People v. Pack

Filed 2/7/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A161564
v.
RYAN JOSEPH PACK, (Contra Costa County
Super. Ct. No. 52005692)
Defendant and Appellant.
Defendant Ryan Joseph Pack was convicted of several offenses,
including one with which he was not charged: assault with force likely to
cause great bodily injury. Over Pack’s objection, the trial court instructed the
jury that assault with force likely to cause great bodily injury is a lesser
included offense of the charged offense of assault with a deadly weapon, and
on appeal the Attorney General concedes that this instruction was erroneous.
Pack thus contends, and the Attorney General initially agreed, that his
conviction violates his right to due process under the Sixth and Fourteenth
Amendments to the United States Constitution, although the Attorney
General argued that, rather than reverse Pack’s conviction on this count, we
should modify the judgment to reflect a conviction for simple assault. After
briefing was complete, our Supreme Court held that, for the purpose of the
prohibition on multiple convictions for one offense, assault with force likely to
produce great bodily injury and assault with a deadly weapon are alternative
means of committing the same offense. (People v. Aguayo (2022) 13 Cal.5th
1
974 (Aguayo).) We requested supplemental briefing from the parties about
whether we should apply the “material variance” analysis that some courts
have used in that context, and if so, whether there is a violation of due
process under that test. We conclude that Pack’s right to due process was
violated, and that the proper remedy is to reverse the conviction of assault
with force likely to cause great bodily injury.
BACKGROUND
In May 2020, Pack was charged by amended information with four
counts and an enhancement for count two. The trial court later dismissed
count one on the prosecution’s motion. At issue here is count three for
assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) for an incident
that occurred in February 2020. For that count, the amended information
alleged that Pack committed an assault upon Kaury Jerard Markham with a
“stabbing weapon.” For that same incident, Pack was also charged with one
count of driving or taking a vehicle owned by Markham without his consent.
(Veh. Code, § 10851, subd. (a).)
The preliminary hearing testimony showed that at the time of the
alleged assault on Markham, Pack had on his person “silver edged metal
knuckles,” and that Markham’s cousin, Stanley Walker, observed Pack
holding what Walker thought was a knife when Pack tried to hit Markham.
At trial, Markham testified that he was on his apartment patio at night
when he heard the engine of his Mazda idling, and he saw someone drive it
away. Markham later identified Pack as the person driving his Mazda.
Markham described how he and Walker got into his other car and followed
the Mazda. Markham testified that Pack eventually stopped the car on a
1Subsequent statutory references are to the Penal Code unless
otherwise indicated.
2
street, crawled out of the driver side window, and took off running.
Markham and Walker ran after him. According to Markham, when he
caught up to Pack, he grabbed Pack’s shoulders but ended up slipping and
falling. As Markham fell to the ground, Pack swung at him with his fist, and
Markham heard Walker yell, “Watch out, he got a knife.” Pack ran away
again. Markham went back to his car to get a bat, and then ran after Pack.
When he caught up to Pack, police officers were arriving at the scene.
Walker testified that after Markham grabbed Pack, he saw Pack swing
at Markham. Walker said he “couldn’t tell what [Pack] had, so I just told
[Markham] to watch out, . . . I just said a knife because I don’t—could have
been anything, that’s the worst thing I’m thinking about, so it’s the first thing
I said.” He clarified that he could see an object in Pack’s hand, and he
assumed it was a knife because of “the way it was swung.”
One of the responding officers testified that he searched Pack and
found in his coat pocket a silver metal object that had “substantial weight.”
Another responding officer testified that the object resembled metal knuckles
but was flatter and sharp, and it had no finger holes.
After the defense rested, the court instructed the jury on the elements
of the crimes charged and their lesser included offenses. As relevant here,
the court instructed the jury that assault with force likely to produce great
bodily injury (hereafter, assault with force likely) (§ 245, subd. (a)(4)) was a
lesser included offense of count three for assault with a deadly weapon.
Outside the presence of the jury, defense counsel objected to the inclusion of
assault with force likely as a lesser included offense.
