In re Donte J.

Filed 2/25/08 In re Donte J. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Donte J. is a teenager who has had extensive experience with the juvenile court. While already a ward of that court, Donte became involved in a schoolyard fracas that led to this delinquency proceeding. The prosecuting attorney filed a subsequent petition in which it was alleged that during the fracas Donte committed felony battery involving the infliction of serious bodily injury (Pen. Code,  243, subd. (d)), and also committed felony assault by means of force likely to cause great bodily injury (Pen. Code,  245, subd. (a)(1)).

The evidence introduced at the jurisdictional hearing showed that the petition overcharged. After hearing all the evidence, the juvenile court initially granted Dontes motion to dismiss the battery charge as alleged. The court then concluded that Donte had committed a battery on school property (Pen. Code,  243.2), which the court sustained as a lesser offense of the assault charge. At the dispositional hearing, the court continued Donte as a ward, admitted him to probation, and ordered him placed in a group home under the supervision of the probation officer.

The contentions Donte advances on the timely appeal are entirely procedural. Distilling them to their essence, his arguments are that no misdemeanor battery could be found because the court had already dismissed the felony battery count alleged, and that the misdemeanor battery count could not be sustained because it was not a lesser included offense of the remaining charged offense of felony assault. We conclude that, viewed in proper context, the courts dismissal of the felony battery count as alleged did not disable the courts power to find that a lesser included offense was made out. However, the misdemeanor battery found, that is, one committed on school property, was improper. We therefore will modify the juvenile courts jurisdictional finding to reflect that Donte committed simple misdemeanor battery, and affirm.

BACKGROUND

Donte first came to the attention of the juvenile court when he and his two siblings became dependents in 2001. The dependency was terminated the following year.

Donte became a delinquency ward in 2004, after the court sustained an allegation that he committed robbery while armed with a knife. Donte was placed on probation, but allowed to remain in his mothers custody. The probation officer noted at that time that Donte is an impulsive and angry [teenager] who has been very disruptive and threatening in school. Now his behaviors are spilling over to the community.

This was not an isolated observation. The record has considerable proof that Donte was having difficulty adjusting to the onset of adulthood and exhibiting inappropriate behavior at school. The most notable instance of these difficulties was a supplemental petition filed pursuant to Welfare and Institutions Code section 777 after Donte brandished a knife at his brother.[1]

By October of 2006, the efforts of the court and juvenile authorities appeared to be succeeding. In fact, the probation officer was recommending that the dependency proceeding be terminated. But on October 26 the prosecuting attorney filed a petition in which he alleged that Donte had committed: (1) a violation of Penal Code section 243, subdivision (d) in that he did commit a battery upon the person of Jennifer [D.] which resulted in the infliction of serious bodily injury, to wit: severely swollen eye, and (2) a violation of Penal Code section 245, subdivision (a)(1) in that he did assault Jennifer [D.] by means of force of force likely to produce great bodily injury. The next day, the court ordered Donte detained, but he was later returned to his mothers custody.[2]

The jurisdictional hearing was held on February 5, 2007. The evidence received requires only brief summary because it was largely without dispute and because Donte does not challenge its sufficiency. The evidence showed that the charges arose from an incident at Mission High School. Students Michael S., Joseph B., and Jennifer D., the named victim, testified that around noon on October 24, 2006, they were in the schools lounge area. Michael offered Jennifer a piece of cookie. Donte asked for some of the cookie, a request Michael rejected.

Donte cursed at Michael and shoved him aside. Donte then turned his attention to Jennifer, who had told him to leave Michael alone. Donte cursed at her, and he and Jennifer pushed each other. According to Jennifer, Donte started choking me, then slammed me to the ground, and began socking me, punching me on my back. Joseph and Michael corroborated Jennifers version of the altercation. Jennifer suffered various bruises and marks around my throat from him choking me.

