In re H.V.
Filed 7/28/06 In re H.V. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION ONE
| In re H.V., a Person Coming Under the Juvenile Court Law. | B183734 L.A.Super.Ct. No. PJ 35470) |
| THE PEOPLE, Plaintiff and Respondent, v. H.V., Defendant and Appellant. |
APPEAL from a judgment of the Superior Court of Los Angeles County. Jack Gold, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Vacated in part, remanded with directions and affirmed in part.
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Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.
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A juvenile delinquency petition alleged that H.V. committed an assault with a deadly weapon and by means likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1).[1] After a trial the juvenile court sustained the petition as charged, declared H. a delinquent ward (Wel. & Inst. Code § 602), and placed him on probation for a period not to exceed four years.
H. appeals, contending that (I) he was given inadequate notice that he was being charged under both theories of assault included in section 245, subdivision (a)(1) because the charging document listed the two theories of assault in the conjunctive rather than the disjunctive; and (II) the portion of the court's finding that he committed an assault with a deadly weapon, specifically a knife, must be stricken due to evidentiary insufficiency. We reject the first, but agree with the second contention and strike the finding that H. committed assault with a knife. In all other respects, we affirm the judgment (order of wardship).
FACTS
On November 25, 2004, Juan Hernandez and his friend H. attacked George Rivera. The fight was the culmination of a dispute between Hernandez and Rivera, which arose because Rivera was dating Hernandez's ex-girlfriend, Cynthia Enciso, with whom Hernandez had a child. H. and Hernandez built low-rider bikes together in H.'s garage.
Rivera testified that at least five times before the fight, Hernandez was waiting in his car near Enciso's house when Rivera dropped her off. At least two or three of those five times, H. was in the car with Hernandez, and they pursued Rivera as he drove away until he eluded them. On one of those occasions Hernandez and H. drove against oncoming traffic while chasing Rivera in his car. Rivera made eye contact with H., who looked at him and laughed. Another time when H. was not present, Hernandez attempted to punch Rivera and threatened him with a gun.
On November 25, while Rivera was dropping Enciso off at her house, Hernandez and H. arrived at the residence in Hernandez's brother-in-law's car. Hernandez had called earlier in the week to say he would like to take his child to a Thanksgiving dinner, but thereafter did not contact Enciso to make any specific plans. Hernandez and Rivera both exited their cars, argued, and began to fist fight. When Hernandez fell to the ground, H., who had gotten out of the car, began to fist fight with Rivera. H. and Rivera each claimed the other choked him during the fight. As H. and Rivera fought, Hernandez got up and stabbed Rivera eight times in his back and sides with a knife. Enciso witnessed the fight and saw H. choking Rivera, but did not see the stabbing. Hernandez and H. left and surrendered to the police later the same day. Rivera spent three days in the hospital after suffering eight stab wounds requiring twenty-five stitches to close.
H. testified that he knew Hernandez was jealous of Rivera because Rivera was dating Ensico, although he never discussed the matter with Hernandez. On the day of the incident he thought he and Hernandez were driving to Cynthia's house only to pick up Hernandez's child for Thanksgiving dinner. He admitted fighting with Rivera but denied choking him.
DISCUSSION
I. H. Received Adequate Notice That He Would Be Adjudicated for Violating Both Theories of Assault Supporting a Violation of Section 245, Subdivision (a)(1).
H. contends he received inadequate notice when he was charged under section 245, subdivision (a)(1) with â€
