PEOPLE v. TORO (1987)

Magdaleno Toro appeals from the judgment entered on a jury verdict convicting him of battery with serious bodily injury (Pen.Code, § 243, subd. (d)).¹ and the court's finding that he served a prison term within the preceding five years under section 667.5(b).   Toro correctly contends he was convicted of a crime that was neither charged in the pleadings nor necessarily included in the charged offenses.   We reverse with instructions to the trial court to dismiss the information.

FACTUAL AND PROCEDURAL BACKGROUND

I

Shortly after midnight on April 30, 1986, Toro entered the apartment of Becky Orozco.   He walked to the kitchen area and began arguing with his girlfriend, Alice Duenaz.   When Toro began pushing the kitchen table toward his girlfriend, Howard Johnston, Toro's half-brother, grabbed his wrist.   Toro then struck Johnston in the chin with his fist.   The two men struggled and wrestled each other to the floor.   Toro then stabbed Johnston three to five times with a knife.   One of the wounds penetrated Johnston's chest cavity and lung.

Toro left the apartment for less than one minute, came back in and kicked Johnston several times.   Orozco left the apartment to summon an ambulance.

II

A two-count information charged Toro with attempted murder (§§ 187/664187664) and assault with a deadly weapon, a knife, and by means of force likely to produce great bodily injury (§ 245(a)(1)).   Count one alleged Toro used a deadly and dangerous weapon in violation of section 12022(b).   Allegations Toro inflicted great bodily injuries on Johnston within the meaning of section 12022.7 and that he had suffered a separate prior prison term (§ 667.5(b)) for auto theft accompanied each count.

The trial was brief.   The prosecution presented its entire case in less than a day. The defense did not present any additional evidence.

The defense theory was clearly expressed in defense counsel's closing argument in which he admitted Toro stabbed Johnston but claimed he had done so in anger without any intent to kill.   Counsel urged the jury that lacking sufficient evidence to establish Toro's specific intent to kill it should find his client not guilty of either attempted murder or the lesser included offense of attempted voluntary manslaughter.   Defense counsel also said Toro was not guilty of the great bodily injury enhancement because he lacked the intent to inflict those injuries.

The court's instructions to the jury included an instruction on the elements of the felony of battery with serious bodily injury, which the court said was a lesser included offense of attempted murder. The court also gave CALJIC No. 17.03, Fourth edition 1979, that directed the jury that counts one and two were in the alternative and if the jury found Toro guilty on one count it was required to find him not guilty on the other.   Consistent with these instructions the jury signed a verdict form which stated Toro was guilty of “BATTERY WITH SERIOUS BODILY INJURY, a lesser included offense to the crime charged in Count I” and the use allegation to be true.   The jury found Toro not guilty on count two.

On documentary evidence submitted by the People the court found the allegation of Toro's prior service of a prison term to be true.   Judgment was entered on the jury verdict and the court's true finding.   The court later sentenced Toro to prison for six years:  the upper four year term for battery with serious bodily injuries plus two additional one year terms for each of the enhancements.

DISCUSSION

Toro argues that since battery with serious bodily injury as defined by section 243(d) is not a lesser included offense of attempted murder (§§ 664/18764187) the court's sua sponte instruction on the lesser offense was prejudicial error.   To fully appreciate the significance of this argument we think it is helpful to consider the purposes which are served by jury instructions and how the competing interests of the People and the defendant have been accommodated by our Supreme Court in such cases as People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Wolcott (1983) 34 Cal.3d 92, 192 Cal.Rptr. 748, 665 P.2d 520 and People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303. Pursuant to these cases we conclude the tensions between a trial court's sua sponte duty to instruct to preserve the defendant's right to a fair trial and the defendant's right to select an all-or-nothing trial strategy precludes the sua sponte giving of an instruction on a lesser related offense.   While we frankly admit we have concerns with this result we believe our intermediate appellate role requires that we direct a judgment of acquittal.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

 It is now well established that under the California constitution a defendant in a criminal case has a right to have the jury determine every material issue presented by the evidence.  (People v. Geiger, supra 35 Cal.3d 510, 519, 199 Cal.Rptr. 45, 674 P.2d 1303;  People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.)   This constitutional mandate requires a degree of thoughtful judicial activism by the trial court so that the jury is fully instructed on the law applicable to the case.  (People v. Wickersham, supra, 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   This means that even in the absence of a request the jury must be instructed on the general principles of law relevant to the issues raised by the evidence (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390) including the giving of instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense are present.  (People v. Wickersham, supra, 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   The jury must “consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties.   The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.”  (People v. Wickersham, supra, 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311.)   Even if defense counsel is unaware of alternative verdicts or incorrectly believes them to be irrelevant to the case, the court's sua sponte instructions will avoid the unwarranted all-or-nothing choice for the jury insuring the verdict is no harsher or more lenient than the evidence merits.  (Ibid.)

