*1 analysis by defective, however, This defendant is because it appeared merely assumes that because defendant to be immediately following question, "abnormal” the acts in he eyes necessarily must have been the law. Such insane the proposition logical is not and would not constitute a work- insanity. Obviously judge able definition of trial the expertise court-appointed relied on psychiatrists the two the rejected legally that defendant was not insane and con- the trary opinion put forward Kramer. Dr. not our func- sup- tion to overturn such a which has substantial port evidence, in the even if we would not have ruled in the way (People Redrick, same 290 at trial level. Cal.Rptr. 823, 359P.2d People Flores, supra, 764, where a convic- reviewing court, tion was overturned relied on controlling defendant, In appellate here. that case the every proven court found that fact at trial was consistent with the reasonable conclusion that the defendant was inno- therefore, question and, cent was one of law for the court. judgment (order granting probation) is affirmed. Stephens, Acting J., Aiso, J., P. concurred. Dist, No. 14485. Second Div. Five. Jan. 28, 1969.]
[Crim. PEOPLE, Respondent, THE v. WILLIAM HARPER, Appellant.
ROGER Hunter, appointment John under of Appeal, J. Roberts, Carmack & Hansen, Brown for Defendant and Appellant. *2 Attorney Lynch, General, Thomas C. Elizabeth Miller and Attorneys Deputy General, Katz, F. for
Robert
Respondent.
Acting
STEPHENS,
By information,
P. J.
defendant was
charged
of
459 of the Penal
with a violation
section
Code
pleaded
(burglary).
guilty,
trial,
waived jury
hearing transcript
on
and submitted the cause
the preliminary
plus
testimony.
not guilty
The defendant was found
of the
his
necessarily
charge
burglary,
guilty of “a lesser and
of
but
Code,”
in
459 Penal
criminal tres-
offense
Section
included
602,
(l) of the Penal
in
of section
subdivision
pass,
violation
Appeal
judgment.
from the
is
Code.1
required
is
facts since
need not state the
reversal
We
trespass. (§ 692,
crime of
subd.
law, the
criminal
for error of
being
lesser included offense3 in a
Code)2 not
a
(1), Pen.
of the Penal Code.4
charge
of section 459
of violation
occupation
property
requires
of real
trespass
Criminal
entry.
occupy
To
means a non-
as the
structures, as well
or
type
possession.
v. Wilkinson
of
transient, continuous
Supp. 906,
Cal.App.2d
Superior Court) 248
Dept.,
(App.
authority
us that
no
to convince
It needs
except
most transient of tres-
burglar has no intention
a
in Penal Code section
passes.
a further element
There is
guilty
finding
offense neces-
of a lesser included
of defendant
1The
charged
(In
sarily
finding
guilty
re
of not
of the
offense.
constitutes a
Cal.App.2d
5]; People
171,
Hess,
45 Cal.2d
" Every
willfully
(l)
person
who
subdivision
:
section
2Penal Code
occupying
any
(V) Entering
trespass
real
either:
. . .
commits
owners,
any
his
of the
property
agent,
kind
the consent
or
of
without
structures
guilty
possession thereof;
a
person
of
in
...
is
lawful
or the
’’
misdemeanor.
necessarily
offense
which occurs when an
3A
offense is that
committing
necessarily
another offense.
without
cannot be committed
Greer,
App.2d Supp. 906, Cal.Rptr. 261], I deem it unneces- to in decide this case whether sary section 602, subdivision (l), applies to vacant lands. Numerous other subdivisions of section 602 language are couched applicable to vacant lands. Both their applicability interplay with (l) should considered, be if we are question. to resolve this appear would appropriate to (1) Finding observe: defendant *3 guilty of violating though even that section is not a lesser and offense, necessarily burglary charge. operated acquittal as an v. (1961) Harris 191 Cal.App.2d 754, 759 (2) No charged presently new midemeanor can be as the record lapse year shows a of more than one even from the date of the filing of the (Pen. current information Code, §801), thereby jurisdictional disclosing a bar. Rehman (1964) v. 62 Cal.2d Cal.Rptr. 139 396 913]; P.2d v. McGee 1 Cal.2d 613 (3) Failure to charge other felonies misdemeanors, any, arising if out of currently the same transaction in the filed information also filing bars the Kellett charges of such at this 654; time. Superior v. 822 prosecutor Unless the present can facts rendering these observations inapplicable, the information should be dismissed. Lopez, Cal.App.2d 93, 5Cf. 441]; 103 [57 Mitchell, Cal.App.2d 318, Cal.Rptr. 533]; People Brown, Cal.App.2d Supp. 915, Cal.Rptr. 662]; People 916].