People v. Toro

• Citation: 254 Cal.Rptr. 811,766 P.2d 577,47 Cal.3d 966
• Decision Date: 30 January 1989
• Docket Number: No. S002765,S002765
• Court: United States State Supreme Court (California)
• Parties: , 766 P.2d 577 The PEOPLE, Plaintiff and Respondent, v. Magdaleno TORO, Defendant and Appellant.

Page 811

254 Cal.Rptr. 811

47 Cal.3d 966, 766 P.2d 577

The PEOPLE, Plaintiff and Respondent, v. Magdaleno TORO, Defendant and Appellant.

No. S002765.

Supreme Court of California,

In Bank.

Jan. 30, 1989.

Rehearing Denied March 23, 1989.

[766 P.2d 578] James G. Dunn, San Diego, under appointment by the Supreme Court, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert M. Foster, M. Howard Wayne and Jeffrey J. Koch, Deputy Attys. Gen., for plaintiff and respondent.

KAUFMAN, Justice.

At issue is whether the due process right of an accused to be notified of criminal charges renders invalid a conviction for a lesser related offense when no objection was raised at trial to the jury's consideration of the offense. Because submission of lesser related offenses to the jury enhances the reliability of the factfinding process to the benefit of both the defendant and the People, and because lack of notice is an issue which generally may not be raised for the first time on appeal, we have concluded that when a lesser related offense is submitted to the jury without objection, the defendant must be regarded as having impliedly consented to the jury's consideration of the offense, and that absent other reversible error the judgment of conviction should be affirmed.

FACTS AND PROCEEDINGS

The circumstances of the offense are essentially undisputed. Defendant stabbed his half-brother, Howard Johnston, in the back, side, and chest, the latter wound penetrating the victim's lung. The stabbing took place at the apartment of Becky Orozco, Johnston's girlfriend. Defendant entered the apartment at approximately midnight and approached Alice Duenaz, a woman he had recently begun dating, while Duenaz was seated at a table in the kitchen. Defendant angrily told Duenaz to leave the apartment. When Duenaz refused, defendant became more angry and began pushing the table. Johnston intervened Duenaz ran out of the apartment to telephone the police. Defendant followed but returned within a minute and began kicking Johnston, who was still lying on the floor. Defendant then departed and was arrested the following day.

and attempted to restrain defendant by holding defendant's wrists. Defendant punched Johnston in the face and wrestled [766 P.2d 579] him to the floor. Johnston was on his back, with defendant straddling him, when defendant began to stab Johnston, using a knife with a five- to six-inch blade that defendant had apparently carried with him.

Defendant was charged by information with attempted murder (Pen.Code, §§ 187, 664) ¹ and assault with a deadly weapon ( § 245, subd. (a)(1)). As to each count, it was alleged that defendant intentionally inflicted great bodily injury ( § 12022.7) and that defendant had served a prior prison term ( § 667.5, subd. (b)). As to the attempted murder count, it was also alleged that defendant had used a deadly weapon ( § 12022, subd. (b)).

On defendant's motion, the prior-prison-term allegation was bifurcated for a court trial to follow the jury trial of the substantive offenses. At the main trial defendant presented no evidence in his own defense and in argument to the jury his counsel conceded that defendant had stabbed Johnston and had inflicted great bodily injury upon him, but counsel argued that defendant had not acted with intent to kill or with intent to inflict great bodily injury. Thus counsel's argument impliedly conceded defendant's guilt of at least assault with a deadly weapon.

In addition to the charged offenses, the jury was instructed on, and received verdict forms for, the offenses of attempted voluntary manslaughter ( §§ 192, 664), battery with serious bodily injury ( § 243, subd. (d)), simple battery ( § 242) and simple assault ( § 240), all of which were described in the instructions and verdict forms as lesser included offenses. ² The jury found defendant guilty of battery with serious bodily injury as a lesser offense to the attempted murder charge and not guilty of the alternative charge of assault with a deadly weapon. ³ The deadly-weapon-use allegation was found to be true. In the ensuing court trial, the court found true the prior-prison-term allegation. Defendant's application for probation was denied and he was sentenced to state prison for a term of six years. Defendant appealed from the judgment.

