People v. Wright

Opinion

WOODS (Fred), J.

The single question¹ we consider is this: when a defendant requests a misdemeanor assault instruction, defining a lesser related offense (People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]), and the prosecutor, over the defendant’s objection, requests a felony assault instruction, also defining a related offense, may the trial court properly give both instructions? Our answer is yes.

Procedural & Factual Background

Appellant was charged with committing a robbery (Pen. Code, § 211)²by using a knife (§ 12022, subd. (b)) and with having suffered nine felony convictions.

A jury acquitted him of robbery but convicted him of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The court found four of the alleged felony priors to be true, denied probation, and sentenced appellant to state prison for three years, the midterm.

There being no insufficiency-of-evidence claim, we briefly summarize the evidence.

On Saturday night January 3, 1987, 21-year-old Allen T. (victim) went to a topless-bottomless Gardena bar, had a few beers, and then walked to the motel across the street in order to find a prostitute. He found one, said yes he wanted “a date,” assured her he had money, and followed her to room 18 of the motel.

Once inside, the prostitute undressed and lay on the bed. The victim was still standing fully clothed when appellant suddenly entered the room, threw the victim on the bed, pinned him down, and repeatedly beat him on the face. The victim told appellant he had money in his right pocket but appellant continued the beating. After a while appellant took the victim’s money, $80 plus change. When the victim made an effort to get away appellant pulled out a knife, brought it near the victim’s neck and said he would stab and kill the victim. The victim stopped trying to get away. All during this time the prostitute just stood and watched.

Appellant then pushed the victim out of the room.

The victim, who was bleeding and had difficulty seeing, walked to his truck, sat in it for about 45 minutes in order to recover, and then drove the short distance to his home where he lived with his parents and younger sister.

Too embarrassed to tell them the truth, the victim told his family he had been robbed by two men outside the bar.

The next morning, on Sunday January 4, 1987, the victim and a friend returned to the motel and saw appellant and the prostitute outside. The victim called the police but by the time they arrived the victim’s father was also there. The victim told the police the same story he had told his family and identified appellant as “one” of the robbers. The police arrested appellant, saw the described knife in room 18, and recovered it.

The only variation from this scenario was offered by the sole defense witness, Simon Moraga, a friend of appellant who also lived at the motel with his girlfriend prostitute. He testified that on the evening in question the victim was so intoxicated that Mr. Moraga’s girlfriend refused to have sex with him. Mr. Moraga said he saw the victim then walk towards room 18 while he, Mr. Moraga, went to the front of the motel where he was soon joined by appellant. After a few minutes they heard screams from room 18 and appellant ran to the room. About five minutes later appellant emerged with the bruised victim. Mr. Moraga testified that the motel manager and appellant told the victim to leave because he was causing a disturbance.

Based upon this evidence appellant requested³ misdemeanor assault (§ 240) instructions. The prosecutor responded by requesting felony assault (§ 245, subd. (a)(1)) instructions. Over appellant’s objection⁴ to the felony assault instructions the court gave both sets of instructions. The jury convicted appellant of felony assault (§ 245, subd. (a)(1)).

Discussion

Although People v. Geiger, supra, 35 Cal.3d 510, provides the touchstone for our analysis, before discussing Geiger a brief preface may be useful.

A defendant may be convicted of the offense he is charged with, an attempt to commit that offense, or of an offense necessarily included within the charged offense. (§ 1159).⁵ “The test ... of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” (People v. Greer (1947) 30 Cal.2d 589, 596 [184 P.2d 512].) When, however, the language of the charged offense exceeds the statutory language the measure of a necessarily included offense is determined by the broader language of the accusatory pleading. (People v. Marshall (1957) 48 Cal.2d 394 [309 P.2d 456].) Conversely, enhancement allegations affecting punishment, when added to rather than incorporated within a charged offense, do not expand the measure of an included offense. (People v. Wolcott (1983) 34 Cal.3d 92 [192 Cal.Rptr. 748, 665 P.2d 520].) When the evidence shows that an uncharged, unincluded but related offense has been committed, the defendant may not be convicted of that offense without his consent (People v. Lohbauer (1981) 29 Cal.3d 364 [173 Cal.Rptr. 453, 627 P.2d 183]), express or implied. (People v. Toro, supra, 47 Cal.3d 966.)

In People v. Geiger the defendant was charged with burglary. The evidence showed he broke a restaurant window around 3 a.m. perhaps out of anger and frustration rather than with an intent to steal. The defendant requested vandalism (§ 594) instructions but the court refused them presumably because vandalism was not an included offense of burglary.

In reversing the burglary conviction the court held that in described circumstances, present in Geiger, if the defendant requests lesser related instructions the court has a duty to give them.

