In re S.J.

 

 

 

 

 

 

 

 

 

Filed 7/19/13  In re S.J. CA2/8

> 

> 

> 

> 

> 

> 

> 

> 

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 
>

In re S.J., a Person Coming Under the Juvenile Court Law.	B243729         (Los Angeles County       Super. Ct. No. NJ 26068)
THE PEOPLE,               Plaintiff and Respondent,               v.   S.J.,               Defendant and Appellant.

 

APPEAL from an order of the
Superior Court for the County of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles.
 John C. Lawson II, Judge.  Affirmed in part; reversed in part. 

Bruce G. Finebaum, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Ryan M. Smith, Deputy Attorneys General,
for Plaintiff and Respondent.

 

__________________________________

>SUMMARY

In this
delinquency case, the juvenile court permitted the district attorney, on the
day of adjudication and over the objection of href="http://www.fearnotlaw.com/">defense counsel, to amend the petition to
allege a second felony, assault by force likely to produce great bodily injury,
in addition to the original allegation of second degree robbery.  The court found both allegations true.  On appeal, the minor’s counsel filed a >Wende brief (People v. Wende (1979) 25 Cal.3d 436) requesting this court’s
independent review of the record. 

We requested additional briefing
and now reverse the true finding on the assault allegation under the authority
of In re Robert G. (1982) 31 Cal.3d 437, 445 (Robert G.) (“a wardship petition . . . 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”).  We find no other arguable issues, and affirm
the true finding on the allegation of second
degree robbery.

FACTS

            The
district attorney filed a petition on July
24, 2012, alleging S.J., then 16 years old, came within the
provisions of Welfare and Institutions Code section 602, in that she committed
second degree robbery, a felony (Pen. Code, § 211).  The minor denied the allegations.

When the case was called for
adjudication on August 10, 2012,
the prosecutor moved
to add the crime of assault by force likely to produce great bodily injury
(Pen. Code, § 245, subd. (a)(4)). 
Defense counsel objected to the addition of a new count on the
adjudication date.  The court permitted
the amendment “over defense objection” and immediately proceeded with the
testimony.

The prosecutor presented testimony
of the victim, C.A.,
and a security guard who was in the vicinity at the time and observed the
incident.

The victim testified she was
walking by herself in San Pedro and saw four other girls, one of whom was the
minor.  She had known the minor since the
ninth grade.  One of the four girls,
C.J., called the victim’s name and asked the victim if she was “talking to her
behind her back.”  The victim said “no,”
and then “got approached by [the minor].” 
The minor told the victim that “she was going to jump me.”  Then another of the girls said that “she
wanted to fight me.”  Then the minor
“said, again, . . . they were going to jump me.”  The victim “got kicked in my back, and that’s
when [the minor] hit me.  [¶]  I got pushed to the floor.  And then I started getting jumped by all
four[] girls.  That is when I was being
pinned down.  [¶]  [The minor] grabbed my purse, and started
emptying everything in my purse including my cell phone and wallet, and other
valuables in my purse.” 

The victim further testified that,
while she was on the ground, one of the other girls took away her purse.  Then, “as I was being pinned down, that is
when [the minor] and [another girl, A.W.,] started taking everything out of my
purse, taking out everything.”  The
victim saw her phone, wallet and three bottles of lotion taken out of her
purse, “[a]nd everything else was just dumped out.”  The prosecutor asked if the minor took any of
those items, and the victim replied: 
“Yes, she took the lotion out of my purse, and [the minor] also opened
up the bottle of lotion, and emptied it out . . . .”  Then a man at a nearby shop came out and
“tried to get them off me,” and a security guard also came out and “was pushing
them away from me.” 

The victim testified “[t]hat
stopped the fight,” but then A.W. was arguing with the man from a nearby shop,
“and then while I was being held back, like, I also got attacked again.  [¶] 
Because the guy asked me if I wanted to press charges, and I said yes,
and that is when [A.W.] also attacked me again.”  A.W. hit her from the back, then “she got
pulled off, and they all left.”  Later
that day, the police went to the girls’ homes and arrested them.

