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Name: In re A.L.
Case #: A141067
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 01/21/2015
Summary

Juvenile court did not abuse its discretion by permitting late amendment of delinquency petition to allege an arming enhancement that was included within the charged enhancement under the accusatory pleading test. A.L., a minor, participated in a robbery in which his companion used a firearm. The prosecutor filed a delinquency petition alleging that A.L. committed a second degree robbery and that he personally used a handgun, a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)). During closing arguments, the prosecutor requested to amend the charged enhancement to Penal Code section 12022(a), which allows vicarious liability when another principal is armed with a firearm. The court allowed the amendment, sustained the allegation, and found the amended enhancement true. On appeal, A.L. argued that the juvenile court violated his due process rights by allowing the prosecution to amend the delinquency petition. Held: Affirmed. Absent a minor’s consent, any amendment of the charging allegations in a delinquency petition during a contested hearing is only appropriate if the offense (or enhancement) is a lesser included offense of the one charged in the petition. The appellate court agreed with A.L. that under the “elements” test, the section 12022(a) enhancement is not a lesser included offense of the section 12022(b) enhancement. However, under the “accusatory pleading” test, the section 12022(a) enhancement is a lesser included offense. “[I]f A.L. had committed the section 12022(b) enhancement as specified in the petition (personally using a handgun in the commission of a felony) he would also necessarily have committed the section 12022(a) enhancement (being armed with a firearm in the commission of a felony) because he would have been a principal that was armed with a firearm in the commission of a felony.”