IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

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1 Filed 5/19/11 In re R.L. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE In re R.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.L., Defendant and Appellant. A (Sonoma County Super. Ct. No J) Introduction R.L. appeals from the jurisdiction and disposition orders of the juvenile court declaring him a ward of the court and placing him on formal probation. At the close of the People s case-in-chief, and over the minor s objection, the court granted a motion to amend the petition that alleged a violation of Penal Code 1 section 12020, subdivision (a)(1) (possession of a deadly weapon) to allege a violation of section 12020, subdivision (a)(4) (concealment of a dirk or dagger). The court subsequently found that R.L. had committed the latter offense. We agree with the minor that the midstream substitution of the charge against him violated his due process rights and that the resulting jurisdiction order must be set aside. 1 All statutory references are to the Penal Code unless otherwise indicated. 1

2 Statement of Facts On June 9, 2010, the Sonoma County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging that on or about June 8, 2010, [R.L.] did unlawfully manufacture, cause to be manufactured, import into the State of California, keep for sale, offer and expose for sale, and give, lend, and possess an instrument and weapon of the kind commonly known as a dirk or dagger, thereby violating section 12020(a)(1) of the Penal Code of California, a misdemeanor (12 months) At the jurisdictional hearing, the prosecutor presented testimony that on June 8, 2010, Sonoma County Deputy Sheriff Lloyd Seevers was dispatched to a fight in Keiser Park in the Town of Windsor, which was then closed for renovation. Seevers and other officers who arrived on the scene observed a group of youths wearing gang colors that began to disperse upon sight of the officers. Seevers detained seven or eight of the group, including R.L. The officer testified that he asked [R.L.] if he had anything on him. He said that he had a knife in his pocket. He described it as a throwing knife. I asked him to take it out of his pocket for me and give it to me, and he did. 3 The knife is a seven and three-eighths inch long steel throwing knife with a fixed blade sharpened on both sides. The knife was located underneath minor s shirt in his right-hand side pocket. At the close of the People s case-in-chief, R.L. moved to dismiss the count alleging possession of the dirk and dagger on the ground that the fixed-blade knife found 2 The petition also contained a second count alleging that R.L. committed trespass on closed lands in violation of Public Resources Code section 4256, but the court dismissed this count at the jurisdiction hearing. 3 Subsequently R.L. testified that he initially told the officer that he did not have anything in his pockets but after patting himself down, he felt something in my back pocket and I remembered I had it, and... I pulled it out and handed it to [Seevers]. He stated that he and others were throwing the knife at a tree and that he put the knife in his pocket approximately 20 minutes before Seevers arrived. 2

3 in R.L. s pocket is not a weapon listed in section 12020, subdivision (a)(1). The prosecutor interrupted defense counsel to explain that [t]he petition has apparently a typo, in that it s (a)(1) instead of (a)(4).... Dirk or dagger is specifically alleged in the body of count 1. It looks like a 1 was substituted for the 4. So the theory we are proceeding under is 12020(a)(4), dirk or dagger as articulated. It is a clerical or typographical error on the petition, and I believe that though you can t move to amend to conform to proof, you can certainly move to amend to rectify any type of typographical error. Because the words dirk or dagger are included in the body of the count, I think it is relatively evident that this is a typographical error. I m not moving to amend to change anything substantively. And so at this time I would move to amend the petition to correct the (a)(1) to an (a)(4). R.L. objected to the amendment and the court permitted both counsel to file points and authorities on the issue. However, the court refused to defer the presentation of the minor s case pending a ruling on the motion and R.L. then testified in his own defense. At a subsequent hearing, the court granted the motion to amend the petition. The court explained, the language of count I as originally charged sufficiently places the minor on notice that he was actually being charged with the unlawful possession of a concealed dirk or dagger, in violation of Penal Code section 12020(a)(4). [ ] The use of the term dirk or dagger, which has a specific definition under the code section, rather than stating a specific type of weapon prohibited under Penal Code section (a)(1), sufficiently put the minor on notice that he was being charged with a Penal Code section 12020(a)(4) violation rather than a Penal Code section 12020(a)(1) violation. [ ] Since dirk or dagger is not one of the prohibited items in Penal Code section 12020(a)(1), it cannot be said that the minor was misled into believing he needed to defend against a Penal Code section 12020(a)(1) charge. Rather, the minor knew or should have known that he needed to defend against a charge of carrying a concealed dirk or dagger, in violation of Penal Code section 12020(a)(4). 3

