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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Harry WOLCOTT, Defendant and Appellant.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Harry WOLCOTT, Defendant and Appellant.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Russell JOHNSTON, Defendant and Appellant.

Cr. 21159, Cr. 21160 and Cr. 21177.

Decided: July 29, 1981

Dorothy P. Young, Novato (Court-appointed), for defendants and appellants. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Frances Marie Dogan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Charles Wolcott was found guilty of one count of robbery, two counts of attempted robbery, two counts of false imprisonment and assault with a deadly weapon. (Pen.Code, ss 211, 211/664, 236, 245(a).) Robert Johnston was found guilty of one count of robbery, one count of attempted robbery and two counts of false imprisonment. The jury found that Johnston personally used a firearm during the commission of the robbery and on one count of imprisonment; they found Wolcott used a firearm during the commission of two attempted robberies, one count of false imprisonment, and during the assault with a deadly weapon. (Pen.Code, s 12022.5.) Additionally, the jury found that Wolcott inflicted great bodily injury on one Jessie King during the course of the attempted robbery. (Pen.Code, s 12022.7.) Wolcott was sentenced to nine years in prison; Johnston was sentenced to 10 years in prison, including a three-year enhancement for a prior conviction for robbery. Both defendants appeal from the judgments.

The trial record reveals the following evidence: On August 4, 1979, appellants entered a bar in Vallejo. After drinking a couple of beers, they began arguing over a dollar bill with the bartender, Della Stennett. During the course of the argument Johnston walked toward the door, drew a gun and said, “(t)his is a hold up.” He then climbed over the bar and asked Stennett to give him the money from the cash register while Wolcott stood by the door as a lookout.

After obtaining the money, appellants forced Stennett and the other occupants of the bar into a room and locked the door. They subsequently went to Wolcott's mother's house and told her about the crime they had committed.

On September 3, 1979, Johnston went to King's Market in Benicia. Shortly thereafter, Wolcott entered a cab which was parked outside the front door of the market. Johnston came out of the market and conversed with Wolcott. Wolcott left the cab and went into the market and Johnston took Wolcott's place beside the driver on the front seat.

While in the market, Wolcott approached the proprietor, Jessie King, pulled out a pistol and said, “don't move.” He then laid the gun on the counter and King grabbed for it. The two men struggled, each trying to gain control of the weapon. Wolcott pulled the trigger and shot King. Wolcott did not take anything from the store.

Wolcott entered the cab, pointed a gun to the back of the driver's head and said, “Drive where I want you to go.” The driver followed the directions given by appellants. During the trip, Johnston produced a gun and asked the driver for money. Upon finding that the driver did not have any money, Johnston took the shells out of the gun.

Appellants observed the police were pursuing them. They directed the cab driver to a school where they got out of the car and ran away. After an exchange of gunfire, appellants were subdued and arrested.

At trial, Johnston presented a diminished capacity defense. The evidence indicates that he had sustained blows to his head from an exploding flare, a police nightstick and a tire iron. The resulting head injuries caused a condition known as organic brain syndrome.

Persons suffering from organic brain syndrome are unable to assess situations and respond to them or to exercise proper judgment as associated with higher mental functioning. A qualified psychiatrist testified that the organic brain syndrome coupled with alcohol would cause Johnston to drift in and out of consciousness and would render him incapable of formulating a “purposeful plan of intent” or of taking “purposeful actions.” Johnston had been drinking before the robbery at the bar and before the attempted robbery at King's Market.

On appeal appellant Wolcott contends that the trial court erroneously failed to instruct the jury sua sponte that great bodily injury does not include minor or moderate injuries. He asserts that such an instruction would have prevented the jurors from concluding that he had inflicted great bodily injury on Mr. King in the course of the attempted robbery. The trial court thereby would have been precluded from enhancing his sentence by three years under Penal Code section 12022.7.1

“(I)n the absence of a request, a trial court must instruct on the general principles of law governing the case, i. e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. ‘The most rational interpretation of the phrase ”general principles of law governing the case“ would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.’ (Citations.)” (People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1, emphasis in original.)

