PEOPLE v. LAGUNAS

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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Appellant, v. Frank Joe LAGUNAS, Defendant and Respondent.

No. B066383.

Decided: March 18, 1993

Ira Reiner, Dist. Atty., Maurice H. Oppenheim and Natasha Cooper, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, Albert J. Menaster, Robert Fefferman and Alex Ricciardulli, Deputy Public Defenders, for defendant and respondent.

This is an appeal by the People of a trial court's modification of a jury's verdict.

Respondent Frank Joe Lagunas was convicted by a jury of the crime of first degree burglary, a felony, in violation of Penal Code section 459.   In his written motion for new trial, he included a request that the court, as an alternative to granting a new trial, modify the verdict to the lesser charge of receiving stolen property, in violation of Penal Code section 496, subdivision 1.1  Upon submission of the motion the court made the following finding:

“[Respondent's] motion for new trial is argued and denied.   The court, under Penal Code 1181.6, finds that the verdict was contrary to evidence, and may have been contrary to law.   The court therefore modifies the verdict by finding the [respondent] guilty of the lesser included offense of Penal Code 496.1 (Receiving stolen property), a misdemeanor.”

Discussion

The People appeal this modification because the language of Penal Code section 1181, subdivision (6) only provides the statutory authority to modify a verdict to a lesser included offense.   The People argue that the trial court can only modify a verdict to either a lesser degree of the crime found by the jury or to a lesser included crime.   In light of the undisputed fact that, in this case, receiving stolen property falls into neither of these categories, it is the People's position that the trial court lacked the power to modify the verdict to this charge.

Respondent concedes that Penal Code section 496, subdivision 1 was not a lesser included offense, but argues that the court had the nonstatutory authority to modify a verdict to a lesser related offense.

 In People v. Fosselman (1983) 33 Cal.3d 572, at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144 the Supreme Court stated:  “Penal Code section 1181 enumerates nine grounds for ordering a new trial.   It is true the section expressly limits the grant of a new trial to only the listed grounds, and ineffective assistance [of counsel] is not among them.   Nevertheless, the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.”  (Emphasis added.)   The Legislature, in point of fact, has no power to limit this constitutional obligation.  (Ibid.)

 We then consider whether due process requires that the trial court have the authority to modify a verdict to a lesser related offense.   In People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger ), the Supreme Court held that in order to protect a defendant's constitutional right to due process, the court must give instructions regarding lesser related offenses pursuant to certain criteria, if the defense requests such instructions.   In the course of its discussion the court explained that Penal Code sections which govern the pleading of an offense “in no way restrict the court's power to instruct on related offenses or in a nonjury trial to convict of a related but not necessarily included offense on request by the defendant.”  (Emphasis added.)  (Id. at p. 527, 199 Cal.Rptr. 45, 674 P.2d 1303.)   The court footnoted this pronouncement and stated “although we are concerned here only with alleged error in failing to instruct on a related, but not necessarily included offense, our reasoning and holding are equally applicable to nonjury trials in which a defendant waives his right to notice by consenting to consideration of a related offense.”  (Emphasis added.)   (Id. at p. 527, fn. 10, 199 Cal.Rptr. 45, 674 P.2d 1303).

 There are similarities in the role of a trial court in a nonjury trial and in ruling on a motion for new trial based on insufficiency of the evidence.   At the time of a motion for new trial, the court is not bound by the decision of the jury as to the conflicts in the evidence or inferences to be drawn therefrom, but, instead, is under a duty to give the defendant “the benefit of its independent conclusion as to the sufficiency of credible evidence.”  (Veitch v. Superior Court (1979) 89 Cal.App.3d 722, 731, 152 Cal.Rptr. 822).   In carrying out this duty the court must independently judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence and draw factual inferences.  (Id. at p. 730, 152 Cal.Rptr. 822.)   Needless to say, in a nonjury trial the court engages in this same process.  Geiger states that without an option to convict on a related offense, the deliberations of a jury, or the court in a nonjury trial, may be affected to such a degree that the due process rights of the defendant are in jeopardy.   As a result, Geiger requires that the fact-finding body be given the option of convicting on a lesser related offense in order to ensure the reliability of the resulting decision.  (Id. 35 Cal.3d at p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.)   It would appear that the concern expressed in Geiger as to the trial court having the authority to convict on a related offense in a nonjury trial, would apply to the option of a trial court to modify a verdict to a lesser related offense on a motion for new trial for insufficiency of the evidence.   We believe that the right to modify a verdict to a lesser related offense on a motion for new trial would be just as much an aspect of “fundamental fairness” required by due process, as the right to a verdict or finding of a lesser related offense in a nonjury trial.