4 The court stated that it would permit the defense to call additional witnesses or do whatever you wish to do at this point, but counsel submitted the matter and the court thereupon found the allegations of the amended petition true. R.L. was placed on six months formal juvenile probation and he then timely filed a notice of appeal. DISCUSSION The trial court erred by allowing the prosecution to amend the petition The permissibility of amending a juvenile wardship petition is analyzed under the same criteria as apply to adult criminal prosecutions. While reasonable differences in criminal and juvenile procedures may be constitutionally permissible within other contexts [citation], we are not persuaded that due process of law is as malleable as the People here contend. We conclude that a wardship petition under [Welfare and Institutions Code] 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. (In re Robert G. (1982) 31 Cal.3d 437, 445.) Based on the record before us, we cannot quarrel with the factual premises of the trial court s ruling permitting the disputed amendment. The original petition explicitly alleged that R.L. was in possession of a dirk or dagger which the knife found in R.L. s possession unquestionably was. It is also true that subdivision (a)(1) of section 12020, which prohibits the possession of numerous weapons, including various types of knives, does not include a dirk or dagger within it proscription, 4 while subdivision (a)(4) does 4 Section 12020, subdivision (a)(1) reads in part: Any person in this state who does any of the following is punishable... : [ ] (1) Manufactures..., gives, lends, or possesses... any ballistic knife,... any belt buckle knife, any lipstick case knife, any cane sword, any shobi-zue,... any writing pen knife. Most of these and the many other weapons that are included in subdivision (a)(1) are defined in subdivision (c). 4

5 refer explicitly to a dirk or dagger. 5 It may well be, as the court stated, that [t]here was no misleading anybody and that counsel for R.L. should have realized that the reference to subdivision (a)(1) was an error, and that the petition was intended to allege a violation of subdivision (a)(4). Nonetheless, that the reference to subdivision (a)(1) was a typographical error, if that is what it was, is not the test. A long line of cases makes clear that the amendment of the petition here was not permissible. Subdivision (a)(1) prohibits the possession of various weapons, not including a dirk or dagger. Subdivision (a)(4) prohibits the concealed possession of a dirk or dagger; concealment is an additional element of the offense, so that a violation of subdivision (a)(4) is not a necessarily included offense within subdivision (a)(1). Moreover, although the original petition alleged that R.L. possessed a weapon known as a dirk or dagger, it did not allege that the weapon was concealed upon his person. Thus, based upon what was alleged in the petition it appears that the minor s counsel approached the hearing with the strategy of obtaining dismissal on the ground that the weapon found on R.L. did not come within the letter of section 12020, subdivision (a)(1). R.L. and his counsel were not put on notice that the element of concealment was relevant and that to prevail it would be necessary to negate an allegation not contained in the petition, that the knife was concealed. While it may be that there was no defense that could have been mustered to that allegation, the minor was constitutionally entitled to proper notice of the charge against him, and it is no answer to the failure to provide such notice that he was not in fact prejudiced. 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. [Citations.] The reasoning rests upon a constitutional basis. Due 5 Section 12020, subdivision (a)(4) makes punishable any person who [c]arries concealed upon his or her person any dirk or dagger. A dirk or dagger is defined in subdivision (c)(24). 5

6 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. (People v. Lohbauer (1981) 29 Cal.3d 364, 368.) The court expressly rejected on both statutory and constitutional grounds the suggestion that it hold immaterial any variance between an offense charged and a lesser offense of which a defendant is convicted unless the defendant was misled to his prejudice and prevented from preparing an effective defense. (Id. at pp ) The court pointed out that [i]t 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. (Id. at p. 370.) The rule announced in Lohbauer was held applicable to juvenile cases by the Supreme Court in In re Robert G., supra, 31 Cal.3d 437. In that case it was alleged that the juvenile had committed an assault with a deadly weapon, a rock. At the close of the prosecution s case, the court found that the rock that the juvenile had thrown was not a deadly weapon. However, the court permitted the wardship petition to be amended to allege a battery and sustained the petition. Reiterating much of the reasoning articulated in Lohbauer, the Supreme Court reversed the wardship adjudication because the initial petition had not alleged that the juvenile committed a battery and battery is not a lesser included offense of the crime charged and was not expressly pleaded in the charging allegations. (Id. at pp ) In re Johnny R. (1995) 33 Cal.App.4th 1579 is another case with similar facts that has reaffirmed the same rule. In that case, the juvenile court had permitted the filing of an amended wardship petition adding to a petition that originally alleged an assault with a 6

