PEOPLE v. JOHNSON

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

The PEOPLE, Plaintiff and Respondent, v. Jerome M. JOHNSON, Defendant and Appellant.

No. B103176.

Decided: October 15, 1997

Valerie G. Wass, under appointment by the Court of Appeal, Pasadena, for Defendant and Appellant. Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Ellen Birnbaum Kehr, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Jerome Johnson was convicted of one count of possession of a forged driver's license with intent to commit forgery in violation of Penal Code 1 section 470b, but the jury which convicted him was not instructed that possession of a fraudulently altered driver's license in violation of Vehicle Code section 14610 was a lesser included offense of the crime as charged.2  Defendant contends that when the facts justify a lesser included offense instruction, the court is required to give the instruction on its own motion and that its failure to do so in this case constitutes reversible error.

This case thus presents the question of whether possession of a specified type of unlawful driver's license in violation of Vehicle Code section 14610, a misdemeanor, is a necessarily lesser included offense of section 470b, which makes it a felony to possess a specified type of unlawful driver's license or identification card with the intent to facilitate the commission of a felony.   We conclude that Vehicle Code section 14610 can be violated without violating section 470b.   We also conclude, however, that in this case the prosecutor charged the violation of section 470b in language which necessarily included a violation of Vehicle Code section 14610.

Although defendant did not request that the instruction be given, we conclude that the court was nonetheless obligated to give the instruction, and that the trial court's understandable inadvertence in this regard was not harmless error.   We are, therefore, compelled by authority of decisions of our Supreme Court to reverse the judgment and remand it for a new trial with directions to modify the judgment of conviction to find the defendant guilty of a violation of Vehicle Code section 14610 in the event the People do not intend to retry the defendant.

Facts

On January 21, 1996, Roxanne Hensley used a forged check to pay for merchandise at a Kmart store located at Western and Imperial.3  Hensley presented a forged driver's license for identification.   A cashier reported the incident to Edilbert Ortiz, a loss prevention agent at Kmart.

Ortiz watched Hensley leave Kmart and walk to a U-Haul truck in the parking lot.   Appellant was in the truck.   Hensley entered the truck and the two drove to the Food-4-Less grocery store next to Kmart.   The U-Haul then returned to the Kmart area.

Hensley re-entered Kmart and made another purchase by forged check.   Ortiz called the Sheriff's department.

Deputy Sheriff Robert Conner went to Kmart to investigate the Hensley forgery.   During the course of his investigation, Deputy Conner went to the parking lot, seized a set of keys from appellant's waist band, and opened and searched the U-Haul truck.   Appellant initially told Deputy Conner that his name was Willie Johnson.   Deputy Conner found two driver's licenses, both bearing appellant's photograph.   One was in the name of Willie Johnson, the other in the name of Leroy Randall.   It was later determined that appellant's true name is Jerome Michael Johnson.

Ortiz, who had training and experience in identifying false identification, opined that the Johnson and Randall driver's licenses with appellant's photograph were fake.

Discussion

People v. Barrick (1982) 33 Cal.3d 115, 133, 187 Cal.Rptr. 716, 654 P.2d 1243, instructs us that:  “Generally, two tests are used to determine whether in a particular case a crime is a necessarily and lesser included offense of another crime.   The first test looks to the elements of the crime:  if, as a matter of legal definition, the greater offense cannot be committed without concomitantly satisfying the elements of the lesser offense, the latter offense is a necessarily lesser include offense.   Secondly, a crime is a necessarily lesser included offense if it is within the offense specifically charged in the accusatory pleading.”

 After examining the legal definition of the crime in section 470b, we conclude that the offense described in Vehicle Code section 14610 is not a necessarily included offense of section 470b because section 470b can be violated by possession or display of an unlawful driver's license or identification card, while Vehicle Code section 14610 can be violated only by possession or display of an unlawful driver's license only.   Thus, a person who possessed or displayed an unlawful identification card could violate section 470b but not Vehicle Code section 14610.

