People v. McGreen

Decision Date26 June 1980
Docket NumberCr. 18498
Citation166 Cal.Rptr. 360,107 Cal.App.3d 504
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Brian Francis McGREEN and Robert Vincent Race, Defendants and Appellants.

Robert E. Freitas, Orrick, Herrington, Rowley & Sutcliffe, San Francisco, for defendant and appellant McGreen.

Quin Denvir, State Public Defender, B. E. Bergesen, III, Deputy State Public Defender, San Francisco, for defendant and appellant Race.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth, Jay M. Bloom, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

FEINBERG, Associate Justice.

Appellants McGreen and Race were charged in three counts as follows: Count I robbery of one Kurt Flickner (Pen.Code, § 211), 1 Count II attempted robbery of a gasoline station (§ 664), and Count III burglary of a gasoline station (§ 459). 2 Each count contained an allegation that in the commission of the alleged offenses, appellant McGreen did personally use a firearm in violation of section 12022.5. Each count contained a further allegation that in the commission of each alleged offense, appellant Race was armed with a firearm in violation of section 12022, subdivision (a).

McGreen was convicted of all three counts as charged. Race was acquitted of count one and convicted of the other two counts.

The trial court reduced the burglary conviction as to each appellant to burglary in the second degree and stayed imposition of sentence thereon.

We shall set forth the evidence as it becomes relevant to the issues raised. We discuss each appellant's contentions separately.

Appellant McGreen

There is no question but that McGreen committed the acts alleged in the three counts of the information. His defense was solely diminished capacity. There are four areas of claimed reversible error which we now proceed to discuss.

A. The trial court had a sua sponte duty to instruct on assault with a deadly weapon (§ 245, subd. (a)) as a lesser included offense of the charges of robbery and attempted robbery, each with an allegation of a use clause, which duty the trial judge failed to discharge.

1. The Robbery Count I

Both sides agree that the question of a lesser included offense may arise in one of two ways: either, as a matter of law, the lesser offense is included in the greater offense charged or when the charge as actually pleaded necessarily includes the lesser offense. (People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456.)

Appellant concedes that assault with a deadly weapon is not, as a matter of law, a lesser included offense of robbery but he does contend that when, as here, a robbery is charged with the further allegation that in the commission of the offense the robber used a firearm, assault with a deadly weapon is a necessarily included offense.

Respondent argues that assault with a deadly weapon is not necessarily included in robbery because (1) simple assault (§ 242), as a matter of law, is not necessarily included and, therefore, assault with a deadly weapon, a fortiori, is not included, and (2) in any event, the allegation of the use clause is an enhancement and enhancements cannot be considered in determining whether the pleading encompasses a lesser included offense. We disagree.

(a) Robbery is "the felonious taking of personal property is the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) It "is a combination of theft and assault" (People v. Salas (1979) 77 Cal.App.3d 600, 607, 143 Cal.Rptr. 755, 759; "(robbery) is a crime which is both larcenous and assaulting"; People v. Rist (1976) 16 Cal.3d 211, 220, 127 Cal.Rptr. 457, 463, 545 P.2d 833, 839; see also People v. Fries (1979) 24 Cal.3d 222, 227, 155 Cal.Rptr. 194, 594 P.2d 19.)

Thus, in Salas, supra, the court stated: "robbery includes the lesser offense of simple assault." (77 Cal.App.3d at p. 607, 143 Cal.Rptr. at p. 759; accord People v. Sutton (1973) 35 Cal.App.3d 264, 270, 110 Cal.Rptr. 635; People v. Guerin (1972) 22 Cal.App.3d 775, 781-782, 99 Cal.Rptr. 573, cert. den., 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105.) Accordingly, we hold that simple assault, as a matter of law, is necessarily included in robbery.

(b) We agree that since the amendment to section 211, subdivision (a), effective July 1, 1977, eliminating degrees of robbery, assault with a deadly weapon is not, as a matter of law, a lesser included offense of robbery. 3 Thus, the question becomes what is the effect of the prosecution pleading and enhancement allegation such as here: "that at the time of and in the commission of the (robbery) . . . McGreen personally used a firearm . . . within the meaning of section 12022.5?"

