In re Craig K. CA1/5 ( 2014 )

Filed 1/17/14 In re Craig K. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re CRAIG K., a Person Coming
Under the Juvenile Court Law. A135333
THE PEOPLE,
ORDER MODIFYING
Plaintiff and Respondent,
NONPUBLISHED OPINION
v. [NO CHANGE IN JUDGMENT]
CRAIG K.,
Defendant and Appellant. (Sonoma County
Super. Ct. No. 35803J)
BY THE COURT:*
IT IS ORDERED that the opinion filed on December 20, 2013, is modified as
follows and the petition for rehearing is DENIED:
*
Before Jones, P.J., Needham, J., and Bruiniers, J.
1
On page 6, the last sentence of the first full paragraph in Part I of the discussion is
deleted and replaced with the following sentence:
We need not address the former argument, and we disagree with the latter.
The revised paragraph reads as follows:
Appellant makes a two-pronged attack on the juvenile court’s finding he
committed an assault with a deadly weapon—his pit bull. He first contends
the evidence does not support a finding the dog was an inherently deadly
weapon. He then argues the evidence cannot support a finding the dog was
used as a deadly weapon. We need not address the former argument, and
we disagree with the latter.
The modification effects no change in the judgment.
Date: JANUARY 17, 2014 ____________________________ P.J.
2
Filed 12/23/13 In re Craig K. CA1/5 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re CRAIG K., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A135333
v.
CRAIG K., (Sonoma County
Super. Ct. No. 35803J)
Defendant and Appellant.
In the juvenile wardship proceeding below, Craig K. (appellant) was found guilty
of assault with a deadly weapon. (Former Pen. Code, § 245, subd. (a)(1), amended by
Stats. 2011, ch. 183, § 1.)1 The weapon with which he was alleged to have committed the
assault was his family’s pit bull. On appeal from the dispositional order, appellant claims
no substantial evidence supports the juvenile court’s jurisdictional finding that his dog
was a deadly weapon within the meaning of the statute. Appellant also contends he was
denied due process because the juvenile court found he had committed offenses not
charged in the Welfare and Institutions Code section 602 petition.
1
Section 245 was amended effective January 1, 2012. (See Stats. 2011, ch. 183, § 1.)
We refer in this opinion to the former version of the statute, which was in effect at the
time of the offense, trial, and disposition. All further undesignated statutory references
are to the Penal Code.
1
We conclude the juvenile court’s findings are supported by substantial evidence in
the record. We further conclude appellant was not found guilty of an uncharged offense.
We discern no error and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We draw our factual statement chiefly from the testimony and evidence presented
at the jurisdictional hearing held on September 19 and 23, 2011. In accordance with our
standard of review, we view the evidence in the light most favorable to the judgment. (In
re Arcenio V. (2006) 141 Cal. App. 4th 613, 615.)
The Crime
On May 31, 2011, Christopher Fromer, a security guard at a Target store in
Rohnert Park, was standing at the front doors when he saw three young males enter the
store together. Fromer noticed the minors because one was wearing a heavy jacket on a
warm day. In addition, they appeared to be under 21 years of age and were walking
toward the store’s alcohol aisle.
Fromer followed the three minors to the alcohol aisle, and he saw one of them
place two bottles of rum into the front pockets of his jeans and two bottles in the back of
his pants. The minor then headed back towards the front of the store. Another one of the
three, who had been watching as the first took the rum, started to put a bottle of alcohol
under his shirt but “froze” when he made eye contact with Fromer.
Fromer followed the minor carrying the four bottles towards the front of the store.
The youth passed the cash registers without paying for the alcohol. Fromer met him at
the exit, and as the young man passed through the first set of doors, Fromer stepped in
front of him and identified himself as “Target security.” At that point, the minor
attempted to run through the second set of doors leading to the parking lot. Fromer
grabbed him around the waist, but the youth’s momentum pulled the two men into the
parking lot.
The two struggled on the ground in the parking lot as the minor tried to get away.
Fromer fell onto his back and wrapped his legs around the youth to prevent his escape.
Fromer saw an acquaintance, Mike Merrill, approach from his right, while another minor,
2
later identified as appellant, approached from the left with a dog. Appellant “was either
walking fast or running towards” the struggling men, holding “the slack of the leash and
the dog . . . close to his body.”