Donte testified that Jennifer was the aggressor. According to Donte, he tried to retreat. It was Jennifer who tried to grab his throat and who aimed the first blow, although he did push at her in response. Jennifers injuries were the result of her falling to the ground without any help from him. Dontes version was partially corroborated, i.e., up to the point the violence began, by the school nutritionist (who apparently sold Michael the cookie).

After both sides completed presenting their evidence, the prosecuting attorney moved to amend the petition as to the date the alleged offenses were committed. He also stated with respect to Count One, based upon the evidence thats been presented, I think theres insufficient evidence to establish the serious bodily injury. Although there was testimony of a swollen eye, I think the code requires more substantial injury than has been testified to. [] So, we will just be proceeding on Count Two.

The court responded: All right. At the motion of the petitioner, the petition is amended without objection to allege conduct on October 24, 2006, and, in addition, Count One of the subsequent petition filed October 26, 2006, is dismissed. The court then heard argument from counsel.

Dontes attorney then made a detailed dissection of the credibility of the other students testimony, and argued that Donte had acted in self-defense. During the course of his lengthy remarks, Dontes counsel stated:

With regards to the specific elements of the crime, too, Donte has to have done an act by which nature would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury. [] He did the act willfully when he acted. He was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to somebody. And when he acted, he had the present ability to apply force likely to produce great bodily injury and he did not act in self-defense.

. . .   I dont know even with the testimony if the Court said that the District Attorney has proved, again, that Donte did not act in self-defense.

About the force used . . . .

We dont have, again, any documentation, any medical reports, anything visual to see whats specific about what these injuries looked like. We have testimony that the eye swelled up and that there were bruises to the knee and I think Jennifer testified, she said scratches to the neck.

But Im asking you againIll keep sounding like a broken recordto take this in the lens of her testimony and her believability.

That if Donte had pushed . . . , is that something where there is force likely to cause great bodily injury? In a sense of when were thinking about great bodily injury and the force used, I dont think that that elements been met. And I dont think the Court found that there was proof that this rises to the level of felony conduct, especially given the fact that we have here at most, in a sense, misdemeanor battery.

If the Court found that there was information that felt it proved the charge beyond a reasonable doubt, but I dont believe thats the case that we have here.

I would ask the Court to make a no finding on the fact that, one this action, based on Dontes testimony, was defending himself and there is no right [sic] [duty] to retreat, even though it seems like he had done that a couple of times, backed up. Or, if the Court felt that the prosecution has met their burden, that this is, in a sense, misdemeanor conduct of a 242.

After listening to the prosecuting attorney argue for the felony assault charge as alleged, the court ruled as follows:

All right. Ive carefully listened to the arguments . . . . I am also mindful of the testimony that I have heard from all of the witnesses, including the minor, and I think taking all of that evidence as a whole and analyzing from the point of view of whether the petitioner has met its burden with respect to a 245(a)(1), I am unable to make that finding. [] I do feel that the facts persuade me beyond a reasonable doubt that there was a violation of a lesser charge, that is, violating Section 242 of the Penal Code, a misdemeanor. [] I do not credit Dontes testimony that he was entirely retreating at all times. . . . I do think that there is credible persuasive testimony that at least some unlawful touching occurred sufficient to make out a misdemeanor 242 and thats what I find occurred.

The prosecuting attorney then inquired, [C]an we ask one thing with respect to the finding in that it occurred on a school ground and that is unrefuted testimony. Can it be a 243.2? The court replied: Well, it incontrovertibly did occur on school grounds, so that would make out a 243.2 misdemeanor. Thats what Ill find.

At the dispositional hearing, before the court made its dispositional order, Dontes counsel made an objection to the decision-making procedure behind the sole jurisdictional finding: I think the Court . . . dismissed Count One and there was a finding on Count Two as a misdemeanorat first 242, and [the prosecuting attorney] said it was a school campus, 243.2. So I would just for the record object to the finding of the 243.2 and submit.

