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In re Steven B.

California Court of Appeals, Second District, First Division
Sep 26, 2008
No. B202024 (Cal. Ct. App. Sep. 26, 2008)

Opinion


In re STEVEN B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. STEVEN B., Defendant and Appellant. B202024 California Court of Appeal, Second District, First Division September 26, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appeal from an order of the Superior Court of Los Angeles County. No. TJ 16715 Catherine J. Pratt, Commissioner.

John A. Colucci, 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 Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, J.

Steven B. appeals from a sustained petition finding that he came under the provisions of Welfare and Institutions Code section 602. The court found that Steven, 17 years old at the time, assaulted a peace officer with a firearm in violation of Penal Code section 245, subdivision (d)(1), exhibited a firearm in the presence of a peace officer in violation of section 417, subdivision (c), and possessed a concealable firearm as a minor in violation of section 12101, subdivision (a)(1). Steven contends that the trial court erred reversibly by amending the petition, after the close of evidence and after the parties had rested, to allege a violation of section 245, subdivision (d)(1) in place of the allegation of violation of subdivision (c) that the petition originally alleged. He further contends that there was insufficient evidence of the assault, and that the trial court, in computing a maximum term of confinement, erred by not staying the term for exhibiting a firearm in the presence of a peace officer when it was part of the same indivisible course of conduct as the assault with a firearm.

All undesignated code section references are to the Welfare and Institutions Code.

All undesignated code subdivision references are to section 245.

We agree that the trial court erred by amending the petition to substitute an allegation under subdivision (d)(1) for an allegation under subdivision (c), and a true finding on the substituted count must therefore be reversed. Accordingly, we need not and do not address Steven’s insufficient evidence argument. His contention that, in calculating the maximum term of confinement, the court should not have included a term for exhibiting a firearm in the presence of a peace officer is moot because we reverse the true finding of assault on a police officer. We remand the matter for recalculation of the appropriate maximum term of confinement excluding from consideration the charge of assault on a police officer. In all other respects, we affirm.

BACKGROUND

On July 5, 2007, at approximately 10:55 a.m., two Los Angeles Sheriff’s deputies, both in uniform, were driving through Compton in a clearly marked police car. They saw Steven walking in an area known for narcotics activity within the territory of the Campanella Park Piru gang, a Bloods-affiliated gang that uses the letter “C” as a symbol. Steven was wearing a red Cincinnati Reds cap with a “C” on it. The deputies slowly followed Steven, who looked back, saw the squad car, started walking faster, looked back again, then almost broke into a run. The deputies saw Steven reaching his hands toward the waistband of his pants and suspected that he might be hiding drugs or a weapon. The deputies pulled their car into a driveway, and one exited the car and tried to talk with Steven, who ignored him, kept walking, and grabbed his waistband. One of the deputies saw a bulge in the waistband larger than a cellular phone would make. Ignoring orders to stop and put his hands up, Steven ran behind a parked motor home and into the street. When he reappeared, the detectives saw the handle of a revolver protruding from his waistband. Steven pulled the revolver out to his side and ran away. Both deputies pursued him on foot with guns drawn, commanding him to drop his gun. At one point, while running, Steven turned toward the officers, pointing the gun in their direction. Fearing that Steven intended to shoot at them, the deputies opened fire, hitting Steven in the left leg. Steven ran a few more steps, then fell. The gun dropped from his hand. The deputies arrested him.

On July 6, 2007, the Los Angeles County District Attorney filed a Welfare and Institutions Code section 602 petition with three counts. Count 1 alleged that Steven had exhibited a firearm in the presence of a peace officer in violation of section 417, subdivision (c). Count 2 alleged, “On or about 07/05/2007 within the County of Los Angeles, the crime of ASSAULT UPON PEACE OFFICER OR FIREFIGHTER, in violation of PENAL CODE 245(C), a Felony, was committed by said minor, who did willfully and unlawfully commit an assault with a deadly weapon and instrument and by force likely to produce great bodily injury upon [the two detectives] when said minor knew and should have known that said person was a peace officer then and there engaged in the performance of his/her duties.” Count 3 alleged possession of a concealable firearm by a minor in violation of section 12101, subdivision (a)(1).