The trial court in the present case gave the instruction on great bodily harm then available in CALJIC 17.20 (1977 Rev.).2 Neither party requested that the court give the additional admonition that “(m)inor or moderate injuries of a temporary nature do not constitute great bodily injury within the meaning of this instruction.” (CALJIC 17.20 (1979 Rev.).) The failure to make such a request may have been due to the fact that CALJIC did not distribute this additional instruction to the bar or the court until several months after the conclusion of the trial.3

Although in People v. Caudillo (1978) 21 Cal.3d 562, 588, 146 Cal.Rptr. 859, 580 P.2d 274 our Supreme Court stated that: “injury of a significant or substantial nature, as contrasted with an injury that is trivial, insignificant or moderate, is normally a question of fact for jury determination,” it did not specifically rule on the issue of jury instructions. We find that CALJIC 17.20 (1977 Rev.) clearly stated the general law for great bodily injury. The terms “significant and substantial” by their very definitions exclude “trivial and insignificant.” Thus, CALJIC 17.20 (1979 Rev.) includes no additional general law. Accordingly, absent a request by defense counsel, the trial court had no duty to give the new instruction based on Caudillo.

Wolcott also contends that the evidence does not support the jury's verdict convicting him of the robbery of the bar or the imprisonment of its patrons. He asserts that the evidence indicates that he did not participate in either crime but was merely an innocent bystander.

It is a generally accepted principle of appellate review that, where the evidence is in substantial conflict, the verdict of the jury on issues of fact will not be disturbed. When a criminal conviction is “challenged as lacking evidentiary support(,) the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

The record contains substantial evidence to support the verdict on both crimes. The testimony of Wolcott's mother reveals that Wolcott stayed by the door and functioned as a lookout while Johnston jumped over the bar. They both subsequently confined Ms. Stennett and the bar patrons. Therefore, the jury properly found Wolcott guilty of robbery and false imprisonment.

Appellant Johnston contends that the trial court had a duty to instruct the jury sua sponte on assault with a deadly weapon as a lesser included offense of the charge of robbery coupled with a use allegation. He argues that the trial court's failure to give this instruction left the jury with no other choice than conviction of robbery or acquittal. He asserts that if the jury had accepted his diminished capacity defense with respect to the specific intent element of robbery, they should have had the option to convict him of assault with a deadly weapon.

In People v. Orr (1974) 43 Cal.App.3d 666, 117 Cal.Rptr. 738, the court held “that an allegation of firearm use for purposes of Penal Code section 12022.5 is not to be considered in determining whether the accusation encompasses a lesser included offense.” (Pp. 673-674, 117 Cal.Rptr. 738.) The court reasoned that section 12022.5 provides for an enhancement, i. e., increased punishment, for felonies; the section does not create a substantive offense. Therefore, it cannot give rise to any necessarily included offense. This division has followed the reasoning in Orr. (See People v. Cole (1979) 94 Cal.App.3d 854, 861-862, 155 Cal.Rptr. 892.)

More recently People v. McGreen (1980) 107 Cal.App.3d 504, 166 Cal.Rptr. 360 held that when a defendant is charged with robbery with a gun use, the trial court has a sua sponte duty to instruct on assault with a deadly weapon as a lesser included offense when the defendant presents a diminished capacity defense. We now find the rationale of McGreen compelling.

The crux of the McGreen analysis is that since robbery includes the lesser offense of simple assault (People v. Salas (1978) 77 Cal.App.3d 600, 607, 143 Cal.Rptr. 755; People v. Sutton (1973) 35 Cal.App.3d 264, 270, 110 Cal.Rptr. 635; People v. Guerin (1972) 22 Cal.App.3d 775, 781-783, 99 Cal.Rptr. 573, cert. den., 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105), the addition of a use allegation to a robbery charge will have the effect of increasing the lesser included offense of simple assault to assault with a deadly weapon. (People v. McGreen, supra, 107 Cal.App.3d at 512, 166 Cal.Rptr. 360.)

