In Re David S.

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:

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

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:

Appellant’s contention on appeal is that the trial court lacked jurisdiction to convict him of assault with a deadly weapon, a violation of section 245 subdivision (a) of the Penal Code. He argues that since the offense was not alleged in the petition and since…