In re Samuel B.

Filed 6/13/08 In re Samuel B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Donna L. Crandall, Judge. Affirmed.

Sylvia Whately Beckham, 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, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

The sole issue in this appeal is whether an overt act alleged as part of a conspiracy provides a juvenile offender with sufficient notice to permit amending the petition to allege the overt act as a separate offense. Based on the language of the overt act alleged in the information, we find the minor had notice sufficient to satisfy due process.

I

FACTS

Late in the evening on December 8, 2006, Officer Hugo Garcia of the Fullerton Police Department drove by a Walgreens store in Fullerton. He observed two men, later identified as Samuel B. (Samuel) and Jose Santiago Placentia. Garcia decided to contact them and pulled into the parking lot. As he did so, he saw them enter the store. As they entered, they looked around, and Garcia suspected they were casing a robbery or about to commit a robbery. Samuel then noticed Garcia outside, and drew a black handgun. At that point, Garcia approached the store with his gun drawn and ordered both suspects to the ground. Garcia recovered the gun and observed one .22 caliber bullet inside.

At the police station, Samuel told officers that he and his friend went to the store to buy cigarettes and he had the gun for protection. He admitted using methamphetamine earlier in the day. His demeanor was extremely nervous, fidgety, and his eyes were dilated. He also told the police he had arranged for Placentia to buy the gun from a friend earlier that day.

On December 12, the Orange County District Attorney filed a 12th petition involving Samuel based on the December 8 incident. The petition alleged conspiracy to commit a crime (count one; Pen. Code, 182,^[1]subd. (a)(1)), commercial burglary (count two; 459), and active participation in a criminal street gang (count three; 186.22, subd. (a)). The petition alleged that counts one and two were committed with the intent to promote, further or assist criminal conduct by gang members ( 186.22, subd. (b)(1)) and that Samuel was armed with a firearm ( 12022, subd. (a)(1)). In connection with count one, the petition alleged three overt acts, one of which was that Samuel armed himself with a concealed or loaded gun. A subsequent petition was filed on January 10, 2007, alleging that Samuel was under the influence of methamphetamine during the Walgreens incident. (Health & Saf. Code, 11550, subd. (a).)

A contested jurisdictional hearing began on April 2 and addressed both the 12th and 13th petitions. After the prosecution rested, the court granted the defenses request to dismiss counts one and two on the grounds of insufficient evidence. The prosecution then requested permission to amend the petition to add a weapons charge. The defense objected, and the court granted the parties time to research the issue. After further review, the court granted the prosecutions motion to add a fourth count, a misdemeanor charge of being a minor in possession of a concealed firearm (count four;

12101, subd. (a)(1)). The court then granted Samuels request to dismiss count three of the 12th and 13th petitions.

The court found Samuel guilty of count four, the misdemeanor weapons charge. Samuel was continued as a ward of the court with supervised probation and ordered to serve 180 days in an appropriate juvenile institution.

II

DISCUSSION

The sole issue on appeal is whether a due process violation occurred when the court permitted the prosecution to amend the petition to add the misdemeanor gun charge. Samuel argues that alleging possession of the gun as an overt act in the conspiracy charge is not sufficient notice to satisfy due process.

Due process requires that a minor, like an adult defendant, have sufficient notice of the charges against him. (In re Robert G. (1982) 31 Cal.3d 437, 442.)

In Robert G., a Welfare and Institutions Code section 602 petition charged the 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 the minor that a rock was not a deadly weapon, but it denied his motion for acquittal. (Id. at p. 439.) At the close of evidence, the court granted the prosecutors 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 Supreme 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 cases involving adult defendants are equally relevant in juvenile court proceedings. (Id. at pp. 441-443.) Thus, 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.)

Samuel argues that because the alleged overt acts themselves are not elements of a conspiracy, the specific conduct alleged can never have any necessarily included offenses. Courts, however, have adopted differing views. In People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1709 (Fenenbock) the court held that in a conspiracy prosecution, the determination as to whether the trial court has a duty to instruct on conspiracy to commit lesser offenses must be based on the description of the agreement in accusatory pleading, not on the alleged overt acts.

But in People v. Cook (2001) 91 Cal.App.4th 910 (Cook), the court disagreed with Fenenbock. In Cook, the information charged the defendants with conspiracy to commit murder by means of a firearm, alleging the defendants shot and killed one victim and shot and wounded another. The trial judge instructed the jury that if it had a reasonable doubt that defendants were guilty of conspiracy to commit murder, it could convict them of the lesser included offense of conspiracy to commit assault with a firearm.

The appellate court held this was proper. Under the accusatory pleading test for lesser included offenses, the facts actually alleged in the pleading must include all the elements of the lesser offense; thus, the greater offense cannot be committed without also committing the lesser offense. (Cook, supra, 91 Cal.App.4th at p. 918.) Disagreeing with Fenenbock, the court found that in this particular case, the trial court could look to the overt acts pled in the conspiracy charge to determine whether the charged offense includes a lesser-included offense. Approaching the matter as one of due process and notice, the court noted that overt acts must be pled with particularity. (Id. at pp. 920-921.) To the extent an accusatory pleading fails to allege overt acts sufficient to give notice of a lesser included offense, the trial court may not rely on the pleading as a basis to instruct on lesser included offenses not included in the allegations of that pleading. Nevertheless, the possibility that some pleadings charging conspiracy may fail to give sufficient notice of lesser included offenses is not cause to hold, as a matter of law, that no pleading charging conspiracy gives sufficient notice of lesser included offenses.

(Id. at p. 921.)

We feel that the rule articulated by the Cook decision is preferable to the one offered by Fenenbrock. At the end of the day, the issue is one of due process did the defendant have sufficient notice that his actions might subject him to criminal penalty, and did he have the opportunity to prepare a defense? If he did, then due process is satisfied. Here, the information alleged that the minor armed himself with a concealed or loaded gun. The charge the court permitted was in violation of section 12101, subdivision (a)(1), which states: A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person. The overt act alleged is nearly identical to the charge added by amendment, and thus, Samuel had sufficient notice. We therefore find no due process violation.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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^[1]Unless otherwise indicated, subsequent statutory references are to the Penal Code.