The jury found Pack guilty of counts two and four and found true count
two’s enhancement. Regarding count three, the jury found Pack not guilty of
assault with a deadly weapon but guilty of assault with force likely.
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Pack timely appealed after sentencing.
DISCUSSION
Pack contends that his right to due process was violated when the trial
court instructed the jury it could find him guilty of the offense of assault with
force likely as a lesser included offense of assault with a deadly weapon. We
agree with the parties that, under both the “elements” test and the
“accusatory pleading” test, assault with force likely is not a necessarily
included offense. While in most cases the due process inquiry would end
there, some courts have applied a different test where the offenses at issue
are different theories of the same offense, concluding that a conviction for one
species of an offense under an information charging another is not fatally
flawed for lack of notice where the “variance” between the offense alleged and
the offense proved was “immaterial.” (People v. Collins (1960) 54 Cal.2d 57,
60 (Collins).) The Collins test does not expand the definition of necessarily
included offenses; instead, it “describe[s] circumstances under which a
defendant may not complain of conviction of a lesser offense which is not an
included offense . . . .” (People v. West (1980) 107 Cal.App.3d 987, 993.) In
People v. Chavez (1968) 268 Cal.App.2d 381, the Second District applied the
Collins test to determine whether reversal was required where the defendant
was charged with assault with a deadly weapon but convicted of assault with
force likely under former section 245. (Chavez, at pp. 385–386.)
After briefing was complete in this case, our Supreme Court decided
Aguayo, supra, 13 Cal.5th 974, which found that the Legislature intended for
assault with a deadly weapon and assault with force likely to constitute the
same offense under the current version of section 245, at least for the purpose
of section 954, which prohibits multiple convictions for one offense. (Aguayo,
at pp. 982–985, 993, fn. 7.) We requested supplemental briefing on the
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significance of Aguayo, Collins, and Chavez to Pack’s due process claim. The
Attorney General submitted a supplemental brief contending that under
Collins, the trial court’s instructional error was not prejudicial to Pack
because he was fully informed before trial of the facts the prosecutor intended
to rely on to prove assault with a deadly weapon, and those same facts
supported a conviction for assault with force likely. Pack disagrees,
contending that Collins does not apply, and that even if it did, the trial
court’s instructional error constitutes a prejudicial violation of his due
process rights. Both parties, however, state that Aguayo has no bearing on
Pack’s due process claim.
I. Pack Did Not Receive Notice That He Could Be Convicted of
Assault with Force Likely as an Offense Necessarily Included in
the Charged Offense of Assault with a Deadly Weapon
“ ‘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. West (1970) 3 Cal.3d 595, 612.) The required notice is
provided as to any charged offense and any offense that is necessarily
included in the charged offense. (People v. Reed (2006) 38 Cal.4th 1224,
1227.) To determine whether an offense is a necessarily included offense,
courts apply the “elements” test or the “accusatory pleading” test. (People v.
Lopez (1998) 19 Cal.4th 282, 288.) We first consider the elements test.
A. The Elements Test
The elements test is satisfied if the statutory elements of the greater
offense include all the elements of the lesser, so that the greater cannot be
committed without committing the lesser. (People v. Cook (2001)
91 Cal.App.4th 910, 918.) Here, the trial court relied on In re Jonathan R.
(2016) 3 Cal.App.5th 963, 972 in finding that assault by force likely to
5
produce great bodily injury is a necessarily included offense of assault with a
deadly weapon under the elements test. In coming to this conclusion, the
Jonathan R. court focused on our Supreme Court’s holding in People v.
Aguilar (1997) 16 Cal.4th 1023 that an instrument, other than an inherently
deadly weapon, becomes a deadly weapon for purposes of the assault statute
only if it is used in a manner likely to produce great bodily injury, and that
assault with a deadly weapon using such an instrument necessarily
incorporates assault by means of force likely to produce great bodily injury.
(In re Jonathan R., supra, at p. 973.)
