Robert G., In re

• Decision Date: 20 May 1982
• Docket Number: Cr. 22296
• Citation: 182 Cal.Rptr. 644,31 Cal.3d 437,644 P.2d 837
• Court: California Supreme Court
• Parties: , 644 P.2d 837 In re ROBERT G., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ROBERT G., Defendant and Appellant.

Page 644

182 Cal.Rptr. 644

31 Cal.3d 437, 644 P.2d 837

In re ROBERT G., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. ROBERT G., Defendant and Appellant.

Cr. 22296.

Supreme Court of California,

In Bank.

May 20, 1982.

Rehearing Denied June 30, 1982.

Wallace J. Lauria, Long Beach, under appointment by the Supreme Court, for defendant and appellant.

Quin Denvir, State Public Defender, and Jonathan B. Steiner, Chief Asst. State Public Defender, as amici curiae on behalf of defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S Clark Moore, Asst. Atty. Gen., Michael Nash and Jane M. Began, Deputy Attys. Gen., for plaintiff and respondent.

RICHARDSON, Justice.

Robert G., a minor, appeals from his adjudication as a ward of the juvenile court, pursuant to section 602 of the Welfare and Institutions Code, based upon a finding that he had committed a battery in violation of section 242 of the Penal Code. Appellant advances due process challenges to the adjudication, claiming that he was not given adequate notice that the People would seek to sustain the wardship petition on that finding because he was neither specifically charged with battery nor was battery a necessarily included lesser offense within the crime of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) with which he was charged. We agree with appellant's constitutional claim and reverse the judgment of the juvenile court.

The section 602 petition to the Los Angeles County Juvenile Court to have appellant declared a ward of that court recited that: "On or about May 13, 1980, within the County of Los Angeles, said minor did wilfully and unlawfully commit an assault upon [a victim] with a deadly weapon, to wit, a rock, and by means of force likely to produce great bodily injury, thereby violating § 245(a) [of the Penal Code], a Misdemeanor." Appellant denied the allegations and an adjudication hearing was held. (See Welf. & Inst.Code, § 675 et seq.)

Undisputed evidence established that while appellant, who was then 14 years of age, was in the parking lot of Burbank Junior High School, he threw two rocks. One hit the school building and the other, about one inch in diameter, struck the school custodian in the back.

At this point, appellant moved for acquittal on the ground, among others, that a one-inch rock could not be classified as a deadly weapon and that he could not, therefore, be found to have violated Penal Code section 245, subdivision (a), as charged. While agreeing with appellant that such a rock could not be a deadly weapon, the court denied the motion for acquittal. When appellant rested without presenting evidence, the prosecution requested that the court sustain the petition on the ground that appellant's commission of another offense, namely, battery (Pen.Code, § 242), had been established by the evidence at the adjudication hearing. Acknowledging that battery was not a lesser offense necessarily included within the assault with a deadly weapon charge, the prosecution argued that battery nonetheless had been established by the evidence that a rock had, in fact, struck the custodian, and that no prejudice would result to appellant by amendment of the petition to conform to that evidence and by sustaining it as amended. Over appellant's objection, the petition was accordingly amended and thereupon sustained.

On appeal, appellant repeats the contention which he had urged upon the trial court that he was denied procedural due process because he was not given notice that the prosecution would seek to sustain the wardship petition on the claim that he had committed a battery. He argues that his defense was directed to the charge of assault with a deadly weapon as contained in the petition. Under our recent decision in People v. Lohbauer (1981) 29 Cal.3d 364, 627 P.2d 183, 173 Cal.Rptr. 153 he claims he could not be adjudged a ward of the court on the basis of a finding that he had committed an offense which was neither specifically charged in the accusatory pleading nor necessarily included within a charged offense, without his consent to the substituted charge. We agree.

In Lohbauer we reversed an adult criminal defendant's conviction of trespass (Pen.Code, § 602.5) on an information which charged him with burglary (id., § 459). We noted 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. [Citations.] This reasoning rests upon a constitutional basis: "Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." [Citation.]' (People v. West (1970) 3 Cal.3d 595, 612, 477 P.2d 409, 91 Cal.Rptr. 385 ....)" (Lohbauer, supra, 29 Cal.3d at p. 368, 627 P.2d 183, 173 Cal.Rptr. 153.)