The victim testified a cell phone,
wallet, $70 and three bottles of lotion were taken.  She said A.W. “stepped on [the cell
phone].”  The victim did not get her cell
phone, wallet, money or lotion back; she got her purse back and a little
compact in the purse.  She was asked if
she saw any of the girls do anything with the property and answered, “No, just
walking away with all of it.”  When asked
if she saw the minor with any of her property, she said, “Yes, my cell phone,”
and said the cell phone was in the minor’s hand when she walked away.  On cross-examination, the victim denied
telling the police another of the girls (Q.M.) took her cell phone and was the
one who walked away with it, but admitted telling the police “[Q.M.] was the
one that originally grabbed [her] bag and stomped on [her] cell phone,”
“smashing it, breaking it.”  She said
that at the beginning, “[Q.M.] had my phone, but then when everybody was
clearing out, that is when I saw [the minor] with my phone.”  She did not see who had the wallet.

Karl Stephens, a security guard who
saw the incident, testified he “saw three girls – three teenagers attacking one
teenager,” “three teenagers, girls was attacking, kicking, punching, pulling
her hair, that type of stuff,” and “cussing her,” “taking her bags,” and
“throwing things out of her bags, and stuff like that.”  He stopped the attack for a minute, but it
started again and then the person from a nearby shop came out and helped him to
stop it.  He saw the girls dump the
victim’s purse out.  They “just threw it
out, all of her cosmetic stuff from her bag, scattered it all over the
street.”  The guard “saw them physically
take stuff out of the purse, but I didn’t see, physically see, anyone take it,
or, like, put it in their pocket or stuff, but everything was happening very fast.”  None of the girls ran away from the scene;
they all walked away.

The prosecution then rested, and href="http://www.mcmillanlaw.com/">defense counsel moved to dismiss the
petition, arguing that “despite the witness’s testimony, there was no intent to
steal any items from [the victim], and that count 1 [(robbery)] should be
dismissed.”  The court denied the motion.


The defense presented two
witnesses, Los Angeles Police Officer Salvador Sanchez and the minor.  When Officer Sanchez arrived in response to a
radio call of a robbery, the victim told him she had just been jumped and her
property taken; she said she was robbed of her cell phone, wallet, money and
some other items.  The victim told
Officer Sanchez about the confrontation with the four girls, who ended up
kicking her and hitting her.  The girl
who initially called the victim over was C.J. 
The girl who grabbed items from the victim, and who “somehow got a hold
of her cell phone, and stomped on it a few times,” was Q.M.  The victim told Officer Sanchez that, “while
the [girls] were holding down the victim on the ground,[Q.M.] was also able to
remove the other items from the purse . . . .” 
The victim did not tell Officer Sanchez she saw anyone leave with her
cell phone, and the victim “couldn’t tell who took any of her property.”

Officer Sanchez testified he
interviewed the other suspects, including Q.M.. 
Defense counsel sought to question Officer Sanchez about what Q.M. said
to him, to show it was Q.M. who picked up the purse and dumped the purse,
consistent with the victim’s statement to Officer Sanchez but not with the
victim’s in-court testimony.  After much
discussion, the court found defense counsel was trying to elicit a declaration
against interest, not a party admission, and to do so had to establish the
unavailability of the witness. 

Cross-examination continued, with
Officer Sanchez testifying the victim told him two of the girls were holding
her down on the ground, “and that was when [Q.M.] was able to go through the
purse freely and get a hold of her items,” and Q.M. dropped the cell phone on
the ground and stepped on it.  The victim
also told Officer Sanchez that the minor hit her and was one of the two girls
who held her down while Q.M. was going through her purse.

The minor testified, admitting she
pushed the victim, “and that is when [Q.M.] had hit her, and I hit her, and
then [A.W.] snatched her by her hair and slammed her to the ground.  [¶] 
And I kicked her, and [Q.M.] and I got up off of her after hitting her,
and dumped all her stuff out her purse, took her cell phone, and stomped on it,
and after she hit me, and put lotion on her.” 
She said she did not ever go through the victim’s belongings, take any
of her property, or touch any of her property, and that Q.M. was the one who
stepped on the victim’s cell phone, and “kept stepping on it.”  She spoke to Officer Sanchez about what
happened at the police station. 

Defense counsel recalled Officer
Sanchez to question him about what the minor said to him about what happened to
the victim’s property.  After an
objection and colloquy with the court, defense counsel offered the testimony as
a prior consistent statement, with probative value because “robbery . . . is a
specific intent crime.”  Officer Sanchez
then testified the minor said she saw Q.M. go through the victim’s property,
and dump out lotions from the purse on to the victim.

The juvenile court sustained the
petition, finding both allegations true beyond a reasonable doubt.  The court said, “you wanted to start this
fight.  And aiding and abetting, and I’m
sure your attorney has explained to you what aiding and abetting is.  [¶]  I
don’t care if you touched that purse. 
You held that girl down.  You are
just as guilty.  You are just as guilty.”