However, the parties agree, as do we, that assault with force likely is
not a necessarily included offense of assault with a deadly weapon under the
elements test. In In re L.J. (2021) 72 Cal.App.5th 37, this court declined to
follow Jonathan R. on this issue because Jonathan R. ignored Aguilar’s
recognition that “[t]here remain assaults involving weapons that are deadly
per se . . . in which the prosecutor may argue for, and the jury convict of,
aggravated assault based on the mere character of the weapon.” (People v.
Aguilar, supra, 16 Cal.4th at p. 1037, fn. 10.) This exception recognizes that
“ ‘there are nonordinary uses to which one can put an inherently deadly
weapon . . . without altering the weapon’s inherently deadly character.’ ”
(In re L.J., supra, at p. 50.) The court provided an example of a defendant
using a dagger—an inherently dangerous weapon—to cut a single strand of a
sleeping person’s hair. (Ibid.) In that example, the defendant committed an
assault with a deadly weapon but not an assault with force likely to cause
great bodily injury, and thus the latter offense is not a lesser included offense
of the former. (Ibid.)
We adhere to the reasoning of In re L.J. and conclude that, because
assault with a deadly weapon can be committed without the use or threat of
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force likely to produce great bodily injury, assault with force likely is not a
necessarily included offense of assault with a deadly weapon under the
elements test. We thus turn to the accusatory pleading test.
B. The Accusatory Pleading Test
“Under the accusatory pleading test, a lesser offense is included within
a greater ‘ “ ‘if the charging allegations of the accusatory pleading include
language describing the offense in such a way that if committed as specified
the lesser offense is necessarily committed.’ ” ’ ” (In re Fernando C. (2014)
227 Cal.App.4th 499, 503.) “ ‘[T]he required notice is given when the specific
language of the accusatory pleading adequately warns the defendant that the
People will seek to prove the elements of the lesser offense.’ ” (People v. Reed,
supra, 38 Cal.4th at p. 1229.) “Consistent with the primary function of the
accusatory pleading test—to determine whether a defendant is entitled to
instruction on a lesser uncharged offense—we consider only the pleading for
the greater offense.” (People v. Montoya (2004) 33 Cal.4th 1031, 1036.)
Here, for count three, the first amended information alleges only that
on or about February 18, 2020, Pack committed an assault upon Markham
with a “stabbing weapon” in violation of subdivision (a)(1) of section 245,
which sets forth the offense of assault with a deadly weapon. A weapon
designed for stabbing is an inherently dangerous weapon. (See People v.
Mowatt (1997) 56 Cal.App.4th 713, 719 [characterizing “inherently dangerous
stabbing weapons” as those “primarily designed for thrusting or stabbing” as
opposed to cutting tools that may be used as weapons].) Nothing in the
language of the information indicates whether Pack used the stabbing
weapon in a way likely to produce great bodily injury. The information
therefore did not sufficiently put Pack on notice that the prosecution would
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seek to prove the elements of assault with force likely to produce great bodily
injury.
Because assault with force likely is not a necessarily included offense to
assault with a deadly weapon under either the elements test or the
accusatory pleading test, we agree with the parties that Pack did not receive
the notice required by due process that he could face conviction for assault
with force likely as an offense necessarily included within the charged offense
of assault with a deadly weapon.
II. Pack’s Right to Due Process Was Violated Even Assuming the
Material Variance Test Applies
As mentioned, we requested supplemental briefing from the parties
about whether Pack’s due process claim was subject to the material variance
analysis of Collins and its progeny, Chavez, and the result of that analysis.
After considering the parties’ supplemental briefing, we find no basis to alter
our conclusion that Pack did not receive the notice that due process requires.
A. Collins and Chavez
Decided in 1960, Collins is derived from the material variance test that
was used to determine whether a defendant had adequate due process notice
of the particulars of the crimes with which he or she was charged. (People v.
Williams (1945) 27 Cal.2d 220, 225–226.) Under that test, a discrepancy
between preliminary hearing and trial evidence as to the particulars of the
charged crime is not material unless “it is of such a substantive character as
to mislead the accused in preparing his defense . . . .” (Id. at p. 226.) Collins
appears to be the first case in which that test was used to determine whether
a defendant received adequate notice that he could be convicted of an
uncharged offense not necessarily included in any of the charged offenses.