7 deadly weapon a new allegation that the minor unlawfully possessed a dirk or dagger. The amendment was permitted after the prosecution had begun presenting its case and the court had made clear that it was not likely to sustain the original allegations. The juvenile court overruled the minor s objections to the amendment, noting that this particular charge is based upon the fact that it is not new to the case in terms of the information as I know it.... [T] here was never any question as to the fact that [the minor] had a knife and he used it. [ ] In that regard, I don t think that there is any surprise. I don t think the minor was prejudiced in the sense of not being primed to go to trial or to proceed with trial. (Id. at p ) Nonetheless, the court of appeal reversed the resulting wardship adjudication and directed the juvenile court to dismiss the underlying petition. Citing both Lohbauer and Robert G., the court observed, The trial here had commenced and the minor has never been put on notice of a need to defend against the weapons charge. (In re Johnny R., supra, at p ) The appellate court was not impressed with the reasons used by the juvenile court to support its exercise of discretion in allowing the amendment. The prosecutor apparently had never considered a weapons charge.... Prosecutorial inattention is not a sound basis for the court s exercise of discretion midtrial to require the accused to face new charges not included within those previously filed. (Id. at pp ) Similarly, in In re Roy C. (1985) 169 Cal.App.3d 912, at the close of the People s case-in-chief the juvenile court allowed an amendment to a wardship petition alleging robbery and battery to include an additional count of assault by means of force likely to produce great bodily injury. In reversing the resulting order continuing the minor s wardship, the Court of Appeal observed, It is fundamental that a defendant may rest his case without presenting evidence and move for an acquittal on grounds that the People had not presented sufficient evidence to sustain the charges filed. [Citations.] When the juvenile court denied the motion for an acquittal in the instant case and allowed the People to amend the petition to include an additional charge which was not necessarily 7

8 included in the offenses contained in the petition, the appellant was faced with a Hobson's choice: (1) present no defense, risk being continued in custody at juvenile hall on a sustained petition and appeal the court s ruling based on the decision in Robert G. (which would have mandated certain reversal); or, (2) give up the right to a speedy trial, move for a continuance and prepare a defense to meet the new charges; or, (3) give up the due process right to receive adequate notice of the new charge filed, present whatever defense counsel could make given the time allowed and submit the matter to the court for decision. Given this dilemma, we cannot conclude that the minor's decision to proceed with the defense of the case could be construed as a waiver of his right to appeal the violation of his due process right to receive adequate notice of the amended charge. The holding in Robert G. mandates reversal because prejudice must be presumed since we cannot speculate what defenses might have been asserted had defendant been given adequate and advance notice of the possible offenses for which he was criminally vulnerable. (In re Roy C., at p. 918, fn. omitted, quoting In re Robert G., supra, 31 Cal.3d at p. 442.) Under this clear line of authority, the court here erred in permitting the People to amend the charging allegations of the petition after resting its case. Even though the minor was put on notice in the original petition that he was alleged to have possessed a dirk or dagger, he was not put on notice that he was charged with concealing it on his person, and possession of a concealed dirk or dagger is not an offense necessarily included in the section which he was originally charged with violating. There is no significance to the fact that subdivisions (a)(1) and (a)(4) are subdivisions of the same section 12020; the subdivisions define different offenses. The People contend that the minor was not prejudiced because he was given the opportunity to present additional evidence after the court granted the motion to amend the petition. However, before the motion was made, defense counsel had conducted cross-examination of Seevers and, before the court ruled on the motion, the minor was required to proceed with his defense 8

9 not knowing whether the motion would be granted or denied. The cases cited above make clear that the court may not speculate how the minor would have prepared and presented his defense had the original petition read as it was subsequently amended to read. Since R.L. was not given constitutionally required advance notice of the offense which he was found to have committed, the adjudication of wardship must be reversed. And since he did not violate the section that he was charged with violating, the petition must be dismissed. DISPOSITION The judgment is reversed and the matter is remanded with instructions to dismiss the petition. Pollak, J. We concur: McGuiness, P. J. Siggins, J. 9