People v. Wolcott

• Decision Date: 07 July 1983
• Docket Number: Cr. 22295
• Citation: 192 Cal.Rptr. 748,34 Cal.3d 92,665 P.2d 520
• Court: California Supreme Court
• Parties: , 665 P.2d 520 The PEOPLE, Plaintiff and Respondent, v. Charles Harry WOLCOTT, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Robert Russell JOHNSTON, Defendant and Appellant.

Page 748

192 Cal.Rptr. 748

34 Cal.3d 92, 665 P.2d 520

The PEOPLE, Plaintiff and Respondent, v. Charles Harry WOLCOTT, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Robert Russell JOHNSTON, Defendant and Appellant.

Cr. 22295.

Supreme Court of California In Bank.

July 7, 1983.

Quin Denvir, State Public Defender and Fred F. Ruegg, Novato, under appointment by the Supreme Court, Dorothy P. Young, under appointment by the Court of Appeal, and George L. Schraer, Deputy State Public Defender, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien and William D. Stein, Asst. Attys. Gen., Kenneth C. Young, W. Eric Collins, Robert R. Granucci, Frances Marie Dogan and Paul D. Gifford, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Defendants Robert Johnston and Charles Wolcott bring a consolidated appeal from judgments of conviction for robbery, attempted robbery, and other crimes. They raise several contentions, which we resolve as follows:

(1) We reject Johnston's contention that the trial court should have instructed sua sponte that assault with a deadly weapon is a lesser included offense in a charge of robbery enhanced by use of a firearm. As we explain, the contention fails on three grounds: assault is not a lesser included offense in robbery; a "use" enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses; and in any case one can "use" a firearm in a robbery without employing it to assault the robbery victim.

(2) We reject Johnston's contention that the trial court erred in imposing a three-year enhancement under Penal Code section 667.5 because of a prior prison term for a violent felony. Notwithstanding language in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396 discussing the interplay of section 667.5 and section 1170.1, the clear and unambiguous provisions of section 667.5 standing alone require us to classify robbery with firearm use as a violent felony for the purpose of an enhancement based upon a prior prison term.

(3) We find substantial evidence to support the finding that Wolcott intentionally inflicted great bodily injury on Jessie King, the victim of an attempted robbery. Wolcott intentionally shot King, and although King's injuries were fortunately less serious than is typical of gunshot wounds, they were substantial enough to justify the jury's finding. We observe no error in the jury instructions on this issue.

1. Summary of Facts

About 12:45 a.m. on August 4, 1979, Johnston and Wolcott entered the Valeno Club, a bar in Vallejo. After ordering beers, they accused Della Stennett, the bartender, of stealing a dollar. While Wolcott searched his pocket for the missing dollar, Johnston walked to the door, turned, drew a gun, and announced "This is a hold up." He ordered Stennett to give him the money in the cash register, and she handed him $300 or $400. Johnston then locked Stennett and three customers in the cooler.

Johnston and Wolcott left the club and went to the house of Muriel Wolcott, defendant Wolcott's mother, where they showed Muriel the guns and the money. They told her that they had robbed a bar, Johnston taking the money while Wolcott acted as the lookout.

A month later, on September 3, 1979, defendants attempted a second robbery. Johnston entered the King's Market, a grocery store in Benecia, while Wolcott got into a cab waiting outside the store. Johnston came out, talked to Wolcott, and took his place in the cab. Wolcott entered the store and asked Jessie King, the proprietor, for a half pint of gin. When King rang the sale on the register, Wolcott drew a pistol and ordered King to leave the cash drawer open. Wolcott then laid the gun on the counter, perhaps to pick up the money, and King tried to take the gun. The two men struggled for it, with Wolcott holding the handle with his finger on the trigger. Wolcott pulled the trigger several times, but King got his hand between the hammer and the firing pin so the gun could not fire. As they continued to struggle, King fell to his knees and lost his grip on the gun. Wolcott again pulled the trigger. A bullet struck King in the calf, and fragments lodged in his arms and legs. We discuss King's injuries in greater detail in part 4 of this opinion where we consider the question of whether King sustained "great bodily injury" within the meaning of Penal Code section 12022.7.