In Collins, the information charged the defendants with rape with force
in violation of section 261, subdivision (3), but a jury found them guilty of
8
rape in violation of subdivision (1) of that section for intercourse with a
female under the age of 18. (Collins, supra, 54 Cal.2d at p. 58.) Citing People
v. Craig (1941) 17 Cal.2d 453, 455, the Supreme Court found that the
subdivisions of section 261 “do not state different offenses but merely define
the different circumstances under which an act of intercourse constitutes the
crime of rape.” (Collins, supra, at p. 59.) In coming to this conclusion, the
Craig court had relied on prior case law determining that the Legislature
intended to create one crime of rape in that section. (People v. Craig, supra,
at pp. 455–456.) Based on this conclusion, the Collins court treated the
discrepancy between the pleading and the judgment as a “variance” which
would invalidate the judgment only if prejudicial to the defendants. (Collins,
supra, at pp. 59–60.) The court found no prejudice because “[n]ot only was it
proved at the preliminary hearing that the prosecuting witness was 15 years
of age, but the attorney for one of the defendants then expressed the view
that the evidence tended to show statutory rape only.” (Id. at p. 60.) The
court further noted that the defendants did not claim that they would or
could dispute the age of the prosecuting witness. (Ibid.) Under those facts,
the court concluded that the variance was “immaterial” and it affirmed the
judgments. (Ibid.)
After Collins was decided, the Second District applied the material
variance test in People v. Chavez, supra, 268 Cal.App.2d 381. There, the
defendant was charged with assault with a deadly weapon under
subdivision (a)(1) of former section 245 but found guilty of assault with force
likely under the same subdivision after a bench trial. (Chavez, at pp. 382–
383.) On appeal, the court applied Collins based on its conclusion that
assault with a deadly weapon and assault with force likely are two ways to
commit the crime of aggravated assault. (Id. at pp. 385–386.) The court
9
found that the evidence adduced at the preliminary hearing “fully informed”
the defendant as to the facts relied on to establish the assault, and “[a] fair
reading of the record before us and the fact that there is no contention of
error in the variance . . . establishes beyond any doubt” that the variance was
immaterial. (Ibid.) The court therefore affirmed the defendant’s conviction
for assault with force likely. (Id. at p. 386.)
The Legislature has since amended section 245, moving assault with
force likely and assault with a deadly weapon into separate paragraphs
under subdivision (a) of section 245. (§ 245, subdivision (a), as amended by
Stats. 2010, ch. 178, § 53.) As we have noted, in Aguayo, the Supreme Court
found, based on section 245’s language and that section’s legislative history,
that the Legislature intended for assault with a deadly weapon and assault
with force likely to constitute the same offense under the current version of
section 245.2 (Aguayo, supra, at pp. 982–985.)
With this precedent in mind, we turn to the parties’ arguments
regarding the applicability of the material variance test and whether the
variance, if any, was prejudicial to Pack.
B. The Parties’ Contentions
Citing People v. Lohbauer (1981) 29 Cal.3d 364 (Lohbauer), Pack argues
in his supplemental briefing that Collins does not apply here, and even if it
2 Although the issue before the court in Aguayo concerned section 954
(Aguayo, supra, 13 Cal.5th at p. 979), when Collins found that rape was but
one offense under section 261, it relied on the section 954 analysis in Craig
(Collins, supra, 54 Cal.2d at p. 59; People v. Craig, supra, 17 Cal.2d at
pp. 454–456). We recognize that the due process inquiry raises notice issues
that are not present when applying section 954, but we need not resolve
whether a “same offense” analysis for the purpose of section 954 necessarily
triggers a Collins material variance analysis, because below we reach the
same result even assuming that analysis applies.
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did apply, the variance between the accusatory pleading and the offense with
which he was convicted was material and prejudicial. The Attorney General
does not address the issue of whether Collins applies, arguing only that there
is a variance, and that the variance was immaterial because the prosecutor’s
overview of the evidence at the preliminary hearing and section 995 hearing
fully informed Pack that the prosecutor intended to rely on facts that Pack
assaulted the victim in a way that was likely to produce great bodily injury.
