Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DL027393, Frederick Aguirre, Judge. Affirmed in part and reversed in part.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Aronson, J., and Ikola, J.
The district attorney filed two petitions to have Z. B., a minor, declared a ward of the court. (Welf. & Inst. Code, § 602.) Minor only appeals from the true findings in the first petition. He admitted the allegations in the second petition and does not challenge them.
The first petition alleged first degree residential burglary and animal cruelty. On the afternoon before he turned ten, minor went into a neighbor’s backyard where there was a Koi pond and a rooster. He went into a locked laundry room where he picked up some bleach and poured it into the pond killing the fish. He then chased the rooster around the yard where he fell on it crushing its skull. Minor testified he had seen others clean a fish tank by using bleach and thought he was helping his neighbor clean her pond. He also testified he was chasing the rooster for fun when he tripped on his shoelaces and fell on the rooster’s head with his elbow.
The juvenile court found the two allegations had not been sustained beyond a reasonable doubt because there was no showing of “clear proof that at the time of committing the act charged” minor “knew its wrongfulness.” (Pen. Code, § 26, subd. One.) The court then stated: “I do find that under Penal Code section 26, he understood the difference between being on someone else’s property with permission and being on someone else’s property, especially when it’s fenced in, without permission; and that is not lawful. So I do find that he violated section 602(l) of the Penal Code, a misdemeanor trespassing on someone else’s land without their permission.”
Minor contends “the true finding on the trespass charge must be reversed without retrial because trespass is not a lesser included offense of burglary.” The Attorney General, after advising us it had consulted with the district attorney, concedes the juvenile court erred. It is well established that trespass is not a lesser included offense of burglary (In re Robert G. (1982) 31 Cal.3d 437, 440-441; People v. Lohbauer (1981) 29 Cal.3d 364, 369), and thus the juvenile court’s true finding of trespass cannot be affirmed, at least on that basis.
The court’s true finding on trespass could be affirmed, however, if the petition had been properly amended prior to the hearing to allege the offense of trespass or the minor consented to the true finding on the new charge. (In re Robert G., supra, 31 Cal.3d at p. 445.) Curiously, there is a handwritten note at the bottom of the petition which reads: “Count 3: 602(l) PC, a misdemeanor, trespassing on land without permission.” Below that, again handwritten, is the following: “amended 10/16/08” followed by an unknown initial, and “10-17-08” followed again by the same unknown initial. The petition was amended October 16, 2008, by striking a word from Count 1 and inserting additional language. That amendment is reflected in the discussion in the reporter’s transcript and minute order of that date, and we thus infer that the handwritten note indicating the petition was “amended” on October 16 refers to the amendment to Count 1.
Count 3 is another story, however. We scoured the entire reporter’s transcript and cannot find anywhere where an amendment to the petition to add this count was consented to or even discussed by the parties. All we have is a minute order of October 17, 2008, which states the “Court orders [] by interlineation as incorporated in the original petition to wit: Add Count 3: 602 (l) PC, a misdemeanor, trespassing on land without permission, on court’s own motion.” The procedural due process problem with the juvenile court adding a count on its own motion is clear. As the Supreme Court held in Robert G., “a wardship petition under 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.” (In re Robert G., supra, 31 Cal.3d at p. 445.) Given Count 3 was not properly added as a charge the juvenile court could not make a true finding on that count.
The true finding as to Count 3 for trespass is reversed. In all other respects the order adjudicating minor a ward of the juvenile court is affirmed.