IN RE: VERNON LASELL M. (1982)

A petition was filed alleging that the minor, Vernon Lasell M., came within the provisions of Welfare and Institutions Code section 602 in that he “did wilfully and unlawfully drive and take a certain vehicle, ... the personal property of Lester Juarez, without the consent of and with intent to deprive the said owner of title to and possession of said vehicle” in violation of Vehicle Code section 10851 (count I). It was also alleged that he violated Penal Code section 485 (theft, count II) and Penal Code section 496 (receiving stolen property, count III). He was found by the court as to count I to have committed the “lesser included offense” of “joyriding” in violation of Penal Code section 499b (taking vehicle for temporary use) and was declared a ward of the court under section 602. Counts II and III were dismissed. He was ordered suitably placed for a period not to exceed 11 months.

At about 1 p. m. on January 15, 1981, Officer Fisher observed two boys on motorcycles (a green Kawasaki and Honda moped) waiting at an intersection for the light to change. The Kawasaki appeared to have stalled and its rider pushed it across the intersection while his companion rode slowly beside him. Neither motorcycle had a license plate and both boys appeared too young to have driver's licenses.

Officer Fisher stopped the boys to investigate and neither boy was able to produce a license. The officer then asked who owned the Kawasaki. Smith, who had been riding it, pointed to appellant, and said, “It's his.” Smith also produced the registration for the moped which belonged to his relative. When Officer Fisher asked appellant for the registration for the Kawasaki, he replied that he had “found it in the field.” The officer ran the serial number and found that the Kawasaki had been stolen. He also noticed that there was no key in the ignition switch and that the ignition had been pried with a screwdriver or something of that nature.

Each boy was placed under arrest and advised of his rights. Appellant waived his rights and told the officer that he and Smith, while walking home from school, had found the motorcycle with the ignition already pried up in a vacant field near the high school. He used a penny to start the motorcycle and both he and Smith had taken turns riding the bike in the two hours before they were stopped.

Citing People v. Lohbauer, 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183, appellant argues that the court erred in finding that he had violated Penal Code section 499b because he was not charged with that offense and a violation of section 499b is not a lesser offense included within section 10851 of the Vehicle Code.

In People v. Thomas, 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97, the California Supreme Court held that, as a matter of law, joyriding under Penal Code section 499b was not a lesser included offense within Vehicle Code section 10851, either under the accusatory papers in that case¹ or under the statutory definition of the latter crime. However, this does not determine the problem now before us.

The record shows that appellant, represented by competent counsel, stood by and acquiesced in a procedure whereby he was forever discharged of the more serious crime and found guilty of a less serious offense. Had appellant felt that he was in any way prejudiced by the action of the court, he could have presented the error now relied on by a simple objection. (Cf. In re Stanley B., 17 Cal.App.3d 530, 535, 95 Cal.Rptr. 116; People v. Powell, 236 Cal.App.2d 884, 888, 46 Cal.Rptr. 417.)

The court more properly could have ordered an amendment to the petition charging a violation of section 499b, and then sustained such amendment. Rather than to so proceed, the shortcut obviously taken here had the same result.

We note that in saying the court could have amended the petition, that due process must be safeguarded. As stated in In re Arthur N., 16 Cal.3d 226, 233-234, 127 Cal.Rptr. 641, 545 P.2d 1345:

“However, due process requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense. (Citation.) But notice is adequate and due process is served when the trier of fact is permitted to find an accused guilty of an offense necessarily included in that with which he is charged (citation) or of a lesser offense which, although not necessarily included in the statutory definition of the offense, is expressly pleaded in the charging allegations. (Citation.) Since the original petition must state the facts to support the conclusion that the minor is within section 602 (s 656), and is otherwise demurrable, adequate notice to comport with the requirements of due process is assured. The adequacy of notice in a supplemental petition is measured by the same standards. (Citation.)

“The Juvenile Court Law permits a judge or referee to sustain a petition seeking to have a minor declared a person coming within section 602 on the basis of findings that the minor committed an offense included within that charged in the petition. Section 678 states that: ‘The provisions of Chapter 8 (commencing with Section 469) of Title 6 of Part 2 of the Code of Civil Procedure relating to variance and amendment of pleadings in civil actions shall apply to petitions and proceedings under this chapter, to the same extent and with the same effect as if proceedings under this chapter were civil actions.’ In thus permitting amendments to conform to proof (Code Civ.Proc. ss 470, 471) when the minor has not been misled in preparing his defense and will not be prejudiced thereby (Code Civ.Proc., s 469), the Legislature has demonstrated its intention to permit the court to sustain a petition if the evidence, while insufficient to establish that the minor committed the charged offense, is nonetheless adequate to prove a lesser, included offense. (Cf. Pen.Code, s 1181, subd. 6.) It follows that a petition brought under section 777 may also be sustained upon a finding that a lesser offense, or some but not all of any charged acts of misconduct, were committed by the minor.”

Here, it appears from the record that defense counsel, by failing to object, was satisfied that appellant was found guilty of the lesser offense, and it is apparent that appellant was not misled in preparing his defense and was not prejudiced by the decision of the court. Rather than formally amending the petition the court chose to merely classify joyriding as a lesser included offense.

In People v. Lohbauer, 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183, defendant, in a criminal trial, was charged with burglary with intent to commit theft. The court found no such intent established but convicted him of unauthorized entry in violation of Penal Code section 602.5. We note two convincing distinctions: (1) The instant case is in juvenile court with pleadings governed by the Code of Civil Procedure, and (2) the trial court in Lohbauer specifically observed, “ ‘I conclude that because of the way this case was pleaded that the defense was never put on notice that the People were going for anything but intent to commit theft.’ ” (Id. at p. 370, 173 Cal.Rptr. 453, 627 P.2d 183.) Lohbauer does not cite In re Arthur N., supra, 16 Cal.3d 226, 127 Cal.Rptr. 641, 545 P.2d 1345, and does not mention any part thereof as being disapproved (along with the disapproved cases). We do not believe that Lohbauer intended to modify the clear holding of In re Arthur N.

The order is affirmed.

FOOTNOTES

1.  There are no significant differences between the language of the Thomas information and the language of the present petition.

HASTINGS, Associate Justice.

STEPHENS, Acting P. J., and ASHBY, J., concur.