show that he had committed that offense.”’” (Robert G., supra, at pp. 440-441; Lohbauer, supra, at pp. 367, 368, 369.)

The high court rejected the People’s argument that “the juvenile court has authority to permit the amendment of the accusatory pleading to conform to the proof so long as the juvenile has not been misled to his prejudice in maintaining his defense.” (Robert G., supra, 31 Cal.3d at p. 441.) Respondent in the instant case makes a similar argument that, because minor was charged with sexual battery by restraint in counts 3 and 4, he was necessarily on notice to defend against an assault, a lesser included offense of sexual battery by restraint (§ 243.4, subd. (a)). The Robert G. court disagreed with this proposition, noting first that section 1159 requires that any conviction of an uncharged offense must be for a necessarily included offense. (Robert G., at p. 442.) The court also found that the People’s proposition had due process implications, since it could be “‘very difficult to ascertain from developments which occur during trial whether a defendant is “misled to his prejudice” and “prevented from preparing an effective defense.”’” (Id. at p. 442; see also People v. Ramirez (1987) 189 Cal.App.3d 603, 623 (Ramirez).) Lohbauer noted that this is especially true where “the actor’s state of mind is an essential element of an offense.” (Lohbauer, supra, 29 Cal.3d at p. 370.)

The Robert G. court noted, however, that consent was the one exception to the foregoing principles, and respondent argues that minor waived any objection to the amendment by failing to object below. (Robert G., supra, 31 Cal.3d at pp. 444, 445.) In Ramirez, the court stated that “[c]onviction for an uncharged greater offense not only raises the problem of notice but makes the inference of consent more difficult, as there is no reason why a defendant should acquiesce in substitution of a greater for a lesser offense.” (Ramirez, supra, 189 Cal.App.3d at p. 623.) After reviewing the cases in which such consent had been found, Ramirez concluded that the defendant had not consented because there was “no active acquiescence in the greater charge [citations], nor benefit from dismissal of a greater charge from which consent may be inferred. [Citations.]” There was merely a failure to object. Ramirez declined to hold that consent to a greater offense is established by the absence of objection, and the court reduced the conviction to a lesser included offense. (Id. at p. 624.)

In the instant case, the offense charged by the amendment exposed minor to two additional years of maximum confinement time as well as a finding that he had committed a violent offense under section 667.5, subdivision (c)(15).As in Ramirez, we conclude that the failure to object did not equate to active consent, nor did it present any benefit to minor from which consent may be inferred. Therefore, the issue of the improper amendment was not forfeited.

Given the circumstances discussed in the preceding paragraphs, we have no alternative but to reverse the juvenile court’s true findings in counts 1 and 2 and direct the juvenile court to dismiss the petition.

DISPOSITION

The true findings in counts 1 and 2 of the petition are reversed with directions to the juvenile court to vacate the order and to dismiss the petition.

We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.


Summaries of

In re Joshua E.

California Court of Appeals, Second District, Second Division
Sep 17, 2008
No. B201623 (Cal. Ct. App. Sep. 17, 2008)
Case details for

In re Joshua E.

Case Details

Full title:In re JOSHUA E., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Second District, Second Division

Date published: Sep 17, 2008

Citations

No. B201623 (Cal. Ct. App. Sep. 17, 2008)