Filed 1/21/15
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                      DIVISION FOUR


In re A.L., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
v.
A.L.,                                                A141067
         Defendant and Appellant.                    (Contra Costa County
                                                     Super. Ct. No. J1301298)



         A.L., a minor, appeals from an order of wardship entered pursuant to Welfare and
Institutions Code section 602 following the juvenile court’s finding that he committed
felony second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) with an enhancement
for being armed with a firearm in the commission of a felony (Pen. Code, § 12022,
subd. (a)(1) ).1 A.L.’s sole contention on appeal is that the juvenile court violated his due
process rights by allowing the prosecution to amend his delinquency petition during
closing arguments to allege an arming enhancement under subdivision (a) of section
12022 (the section 12022(a) enhancement) rather than the personal-use-of-a-deadly-
weapon enhancement that was originally charged pursuant to subdivision (b) of section
12022 (the section 12022(b) enhancement). Finding no abuse of discretion in the
juvenile court’s decision to permit the amendment, we affirm.



1
    All statutory references are to the Penal Code unless otherwise specified.

                                               1
                                   I. BACKGROUND
       On December 3, 2013, the Contra Costa County District Attorney’s office filed a
delinquency petition alleging that A.L. committed felony second degree robbery on or
about November 30, 2013. The petition also alleged that, in the commission of that
offense, A.L. personally used a handgun, a deadly and dangerous weapon, within the
meaning of the section 12022(b) enhancement. (§ 12022, subd. (b)(1).) The accusations
stemmed from an incident involving A.L. and another minor. Specifically, on the date in
question, A.L. arranged to purchase a pair of shoes from 17-year-old Christian L. After
he and the other minor met Christian on the sidewalk near Christian’s home, A.L. paid
the teenager $100 for the pair of shoes and indicated that he would return later to
purchase another pair that Christian was also offering for sale. Later that evening, A.L.
and the second minor again met with Christian. This time, however, as A.L. bent down
to try on the second pair of shoes, the other minor pulled out a gun and held it to
Christian’s chest, saying: “Give m[e] everything.” A.L. took the shoes, the second
minor obtained a cell phone from Christian, and both boys ran off.
       The juvenile court held a contested jurisdictional hearing on January 9, 2014. At
the hearing, the testimony focused on the sequence of events during the robbery and on
A.L.’s relative culpability for the offense. During closing argument, the juvenile court
noted that it “didn’t think there was any evidence” of the section 12022(b) enhancement,
which requires personal use of a deadly or dangerous weapon. (§ 12022, subd. (b).) The
prosecutor indicated that A.L. had been mistakenly charged with the section 12022(b)
enhancement and should have been charged instead with the section 12022(a)
enhancement, which allows for vicarious liability when another principal is armed with a
firearm. (§ 12022, subd. (a)(1).) She therefore moved to amend the petition to conform
to proof by substituting the section 12022(a) enhancement for the 12022(b) enhancement.
A.L.’s attorney objected to the amendment, arguing that she had presented her case with
the understanding that the section 12022(b) enhancement (which the prosecution had
failed to prove) was the only enhancement at issue. The juvenile court judge, however,
concluded that A.L. would not be unfairly surprised or prejudiced by the change in the


                                             2
charging allegations and therefore permitted the amendment. Thereafter, the court
sustained the second degree robbery allegation and found true the section 12022(a)
enhancement.
       At the dispositional hearing on January 28, 2014, the juvenile court adjudged A.L.
a ward of the juvenile court with a maximum period of confinement of six years,
including one year for the section 12022(a) enhancement. The court then committed A.L.
to the Orin Allen Youth Rehabilitation Facility for a period of nine months, ordered an
additional 90-day conditional release/parole period, and gave A.L. pre-dispositional
custody credits for 59 days. Thereafter, a timely notice of appeal brought the matter
before this court.
                        II. AMENDMENT OF THE CHARGES
       As both parties recognize, due process requires that juveniles, like their adult
counterparts, have adequate notice of the charges against them so that they may prepare
an intelligent defense. (In re Robert G. (1982) 31 Cal.3d 437, 442 (Robert G.), quoting
In re Gault (1967) 387 U.S. 1, 33; see also Cole v. Arkansas (1948) 333 U.S. 196, 201
[“[n]o principle of procedural due process is more clearly established than that notice of
the specific charge, and a chance to be heard in a trial of the issues raised by that charge,
if desired, are among the constitutional rights of every accused”].) Acknowledging this
due process right, both parties also agree that any amendment of the charging allegations
in a delinquency petition is strictly limited once a minor has entered a plea of not guilty.
In particular, absent the minor’s consent, amendment during a contested hearing is only
appropriate if an offense is “ ‘necessarily included’ ” in the offense actually charged or is
“ ‘a lesser offense which, although not necessarily included in the statutory definition of
the offense, is expressly pleaded in the charging allegations.’ ” (Robert G., supra, 31
Cal.3d at pp. 442-443; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369 (Lohbauer);
see also § 1159.) Although the weapons enhancements involved in this case are not
technically “offenses,” the same rules apply to enhancement allegations. (People v.
Haskin (1992) 4 Cal.App.4th 1434, 1438; People v. Allen (1985) 165 Cal.App.3d 616,
627 (Allen) [noting that, although the weapon enhancement provisions at issue were not