 Here, however, appellant was charged with the crime of possession of a forged driver's license in violation of section 470b in that defendant possessed a driver's license and identification card of the “type enumerated in Penal Code section 470a with the intent that said document be used to facilitate the commission of a forgery.”   By so charging defendant, the People charged that defendant possessed a driver's license which had been altered, falsified, forged, duplicated or in any manner reproduced or counterfeited.   Possession of either a fictitious or a fraudulently altered driver's license is a violation of Vehicle Code section 14610 as well as a violation of section 470b.   Thus, the information necessarily charged the defendant with a violation of both section 470b and Vehicle Code section 14610.

 The evidence produced by the prosecution indisputably establishes that the defendant violated Vehicle Code section 14610.4  And, the jury could not have found defendant guilty of violating section 470b as it did without finding defendant guilty of violating Vehicle Code section 14610.5  “In People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913] (hereafter Sedeno ) we explained when a trial court must instruct on lesser included offenses.  [¶] We explained that a trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’  (Sedeno, supra, 10 Cal.3d at p. 715 [112 Cal.Rptr. 1, 518 P.2d 913].)  [Footnote omitted.]   ‘The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given.’ ”  (People v. Barton (1995) 12 Cal.4th 186, 194-195, 47 Cal.Rptr.2d 569, 906 P.2d 531.)   The court must instruct on the lesser included offense even when the defendant claims to be innocent of both the greater and the lesser offense.  (Id. at p. 196, 47 Cal.Rptr.2d 569, 906 P.2d 531, interpreting People v. Sedeno (1974) 10 Cal.3d 703, 717, 112 Cal.Rptr. 1, 518 P.2d 913.)   We therefore conclude that the trial court was obligated to instruct the jury on the necessarily lesser included offense of possession of a fraudulently altered or fictitious driver's license as set forth in Vehicle Code section 14610.

 Seizing upon the fact that the word “counterfeit” is not found in Vehicle Code section 14610, respondent argues that section 14610 is not a necessarily lesser included offense of section 470b because possession or display of a “counterfeit” driver's license violates section 470b but not Vehicle Code section 14610.   In our opinion, a fictitious license is a “counterfeit” one.   We note also that subdivision (a)(7) of section 14610 makes it unlawful to possess a photograph, photostat, duplicate, reproduction or facsimile of a driver's license.

 Having concluded that the trial court's failure to instruct the jury on the necessarily included offense of possession of a fraudulently altered or fictitious driver's license was error, we now consider whether such error requires reversal of the judgment.   Our Supreme Court has determined that a defendant has a constitutional right founded on sound public policy considerations to have the jury determine every material issue presented by the evidence.  (People v. Geiger (1984) 35 Cal.3d 510, 520, 199 Cal.Rptr. 45, 674 P.2d 1303.)  “Instructions on lesser offenses are required because a procedure which affords the trier of fact no option other than conviction or acquittal when the evidence shows that the defendant is guilty of some crime but not necessarily the one charged, increases the risk that the defendant may be convicted notwithstanding the obligation to acquit if guilt is not proven beyond a reasonable doubt.   The pressures which create that risk thus affect the reliability of the fact finding process and thereby undermine the reasonable doubt standard.”  (Ibid., citations omitted.)

There is a concern in this case that the jury may have believed that the defendant was guilty only of possession of an unlawful driver's license but chose to convict the defendant of the crime charged rather than let the defendant go free.   While deliberating, the jury sent a note asking, “Is the charge the same as the wording of possession of a fraudulent driver's license?” and “Is it a felony to have a(sic) possession of a fraudulent driver's license?”   The court did not furnish an answer to either question.

These questions indicate that the jury had concluded that the defendant was guilty of the lesser included offense of possessing a fraudulent driver's license, a violation of Vehicle Code section 14610, but may have entertained a reasonable doubt of guilt of the crime charged.  “The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense.   Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense.”   (People v. Geiger, supra, 35 Cal.3d at p. 519, 199 Cal.Rptr. 45, 674 P.2d 1303.)   We conclude that the trial court's failure to instruct the jury properly denied the jury the opportunity to convict the defendant of the lesser offense, even though the jury may have had a reasonable doubt of his guilt of the charged offense, and cannot be deemed harmless.

