PEOPLE v. DRAPER

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Clint DRAPER, Defendant and Appellant.

Cr. 20904.

Decided: December 19, 1972

Gary T. Wienerman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., William R. Pounders and Herbert A. Levin, Deputy Attys. Gen., for plaintiff and respondent.

Defendant John Clint Draper was charged in count I of an information with an attempted robbery (Pen.Code, §§ 211, 664), in counts II and III with assaults with a deadly weapon with intent to commit murder (Pen.Code, § 217), and in count IV with a violation of section 10851 of the Vehicle Code. He pleaded not guilty, but admitted an alleged prior felony (robbery) conviction.

A jury found him guilty as charged on counts I and II, and guilty of an assault with a deadly weapon (Pen.Code, § 245), a necessarily included offense to that charged in count III. The jury also specially found that defendant used a firearm within the meaning of Penal Code section 12022.5 in committing the foregoing offenses. The jury was unable to reach a verdict as to count IV, and that count was dismissed in the interests of justice.

Defendant's motion for a new trial was denied and he was sentenced to state prison on the three counts. Sentences on counts I and II were concurrent, with execution on count II stayed pending appeal and service on count I, the stay to become permanent upon completion of sentence on count I. Sentence on count III was consecutive to that on count I. Defendant appeals from the judgment.

The Facts

Shortly after 10 a. m. March 2, 1971 (Tuesday), William Mazin was returning from a bank to his liquor store, 11515 West Pico Boulevard, West Los Angeles, carrying approximately $6,000 cash in his pockets. He customarily cashed payroll checks for sanitation department workers in the area on Tuesdays. He parked his car in the parking lot adjacent to the westerly side of his store. He saw defendant seated on the passenger side of a white pickup truck parked westbound on Pico. Defendant was wearing a white cap and a white coat. As Mazin walked from the parking lot to his store, he felt somebody reaching for a pocket in which he had some of his money. He turned around and saw defendant, who said, ‘give me the money.’ Although he was afraid, Mazin told defendant, ‘Get out of here. What are you trying to do? Get away from me.’ When Mazin started running towards his store, defendant fired two shots, one hitting him in his leg. Mazin saw the person who shot him get into the white pickup truck and take off. He shouted, ‘I have been shot. Get the license number. Get the license number.’ A police car happened to come by at that juncture and went in pursuit of the truck.

Julius Beacham, a sanitation worker, was in the parking lot shorty lot shortly after 10 a. m. waiting to cash a payroll check. He heard a shot and then saw Mazin running ‘in a frightened manner’ and a man with a gun chasing him. The man with the revolver was dark-skinned, wearing a white hat and a white 3/4 length coat. The gunman fired a second shot; Mazin grabbed his leg and uttered, ‘I have been shot.’ Beacham was unable to observe the assailant's face, but he did see the person get into a white pickup truck and leave in a rapid manner. He heard Mazin yell to a policeman, ‘I have been shot.’ The officer made a U-turn and went in pursuit of the white pickup truck.

Sergeant Aikins of the Los Angeles Police Department was on patrol, in uniform, on March 2, 1971. He was driving eastbound on Pico when he noticed a commotion in front of Mazin's liquor store. Mazin was pointing to defendant, a male Negro, running from the location, wearing a white hat and a 3/4 length white coat. Defendant got into a late model Ford white truck and left in a rapid manner. He headed west and then south on Federal Avenue. Sergeant Aikins activated his siren and red light and chased the truck at a high rate of speed. Other police units were alerted. From Federal, defendant turned west on Gateway, made an abrupt U-turn, and headed towards Pearl and Coolidge Avenues, where the truck decelerated. Defendant was observed moving around in the vehicle. When the truck had slowed to about 5 m. p. h., defendant jumped from the truck holding a gun in his right hand. The truck rolled over the curb and came to rest against a retaining wall just south of 2532 Coolidge. After jumping from the truck, defendant backed up pointing the gun at Sergeant Aikens with both hands. The officer fired four shots, one of which struck defendant. The officer recovered the firearm which defendant had; it contained three live and two expended cartridges in it.1 Defendant did not actually fire any shots at the officer. Defendant was wearing a white hat and a 3/4 length white coat when he was shot.