In August 2007, at an adjudication hearing, the two arresting deputies, Steven, and percipient witnesses in the neighborhood testified. After the close of evidence, the trial court voiced concerns regarding both counts 1 and 2. Regarding count 1, the court said that although the pleading stated that violation of section 417, subdivision (c) constituted a felony, the subdivision itself made violation a misdemeanor. Regarding count 2, the court observed that the pleading alleged a violation of subdivision (c), which explicitly applies to an assault on a peace officer with a deadly weapon other than a firearm, not an assault with a firearm. The court invited counsel to argue the matter of the discrepancies in their closing arguments. The prosecutor agreed with the court that the petition alleged the wrong subdivision and asked the court to amend the petition to allege subdivision (d)(1). Steven’s counsel did not present any argument or comment on the issue, but during the court’s announcement of the amendment it was making by interlineation, Steven’s counsel did ask, “Which one are we striking—deadly weapon?”

After hearing closing arguments, the court amended both counts 1 and 2 by interlineation, deleting the word “felony” from count 1 and replacing it with “misdemeanor,” and changing “245(C)” to “245(d)(1)” and replacing “deadly weapon and instrument and by force likely to produce great bodily injury” with “firearm” in count 2. With these amendments, the court found all three counts to be true as alleged and sustained the petition. The court ordered Steven to serve six months in the Camp Community Placement Program, imposed a nine-year maximum term of confinement, and credited Steven with 51 days of predispositional confinement. The court computed the maximum term of confinement by taking the maximum upper term for a violation of section 245, subdivision (d)(1)—eight years—and adding to it one-third the midterm for a violation of section 417, subdivision (c)—four months—plus one-third the midterm for a violation of section 12101, subdivision (a)(1)—eight months. Steven’s counsel did not object to the petition amendment or to the terms of detention. Steven timely appealed.

DISCUSSION

I. Count 2 – Assault Allegation

Steven contends that the court erred by amending the petition after the close of evidence and after the parties had rested, and by sustaining the petition on a more serious charge than had been pleaded originally. He maintains that these errors violated his due process rights. We agree.

“A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.” (In re Hess (1955) 45 Cal.2d 171, 174-175.) A court acts in excess of its jurisdiction if it convicts a person of an offense not charged in the information that is not a lesser included offense of a charged offense, and imprisonment under that judgment of conviction is unlawful. (Id. at p. 175.) “It is fundamental that ‘When 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. . . .’ [Citation.]” (People v. Lohbauer (1981) 29 Cal.3d 364, 368.) The same reasoning applies to juvenile offenders. (In re Robert G. (1982) 31 Cal.3d 437, 442-443 (Robert G.).) Due process requires that a juvenile offender “ ‘be notified, in writing, of the specific charge or factual allegations to be considered at the [adjudication] 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.]” (Robert G., supra, 31 Cal.3d at p. 442, quoting In re Gault (1967) 387, U.S. 1, 33, italics added.) “[A] wardship petition under 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.” (Robert G., supra, 31 Cal.3d. at p. 445.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. . . .’ [Citations.]” (Id. at p. 441.)

Appellant contends, the Attorney General does not dispute, and we agree that subdivision (d)(1) is not a lesser included offense of subdivision (c). Subdivision (c) applies to assaults on peace officers with a deadly weapon other than a firearm and provides for a term of imprisonment of three, four, or five years. Subdivision (d)(1) applies to assaults on peace officers with a firearm and provides for a term of four, six, or eight years.

The Attorney General maintains that although the original petition did not allege violation of subdivision (d)(1), the court, pursuant to section 1009, properly amended the petition to include the charge. Although provisions of the Code of Civil Procedure, not the Penal Code, govern petition amendments in juvenile proceedings (Welf. & Inst. Code, § 678; Cal. Rules of Court, rule 5.524), we need not decide whether section 1009 has any application to juvenile proceedings or what amendments that section or corresponding provisions of the Code of Civil Procedure might otherwise permit, because the Supreme Court has held that due process prohibits the amendment made here. “[D]ue process [limits] amendments of the offense charged to amendments charging a lesser offense either necessarily included in the offense charged or expressly pleaded in the charging allegations.” (In re Man J. (1983) 149 Cal.App.3d 475, 481 (italics added), citing and analyzing Robert G., supra, 31 Cal.3d at pp. 442-443, and In re Arthur N. (1976) 16 Cal.3d 226, 233, superseded on another ground by statute as stated in In re Eddie M. (2003) 31 Cal.4th 480, 508.) A violation of subdivision (d)(1) is a more serious offense, not a lesser offense, than a violation of subdivision (c).

