Opinion
F085222
09-28-2023
In re J.B., a Person Coming Under the Juvenile Court Law. v. J.B. Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue, and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. JVDL-22-000138 Jeff Mangar, Judge.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue, and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
On August 2, 2022, a juvenile petition was filed pursuant to section 602 of the Welfare and Institutions Code alleging J.B. committed carjacking (Pen. Code, § 215).J.B. denied the allegation and the matter proceeded to a contested jurisdictional hearing. The juvenile court found the carjacking allegation not true. However, the court found true the lesser related offenses that defendant received a stolen vehicle (§ 496d, subd. (a)) and unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a)). Defense counsel objected that notice requirements were not met with regard to the lesser related offenses. However, the court declared J.B. a ward of the court, placed him on probation, and ordered him to serve 119 days in juvenile hall.
Further statutory references are to the Penal Code, unless otherwise noted.
J.B. contends on this appeal that his due process rights were violated when the juvenile court found true the two offenses which were not alleged in the juvenile petition and are not lesser included offenses of carjacking. Alternatively, J.B. contends there was insufficient evidence of receiving a stolen vehicle pursuant to section 496d, subdivision (a) or unlawful taking or driving a vehicle pursuant to Vehicle Code section 10851, subdivision (a). The People concede that the two uncharged offenses were not lesser included offenses of carjacking and the court's finding violated due process. In light of the respondent's concession, J.B. withdrew his insufficient evidence claims since the court was barred from trying the uncharged offenses. We agree and vacate the juvenile court's findings and remand for dismissal of the juvenile petition in this matter.
FACTUAL SUMMARY
A. Prosecution Evidence
On July 30, 2022, at about 10:00 p.m., a group of seven individuals kicked, pushed, and hit Jose Altamirano Silva as he was dusting off his car. During the beating, Altamirano's pants pocket was torn, and his car keys fell to the ground. One of the individuals grabbed the car keys and, along with three others, got into Altamirano's car and "took off." The other attackers ran away. Their heads were covered with their sweatshirt hoods, and they were all wearing masks. After the attack, Altamirano waived down a passing police officer and reported the incident. The next day at around 6:18 p.m., Modesto Police Sergeant Michael Hicks responded to a call to assist officers who were following a stolen vehicle. J.B., K.S., and Jacob W. were stopped and arrested. Altamirano identified the three persons arrested as the individuals who beat him up the night prior.
We note that while the record consistently spells the victim's name "Altamirano," the reporter's transcript lists the spelling as "Altaminaro." We utilize the former spelling for consistency.
B. Defense Evidence
On Sunday, July 31, 2022, J.B. texted K.S. and they made plans to smoke weed together. K.S. was the cousin of one of J.B.'s friends. J.B. would meet up with K.S. occasionally to smoke weed. Since moving downtown, J.B. said K.S. was the closest person he knew. K.S. did not have a vehicle, so when they played basketball together, they walked.
While making plans Sunday, K.S. texted J.B. saying he was "getting a car." J.B. texted K.S. from about 2:00 p.m. to 6:00 p.m. At 6:54 p.m., J.B. asked K.S. where he was and to come pick him up. K.S. called J.B. and told him he had a vehicle and was on his way, and told J.B. to wait outside. K.S. arrived driving a black sedan, while K.S.'s cousin was in the front passenger seat and J.B. got in the back passenger seat. J.B. noticed K.S. was wearing gloves and asked him "what's up with the gloves[?]" K.S. responded, "so my fingerprints don't get on the steering wheel or on the gear thing." J.B. testified he did not pay any attention to the comment because he did not think the vehicle was stolen. They drove to a store where K.S.'s cousin went in to purchase gloves; K.S. and J.B. stayed in the vehicle. J.B. said he did not pay any attention to why the cousin was buying gloves and said he only knew they did not want to get their fingerprints on the vehicle. J.B. said that K.S. told him on the phone before picking him up that it was his vehicle and so he believed the vehicle belonged to K.S. or someone he knew.
After driving away from the store, J.B. noticed there was an officer behind them and warned K.S. K.S. took a sharp left turn but there was another police car ahead of them. The police cars turned on their lights and started following them. K.S. did not stop. J.B. said K.S. and his cousin were calm until they noticed the officers were following them, at which point K.S.'s cousin said "go, go" and they tried to drive away. J.B. told K.S. to pull over and he did, and all three got out and ran. J.B. said he ran because the others were running, and it was his first instinct to run as well. J.B. believed at that point K.S. and his cousin were running because it was not their vehicle. J.B. said that once the police were behind them, he "figured something was iffy." J.B. said, "you don't wear gloves in your own car. So I just figured something was iffy."
DISCUSSION
J.B. contends the juvenile court erred when it found true two offenses not alleged in the petition and which were not lesser included offenses of the charged offense, to which J.B. pled not guilty. Respondent concedes that J.B. did not receive proper notice and agrees that the findings should be vacated. We agree and vacate the true findings.
