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People v. Carlos L. (In re Carlos L.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F062653 (Cal. Ct. App. Jan. 31, 2012)

Opinion

F062653

01-31-2012

In re CARLOS L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CARLOS L., Defendant and Appellant.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. JJD062318)


OPINION


THE COURT

Before Cornell, Acting P.J., Gomes, J., Franson, J.

APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

On March 10, 2011, a petition was filed pursuant to Welfare and Institutions Code section 602, alleging that appellant, Carlos L., attempted a first degree burglary (Pen. Code, §§ 664, 459, count one) and was an unlicensed driver (Veh. Code, § 12500, subd. (a), count two). At the conclusion of a contested jurisdiction hearing on May 10, 2011, the juvenile court found count one true as alleged. The juvenile court amended count two to allege that appellant failed to present a driver's license to a peace officer (§ 12951, subd. (b)), an infraction, and found count two true.

Unless otherwise designated, all statutory references are to the Vehicle Code. Section 12500, subdivision (a) and section 12951, subdivision (b) are, hereinafter, referred to respectively as section 12500(a) and section 12951(b).

On June 8, 2011, the juvenile court reinstated appellant's probation from an earlier adjudication. Appellant contends, and respondent concedes, that the juvenile court erred in amending count two of the petition.

FACTS

Eric Valencia was working at his home in Dinuba on the afternoon of March 8, 2011, when he heard the doorbell ring. Valencia looked through the peep hole and saw a Hispanic man wearing a red cap. Valencia went to the back of his house and saw another man wearing a black hat and a white sweatshirt attempting to see if Valencia's screen door was open. Valencia yelled out and the man ran away. Valencia immediately called the Dinuba Police Department from his cell phone. Valencia saw a black SUV on the other side of his back fence, which he found strange because there are no homes there.

Dinuba Police Officer Jessica Martin arrived at Valencia's home within two or three minutes after she was dispatched. Martin did not see anyone on the street of the victim's residence, but saw a dark SUV parked on a nearby street. The driver of the SUV drove the SUV fast as Martin approached it with her patrol car.

As Martin was calling in the license plate number of the SUV, juveniles were jumping out of it. Martin detained two juveniles. Appellant was in the driver's seat. Appellant was wearing a white sweater, dark pants, and a black baseball cap. Valencia identified appellant and another juvenile as the ones who tried to gain entry into his home.

Martin called dispatch to get information on appellant's license. Martin received a reply that appellant did not have a license. At the hearing, the prosecutor submitted a driver's license printout showing that appellant had a valid California driver's license.Without a motion by the prosecutor, and without objection by defense counsel, the juvenile court on its own motion found that appellant violated section 12951(b). The court noted that it did not appear that the document submitted by the prosecutor qualified as proof that appellant had a valid driver's license.

Appellant testified at the hearing, denying that he had a valid driver's license.

DISCUSSION

Appellant contends that the true finding for the violation of section 12951(b) must be reversed because he was not charged with that offense and it is not a necessarily included offense of section 12500(a). Respondent concedes the error.

When a defendant denies an allegation, the court is without jurisdiction to convict the defendant of an offense that is neither charged nor necessarily included in the alleged crime. Due process of law requires that the accused be advised of the charges against him or her so that he or she is not taken by surprise by the evidence offered at trial. These principles apply to juvenile proceedings. (In re Robert G. (1982) 31 Cal.3d 437, 440.) Unless the allegation is a necessarily included offense, or unless the minor consents to a finding on the substituted allegation, the petition under Welfare and Institutions Code section 602 cannot be sustained. (In re Robert G., supra, at p. 445.) Silence by the minor does not constitute consent to a substituted allegation. (See In re Alberto S. (1991) 226 Cal.App.3d 1459, 1465 (Alberto S.).) Appellant never consented to the substituted allegation.

An offense is necessarily included within a charged offense if under the statutory definition of the charged offense, it cannot be committed without committing the lesser offense, or, if the charging allegations describe the offense in such a way that, if committed, the lesser offense is necessarily committed. (Alberto S., supra, 226 Cal.App.3d at p. 1464.)

Section 12500(a) prohibits driving a vehicle upon a highway without holding a valid driver's license. The elements of this section are that the defendant drove a motor vehicle on a highway, did not hold a valid California driver's license while driving, and was not excused from having a driver's license. (See CALCRIM No. 2221.) Section 12951(b) makes it an offense for a motorist to fail to give a law enforcement officer a valid driver's license. The elements of this offense are committed if the defendant drives a motor vehicle, a peace officer demands presentation of a driver's license, and the defendant does not present the license pursuant to the officer's request. (See CALCRIM No. 2222.) Unlike section 12951(b), section 12500(a) does not require a demand by a peace officer.

The elements of these two offenses are different and section 12951(b) is not necessarily violated if one violates section 12500(a). Furthermore, the accusatory pleading did not state the elements of section 12951(b), but stated that appellant drove "a motor vehicle upon a highway without holding a valid driver's license issued under the Vehicle Code of the State of California." Under either the elements test or the accusatory pleading test, section 12951(b) is not a lesser included offense of section 12500(a).

Although the parties have not briefed and we do not reach the question of whether there was substantial evidence that appellant violated section 12951(b), we note that there does not appear to be evidence in the record that Martin ever asked appellant to present his driver's license.
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DISPOSITION

The juvenile court's true finding on count two, that appellant violated Vehicle Code section 12951, subdivision (b), is reversed. The remaining orders of the juvenile court are affirmed.


Summaries of

People v. Carlos L. (In re Carlos L.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F062653 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Carlos L. (In re Carlos L.)

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 31, 2012

Citations

F062653 (Cal. Ct. App. Jan. 31, 2012)