Filed 7/2/15 In re Armando L. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re ARMANDO L., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,                                                                                F069548

         Plaintiff and Respondent,                                          (Super. Ct. No. JW126221-04)

                   v.
                                                                                        OPINION
ARMANDO L.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Kern County. Peter A.
Warmerdam, Juvenile Court Referee.
         Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Armando L., a minor, was adjudged a ward of the juvenile court in 2012 and 2013.
In 2014, he was continued as a ward under Welfare and Institutions Code sections 602
and 777 based on a finding that he violated Penal Code section 136.1, subdivision (a)(2)
by attempting to prevent or dissuade a person from testifying in a legal proceeding.
Pursuant to this finding, the juvenile court ordered him committed to the California
Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On
appeal, the parties agree that the evidence presented at the contested jurisdictional
hearing did not establish a violation of Penal Code section 136.1, subdivision (a)(2).
Armando thus argues for reversal and asks to be released from custody.
          Respondent submits that the evidence was sufficient to establish a violation of
Penal Code section 136.1, subdivision (b)(1), i.e., attempting to prevent or dissuade a
victim or witness from reporting a crime to police. Therefore, respondent argues,
adjudicating the minor of a similar offense that carries the same punishment as the
uncharged crime which he purportedly committed was a “technical error” that may be
excused on grounds of inadvertence and lack of prejudice. We conclude that the error
implicates the minor’s constitutional rights and find the juvenile court acted in excess of
its jurisdiction. Accordingly, we reverse the court’s jurisdictional and dispositional
orders.
                      FACTUAL AND PROCEDURAL BACKGROUND
          On March 5, 2014, the Kern County District Attorney filed a juvenile wardship
petition under Welfare and Institutions Code sections 602 and 777 alleging four counts
against the minor. The charge at issue was set forth in Count 2 as follows: “On or about
March 3, 2014, Armando [L.], did willfully, knowingly and maliciously attempt to
prevent or dissuade any witness or victim from attending or giving testimony at any trial,
proceeding, or inquiry, in violation of Penal Code section 136.1(A)(2), a felony.” The
remaining counts alleged assault with a deadly weapon based on the throwing of rocks
(Pen. Code,1 § 245, subd. (a)(1); Count 1), criminal threats (§ 422; Count 3), and a

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


                                                  2.
violation of pre-existing probation conditions (Welf. & Inst. Code, § 777, subd. (a)(2)).
Through counsel, Armando entered a denial of the allegations in the petition. A
contested jurisdictional hearing was held on March 27, 2014.
Prosecution Case
       The prosecution called Enrique Hernandez as its complaining witness.
Mr. Hernandez managed an apartment complex in Wasco where Armando and his
younger brother frequently loitered, but did not reside. On the day in question, he saw
the two brothers standing near the mailboxes of the complex smoking what appeared to
be either marijuana or tobacco. Mr. Hernandez confronted the boys and asked them to
leave the property. They initially refused, but departed after he threatened to call the
police. This incident occurred at around 11:00 a.m.
       Armando and his brother returned to the complex two or three hours later, this
time accompanied by a female companion named Bella. Mr. Hernandez told the group to
leave. Armando responded by throwing rocks at him. Mr. Hernandez retrieved a tree
branch from his truck for protection. Armando also armed himself with a “stick” and
allegedly threatened to hit the older man with it. However, when Mr. Hernandez began
walking towards Armando, the boy “ran off and threw the stick away.” Mr. Hernandez’s
grandson contacted the police while these events were happening. A sheriff’s deputy
subsequently detained Armando on a nearby street.
       The prosecutor asked Mr. Hernandez, “At any point did they ever say not to call
the police?” The witness replied, “Yeah, they told me many times not to call the police.”
Mr. Hernandez later clarified that such statements were made by Armando, but did not
explain when the words were spoken or whether the statements were made before, after,
or in conjunction with Armando’s alleged threats and aggressive behavior. Towards the
end of his direct examination, the witness claimed “they” had threatened him with death
on the day of the incident. Mr. Hernandez also made vague references to vandalism
which had occurred at the complex on unspecified dates, including someone writing the