In Lohbauer, the defendant asked the Supreme Court to reverse a
conviction for the misdemeanor offense of entering a noncommercial dwelling
without the consent of the owner under section 602.5 because he had been
charged with burglary under section 459. (Lohbauer, supra, 29 Cal.3d at
p. 368.) Relying on the “fundamental” rule that the court lacks jurisdiction to
convict a defendant of an offense that is neither charged nor necessarily
included in the alleged crime (ibid.), the court held that the defendant’s
conviction of violation of section 602.5 could not be sustained because he was
not charged with that offense, and it was not necessarily included within the
burglary charge (Lohbauer, at p. 369).
Citing Collins, the prosecution argued that the court should adopt a
test for necessarily included offenses in which it would hold immaterial any
variance between an offense charged and a lesser offense of which a
defendant is convicted unless the variance was prejudicial to the defendant.
(Lohbauer, supra, 29 Cal.3d at pp. 369–370.) The prosecution contended that
the variance in that case was not prejudicial because the evidence offered at
the preliminary hearing put the defendant on notice of the “ ‘specific
conduct’ ” that supported his conviction of the uncharged offense of
unauthorized entry. (Id. at p. 370.) The court rejected such a test in part
because “serious due process questions would be raised by its adoption, not
11
the least of which would be the determination of when the test had been
met.” (Ibid.) It reasoned that “[i]t may be very difficult to ascertain from
developments which occur during trial whether a defendant is ‘misled to his
prejudice’ and ‘prevented from preparing an effective defense.’ It may never
be known with any confidence after a conviction what defenses might have
been asserted had defendant been given adequate and advance notice of the
possible offenses for which he was criminally vulnerable.” (Ibid.) The court
further found that “[t]he difficulties readily apparent in attempting such a
factual inquiry in the course of appellate review do not commend for adoption
the proposed new definition.” (Id. at p. 371.) The court explained that
“[i]nsisting that [the defendant] be informed in the accusatory pleading of the
charges against him . . . fully satisfies a well established fundamental of due
process.” (Id. at p. 370.)
With respect to Collins, the court held that the force of its specific
holding “has been abrogated, of course, by the Legislature’s repeal of
subdivision 1 of section 261 and the enactment in 1970 of a separate statute,
section 261.5 prohibiting sexual intercourse with a female under age 18.”
(Lohbauer, supra, 29 Cal.3d at p. 372.) And “[i]n any event, Collins had
neither redefined a ‘necessarily included’ offense within the meaning of
section 1159, nor departed from the rule of that statute; it had held only that
rape was one crime within that meaning.” (Ibid.) Therefore, the court
concluded that Collins was “not authority for any expanded definition of
‘necessarily included’ offenses.” (Ibid.)
Because the charged offense of assault with an inherently deadly
weapon does not require the same proof as assault with force likely, and the
evidence adduced at the preliminary hearing in this case supported the
charged offense, we are presented with the same due process concerns raised
12
by the Lohbauer court in that we cannot know with any certainty how the
proceedings might have progressed and what defenses Pack might have
asserted had he had adequate and advance notice that he could be convicted
of assault with force likely. The Attorney General does not argue that
application of the material variance test is supported by the Supreme Court’s
decision in Aguayo, describing the case as having “no bearing” on Pack’s due
process claim, and the Attorney General’s contention that we should find no
due process violation in light of the evidence presented at the preliminary
hearing is the approach the Supreme Court rejected in Lohbauer. (Lohbauer,
supra, 29 Cal.3d at pp. 369–370.) Our research has not revealed any
published cases decided after Lohbauer that applied the Collins test to
determine whether there is a due process violation where the accusatory
pleading provided no notice to the defendant that he or she could be convicted
of a particular offense.
