Is assault by means of force not necessarily included within the crime of murder?

But the People advance the argument that, even though the offense of assault by means of force likely to produce great bodily injury is not a lesser and necessarily included offense within the crime of murder, the trial court in the case at bench could still properly find that the minors committed the assault offense even though it is not a necessarily included offense within the charge of murder. But that this view is not the law is set forth clearly in In re Hess (1955) 45 Cal.2d 171, 174-175, 288 P.2d 5, 7, in which the court held that "(a) person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial [85 Cal.App.3d 136] to show that he had committed that offense." (See also People v. Lewis, supra, 186 Cal.App.2d 585, 599-600, 9 Cal.Rptr. 263.)