Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. DL026426 of Orange County, Ronald P. Kreber, Judge. Affirmed.
Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
O’LEARY, ACTING P. J.
OPINION
Marco M., appeals from a judgment after the juvenile court found true one count of misdemeanor assault, subsequent to finding the prosecution failed to prove he committed an aggravated assault. Marco argues he was denied his Fourteenth Amendment due process rights because the court did not have jurisdiction to add the offense. He also contends insufficient evidence supports the finding. Neither of his contentions have merit, and we affirm the judgment.
“We view the evidence in a light most favorable to the judgment. [Citations.]” (In re Joseph M. (2007) 150 Cal.App.4th 889, 892.)
Arturo R., was sitting in his father’s van outside his apartment. Marco and his brother, later identified as Henry M., taunted and cursed at Arturo, and walked towards the van. Believing they were going to attack him, Arturo got out of the van to call for his father’s help. As he got out, Henry pulled Arturo from the van, and held and hit him. Marco punched Arturo in the face as Henry held him.
Marco’s other brother, Miguel M., approached Arturo, took out a knife from his pocket, and stabbed Arturo in the back. As Miguel stabbed him, Marco and Henry continued to hold and hit him. At Miguel’s urging, Marco and Henry left. Officers arrested Marco one week later.
Pursuant to Welfare and Institutions Code section 602, a petition charged Marco with one count of aggravated assault. (Pen. Code, § 245, subd. (a)(1).) At the contested jurisdictional hearing, after the juvenile court had heard all the evidence, the court concluded the prosecution failed to establish Marco committed an aggravated assault. In doing so, the court reasoned there were two different crimes, a fight and a stabbing. The court found true he committed a battery in violation of section 242.
All further statutory references are to the Penal Code, unless otherwise indicated.
Defense counsel objected to the court’s finding on the ground battery was not a lesser included offense of aggravated assault. The court recessed to research the issue. That afternoon, the court repeated its earlier finding there were two separate incidents and stated the issue was whether it could find true an assault or a battery. After hearing counsels’ arguments, the court adjourned the proceedings to further research the issue. The next day, the court found true that Marco committed misdemeanor assault.
In ruling, the court stated: “The court had previously taken this matter under submission. The question is can the juvenile court find a petition to be true regarding a lesser-included offense, over minor’s objection. [¶] In other cases, the court notes that -- just in the past few months -- there have been a number of findings of lesser-included offenses to be true, but in each case the minor consented. Here, we have no consent. [¶] In the bench book, California Judge’s Bench Guide to Juvenile Delinquency, the record indicates that a petition may not be augmented during trial over child’s objection to include a charge that is not a lesser-included offense. There’s case law on that particular issue. So allowing petitioner to amend during trial or at the conclusion of trial would be prohibited. There’s no mention as to whether the court, on its own, can make a finding of a lesser included offense. [¶] Minor’s counsel provided a 1982 case, In re Robert G. [(1982) 31 Cal.3d 437 (Robert G.)], and the court found in that case that the court had agreed -- the trial court had agreed with minor that a small rock that he had thrown could not be a deadly weapon. The court denied the motion for acquittal, and the court acknowledged that battery was not a lesser offense necessarily included in the assault with a deadly weapon charge. [¶] It went on to say ‘the court may not sustain a finding that minor has committed an offense other than one specifically alleged in the petition or necessarily included within the alleged offense, unless minor consents to the finding on the submitted charge.’ [¶] This court would find that this issue of lesser-included offenses should be considered by the court and revisited. There have been many changes since 1982. The courts are faced with a number of strike cases and faced with a number of gang allegations. [¶] Lesser-included offenses are certainly an issue in adult court in every case, and those lesser-included offenses are not worked out before trial begins, but are worked out during and at the conclusion of the trial. Attorneys go to great lengths in their deliberation on whether to ask for lesser-included offenses and whether their client should object to any lesser-included offenses. [¶] As far as the court is concerned, finding either the allegation to be true or not true is certainly the easier of the issues that the court may have. I could just rule and say the rest of it is not my problem, that it’s the [district attorney’s] or petitioner’s problem. But oftentimes -- how is one to know how the evidence is going to come before the court? [¶] Therefore, in this case, I said yesterday that I would not release minor, but since I am going against some cases -- I don’t want minor to be doing custody time because of my ruling, so I would change that at the conclusion of my findings. And then the case can be taken to a higher court for review.”
The juvenile court declared Marco a ward of the court, placed him on probation, and released him to his parents. Marco timely appealed.
DISCUSSION
Relying on People v. Lohbauer (1981) 29 Cal.3d 364 (Lohbauer),
Robert G., supra, 31 Cal.3d 437, and In re Johnny R. (1995) 33 Cal.App.4th 1579 (Johnny R.), Marco argues the juvenile court denied him his Fourteenth Amendment due process rights when it found true he committed a misdemeanor assault. Specifically, he claims the court lacked jurisdiction to find he committed the misdemeanor assault because “[t]he court erred in either adding the additional misdemeanor assault charge or in changing its determination that an attempted assault had occurred when the court had already found that a completed battery had occurred.” We disagree.
