People v. Serrato

Citation9 Cal.3d 753,512 P.2d 289,109 Cal.Rptr. 65
Decision Date25 July 1973
Docket NumberCr. 16519
CourtUnited States State Supreme Court (California)
Parties, 512 P.2d 289 The PEOPLE, Plaintiff and Respondent, v. Joe SERRATO and Gloria Serrato, Defendants and Appellants.

Stephen E. Tallent, Gary D. Stabile, Don Parris, Robert A. Miller, and Keith K. Hilbig, Los Angeles, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

FILES, * Justice.

Defendants Joe and Gloria Serrato were charged with a felony, possession of a fire bomb (Pen.Code, § 452, subd. (b)), and a jury found them guilty as charged.

In ruling upon defendants' motion for a new trial the court made an order purporting to modify the verdict to a conviction under Penal Code section 415. Proceedings were suspended and the court placed each defendant on two years probation, upon condition that each pay a fine of $125.

Defendants are appealing from the order granting probation, such an order being a judgment for the purpose of appeal. (Pen.Code, § 1237, subd. 1.)

On August 30, 1970, at about 12:55 a.m. sheriff's deputies on patrol in East Los Angeles received a radio report that at a specified address 'there was a blue station wagon with Molotov cocktails in the back seat.' They proceeded to the location and found a blue station wagon. Through a window the officers could see a paint thinner can and three bottles, at least one of which appeared to be a fire bomb, as defined in Penal Code section 452, subdivision (b). 1 The doors and windows of the car were closed and locked. Thereafter, defendants Joe and Gloria Serrato arrived and acknowledged that the car was theirs. Joe was carrying a key to the car.

Subsequent laboratory examination established that one of the bottles, which was glass, contained a flammable liquid with a flash point of 85 degrees Fahrenheit, and otherwise met the statutory definition of a fire bomb. The other two bottles, being plastic, did not come within the statute.

At the trial defendants produced six character witnesses and three other witnesses who testified about other persons who had been in the vicinity of the vehicle before the officers had arrived. Defendants were not called as witnesses and no evidence was produced either to contradict the testimony of the officers or to explain the presence of the bottles in the vehicle.

After the verdict of guilty had been returned, defendants retained new counsel, who made and argued a motion for a new trial upon the grounds of insufficiency of the evidence, errors of law in the trial, misdirection of the jury, and incompetence of trial counsel. Following oral argument of the motion, the trial court put the matter over for one week. At the resumed hearing, the court announced its ruling thus:

'Motion for new trial in this particular matter will be and is denied. In lieu thereof, the defendants Joe and Gloria Serrato will be found guilty of a violation of Section 415 of the Penal Code.'

The Court then addressed some comments to the defendants, and announced that 'the sentence' would be two years of probation, subject to a fine of $125 each.


The first contention made by defendants here is that the trial court had no jurisdiction to convict them of a violation of section 415. 2

Penal Code section 1181, which governs the power of the trial court in ruling on a motion for a new trial, authorizes the trial court to modify the verdict to a lesser degree of the crime found by the jury, or to a lesser crime included therein. 3

The long-recognized test is 'that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' (In re Hess (1955), 45 Cal.2d 171, 174, 288 P.2d 5, 7.) It seems manifestly clear that a person may possess a bomb without engaging in any of the offensive conduct which falls within the ambit of section 415. Indeed, the evidence in this case illustrates the principle. So far as the evidence shows, defendants walked peaceably to the vicinity of their automobile, where they engaged in conversation with the officers. Such evidence as there was on the subject indicates defendants disturbed no one. 4

The trial court's action not only exceeded its statutory authority, it also violated a constitutional principle. '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.' (In re Hess, Supra, 45 Cal.2d at p. 175, 288 P.2d at p. 7.) Since the accusatory pleading alleged nothing more than a violation of Penal Code section 452, subdivision (b), there was no notice to the defendants that they might be convicted of disturbing the peace.

The Attorney General argues that the conviction can be upheld upon a theory of consent, and calls attention to a colloquy which occurred in the trial court immediately after defendants' attorney had argued in support of the motion for new trial:

'THE COURT: Very well. And thank you, counsel.