An ambulance picked up the defendant and then continued to the liquor store to pick up Mazin. When Mazin saw defendant in the ambulance, Mazin was certain that defendant was the one who had shot him. Defendant seeing him said, ‘I should have killed you, you s. o. b.’ Officer Carl Allen rode in the ambulance as an escort officer. He did not put any questions to defendant during the ride to the hospital. However, defendant kept voluntarily uttering remarks of the following tenor: ‘If that honky pig2 would have been a little slower, I would have blown his head off. The next time I will kill one of you pigs.’ ‘I know where I made my mistake this time. If I would have killed that dumb honky, I would have got that $7,000 he was carrying. I have been planning this for a long time.’

Defendant testified in his own behalf admitting at the threshold of his testimony that he had committed a robbery at age 19 and had been arrested for violation of parole within the past 13 months. He had obtained the truck3 from a Mr. Thomas whom he was going to help that morning on a paint job. He did not know Thomas' address; Thomas had picked him up that morning. When Thomas stopped at a hardware store to pick up some supplies, defendant took the truck to go get something to cat as he had not had breakfast that morning. After eating at a restaurant on Pico, he was on his way back to meet Thomas when a police officer came up behind him and fired a shot. He became frightened, panicked, and sped off because he had been harassed innumerable times in the past by the police. He did not have a gun when he was stopped. He had no gun on his person or in the vehicle. He did have a briefcase containing work clothes in the truck. The hat and coat shown to him in court (Exhibits 1 and 2 [white hat and white coat]) look like those he had on.

In rebuttal, the People adduced testimony that a briefcase (or an attache case) was found on the passenger seat of the truck at the place defendant was captured; that it contained some clothes (scarf) but also a holster for a .38 caliber special ‘pistol and six live rounds of .38 ammunition. A pair of binoculars was found in the truck, which also had a compressor type motor apparatus. The truck, however, had no painting equipment in it nor were there any evidences of paint smears indicative of its having been used on a paint job. Also a pair of gloves was taken from defendant at the hospital.

Defendant testified in surrebuttal that the gloves were working gloves and that he always wore gloves whenever he drove.

Contentions on Appeal

Defendant contends: (1) The judgment as to count III should be corrected to show that defendant was convicted of a violation of Penal Code section 245 subdivision (a) as a necessarily included offense of the violation of section 217 as pleaded.4 (2) The giving of instructions that an assault with a deadly weapon is a lesser and necessarily included offense to an assault with a deadly weapon with intent to commit murder constituted error because the penalty for the former is greater than that for the latter.5

The People concede that the first contention is well taken; the rectification of the judgment in that particular should be ordered, rendering further consideration thereof unnecessary.

The Instructions and Verdict

The written instruction complained of reads: ‘If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt. [¶] The offense of assault with a deadly weapon with intent to commit murder with which the defendant is charged in Counts II & III necessarily includes the offense of assault with a deadly weapon.’ (Italics added.) This was a modification of CALJIC 17.10.

In orally explaining the verdict forms to the jury, after reading instructions which included the foregoing one, the trial judge stated in part pertinent here: ‘Now, the second count is a violation of Section 217 of the Penal Code, assault with a deadly weapon with intent to commit murder upon the person of William Mazin as charged in Count II. There will be a form of verdict of guilty to that charge.

‘If you find there is a reasonable doubt as to whether he is guilty of that particular charge but you do find that he is guilty of a lesser and necessarily included offense of an assault with a deadly weapon upon William Mazin, also as to Count II, the foreman will sign that particular verdict form.

‘. . ..

‘Now similarly with respect to Count III, with is an alleged assault with a deadly weapon with intent to commit murder upon the person of Sergeant David G. Aikins, the verdict forms will be a verdict of guilty of Count III of the Information, and in the event you have a reasonable doubt whether or not he is guilty of that charge but you have no reasonable doubt on the question of a lesser and necessarily included offense, that will be the verdict form that you will sign with respect to Count III:

‘We, the jury in the above-entitled action, find the defendant . . . guilty of violation of Section 245 [sic] of the Penal Code, assault with a deadly weapon upon Sergeant David G. Aikins, a necessarily included offense as charged in Count III of the Information.’ (Italics added.)

