People v. David S.

Opinion

STEPHENS, J.

Appellant, David S., a minor who falls within the provisions of section 602 of the Welfare and Institutions Code, contends that assault with a deadly weapon (Pen. Code, § 245, subd. (a)) is not a necessarily lesser included offense within a charge of attempted murder (Pen. Code, §§ 664/187). It is unnecessary to set forth the facts except to note that appellant and several other minors were involved in a fight. In the course of this altercation, one youth was killed. The facts established that appellant did not cause the death of Raymond Chavira and that appellant swung a knife at another youth.

The petition consisted of two counts:

“Count I: On or about October 31, 1981, in Ventura County, California, he did willfully, unlawfully, and with malice aforethought murder Raymond Chavira, a human being, thereby violating Section 187 of the Penal Code, a felony.

“Count II: On or about October 31, 1981, in Ventura County, California, he did willfully and unlawfully attempt to commit the crime of murder in violation of Section 187 of the Penal Code of the State of California, thereby violating Section 664/187 of the Penal Code, a felony.”

[158]

In addition, the petition alleged language for the purpose of enhancing sentence as follows:

“Use of a Deadly Weapon

“It is further alleged that, in the commission and attempted commission of Count I and Count II, the said defendant, David S., personally used a deadly and dangerous weapon, to wit, a knife, said use not being an element of the above offense, within the meaning of Penal Code Section 12022.5.

“Great Bodily Injury

“It is further alleged that, in the commission and attempted commission of Count II, the said defendant, David S., with the intent to inflict such injury, inflicted great bodily injury upon Daniel Bustos, not an accomplice to the offense, within the meaning of Penal Code Section 12022.7 and/or 1203.075.”

The lower court, having heard and considered the evidence and the points and authorities of counsel, made the findings set forth on page 104 of the clerk’s transcript, which were as follows: