Opinion
C083317
06-27-2018
In re D.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV138041)
The juvenile court sustained a petition alleging the minor D.S. committed burglary. On appeal, the minor contends the juvenile court erred in denying his request for an election of the target offense underlying the burglary allegation. We will affirm.
BACKGROUND
The minor and another youth broke into the victim's garage. The minor was charged with one count of burglary. In pertinent part, the petition alleged the minor, "did unlawfully enter an inhabited dwelling house. . . occupied by [the victim] with the intent to commit larceny and any felony." (Italics added.)
Before the contested jurisdictional hearing, the minor moved to require the prosecution to elect a target offense, "so that he may be aware of the charge against which he is defending." The petitioners responded that no law required an election at that point in the proceedings, adding that the charging documents can be amended at closing to conform to evidence. The juvenile court denied the motion.
During closing arguments, the petitioners told the court, "[T]he prosecution['s] theory is that [the minor] intended to commit a theft." The juvenile court thereafter sustained the petition as to the burglary count.
DISCUSSION
On appeal, the minor contends he was deprived of due process by the juvenile court's denial of his request for an election of a target offense for the burglary charge. He notes the petition conjunctively alleged the target as "larceny and any felony," which he maintains forced him to "choose blindly from dozens, if not hundreds," of felonies. He argues that by denying his request for an election of a target offense at the outset, the juvenile court effectively permitted late oral amendment by allowing the petitioners to elect a target offense after the presentation of evidence: "[T]he prosecution['s] theory is that he intended to commit a theft." We disagree.
The People argue the challenge is forfeit for failure to demurrer to the petition. (See In re Jamil H. (1984) 158 Cal.App.3d 556, 560 ["By failing to demur, a defendant waives any argument that a pleading couched in statutory language did not give him adequate notice for purposes of trial"].) We will assume without deciding that the minor's motion to require the petitioners to elect a target offense sufficed to preserve the issue. --------
A Penal Code section 602 wardship petition "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." (In re Robert G. (1982) 31 Cal.3d 437, 445; id., at pp. 439-440 [juvenile court erroneously permitted the petition to be amended, after the parties had rested, to include a count of battery that was neither a necessarily included offense nor alleged in the original petition].) Concomitantly, due process requires that the accused be advised of the charges against him so that he may have a reasonable opportunity to prepare a defense. (People v. Lohbauer (1981) 29 Cal.3d 364, 368.)
Here, the petition alleged the minor entered the victim's house with intent to "commit larceny and any felony." The juvenile court sustained the petition based on a theory the minor had intended to commit a theft. On this record, the minor was advised of the charge against him and due process was not offended.
Further, the minor's argument that the failure to elect a target offense at the outset forced him to choose blindly from many felonies is not well taken. It is sufficient to charge a crime — including burglary — in the language of the statute. (People v. Lewis (1882) 61 Cal. 366 [information charging burglary in the language of the statute is sufficient]; People v. Rodriguez (1923) 61 Cal.App. 69, 81 [same].) And though the petition conjunctively alleged "larceny and any felony," while the statute uses disjunctive language, courts commonly interpret conjunctive allegations to be alleged in the disjunctive language of the underlying statute. (People v. Garrett (2016) 248 Cal.App.4th 82, 86, fn. 2; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533 ["When a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way."].)
In sum, the juvenile court neither denied the minor due process nor erred in denying his motion to require the petitioners to elect a target offense.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Hoch, J.