But even if we assume that the material variance test has continuing
validity in these circumstances, the variance between the accusatory
pleading and Pack’s conviction was material and prejudicial. This is not a
case like Collins where the facts supporting the variance—in that case, the
victim’s age—could not be disputed by the defendants, and where defense
counsel expressly acknowledged at the preliminary hearing that the evidence
supported only the offense of which the defendants were ultimately convicted.
Here, the accusatory pleading indicated only that Pack’s alleged assault
involved an inherently deadly weapon, and the parties produced evidence at
the preliminary hearing regarding the nature of the weapon officers found on
Pack’s person. Although the evidence adduced at the preliminary hearing
also showed that Pack swung the weapon in a downward motion at
Markham, evidence that the prosecutor cited at the section 995 hearing in
13
connection with Pack’s self-defense claim, none of the parties agreed or even
contended at those hearings that the evidence could also support assault with
force likely. Moreover, when Markham testified at trial regarding Pack’s
alleged assault on him, he demonstrated with his own arm that Pack swung
at him with a “balled fist . . . across the middle of his body from right to
left[,]” rather than in a downward motion. Had defense counsel been notified
that the prosecution intended to proceed under a theory of assault with force
likely, she would have been incentivized to address the inconsistencies in the
evidence regarding Pack’s use of force. But it was not until after the defense
had rested its case that the court informed Pack it intended to instruct the
jury on assault with force likely as a lesser included offense of assault with a
deadly weapon. Unlike Chavez, defense counsel in this case objected to the
instruction on the ground that assault with force likely was not “the theory
that the district attorney was operating under from the beginning of this trial
and throughout.” Under these circumstances, we cannot conclude that Pack
was not prejudiced, and therefore we cannot affirm his conviction for assault
with force likely. We thus consider the Attorney General’s request to modify
the conviction for assault with force likely to the lesser included crime of
simple assault.
III. Pack’s Conviction Should Not Be Modified from Assault with
Force Likely to Simple Assault
Citing section 1260, the Attorney General requests that instead of
reversing the judgment for count three, we modify it to reflect a conviction for
simple assault, which is a lesser included crime of both assault with a deadly
weapon and assault with force likely. The Attorney General reasons that,
notwithstanding that Pack’s conviction for assault with force likely is
inconsistent with due process, to convict Park of that offense the jury
necessarily found true all of the elements required to sustain a conviction for
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the lesser included offense of simple assault, and due process poses no
obstacle to a conviction for that offense because it is also a lesser included
offense of the crime with which he was charged (but not convicted), assault
with a deadly weapon.
Section 1260 provides, in pertinent part: “The court may reverse,
affirm, or modify a judgment or order appealed from, or reduce the degree of
the offense . . . or the punishment imposed . . . .” Although section 1260
“ ‘seems to confer plenary power of modification on a reviewing court[,] it was
not so intended.’ ” (People v. Romo (1967) 256 Cal.App.2d 589, 596.) Rather,
the 1949 amendment of section 1260 was intended to “ ‘bring [the statute]
into accord with section 1181(6) with respect to reduction of the degree of an
offense . . . .’ ” (People v. Navarro (2007) 40 Cal.4th 668, 678 (Navarro).)
Section 1181, subdivision (6) provides that a court may grant an application
for a new trial “[w]hen the verdict or finding is contrary to law or evidence,
but if the evidence shows the defendant to be not guilty of the degree of the
crime of which he was convicted, but guilty of a lesser degree thereof, or of a
lesser crime included therein, the court may modify the verdict, finding or
judgment accordingly without granting or ordering a new trial, and this
power shall extend to any court to which the cause may be appealed.”
(§ 1181, subd. (6).) “The purpose of Penal Code section 1181, subdivision (6),
is to obviate the necessity of a new trial where the court believes there is
sufficient evidence to establish the lesser offense but not the greater.” (People
v. McClellan (1980) 107 Cal.App.3d 297, 302, citing People v. Serrato (1973)
9 Cal.3d 753, 761, disapproved of on another ground by People v. Fosselman
(1983) 33 Cal.3d 572, 583, fn. 1; see People v. Watson (1983) 150 Cal.App.3d
313, 317, 323, disapproved of on another ground by People v. Sanchez (2001)
24 Cal.4th 983, 990.) A court’s authority to modify a judgment of conviction
15
to reflect a lesser included offense is permissive, not mandatory. (People v.
