People v. Robert G.People v. Robert G.
- Reporters:
- , , ,
- Before:
- Richardson
Opinion
RICHARDSON, J.
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 (
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
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
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 [173 Cal.Rptr. 453, 627 P.2d 183], 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 (
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; see
West, supra,
3 Cal.3d
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” (
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
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.) 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; see
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, 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 that he may intelligently prepare his defense. (In re Gault (1967) 387 U.S. 1, 33 ... .)” (In re Arthur N. (1976) 16 Cal.3d 226, 233 [127 Cal.Rptr. 641, 545 P.2d 1345].) Compliance with this requirement has been held by the Supreme Court to mandate that the minor “be notified, in writing, of the specific charge or factual allegations to be considered at the 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.” (In re Gault, supra, 387 U.S. at p. 33 [18 L.Ed.2d 527, at p. 549, 87 S.Ct. 1428].)
In language particularly appropriate in the present context we have declared: “But notice is adequate and due process is served when the trier of fact is permitted to find an accused guilty of an offense
necessarily included
in that with which he is charged [citation]
or
of a lesser
We carefully explained in
Arthur
TV. the effect of the foregoing notice requirement upon the statutory authorization for applying rules of civil procedure to juvenile court matters (see
The People, however, rely upon two cases which permitted amendment of a wardship petition to conform to the evidence offered at the adjudication hearing. In each case the evidence tended to establish that the minor had committed an uncharged, unincluded offense. Amendment was allowed because neither minor was able to show that he was misled to his prejudice by the amendment. (See
In re Beverly H.
(1980) 103 Cal.App.3d 1 [162 Cal.Rptr. 768];
In re Joe R.
(1970) 12 Cal. App.3d 80 [90 Cal.Rptr. 530].)
Joe R.
was followed by
In re Stanley B.
We first observe that no objection was made to the substituted lesser charge in any of these cases. (See Beverly H., supra, 103 Cal.App.3d at p. 7; Stanley B. (1971), supra, 17 Cal.App.3d at p. 536; Joe R., supra, 12 Cal.App.3d at p. 85.) While such failure to object may not invariably bar a minor from raising the due process claim here asserted, it may well be that the minors’ varying degrees of acquiescence in the filing of substituted allegations in each of these cases constituted a consent thereto, and such consent was the one exception to the rule which we adopted in Lohbauer. (Lohbauer, supra, 29 Cal.3d at p. 367.) In the present matter, however, no such exception is applicable because appellant’s objection to the amendment substituting a new charge after completion of the evidentiary hearing was duly noted, and consistently pressed.
Moreover, we have specifically disapproved Beverly H. and similar cases to the extent that they adopt the People’s reasoning to allow amendment of the accusatory pleading unless an appellant can show he was prejudiced thereby. (See Lohbauer, supra, 29 Cal.3d at p. 372.) No new argument is offered to persuade us otherwise.
Indeed, without distinguishing between criminal and juvenile matters, several decisions of the Court of Appeal already have adopted
Lok
bauer-type reasoning to reverse wardship adjudications which were based on findings that a minor had committed an offense which was neither specifically alleged nor necessarily included within an alleged offense.
(In re Tammie J.
(1980) 101 Cal.App.3d 24 [161 Cal.Rptr. 286];
In re Carlo S.
(1979) 94 Cal.App.3d 377 [156 Cal.Rptr. 442];
In re Johnny V.
(1978) 85 Cal.App.3d 120 [149 Cal.Rptr. 180];
In re Dana J.
(1972) 26 Cal.App.3d 768 [103 Cal.Rptr. 21].) In
Carlo S.,
for example, the court reversed such an adjudication based upon a finding that the minor had! obstructed a police officer (see
In our view, application of the principles we have announced in Lohbauer and Arthur N. to the present case compels the reversal of appellant’s adjudication as a ward of the court. While reasonable differences in criminal and juvenile procedures may be constitutionally permissible within other contexts (see In re Mitchell P. (1978) 22 Cal.3d 946, 953 [151 Cal.Rptr. 330, 587 P.2d 1144]), we are not persuaded that due process of law is as malleable as the People here contend. We conclude that 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. To the extent that they adopt a contrary view, Stanley B. and Joe R., both supra, are disapproved.
We reverse the order of the juvenile court adjudicating appellant as a ward of that court pursuant to Welfare and Institutions Code section 602.
Bird, C. J., Mosk, J., Newman, J., Kaus, J., Broussard, J., and Reynoso, J., concurred.
Respondent’s petition for a rehearing was denied June 30, 1982.