The facts of the present case are indistinguishable from those in McGreen. Here, as there, the accused presented a defense of diminished capacity to negate the element of specific intent required for a robbery conviction. In both instances the trial court failed to instruct sua sponte on the lesser included offense of assault with a deadly weapon, thereby forcing the jury to either acquit or convict of robbery. Our application of McGreen to the present case leads us to the conclusion that the trial court erred by failing to inform the jury of the lesser included offense of assault with a deadly weapon.

The California Supreme Court has determined in People v. Sedeno (1974) 10 Cal.3d 703, 720-721, 112 Cal.Rptr. 1, 518 P.3d 913, overruled on other grounds, People v. Flannel (1972) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1, fn. 12, that it is reversible error to fail to give a sua sponte instruction on a lesser included offense unless “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” The defendant in Sedeno complained of the trial court's failure to instruct the jury on manslaughter. Yet the jurors found him guilty of first degree murder after they had received a proper instruction on second degree murder. They necessarily rejected defendant's diminished capacity defense by not opting for a verdict of second degree murder. (People v. Sedeno, supra, 10 Cal.3d at 721, 112 Cal.Rptr. 1, 518 P.2d 913.)

Here, the jury had no such option. The instructions did not include information which would cause the jury to necessarily resolve the factual question posed by the diminished capacity defense adversely to Johnston. The trial court committed reversible error with respect to appellant's conviction for robbery.

Johnston next contends that we should apply his “lesser included offense” argument to his conviction for attempted robbery. We summarily reject his appeal on this point. The McGreen court specifically refused to apply its rationale to attempted robbery because “it is quite possible that an attempted robbery never reached the stage of an assault before the attempt was frustrated or abandoned. (Citation.)” (People v. McGreen, supra, 107 Cal.App.3d at 513, 166 Cal.Rptr. 360.)

Finally, Johnston argues that the trial court erroneously enhanced his sentence for robbery by three years under section 667.5, subdivision (c) because of his admission that he had a prior conviction for armed robbery.4

In People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, our Supreme Court construed section 1170.1, subdivision (a) as permitting “enhancement only for those specific offenses listed in section 667.5, subdivision (c).” (P. 761.) Since robbery with firearm use is not specifically listed in that latter section, the court concluded that robbery with firearm use is not one of the violent felonies referred to in section 667.5, subdivision (c).

Relying on Harvey, People v. Davis (1980) 103 Cal.App.3d 270, 163 Cal.Rptr. 22, held that it would be “anomalous to hold an armed robbery is a violent felony only where it is alleged as a prior, but not where it is used to increase the subordinate term under section 1170.1, subdivision (a).” (P. 278, 163 Cal.Rptr. 22.) We agree with this reasoning and, accordingly, hold that the trial court erred by enhancing Johnston's sentence by three years instead of one.

As to appellant Johnston, the judgment is reversed as to the conviction of robbery provided that the trial court shall enter judgment finding him guilty of assault with a deadly weapon as a lesser included offense to Count VII with a use enhancement, unless within 10 days of receipt of the remittitur by the trial court, the People elect to retry appellant on Count VII as charged. The three-year enhancement for appellant's prior conviction is reduced to one year pursuant to section 667.5, subdivision (b). In all other respects the judgment is affirmed.

As to appellant Wolcott, the judgment is affirmed.


1.  Unless otherwise indicated, all code sections will refer to the Penal Code.

2.  CALJIC 17.20 (1977 Rev.) stated in pertinent part: “The term ‘great bodily injury,’ as used in this instruction, means a significant or substantial physical injury.”

3.  The trial was in February 1980. CALJIC 17.20 (1979 Rev.) appeared in the 1980 supplement that was distributed in May.

4.  The abstract of judgment lists section 667.5(b) as the applicable enhancement provision. Although subdivision (b) only provides for a one-year enhancement, the abstract of judgment calls for a three-year enhancement.

MILLER, Associate Justice.

TAYLOR, P. J., and SMITH, J., concur.

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