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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry Anthony ESCARCEGA, Defendant and Appellant.

Cr. 12602.

Decided: October 07, 1974

Thomas V. Roland, Berkeley, for defendant-appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, David Schneller, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Defendant Escarcega appeals from a ‘judgment of conviction, and sentence’ which were rendered and entered following his conviction by a jury's verdicts, of grand theft (Pen.Code, §§ 484, 487), and of assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a).

The accusatory pleading, an information, had pleaded the charges in the language of the statutes.

No contention is made that the verdicts were unsupported by substantial evidence.

The first assignment of error relates to the admission in evidence, over objection, of two knives and a jacket which were found by a police officer in an automobile in which defendant Escarcega had been the driver. It is contended that the articles were seized in violation of the Fourth Amendment. The specific argument is that the officer had no right to follow and stop the automobile and to detain its two occupants. No contention is made, assuming validity of the detention, that there was an invalid search or seizure.

A police officer had been informed by police radio of an altercation at a nearby college. The broadcast described two vehicles ‘which could possibly be related to [the] altercation,’ one of which was ‘an older model brown Cadillac.’ It also gave some information about the name and address of at least one of the cars' occupants.

Later that evening the officer observed a parked ‘brownish-gold '61 Cadillac,’ occupied by two men. The car soon drove off and was followed by the officer in his vehicle. As the Cadillac was traveling about 25–30 miles per hour its driver and passenger were observed changing seats. The officer thereupon caused the Cadillac to stop and questioned its occupants. The name on the driver's license of one, defendant Escarcega, matched the name which had earlier been broadcast on the police radio. Inquiry disclosed that the driver's license of the person who had relinquished the driver's seat to defendant Escarcega, had expired. At the time the officer observed in plain sight, in the console near the front seat, two knives, which respectively had 7 and 8-inch blades. The car's occupants were arrested and the weapons were seized. Also seized was a jacket lying on the vehicle's rear seat; it had been stolen earlier that day during the college altercation.

We know of no rule which would ban a police officer from following an automobile which reasonably conforms to a description of one whose occupants had been involved in an altercation resulting in an all-points police broadcast. Indeed, no rule occurs to us which would prevent a policeman from following a vehicle on a public highway without any reason; certainly no unreasonable search or violation of privacy would be involved. Such conduct might be offensive, or officious or ill-mannered, but it is not constitutionally regulated. When the officer observed the driver and passenger changing seats in the moving vehicle ahead of him, probable cause for their detention or arrest for reckless driving (Veh.Code, § 23102), and driving without a valid driver's license (Veh.Code, §§ 12500, 14601), come into being.

We need not pass upon the question whether the scant information given the officer about the college ‘altercation,’ of itself would justify arrest or other detention of the Cadillac's occupants.

The instant contention is found to be without merit.

The remaining assertion of error springs from the trial court's refusal to instruct the jury that defendant Escarcega might be found guilty of the ‘lesser and included offense’ of ‘exhibiting a deadly weapon,’ as defined and proscribed by Penal Code section 417.

Generally, when reasonably permitted by the evidence, one charged with crime is entitled to instructions on, and may be convicted of, a lesser offense included within the charge. (People v. Noah, 5 Cal.3d 469, 478, 96 Cal.Rptr. 441, 487 P.2d 1009.)

An offense is lesser than, and included within, a charge of crime when the offense charged, as defined by statute or as stated in the accusatory pleading, cannot be committed without also committing such a lesser offense. (See People v. Marshall, 48 Cal.2d 394, 309 P.2d 456, and People v. Asher, 273 Cal.App.2d 876, 906, 78 Cal.Rptr. 885.) Necessarily the lesser offense is a different offense than that charged. Illustrations are the crime of theft (Pen.Code, § 484) which is necessarily committed in the greater offense of robbery (Pen.Code, § 211), and of misdemeanor assault (Pen.Code, § 240), which is necessarily included in aggravated felonious assaults (Pen.Code, §§ 217, 220, 245) and in rape by force and violence (Pen.Code, § 261).

It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged.1 As indicated, to constitute a ‘lesser and included offense’ it must be of such a nature that as a matter of law and considered in the abstract, the greater crime as defined by statute or charged in the accusatory pleading, is impossible of commission without also committing the lesser offense. (People v. Marshall, supra, 48 Cal.2d 394, 309 P.2d 456; People v. Asher, supra, 273 Cal.App.2d 876, 906, 78 Cal.Rptr. 885.

Penal Code section 417 defines a misdemeanor offense. It reads as follows: ‘Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, or any other deadly weapon whatsoever, in a rude, angry or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor.’

An assault with a deadly weapon, as was charged against defendant Escarcega, may be committed without drawing or exhibiting a deadly weapon in a rude, threatening, or angry manner, or using it in any fight or quarrel. It was said in People v. Torres, 151 Cal.App.2d 542, 544–545, 312 P.2d 9, 11: ‘Section 417 of the Penal Code forbids the unlawful use in a fight or quarrel of a deadly weapon and the exhibition of such a weapon in the presence of another person in a rude, angry, or threatening manner. An assault with a deadly weapon can be committed without violating any provision of Penal Code section 417, as by firing a gun through a coat pocket without either drawing or exhibiting the weapon and without then being engaged in a fight or quarrel.’ (To the same effect see People v. Chavira, 3 Cal.App.3d 988, 991, 83 Cal.Rptr. 851, and People v. Leech, 232 Cal.App.2d 397, 399, 42 Cal.Rptr. 745.)