Merrill intervened in the fight, grabbing the minor struggling with Fromer by his
left arm in an effort to free the security guard. As appellant approached Fromer,
appellant “let go of the leash with his right hand. He still had the end of the leash
wrapped around his wrist but he let go of the slack.” Fromer was concerned because the
dog was a “big p[i]t bull,” a breed he had heard was aggressive. Fromer attempted to
stand, raising his left arm to protect himself from the dog. Appellant was approaching
the fighting men with his dog, which had its mouth open. The dog bit Fromer, leaving a
small puncture wound on his left forearm that caused bleeding.
When Fromer stood up, appellant was within two or three feet of him and had the
leash on the dog at full extension. While Merrill was still fighting with the first minor,
appellant removed a knife from his right pocket with his left hand. Standing about five
feet from Fromer, appellant extended his left arm toward Merrill and held the knife out.
Seeing the weapon, Fromer, following Target policy, disengaged from the fight and
pulled Merrill away from the first minor. Appellant, his dog, and the minor who had
taken the liquor fled toward the west side of the store. The other two minors who had
been in the store fled in a different direction.
Target’s surveillance video system recorded the incident, and a disc of the video
was received in evidence as petitioner’s Exhibit 1. The video showed appellant running
toward Fromer with his dog as Fromer struggled with the minor who had stolen the rum.
Fromer was shown the video at trial, and he testified it depicted appellant and his dog
running toward him. The dog reared up on its hind legs and bit Fromer.2 At that point,
appellant was not trying to pull back on the dog’s leash.
Appellant’s mother testified appellant’s dog was a pit bull weighing 53 pounds at
the time of trial. She was unsure of the dog’s age, but said it was “maybe a year [old] at
2
Fromer later went to the hospital for treatment of the dog bite. He was given a tetanus
shot and told he would be contacted if the dog had rabies.
3
this point.” She had not seen her son train the dog to attack. She did not know how the
dog might react to a physical altercation.
Another defense witness testified she had seen the altercation in the parking lot.
She saw appellant holding his dog on a leash, and it appeared to her that “when the dog
was raised up, [appellant] was . . . like trying to hold him back.” The witness was about
20 feet away from the altercation, and she did not see appellant with a knife. She
admitted it was possible she had not seen the knife because of her distance from the fight
and because appellant had his back to her.
The Petition
On July 11, 2011, the Sonoma County District Attorney filed a wardship petition
under Welfare and Institutions Code section 602, subdivision (a) alleging three counts.
The petition charged appellant with robbery (Count I), assault with a deadly weapon
(Count II), and brandishing a deadly weapon (Count III). (§§ 211, 245, subd. (a)(1), 417,
subd. (a)(1).) The deadly weapon with which appellant was alleged to have committed
the assault was a pit bull, and the weapon he was alleged to have brandished was a knife.
The Juvenile Court’s Ruling
After a contested jurisdictional hearing, the juvenile court granted appellant’s
motion to dismiss Count I and found true Counts II and III. In its oral ruling, the juvenile
court noted that in the surveillance video, all four juveniles involved got out of the same
car. Appellant did not enter the store with his dog, but waited in the parking lot. The
court therefore inferred “that this deal was planned from the beginning.” After the three
other minors came running out of the store, “[w]ithin a matter of seconds [appellant] is
there with his pit bull.” The juvenile court was persuaded appellant was part of a scheme
to steal alcohol from the store, and “[h]is game plan was . . . to help them escape.”
The court went on to explain its findings and reasoning: “So I am persuaded and
I’m willing to state as a matter of law that a 53-pound pit bull is a deadly weapon, and
I’m happy to have that go up for an appellate review. Under these facts – I think as a
matter of law, it’s a deadly weapon. But under these facts, it was used in a manner that
could have reasonably led to create great bodily injury or death. I know it’s only a one-
4
year old dog, but it is a pit bull. These dogs, whether they have individual specialized
training or not, they’ve been trained. They’ve been bred for generations to fight. Who
they fight is determined by the master’s orders. . . . They will hurt people, and they can.
They are capable of inflicting great bodily harm.