In the course of its deliberations, the jury sent a note to the trial judge reading: ‘Your Honor, . . . if we are all agreed on guilty of assault on Sergeant Aikins, Count III, but not all agreed on intent to commit murder, does this, (a) automatically make assault only the verdict; or, (b) require further trial on the intent and further vote by us?’

The judge, with defendant and both counsel present, answered in open court: ‘You recall with respect to Count III the verdict forms, and I have instructed you that Count III charges an assault with intent to commit murder, and that a lesser, necessarily included offense was assault with intent to commit great bodily injury.6 That's a lesser and necessarily included offense. [¶] If you are not all agreed on the greater of the offenses, namely assault with intent to commit murder, but you are all agreed on the assault with intent to commit great bodily injury, that will be your verdict on that particular count.

‘And, (b) it won't require any further trial in any respect, insofar as that particular count is concerned or any retrial.’ (Italics added.)

No objections to either the written or oral instructions were registered by trial defense counsel at the time they were given. The jury returned the verdict on count III finding defendant guilty of an assault with a deadly weapon upon Sergeant Aikins, a necessarily included offense, in the form heretofore quoted. Defense trial counsel did raise the point now raised by defendant's appellate counsel upon her motion for a new trial.

Discussion

Defendant concedes that under the established doctrine of a necessarily included offense, where the pleading charging a violation of section 217 includes the words, ‘with a deadly weapon,’ an assault with a deadly weapon is a necessarily included offense. (See, e. g., People v. Marshall (1957) 48 Cal.2d 394, 403–404, 309 P.2d 456; People v. Ramos (1972) 25 Cal.App.3d 529, 537, fn. 4, 101 Cal.Rptr. 230; People v. Koontz (1970) 7 Cal.App.3d 30, 38, 86 Cal.Rptr. 374; People v. Nichelson (1963) 217 Cal.App.2d 273, 278, 31 Cal.Rptr. 750, cert. denied, 376 U.S. 923, 84 S. Ct. 682, 11 L.Ed.2d 618.) The code sections referring to this doctrine used the words ‘necessarily included’ only,7 but it may be judicially noticed that the phrase ‘lesser and necessarily included offense’ has been used quite commonly by the legal profession in dealing with the included offense doctrine. Although there was some attempt on the part of the prosecution in this instant case to limit the instructions to the statutory phrase of ‘necessarily included,’ a fair appraisal of the instructions (both oral and written) is that the jury was instructed that an assault with a deadly weapon was a lesser and necessarily included offense to the violation of section 217 as pleaded in counts II and III.

As long as the essential elements of the included offense are fewer than those of the offense charged and the punishment for the included offense is lighter, there can be no quarrel with the use of the word ‘lesser’ and of the phrase ‘lesser and necessarily included offense.’ Citing a dictum in People v. Romo (1967) 256 Cal.App.2d 589, 595, 64 Cal.Rptr. 151,8 defendant contends that the word ‘lesser’ used in this context refers to punishment. He argues that when the Legislature increased the possible maximum sentence for a violation of section 245 subdivision (a) to life imprisonment9 as contrasted to the maximum of 14 years for a violation of section 217, it became error to instruct the jury that an assault with a deadly weapon is a lesser and necessarily included offense.

We do not agree. The lesser included offense doctrine, we think, is one dealing primarily with notice or pleading and with double jeopardy as indicated by the two sections of the Penal Code (sections 1159 and 1023) in which the phrase appears. It does not relate to punishment except insofar as it deters multiple punishment for a single criminal act.10 The word ‘lesser’ therefore is correct in the sense that the ‘included offense’ has less or fewer essential elements. Nevertheless, we do acknowledge that the use of ‘lesser’ is susceptible to a double interpretation. While the jury in a case such as this one is not to be concerned with the question of punishment (see CALJIC 17.42), the jury may in certain instances exercise their pragmatic power of leniency. (See, e. g., People v. Cyty (1909) 11 Cal.App. 702, 706, 106 P. 257; Dunn v. United States (1932) 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L. Ed. 356, 359, 80 A.L.R. 161, 163; People v. Powell (1949) 34 Cal.2d 196, 205, 208 P.2d 974; People v. Basnett (1960) 186 Cal.App.2d 108, 115, 8 Cal.Rptr. 804.) In such an eventuality the possibility exists that the jury may be misled by interpreting the word ‘lesser’ to mean a less serious crime. The record is clear in the instant case that the jury did not intend to exercise any lenity, but the power of a jury to do so in other cases is a factor entitled to some thought when discussing issues upon an appellate level where policy considerations should not be overlooked. In any event, it is preferable in the interests of minimizing unnecessary confusion that the statutory language ‘necessarily included offense’ be adhered to when dealing with the necessarily included offense doctrine.