Disposition

The judgment is reversed with directions that, if the People do not bring defendant to trial within 60 days after the filing of the remittitur in the trial court pursuant to section 1382, subdivision (2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of Vehicle Code section 14610 and shall resentence defendant accordingly.

I concur fully in the lead opinion.   I believe the result is dictated by binding California Supreme Court precedent.   I write separately only to express my concern over the necessity of the reversal.   Here, a jury found beyond a reasonable doubt that defendant possessed two false or fraudulent driver's licenses with the intent to facilitate a forgery.   However, because the able trial judge failed to instruct the jury sua sponte as to a possible lesser included offense found in a little-known provision of the Vehicle Code, defendant's conviction must be reversed.   I note that the Vehicle Code section is not a statutorily lesser included offense, but only a lesser included offense as charged by the prosecution.   It is found in no list of lesser included offenses available for diligent trial judges to check.   I note further that no request for the instruction was made by the defense, who thus could not have been relying on it.   This result impugns the integrity of the jurors, who are charged with violating their oaths by finding defendant guilty of an offense which they did not believe, beyond a reasonable doubt, he committed.   It also places an impossible burden on the trial judge, who is required to divine lesser included offenses from any and all penal provisions found in numerous and various codes.

The necessity of such an unpalatable result could be obviated by abrogating the trial court's sua sponte obligation to instruct on lesser included offenses, leaving the parties to try the case as they deem appropriate.   The prosecution would have the option of seeking to amend the information to allege lesser included offenses.   The defense would have the option of seeking lesser included offense instructions.   However, both parties could, for sound tactical reasons, determine to forgo all lesser included offenses.   If defense counsel did not seek lesser included offense instructions, defendant would retain the remedy on appeal of reversal for ineffective assistance of counsel.

I respectfully dissent because there is no substantial evidence defendant possessed the counterfeit identification for any purpose other than use in a forgery.   In so concluding, I agree with my colleagues that a violation of Vehicle Code section 14610 is a lesser included offense of possession of a counterfeit driver's license within the meaning of Penal Code section 470b;  however, there was no sua sponte duty to instruct on the lesser offense because there was no substantial evidence to support it.   In any event, I further conclude the failure to instruct was harmless error under presently existing California Supreme Court authority.

First, there was no substantial evidence defendant possessed the counterfeit driver's licenses for any purpose other than to perpetrate a forgery.   The California Supreme Court has repeatedly held that there is no sua sponte duty to instruct on a lesser included offense unless there is substantial evidence that only the less serious crime was committed.   (People v. Williams (1997) 16 Cal.4th 153, 227, 66 Cal.Rptr.2d 123, 940 P.2d 710) “A trial court must instruct on a lesser included offense ‘only if there is substantial evidence to support a jury's determination that the defendant was in fact only guilty of the lesser offense.’ ”  [Citations.];  (People v. Bradford (1997) 15 Cal.4th 1229, 1344-1345, 65 Cal.Rptr.2d 145, 939 P.2d 259) “It is well established that the trial court has a sua sponte duty to instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.  (People v. Cooper (1991) 53 Cal.3d 771, 827 [281 Cal.Rptr. 90, 809 P.2d 865];  People v. Bunyard (1988) 45 Cal.3d 1189, 1232-1233 [249 Cal.Rptr. 71, 756 P.2d 795].)  ․ Nonetheless, even when the law imposes upon the trial court a sua sponte duty to instruct the jury, as it does with regard to lesser included offenses, that duty is not triggered ‘ “when there is no evidence that the offense was less than that charged.” ’  [Citation.]  (People v. Hawkins (1995) 10 Cal.4th 920, 952-953 [42 Cal.Rptr.2d 636, 897 P.2d 574].)”;  People v. Memro (1995) 11 Cal.4th 786, 871, 47 Cal.Rptr.2d 219, 905 P.2d 1305 “A criminal defendant is entitled to an instruction on a lesser included offense only if (see People v. Morrison (1964) 228 Cal.App.2d 707, 712-713 [39 Cal.Rptr. 874] ) ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ (id. at p. 712 [39 Cal.Rptr. 874]) but not the lesser.   [Citations.]”  Original italics.   In assessing whether only the lesser offense was committed, an appellate court may not rely on speculation.  (People v. Wilson (1992) 3 Cal.4th 926, 941, 13 Cal.Rptr.2d 259, 838 P.2d 1212) “Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser offense”;  (People v. Duncan (1991) 53 Cal.3d 955, 970, 281 Cal.Rptr. 273, 810 P.2d 131) “In the present case, there was no evidence that the offense ․ was other than robbery․  [O]nly bare speculation [supports] the theory now advanced by defendant that the intent to steal did not arise until after the victim's death”;  accord (People v. Bradford (1997) 14 Cal.4th 1005, 1055, 60 Cal.Rptr.2d 225, 929 P.2d 544 [same].)

