Filed 9/10/15 In re R.F. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re R.F., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E061884
         Plaintiff and Respondent,
                                                                         (Super.Ct.Nos. J256006 & FJ52252)
v.
                                                                         OPINION
R.F.,

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Brian Saunders,

Judge. Affirmed.

         Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.




                                                             1
McGinnis, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and

Respondent.

      Following a contested jurisdictional hearing, the Los Angeles County Juvenile

Court found true that defendant and appellant R.F. (minor) committed one count of

robbery (Pen. Code, § 211) with the use of a deadly and dangerous weapon, to wit, a

knife (Pen. Code, § 12022, subd. (b)(1)).1 After the matter was transferred to San

Bernardino County for disposition, the San Bernardino County Juvenile Court declared

minor a ward of the court and placed her on probation on various terms and conditions.

Minor’s sole contention on appeal is that the weapon use enhancement should be

reversed because there was insufficient evidence to show that minor’s offense was

committed during a carjacking and substitution of a lesser enhancement by the juvenile

court was not permitted. We reject these contentions and affirm the judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

      On July 2, 2014, as Gustavo Garcia was leaving work and walking to his car,

minor put a knife to his neck and demanded his phone and wallet. Garcia removed his

wallet, which contained $800 in cash, and gave it to minor. Minor then ran away with

Garcia’s wallet. Garcia followed minor to a Laundromat in his car. When Garcia

entered, minor ran out. Garcia continued to pursue minor on foot, and at some point, a

bystander joined him. As the two men were chasing minor, minor threw items at them

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


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from Garcia’s wallet, including $400 in cash. Police eventually arrived and arrested

minor. Garcia recovered his wallet and its contents except $320.

       On July 7, 2014, a Welfare and Institutions Code section 602 petition was filed

charging minor with two counts of second degree robbery (§ 211)—one count as to

Gustavo Garcia (count 1) and the other as to James Nickerson (count 2). The petition

also alleged that in the commission of both offenses minor used a deadly and dangerous

weapon, to wit, a knife (§ 12022, subd. (b)(1)). As to the weapon enhancement, the

petition specifically cited in violation of subdivision (b)(2) of section 12022.

       Following a contested jurisdictional hearing on August 12, 2014, the Los Angeles

County Juvenile Court found true the robbery allegation in count 1 as well as the weapon

enhancement alleged as to that count. The court dismissed count 2 and its attendant

enhancement as no evidence was presented on that count. In making its findings, the

juvenile court specifically stated, “Court finds count one to be true. 12022 (b) (one)

enhancement is true with a knife. Count two is dismissed. Minor is a person described

by section 602 of the Welfare and Institutions Code.” Because minor was living with her

mother in San Bernardino County, the juvenile court transferred the matter to San

Bernardino County for disposition.

       On August 20, 2014, the San Bernardino County Juvenile Court accepted the

transfer. On September 3, 2014, the court declared minor a ward of the court and placed

her in the custody of the probation department on various terms and conditions while she




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awaited placement in foster care. The court also ordered minor’s parents to comply with

a reunification plan and treatment program.

       On September 8, 2014, minor filed a notice of appeal from the judgment.

                                              II

                                       DISCUSSION

       In regard to the weapon enhancement allegation, the petition specifically

stated, “It is further alleged that in the commission and attempted commission of

the above offense [second degree robbery], the said minor, personally used a deadly

and dangerous weapon(s), to wit, knife, said use not being an element of the above

offense [second degree robbery], within the meaning of Penal Code Section 12022[,

subdivision] (b)(2) and causing the above offense to be a serious felony within the

meaning of Penal Code section 1192.7[, subdivision] (c)(24).” (Italics added.)

       Section 12022, subdivision (b)(1), authorizes an additional and consecutive one-

year term of imprisonment for use of a dangerous weapon in the commission of a felony

or attempted felony. Section 12022, subdivision (b)(2), states, “If the person described in

paragraph (1) has been convicted of carjacking or attempted carjacking, the additional

term shall be in the state prison for one, two, or three years.” (§ 12022, subd. (b)(2).)

There is no dispute here that minor committed second degree robbery, and the juvenile

court correctly referred to subdivision (b)(1) of section 12022 when it found true the

deadly and dangerous weapon use enhancement.




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       According to minor, the weapon enhancement should be reversed because there

was no evidence to show her offense was committed during a carjacking and the juvenile

court erred in substituting the lesser enhancement. The People argue that the error in the

petition was a clerical error and that minor was on notice of the weapon enhancement

under subdivision (b)(1) of section 12022 because the petition stated the language from

that subdivision and the juvenile court found minor violated subdivision (b)(1) of

section 12022. The People therefore maintain that, under the circumstances of this case,

the weapon enhancement under section 12022, subdivision (b)(1), was properly pled and

proven.