However, to hold that the instruction given in this case was not erroneous under the necessarily included offense doctrine and that the jury had no intent to exercise mercy or perverseness does not completely answer the claim of injustice raised in this case. The adverse legal incongruity argued by defendant reared its head at the sentencing stage of the trial court proceedings. The trial judge imposed a state prison sentence carrying a possible maximum life sentence as opposed to the 14 years maximum under section 217. ‘It is fundamental to the indeterminate sentence law that every such sentence is for the maximum unless and until the [Adult] Authority acts to fix a shorter term. The Authority may act just as validly by considering the case and then declining to reduce the term as by entering an order reducing it.’ (In re Mills (1961) 55 Cal.2d 646, 653, 12 Cal.Rptr. 483, 488, 361 P.2d 15, 20.)

The anomalous situation of imposing a heavier sentence on a necessarily included offense than that prescribed for the inclusive offense pleaded raises constitutional questions of due process and of unusual punishment. (Application of Cannon (1955) 203 Or. 629, 631, 281 P.2d 233, 234; Cal.Const., art. I, § 6; People v. Anderson (1972) 6 Cal.3d 628, 634–637, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied 406 U.S. 971, 92 S.Ct. 2415, 32 L.Ed.2d 671; see argument in Ex parte Mitchell (1886) 70 Cal. 1, 2, 11 P. 488.) The imposition of criminal punishment by ‘any technique outside the bounds of . . . traditional penalties is constitutionally suspect.’ (Trop v. Dulles (1958) 356 U.S. 86, 100, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642.)

Furthermore, in this case the sentence on the included offense in count III was made consecutive to the sentence on count I (attempted robbery of the first degree) carrying a maximum of 20 years (Pen.Code, §§ 213, 664) with an additional 5 years under section 12022.5. Possible overtones of In re Lynch (1972) Cal., 105 Cal.Rptr. 217, 503 P.2d 921 (filed December 4, 1972) may be present, but we need not consider the constitutionality of the statute itself in this case. It is, of course, settled that the fixing of penalties for a crime or crimes is a legislative function and the courts will not interfere with the legislative discretion unless the penalty it has prescribed is manifestly cruel or unusual. (In re Anderson (1968) 69 Cal.2d 613, 630–631, 73 Cal.Rptr. 21, 447 P.2d 117 and cases cited; State v. McCauley (1860) 15 Cal. 429, 455.) There may be good reasons for making life imprisonment the maximum possible punishment for a violation of section 245 subdivision (a). (People v. Jennings, supra, 22 Cal.App.3d 945, 950, 99 Cal.Rptr. 739.) Section 217 can be violated without using a deadly weapon. The action of the Legislature in increasing the penalty for a violation of section 245 subdivision (a) over that for a violation of section 217 may be viewed as a legislative intent to discourage the use of deadly weapons which frequently results in greater harm to others than that contemplated or foreseen by the one wielding the weapon. As long as the offense under the respective sections 217 and 245 subdivision (a) are treated separately, constitutional infirmity of the latter statute does not come into play unless the teaching of In re Lynch, supra, applies, a question we do not need to resolve in this case, as previously noted. It is equally plausible, however, that the Legislature did not foresee the situation created in this case, and that the unfortunate situation should be called to its attention.

The issue of unconstitutionality of a statute valid on its face, however, can arise by the way in which the statute is applied. (See, e. g., Brock v. Superior Court (1939) 12 Cal.2d 605, 610, 86 P.2d 805; Yick Wo v. Hopkins (1855) 118 U.S. 356, 373–374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, 227.) When the prosecution resorts to the shortcut of a necessarily included offense in its notice and pleading which results, intentionally or unintentionally, in the imposition of a greater punishment than if the defendant had been convicted of the principal offense charged, an unusual (at times also unforeseen) punishment is reached by a technique departing from the normal procedure to obtain the maximum sentence possible under section 245 subdivision (a). This backdoor approach should not receive judicial sanction. (Application of Cannon, supra, 203 Or. 629, 632–633, 281 P.2d 233, 235; cf. People v. Anderson, supra, 6 Cal.3d 628, 634–637, 100 Cal.Rptr. 152, 493 P.2d 880.)