“But the case doesn’t have to rest on that because there’s a knife involved. A
knife is a deadly weapon. This was a lockback or switchblade of some type. I’m not
clear exactly what it was, but it had at least a 3-inch blade or a 2-inch blade, and the knife
had an overall length of 4 or 5 inches from the evidence. I believe Mr. Fromer when he
testified that they waved a knife at him . . . and that enabled their escape. . . .
“So I am finding under the evidence that the Count 2 is sustained beyond a
reasonable doubt, to wit, that [appellant] did, in the County of Sonoma, on or about May
31st, willfully and unlawfully commit[] an assault upon Christopher Fromer with a pit
bull and/or with a knife, both being deadly weapons and both by means of force likely to
produce great bodily harm.”
Disposition and Appeal
At the dispositional hearing, the court declared the assault a felony and committed
appellant to the Division of Juvenile Justice for a period of observation and diagnosis. At
a further dispositional hearing, the court retained appellant as a ward and committed him
to a camp program subject to various conditions. Appellant then filed a timely notice of
appeal.
DISCUSSION
Appellant raises two challenges to the jurisdictional findings. First, he argues
there was insufficient evidence he committed an assault with a deadly weapon with his
dog. Second, appellant contends he was deprived of due process when the juvenile court
found he committed the uncharged, not necessarily included offenses of assault with a
deadly weapon by use of a knife and assault by means of force likely to produce great
bodily injury.
5
I. Substantial Evidence Supports the Juvenile Court’s Finding That Appellant
Committed Assault With a Deadly Weapon.
Appellant makes a two-pronged attack on the juvenile court’s finding he
committed an assault with a deadly weapon—his pit bull. He first contends the evidence
does not support a finding the dog was an inherently deadly weapon. He then argues the
evidence cannot support a finding the dog was used as a deadly weapon. We disagree on
both counts.
A. Standard of Review and Governing Law
“Our review of [appellant’s] substantial evidence claim is governed by the same
standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of
the evidence, we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘“[O]ur role
on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal. 4th
1020, 1026.)
The version of section 245, subdivision (a)(1) (section 245(a)(1)) in effect at the
time of the offense, trial, and disposition provided: “Any person who commits an assault
upon the person of another with a deadly weapon or instrument other than a firearm or by
any means of force likely to produce great bodily injury shall be punished by
imprisonment in the state prison for two, three, or four years, or in a county jail for not
exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both
the fine and imprisonment.” (Former § 245, subd. (a)(1), amended by Stats. 2011,
6
ch. 183, § 1.)3 Under this subdivision, “a ‘deadly weapon’ is ‘any object, instrument, or
weapon which is used in such a manner as to be capable of producing and likely to
produce, death or great bodily injury.’” (People v. Aguilar (1997) 16 Cal. 4th 1023, 1028-
1029 (Aguilar).) Some objects are deadly weapons as a matter of law; others “may be
used, under certain circumstances, in a manner likely to produce death or great bodily
injury.” (Id. at p. 1029.) “In determining whether an object not inherently deadly or
dangerous is used as such, the trier of fact may consider the nature of the object, the
manner in which it is used, and all other facts relevant to the issue.” (Ibid.)
California law recognizes that a dog may be used as a deadly weapon. (People v.
Henderson (1999) 76 Cal. App. 4th 453, 469-470 (Henderson); People v. Nealis (1991)
232 Cal. App. Supp. 3d 1, 6 (Nealis); see People v. Frazier (2009) 173 Cal. App. 4th 613,
618 (Frazier) [“A dog may be the instrumentality of an attack causing great bodily injury
just as a loaded gun or knife can be.”].) A dog may be a deadly weapon if a defendant
uses the dog to attack or threaten a person, and the dog is capable of inflicting serious
injury. (Henderson, supra, 76 Cal.App.4th at p. 469; Nealis, supra, 232 Cal.App.3d
Supp. at p. 6.)
Whether a specific dog in a given case is a deadly weapon is a question of fact.
(Nealis, supra, 232 Cal.App.3d Supp. at p. 4.) The determination depends on the
circumstances of each case. (Id. at p. 6.) A dog need not undergo special training before
it may be deemed a deadly weapon. (Henderson, supra, 76 Cal.App.4th at p. 470;
accord, Frazier, supra, 173 Cal.App.4th at p. 619 [“the prosecution was not required to
prove that defendant had rehearsed attacks with the dogs prior to the event”].) “[T]he
ultimate question which must be answered is whether the dog would attack, regardless of
any training it may or may not have received.” (Henderson, supra, at p. 470.)
