People v. Scheidt

• Citation: 231 Cal.App.3d 162,282 Cal.Rptr. 228
• Decision Date: 13 June 1991
• Docket Number: No. F013872,F013872
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Henry Carl SCHEIDT, Defendant and Appellant.

Page 228

282 Cal.Rptr. 228

231 Cal.App.3d 162

The PEOPLE, Plaintiff and Respondent, v. Henry Carl SCHEIDT, Defendant and Appellant.

No. F013872.

Court of Appeal, Fifth District, California.

June 13, 1991.

Certified for Partial Publication ^*

[231 Cal.App.3d 164] Frances Pinnock, under appointment by the Court of Appeal, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Wanda Hill Rouzan, Deputy, Sacramento, for plaintiff and respondent.

OPINION

ARDAIZ, Acting Presiding Justice.

Henry Scheidt was convicted by jury of possession of a sawed-off shotgun (Pen.Code, § 12020, subd. (a)) ¹ and possession of a concealable firearm ("a shotgun") as a felon (§ 12021.1). During trial he admitted having served a prior prison term within the meaning of section 667.5, subdivision (b). At sentencing, the court imposed a prison term and sentenced appellant to the middle-base term (two years) for possession of the sawed-off shotgun and the middle-base term (two years) for being a felon in possession of a firearm; the term pursuant to section 12021.1 was stayed (§ 654). The court further imposed a one-year enhancement for service of a prior prison term for a total fixed term of three years.

[[-]] In addition to his other arguments, ² appellant contends the convictions on both counts cannot stand because the language of the pleading alleging the section 12021.1 violation encompassed a violation of section 12020, in that both counts involved the same shotgun. Therefore, he reasons, the separately charged section 12020 conviction must be reversed. We affirm.

FACTS

DISCUSSION

I.-II.

[[-]]

III. Was Appellant Properly Convicted of Both (1) Separately Charged Possession of a Sawed-off Shotgun and (2) Being a Felon in Possession of a Concealable Firearm Where Possession of a Sawed-off Shotgun also was Encompassed Within the Pleading of Being a Felon in Possession of a Concealable Firearm?

Appellant contends that because count II of the information alleged a violation of section 12021.1 in language encompassing a violation of section 12020, this court must reverse his conviction on count I for a separately charged violation of section 12020. ⁶

Contrary to appellant's contention, here we hold that only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.

The gist of appellant's argument comes from his initial interpretation of the generally used term "necessarily lesser included offense" and the rule repeated in People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763, that multiple convictions may not be based on necessarily lesser included offenses.

We recognize lesser included offenses arise under different circumstances. A trial court may have a duty to instruct on a lesser included uncharged offense for purposes of the jury resolving the defendant's culpability, if any. (People v. Marshall (1957) 48 Cal.2d 394, 406, 309 P.2d 456; People v. Barrick (1982) 33 Cal.3d 115, 133-135, 187 Cal.Rptr. 716, 654 P.2d 1243.) A defendant charged with an offense, may be convicted of that offense or any statutorily lesser included offense, but not the greater and the lesser offenses. (People v. Moran, supra, 1 Cal.3d at p. 763, 83 Cal.Rptr. 411, 463 P.2d 763.)

In Barrick, our Supreme Court addressed the issue of what constitutes a lesser included offense for purposes of instructing a jury as to uncharged lesser offenses. Our high court distilled two tests for determining whether a crime is a necessarily included offense of another crime.

"Generally, two tests are used to determine whether in a particular case a crime is a necessarily and lesser included offense of another crime. The first test looks to the elements of the crime: if, as a matter of legal definition, the greater offense cannot be committed without concomitantly satisfying the elements of the lesser offense, the latter offense is a necessarily lesser included offense. Secondly, a crime is a necessarily lesser included offense if it is within the offense specifically charged in the accusatory pleading. [Citations.]" (People v. Barrick, supra, 33 Cal.3d at. p. 133, 187 Cal.Rptr. 716, 654 P.2d 1243.)

In effect, the first test of Barrick addresses the commonality of statutory elements between the two offenses and the second test addresses the accusatory "nature" of the pleadings.

The parties do not dispute that such statutorily lesser included offenses could not be the basis of multiple convictions. Under the test of Barrick, both parties agree, and we concur, section 12021.1 does not necessarily include the elements of section 12020. A review of the elements of the respective statutes reveals that a person can violate either statute without violating the other. The question remains whether offenses categorized as lesser included because of the language of a pleading should result in the same bar against multiple convictions as statutorily lesser included offenses.

This issue was acknowledged but not resolved by our Supreme Court in People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595. In Pearson, the court held that the defendant was properly convicted of both sodomy and lewd conduct based on a single act of sodomy. The court rejected Pearson's argument that his lewd conduct conviction was improper because it was necessarily included within the sodomy. The court explained:

"The first step in defendant's argument is apparently correct. Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [83 Cal.Rptr. 411, 463 P.2d 763] ... ['If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed']; People v. Bauer (1969) 1 Cal.3d 368, 375 [82 Cal.Rptr. 357, 461 P.2d 637] ... ['double conviction' is prohibited 'where one offense is necessarily included in another']; People v. Smith (1950) 36 Cal.2d 444, 448 ...; People v. Greer (1947) 30 Cal.2d 589, 604 .... We recently affirmed this policy in People v. Cole (1982) 31 Cal.3d 568 [183 Cal.Rptr. 350, 645 P.2d 1182] ..., in which the defendant was convicted of robbery and grand theft for the same act. We held the grand theft conviction must be reversed 'because it is a lesser necessarily included offense of the crime of robbery.' (Id., at p. 582 [183 Cal.Rptr. 350, 645 P.2d 1182].)

"Assuming arguendo that defendant correctly states the rule prohibiting multiple convictions based on necessarily included offenses, his contention must still fail because its second step is unsupported. 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' [Citations.] Although the issue is not free of doubt, we believe that under this test the offense of lewd conduct is not a lesser included offense of statutory sodomy." (Id., 42 Cal.3d at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595, emphasis original.)

The court noted:

"Section 1159 provides that a defendant may be found guilty of 'any offense, the commission of which is necessarily included in that with which he is charged....' We are aware that the meaning of the phrase 'necessarily included' offense as used in section 1159 has been expanded beyond the definition set forth for such offenses in Greer. The expanded definition has been described as follows: 'Where a defendant is charged with one or more offenses and from the language of the pleading the commission of one charged offense necessarily includes the commission of another, the latter is a "necessarily included offense," even though its elements are not within the legal elements of the greater offense as defined by statute.' [Citations.] Nonetheless, while an expanded definition of necessarily included offenses may be appropriate in the context of section 1159, there appears little reason to enlarge the meaning of the same phrase as it is used in other situations. We need not answer the question here, however, because the information did not include sufficient language to make the convictions for lewd conduct necessarily included offenses under this expanded test." (Id., at p. 356, fn. 2, 228 Cal.Rptr. 509, 721 P.2d 595.)

In addressing the question, we note that the explanations behind barring multiple convictions for lesser included offenses and instruction on lesser included offenses spring from different rationales.

"When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: 'Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.] ..." (People v. West (1970) 3 Cal.3d 595, 612 [91 Cal.Rptr. 385, 477 P.2d 409].)

"As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense. [Citations.] However, even when the charge does not so specify, the requisite notice is nonetheless afforded if the lesser offense is 'necessarily included' within the statutory definition of the charged offense; in such event conviction of the included offense is expressly authorized (§ 1159)...." (People v. Lohbauer (1981) 29 Cal.3d...