The Attorney General further contends that the court “did not abuse its discretion by permitting the amendment because [Steven] received adequate notice of the charges against him and would not have presented any different defense had the amendment been made to the petition before the presentation of evidence.” Although not using the term “prejudice,” this is in effect an argument that the amendment is allowable because Steven cannot show prejudice. Our Supreme Court, however, has expressly disapproved earlier cases suggesting that last-minute amendments can withstand challenge unless an appellant can show he was prejudiced. (Robert G., supra, 31 Cal.3d at p. 444.) The Attorney General attempts to distinguish of Robert G. from this case on factual grounds. The factual distinctions between this case and Robert G., however, have no bearing on the holding in Robert G. (Ibid. [“[W]e have specifically disapproved . . . cases . . . that . . . adopt the People’s reasoning to allow amendment of the accusatory pleading unless an appellant can show he was prejudiced thereby.”]; see also In re Johnny R. (1995) 33 Cal.App.4th 1579, 1585 [“Prosecutorial inattention is not a sound basis for the court’s exercise of discretion mid-trial to require the accused to face new charges not included within those previously filed.”].)

The criminal cases that the Attorney General cites regarding allowable amendments are inapposite. None hold that an amendment may charge a new offense that is not a lesser offense. (See, e.g., People v. Bolden (1996) 44 Cal.App.4th 707, 716; People v. Pitts (1990) 223 Cal.App.3d 606, 894-915; People v. Knox (1999) 74 Cal.App.4th 757, 764; People v. Wimberly (1992) 5 Cal.App.4th 773, 794-795; Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 954.)

As an alternative, the Attorney General argues that Steven consented to the amendment of the petition by failing to object, but cites no authority to support the proposition that mere acquiescence constitutes consent. Indeed, authority is to the contrary. In In re Alberto S. (1991) 226 Cal.App.3d 1459, failure to object to conviction of a lesser related offense did not constitute consent. (Id. at pp. 1465-1466.) The comments of the court in In re Alberto S. are equally applicable here: “While an objection at this point would have afforded the court an opportunity to correct its mistake and acquit the minor outright, it would not have affected the fact that the court had no jurisdiction to find minor had committed the uncharged offense. The court had already found that the evidence was insufficient to sustain the charged offenses and had, in effect, acquitted the minor. The minor cannot be held accountable for the court’s action, which exceeded the bound of its authority.” (In re Alberto S., supra, 226 Cal.App.3d at p. 1466; see also People v. Delahoussaye (1989) 213 Cal.App.3d 1, 11-13; People v. Delgado (1989) 210 Cal.App.3d 458, 463-464.)

Because we conclude that the court had no jurisdiction to consider the truth of the amended allegation in count 2, the court’s true finding as to that count must be reversed, and we need not consider Steven’s contention that the finding regarding count 2 is not supported by sufficient evidence.

II. Calculation of Maximum Confinement Period

Steven contends that even if the court did not err in amending the petition and finding he committed the assault, the court erred by including in the maximum term of confinement a term for exhibiting a firearm in the presence of a peace officer. He maintains that because the exhibiting charge and the assault charge were both part of the same indivisible course of conduct, section 654 mandates that the term for the exhibiting charge be excluded from the period of confinement. Steven’s argument necessarily assumes that the assault charge is affirmed on appeal. Because we have reversed the finding on the assault charge, however, the issue is moot. Upon remand the court must recalculate the maximum term of confinement based only upon true findings on counts 1 and 3.

DISPOSITION

The true finding regarding count 2—assaulting a peace officer with a firearm in violation of Penal Code section 245, subdivision (d)(1)—is reversed. The case is remanded to the trial court for recalculation of Steven’s maximum term of confinement based upon the remaining counts in the petition. In all other respects, the order is affirmed.

We concur: MALLANO, P. J., HASTINGS, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re Steven B.

California Court of Appeals, Second District, First Division
Sep 26, 2008
No. B202024 (Cal. Ct. App. Sep. 26, 2008)
Case details for

In re Steven B.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN B., Defendant and…

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

Date published: Sep 26, 2008

Citations

No. B202024 (Cal. Ct. App. Sep. 26, 2008)