In Application of Cannon, supra, the petitioner (defendant) was charged with statutory rape carrying a maximum penalty of 20 years' imprisonment. He was convicted of a lesser included offense of an assault with intent to commit rape. The statute prescribing the penalty for the latter offense had been amended so that it provided for life imprisonment or imprisonment for a period not to exceed 20 years. The Supreme Court of Oregon held the portion of the statute carrying a life sentence constitutionally invalid as being cruel and unusual and held the defendant subject only to the portion limited to 20 years.

Under our state Constitution, the punishment need not be cruel; it is unconstitutional if it is unusual. (People v. Anderson, supra.) The life sentence imposed under the circumstances of this case is nothing short of unusual. (Cf. Application of Cannon, supra, 203 Or. 629, 631, 281 P.2d 233, 234.)

This view does not handicap law enforcement. The People are still free to charge violations of sections 217 and 245 subdivision (a) in separate counts alleging the statutorily required facts only instead of resorting to the shortcut permitted under the Marshall rule (People v. Marshall, supra, 48 Cal.2d 394, 403–404, 309 P.2d 456) by inserting the words ‘with a deadly weapon’ not necessarily required to plead a violation of section 217. Should a defendant be convicted upon the two counts thus separately pleaded, he is protected by the provisions of section 654 proscribing the imposition of multiple punishments for a single act.

While we have found no authority, construing section 1260, which would permit us ‘to reduce . . . the punishment imposed’ outside of the statutory scheme of penalties (cf. People v. Odle (1951) 37 Cal.2d 52, 58, 230 P.2d 345; People v. Fusaro (1971) 18 Cal.App.3d 877, 894, 96 Cal.Rptr. 368), we can and do advise the Adult Authority, which is given the power to determine the precise penalty (Pen.Code, § 1168), that fixing the maximum term on count III in this case beyond any period less than 14 years (exclusive of the section 12022.5 penalty) will entitle defendant to a writ of habeas corpus on said count because of the constitutional infirmity pointed out above.

Our attention has been called to People v. Gonzalez (1972) Cal.App., 104 Cal.Rptr. 530 (filed November 29, 1972), which illustrates what complex procedures trial courts are forced into by the problem raised in the instant case. We think that our solution to the problem promotes greater simplicity and is to be preferred over the procedures approved by Gonzalez. Gonzalez does fortify our resolution to suggest that perhaps a legislative reconsideration of the incongruous penalties for the several types of aggravated assaults is in order. Under section 217, an assault with intent to commit murder carries a maximum of 14 years. Under section 221, an assault with intent to commit manslaughter carries a maximum of 15 years. Under section 220, assaults with intent to commit rape, sodomy, mayhem, robbery, or grand larceny carry a maximum of 20 years. Under section 245, subdivision (a), an assault with a deadly weapon or by means of a force likely to produce great bodily harm carries a maximum of life.

Disposition

The judgment is affirmed as to counts And II. The judgment as to count III is corrected to show that the conviction thereon was for a violation of Penal Code section 245, subdivision (a), and the Adult Authority is advised that if the maximum penalty on count III is not limited to a period of less than 14 years in this case, it would result in an unconstitutional sentence; as thus modified, the judgment as to count III is also affirmed.

I respectfully dissent. The disparate sentences provided by sections 217 and 245 subdivision (a) of the Penal Code offend my sense of symmetry but not my sense of fairness. The majority modifies the judgment to provide, in effect, that in this case defendant can serve no more than a maximum term of 14 years on the ground that anything in excess would be unconstitutional. Refusing to consider the constitutionality of section 245 subdivision (a) itself, the majority holds that its application in this case results in an ‘unusual’ sentence, unconstitutional under the provisions of article I, section 6, of the California Constitution. The majority intimates that due process considerations are also involved. This conclusion seems to me to be unsound both in general and as applied in this particular case.