       An error in identifying the statute that renders a defendant’s acts unlawful is a

pleading defect, even if it continues throughout the proceedings. (People v. Thomas

(1987) 43 Cal.3d 818, 824-826 (Thomas).) As such, it is evaluated in light of the

statutory and due process requirements governing the preparation of accusatory

pleadings. (Thomas, at pp. 824-826.) The purpose of the due process notice requirement

is to afford an accused “ ‘ “a reasonable opportunity to prepare and present his defense

and not be taken by surprise by evidence offered at his trial.” ’ ” (People v. Lohbauer

(1981) 29 Cal.3d 364, 368; People v. West (1970) 3 Cal.3d 595, 612.)

       The defendant also has the right to notice that the prosecution is seeking enhanced

punishment. (See § 1170.1, subd. (e); People v. Sok (2010) 181 Cal.App.4th 88, 96,

fn. 8; People v. Hopkins (1974) 39 Cal.App.3d 107, 113 (Hopkins); People v. Henderson

(1972) 26 Cal.App.3d 232, 238.) When the facts supporting such enhancement are



                                             5
neither alleged nor found by the trier of fact, the aggravation of sentence cannot stand.

(People v. Ford (1964) 60 Cal.2d 772, 794, overruled on other grounds in People v.

Satchell (1971) 6 Cal.3d 28, 35-38; Hopkins, supra, at p. 113; People v. Henderson,

supra, at p. 238.)

       The same reasoning applies in juvenile cases. “ ‘[Due] process requires that a

minor, like an adult, have adequate notice of the charge so that he may intelligently

prepare his defense. [Citation.]’ [Citation.] Compliance with this 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.’ [Citation.]” (In re Robert G. (1982) 31

Cal.3d 437, 442 (Robert G.).)

       The “ ‘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.’ [Citation.]” (Thomas, supra, 43 Cal.3d at p. 828;

§ 952.) Consequently, “ ‘even a reference to the wrong statute has been viewed of no

consequence under the circumstances there appearing [citations].’ [Citation.]” (Thomas,

at p. 826.)

       Charging the defendant under the wrong statute is “of no consequence” when the

defendant has not been prejudiced by the error. (Thomas, supra, 43 Cal.3d at pp. 826-

827.) Prejudice in these circumstances implicates constitutional procedural due process



                                              6
rights. “The ‘preeminent’ due process principle is that one accused of a crime must be

‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend.VI.) Due

process of law requires that an accused be advised of the charges against him so that he

has a reasonable opportunity to prepare and present his defense and not be taken by

surprise by evidence offered at his trial. [Citation.] [¶] Thus, the right to defend has two

related components, namely, the right to notice of the charges, and the right to present a

defense to those charges.” (People v. Jones (1990) 51 Cal.3d 294, 317, italics omitted;

Thomas, supra, 43 Cal.3d at p. 823, and cases cited therein.) Further, “ ‘Notice of the

particular circumstances of the offense is given not by detailed pleading, but by the

transcript of the evidence before the committing magistrate . . . .’ [Citations.]” (Thomas,

supra, at p. 829.)

       Here, the petition fully informed minor that she was charged with using a deadly

weapon, “to wit, knife,” in the commission of the second degree robbery. She, therefore,

could not be surprised by proof of such use, nor can she say that the preparation of her

defense to meet the facts would have been different if the petition had alleged use under

the provision of subdivision (b)(1) of section 12022, rather than subdivision (b)(2) of

section 12022. (See Hopkins, supra, 39 Cal.App.3d at pp. 112-113.) Minor was fully

informed that the People were seeking to enhance her sentence for use of a deadly

weapon. The question thus presented is whether the misstatement of the subdivision of

the code section in the petition, indicating a greater enhancement than that proven at the




                                             7
jurisdictional hearing and found true by the juvenile court, requires reversal of the

weapon enhancement.

       People v. Neal (1984) 159 Cal.App.3d 69 (Neal) is instructive. In Neal, the

information alleged the defendant used a deadly weapon during the commission of rape

and oral copulation, within the meaning of section 12022, subdivision (b), which allowed

an additional one-year imprisonment. (Neal, supra, 159 Cal.App.3d at p. 72.) The jury

found weapons enhancements true as to each crime. The trial court, however, increased

the imprisonment to three years per crime, relying on section 12022.3. Section 12022.3

provides an enhancement for using dangerous weapons during the commission or

attempted commission of certain sex crimes. (Neal, supra, 159 Cal.App.3d at p. 72.)