The California Supreme Court's commitment to the need for sua sponte instructions was relaxed to some extent in People v. Wolcott, supra, 34 Cal.3d 92, 192 Cal.Rptr. 748, 665 P.2d 520.   In Wolcott the issue was whether the trial court's sua sponte duty extended to consideration of the elements of any enhancement allegation in addition to the elements of the statutory offense.  Wolcott relieved the trial court of this responsibility concluding an enhancement was not an offense;  such a rule might violate a defendant's right to due process;  and it would disrupt the orderly process of a criminal trial.  (Id. at pp. 100–101, 192 Cal.Rptr. 748, 665 P.2d 520.)   Wolcott explained that “even if California could constitutionally consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses, we see no reason to adopt that course.   Not only is the weight of authority against it, but the result would be to confuse the criminal trial.   Present procedure contemplates that the trier of fact first determines whether the defendant is guilty of the charged offense or a lesser included offense, and only then decides the truth of any enhancements.  (See CALJIC No. 17.19 (4th ed. 1979).)   The sentencing judge then decides whether to use the fact found as an enhancement to impose the upper term of the sentence, or to enhance the sentence.  (Cal. Rules of Court, rule 441.)   This orderly, step-by-step procedure would become muddled if evidence of the enhancement must be considered in determining guilt of a lesser offense.”  (Id. at p. 101, 192 Cal.Rptr. 748, 665 P.2d 520, fn. omitted.)

A more expansive view of the court's instructional responsibilities, however, was taken in People v. Geiger, supra, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303.   In Geiger, the California Supreme Court was faced with the question of whether the trial court had prejudicially erred in refusing to instruct the jury, in accordance with defendant's theory of the case, that he could be convicted of a related offense, not necessarily included in the charged offense.   The court held that reversal was required because there was “no reason in law, justice, or common sense why a jury that is not persuaded of the defendant's guilt of the charged offense should not have the opportunity to find him guilty of a lesser related offense where, as here, the lesser offense is closely related to that charged, there is evidence of its commission, and defendant's theory of defense is consistent with such a finding.”  (Geiger, at p. 514, 199 Cal.Rptr. 45, 674 P.2d 1303.)   Thus Geiger imposed a new instructional responsibility on the trial court.   The trial court was obligated to give an instruction on a lesser related offense at the defendant's request.   This conclusion was grounded on Geiger's concern with a defendant's right to due process and that “it would be fundamentally unfair to deny the defendant the right to have the court or jury consider the ‘third option’ of convicting the defendant of the related offense.”  (At p. 520, 199 Cal.Rptr. 45, 674 P.2d 1303.)

Geiger's only qualification to the general rule that due process mandated instructions on related offenses at the defendant's request in appropriate circumstances was that the defendant receive adequate notice to permit him to prepare his defense. (Geiger at p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.)   “That right is not a concern, however, when a defendant requests conviction of a related offense.”  (Ibid.)

Thus motivated by due process concerns, the California Supreme Court has emphasized the need for alertness by the trial court to make sure that it instructs sua sponte on lesser included offenses and, when requested by the defendant, that it instruct on lesser related offenses.

Guided by the foregoing principles we examine the case here restricting our review to count one since Toro was acquitted on count two.²

 When the accusatory pleading describes a crime in the statutory language, as in the present case, the test for a lesser included offense is simply that where the charged “offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”  (People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512, disapproved on other grounds in People v. Pearson (1986) 42 Cal.3d 351, 357–358, 228 Cal.Rptr. 509, 721 P.2d 595;  People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal.Rptr. 453, 627 P.2d 183.)

 Attempted murder requires “(a) the specific intent to commit [murder] and (b) a direct ineffectual act done towards its commission.”  (1 Witkin, Cal. Crimes (1963) § 93, p. 90.)   Battery is “any willful and unlawful use of force or violence upon the person of another.”  (§ 242.)   Thus while battery requires physical touching, attempted murder does not.   Obviously, an attempted murder may be made and successfully prosecuted without the defendant having touched the victim.  (See People v. Lanzit (1925) 70 Cal.App. 498, 233 P. 816; People v. Parrish (1948) 87 Cal.App.2d 853, 197 P.2d 804.)   Consequently battery with serious bodily injury is not a necessarily included offense of attempted murder (People v. Mayes (1968) 262 Cal.App.2d 195, 199, fn. 4, 68 Cal.Rptr. 476, citing In re McCartney (1966) 64 Cal.2d 830, 51 Cal. Rptr. 894, 415 P.2d 782) and the court here erred when it gave an instruction on battery with serious bodily injury as a lesser included instruction.   The error is necessarily prejudicial because in conceptual terms Toro was convicted of a crime that was neither charged in the pleadings nor necessarily included in the charged offenses.  (People v. Lohbauer, supra, 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183.)   In light of Toro's express acquittal on count two and his implied acquittal on count one we must reverse his conviction on the battery with serious bodily injury and instruct the trial court to dismiss the information.  (See People v. Lohbauer, supra, 29 Cal.3d 364, 373, 173 Cal.Rptr. 453, 627 P.2d 183.)