Hamilton (2018) 30 Cal.App.5th 673, 685.)
The Legislature added subdivision (6) of section 1181 in response to our
Supreme Court’s decision in People v. Nagy (1926) 199 Cal. 235, 239, in which
the court found insufficient the evidence supporting the defendant’s
conviction for first degree arson. (See Navarro, supra, 40 Cal.4th at p. 676.)
In Nagy, the court concluded that the evidence was sufficient to sustain the
lesser included offense of second degree arson, but found that it did not have
constitutional or statutory authority to modify the verdict to the lesser
included crime. (People v. Nagy, supra, at p. 239.) After the Legislature
added section 1181, subdivision (6), the Supreme Court applied it in People v.
Kelley (1929) 208 Cal. 387 by modifying the defendant’s first degree murder
conviction to reflect a conviction for manslaughter after finding insufficient
evidence supported the defendant’s first degree murder conviction. (Id. at
p. 393.)
As the Supreme Court later explained, “[n]umerous cases, both from
this court and the Courts of Appeal, subsequently applied Kelley to modify a
verdict on appeal to reflect a conviction on a lesser included offense after
finding insufficient evidence supported conviction of the greater offense.”
(Navarro, supra, 40 Cal.4th at p. 677.) The cases cited by the Attorney
General—People v. Matian (1995) 35 Cal.App.4th 480 and People v. Beasley
(2003) 105 Cal.App.4th 1078—likewise involve a situation in which,
consistently with the language of section 1181, subdivision (6) regarding the
court’s power to modify a judgment or verdict, the claimed error was
insufficiency of the evidence. The Attorney General has not cited, and we
have not found, any case holding that it may be applied in other contexts.
(See People v. Lathrop (1986) 181 Cal.App.3d 1217, 1221 [statute did not
16
authorize the trial court to modify the verdict to reflect conviction of a lesser
included offense where the court “did not find, nor did defendant argue, that
there was insufficient evidence to support the verdict and findings” under the
greater offense]; People v. Baca (1966) 247 Cal.App.2d 487, 497 [power to
modify the verdict under statute “applies only where the evidence shows
defendant to be not guilty of the offense of which he was found guilty”].) We
also note that the Supreme Court has cautioned that the statute should not
be expanded “beyond the scope of its evident purpose” (Navarro, supra,40 Cal.4th at p. 679), finding, for example, that it did not authorize
modification of a judgment to reflect convictions for two lesser offenses (id. at
pp. 680–681), nor to reflect a conviction for a lesser related offense (People v.
Lagunas (1994) 8 Cal.4th 1030, 1039).
The error in this case is one of due process, not the insufficiency of the
evidence to support the conviction of a greater offense. Moreover, the
Attorney General does not cite any authority establishing that it is proper for
us to rely on what the jury must have found true in order to convict Pack of
an offense in violation of due process. Accordingly, we are not persuaded that
we may expand the scope of section 1260 to modify the judgment as the
Attorney General requests, and assuming we could, that we should exercise
our discretion to do so.
DISPOSITION
The conviction of assault with force likely as a lesser included offense of
assault with a deadly weapon is reversed.3 The trial court is directed to
3Remand for resentencing is unnecessary because the sentence on
count three for assault with force likely is concurrent with those on the other
counts, and therefore the conviction does not affect Pack’s overall sentence.
17
prepare an amended abstract of judgment and to forward a copy to the
Department of Corrections. In all other respects, the judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
STREETER, Acting P. J.
BROWN, J.
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Trial Court: Contra Costa County Superior Court
Trial Judge: Anita L. Santos
Counsel for Defendant and HAMRICK LEGAL
Appellant: Lillian Hamrick
Counsel for Plaintiff and Rob Bonta
Respondent: Attorney General of California
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Donna M. Provenzano
Supervising Deputy Attorney General
Clarissa Limón
Deputy Attorney General
19