 Permitting a court to modify a verdict where the evidence does not support the verdict but does support a finding that a lesser related crime was committed inures to the benefit not only to a defendant, but also to the prosecution.   The purpose of allowing a trial court to modify a verdict is to obviate the necessity for a new trial when the evidence establishes that a lesser crime was committed.  (People v. Serrato (1973) 9 Cal.3d 753, 761, 109 Cal.Rptr. 65, 512 P.2d 289.)   This spares the People from having to invest their resources in another prosecution while securing a conviction of the defendant on charges supported by the evidence.   In this case, in spite of the fact that the respondent did not present any evidence in his defense, the court made a finding that the “verdict was contrary to evidence, and may have been contrary to law.” 2  We assume that the People presented all the available evidence pertaining to respondent's guilt and that if a retrial resulted in the same verdict, the court would make the same ruling on the issue of the sufficiency of the evidence.

We hold that a trial court has the nonstatutory authority to modify a verdict to a lesser related offense, upon a defense request for such consideration, if the evidence shows the defendant to be not guilty of the crime of which he was convicted, but guilty of the lesser related crime.

Disposition

The trial court's order modifying the verdict is affirmed.

I respectfully dissent:

Respondent concedes that there is no statutory authority for a court to modify a verdict to a related offense at the time of a motion for new trial, but argues that a court, nonetheless, has the nonstatutory authority to do so.

Respondent primarily relies on the Supreme Court's decision in People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, in support of this argument.   In that decision, the court held that the option to convict on a related offense was required in order to protect a defendant's constitutional right to due process of law.   In order to extend this nonstatutory rule to a motion for new trial setting, I believe we must similarly find that the option to modify a verdict to a related offense is required in order to protect a defendant's constitutional right to due process.

The rationale for the related offense option, as set forth in Geiger, is as follows:

“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 omitted.]   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.”  (Id. at p. 520, 199 Cal.Rptr. 45, 674 P.2d 1303.)

“[W]here the defense is that the defendant has committed an offense other than that on which the prosecution case is predicated, and he has presented evidence which if believed supports his theory, reliability in the factfinding process demands that the jury be instructed on that offense.   Similarly, reliability of the factfinding process demands affording the jury the ‘third option’ [to convict on the related charge] when the evidence supports a conviction of a related, but not necessarily included, offense.”  (Id. at p. 525, 199 Cal.Rptr. 45, 674 P.2d 1303.)

“Denial of instructions on related offenses may affect the reliability of that factfinding process.   By affording no option other than acquittal or conviction of a greater offense than that which the jury believes to have been committed, denial of instructions on related offenses may in some cases create a ‘substantial risk that the jury's practice will diverge from theory’ [citation omitted] and thereby undermine the reasonable doubt standard.   Therefore ․ due process requires that instructions on related offenses be given on request of the defendant in appropriate circumstances.”  (Id. at p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.)

While this rationale may support a rule requiring the instruction of a jury on related offenses, I do not believe that it is applicable in a motion for new trial setting.

At the motion for new trial following a jury trial, the jury has already considered the first two options, and in some cases it has also considered the third option of related offenses.   In this case, for example, the jury was instructed regarding a violation of Penal Code section 485, a misdemeanor, as a lesser related offense.1

The fact-finding body, therefore, had three options to choose from and the option it chose was that the defendant was guilty of the offense charged.   Despite the choice of the fact-finding body, the court, pursuant to Penal Code section 1181, subdivision 6 may order a new trial or modify the verdict to a lesser included offense.   There is, however, a significant difference between this decision and a jury's verdict.

The due process concern expressed in Geiger was that the jury might convict the defendant on the charged offense even though sufficient evidence is not introduced to prove that offense, because the only other alternative is a complete acquittal.   In order to prevent the possibility that the jury will abandon its duty to acquit on the greater offense when it recognizes that the defendant committed the lesser offense, and may not be willing to “acquit where it is satisfied that the defendant [is] guilty of wrongful conduct,” (Geiger at p. 519, 199 Cal.Rptr. 45, 674 P.2d 1303), the jury must be instructed, in appropriate situations, as to lesser related offenses.   However, rather than the absolute options open to a jury of acquittal or conviction, which concerned the Geiger court and formed the basis of its conclusion, a decision to grant a motion for new trial results neither in a conviction nor an acquittal.   Regardless of the extent of similarity between a denial of a motion for new trial and the absolute option of conviction, granting the motion is not at all similar to the absolute option of acquittal.   In fact, the option to grant a new trial is immeasurably less absolute than the option to convict on a related offense.   As such, I see no reason to believe that a court ‘will diverge from theory and thereby undermine the reasonable doubt standard.’