DISCUSSION

The principles necessary to understanding Dontes appellate arguments are not hard to grasp. It is elemental that a juvenile has due process rights to notice of charges he or she is alleged to have committed. The charges are those alleged in the petition. However, our Supreme Court has repeatedly stressed that the gravamen of a wardship petition [is in] proving that a minor had committed a criminal offense, and not necessarily the offense charged in the petition. . . . [I]n order to provide the minor with the notice required by due process, the findings adequate to sustain a petition [are] limited to proof that the minor committed an offense included within that charged in the petition.  (In re Robert G. (1982) 31 Cal.3d 437, 443, citing and quoting In re Arthur N. (1976) 16 Cal.3d 226, 232-233, italics added.) In addition, although assault is a lesser included offense of battery (People v. Ortega (1998) 19 Cal.4th 686, 692), battery is not included within the felony offense of assault by means for force likely to produce great bodily injury. (People v. Yates (1977) 66 Cal.App.3d 874, 879.)

Working from these principles, Donte reasons as follows: Once the juvenile court dismissed the felony assault count charged, that ruling in effect extinguished the charge for all purposes, including it being used as the basis for a finding that Donte committed the lesser included offense of misdemeanor battery. With the original battery charge out of the picture, misdemeanor battery could not be a lesser included offense of the remaining felony assault charge. This is even more true of the misdemeanor actually sustained, because a school venue is not an element of either the felony battery or the felony assault charges originally alleged, so there is no way misdemeanor battery committed on school property (Pen. Code,  243.2, subd. (a)(1)) is a lesser included offense that the juvenile court could properly conclude was committed by Donte.

These arguments have been ably formulated and advanced by Dontes appellate counsel. Counsels arguments are premised upon the principles governing criminal trials of adults. However, it must be remembered that we are reviewing not the criminal trial of an adult, but the distinctly different procedure for adjudicating a delinquency petition against a minor. A juvenile proceeding is not the mirror image of an adult criminal trial. Not every jot and tittle of the same procedure is found in both. Juvenile court proceedings have purposes other than that of punishment, and they are afforded greater flexibility to achieve individualized treatment of each minor. (See Welf. & Inst. Code,  680; In re MyresheiaW. (1998) 61 Cal.App.4th 734, 740-741; Mark F. v. Superior Court (1987) 189 Cal.App.3d 206, 210-211; In re Dorothy B. (1986) 182 Cal.App.3d 509, 519.)

Dontes counsel places considerable reliance on the word dismissal used by the court in connection with Count One of the petition, in which it was alleged that Donte committed felony battery with serious bodily injury. This reliance is entirely understandable but, we believe, overly strict in its literalism.

Without question, the court did use the word, but that does set the matter in concrete, and make the consequences immutable. The courts sua sponte introduction of the word[3] did not, by itself, achieve the permanence one commonly associates with a dismissal. There is authority that two factors may differentiate the situation at bar from a true dismissal. First, there was not observance of the formalities, i.e., a written order of dismissal entered in the minutes. Second, there was not a discrete break in the operative events or proceedings. Thus, because the court proceeded, at the same hearing and on the same day, to make a decision seemingly at odds with a bona fide dismissal, precedent has recognized that a purported dismissal is in truth no more than an interlocutory ruling. In these circumstances of a single proceeding, specifically the jurisdictional hearing for a delinquency, there is an absence of the multiple proceedings necessary for a violation of the double jeopardy protections. (In re Stephen P. (1983) 145 Cal.App.3d 123, 134-135; In re Anthony H. (1982) 138 Cal.App.3d 159, 165-167; see also In re Robert B. (1995) 39 Cal.App.4th 1816, 1823, fn. 3.)

Much of this approach could be applied here. The dismissal was not entered in the minutes prior to the juvenile court going on to find that Donte had committed a misdemeanor battery. The two rulings were separated by mere minutes, and both occurred at the same hearing. The finding might therefore be treated as a de facto repudiation of the dismissal. Under this approach, there could be no objection to a finding of misdemeanor battery while at pretty much the same time the court determined that the felony battery charged in Count One was not proved. And, indeed, Dontes counsel made no such objection at the jurisdictional hearing. On the other hand, the juvenile court made no express retraction or reconsideration of the dismissal (as occurred in In reStephen P., supra, 145 Cal.App.3d 123, 134 [the court . . . announced it had made an error it intended to correct]; In re Anthony H., supra, 138 Cal.App.3d 159, 164 [I realize I made an error, backed up, set that aside]).

