In Re Roy C.

The minor, appellant Roy C., appeals from the order continuing him as a ward of the juvenile court (Welf. & Inst. Code, § 602) following a finding that he committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). We determine that the juvenile court erred in allowing the People to amend the petition after the close of the People’s case-in-chief to charge a crime which was not a necessarily included offense to the offenses charged in the petition. Such amendment made without adequate notice to appellant violates the holding of our Supreme Court in In re Robert G. (1982) 31 Cal.3d 437 [ 182 Cal.Rptr. 644 , 644 P.2d 837 ], and we must reverse. (Auto Equity Sales v. *914 Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].)

Factual and Procedural Background

Appellant was charged in a petition filed July 2, 1984, with having committed robbery and battery (Pen. Code, §§ 211, 242). 1 At the adjudication hearing concluded on July 18, 1984, evidence was presented that on May 29, 1984, 17-year-old Joel G. was waiting for a bus when Arnold H. requested that he accompany him behind a gas station to “hold his…

I concur in the opinion and decision in the light of In re Robert G. (1982) 31 Cal.3d 437 [ 182 Cal.Rptr. 644 , 644 P.2d 837 ], and the doctrine of stare decisis.

LUI, Acting P.J.

The minor, appellant Roy C., appeals from the order continuing him as a ward of the juvenile court (Welf. & Inst. Code, § 602) following a finding that he committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). We determine that the juvenile court erred in allowing the People to amend the petition after the close of the People's case-in-chief to charge a crime which was not a necessarily included offense to the offenses charged in the petition. Such amendment made without adequate notice to appellant violates the holding of our Supreme Court in In re Robert G. (1982) 31 Cal.3d 437 [ 182 Cal. Rptr. 644 , 644 P.2d 837 ], and we must reverse. ( Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal. Rptr. 321 , 369 P.2d 937 ].)

Appellant was charged in a petition filed July 2, 1984, with having committed robbery and battery (Pen. Code, §§ 211, 242). [1] At the adjudication hearing concluded on July 18, 1984, evidence was presented that on May 29, 1984, 17-year-old Joel G. was waiting for a bus when Arnold H. requested that he accompany him behind a gas station to "hold his zigzags for…

I respectfully dissent.

*919 “If rogues did but know all the pains that the law has taken for their benefit, honest men would have nothing left they could call their own.”

Appellant relies on In re Robert G. (1982) 31 Cal.3d 437 [ 182 Cal.Rptr. 644 , 644 P.2d 837 ], in contending the order of wardship must be reversed. He argues that inasmuch as an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)) is not an offense with which appellant was originally charged, and is not an offense necessarily included within the charged crimes of battery (Pen. Code, § 242) or robbery (Pen. Code, § 211), he did not receive adequate notice of the felonious assault charge sufficient to comport with due process.

In Robert G. a minor was adjudicated a ward of the juvenile court (Welf. & Inst. Code, § 602) based on a finding that he had committed a battery in violation of Penal Code section 242. The petition, however, alleged that the minor had committed an assault with a deadly weapon, a rock, in violation of Penal Code section 245, subdivision (a). The juvenile court agreed that the small rock Robert G. had thrown could not be a deadly weapon and…