                                             3.
words “dead man” or “death” on a wall, but admitted that he did not know who was
responsible for these acts.
Defense Case
       Armando testified that he went to the complex with his friend Bella to meet up
with another friend who lived there. While they were waiting for the friend to come out
of her apartment, Mr. Hernandez confronted Armando and threatened to hit him with a
hammer if he did not leave the property. Following a brief verbal exchange,
Mr. Hernandez actually swung the hammer at Armando. Armando denied threatening the
manager or throwing rocks at him. When Mr. Hernandez warned that he was going to
call the police, Armando allegedly replied, “Go ahead.” Bella provided testimony in
support of Armando’s version of the events.
Findings and Disposition
       The juvenile court found that the charges of assault with a deadly weapon and
criminal threats were not true. The allegations in Count 2 were found to be true beyond a
reasonable doubt. Based on the true finding with respect to Count 2, the juvenile court
further ruled that the probation violation alleged in Count 4 was proven by a
preponderance of the evidence.
       At the disposition hearing, the juvenile court determined that the Count 2 offense
constituted a felony rather than a misdemeanor. The maximum period of confinement
was set at four years and four months, less 432 days of credit for time served. The minor,
then age 15, was thereupon ordered to be committed to the DJJ.
       Armando filed motions for reconsideration with respect to the juvenile court’s
decision to treat the section 136.1, subdivision (a)(2) offense as a felony and its order of
commitment to the DJJ. Both motions were denied. A timely notice of appeal was filed
on June 5, 2014.




                                              4.
                                       DISCUSSION
         “Due process of law requires that an accused be advised of the charges against
him; accordingly, a court lacks jurisdiction to convict a defendant of an offense that is
neither charged in the accusatory pleading nor necessarily included in the crime alleged.”
(In re Fernando C. (2014) 227 Cal.App.4th 499, 502-503 (Fernando C.), citing People v.
Lohbauer (1981) 29 Cal.3d 364, 369 (Lohbauer).) These constitutional principles apply
to juvenile court proceedings. (Fernando C., supra, 227 Cal.App.4th at p. 503.) In the
same vein, a minor may not be adjudicated of a charged crime which he or she did not
commit. “[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 [holding that juveniles
are entitled to these due process protections when accused of a violation of criminal
law].)
         Armando claims there is no evidence to show he committed the crime with which
he was charged, i.e., violating section 136.1, subdivision (a)(2), but he acknowledges that
it is easy to infer the prosecution presented its evidence with the mindset of proving a
violation of subdivision (b)(1) of the same code section. Armando contends the
prosecution’s apparent intentions are irrelevant in light of the differences between the two
crimes and the absolute nature of his due process rights. Recognizing that Armando
stands adjudicated of attempting to dissuade a witness from testifying in court, the
Attorney General concedes that “there was no evidence presented at the hearing which
even remotely suggested that appellant attempted to dissuade [Mr.] Hernandez from
attending and testifying at the proceeding.” Nevertheless, she argues that because
Armando must have realized the “true nature” of the charge in Count 2, he received
adequate notice from which to prepare his defense and thus suffered no prejudice.
Pursuant to this argument, respondent asks that we modify the judgment to reflect an
adjudication of section 136.1, subdivision (b)(1) rather than subdivision (a)(2).