A. Relevant Factual and Procedural Background
At the end of evidence, defense counsel argued that the People did not prove there was a carjacking. Defense counsel and the juvenile court entered into the following discussion about alternative offenses:
"[DEFENSE COUNSEL]: So as far as the fleeing is concerned, I do believe that had [J.B.] been appropriately charged with, like, joyriding or possession of a stolen vehicle, then we wouldn't be here today.
"THE COURT: Isn't that a lesser to carjacking?
"[DEFENSE COUNSEL]: But there was never an offer for lesser to carjacking. It was just that he admit to the carjacking, and then he could be free on [deferred entry of judgment].
"THE COURT: Okay. So we're not talking about-we can't go into your discussion. But I'm saying in this circumstance ... it seems like the requirements are met here for a [Vehicle Code section] 10851, which doesn't require theft, and/or a [section] 496d. [I j]ust want to get your thoughts on that.
"[DEFENSE COUNSEL]: My thoughts, your [h]onor, are that I believe that if [J.B.] had been appropriately charged with those lessers
"THE COURT: So regardless of whether he was appropriately charged, because it's a lesser included [offense] ._"
Before the juvenile court ruled, defense counsel argued based on case law that Vehicle Code section 10851 and section 487d were not lesser included offenses of section 215, carjacking. The court concluded: "So what I'm going to find is that he's not guilty of the charge, so not guilty of carjacking. But I'm going to find that he's responsible for a lesser related offense, and that will be [Vehicle Code section] 10851, as well as [section] 496[d], and that would be to conform with the date of the offense." Defense counsel objected, arguing that J.B. was not given proper notice of these two charges as required by due process.
B. Applicable Law and Standard of Review
A juvenile in a delinquency matter is entitled to the same constitutional guarantees of due process as those accorded an adult criminal defendant. (In re Gault (1967) 387 U.S. 1, 30-31.) This includes constitutionally adequate notice of the charges. (Id. at pp. 33-34.)
"' "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." '" (People v. Lohbauer (1981) 29 Cal.3d 364, 368 (Lohbauer), citing People v. West (1970) 3 Cal.3d 595, 612.) "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." (Lohbauer, at pp. 368-369; West, at p. 612; People v. Marshall (1957) 48 Cal.2d 394, 405.) "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." (Lohbauer, at p. 369; see also § 1159 ["The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense."].)
Reviewing courts employ the elements test and the accusatory pleading test to determine whether one offense is necessarily included within another. (People v. Reed (2006) 38 Cal.4th 1224, 1227, 1231.) Under the elements test, one offense is necessarily included within another "if the statutory elements of the greater offense include all of the statutory elements of the lesser offense." (Id. at p. 1227.) "In other words, 'if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.'" (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya); People v. Pendleton (1979) 25 Cal.3d 371, 382 ["' "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."' "].) Under the accusatory pleading test, the latter is necessarily included within the former "if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense." (Reed, at pp. 1227-1228.) In applying this test, reviewing courts consider "only the pleading for the greater offense." (Montoya, at p. 1036, italics omitted.)
Carjacking is defined as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)
Vehicle Code section 10851, subdivision (a), provides: "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense." Thus, "[a] person can violate [this statute] 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).'" (People v. Garza (2005) 35 Cal.4th 866, 876.)
A person is guilty of receiving a stolen vehicle when he or she "buys or receives any motor vehicle ... that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle . . . from the owner, knowing the property to be so stolen or obtained ._" (§ 496d, subd. (a).) Notably, receiving stolen property does "not require the defendant to have engaged in any such taking." (People v. Orozco (2020) 9 Cal.5th 111, 121-122.)
C. Analysis
J.B. contends his due process right to notice of the charges was violated when the juvenile court found true Vehicle Code section 10851 and section 496d, which were not alleged in the juvenile petition. J.B. argues that Vehicle Code section 10851 and section 496d are not lesser included offenses of section 215. Respondent agrees that the court erred and concedes that uncharged offenses of unlawful taking of a vehicle and receiving a stolen vehicle were not lesser included offenses of carjacking and that the court's true findings should be reversed.
1. Unlawful Taking or Driving of a Vehicle (Veh. Code, § 10851, subd. (a))
In Montoya, our high court found that under the elements test, the" 'crime of unlawfully taking a vehicle [Veh. Code, § 10851, subd. (a)] is not a lesser included offense of carjacking because a person can commit a carjacking without necessarily committing an unlawful taking of a vehicle.'" (Montoya, supra, 33 Cal.4th at p. 1035.) The Montoya court stated that" '[c]arjacking is a crime against the possessor or passengers in a vehicle. [Unlawful taking of a vehicle] is a crime against ownership.'" (Ibid.) As an example, the court explained, it is possible for a person to steal a vehicle from a driver, who is not the owner of the vehicle, and return it to the lawful owner. This person could be guilty of carjacking, intending to deprive the driver of possession of the vehicle, but not of an unlawful taking of a vehicle, lacking intent to deprive the owner of the vehicle. (See ibid.) Thus, under the elements test, unlawful taking of a vehicle under Vehicle Code section 10851, subdivision (a) is not a lesser included offense of carjacking.
