In re Gonzalo B.
Filed 7/18/08 In re Gonzalo B. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re GONZALO B., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. GONZALO B., Defendant and Appellant. | F053178 (Super. Ct. No. J0036) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Thomas S. Burr, Commissioner.
R. Bruce Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Maggy Krell, Deputy Attorneys General, for Plaintiff and Respondent.
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The court readjudged appellant, Gonzalo B., a ward of the court after it sustained two counts each of indecent exposure (counts 1 & 2/Pen. Code, 314, subd. (1)) and sexual battery (counts 4 & 5/Pen. Code, 243.4, subd. (e)(1)) and one count of violation of probation (count 7/Pen. Code, 1203.2, subd. (a)). The court also set Gonzalos maximum term of physical confinement at three years nine months.
On June 14, 2007, the court committed Gonzalo to the custody of the probation department pending placement with his mother. On appeal, Gonzalo contends the court erred by its failure to stay the term it imposed on one of his indecent exposure convictions and by using the term to calculate his maximum term of physical confinement. We will find this issue moot because we will conclude the court erred in sustaining count 2. In all other respects we will affirm.
FACTS
In October 2006 Amanda M. and Gonzalo attended Merced High School. Initially she was friendly with Gonzalo but she began to distance herself from him after he began to hug her and touch her inappropriately. Sometimes Gonzalo would come up behind her, place his arm around her neck, and force her to kiss him. Other times he would jump on her back and touch her breasts. On one occasion, he touched her vagina.
In October 2006, Amanda M. and Essence W. were in physical education class on the baseball field when they saw Gonzalo expose his buttocks.
On October 26, 2006, Amanda had finished running a mile with some female friends when Gonzalo called out to her from about 50 feet away. As she turned to look at Gonzalo, he pulled down his shorts and exposed his erect penis. Essence was present when Gonzalo exposed his penis but turned her head away when she saw that he was going to expose himself.
Nicole V. testified that Gonzalo would rub her back, put his hand on her leg, and grab her buttocks. He would also try to hold her hand during class and grab her face and attempt to kiss her.
On November 6, 2006, Nicole was talking to some friends when Gonzalo came up behind her, slid his hand down her buttocks toward the front, and lifted her up.
DISCUSSION
Count 2 of the petition alleged that Gonzalo Did willfully, unlawfully and lewdly expose his person, and the private parts thereof, in a public place , or in a place where there were present other persons to be offended and annoyed, thereby violating [s]ection 314.1 of the California Penal Code, indecent exposure, a misdemeanor. Count 2 also referenced Merced Police Department report No. 06-54310, which was apparently dated October 12, 2006, and made in response to the incident during which Gonzalo exposed his buttocks.
During closing arguments, the prosecutor argued the following with respect to counts 1 and 2:
Your Honor, I think from the testimony it is clear that this minor acted inappropriately. He had at least two witnesses that saw him expose himself. Although admittedly Essence didnt actually see it, she was quite clear that she realized exactly what he was going to do. She did testify that she saw him expose his buttocks also on another occasion for the first two counts, one for when he showed his penis to Amanda and the other, like I just said Essence saw him expose his buttocks even though she may not have actually seen the penis incident.
In responding to the prosecutors argument on count 2, defense counsel argued, in part, that the prosecutor failed to show Gonzalo acted lewdly when he exposed his buttocks. The juvenile court did not state which incident it relied on to sustain count 2.
On May 29, 2008, this court sent the parties a letter asking them to brief whether: 1) the evidence that Gonzalo exposed his buttocks to Essence is sufficient to sustain the courts true finding on count 2; and 2) whether the court could sustain count 2 based on the incident where Gonzalo exposed his penis to Amanda and Essence.
In their responses the parties agree that the incident involving Gonzalo exposing his buttocks cannot support the indecent exposure charge in count 2 because indecent exposure requires exposure of the genitals. (People v. Massicot (2002) 97 Cal.App.4th 920, 931.) We agree with the parties.
Respondent, however, contends the court properly sustained the indecent exposure offense charged in count 2 based on the incident when Gonzalo exposed his penis because both Amanda and Essence were victims of Gonzalos indecent exposure that day. Respondent further contends that the courts finding did not violate Gonzalos due process rights because Gonzalo was given notice by the pleading that he faced two indecent exposure charges and what conduct formed the basis for these allegations. Respondent further contends that to the extent the prosecutor engaged in misconduct by arguing that count 2 was based on the incident involving buttocks exposure, Gonzalo waived the issue on appeal by failing to object to the misconduct in the trial court. We will reject these contentions.
The petition did not give Gonzalo notice that he faced two indecent exposure charges based on the incident when he exposed his penis to Amanda and Essence because it alleged that the incident underlying count 2 occurred on a different date than the incident underlying count 1 and count 2 apparently referenced a police report relating to the incident involving Gonzalo exposing his buttocks. Moreover, the prosecutors closing argument makes it clear that the incident involving Gonzalo exposing his buttocks was the basis for charging him with indecent exposure in count 2.
It is fundamental that When 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. [Citation.] (People v. Lohbaur (1981) 29 Cal.3d 364, 368.) In People v. Reed (2006) 38 Cal.4th 1224, our Supreme Court explained the applicable principle:
A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations .] The reason for this rule is settled. 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.] The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed. [Citation.] (Id. at p. 1227.)
Further, in People v. Haskin (1992) 4 Cal.App.4th 1434, the court stated:
Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. [Citations.] This means that except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense. [Citation.] An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense. [Citations.] The same rules apply to enhancement allegations. [Citation.] (Id. at p. 1438, italics added.)
Gonzalo did not receive any notice from the petition or the prosecutors argument that the court might sustain count 2 based on the incident when Gonzalo exposed his penis. Nor did Gonzalo consent to the court finding count 2 true based on this incident. Accordingly, we will reverse the courts true finding on count 2 because the incident involving Gonzalo exposing his buttocks is legally insufficient to sustain count 2 and Gonzalo did not receive notice that the court might sustain count 2 based on the incident during which he exposed his penis. Further, our resolution of this issue moots Gonzalos contention that section 654 required the court to stay the term it imposed on count 2.
DISPOSITION
The courts true finding on count 2 is reversed. As modified, the judgment is affirmed.[1]
*Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.
[1] The courts statement at Gonzalos adjudication hearing setting his maximum term of confinement at three years nine months is of no legal effect because he was not removed from the physical custody of his parents. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574.) Therefore, we will not recalculate Gonzalos maximum period of physical confinement or remand it to the trial court for that purpose.
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