People v. Carlo S.

Opinion

ELKINGTON, J.

Carlo S., a minor, was accused by a Welfare and Institutions Code section 602 petition of committing an act described by Penal Code section 245 as “assault.'. .by any means of force likely to produce great bodily injury,” a felony. Following a contested jurisdictional hearing the minor was found by the juvenile court to have committed the act proscribed by Penal Code section 148 and generally described as obstructing a police officer in the discharge of his duties. The petition had not been amended and the minor remained silent, neither consenting nor objecting to the juvenile court’s determination of his offense.

The appeal before us was taken by the minor from an order granting probation which was thereafter entered against him.

The Penal Code section 148 offense is concededly, and obviously, not a lesser offense necessarily included in a charge of assault by means of force likely to produce great bodily injury.

The question presented is whether the juvenile court may, without appropriate amendment to the charging petition or previous notice to the minor, find him “guilty” of an

uncharged,

and

unincluded,

lesser offense, in cases where the minor remains silent and “made no objections to the procedure. . . .”

(In re Stanley B.,

17 Cal.App.3d 530, 536 [ 95 Cal.Rptr. 116].)

[380]

In re Gault,

387 U.S. 1, 33 [18 L.Ed.2d 527, 549, 87 S.Ct. 1428], holds that due process requires that “the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.” And, as is well known,

In re Gault