We explained further in Lohbauer that the notice required by due process is given, with respect to lesser offenses, either "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" (Lohbauer, supra, 29 Cal.3d at pp. 368-369, 627 P.2d 183, 173 Cal.Rptr. 153; see West, supra, 3 Cal.3d [31 Cal.3d 441] at p. 612, 477 P.2d 409, 91 Cal.Rptr. 385; People v. Marshall (1957) 48 Cal.2d 394, 405, 309 P.2d 456), or when "the lesser offense is 'necessarily included' within the statutory definition of the charged offense ...." (Lohbauer, supra, at p. 369, 627 P.2d 183, 173 Cal.Rptr. 153; see Pen.Code, § 1159.) We further reaffirmed, in familiar language, the well settled principle that "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.] (People v. Pendleton (1979) 25 Cal.3d 371, 382, 599 P.2d 649, 158 Cal.Rptr. 343 ....)" (29 Cal.3d at p. 369, quotation marks omitted; see People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512.) Because burglary can be committed by one who has permission to enter a dwelling (Pendleton, supra, at p. 382, 599 P.2d 649, 158 Cal.Rptr. 343), we concluded that trespass--or, entering a dwelling without permission--is not an offense necessarily included within the charge of burglary under this test. Having found that trespass was neither specifically charged nor necessarily included within the burglary charge, we therefore concluded that "defendant's conviction of the lesser offense may not be sustained '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, 175, 288 P.2d 5 ... and cases there cited.)" (Lohbauer, supra, at p. 369, 627 P.2d 183, 173 Cal.Rptr. 153.)

It is apparently conceded that appellant was not accused of battery in the language of the wardship petition here. The requisite physical contact to the person is nowhere alleged therein. It is also well established that the offense of battery is not necessarily included within the charge of assault with a deadly weapon. Such an assault may, of course, be committed without "any willful and unlawful use of force or violence upon the person of another" (Pen.Code, § 242) and thus without a battery. (People v. Yeats (1977) 66 Cal.App.3d 874, 878, 136 Cal.Rptr. 243; People v. Fuller (1975) 53 Cal.App.3d 417, 422, 125 Cal.Rptr. 837.) Accordingly, if appellant was an adult criminal defendant, Lohbauer would compel a reversal of his conviction.

The People urge, however, that because appellant is a juvenile, different rules apply. They note that Welfare and Institutions Code section 678 provides for the application to juvenile court proceedings of the liberal rules relating to variance and amendment of pleadings set forth in the Code of Civil Procedure. Drawing upon this statute, they argue 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. (See Code Civ.Proc., §§ 469, 470.) Under the present circumstances, the People conclude, no such prejudice occurred.

We cannot agree. In Lohbauer we rejected a strikingly similar contention that any variance between an offense charged and a lesser offense of which a defendant is convicted should be deemed immaterial unless it could be shown that " 'the defendant was misled to his prejudice and prevented from preparing an effective defense.' " (Lohbauer, supra, 29 Cal.3d at pp. 369-370, 627 P.2d 183, 173 Cal.Rptr. 153.) We first noted that statutory authorization for convicting a defendant of a "necessarily included" offense had uniformly required application of the Pendleton test. (Id., at p. 370, 627 P.2d 183, 173 Cal.Rptr. 153; see Pen.Code, § 1159.)

Equally important to our rejection of a new standard for immaterial variances, however, were due process implications. We observed: "It may 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.' It may never be known with any confidence after a conviction what defenses might have been asserted had defendant been given adequate and advance notice of the possible offenses for which he was criminally vulnerable. Insisting that he be informed in the accusatory pleading of the charges against him, on the other hand, fully satisfies a well established fundamental of due process." (Lohbauer, supra, 29 Cal.3d at p. 370, 627 P.2d 183, 173 Cal.Rptr. 153, italics added.)

The foregoing concerns are no less relevant to juvenile court proceedings. "[D]ue process requires that a minor, like an adult, have adequate notice of the charge so...