In the present case, defendant is speculating as to the existence of any purpose other than facilitating a forgery.   In fact, he is unwilling to assert any other purpose in his briefs on appeal.   Those briefs contain no assertion of any other purpose for possessing the counterfeit driver's licenses.   Defendant never testified during his trial.   Hence, the suggestion he possessed some other purpose is mere speculation on his appellate counsel's part.   More importantly, the uncontradicted evidence adduced at trial illustrated defendant possessed the driver's licenses for the proscribed purpose.   When arrested, defendant was involved in a conspiracy to commit forgery.   Defendant's coconspirator, identified during trial as a Ms. Hensley, was the subject of a forgery investigation in a store.   She wrote a check for some merchandise and left the store.   She then got into a truck driven by defendant.   He drove Ms. Hensley to a nearby Food 4 Less grocery store.   Defendant then drove Ms. Hensley back to the store where she had just used a check to make a purchase.   She then used a check to make another purchase.   Both the checks passed by Ms. Hensley were forged instruments.   Further, each time she passed the checks, she used “forged drivers' licenses.”   Inside the cab of the truck were two counterfeit driver's licenses bearing defendant's picture but not his name.

At trial, defendant did not testify.   As to the reason defendant, caught in the midst of assisting a forger to commit her crimes, possessed the two counterfeit licenses, his counsel argued at trial:  “I must confess when I was young and in college in Michigan, like a lot of college kids in those days, I borrowed a license to go out with friends.   We didn't have pictures on those licenses at the time.   I had to memorize the friend's name, her weight, her age, her birth date.   Height and weight matched pretty much.  [¶] So I am living proof that you can possess a license without any intent to commit any felony.   And I ask you to take this case seriously as my client and I do and to find him not guilty because the People have not proved their case beyond a reasonable doubt.”

The foregoing argument about the existence of an innocent or non-forgery related intent was supported by no testimony.   All of the evidence indicated defendant was involved in aiding Ms. Hensley in committing two forgeries.   Defendant never testified he possessed the counterfeit driver's licenses for a purpose other than to commit a forgery.   In order to instruct on lesser offenses, there must be substantial evidence to support a guilty verdict as to the less serious crime.   None exists here;  only speculation and defense counsel's explanation as to why she years ago used somebody else's driver's license.   That does not constitute substantial evidence.

Second, even if there was a sua sponte duty to instruct, the failure to do so was harmless.   At the outset, it warrants emphasis that no federal constitutional error is present in this case.   No federal constitutional error occurs in a noncapital case when there is a failure to instruct on a lesser and necessarily included offense.  (Beck v. Alabama (1980) 447 U.S. 625, 638, fn. 14, 100 S.Ct. 2382, 2390, fn. 14, 65 L.Ed.2d 392;  Turner v. Marshall (9th Cir.1995) 63 F.3d 807, 818-819;  Perry v. Smith (11th Cir.1987) 810 F.2d 1078, 1080;  Trujillo v. Sullivan (10th Cir.1987) 815 F.2d 597, 602, cert. denied 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256.)   The present harmless error test based on currently extant California Supreme Court authority 6 is as follows:  “We have long held that erroneous failure to instruct on a lesser included offense is not prejudicial if ‘it is possible to determine that ․ the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions․'  (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913 ];  see also People v. Wickersham (1982) 32 Cal.3d 307, 335 [185 Cal.Rptr. 436, 650 P.2d 311].)   Here, the instructions actually given and the verdicts actually rendered persuade us beyond doubt that the jury considered the question of ‘after-formed intent’ and rejected this ‘mere theft’ theory on its merits.   Accordingly, we conclude defendant suffered no prejudice.”  (People v. Turner (1990) 50 Cal.3d 668, 690-691, 268 Cal.Rptr. 706, 789 P.2d 887.)