There is another approach, one which accepts the dismissal of Count One as valid and binding, but still upholds the ultimate result. Before discussing it, however, we think it appropriate to mention a possible misapprehension that appears to permeate the briefs. Both Donte and the Attorney General treat the juvenile court as having found the misdemeanor battery to be a lesser included offense of Count Two, the felony assault charge. There is room for doubt of this construction. As noted above, the court simply stated that misdemeanor battery was a lesser charge, not a lesser included offense. The point is significant because a court may consider a lesser charge that is not a lesser included charge, if the accused consents. (In re Robert G., supra, 31 Cal.3d 437, 444; In re Alberto S. (1991) 226 Cal.App.3d 1459, 1465.) The Attorney General submits that Donte did consent to the court finding that he committed the lesser offense of misdemeanor battery. We agree.

As shown from the excerpts quoted above, it was Dontes counsel who first raised the possibility that the court could find that Donte had committed misdemeanor battery. This concession was made during argument on Count Two, the assault count, after the court had dismissed Count One, the battery count. Specifically, counsel argued that the evidence did not support the felony charge, but that we have here at most . . . misdemeanor battery. Nor can this be denigrated as an isolated or meaningless remark, because Dontes counsel immediately went on state that this is . . . misdemeanor conduct of a 242.

Donte argues that counsels remarks were nothing more than argument concerning the insufficient state of the evidence for the charged offense. Although counsels remarks can be so read, it is a strained and unnatural interpretation. We therefore treat counsels remarks as a concession that the court could legitimately find that Donte committed misdemeanor battery. Moreover, counsel had two opportunities to retract this concession, or deny that it was made, and at neither time did he do so. There was no protest from Dontes counsel when the prosecuting attorney suggested that the finding be for misdemeanor battery committed at a school. And when Dontes counsel did object at the dispositional hearing, he did so merely as to the type of misdemeanor battery, but he did not argue the court could now not find that Donte did commit misdemeanor battery as he had suggested.

On the other hand, the scope of that consent went no further than simple misdemeanor battery. It did not extend to the prosecuting attorneys suggestion of misdemeanor battery committed upon school grounds. Moreover, counsels objection at the jurisdictional hearing was only to misdemeanor battery described by Penal Code 243.2; significantly, counsel did not extend the objection to his original concession, that is, a battery described by Penal Code section 242. The Attorney General concedes that the record can be read to this end, and suggests that reduction of the offense to simple battery would be appropriate. We agree, and make the modification pursuant to our authority under Penal Code section 1260.

DISPOSITION

The jurisdictional finding underlying the dispositional order is modified by showing that the minor committed misdemeanor battery (Pen. Code,  242, 243, subd. (a)). As so modified, the order is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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[1] The petition was originally filed in February 2005, but dismissed the next month. A new petition was filed in October 2005 on the ground that Donte was suspended from school . . . for five days for causing, attempting to cause or threatening to cause physical injury to another person and disrupting school activities. Additionally, the minor has cut school [on five days] and has been tardy fifteen times. Donte admitted the allegations of this petition in November 2005.

[2] Nevertheless, the court received reports that Dontes behavior at school thereafter suffered, and he regressed to being disruptive and disrespectful to teachers. This led to a third supplemental petition pursuant to Welfare and Institutions Code section 777 seeking a more restrictive placement. The court denied the probation officers earlier recommendation to terminate the dependency, but it did dismiss this latest 777 petition at the dispositional hearing.

[3] It should be remembered that although the prosecuting attorney did not explicitly ask for a dismissal of Count One, he clearly did so by implication when he announced to the court that [W]e will just be proceeding on Count Two.