As the court explained, “[t]he principal impediment” to its holding that a defendant may be convicted of an uncharged, unincluded offense “is the defendant’s right to notice adequate to permit him to prepare his defense.” (People v. Geiger, supra, 35 Cal.3d at p. 526.) That due process right io notice is satisfied, however, by the defendant’s consent manifested by his request for uncharged, unincluded offense instructions. “Where, however, the defendant himself requests the instruction on a related offense there is no constitutional bar. Obviously, such a defendant cannot claim lack of notice.” {Ibid.)

Requiring related offense instructions, upon defendant request, benefits both sides. It allows “every material issue presented by the evidence” (35 Cal.3d. at p. 526) to be determined; it bolsters the reasonable doubt standard by providing the trier of fact with a “third option” (“other than acquittal or conviction of a greater offense than that which the jury believes to have been committed” [ibid.])-, it permits “conviction of a lesser offense when there [is] a failure of proof as to the charged offense.” {Id., at p. 529.)

Although applications of Geiger are numerous, if not harmonious {People v. Boyd (1985) 167 Cal.App.3d 36 [212 Cal.Rptr. 873] [robbery charged; defendant requested instructions on attempted possession of cocaine, exhibiting a weapon, and assault with a deadly weapon properly refused]; People v. White (1986) 185 Cal.App.3d 822 [231 Cal.Rptr. 569] [murder charged; defendant requested instruction on accessory after the fact improperly refused]; People v. Sava (1987) 190 Cal.App.3d 935 [235 Cal.Rptr. 694] [misdemeanor drunk driving charged; defendant requested instructions on speeding and following-too-closely infractions properly refused]; People v. Simpson (1987) 192 Cal.App.3d 1360 [237 Cal.Rptr. 910] [felony assault charged; defendant-requested battery instruction properly refused. Dis. by White, J.] extensions of Geiger, except for People v. Toro, supra, 47 Cal.3d 966, are nonexistent. Geiger did not “anticipate all of the varied circumstances in which instructions on related offenses may be requested.” {People v. Geiger, supra, p. 532, fn. 12), and did not anticipate, or at least address, a case, such as the instant one, where after the defendant requested one related offense instruction the prosecutor requested another. We have found no case dealing with this extended circumstance of Geiger.

Guided by Geiger we consider whether the trial court, over appellant’s objection, properly instructed on the related offense of felony assault⁶ requested by the prosecutor.

“The principal impediment” is notice. “ ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ ” (People v. Marshall, supra, 48 Cal.2d 394, 402, fn. 6.)

Thus appellant had a right to know he could be convicted of felony assault. He also had a right to know what evidence would be offered in support of that offense.

Appellant received ample notice of evidence supporting a felony assault charge. At the preliminary hearing the victim fully testified that appellant “started hitting me with numerous blows,” “pulled out a knife” while he had his forearm on my throat, said “Don’t move or else I’ll stab you,” and “was beating me more and just more.” On cross-examination he explained his one-day delay in reporting: “Because I was so beat up so bad, I couldn’t do nothing else. I had to go home and take care of my wounds.” He also testified he went to the hospital the day following the beating. Additionally, the information alleged that in committing the charged robbery appellant used a deadly weapon, a knife.

Notice to appellant that he could be convicted of felony assault is another matter. In fact, appellant is deemed to have known that absent his own intervention he could not be convicted of felony assault. He knew he was only charged with robbery, that assault is not an included offense, and that a deadly weapon use allegation did not make an assault an included offense.

But this was not all that appellant and his attorney knew. Geiger instructed them that a defendant could monitor evidentiary fallout, make a related offenses reading, and determine whether or not to request conviction options. This Geiger lesson imposed upon competent counsel a duty to identify all related offenses. Only by doing so could counsel decide which, if any, would offer the most advantageous conviction option.

Thus, before trial and certainly before appellant requested misdemeanor assault instructions he knew or should have known that he could have requested felony assault instructions. He should further have known that had he chosen to do so he could then have been convicted of felony assault.

Appellant, having selected misdemeanor assault as the conviction option most advantageous to him, had no cause for surprise or complaint when the prosecutor selected another evidence supported conviction option, felony assault.

Nor did appellant express surprise. He merely stated “We’ll object to it.” Appellant did not request a recess, move for a brief continuance, ask permission to reopen the defense, request further cross-examination of the victim or any other witness, urge that final argument be deferred, or do anything else reflective of surprise or inadequate preparation. (Cf. People v. Toro, supra, 47 Cal.3d 966.)

