People v. Carlo S. — 94 Cal. App. 2d 377

Majority

p. 377

[Civ. No. 45180.

First Dist., Div. One.

June 25, 1979.]

In re CARLO S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CARLO S., Defendant and Appellant.

p. 379

Counsel

James E. Marks for Defendant and Appellant.

George Deukmejian, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, Robert R. Granucci and Herbert F. Wilkinson, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

Carlo S., a minor, was accused by a Welfare and Institutions Code section 602 petition of committing an act described by Penal Code section 245 as “assault.'. .by any means of force likely to produce great bodily injury,” a felony. Following a contested jurisdictional hearing the minor was found by the juvenile court to have committed the act proscribed by Penal Code section 148 and generally described as obstructing a police officer in the discharge of his duties. The petition had not been amended and the minor remained silent, neither consenting nor objecting to the juvenile court’s determination of his offense.

The appeal before us was taken by the minor from an order granting probation which was thereafter entered against him.

The Penal Code section 148 offense is concededly, and obviously, not a lesser offense necessarily included in a charge of assault by means of force likely to produce great bodily injury.

The question presented is whether the juvenile court may, without appropriate amendment to the charging petition or previous notice to the minor, find him “guilty” of an uncharged, and unincluded, lesser offense, in cases where the minor remains silent and “made no objections to the procedure. . . .” (In re Stanley B., 17 Cal.App.3d 530 , 536 [ 95 Cal.Rptr. 116 ].)

p. 380

In re Gault, 387 U.S. 1 , 33 [ 18 L.Ed.2d 527 , 549, 87 S.Ct. 1428 ], holds that due process requires that “the child and his parents or guardian 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.” And, as is well known, In re Gault and related high authority generally require that such minors otherwise receive the due process protections which are afforded adult persons charged with crime.

Our Supreme Court has held that: “A person cannot be convicted of an offense (other than a necessarily included offense) not charged . . . , whether or not there was evidence at his trial to show that he had committed that offense.” (In re Hess, 45 Cal.2d 171 , 174-175 [ 288 P.2d 5 ], and see authority there collected; see also People v. Cannady, 8 Cal.3d 379 , 389-390 [ 105 Cal.Rptr. 129 , 503 P.2d 585 ]; People v. Puckett, 44 Cal.App.3d 607 , 611 [ 118 Cal.Rptr. 884 ]; In re Ball, 23 Cal.App.3d 380 , 384 [ 100 Cal.Rptr. 189 ]; People v. Calder, 6 Cal.App.3d 931 , 934 [ 86 Cal.Rptr. 446 ]; People v. Lewis, 186 Cal.App.2d 585 , 599-600 [ 9 Cal.Rptr. 263 ]; People v. Travis, 171 Cal.App.2d 842 , 844 [ 341 P.2d 851 ]; People v. Feldman, 171 Cal.App.2d 15 , 23 [ 339 P.2d 888 ].)

The court, in such a situation, lacks “jurisdiction” to so convict the accused. (In re Hess, supra, p. 175; People v. West, 3 Cal.3d 595 , 612 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ]; In re Johnny V, 85 Cal.App.3d 120 , 136 [ 149 Cal.Rptr. 180 ]; People v. Wilson, 271 Cal.App.2d 60 , 62 [ 76 Cal.Rptr. 195 ].) And where the court is without jurisdiction, an accused by his “silence,” or “acquiescence,” may not confer it. “Lack of jurisdiction may not be waived, nor may jurisdiction be stipulated.” (People v. Blakeman, 170 Cal.App.2d 596 , 598-599 [ 339 P.2d 202 ]; see also Sampsell v. Superior Court, 32 Cal.2d 763 , 776 [ 197 P.2d 739 ]; People v. Megladdery, 40 Cal.App.2d 748 , 762 [ 106 P.2d 84 ]; In re Garrity, 97 Cal.App. 372 , 376 [ 275 P. 480 ].)

The foregoing authority, we believe, is controlling.

We are unable to accept the authority, or rationale, of In re Stanley B.’s dicta (supra, 17 Cal.App.3d, p. 536) that the minor had “received the benefit of a dismissal of the more serious offense . . . where the evidence supported such conviction [, and that as] a matter of fact, appellant was lucky in that the court was so lenient; ...” A proper interpretation of the proceedings would seem to be that the juvenile court had concluded that

p. 381

the “more serious offense” had not been established beyond a reasonable doubt, and that the minor was neither “lucky,” nor the court “lenient.” It will reasonably be presumed that had the charge been properly supported, the juvenile court would have so found.

The order granting probation is reversed.

Racanelli, P. J., and Newsom, J., concurred.

On July 23, 1979, the judgment was modified to read as printed above.

Cases cited

Thornton v. Stanley B. 17 Cal.App.3d 530 Cal. Ct. App. 1971-05-13 at 536 p. 379
In re Gault 387 U.S. 1 SCOTUS 1967-05-15 at 33 p. 380
In re Hess 45 Cal.2d 171 Cal. 1955-10-04 at 174-175 p. 380
People v. Cannady 8 Cal.3d 379 Cal. 1972-11-29 at 389-390 p. 380
People v. Puckett 44 Cal.App.3d 607 Cal. Ct. App. 1975-01-16 at 611 p. 380
In re Ball 23 Cal.App.3d 380 Cal. Ct. App. 1972-02-08 at 384 p. 380
People v. Calder 6 Cal.App.3d 931 Cal. Ct. App. 1970-04-23 at 934 p. 380
People v. Lewis 186 Cal.App.2d 585 Cal. Dist. Ct. App. 1960-11-22 at 599-600 p. 380
People v. Travis 171 Cal.App.2d 842 Cal. Dist. Ct. App. 1959-07-13 at 844 p. 380
People v. Feldman 171 Cal.App.2d 15 Cal. Dist. Ct. App. 1959-06-01 at 23 p. 380
People v. West 3 Cal.3d 595 Cal. 1970-12-03 at 612 p. 380
People v. Johnny V. 85 Cal.App.3d 120 Cal. Ct. App. 1978-09-27 at 136 p. 380
People v. Wilson 271 Cal.App.2d 60 Cal. Ct. App. 1969-03-25 at 62 p. 380
People v. Blakeman 170 Cal.App.2d 596 Cal. Dist. Ct. App. 1959-05-25 at 598-599 p. 380
Sampsell v. Superior Court 32 Cal.2d 763 Cal. 1948-10-01 at 776 p. 380
People v. Megladdery 40 Cal.App.2d 748 Cal. Dist. Ct. App. 1940-09-30 at 762 p. 380
In re Garrity 97 Cal.App. 372 Cal. Dist. Ct. App. 1929-03-04 at 376 p. 380

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Cases cited

Statutes and regulations cited