                                              3
strictly “ ‘crimes’ ” or “ ‘offenses,’ ” there was “no reason why the same rationale should
not apply to them”].)
       The gravamen of the parties’ dispute in this case involves whether the section
12022(a) enhancement found true by the juvenile court is a lesser included offense of the
12022(b) enhancement that was actually charged in the petition. The section 12022(b)
enhancement provides in relevant part that “[a] person who personally uses a deadly or
dangerous weapon in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment in the state prison for one year,
unless use of a deadly or dangerous weapon is an element of that offense.” (§ 12022,
subd.(b)(1).) The section 12022(a) enhancement, in contrast, declares as follows: “[A]
person who is armed with a firearm in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of imprisonment pursuant to
subdivision (h) of Section 1170 for one year, unless the arming is an element of that
offense. This additional term shall apply to a person who is a principal in the
commission of a felony or attempted felony if one or more of the principals is armed with
a firearm, whether or not the person is personally armed with a firearm.” (§ 12022,
subd.(a)(1).)
       A.L. argues that the12022(a) enhancement is not a lesser included offense of the
12022(b) enhancement because the two have differing elements and the charging
language in the petition failed to describe the 12022(b) enhancement in such a way as to
necessarily include the 12022(a) enhancement. The People disagree, relying largely on
Allen, supra, 165 Cal.App.3d 616 and People v. Dixon (2007) 153 Cal.App.4th 985
(Dixon). We review the juvenile court’s decision in this regard for abuse of discretion.
(See In re Johnny R. (1995) 33 Cal.App.4th 1579, 1584-1585; In re Man J. (1983) 149
Cal.App.3d 475, 481.)
       In Allen, supra, 165 Cal.App.3d 616, two codefendants in an execution-style
murder case were charged with personally using a firearm in the commission of a felony




                                             4
within the meaning of section 12022.5.2 (Allen, supra, 165 Cal.App.3d at pp. 620-622,
626.) Because only one gun was used and there were no witnesses, the evidence was
inconclusive as to which of the two perpetrators had actually fired the murder weapon.
(Id. at pp. 621, 625-626.) Nevertheless, the jury found that both defendants had
personally used a firearm during the murder. (Id. at p. 621.) On appeal, the Allen court
concluded that the evidence was insufficient to prove that either defendant had personally
used a firearm in violation of section 12022.5.3 However, the appellate court did find that
the evidence clearly established that both defendants “were participants in a murder in
which a principal was armed with a firearm” as contemplated by the section 12022(a)
enhancement. (Allen, supra, 165 Cal.App.3d at pp. 626-627.) Because “[e]very gun use
within the meaning of section 12022.5 necessarily includes a violation of section 12022,
subd. (a),” the appellate court reduced the section 12022.5 finding for each defendant to
the “lesser included” violation of the section 12022(a) enhancement. (Allen, supra, 165
Cal.App.3d at p. 627.)
       Similarly, in Dixon, supra, 153 Cal.App.4th 985, the defendant (Dixon) and a
friend used pellet or BB guns to rob a bank. (Dixon, supra, 153 Cal.App.4th at pp. 988-
989.) Dixon was charged with second degree robbery (§§ 211, 212.5, subd. (c)) and
personal use of a firearm within the meaning of section 12022.53, subdivision (b).4



2
  This section provides (analogously to the section 12022(b) enhancement) that “any
person who personally uses a firearm in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of imprisonment in the state
prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
(§ 12022.5, subd. (a).)
3
  Although the Allen court’s reasoning with respect to the sufficiency of the evidence
under section 12022.5 may no longer be valid in light of People v. Walker (1988) 47
Cal.3d 605, 634-635, this fact does not invalidate the court’s analysis of the lesser
included offense issue. (See People v. Berry (1993) 17 Cal.App.4th 332, 338-339; see
also Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 457-458.)
4
 Section 12022.53, subdivision (b) provides (analogously to the section 12022(b)
enhancement) that “any person who, in the commission of a felony specified in
subdivision (a) [including robbery under section 211], personally uses a firearm, shall be

