IN RE: James J. L.

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Court of Appeal, Second District, Division 5, California.

IN RE: James J. L., a person coming under the Juvenile Court Law. JAMES J. L., Appellant, v. Kenneth F. FARE, as Acting Chief Probation Officer, etc., Respondent.

Cr. 30572.

Decided: April 06, 1978

Lawrence I. Erdos, Los Angeles, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Beverly K. Falk, Deputy Attys. Gen., for respondent.

This appeal follows a dispositional order in a juvenile court matter.

James J. L. denied a petition alleging that he was a person who came within Welfare and Institutions Code section 602. The petition stated that James J. L. had committed acts which, had they been done by an adult, would have constituted (1) robbery (Pen.Code, s 211a) and, (2) murder (Pen.Code, s 187).

The facts established that James J. L. drove a truck into a gas station and had the attendant fill the tank with $9 worth of gas. James J. L. pointed a pistol at the attendant, stating: “You just gave me gas, buddy” and drove away. In the course of his leaving the station, the truck struck a car, causing the truck's hood to spring up. James drove the truck with the hood obstructing the view by sticking his head out the car door window. He drove in a reckless manner and attained speeds stated to be up to 90 miles per hour. Ultimately, the truck crashed into a Pinto car, killing its driver and injuring James.

There was considerable evidence about James J. L. having taken valium pills and being under its influence which made applicable a theory of diminished capacity. The trial judge found diminished capacity and that James J. L. could not and did not have the intent necessary for either robbery or murder.1

The court thereupon sustained the petition upon the stated conclusion that James J. L. had committed (1) the drawing, exhibiting, or using of a firearm or deadly weapon in a rude, angry or threatening manner (Pen.Code, s 417); and (2) vehicular manslaughter (Pen.Code, s 192, subd. 3(a)), as lesser included offenses within robbery and murder, respectively.

James J. L. contends that neither the violation of section 417 or section 192, subdivisions 3, (a), can be classified as lesser included offenses and that the sustaining of the petition must therefore be reversed.

Under the authority of the cases cited by appellant we are required to reverse. Looking to the charging allegations of the petition and to the statutory definitions of the violations so alleged, we find neither violation sustained by the trial court was a “necessarily lesser included” offense (In re Arthur N. (1976) 16 Cal.3d 226, 233, 127 Cal.Rptr. 641, 545 P.2d 1345; People v. Anderson (1975) 15 Cal.3d 806, 809-810, 126 Cal.Rptr. 235, 543 P.2d 603, and cases cited therein) nor expressly pleaded in the charging allegations. (People v. Marshall (1957) 48 Cal.2d 394, 403-405, 309 P.2d 456). Appellant did not receive adequate notice of the violations that were ultimately sustained, and as a result, appellant was not afforded due process. (In re Gault (1967) 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527.)

However, our reversal should not be interpreted as exonerating appellant. This opinion, of its own force, does not preclude the filing of a new petition against appellant.

The order is reversed.

FOOTNOTES

1.  The murder allegation was premised upon the theory of felony-murder.

STEPHENS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.