                                             5.
       We accept the concession regarding the insufficiency of the evidence to establish a
violation of section 136.1, subdivision (a)(2). There are, however, several problems with
respondent’s position. Given the manner in which Count 2 was alleged, it is not possible
to excuse the pleading deficiency as a mere clerical or technical error. Section 960
instructs that “[n]o accusatory pleading is insufficient, nor can the trial, judgment, or
other proceeding thereon be affected by reason of any defect or imperfection in matter of
form which does not prejudice a substantial right of the defendant upon the merits.”
Courts may therefore invoke section 960 to excuse references to the wrong code section
in relation to an offense described in a charging document. (See People v. Schueren
(1973) 10 Cal.3d 553, 558; People v. Gerber (2011) 196 Cal.App.4th 368, 388.) “‘[T]he
specific allegations of the accusatory pleading, rather than the statutory definitions of
offenses charged, constitute the measuring unit for determining what offenses are
included in a charge.’” (People v. Thomas (1987) 43 Cal.3d 818, 826 (Thomas).) Here,
the petition not only cites to section 136.1, subdivision (a)(2), but also describes the
offense using the same language found in that particular subdivision. There is no
mention of the behavior proscribed by section 136.1, subdivision (b)(1). Regardless of
whether or not the district attorney’s office actually intended to charge Count 2 as
pleaded, the minor was ultimately adjudicated of the violation described in the petition.
The result implicates his constitutional right not to be held responsible for committing a
crime unless the elements of the offense are proven beyond a reasonable doubt.
       Even if we credit respondent’s argument that the evidence was sufficient to
establish a violation of section 136.1, subdivision (b)(1), the accompanying request for
modification of the judgment is subject to jurisdictional and statutory restrictions.
“‘“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.”’” (Thomas,
supra, 43 Cal.3d at p. 823; accord, In re Robert G. (1982) 31 Cal.3d 437, 445
(Robert G.).) On appeal, a reviewing court’s power to modify the judgment is “purely

                                              6.
statutory.” (People v. Navarro (2007) 40 Cal.4th 668, 678 (Navarro).) Under section
1260,2 appellate courts may rely on substantial evidence in the record to modify a
judgment to reflect the adjudication of a lesser included offense. (Navarro, supra, at
p. 671.) However, section 1260 is “not a general license to modify verdicts in accordance
with the evidence.” (People v. Eid (2014) 59 Cal.4th 650, 659.) “A defendant may be
convicted of an uncharged crime if, but only if, the uncharged crime is necessarily
included in the charged crime.” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed),
citing § 1159 and Lohbauer, supra, 29 Cal.3d at pp. 368-369.) This is so “whether or not
there was evidence at his trial to show that he had committed [the uncharged] offense.”
(In re Hess (1955) 45 Cal.2d 171, 175; see also, In re Edward Q. (2009) 177 Cal.App.4th
906, 910.) It follows that our ability to uphold the juvenile court’s jurisdictional and
dispositional orders depends on whether or not section 136.1, subdivision (b)(1) is a
necessarily included offense within section 136.1, subdivision (a)(2).
       “Two tests have traditionally been applied in determining whether an uncharged
offense is necessarily included within a charged offense – the statutory or legal
‘elements’ test and the ‘accusatory pleading’ test.” (People v. Sloan (2007) 42 Cal.4th
110, 117 (Sloan), italics omitted.) The elements test asks whether the statutory elements
of the greater offense include all of the statutory elements of the lesser offense. (Ibid.)
Put differently, “where an offense cannot be committed without necessarily committing
another offense, the latter is a necessarily included offense.” (People v. Pearson (1986)
42 Cal.3d 351, 355.) Under the accusatory pleading test, an uncharged offense is
included within the charged offense if the facts alleged in the accusatory pleading include

       2Section 1260 provides: “The court may reverse, affirm, or modify a judgment or
order appealed from, or reduce the degree of the offense or attempted offense or the
punishment imposed, and may set aside, affirm, or modify any or all of the proceedings
subsequent to, or dependent upon, such judgment or order, and may, if proper, order a
new trial and may, if proper, remand the cause to the trial court for such further
proceedings as may be just under the circumstances.”