The California Supreme Court has regularly held that if the jury necessarily found the intent for the greater crime to exist, then the failure to instruct on the lesser offense is harmless.   For example, in People v. Mayfield (1997) 14 Cal.4th 668, 779, 60 Cal.Rptr.2d 1, 928 P.2d 485, the Supreme Court held:  “In rejecting the lesser included offenses of manslaughter and second degree murder and convicting defendant instead of first degree murder, the jury necessarily found that defendant intended to kill Sergeant Wolfley and that the killing was deliberate and premeditated.   Under these circumstances, failure to instruct on a theory of unintentional and accidental killing was harmless.   (People v. Mincey [ (1992) ] 2 Cal.4th 408, 438 [6 Cal.Rptr.2d 822, 827 P.2d 388].)”  (Accord People v. Price (1991) 1 Cal.4th 324, 464, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   In the present case, the jurors were twice instructed on the specific intent element.   They were first instructed during jury instructions after counsel concluded their argument.   Later, when a question was submitted by the jury foreperson, the court reminded the jurors that both the elements of a violation of Penal Code section 470b must be proven beyond a reasonable doubt.   The jury had previously been advised of the requirement that there must exist a specific intent to facilitate the commission of a forgery in order for a guilty verdict to be returned.   When the jury returned later in the day with the guilty verdict, it necessarily found that defendant possessed the specific intent to facilitate a forgery.   They were twice advised of the specific intent requirement under proper instructions;  hence, the failure to advise the jurors of the lesser offense which did not include the specific intent element they found beyond a reasonable doubt to exist was harmless under presently existing California Supreme Court authority.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   Penal Code section 470b provides:  “Every person who displays or causes or permits to be displayed or has in his possession any driver's license or identification card of the type enumerated in Section 470a with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.”   Section 470a provides in part:  “Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency․”  Vehicle Code section 14610, subdivision (a)(1) provides:  “(a) It is unlawful for any person:  [¶](1) To display or cause or permit to be displayed or have in his possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver's license.”

3.   Hensley was charged as a co-defendant but is not a party to this appeal.

4.   Defendant did not present a defense.   However, defendant's attorney argued to the jury that a person could have a fictitious driver's license in his possession for a purpose other than committing a forgery.   She used the example of a minor who possessed a fictitious license for the purpose of purchasing alcoholic beverages.   In response to a question from the jury, the court stated that the jury could assume that the defendant was older than age 18.

5.   The jury was instructed that one of the elements of the charged crime was possession of a counterfeit driver's license or identification card.   To prove this element, the prosecution called an expert witness who testified that the driver's licenses possessed by the defendant were “fake” or “false.”   This testimony established a violation of Vehicle Code section 14610.   Neither the expert nor any other witness used the word “counterfeit” in describing these licenses.

6.   Currently pending before the California Supreme Court is the issue of whether the harmless error test of article VI, section 13 of the California Constitution applies when there is a failure to instruct on a lesser included offense in a noncapital case.  (People v. Breverman (S058721, review granted April 2, 1997).)   Recently, in People v. Prettyman (1996) 14 Cal.4th 248, 274, 58 Cal.Rptr.2d 827, 926 P.2d 1013, the Supreme Court applied the People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, test to the failure to identify a target offense when the prosecution proceeded on a theory a killing was a natural and probable consequence of a non-homicide crime.   Although the express language of the constitutional provision and the holding of Prettyman would appear to foreshadow the application of article VI, section 13 of the California Constitution to a failure to instruct on a lesser included offense, the correct test of reversible error which must be applied by a subordinate intermediate appellate court is that set forth in the body of this opinion.

ARMSTRONG, Associate Justice.