Wolcott left the store without taking anything and entered the cab. He pointed the gun at Claude Jones, the driver, and ordered him to "drive where I want you to go." Johnston asked Jones for money, but Jones said he had just started work and had no cash. When defendants noticed police cars pursuing the cab, they ordered Jones to drive to a school yard where they got out and tried to flee. After an exchange of shots, defendants were subdued and arrested.

In connection with the August 4 incident, the jury found both defendants guilty of the robbery of Della Stennett and the false imprisonment of Stennett and the customers of the Valeno Club. ¹ With regard to the events of September 3, it found Wolcott guilty of attempted robbery of King, and assault with a deadly weapon on King; it also determined that Wolcott intentionally inflicted great bodily injury during the commission of the attempted robbery and the assault. The jury found both defendants guilty of the attempted robbery of Jones and the false imprisonment of Jones (as a lesser included offense in the charge of kidnaping for robbery), but acquitted them on a charge of assault on a police officer. Finally, the jury found that Johnston personally used a firearm in the robbery of Stennett and the false imprisonment of the Valeno Club customers; Wolcott personally used a firearm in the assault and attempted robbery of King and the false imprisonment of Jones.

In sentencing Johnston, the court treated the robbery of Stennett as the principal offense. It imposed the upper term of five years, plus two years enhancement for use of a firearm (Pen.Code, § 12022.5) and three years for service of a prior prison term for a violent felony (Pen.Code, § 667.5). The court imposed concurrent sentences for all other crimes.

In sentencing Wolcott, it used the conviction for attempted robbery of King as the principal offense. Wolcott received the upper term of three years for that offense, plus two years enhancement for use of a firearm (Pen.Code, § 12022.5) and three years for intentional infliction of great bodily injury (Pen.Code, § 12022.7). The court imposed a consecutive sentence of one year (one-third of the middle term) for the robbery of Stennett, and concurrent sentences on the other counts.

2. Assault With a Deadly Weapon is Not a Lesser Included Offense Under a Charge of Robbery With an Enhancement For Use of a Firearm.

Defendant Johnston was convicted of the robbery of Della Stennett and the attempted robbery of Claude Jones. While Johnston does not deny that he took money at gunpoint from Stennett, and attempted to take money from Jones, he claims that because of diminished mental capacity, exacerbated by alcohol, he lacked the intent essential to the crimes of robbery or attempted robbery. Relying on that evidence, Johnston contends that the court should have instructed sua sponte on the uncharged lesser crime of assault with a deadly weapon. Such an instruction would be proper only if that uncharged crime is necessarily included in an accusatory pleading charging robbery with a firearm use enhancement.

An uncharged crime is included in a greater charged offense if either (a) the greater offense cannot be committed without committing the lesser, or (b) the language of the accusatory pleading encompasses all the elements of the lesser offense. (People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390; People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456.) Johnston's argument depends on a combination of both alternatives. First, he must show that simple assault is necessarily included within the crime of robbery. Then, to add the element of a deadly weapon, he must show both that an enhancement is part of the accusatory pleading for the purpose of determining included offenses, and that a "use" enhancement signifies that the defendant used a deadly weapon in committing the assault. His argument fails at each step.

We recognize that numerous California cases have asserted generally that robbery is a combination of assault and larceny. (E.g., People v. Fries (1979) 24 Cal.3d 222, 229, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Rist (1976) 16 Cal.3d 211, 220, 127 Cal.Rptr. 457, 545 P.2d 833; People v. McGreen (1980) 107 Cal.App.3d 504, 509, 166 Cal.Rptr. 360; People v. Salas (1978) 77 Cal.App.3d 600, 607, 143 Cal.Rptr. 755; 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; People v. Foss (1927) 85 Cal.App. 269, 272, 259 P. 123.) Such language may serve as a thumbnail description of robbery, but it lacks the precision and exactness required in determining whether one offense is necessarily included in another.

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; People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603.) Thus we must inquire in the present case whether robbery, the greater offense, can be committed without necessarily committing an assault. If it can, assault is not a lesser included offense in robbery.

Penal Code section 240 defines assault as "[a]n unlawful attempt,...