The Court of Appeal reversed the judgment and directed the trial court to dismiss the information. The court concluded that battery with serious bodily injury is not a lesser included offense of attempted murder and that the trial court therefore erred in instructing on it in the absence of a request by defendant. The error was held to require reversal of the conviction because a defendant may not, without his consent, be convicted of a crime which was neither charged nor necessarily included within any of the charged offenses. Because defendant was expressly acquitted of assault with a deadly weapon (see fn. 3, ante ) and, under our prior decisions, impliedly acquitted of attempted murder (see People v. Geiger (1984) 35 Cal.3d 510, 528, 199 Cal.Rptr. 45, 674 P.2d 1303 ["The conviction of a related offense constitutes an Stating it was "satisfied that as a practical matter" the specific offenses charged in the information, together with the great-bodily-injury-enhancement allegation, had provided defendant with adequate notice of the charge of which he was convicted, the Court of Appeal expressed its "discomfort with this incongruous result" and urged this court to reconsider and modify our holdings in People v. Wolcott (1983) 34 Cal.3d 92, 192 Cal.Rptr. 748, 665 P.2d 520 and People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311 so that "enhancement allegations may be considered for the purpose of defining a lesser included offense" but not for the purpose of defining a trial court's obligation to instruct sua sponte on lesser included offenses. We granted the People's petition for review.

acquittal of the charged offense"]; People v. Lohbauer (1981) 29 Cal.3d 364, 372, 173 Cal.Rptr. 453, 627 P.2d 183 ["when a trier of fact convicts a defendant of what it [766 P.2d 580] mistakenly views as a necessarily included offense ... its judgment still constitutes an implied acquittal of the greater offense charged"] ), he could not be retried for either of the charged offenses.

DISCUSSION

As defendant observes, and as the People concede, battery with serious bodily injury is not a lesser included offense of attempted murder.

An offense is necessarily included within a charged offense "if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense, or if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." (People v. Geiger, supra, 35 Cal.3d 510, 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303.) Here the information charging defendant with attempted murder stated that defendant "did willfully, unlawfully, and with malice aforethought attempt to murder Howard Andres Johnston, a human being." Neither the statutory definition of attempted murder nor the charging language of the information required an actual use of force or violence or the infliction of any injury upon the victim's person. Battery, on the other hand, is defined as a "willful and unlawful use of force or violence upon the person of another" ( § 242) and the offense of battery with serious bodily injury requires both the commission of a battery and, obviously, the infliction of serious bodily injury. Because attempted murder, as statutorily defined and as pleaded in the information, may be committed without committing battery with serious bodily injury, the latter is not a necessarily included offense of the former.

Although the count of the information charging defendant with attempted murder contained an enhancement allegation charging that defendant "with the intent to inflict such injury, inflicted great bodily injury upon" the victim within the meaning of section 12022.7, we have held, as the Court of Appeal correctly noted, that enhancement allegations are not to be considered in determining lesser included offenses. (People v. Wolcott, supra, 34 Cal.3d 92, 101, 192 Cal.Rptr. 748, 665 P.2d 520.)

A conviction for a nonincluded offense implicates a defendant's due process right to notice. "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." (Cole v. Arkansas (1948) 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644; see People v. Thomas (1987) 43 Cal.3d 818, 823, 239 Cal.Rptr. 307, 740 P.2d 419.) "A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial." (People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603.)

An accusatory pleading provides notice of the specific offense charged and also of offenses included within the charged offense (People v. Lohbauer, supra, 29 However, an exception to this rule has long been recognized in cases where a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense: "Since a defendant who requests or acquiesces in conviction of a lesser offense cannot legitimately claim lack of notice, the court has jurisdiction to convict him of that offense." (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409; see also, People v. Geiger, supra, 35 Cal.3d at p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.) Consent to conviction of a lesser offense has been found when a...