                                             5
(Dixon, supra, 153 Cal.App.4th at p. 988.) However, after a court trial, the trial judge
found that Dixon had personally used a deadly weapon in violation of the section
12022(b) enhancement, rather than a firearm as set forth in the charged enhancement.
(Dixon, supra, 153 Cal.App.4th at p. 988.) On appeal, Dixon argued that he had not
received adequate notice that he was being charged with the section 12022(b)
enhancement. (Dixon, supra, 153 Cal.App.4th at p. 1001.) The Dixon court disagreed.
Noting that a BB or pellet gun is not a “firearm,” but is a “dangerous weapon,” the Dixon
court concluded that the section 12022(b) enhancement is a lesser-included offense of the
section 12022.53 firearm enhancement. (Dixon, supra, 153 Cal.App.4th at pp. 1001-
1002.) Specifically, the appellate court opined: “ ‘It is of no consequence that the
evidence at trial might also establish guilt of another and lesser crime than that charged.
To constitute a lesser and necessarily included offense it must be of such a nature that as
a matter of law and considered in the abstract the greater crime cannot be committed
without necessarily committing the other offense. [Citations.]’ ” (Id. at p. 1002.) Since
“[o]ne cannot commit an offense by personally using a firearm and not at the same time
commit an offense by personally using a deadly weapon,” Dixon was “adequately
apprised” of the section 12022(b) enhancement, and thus there was “no lack of notice or
due process violation.” (Dixon, supra, 153 Cal.App.4th at p. 1002.)
       While both Allen and Dixon are instructive, neither are dispositive with respect to
the issue before us. For instance, although Allen holds that the section 12022(a)
enhancement is a lesser included offense of section 12022.5, both enhancements in that
case related to firearms, whereas these proceedings involve a deadly or dangerous
weapons enhancement and a firearms enhancement. (§§ 12022, subds. (a) & (b),
12022.5, subd. (a).) Further, while Dixon does consider both a deadly or dangerous
weapons enhancement and a firearms enhancement, both enhancements in that case
involved personal use, while at issue here are a personal use enhancement and an arming
enhancement. (§§ 12022, subds. (a) & (b), 12022.53, subds. (a)(4) & (b).) Since neither

punished by an additional and consecutive term of imprisonment in the state prison for 10
years. The firearm need not be operable or loaded for this enhancement to apply.”

                                              6
case directly addresses the question of whether the section 12022(a) enhancement is a
lesser included offense of the section 12022(b) enhancement, we conduct our own
analysis of the matter.
       In doing so, we note first that our colleagues in Division Five recently reiterated
the appropriate framework for analyzing whether a lesser offense is included within a
charged offense, stating: “Two tests are used to determine whether an offense is
necessarily included within another: the ‘elements’ test and the ‘accusatory pleading’
test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test asks whether all
the statutory elements of the lesser offense are included in the elements of the greater
offense. (Ibid.) ‘Stated differently, if a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense within the
former.’ (Ibid.) Under the accusatory pleading test, a lesser offense is included within a
greater ‘ “ ‘if the charging allegations of the accusatory pleading include language
describing the offense in such a way that if committed as specified the lesser offense is
necessarily committed.’ [Citation.]” ’ (Id. at pp. 288–289.)” (In re Fernando C. (2014)
227 Cal.App.4th 499, 503 (Fernando C.); see also People v. Ramirez (2009) 45 Cal.4th
980, 984-985 [stating that “ ‘[c]ourts should consider [both] the statutory elements and
accusatory pleading in deciding whether a defendant received notice, and therefore may
be convicted, of an uncharged crime, but only the statutory elements in deciding whether
a defendant may be convicted of multiple charged crimes’ ”].)
       We agree with A.L. that, under the “elements” test as described above, the section
12022(a) enhancement is not a lesser included offense of the section 12022(b)
enhancement. Clearly, a deadly or dangerous weapon can be many things other than a
firearm. (See, e.g., People v. Russell (2005) 129 Cal.App.4th 776, 781-786 [automobile
as deadly weapon]; People v. Page (2004) 123 Cal.App.4th 1466, 1470-1472 [sharp
pencil]; People v. Montes (1999) 74 Cal.App.4th 1050, 1053-1054 [thick chain].) Thus,
it is entirely possible that an individual could be found to have personally used a deadly
or dangerous weapon in the commission of a felony without also necessarily being found
to have been armed with a firearm during the course of that felony. (See Fernando C.,