The court found that count 1 (the
robbery) was a strike, as the minor was 16 at the time.  The court placed the minor home on probation,
declared a maximum period of confinement of five years as to the robbery count,
and said the court would “run the 245(a)(4) concurrently.” 

The minor filed a href="http://www.fearnotlaw.com/">timely appeal.

DISCUSSION

The minor’s court-appointed counsel
filed a Wende brief.  Our review of the record showed that the
district attorney’s petition alleged only the crime of second degree
robbery.  On the day the case was
adjudicated, the juvenile court allowed the prosecutor, over defense objection,
to amend the petition to add the crime of assault by force likely to produce
great bodily injury, and immediately proceeded with the testimony.  We asked for briefing on the question whether
the juvenile court’s
true finding on the added assault allegation was proper in light of >Robert G., supra, 31 Cal.3d
437.  We now conclude it was not proper.

As the parties agree, due process of law “‘requires
that a minor, like an adult, have adequate notice of the charge so that he may
intelligently prepare his defense.’ 
[Citation.]”  (>Robert G., supra, 31 Cal.3d at p. 442.) 
Compliance with this due process requirement “has been held by the
Supreme Court to mandate that the minor ‘be notified, in writing, of the
specific charge or factual allegations to be considered at the hearing, and
that such written notice be given at the earliest practicable time, and in any
event sufficiently in advance of the hearing to permit preparation.’”  (Ibid.,
quoting In re Gault (1967) 387 U.S.
1, 33.)  While notice is adequate when
the trier of fact is permitted to find an accused guilty of an offense
necessarily included in the charged offense, or expressly pleaded in the
charging allegations, the parties here also agree, correctly, neither of these
principles applies.

Robert G. is dispositive.  In Robert
G., the juvenile court
substituted a charge of battery for the original charge of assault with a
deadly weapon, after the close of evidence in a juvenile proceeding.  Robert
G. held a wardship petition “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.”  (Robert
G., supra, 31 Cal.3d at p. 445.)  Here,
the minor did not consent, but specifically objected “to the addition of a new
count on the adjudication date.”

The attorney general contends notice of the additional
charge was adequate because the petition was amended before the presentation of any evidence, rather than after (as in >Robert G.), so the minor “had time to
modify her defense if needed.”  We cannot
agree.  When testimony ensues immediately
after a petition is amended to add a new felony allegation, the minor has not
been given notice of the new charge “‘sufficiently in advance of the hearing to
permit preparation.’  [Citation.]”  (Robert
G., supra, 31 Cal.3d at p. 442; see In
re Gault, supra,> 387 U.S. at p. 33 [“[n]otice at that
time [at a hearing on the merits] is not timely”]; In re Roy C. (1985) 169 Cal.App.3d 912, 917-918 [where petition was
amended at the close of prosecutor’s case-in-chief and before any defense
proffered by the minor, prejudice “had already attached because of the lack of
adequate notice of the new charge, whether or not a defense was presented or
regardless of the nature of such defense”]; see also In re Johnny R. (1995) 33 Cal.App.4th 1579, 1584 [>Robert G. was applicable where juvenile
court permitted an amendment during the prosecution’s case; the minor “had
never been put on notice of a need to defend against the weapons
charge”].) 

Nor is there any merit in the attorney general’s
further claim that, if counsel “needed more time to prepare, she could have
requested a continuance.”  Counsel
specifically objected to amending the allegations on the day of the
adjudication, and nothing more was required. 
(Cf. In re Roy C.,> supra, 169 Cal.App.3d at p. 915 [“no
continuance was offered to prevent prejudice to [the minor]”].)  In short, as Robert G. stated, “we are not persuaded that due process of law is
as malleable as the People here contend.” 
(Robert G., supra, 31 Cal.3d
at p. 445.)

We conclude the true finding on the allegation of
assault by force likely to produce great bodily injury must be reversed, but
otherwise find no arguable issues on appeal. 
The evidence presented to the juvenile court was sufficient to
allow the court to conclude beyond a reasonable doubt the minor committed the
crime of second degree robbery as charged in the petition, and no other error
appears.

DISPOSITION

            The true
finding on the second count of the petition, assault by force likely to produce great bodily injury
(Pen. Code, § 245, subd. (a)(4)), is reversed. 
In all other respects, the judgment is affirmed.

 

GRIMES, J.

           

We concur:

 

                        RUBIN,
Acting P.J.              

 

 

                        FLIER,
J.