                                              7.
all of the elements of the uncharged crime. (Sloan, supra, 42 Cal.4th at p. 117.) “Where
the accusatory pleading, as in this case, tracks the statutory language rather than reciting
factual details of the offense, ‘only the statutory elements test is relevant in determining if
an uncharged crime is a lesser included offense of that charged.’” (People v. Braslaw
(2015) 233 Cal.App.4th 1239, 1247, quoting People v. Moussabeck (2007)
157 Cal.App.4th 975, 981.)
       To prove a violation of section 136.1, subdivision (a)(2), the prosecution must
show that the accused “[k]nowingly and maliciously attempt[ed] to prevent or dissuade
any witness or victim from attending or giving testimony at any trial, proceeding, or
inquiry authorized by law.” In contrast, subdivision (b)(1) of the statute requires proof of
an attempt to prevent or dissuade a person who has been the victim of a crime or who has
witnessed a crime from “[m]aking any report of that victimization to any peace officer or
state or local law enforcement officer or probation or parole or correctional officer or
prosecuting agency or to any judge.” As noted in other appellate decisions,
subdivision (b)(1) “targets pre-arrest efforts to prevent a crime from being reported to the
authorities.” (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347; accord, People v.
Fernandez (2003) 106 Cal.App.4th 943, 950 (Fernandez) [reversing a § 136.1, sub. (b)(1)
conviction because it was based solely upon the defendant’s efforts to dissuade a victim
from testifying truthfully at a preliminary hearing].) Subdivision (a)(2), on the other
hand, is logically construed as applying to post-arrest activity. (Fernandez, supra,
106 Cal.App.4th at p. 948 [“neither lawyers nor laypeople are apt to characterize
testimony by a witness in a criminal proceeding as a ‘report.’”].) The distinction was
noted by our district in People v. Hallock (1989) 208 Cal.App.3d 595 (Hallock), where
error was found in the use of an instruction on the elements of section 136.1, subdivision
(a) when the defendant had been charged pursuant to subdivision (b). (Hallock, supra, at
pp. 606-607).



                                              8.
       Subdivisions (a)(2) and (b)(1) of section 136.1 are accurately described as related
offenses, but the elements of the latter are not necessarily included in the former. A
person can violate subdivision (a)(2) without necessarily committing a violation of
subdivision (b)(1), and vice versa. Therefore, the judgment cannot be modified to
conform to proof as requested by respondent. Since the evidence is insufficient to
establish the crime Armando was accused of committing, the true finding on Count 2
must be reversed.
       The reversal of Count 2 invalidates the finding of a probation violation under
Count 4. As pleaded, Count 4 was based solely upon “the commission of the offense(s)
alleged in [the] petition.” As discussed, two of the three offenses alleged in the petition
were found not to be true. The count upon which the finding of a probation violation was
based is being reversed for insufficient evidence, which means the adjudication of
Count 4 cannot stand. These circumstances require dismissal of the petition. (See In re
A.L. (2015) 233 Cal.App.4th 496, 499-500 [once the minor has entered a denial of the
charges, the charging allegations cannot be amended without the minor’s consent unless
it is to allege a lesser/necessarily included offense]; Robert G., supra, 31 Cal.3d at p. 445
[“a wardship petition under [Welf. & Inst. Code] section 602 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.”].)
       Armando’s briefs contain additional arguments regarding the juvenile court’s
determination that the Count 2 conviction was a felony, and also its decision to commit
him to the DJJ. These issues are rendered moot by our reversal of the orders from which
the appeal is taken. Assuming there have been no subsequent adjudications or other legal
proceedings which would independently authorize his continued commitment to the DJJ,
the minor must be released from confinement.



                                             9.
                                      DISPOSITION
       The true findings made in the jurisdictional order are reversed, as is the
dispositional order. The matter is remanded to the juvenile court with directions to
dismiss the underlying petition. We order that the minor be released from custody unless
there is an independent legal basis for his continued confinement.



                                                                 _____________________
                                                                     GOMES, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




                                            10.