First, I perceive no question of substantive due process. As to procedural due process, the notice function of the information, charging as it did here that defendant was armed with a deadly weapon at the time of the offense alleged in count III, adequately apprised defendant of the possibility that a violation of section 245 was a necessarily included offense to the violation of section 217 which was specifically charged.1

Second, the majority recognizes that the fixing of penalties for criminal conduct is a legislative function and that courts will not interfere with the Legislature unless the penalty ‘is manifestly cruel or unusual.’ The majority also recognizes that the Legislature may have had a very good reason to increase the penalty for violating section 245 subdivision (a) from a maximum of 10 years to one of life. That the Legislature has inadvertently or otherwise not increased the penalty under section 217 does not make the penalty for violating section 245, standing by itself, ‘unusual.’

As the majority recognizes, so long as sections 217 and 245 subdivision (a), are treated separately no constitutional infirmities come into play unless In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 applies (a question which the majority does not consider). A mere reading of Lynch makes it obvious that section 245 subdivision (a) cannot be constitutionally invalidated on the ground that the punishment it imposes is unusual, whether considered in the abstract or in conjunction with section 217. It would be a work of supererogation to repeat here the applicable principles enunciated within the last few weeks by our Supreme Court in Lynch. Suffice it to say ‘that in California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 226, 503 P.2d 921, 930 emphasis added.) Such disproportion is a prerequisite to embarking on the techniques set forth in Lynch to determine whether a particular statutory sentence offends the constitution.2 It requires no more than a reference to the penalty provisions of Penal Code sections 1203, 3024, 12022 and 12022.5 to elucidate the severe consequences which the Legislature intends to flow from the criminal use of guns or other deadly weapons. Clearly a maximum term of life imprisonment where a defendant aims a loaded gun at a police officer who is lawfully trying to arrest him neither shocks one's conscience nor offends fundamental notions of human dignity.

Finally, insofar as abstract considerations of constitutionality are concerned, the anomaly between the sentences provided under sections 217 and 245 has already withstood constitutional attack based on equal protection arguments. Rejecting such an attack the court held in People v. Jennings, 22 Cal.App.3d 945, 950, 99 Cal.Rptr. 739, 742 that ‘We cannot say that, because section 245 does not require proof of an intent to kill, as does section 217 (and is therefore ‘lesser’ in that respect), the Legislature may not have felt that the conduct denounced in section 245 was sufficiently more likely to occur than that denounced in section 217 and that, for that reason, a greater penalty was required as a deterrent.'

Third, in its application to the instant case, no unfairness resulted from the unwise use of the word ‘lesser’ in instructing the jury. The majority quite properly states that the record in this case clearly shows ‘that the jury did not intend to exercise any lenity.’ Therefore this case is not at all factually like People v. Jennings, supra, 22 Cal.App.3d 945, 99 Cal.Rptr. 739. There, a defendant was charged with violations of section 217 of the Penal Code. Prior to first instructing the jury the trial court acquiesced in a defense objection to an instruction on section 245 and refused a defense request to instruct on simple assault. Two times the jury came back for additional instructions and those given all related to section 217. The jury reappeared a third time, in Jennings, at which time it became apparent that their difficulty lay in reaching a conclusion that defendant intended to murder. Then, for the first time in that case, the trial court over objection instructed that section 245 subdivision (a) was a lesser and included offense. A verdict was promptly returned thereafter that defendant had violated that section.

The events of the instant case are in diametric contrast. Here the jury was nitially instructed that the offense of an assault with a deadly weapon was a lesser and necessarily included offense to the charge under section 217. The jury thereafter asked the court by note ‘if we are all agreed on guilty of assault . . . but not all agreed on intent to commit murder, does this, (a) automatically make assault only the verdict; or, (b) require further trial on the intent and further vote by us?’ (Emphasis added.) After the court answered this inquiry, as indicated in the majority opinion, the verdict was returned. Thus as the majority recognizes the verdict returned here was precisely the verdict which the jury intended to return. It cannot be suspected of being a compromise verdict based on instructions intended to help the jury arrive at some sort of a guilty verdict. This is what the court feared in People v. Jennings, supra. (See also, People v. Stouter, 142 Cal. 146, 75 P. 780.)