At the time of the prosecutor’s request for felony assault instructions and the court’s assent, if not before, appellant was fully on notice that he could be convicted of felony assault. He then had a choice. He could withdraw his request for misdemeanor assault instructions thus eliminating the basis for the felony assault instructions. This alternative would preserve the original two options: either guilty or not guilty of robbery. Appellant could not be convicted of felony assault. Or he could maintain his request for misdemeanor assault instructions with the knowledge that felony assault instructions would also be given. This alternative would provide four options: guilty of robbery or felony assault or misdemeanor assault or not guilty. It was appellant’s choice. With notice that he could be convicted of felony assault appellant chose the four-option alternative. Notwithstanding his objection to the prosecutor’s request for felony assault instructions we therefore regard appellant’s election as consent. “Obviously, such a defendant cannot claim lack of notice.” (People v. Geiger, supra, at p. 526.)

Our conclusion imposes no additional burden on the trial court. We do not hold that the court had a sua sponte duty to give the felony assault instruction. We hold only that in circumstances such as the instant one, it is proper, upon request, to give such an instruction.

Additionally, during jury deliberations, appellant stipulated that the court could respond to a jury question concerning felony assault by force likely to produce great bodily injury by giving CALJIC No. 9.05 (4th ed. 1979), an instruction not previously given to the jury. This instruction explained that assault by force likely to produce great bodily injury could be committed with hands or fists. About two hours later the jury convicted appellant of this very offense. By his stipulation appellant did more than impliedly consent to or acquiesce in (People v. Toro, supra, 47 Cal.3d 966) having the jury consider the charge of assault by force likely to produce great bodily injury, he expressly consented.

For these reasons, we believe the result we reach is harmonious with People v. Geiger and furthers its objectives. What Geiger stated with reference to its lesser related offense applies equally to the instant felony assault: “However, we find no reason in law, justice, or common sense why a jury that is not persuaded of the defendant’s guilt of the charged offense should not have the opportunity to find him guilty of a lesser related offense where, as here, the lesser offense is closely related to that charged, there is evidence of its commission, and defendant’s theory of defense is consistent with such a finding.” {People v. Geiger, supra, 35 Cal.3d at p. 514.)

We therefore hold that the court properly gave the requested felony assault instructions.

Disposition

The judgment is affirmed.

Lillie, P. J., concurred.

1 Appellant also claims the prosecutor committed prejudicial error during his argument by this reference to the victim: “I myself found him to be credible. []f] But you’re going to have to weigh his credibility, his demeanor as he testified on the stand.”

This stray, improper injection of personal opinion could have been easily remedied had appellant objected and requested a jury admonishment. He did neither. His complaint now comes too late. (Evid. Code, § 353; People v. Green (1980) 27 Cal.3d 1, 27-28 [164 Cal.Rptr. 1, 609 P.2d 468].)

2 A11 statutory references, unless otherwise noted, are to the Penal Code.

3 Although the record could be clearer, we are satisfied, and appellant does not claim otherwise, that appellant requested misdemeanor assault instructions. The trial court so indicated on CALJIC No. 9.00 (4th ed. 1987 pocket pt., pp. 149-150), defining assault, and on CALJIC 9.08 (4th ed. 1979) concerning present ability. On CALJIC 17.10 (1984 rev.), which specified two lesser related offenses, the trial court checked both “Requested by People” and “Requested by Defendant.” We understand these notations to mean that the People requested the specified assault with a deadly weapon related offense and the defendant requested the specified simple assault offense. Further, although following an off record instructions discussion the court commented “Well, the Court brought up the issue of simple assault as being a sua sponte instruction under the robbery” this comment is consistent with appellant requesting simple assault instructions. Certainly appellant did not demur when the prosecutor twice referred to appellant as the one requesting simple assault instructions.

4 After initially asserting a general objection (cf. Evid. Code, § 353) to felony assault instructions requested by the People, appellant appears to have wavered in his opposition.

“The Court: . . . and the People are requesting it, and I think that People have a right to it. So I would—

“Mr. Legg (Appellant’s trial counsel): We’ll object to it.

“The Court: Okay. So I will give that as well. [H] So 17.10 will read, ‘The offenses of simple assault and assault with a deadly weapon are lesser offenses to the offense charged in count one.’ [][] And then—

“Mr. Legg: Your Honor, I might just point out that that case, I believe, is about a 1945 case, and it’s still not included in the lesser included offenses.

“The Court: Well, not in my journal, [fl] I think—all of the elements definitely fall in this case.

“Mr. Legg. All right.

“The Court: There’s no doubt about that.

“Mr. Legg: Okay.

“The Court: And I think that is the general law anyway. “Mr. Legg: All right.”

Because the trial court understood appellant as remaining steadfast in his objection (remarking “Maybe I’ll give you a built-in appeal”) and the trial preceded People v. Toro (1989) 47 Cal.3d 966 [254 CaI.Rptr. 811, 766 P.2d 577], with its arguably more stringent objection requirements, we deem appellant’s objection adequate.

5 Penal Code section 1159 provides: “The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.

6 A lesser offense than robbery. Both have two-year minimums but felony assault has a four-year maximum state prison term versus a five-year maximum for robbery.