3
The cited amendment removed from subdivision (a)(1) the words “or by any means of
force likely to produce great bodily injury” and added a new subdivision (a)(4)
incorporating that language. (See Historical and Statutory Notes, 47C, West’s Ann. Pen.
Code (2013 supp.) foll. § 245, p. 119; People v. Brown (2012) 210 Cal. App. 4th 1, 5, fn. 1
(Brown).)
7
B. The Juvenile Court Could Properly Find That Appellant’s Dog Was Used
in a Manner Likely to Produce Great Bodily Injury.
Appellant contends the evidence does not show he used his dog as a deadly
weapon.4 He argues that to find his dog was used as a deadly weapon, “the defendant
must command or urge the dog to attack, and the dog must comply with the defendant’s
instructions.” In addition, “the record must show the dog is capable of inflicting serious
injury.” Further, he contends, the defendant must intentionally engage in conduct likely
to produce injurious consequences, and so “the evidence must prove appellant actually
did something with [the dog] as a weapon.” Appellant tells us all of these elements are
lacking in this case. We cannot agree.
First, we find no explicit support in the case law for appellant’s claim that to be
deemed a deadly weapon, a dog must have been commanded to attack and must have
complied with the command. In Henderson, supra, 76 Cal. App. 4th 453, the appellant
only “encouraged” his dogs’ aggressive response to police officers and was “aware of
their willingness to attack the officers should he let go.” (Id. at p. 470.) “He then held
the dogs sufficiently close to the officers to enable them to attack should they break free
of his hold.” (Ibid.) Despite the absence of an express command and despite the fact that
the dogs did not actually attack the threatened police officers, the court nevertheless
found the evidence supported a finding the pit bulls in that case were deadly weapons.
(Ibid.)
Even if a command were a requirement, the evidence in this case would permit the
juvenile court to infer appellant directed his dog to attack. As Fromer testified, and as
Exhibit 1 shows, appellant ran toward the struggling men with his dog. As appellant
approached, he released the slack on the leash, and the dog reared up on its hind legs and
bit Fromer. This evidence belies appellant’s claims that he “did not deliberately agitate
4
We need not address appellant’s contention that the juvenile court erred in finding the
dog was an inherently deadly weapon. As explained earlier, the court expressly found
that “under these facts, [the dog] was used in a manner that could have reasonably led to
create great bodily injury or death.” (Italics added.) This was the correct inquiry. (See
Aguilar, supra, 16 Cal.4th at p. 1029.)
8
[the dog] or direct her at Fromer or Merrill” but was rather “merely standing by with his
family’s dog.”5 From this evidence, the juvenile court could certainly have inferred
appellant encouraged his dog’s aggressive response. (Henderson, supra, 76 Cal.App.4th
at p. 470.)
Second, we find the evidence sufficient to sustain a finding that the dog was of
sufficient size and strength relative to Fromer to be capable of inflicting great bodily
injury. (Nealis, supra, 232 Cal.App.3d Supp. at p. 6.) Appellant’s claim of insufficient
evidence is based largely on the assertion that his dog was only about eight months old at
the time of the incident and “presumably” weighed significantly less than the 53 pounds
she weighed at the time of trial. While he relies on his mother’s testimony about the
dog’s young age, appellant’s mother testified she did not know how old the dog was
when it was acquired by the family. She stated she thought the dog “wasn’t very old”
and at trial estimated the dog was “maybe a year [old] at this point.” And although
appellant characterizes his dog as “relatively small and immature,” Fromer testified the
5
In his reply brief, appellant makes a number of claims about what Exhibit 1 purportedly
shows. He argues it depicts his “backward-leaning posture as the dog approaches the
scene of the altercation” and asserts the video contradicts any claim he “rushed toward
Fromer when he and the other minor began to fight[.]” He also claims it shows “body
language that indicates he is pulling back on the leash.”
