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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Appellant, v. Deryl Craig MORSE, Defendant and Respondent.

No. C002841.

Decided: August 30, 1988

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Wanda H. Rouzan and Jane L. Lamborn, Deputy Attys. Gen., for plaintiff and appellant. John J. Suter, for defendant and respondent.

A jury convicted defendant of first degree murder (Pen.Code, § 187, 189) and found that in its commission defendant personally used a firearm (Pen.Code, § 12022.5;  further statutory references to sections of an undesignated code are to the Penal Code).   The trial court modified the verdict (§ 1181, subd. 6), finding defendant guilty of the lesser related offense of accessory after the fact (§ 32).   The People appeal from the order modifying the verdict (§ 1238, subd. (a)(6)).

The principal question posed by the People's appeal is whether the trial court acted within its authority in modifying the verdict to conviction of a lesser related but not necessarily included offense.   We shall hold that it did not.

Suntana Potter, a sometime friend of defendant, was an indispensible witness for the People.   Potter testified to a detailed, elaborate account of the killing of the victim, Michael Souza, and the events that immediately preceded and followed the murder.   At defendant's request the jury was instructed on the lesser related offense of accessory after the fact to murder.


After he was found guilty of murder, defendant moved for a new trial on several grounds, contending among other things that the verdict was contrary to the evidence.  (§ 1181, subd. 6.)   In ruling on the motion, the trial court found Potter was an accomplice, that his testimony was insufficiently corroborated and that he was not a credible witness.   The trial court noted Potter's testimony was inconsistent in several material respects with other testimony and with the physical evidence and determined that all of the physical evidence pointed to the fact that Potter, not defendant, was the actual killer.   In consequence, the trial court concluded the People had failed to prove beyond a reasonable doubt every essential element of the crime of first degree murder.

“In passing on a motion for new trial it is not only the power but also the duty of the trial court to consider the weight of the evidence.”  (People v. Borchers (1958) 50 Cal.2d 321, 328, 325 P.2d 97.)  “ ‘[I]t is the exclusive province of the trial court to judge the credibility of the witnesses, determine the probative force of testimony, and weigh the evidence [citations].  In considering the sufficiency of the evidence upon [a motion for new trial] the court may draw inferences opposed to those drawn at trial [citation], and where the only conflicts consist of inferences deduced from uncontradicted probative facts, the court may resolve such conflicts in determining whether the case should be retried [citation].  It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.’ ”  (People v. Sheran (1957) 49 Cal.2d 101, 109, 315 P.2d 5.)

Although the motion for new trial was denied, the People conceded at oral argument that the trial court's findings and conclusions were a proper exercise of its power and discretion and would have justified the grant of a new trial for insufficiency of the evidence.


In lieu of granting a new trial for insufficiency of the evidence, section 1181, subdivision 6 authorizes the trial court, “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, [to] modify the verdict, finding or judgment accordingly․”

 Correctly noting that accessory after the fact is not a lesser included offense of murder (People v. Preston (1973) 9 Cal.3d 308, 319, 107 Cal.Rptr. 300, 508 P.2d 300;  People v. Markus (1978) 82 Cal.App.3d 477, 480, 147 Cal.Rptr. 151), the People argue section 1181 does not give the trial court authority to modify the verdict to a conviction of accessory after the fact.

In People v. Serrato (1973) 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289, defendants were convicted by a jury of possession of a fire bomb (§ 452, subd. (b)), but the trial court on motion for new trial purported to modify the verdict in reliance on its powers under section 1181, subdivision 6 to a conviction of disturbing the peace (§ 415).   Defendants appealed, claiming the trial court had no authority to reduce the crime of which they were convicted to a lesser crime which was not a necessarily included offense and of which they were given no notice in the accusatory pleading.   The Serrato court agreed, reversing the order and remanding the proceedings for a new trial.   The Serrato decision is expressly based on two principles:  (1) the power of a trial court to hear and decide a motion for new trial in a criminal case is strictly limited to the authority granted by section 1181 (9 Cal.3d at p. 760, 109 Cal.Rptr. 65, 512 P.2d 289), and (2) the trial court may not reduce a verdict to an uncharged (i.e., not necessarily included) offense without the defendant's consent.  (Id., at p. 759, 109 Cal.Rptr. 65, 512 P.2d 289.)   These principles have since been judicially qualified.

In People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144, the trial court denied defendants' motion for new trial, made on the ground of ineffective assistance of counsel, citing the fact that section 1181 does not confer on a trial court the power to order a new trial on that ground.   Acknowledging that ineffective assistance was not among the grounds for new trial enumerated in section 1181, the Fosselman court held that section 1181 “․ should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.”  (At p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)   When a claim of ineffective assistance of counsel implicates that constitutional duty, trial courts are better able to evaluate the claim in the first instance and therefore should entertain and rule upon it on motion for new trial.  (At pp. 582–583, 189 Cal.Rptr. 855, 659 P.2d 1144.)   The Fosselman court characterized as dictum its statement in Serrato that the power of a trial court to hear and decide a motion for new trial was strictly limited to the authority granted under section 1181;  to the extent that dictum conflicted with the decision in Fosselman it was disapproved.  (Id., at p. 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.)