                                              7
supra, 227 Cal.App.4th at p. 503; compare People v. Moon (2005) 37 Cal.4th 1, 25-26
(Moon) [under elements test, joyriding pursuant to former section 499b not lesser
included offense of driving/taking vehicle under Vehicle Code section 10851 because
“ ‘one could conceivably “take” a vehicle in violation of section 10851 without the
purpose of using or operating it in violation of section 499b’ ”]; Lopez, supra, 19 Cal.4th
at pp. 288-291 [elements test not satisfied where subdivision (a) of section 288 includes
any type of touching with lewd intent and section 647.6 requires an objectively disturbing
act prompted by abnormal sexual interest in children; innocuous touching in violation of
section 288 would not necessarily also violate section 647.6 if it was not objectively
disturbing].)
       A.L., however, is on much shakier ground when arguing that the current situation
also fails to meet the “accusatory pleading test.” As stated above, under that test, a lesser
offense is included within a greater one if the accusatory pleading includes charging
language which describes the lesser offense “ ‘ “ ‘in such a way that if committed as
specified the lesser offense is necessarily committed.’ ” ’ ” (See Fernando C., supra,
227 Cal.App.4th at p. 503, italics added.) Here, the accusatory pleading, A.L.’s
delinquency petition, states as follows with respect to the weapons enhancement: “It is
further alleged, pursuant to Penal Code section 12022(b)(1), that in the commission and
attempted commission of the above offense [felony second degree robbery] the Minor,
[A.L.], personally used a Handgun, a deadly and dangerous weapon.” A handgun is
essentially a firearm which is capable of being concealed upon the person. (See
§§ 12001, 16520, 16530, 16640.) Thus, if A.L. had committed the section 12022(b)
enhancement as specified in the petition (personally using a handgun in the commission
of a felony) he would also necessarily have committed the section 12022(a)
enhancement (being armed with a firearm in the commission of a felony) because he
would have been a principal in the commission of a felony that was armed with a firearm.
(§§ 12022, subds. (a) & (b); compare Moon, supra, 37 Cal.4th at pp. 25-26 [under
accusatory pleading test, complaint which charged the defendant with driving and taking
the victim’s car pursuant to section 10851 of the Vehicle Code necessarily included a


                                              8
joyriding violation pursuant to section 499b].) Thus, under the present facts and the
accusatory pleading test, the section 12022(a) enhancement is a lesser included offense of
the charged section 12022(b) enhancement.5 This being the case, A.L. was adequately
apprised that the prosecution was seeking to prove elements which would establish a
section 12022(a) enhancement. Thus, there was no lack of notice or due process
violation, and the juvenile court did not abuse its discretion in permitting the late
amendment of the delinquency petition.6 (Compare Dixon, supra, 153 Cal.App.4th at
p. 1002.)
                                    III. DISPOSITION
       The judgment is affirmed.
                                                   _________________________
                                                   REARDON, J.

We concur:

_________________________
RUVOLO, P. J.

_________________________
RIVERA, J.




5
 A.L.’s assertions to the contrary notwithstanding, this conclusion holds true no matter
what evidence was or was not adduced at the hearing. The test is an objective one asking
only whether the charged enhancement, if committed as specified, would necessarily also
have resulted in the commission of the lesser enhancement. (See Fernando C., supra,
227 Cal.App.4th at p. 503.)
6
  In deciding to permit amendment of the petition in this matter, the juvenile court
erroneously focused on the possible prejudice or unfair surprise that the minor would
suffer rather than on the lesser-included-offense analysis set forth herein. (See Lohbauer,
supra, 29 Cal.3d at pp. 369-370; Robert G., supra, 31 Cal.3d at p. 444 [rejecting
argument that amendment of a delinquency petition should be permitted absent a showing
of prejudice].) In this regard, we need only note the firmly established appellate tenet
that we review the correctness of the challenged ruling, not the analysis used to reach it.
(People v. Zapien (1993) 4 Cal.4th 929; In re Baraka H. (1992) 6 Cal.App.4th 1039,
1045.)

                                              9
Trial Court:                Contra Costa County Superior Court



Trial Judge:                Hon. Lewis A. Davis



Counsel for Defendant and   First District Appellate Project
Appellant:                  Anne Mania

Counsel for Respondents:    Attorney General
                            Kamala D. Harris
                            Senior Assistant Attorney General
                            Gerald A. Engler
                            Supervising Deputy Attorney General
                            Laurence K. Sullivan
                            Supervising Deputy Attorney General
                            Eric D. Share




In re A.L. A141067



                                     10