In making such claims, appellant invites us to substitute our judgment for that of
the juvenile court as to what the surveillance video shows. As an appellate court, we
must decline the invitation. (See South Santa Clara Etc. Dist. v. Johnson (1965) 231
Cal. App. 2d 388, 398 [reviewing court may not substitute its deductions for those of trial
court as to what photographs depict where two or more inferences reasonably can be
drawn from the evidence].) We have reviewed Exhibit 1, and it suffices for us to say this
is not a case in which the video evidence “absolutely refute[s] the conclusion to be drawn
from oral testimony[.]” (Harmon v. San Joaquin L & P Corp. (1940) 37 Cal. App. 2d 169,
173.) The surveillance video created at most a conflict in the evidence, and we cannot
say the inferences the juvenile court drew from it are not based on substantial evidence.
(See Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117
Cal. App. 4th 1138, 1149-1150 [although videotape did not show defendant’s employee
distributing flyers, jury could infer he did so from video showing he participated in
demonstration and had flyers in his possession].)
9
dog was a “big p[i]t bull,” and the juvenile court was able to judge the size of the dog at
the time of the attack by looking at Exhibit 1.
Ultimately, whether the dog was of sufficient size and strength to be capable of
inflicting great bodily injury is a question of fact. (Nealis, supra, 232 Cal.App.3d Supp.
at p. 4.) We must therefore defer to the juvenile court’s findings on this point.
(Henderson, supra, 76 Cal.App.4th at p. 466.) Moreover, while it might have been good
practice for the petitioner to have introduced the type of evidence appellant now
demands, “such evidence is not essential to establish the deadly nature of the weapon[.]”
(Brown, supra, 210 Cal.App.4th at p. 8 [the People did not need to introduce evidence
concerning nature of BB gun and its ability to inflict substantial injury].)
Finally, the mere fact that Fromer did not suffer any particularly serious injury is
not dispositive. Section 245(a)(1) “speaks to the capability of inflicting significant
injury[.]” (Brown, supra, 210 Cal.App.4th at p. 7, italics added.) If injury does result,
however, “the nature of such injuries and their location are relevant facts for
consideration in determining whether an object was used in a manner capable of
producing and likely to produce great bodily injury.” (Ibid.) In this case, Fromer raised
his arm to protect himself from being bitten, and the dog’s bite inflicted what appears to
have been a superficial wound. But the juvenile court “could have reasonably inferred
the location and severity” of Fromer’s injury “were fortuitous[.]” (Id. at p. 8.) Fromer
was attacked by the dog while he was on the ground, and he just as easily could have
suffered a far more serious injury. (Ibid.) Contrary to appellant’s suggestion, the nature
of Fromer’s injury in no way “negates a reasonable inference” the dog was used as a
deadly weapon.
II. Appellant Was Not Found Guilty of an Uncharged Offense.
Appellant raises a second challenge to the true finding on Count II of the petition.
He contends he was deprived of due process because the juvenile court made findings in
excess of its jurisdiction as to uncharged allegations that were not necessarily included in
the charged offenses. Specifically, he argues the lower court exceeded its jurisdiction by
finding he had committed assault with a deadly weapon with a knife, because assault with
10
a knife was neither explicitly charged in the petition nor necessarily included in the
charge of assault with a deadly weapon by means of his pit bull. In appellant’s view, the
alleged error requires reversal. We disagree.
A. Appellant Does Not Demonstrate Prejudicial Error.
At the outset, it is not clear to us how appellant was prejudiced by the alleged
error, and he does not explain how he was harmed by it. Count II of the petition charged
appellant with the offense of assault with a deadly weapon. The juvenile court sustained
that count of the petition, and as explained in the preceding section of this opinion, its
findings are supported by substantial evidence. It is true that the weapon with which
appellant was alleged to have committed the assault was his pit bull. Nevertheless, the
type of weapon used to commit the assault is not an element of the offense under
section 245(a)(1). (People v. Milward (2011) 52 Cal. 4th 580, 587-588.) Appellant could
have been convicted of an assault under this provision without a determination of which
weapon was used. (Id. at p. 588.) He therefore received notice of the offense with which
he was charged, and the juvenile court found as a matter of fact he had committed an
assault with his dog.
Appellant claims in his reply brief that “he was also found to have committed
additional offenses of which he was given no advance notice.” (Italics added.) We are
not told what these offenses are, and appellant’s arguments are directed solely to the
juvenile court’s findings that appellant committed an assault “with a pit bull and/or with a
knife[.]” Having held that appellant was properly convicted of assault with a deadly
weapon with his dog, we fail to discern how reversal of the juvenile court’s “findings”
regarding the knife would have any practical consequence. (See People v. Chavez (1968)
268 Cal. App. 2d 381, 385-386 [no prejudice to defendant where information sufficiently
apprised him of charge of which he was convicted and any variance was immaterial]; cf.