Assault is a lesser, necessarily included offense of assault with a deadly weapon. (People v. Toledo (2001) 26 Cal.4th 221, 225; People v. Page (2004) 123 Cal.App.4th 1466, 1474.) Battery, however, is not a lesser, necessarily included offense of assault with a deadly weapon. (Robert G., supra, 31 Cal.3d at p. 441; People v. Smith (1981) 122 Cal.App.3d 581, 592.)
In Lohbauer, supra, 29 Cal.3d at page 367, the California Supreme Court addressed the issue of whether defendant could be convicted of an offense which was neither specifically charged in the accusatory pleading nor necessarily included within the charged offense without consenting to the substituted charge. The information charged defendant with violating section 459, burglary, but after the trial court concluded there was reasonable doubt as to defendant’s guilt on that charge, it found defendant, over his objection, guilty of violating section 602.5, misdemeanor unauthorized entry of property. (Id. at p. 368.)
The Lohbauer court stated, “It is fundamental that ‘[w]hen 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.]’ [Citation.] As to a lesser included offense, the required notice is given 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. [Citations.] However, even when the charge does not so specify, the requisite notice is nonetheless afforded if the lesser offense is ‘necessarily included’ within the statutory definition of the charged offense; in such event conviction of the included offense is expressly authorized [citation]. In this connection we have said that ‘“‘[t]he 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.]’ [Citation.]” (Lohbauer, supra, 29 Cal.3d at pp. 368-369.) After the prosecutor conceded section 602.5 was not a lesser offense which necessarily was included within a violation of section 459, and the section 602.5 violation was not encompassed within the language of the information, the court concluded it could not sustain defendant’s conviction for violating section 602.5 because he did not have notice of the charge. The court concluded, “Because a violation of section 602.5 was neither charged nor necessarily included within the burglary charge, 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.’ [Citation.]” (Id. at p. 369.)
In Robert G., supra, 31 Cal.3d at page 439, the California Supreme Court addressed a similar issue as the Lohbauer court within the context of juvenile delinquency proceedings. A Welfare and Institutions Code section 602 petition charged minor with violating section 245, subdivision (a)(1), assault with a deadly weapon, after he threw a rock that hit a school custodian. The juvenile court agreed with minor that a rock was not a deadly weapon, but it denied minor’s motion for acquittal. (Ibid.) At the close of evidence, the court granted the prosecutor’s request to amend the petition to add a violation of section 242, battery, and the court sustained the petition on that count. (Id. at p. 440.) After the Robert G., court explained battery was not a necessarily included offense of assault with a deadly weapon, the court reasoned that the due process principles articulated in Lohbauer and In re Arthur N. (1976) 16 Cal.3d 226, are equally relevant in juvenile court proceedings. (Robert G., supra, 31 Cal.3d at pp. 441-443.) The court stated, “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.” (Id. at p. 445.)
Finally, in Johnny R., supra, 33 Cal.App.4th at page 1583, the court addressed the issue of whether the juvenile court properly amended the petition to include a charge not included in the original petition. The petition charged minor with violating section 245, subdivision (a)(1), assault with a deadly weapon. After the contested jurisdictional hearing had begun, the prosecutor filed an amended petition alleging a violation of section 12020, subdivision (a), possession of a dirk or dagger. (Id. at p. 1581.) Relying on Lohbauer and Robert G., the court reversed the juvenile court’s finding explaining section 12020 was not a lesser included offense of section 245, subdivision (a)(1), and minor did not consent to the amendment. (Id. at pp. 1582-1585.)
Here, the juvenile court initially found true Marco committed a battery, but after defense counsel objected, and the court researched the issue and heard argument, the court found true he had committed a misdemeanor assault. The court’s finding he committed a battery was essentially a tentative ruling, which by definition is not a final ruling or decision, and did not become the court’s final order. Thereafter, the court issued its final order concluding Marco committed a misdemeanor assault, which is a lesser, necessarily included offense of aggravated assault. When the petition charged Marco with aggravated assault, he was put on notice that the juvenile court could find he committed the lesser, necessarily included offense of misdemeanor assault. The court did not amend the petition to include an offense that was not included in the charged offense. Therefore, the due process concerns present in Lohbauer, Robert G., and Johnny R., are not present here. Had the juvenile court issued a final order finding true he had committed a battery in violation of section 242, we would agree with his jurisdictional contention because the petition did not charge him with that crime, that crime is not a lesser, necessarily included offense of aggravated assault, and he did not consent to the charge. However, those are not the facts we have here.
With respect to Marco’s claim insufficient evidence supports the juvenile court’s finding he committed misdemeanor assault, we conclude there was overwhelming evidence he assaulted Arturo. (People v. Bolin (1998) 18 Cal.4th 297, 331 [we review entire record in light most favorable to judgment in assessing sufficiency of evidence].) Assault is defined as “‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’” (People v. Williams (2001) 26 Cal.4th 779, 784.) The evidence presented at the contested jurisdictional hearing established Marco beat Arturo on the head and face while Henry held Arturo. The fact Marco “actually completed his attempt to inflict injury [does] not preclude his conviction [for] assault.” (People v. Wright (1996) 52 Cal.App.4th 203, 209, fn. 14; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 2, pp. 638-639.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J.,IKOLA, J.