In re Johnny V

In In re Johnny V. (1978) 85 Cal. App. 3d 120, a petition filed in juvenile court alleged that the minor committed murder. (Id. at p. 123.) At the adjudication hearing, the minor moved for an acquittal after the court indicated there was insufficient evidence of aiding and abetting the person who stabbed the victim. The minor also argued that an assault by means of force likely to produce great bodily injury was not a lesser and necessarily included offense. (Id. at pp. 124, 137.) The juvenile court sustained the petition, finding that instead of murder, the minor committed assault by means of force likely to produce great bodily injury. (Id. at p. 124.) At the dispositional hearing, the minor again argued that the assault offense was not a lesser and necessarily included offense and asserted lack of notice of the charge. (Id. at p. 137.) In re Johnny V., supra, 85 Cal. App. 3d 120 reversed, concluding that the juvenile court had no jurisdiction to find that the minor committed the assault offense because such offense is not a lesser and necessarily included offense of murder and that the minor had been denied his constitutional right to notice of the offense he was alleged to have committed. (Id. at pp. 134-138.) In re Johnny V., supra, 85 Cal. App. 3d 120 also concluded that section 654 barred the subsequent prosecution of the minor for any violation of law related to the event, including the assault offense, and even murder because the juvenile court's finding constituted an implied acquittal. (Id. pp. 138-142.) In In re Johnny V. (1978) the minors were charged with murder. At the close of the prosecution's case at the adjudication hearing, the minors' motions for judgment of acquittal under section 1118 were denied. Thereafter, the court sustained the petitions, finding each minor had committed the offense of an assault by means of force likely to produce great bodily injury. (In re Johnny V., supra, 85 Cal. App. 3d at p. 124.) After determining the court lacked jurisdiction to make such a finding because that offense was not a necessarily included offense of the charged murder, the court determined the minors could not be tried on an amended or new petition. "We conclude that Penal Code section 654 is applicable to the case at bench to preclude any subsequent prosecution of the two minors, Johnny V. and Jimmy A., for any offense growing out of the June 11, 1977, incident. The juvenile court judge's invalid finding that the two minors had committed the offense of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a), as a lesser and necessarily included offense within the crime of murder, also constituted a finding that the minors had not committed the offense of murder--in essence an acquittal of the murder charge. This acquittal of murder makes applicable the principle that 'failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence. '" (In re Johnny V., supra, 85 Cal. App. 3d at p. 142.)