In People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, the court held a defendant who so requests is entitled to instructions on a lesser related offense when there is an evidentiary basis for the instruction, the lesser related offense is closely related to the charged offense and defendant's theory of defense is consistent with conviction of the lesser related offense.  (At pp. 531–532, 199 Cal.Rptr. 45, 674 P.2d 1303.)   The court emphasized that defendant's due process right to notice adequate to prepare his defense precludes an instruction on a lesser related offense absent defendant's request or consent.  (At p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.)   For that reason, the court pointed out, “People v. Serrato [supra] is not contrary.   There we held that the court had no authority to convict the defendant of an uncharged crime ‘without his consent.’  [Citation.]  We noted there that the record contained no evidence of consent.”  (Id., at p. 528, 199 Cal.Rptr. 45, 674 P.2d 1303.)

“Procedures necessary to ensure reliability in the fact finding process when the state participates in the deprivation of personal liberty are required by due process.  [Citations.]” (Geiger, at p. 520, 199 Cal.Rptr. 45, 674 P.2d 1303.)  “Denial of instructions on related offenses may affect the reliability of that fact finding process.”  (At p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.)   Thus “in the absence of substantial countervailing considerations ․ due process requires that instructions on related offenses be given on request of the defendant in appropriate circumstances.”  (Ibid.)

The purpose of instructing on related offenses is “․ to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed.”  (Geiger, at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)   Here that purpose has been fully served.   At the request of defendant the trial court instructed the jury on the lesser related offense of accessory after the fact.   The jury presumably heard and considered all the evidence and unanimously agreed on a verdict convicting defendant of first degree murder, impliedly rejecting evidence pointing to guilt of the lesser offense.   Defendant's due process rights as defined and recognized by Geiger were satisfied by these procedures.

People v. Serrato, supra, recognizes the powers of the trial court in respect to new trial motions are “strictly limited.”  (9 Cal.3d at p. 760, 109 Cal.Rptr. 65, 512 P.2d 289.)   Characterizing this statement as dictum, People v. Fosselman enlarged the limits beyond those expressly authorized by section 1181.  Fosselman involved a claim of ineffective assistance of counsel and its holding was dictated by considerations of due process.   Although described as dictum, the principle enunciated by Serrato is no less valid.   The power of a court to act may be limited by statute to an extent not inconsistent with the constitutional functions and responsibilities of the judiciary.   It is not argued, nor could it be, that section 1181, subdivision 6 authorizes a trial court to reduce a conviction to a lesser related, as distinct from a lesser included, offense.   If the court nonetheless has that power, it must be, as in People v. Fosselman, a function of the court's responsibility to protect defendant's constitutional rights.   Certainly such power cannot be conferred upon the court by defendant's unilateral consent or request to reduce the conviction to an offense of his choosing.   The constitution does not bestow such a right on the defendant anymore than it empowers him by his consent to authorize imposition of a sentence less severe than established by statute.   In short, the constitution is defendant's shield, not his sword.

 Here due process does not require that a defendant convicted by a jury fully instructed on all lesser related offenses have the right also to secure modification of the verdict to a lesser related offense on motion for new trial.   Defendant's fundamental right to a reliable fact finding process is fully ensured by a jury instructed at defendant's request on the lesser related offense and by the power of the trial court to grant a new trial if the verdict is contrary to the evidence.   Accordingly the consent of defendant alone cannot in these circumstances justify a judicial expansion of the statutory grant of power to the trial court beyond the strict limits set forth in section 1181 and recognized in People v. Serrato, supra, 9 Cal.3d at p. 760, 109 Cal.Rptr. 65, 512 P.2d 289.


 In reducing the conviction to the lesser related offense of accessory after the fact, the court made reference to defendant's post-trial statement to the probation officer.   Defendant did not testify at trial and thus none of his post-trial statements was before the jury.

In People v. Watson (1983) 150 Cal.App.3d 313, 198 Cal.Rptr. 26, this court found prejudicial error where the trial court in reducing a verdict of second degree murder to vehicular manslaughter considered information bearing upon malice which was not presented to the jury.   We ordered the trial court to reconsider defendant's new trial motion without regard to matters not in evidence.  (At pp. 318–320, 198 Cal.Rptr. 26.)

The instant case is distinguishable from Watson.   Although the trial court here referred to certain facts taken from defendant's statement to the probation officer, the court made it clear it was modifying the verdict based solely on the evidence presented at trial.   As conceded by the Attorney General, the trial court's evaluation of that evidence as indicated by its findings and conclusions on motion for new trial fully supports the grant of a new trial.   Here, as in People v. Borchers, supra, 50 Cal.2d 321, at pp. 329–330, 325 P.2d 97, the trial court's reference to matters not before the jury does not impeach its findings and conclusions.

The order modifying the verdict is reversed.   The matter is remanded to the trial court with directions to enter an order granting the defendant's motion for new trial.

PUGLIA, Presiding Justice.

BLEASE and SIMS, JJ., concur.

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