Fourth, in the context of this case, and recognizing that for constitutional purposes In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 requires that the maximum possible sentence be the focus of inquiry, still the possibility that section 245 subdivision (a) contains a minimum sentence of 6 months as well as an alternative misdemeanor sentence cannot be ignored in considering the constitutional application of the statute to the facts of this case. Defense counsel may well have felt that this exposure was preferable to the straight felony sentence called for by section 217.

We cannot second guess these tactics but the possibility that that was the actual situation reinforces my conclusion that no shocking or unconstitutionally unusual punishment has been imposed.

FOOTNOTES

1.  The weapon was a Smith & Wesson, Chief Special, .38 caliber, with two-inch barrel, and serial number 97610 on its butt. It had a chamber for five shells: the empty shells had to be manually removed after firing.

2.  Officer Allen testified that Negroes at times use the word, ‘honky’ to refer to white people, and the word, ‘pig’ to a police officer.

3.  The prosecution evidence in its case in chief had proved that the 1970 white pickup Ford truck, the vehicle used by defendant, with license number 12598–H identification number F25YRJ57822, had been stolen around February 11, 1971, from the Hermetic Supply, Incorporated, dba Temperature Equipment Corporation. When the truck was impounded, the license plate with 12598-H was covered by another plate bearing No. E–938, which belonged to a 1958 Chevrolet pickup truck.

4.  The verdict omitted specification of subdivision (a).

5.  Reference to sections are to Penal Code unless otherwise indicated. Section 217: ‘Every person who assaults another with intent to commit murder, is punishable by imprisonment in the State prison not less than one nor more than fourteen years.‘The portion of section 245, subdivision (a), here pertinent: ‘Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment. . . .’

6.  No objection was made that no instructions on assault by means of a force likely to produce great bodily injury had been given. No claim of confusion caused, if any, has been advanced on this appeal.

7.  Section 1159: ‘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.’ (Italics added.)Section 1023: ‘When the defendant is convicted or acquitted o has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.’ (Italics added.)

8.  This referred to a concession by the Attorney General that a violation of section 4501 (assault with a deadly weapon by a prison inmate) was not a lesser included offense to a charged violation of section 217, because the penalty for the former was greater than for the latter. The court ruled that the perpetrator of the former crime had to be a prison inmate, an element not required for a violation of section 217.

9.  This portion of section 245 subdivision (a) was amended by Statutes 1970, chapter 796. Prior to this amendment the maximum was 10 year's imprisonment. (People v. Jennings (1972) 22 Cal.App.3d 945, 950, 99 Cal.Rptr. 739.)

10.  See In re Hess (1955) 45 Cal.2d 171, 174, 175, 288 P.2d 5. ‘California's version of the included offense doctrine serves four functions: first, it plays an integral role in the double jeopardy safeguard—sparing the accused the attrition inherent in multiple trials; second, it serves as a prophylactic measure against the infliction of multiple punishments predicated upon a single act; third, it serves notice on the accused to defend against offenses which are not expressly charged, since he may be convicted of the crime charged or any of its lesser components; and fourth, it entitles the accused on trial for the greater offense to a jury instruction on lesser included offenses which are supported by the evidence.’ (Fn. citations omitted.) Note, The Included Offense Doctrine in California (1963) 10 U.C.L.A.L.Rev. 870, 871–872. Of interest is the fact that both Corpus Juris Secundum and American Jurisprudence Second treat the subject under the title, ‘Indictments and Informations.’ (See 42 C.J.S. §§ 271–300, pp. 1294–1330; 41 Am.Jur.2d, § 97, pp. 939–940.)

1.  I agree with Justice Aiso's perceptive analysis of the necessarily included offense doctrine insofar as it concludes that the word ‘lesser’ should be avoided.

2.  As a portion only of one of the techniques, the court points out simply that if among the crimes and other offenses in a jurisdiction are found more serious ones, punished less severely than the offense in question, the challenged penalty is to that extent suspect. The statutory anomaly here, on examination may mean nothing more than that the Legislature simply overlooked the fact that section 217 provides a relatively light penalty.

ALSO, Associate Justice.

KAUS, P.J., concurs.

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