A line of cases, the seminal case being People v. Orr (1974) 43 Cal.App.3d 666, 117 Cal.Rptr. 738, holds "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." (Id., at pp. 673-674, 117 Cal.Rptr. at p. 742; accord People v. Benjamin (1975) 52 Cal.App.3d 63, 71-72, 124 Cal.Rptr. 799; People v. Wilson (1976) 62 Cal.App.3d 370, 374, 132 Cal.Rptr. 813; People v. Salas, supra, 77 Cal.App.3d 600, 607, 143 Cal.Rptr. 755; People v. Cole (1979) 94 Cal.App.3d 854, 861-862, 155 Cal.Rptr. 892.)

Benjamin relied on Orr; Wilson relied on Benjamin and Orr; Salas relied on Orr; Cole relied on Wilson, Benjamin and Orr.

Simply put, the rationale of these decisions is that section 12022.5 provides for an enhancement, i. e., increased punishment, for felonies; the section does not create any substantive offense. Therefore, it cannot give rise to any necessarily included offense.

Justice Holmes wrote, "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis." (Hyde v. United States (1912) 225 U.S. 347, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114 (dis. opn. of Holmes, J.).)

We have undertaken that "further analysis" and respectfully disagree with Orr and the cases that follow it.

Orr states that its holding is a "logical consequence" (43 Cal.App.3d at p. 673, 117 Cal.Rptr. 738) of the rule in People v. Henry (1970) 14 Cal.App.3d 89, 91 Cal.Rptr. 841.

In Henry the defendant was charged with and convicted of first degree robbery and with using a gun in the commission thereof in violation of section 12022.5. He asserted that he could not suffer the additional punishment under section 12022.5 because that was a lesser included offense of armed robbery and double jeopardy prevents conviction of both. The Henry court pointed out, inter alia, "that section 12022.5 does not describe an offense. . . . Section 12022.5 merely provides additional punishment for an offense in which a firearm is used." (Id., at p. 92, 91 Cal.Rptr. at p. 842.) In other words, there is no criminal charge of "using a gun." We agree with Henry but Henry only held that there is no double jeopardy issue when the punishment for an underlying felony is increased because a firearm was used in the commission of that felony. There is nothing in Henry to suggest that a charge of robbery with a section 12022.5 use clause does not necessarily include the offense of assault with a deadly weapon. Nor does it follow logically that because section 12022.5 is an enhancement provision and not the legislative creation of a substantive offense, the allegation thereof as a part of some substantive criminal charge may not give rise to a necessarily included substantive offense. We conclude that Orr is not a "logical consequence" of Henry ; it is a deductive leap therefrom.

We now essay our own analysis. Section 969d provides in relevant part: "Whenever a defendant used a firearm as recited in Section 12022.5, the fact that the defendant used a firearm may be charged in the accusatory pleading. This charge, if made, shall be added to and be a part of the count or each of the counts of the accusatory pleading which charged the offense." It is clear, as clear can be, that section 969d makes a use allegation a part of the substantive criminal charge pleaded.

In People v. Marshall, supra, 48 Cal.2d 394, 309 P.2d 456, 462, it was established that an offense, not necessarily included as a matter of law, may become such because of the "specific language of the accusatory pleading." (Id., at p. 405, 309 P.2d at p. 462.)

Applying that principle, we reason as follows:

i. Simple assault is a necessarily included offense of robbery as a matter of law (see cases cited above) ii. The allegation that McGreen used a firearm in the commission of the robbery is a part of the charge of robbery (§ 969d).

iii. The "use" allegation is part of the "specific language of the accusatory pleading." (Marshall, supra.)

Therefore, the charge of robbery with a "use" allegation encompasses assault with a deadly weapon.

We can find only one California case that gently but indirectly suggests that Orr and its offspring may be wrong. In People v. Gray (1979) 91 Cal.App.3d 545, 154 Cal.Rptr. 555, the court said in speaking of Orr and the cases that followed it, "Penal Code Sections 954, 969c, 969d and 12022.7 (which govern the lodging of enhancement charges) indicate that the firearm use and bodily injury allegations become part of the allegations of the information which was not discussed in either Wilson or Orr, supra." (At pp. 556-557, fn. 14, 154 Cal.Rptr. at p. 562.)

We do find support in United States v. Johnson (D.C. Cir. 1973) 475 F.2d 1297. There, the court held under the Washington, D.C. code that assault with a deadly weapon was included within the crime of robbery when the robbery was alleged to have been committed by a person armed...

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