I would also note that the type of situation discussed in Geiger is one in which there is a question as to whether the defendant committed the charged offense.   A trial court, however, is frequently confronted with situations in which there is no doubt that the defendant is guilty of the charged offense, but the court is, nonetheless, called upon to make decisions which could result in all charges being forever dismissed.   These types of situations generally arise in suppression motions or other in limine type motions such as those related to the admissibility of a confession.   There is no legal reason to question the reliability of a court's all-or-nothing decision in these settings even though there is no doubt as to the guilt of the defendant.   As such, there certainly is no reason to question the reliability of the court's decision when there is a doubt as to the guilt of a defendant on the charged offense, and when the court's decision is less than an all-or-nothing type of decision.

The unconstitutional harm which Geiger sought to protect against is that if a jury is not given the option to convict a defendant of a related offense which is warranted by the evidence, then the jury might feel pressured into convicting a defendant of a greater offense even though it is not warranted by the evidence, because the only other option is a complete acquittal.   This due process concern is simply not present at a motion for new trial.

Finally, a ruling that a court may modify a verdict to a related offense, could conceivably undermine the goal of the Geiger decision.   The reason being that instructions on related offenses are, in the first instance, completely within the control of the defense.   Such instructions may not be given without the request or acquiescence of the defense.  (See People v. Toro (1989) 47 Cal.3d 966, 254 Cal.Rptr. 811, 766 P.2d 577).   If the court can modify a verdict to a related charge then a defense attorney might well decide not to request that related offense instructions be given to the jury even though they may be overwhelmingly appropriate in the case.   This decision would force the jury into the Hobson's choice that Geiger sought to avoid.   The attorney would then argue that the defendant was, at most, guilty only of the related offense.   The defense hope is that the jury will accept this argument and, not having the option to convict on the related offense, will acquit the defendant on the charged offense.   If, instead, the jury convicts the defendant on the charged offense, then the defense would request that the court modify the verdict to an offense that the jury was prevented from considering in the first place (the related offense).   In such a situation, the goal of the rule would be completely undermined while the rule itself would still be applied, albeit in a forum not considered in Geiger.   I cannot foster such machinations.

I do realize that a rule allowing a trial court to modify a verdict to a related offense might be a good idea.   Saving a defendant from the time, trauma, and expense of a new trial, as well as eliminating the need for victims and witnesses to return to court and saving taxpayer funds necessary to relitigate a criminal case, are all worthwhile goals.   However, not all good ideas are constitutionally required in the same fashion that not all bad ideas are constitutionally forbidden.   Weighing the pros and cons of such a rule, as well as setting up certain parameters in order to prevent machinations such as those described above would seem to be a necessary prerequisite to implementation of the rule.   This activity, in my opinion, is a function of the legislative branch of government.   Our function in the judiciary is to interpret the application of laws to particular situations and to ensure that these laws do not run afoul of some overriding principle.   The statute involved in this case is Penal Code section 1181, subdivision 6.   The language of the statute, in my opinion, is clear, plain and unambiguous.   As such it needs no interpretation.   The only remaining question is, therefore, whether modification of a verdict to a related offense is an option which is required by some overriding principle, such as a defendant's constitutional right to due process of law.   For the reasons set forth above, I do not find this requirement.   Therefore, much as I might like to give trial judges this added avenue of discretionary action, I must conclude that a court cannot modify a verdict to a lesser related offense because such reduction is not statutorily provided for in Penal Code section 1181, subdivision 6, and there is no nonstatutory authority for it.   As such, I would reverse the trial court's order modifying the verdict and remand the case with instructions to grant the motion for a new trial.

FOOTNOTES

1.   Respondent, in his motion, and the court, in its order, characterized section 496, subdivision 1 as a lesser included offense.   Both the respondent and the court referred to the code section as section “496.1.”   The section, at the time of the proceedings in 1991, was section 496, subdivision 1.   In 1992, it was redesignated section 496, subdivision (a).

2.   We take this to be a finding that the court found the evidence insufficient to support a conviction of burglary.   The People have not challenged the court's finding in this respect.

1.   Penal Code section 485 states:“One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.”Whether or not Penal Code section 485 actually was a lesser related offense under the circumstances present in this case is not an issue in this appeal.   Reference to it should not be considered to be a finding that Penal Code section 485 is lesser related offense to a violation of Penal Code section 459.

FUKUTO, Associate Justice.

GATES, Acting P.J., concurs.