We have used the phrase “in conceptual terms” to qualify our statement that Toro received inadequate notice of the charge of which he was convicted because we are satisfied that as a practical matter Toro received such notice.   A clear statement informing Toro of the pending charges was contained in the enhancement allegation that he inflicted great bodily injuries on Johnston repeated in both counts one and two of the information.   From the time the initial felony complaint was filed until the case went to the jury, Toro knew he was charged with having assaulted Johnston inflicting great bodily injuries on him, the functional equivalent of battery with serious bodily injury.   Nonetheless in spite of our belief that Toro had ample notice, People v. Wolcott, supra, 34 Cal.3d 92, 192 Cal.Rptr. 748, 665 P.2d 520, prevents us from considering the enhancement allegation.   There is the possibility, of course, that on further review the California Supreme Court may choose to reconsider its broad statements in People v. Wolcott, supra, which were made in the context of defining the trial court's responsibility to instruct sua sponte.   Such a reconsideration would entail a modification of the holdings in Wolcott and Wickersham to recognize that although enhancement allegations may be considered for the purpose of defining a lesser included offense, a trial judge's sua sponte obligations do not extend to lesser included offenses created by resort to such enhancement allegations.   Pending such a reconsideration, however, we must reverse because the court instructed sua sponte not on a lesser included offense but rather on a lesser related offense.

People v. Geiger, supra, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 does not permit us to reach a different conclusion.   The holding in Geiger was carefully limited to the trial court's duty to instruct on the lesser related offense only when the defendant made the request.

While we recognize that symmetry in the law is not always essential we think the result here is an anomaly.   Based on due process concerns the trial court would have committed prejudicial error if it had rejected Toro's request for an instruction on the lesser related offense of battery with serious injury.   Because the record does not show Toro made such a request we must hold the court committed prejudicial error when it gave the instruction on its own motion.   If the giving of the instruction at defense counsel's request is required to assure Toro a fair trial (see Geiger, supra ), we would have thought Toro would have received that fair trial when he silently acquiesced when the court gave that instruction on its own motion.   Our discomfort with this incongruous result is probably mild compared to the feelings of the conscientious trial judge who without objection from defense counsel made the independent effort to assure Toro a fair trial by instructing on the lesser related offense.   In our hierarchal system, however, our personal discomfort with a holding and empathy for the trial court is an insufficient basis for ignoring our duty to follow Supreme Court precedent.

DISPOSITION

Judgment reversed with instructions to dismiss the information.

FOOTNOTES

1.   All statutory references are to the Penal Code. When referring to statutory subparts, we omit repetition of the word “subdivision.”

2.   Unfortunately the trial court here precluded the jury from finding Toro guilty on count two because it erred in giving CALJIC No. 17.03. (See p. 756, ante.)   As the Use Note to CALJIC No. 17.03 explains, the instruction is to be given only where two or more counts are based on the same criminal act and the defendant is charged under alternate theories.  (CALJIC No. 17.03 (4th ed. 1979).)   If the charge arises from a single act but involves different offenses entailing different elements of proof a defendant may be properly convicted of both.  (People v. Rocha (1978) 80 Cal.App.3d 972, 975, 146 Cal.Rptr. 81.)   Here, since counts one and two entailed different elements of proof Toro could have been convicted on both counts.   The court then could have sentenced Toro on the greater offense and stayed execution on the lesser under section 654.  (See People v. Niles (1964) 227 Cal.App.2d 749, 755–756, 39 Cal.Rptr. 11.)In this case when the jury returned the verdict of guilty in count one it did not fill in the verdict on count two.   The court then gave CALJIC No. 17.03 and told the jury to “return to the jury room with the verdict forms and the jury instructions and make a decision as to what you want to do as to count two.”   Within 15 minutes the jury returned with its verdicts including a finding that Toro was not guilty of count two.

WIENER, Associate Justice.

KREMER, P.J., and BUTLER, J., concur.