The Montoya court also found that carjacking, as alleged in the pleading, did not include the requisite allegations for unlawful taking of a vehicle to be a lesser offense, which requires proof that the taking of a vehicle was without its owner's consent. (Montoya, supra, 33 Cal.4th at p. 1036.) Here, like in Montoya, the petition alleged that J.B. "did willfully, unlawfully, and feloniously take a motor vehicle in the possession of Altamirano by force and fear, from his person and immediate presence, against his will and with the intent to either permanently or temporarily deprive such person of the possession of said vehicle." The pleading identified Altamirano as being in possession of the vehicle but did not allege that Altamirano was the owner of the vehicle or that the taking was without his consent. The pleading does not describe the "greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime." (People v. Moon (2005) 37 Cal.4th 1, 25-26.) Therefore, unlawful taking of a vehicle was not a lesser included offense of carjacking under the pleading test.
2. Receiving a Stolen Vehicle (§ 496d, subd. (a))
Similarly, the crime of receiving a stolen vehicle (§ 496d, subd. (a)) is not a lesser included offense of carjacking under either test. First, under the elements test, a person can commit a carjacking without necessarily being guilty of receiving a stolen vehicle. There is no requirement under carjacking that the person received a stolen vehicle nor that they knew the vehicle was stolen. (See § 496d, subd. (a).) Since the legal elements required for receiving a stolen vehicle are not included in the definition of the greater crime of carjacking, it is not a lesser included offense of carjacking under the elements test. (See People v. Reed, supra, 38 Cal.4th at p. 1227.) In other words, the carjacking could have "be[en] committed without also necessarily committing [the] lesser offense" of receiving stolen property. (See Montoya, supra, 33 Cal.4th at p. 1034.)
Nor does the accusatory pleading here include language describing the offense in such a way that if committed as specified, the offense of receiving stolen property is necessarily committed. (See Montoya, supra, 33 Cal.4th at p. 1035; People v. Lopez (1998) 19 Cal.4th 282, 288-289; People v. Moon, supra, 37 Cal.4th at pp. 25-26.) Here, the pleading does not allege that J.B. received a vehicle that was stolen, nor that J.B. knew the vehicle was stolen. Therefore, the crime of receiving a stolen vehicle is not a lesser included offense of carjacking under either test.
Consequently, we conclude the juvenile court erred when it found true the uncharged offenses of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (§ 496d, subd. (a)) as lesser included offenses of carjacking (§ 215, subd. (a)). We hereby order the juvenile court's findings vacated.
We now consider the proper disposition of the appeal on this matter. In Lohbauer, the defendant appealed his conviction, claiming the trial court erred when it found him guilty of entering a noncommercial dwelling without the consent of the owner (§ 602.5), when it was not alleged in the complaint and not a lesser included offense, after finding him not guilty of the charged crime of burglary (§ 459). (Lohbauer, supra, 29 Cal.3d at p. 368.) The Lohbauer court agreed that entering a noncommercial dwelling was not a lesser included offense of burglary and concluded the trial court erred. (Id. at p. 369.) It noted that the defendant had been acquitted of the charged offense of burglary and that" '[a] conviction or acquittal of a lesser included offense is a bar to a subsequent prosecution for the greater including offense.'" (Id. at p. 372; Kellett v. Superior Court (1966) 63 Cal.2d 822, 828.) The Lohbauer court concluded that "the trial court's erroneous belief ... that it was convicting [the] defendant of an uncharged, necessarily included offense does not affect [the] defendant's acquittal of the burglary offense charged, 'and with respect to that charge he is entitled to his release.'" (Lohbauer, at p. 372; In re Hess (1955) 45 Cal.2d 171, 176.) In the same way here, the juvenile court's erroneous belief that it was convicting J.B. of lesser included offenses does not affect his acquittal of the carjacking offense charged. Double jeopardy protections prevent him from being retried on the same charge. (Lohbauer, at p. 373; see Bunnell v. Superior Court (1975) 13 Cal.3d 592, 606; § 1023.)
Moreover, any retrial on previously uncharged offenses is barred. (See Lohbauer, supra, 29 Cal.3d at pp. 372-373.) The "[f]ailure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Kellett v. Superior Court, supra, 63 Cal.2d at p. 827.) Consequently, we need not consider J.B.'s alternative argument that there was insufficient evidence to support the juvenile court's true findings.
In his reply brief, J.B. agrees that "In light of respondent's concession to [a]rgument I, and because appellant's sufficiency of the evidence arguments ([a]rguments II and III in appellant's opening brief) were raised in the alternative to [a]rgument I, this [c]ourt need not address the sufficiency of the evidence arguments."
DISPOSITION
The juvenile court's true findings of violations of section 459d, subdivision (a) and Vehicle Code section 10851, subdivision (a) are reversed, and the matter is remanded to the juvenile court with directions to dismiss the juvenile petition.
[*] Before Franson, Acting P. J., Meehan, J. and DeSantos, J.