       On appeal, the defendant argued the three-year enhancements should be modified

to one year because the information relied on section 12022, subdivision (b), rather than

section 12022.3. (Neal, supra, 159 Cal.App.3d at p. 72.) The Neal court held, “[W]here

the information puts the defendant on notice that a sentence enhancement will be sought,

and further notifies him of the facts supporting the alleged enhancement, modification of

the judgment for a misstatement of the underlying enhancement statute is required only

where the defendant has been misled to his prejudice. [Citations.]” (Id. at pp. 73-74.)

Because the defendant could not demonstrate prejudice, the sentence was not reduced.

(Id. at p. 74.)

       Similarly, the petition alleged a weapon enhancement for carjacking, pursuant to

section 12022, subdivision (b)(2), but the court found true the enhancement based on



                                              8
subdivision (b)(1) of section 12022. Minor was, or should have been aware, the

prosecutor was seeking the one-year additional enhancement for use of a deadly weapon

in the course of a robbery, based on the allegations in the petition and facts. Minor’s

challenge to the weapon enhancement is solely based on the fact that the accusatory

pleading specified the wrong subdivision of section 12022. She does not contend, nor

could she contend, that using a weapon in the commission of a robbery is not a proper

enhancement, or that there was no substantial evidence to support the juvenile court’s

true finding that minor used a knife in the commission of the robbery.

       Minor’s reliance on Robert G., supra, 31 Cal.3d 437 is misplaced. Robert G.

involved a wardship petition which charged a 14-year-old minor with assault with a

deadly weapon. At the contested hearing, the People presented evidence that the minor

threw two rocks while he was in a junior high school parking lot, one of which hit a

school custodian in the back. (Id. at p. 439.) After the People completed their case, the

minor moved for acquittal on the ground that the rock was not a deadly weapon. The

juvenile court denied the motion, although it agreed that the rock was not a deadly

weapon. (Ibid.) After the minor rested without presenting evidence, the People argued

that the petition should be sustained because the evidence established that the minor

committed a battery. Over a defense objection, the juvenile court amended the petition to

charge a battery and then sustained the petition pursuant to that new charge. (Id. at

p. 440.) The Robert G. court reversed the judgment, holding that “a wardship petition

under section 602 may not be sustained upon findings that the minor has committed an



                                             9
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.” (Id. at p. 445.)

       Contrary to minor’s arguments on appeal, the purported amendment that occurred

in this case did not violate the due process principles elucidated in Robert G., supra,

31 Cal.3d 437. The juvenile court here did not add an enhancement that was not alleged

in the petition. The language in the petition alleged a weapon enhancement under

section 12022, subdivision (b)(1), despite its reference to subdivision (b)(2). The petition

alleged that minor “in the commission and attempted commission of the above offense

[second degree robbery], the said minor, personally used a deadly and dangerous

weapon(s), to wit, knife, said use not being an element of the above offense [second

degree robbery] . . . .” There was no dispute that minor was charged with, and the

juvenile court found true, that she had committed a robbery as opposed to a carjacking.

Accordingly, in making its true finding on the weapon use enhancement, the juvenile

court cited to the correct statutory provision. The court’s true finding on the weapon

enhancement under section 12022, subdivision (b)(1), was not a substitution of the

charged enhancement with an uncharged enhancement.

       We also reject minor’s claim that substitution of a lesser enhancement violates the

California Supreme Court’s decision in People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott).

In Wolcott, the court concluded that assault with a deadly weapon was not a lesser

included offense of a robbery charge with a special allegation that the defendant used a



                                             10
firearm in the commission of the robbery. The Supreme Court determined that the

section 12022.5 allegation could not be considered in determining whether assault with a

deadly weapon was a lesser included offense of robbery. (Id. at pp. 98-102.) Here, the

juvenile court did not add an uncharged enhancement and minor was provided notice of

the weapon enhancement under section 12022, subdivision (b)(1). Accordingly, Wolcott

is not controlling authority in this case.

       Under the circumstances of this case, minor has failed to establish that her right to

procedural due process was violated. The weapon enhancement allegation under

subdivision (b)(1) of section 12022 was properly pled and proven, and the juvenile court

properly cited that subdivision in finding the weapon enhancement allegation true.

                                             III

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                        P. J.
We concur:



HOLLENHORST
                            J.



CODRINGTON
                            J.



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