In re Earl T.
Filed 1/23/07 In re Earl T. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re EARL T., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. EARL T., Defendant and Appellant. | A112361 (Solano County Super. Ct. No. J35623) |
I. INTRODUCTION
Appellant Earl T. was made a ward of the court under Welfare and Institutions Code section 800 after the court sustained the majority of the allegations of a Welfare and Institutions code section 602 petition, including an allegation that he committed two felonies of assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1)[1]. On appeal, Earl T. contends that the evidence of the victim's injuries does not support a finding he committed serious bodily injury under Penal Code section 243. Because the court did not make any such finding, we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Following a melee during a physical education class in the gym at his school, Earl T. admitted punching another student. The student whom Earl T. hit testified that he suffered from bruising to his left eye, with swelling that lasted for two or three weeks. He could not see anything through the swollen eye for some time. There was no lasting damage to his eye.
A Welfare and Institutions Code section 602 petition was filed against Earl T., who was then 16 years old. The petition alleged three counts. Count 1 was for misdemeanor disturbing the peace on a school campus (§ 415.5, subd. (a)). Count 2 alleged a misdemeanor battery on school property (§ 243.2, subd. (a)); and count 3 alleged a misdemeanor battery on a school employee (§ 243.6).
About four months later, the People amended the petition to include a count 4: two felonies of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and a count 5 for threatening a school employee (§ 71).
After a contested jurisdictional hearing, the court sustained counts 1, 2, 4 and 5. It dismissed count 3.
Earl T. was adjudged a ward of the court and placed on probation in his parents' custody. This timely appeal followed.
III. DISCUSSION
Earl T.'s only argument is that the record in this matter does not contain substantial evidence to support a finding that he committed a violation of section 243, subdivision (d), battery with serious bodily injury. However, as the People point out, the court did not make such a finding, because appellant was not charged with a violation of section 243. Instead, he was charged with assault, with force likely to cause great bodily injury, under section 245, subdivision (a)(1).
Our review of the record indicates that, on September 14, 2005, the People informed the court that they planned to move to amend the petition to add a fourth count for violation of section 243, subdivision (d). The court continued the jurisdictional hearing.
The next day the People filed an amendment adding count 4. Count 4 did not charge a violation of section 243, subdivision (d). Rather it charged assault with force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The People appear to have misspoken when, the previous day, they articulated an intention to allege a violation of section 243.
At the beginning of the jurisdictional hearing on September 30, 2005, the court confirmed that the newly added count 4 was for assault: â€