It has accordingly been repeatedly held by California's intermediate reviewing courts, that section 417 is not an offense lesser than and included within a charge of assault with a deadly weapon as proscribed by Penal Code section 245. (In re Stanley B., 17 Cal.App.3d 530, 534, fn. 2, 95 Cal.Rptr. 116; People v. Rasher, 3 Cal.App.3d 798, 83 Cal.Rptr. 724;2 People v. Siplinger, 252 Cal.App.2d 817, 823, 60 Cal.Rptr. 914 [cert. den., 390 U.S. 983, 88 S.Ct. 1105, 19 L.Ed.2d 1281]; People v. Leech, supra, 232 Cal.App.2d 397, 398, 42 Cal.Rptr. 745; People v. Torres, supra, 151 Cal.App.2d 542, 544, 312 P.2d 9; People v. Mueller, 147 Cal.App.2d 233, 238, 305 P.2d 178; People v. Diamond, 33 Cal.App.2d 518, 523, 92 P.2d 486; People v. Piercy, 16 Cal.App. 13, 16, 116 P. 322.)

Nevertheless, we find in People v. Coffey, 67 Cal.2d 204, 222, 60 Cal.Rptr. 457, 469, 430 P.2d 15, 27 a footnote reading, ‘The jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in those charged [i. e., assault with a deadly weapon, and assault with intent to commit murder (Pen.Code, § 217)]. (Cf. People v. Wilson (1967) 66 Cal.2d 749, 757–761, 59 Cal.Rptr. 156, 427 P.2d 820.’

We observe that the statement of Coffey was not responsive to any issue raised, and was unnecessary to the decision of that case. It must therefore be regarded as dicta, without force upon us as precedent. (See Simmons v. Superior Court, 52 Cal.2d 373, 378, 341 P.2d 13; Gonzales v. Superior Court, 3, Cal.2d 260, 263–264, 44 P.2d 320; People v. Gregg, 5 Cal.App.3d 502, 506, 85 Cal.Rptr. 273; Alberton v. Superior Court, 265 Cal.App.2d 812, 817, 71 Cal.Rptr. 553; 6 Witkin, Cal.Procedure (2d ed.) Appeal, § 676, pp. 4589–4591.) Advertence to the cited case, People v. Wilson, 66 Cal.2d 749, 59 Cal.Rptr. 156, 427 P.2d 820, discloses no support for Coffey's dicta. Without consideration of any lesser and included offense concept, that case simply held, in a murder case, that where the evidence permitted a finding that the homicide resulted from the commission of a Penal Code section 417 violation, the jury should have been instructed on the elements of that misdemeanor offense, and thus allowed to return a manslaughter verdict under Penal Code section 192, subdivision (2).

For the reasons stated we hold that the trial court properly refused to instruct on Penal Code section 417, as a lesser offense included within the charge of assault with a deadly weapon.

The ‘judgment of conviction and sentence’ are affirmed.


1.  People v. Collins, 54 Cal.2d 57, 60, 4 Cal.Rptr. 158, 351 P.2d 326, asserts no different rule. There defendants were charged with rape by force and violence (Pen.Code, § 261, subd. 3) against a girl whose age was not stated in the accusatory pleading. The evidence at trial established that she was 15 years old. The trial court, sitting without a jury, found defendants guilty of statutory rape (Pen.Code, § 261, subd. 1). The judgment was affirmed on the theory that rape (Pen.Code, § 261) constituted but one offense which could be committed in different ways. The court carefully avoided any conclusion that statutory rape was a different or lesser offense, included in the charge of rape by force and violence.

2.  In People v. Rasher, 3 Cal.App.3d 798, 83 Cal.Rptr. 724, defendant, charged with assault with a deadly weapon, was found guilty of violation of Penal Code section 417. Despite his contention that “section 417 is not necessarily a lesser included offense of section 245” the judgment was affirmed. Although the appellate court recognized the rule that section 417 was not such an included offense, it found that defendant's ‘conduct in relation to the trial proceedings' justified denial of relief. Defendant had given notice at the trial that he intended to rely on section 417. He requested jury instructions that such an offense was lesser than and included within the charge, and the case was tried on the theory that he could be convicted of violation of either section 245 or section 417. Toward the end of the trial, for some tactical reason, defendant changed his mind, and attempted unsuccessfully to withdraw the ‘lesser and included’ instructions. The appellate court found that it made ‘little difference that the violation of section 417, Penal Code, was designated by the jury as a lesser included offense,’ since defendant's conduct had accomplished ‘an informal amendment of the information to include the charge of violation of section 417, Penal Code, . . .’

ELKINGTON, Associate Justice.

MOLINARI, P.J., and SIMS, J., concur.

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