People v. Ramirez (1987) 189 Cal. App. 3d 603, 623-624 [where Court of Appeal
concluded appellants had been convicted of uncharged offenses, convictions under
§ 264.1 were reduced to convictions under § 289, subd. (a)], disapproved on another
ground in People v. Russo (2001) 25 Cal. 4th 1124, 1134.)
11
Appellant contends we must presume he was prejudiced by the petition’s failure to
allege in Count II that he committed an assault with a knife. He argues that “[n]umerous
cases have reversed findings that were based on uncharged allegations.” In the cases he
cites, however, the defendants were ultimately convicted of offenses different from those
charged in the criminal pleadings. (In re Robert G. (1982) 31 Cal. 3d 437, 441, 445
[wardship petition alleging assault under § 245, subd. (a) could not be sustained on basis
that minor had committed unalleged battery under § 242]; People v. Lohbauer (1981) 29
Cal. 3d 364, 368-370 [defendant charged with violation of felony theft under § 459 could
not be convicted of misdemeanor of entering non-commercial dwelling under § 602.5]; In
re Roy C. (1985) 169 Cal. App. 3d 912, 914-915 [petition alleged minor had violated
§§ 211 (robbery) and 242 (battery), but court sustained allegation under § 245,
subd. (a)].) Since this is not “a case in which the defendant was convicted of a crime not
charged in the accusatory pleading” (People v. Thomas (1987) 43 Cal. 3d 818, 830),
“even if the accusatory pleading was defective, [appellant] has not demonstrated he was
misled to his prejudice and reversal is therefore inappropriate in this case.” (Id. at
p. 832.)
B. Appellant Fails to Show He Was Misled by the Allegations of the Petition.
In a related argument, appellant contends he received no notice that he could be
found guilty of assault by means of force. This argument cannot be sustained on the
record before us.
Initially, we observe that in making this argument, appellant contradicts himself.
On the one hand, his opening brief claims that assault by use of a deadly weapon and
assault by means of force are distinct offenses, but he received no notice he might be
tried and convicted of the latter. On the other hand, his reply brief states that the
petition’s inclusion of an allegation under section 1192.7, subdivision (c)(23)
“necessarily excluded assault by means of force.” (Italics added.) If this allegation in the
petition “necessarily excluded” the offense of which appellant now claims he had no
notice, it is difficult to understand how his counsel could possibly have been misled as to
the nature of the crime with which he was charged.
12
Moreover, under the version of section 245(a)(1) in effect at the time of the crime,
trial, and disposition, there was a “fundamental identity of the concepts of assault with a
deadly weapon and assault by means of force likely to produce great bodily injury.”6
(Aguilar, supra, 16 Cal.4th at p. 1036; see In re Mosley (1970) 1 Cal. 3d 913, 919, fn. 5
[“assault by means of force likely to produce great bodily injury is not an offense
separate from . . . assault with a deadly weapon”].) Even if we ignore appellant’s
inherently contradictory reading of the petition, the identity of the two offenses would
make any variance between the petition and the trial court’s findings immaterial. (People
v. Chavez, supra, 268 Cal.App.2d at p. 386.)
For these reasons, we reject appellant’s contention.
DISPOSITION
The judgment is affirmed.
Jones, P.J.
We concur:
Needham, J.
Bruiniers, J.
6
Appellant claims the recent amendment of section 245 demonstrates that Aguilar and In
re Mosley were incorrect in holding that assault with a deadly weapon and assault by
means of force likely to produce great bodily injury were one and the same offense. The
interpretation of statutes is an exercise of judicial power the Constitution assigns to the
courts, not the Legislature, and the latter body’s amendment of a statute does not operate
to invalidate the California Supreme Court’s interpretation of the earlier version of the
statute. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914, 922.)
In addition, amendments to penal statutes are not retroactive unless expressly so declared
(§ 3), and we could not predicate a finding of error on the juvenile court’s adherence to
the then-binding interpretation of the California Supreme Court.
13