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Name: In re Fernando C.
Case #: A139743
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 06/26/2014

Student charged with fighting on school grounds (Pen. Code, § 415.5, subd. (a)(1)) could not be declared a ward based on the offense of fighting in a public place (Pen. Code, § 415, subd. (1)) because it is not a lesser included offense. After minor Fernando engaged in a fistfight at school with another student, the People filed a Welfare and Institutions Code section 602 petition alleging that he had fought on school grounds in violation of section 415.5, subdivision (a)(1). Finding that this offense did not apply to a student enrolled at the school (Pen. Code, § 415.5, subd. (f)), the juvenile court concluded that fighting in a public place was a lesser included offense and sustained the petition on that basis. On appeal, the minor contended that the judgment must be reversed because section 415 is not a lesser included offense of section 415.5, subdivision (a)(1). Held: Reversed. A juvenile court cannot declare a minor a ward based on an offense that is neither charged in the accusatory pleading nor necessarily included in the crime alleged. Although section 415 and 415.5 contain parallel provisions, a fight between students on school grounds is not a fight within a public place under section 415, subdivision (1). The Legislature intended that student fights on school grounds be the subject of discipline by school authorities, not prosecution under the juvenile courts, given that registered students are exempt. The appellate court also agreed with Fernando’s argument, based on In re Williamson (1954) 43 Cal.2d 651, that section 415.5 is a special statute that precludes prosecution under section 415, at least with respect to fighting on school grounds. Even if section 415 subdivision (1) did apply to student fights on school grounds, prosecution under this section would be barred because the Legislature intended that conduct to be prosecuted exclusively under 415.5, subdivision (a)(1).