'May I ask you one further thing:

'Would you concede and be prepared to stipulate that perhaps Section 415 of the Penal Code is a reasonably-related offense under People v. West?

'MR. TALLENT: (Attorney for defendants) I would be prepared to say that's reasonably related, yes.

'THE COURT: Would you be prepared to accept that stipulation, if required, Mr. Watson?

'MR. WATSON: (Deputy District Attorney) Yes, your Honor.

'THE COURT: Very well.'

Section 415 was not mentioned again in the trial record until the court, at a subsequent session, announced its ruling on the motion for a new trial.

People v. West (1970), 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409, referred to by the trial court, offers no support for what the trial court did here. The West case deals with guilty pleas, particularly those arrived at by negotiation between the prosecution and the defense. The opinion points out that notwithstanding the rule that a defendant may not be convicted of an offense not included within the charge, his guilty plea to a 'lesser offense reasonably related to the offense charged' may be valid. The opinion explains at page 612, 91 Cal.Rptr. at page 396, 477 P.2d at page 420: 'A defendant who knowingly and voluntarily pleads guilty or nolo contendere can hardly claim that he is unaware that he might be convicted of the offense to which he pleads; his plea demonstrates that he not only knows of the violation but is also prepared to admit each of its elements.'

Neither the holding nor the reasoning of West authorizes a trial court to convict a defendant of an uncharged offense without his consent. The record contains no showing that either the defendants or their attorneys consented to a conviction of any offense.

Since the conviction of defendants for a violation of Penal Code section 415 was neither charged in the accusatory pleading nor found by the jury nor consented to, it cannot stand. (See People v. Wilson (1969), 271 Cal.App.2d 60, 76 Cal.Rptr. 195.)


It thus becomes necessary to determine what the superior court may do after the judgment is reversed and the case is remanded for further proceedings. It is defendants' contention that they are now entitled to a dismissal or a judgment of acquittal. They argue that the ruling of the trial court, in modifying the verdict amounted to an implied acquittal of the offense charged, 5 so that further proceedings against them on that charge are barred by the constitutional prohibitions against double jeopardy. 6

It is a familiar principle that a defendant who has succeeded in having his conviction set aside impliedly waives any objection to being retried on the charge of which he was convicted. (See Forman v. United States (1960), 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412; People v. Tong (1909), 155 Cal. 579, 102 P. 263.)

The argument of defendants here is based upon another well established rule: that where a trier of the facts finds the defendant guilty of a lesser degree of the offense charged, or of a lesser included offense, there is an implied acquittal of the greater offense. Where the trier of the facts--jury or court--has had a full opportunity to return a verdict on the greater charge, and returns some other verdict, the double jeopardy prohibition of both the federal and state Constitutions bars retrial on the greater offense. (See Price v. Georgia (1970), 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300; Gomez v. Superior Court (1958), 50 Cal.2d 640, 643, 328 P.2d 976; In re Hess, Supra, 45 Cal.2d at pp. 175--176, 288 P.2d 5.)

The same rationale applies when the trier of the facts returns a verdict finding the defendant guilty of an uncharged and non-included offense. (See In re Hess, Supra, 45 Cal.2d at p. 176, 288 P.2d 5; People v. Schumacher (1961), 194 Cal.App.2d 335, 340, 14 Cal.Rptr. 924; People v. Harris (1961), 191 Cal.App.2d 754, 12 Cal.Rptr. 916.)

The argument made by defendants here assumes that, since the trial court is authorized to reweigh the evidence in ruling upon a motion for a new trial, its order purporting to reduce the offense has the same effect as a jury verdict. This premise will not withstand analysis. By the same logic, an order of the trial court setting aside the entire verdict and granting a new trial upon the ground of insufficient evidence would be an 'implied acquittal' of the entire charge.

In order to place the trial court's order in its proper legal context, it is necessary to examine the history and nature of the trial court's powers in passing upon a motion for a new trial.

Although the power of the court to grant a new trial upon the ground of insufficiency of the evidence was a part of the common law (see Estate of Bainbridge (1915), 169 Cal. 166,...

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