*1 Dist., 16529. Second Jan. 1970.] No. Div. One. [Crim. PEOPLE,
THE Plaintiff and Respondent, RASHER,
NOLAN B. Defendant Appellant.
Counsel Merenbach, Dennis G. under the Court of for appointment Appeal, Defendant and Appellant. General, James,
Thomas C. Lynch, William E. Assistant Attorney Attorney General, Hoffman, General, and Ivan for Plaintiff and Deputy Attorney Respondent.
Opinion
LILLIE, J. a Defendant with an assault with committing Rasher in Norman violation of weapon upon Code. A returned with a two verdicts—not of assault “Drawing Exhibiting Deadly Weapon and weapon, or Threatening Angry in violation of 417 Penal § Rude, Manner, Cаlifornia, Code State a lesser included offense of Assault With Defendant was in the Deadly sentenced to Weapon.” imprisonment jail, (civil) filed a ill county whereupon mentally petition the court remanded defendant to for to the county custody delivery hospital thereon. hearing He from the pending judgment. appeals 14, 1968, Rasher; he October is the brother of Norman Defendant him, rifle first at then went to Rasher’s aiming place employment both, Howerton, friend, fired at him and again threatening at Jean Rasher, at Jean he then struck a coffe aimed again a shot which cup; both, Rasher was backed the office and left. slightly out of him. flew and struck when injured cup up pieces plastic a lesser included contends that “section 417 is not Appellant *3 to an instruction offense of Section 245” and it was error prejudicial give that to effect. Torres, 542, 9],
People v. holds 544-545 [312 Code,1 417, that law of Penal as a matter of a violation is not lesser and included in a of section violation Penal Code;2 however, an this is not the issue here. It from really appearing examination the record is of that there evidence of defend overwhelming in ant’s and a loaded rifle guilt exhibiting threatening brandishing Code,3 manner in violation of section real issue is whether not, of an was convicted offense with which he was but properly Court, (Kellett could been v. Superior have 63 Cal.2d Cal. 206]) 409 P.2d formally in the information. Because Rptr. circumstances, of an unusual set of we conclude that he was. Rasher, Norman head for Oil ahd Standard Gas Plant operator Gaviota, at shift; was the 3 to 11:30 around working Jean p.m. p.m. friend, Howerton, a who had asked defendant he to her but accompany refused, his lunch. Rasher was at his desk with his brought back sitting chair; desk the door in swivel was about feet from the to door. eight desk, sack of on the Jean set a thermos of coffee and a sandwiches poured at the end for Rasher and sat down Rasher’s left of the desk cоffee cup in a chair desk shelf. The had of coffee been typewriter cup placed on and Rasher started to top typewriter eat. Jean heard a car drive said, “I and up guess his mind and changed decided to come [defendant] looked up.” saw defendant at the They up door standing holding rifle; Rasher’s Rasher, he was it at Rasher. who had the rifle pointing about who, self-defense, provides: “Every 1Section 417 person except in in the presence any firearm, person, any other unloaded, draws or exhibits whether loaded or or any whatsoever, rude, deadly weapon manner, other angry in a or or who manner, any unlawfully in any fight uses the quarrel same or of a mis demeanor.” “(a) provides pertinent part: Every 2Section 245 who person commits an assault person deadly weapon by any another with a or instrument means great likely produce injury force : bodily punishable . . .” appears 3While it factually we deem here irrelevant it alsо from evidence that the violation of section here was included offense within assault with a Wilson, weapon. 66 Cal.2d Muszalski, 611 [67 in the with shells bedroom; was loaded he knew it it in his 20 years, kept back hammer he saw the pulled chamber. When but not magazine de- in the defendant, magazine”; are shells “Do realize there he said to you hold the did not answered, “Yes, gun Defendant I know it’s loaded.” fendant barrel, but sighting” would be along on the shoulder as aiming person to be of gun bit.” Rasher knew it down the arm a type held “sоmewhat can be knocked back because it with the hammer dangerous “exceptionally “Norman, Rasher said, who are you quoting”; off.” Defendant off go the gun Then defendant he did not know what he meant. pointed told him of his started to out Rasher get Jean and asked her who she “quoting.” defendant told from defendant but chair he could take the rifle thinking him; down, then defendant sat him to sit down or he would shoot Rasher know, Norman, said, at him again the rifle “Did you pointed Norman, I am to shoot frame . . . going Communists are trying you. but.the defendant was to shoot him to Rasher that going you.” appeared *4 off from instant defendant the “he the away” trigger pulled gun .and pulled a testified that defendant is good Rasher and hit the coffee Rasher cup. shot; to- hunted and target shooting and they grew together practiced up “I think he at the As the bullet took aim coffee gether; deliberately cup.” struck the he went over backwards the scared Rasher and explosion cup chair; defendant told him tо down or the swivel as he started to get stay up floor, defendant he would shoot him. Rasher was still on the “jacked While shell into the Jean had been another chamber.” Rasher thought injured and started to the at her and to him but defendant go gun again pointed said, “Please, told her “to set back down or he was to shoot her.” Jean going [defendant], testified, Nolan don’t do that.” She “He was just [defendant] kind back and forth from Norman to I with the the going gun,” waving Rasher; back and forth between her and then defendant there stood a gun bit, them, little backed out of the office the rifle at the sighed, pointing it, still back car hammer on in his and left. Rasher estimated that the got incident took about 10 or 15 minutes. Defendant did not testify. uncontradicted evidence offered foregoing People proves almost, if not case of a loaded firearm perfect exhibiting brandishing 417, Code, in a manner in Penal a mis- violation threatening v. Coffey, demeanor. 67 Cal.2d
Defendant’s in relation to the trial leading procеedings conduct Code, which now of the instruction on section Penal giving connection, at the had its him from error in that genesis urging precludes when he submitted to trial before evidence was taken any inception the issues of which or less defined the court his instructions more requested of lesser CALJIC 115 convict trial. included (jury may They [rev.] includes offense) a to the effect that assault with “necessarily weapon rude, in a or lesser offense of a weapon exhibiting manner,” and diminished intent relating capacity. other angry specific were and the court the submission of these instructions placed By these theories of defense. on notice defendant that he intended to rely In reliance thereon the cause was tried both sides as though Code, Penal a be of either a violation of section felony, could convicted Thus, Code, misdemeanor, a or or section acquitted. prosecu- DaFoe; Rasher, Jean Howerton and Officer the defense tion called Norman Wells, that a who testified consisted of the of Dr. testimony psychiatrist, intent to the time of the defendant could not form the shooting specific because he was from chronic commit a a suffering battery upon person him from a full awareness of his which schizophrenia prevented having such actions at the time and he was delusional thinking governed by intent; that and on rebuttal the he could form rational way Lambert, called Dr. who testified that at the time of the psychiatrist, illness; offense defendant was ill and it how- mentally schizophrenic ever, the fact that a man suffers from does not necessarily schizophrenia mean that he does not have the to commit a or form a crime capacity specific trial, intent to commit was not until the conclusion of the after battery. defendant, all evidence was in and before the just jury arguments to take full of Dr. Wells’ and submit the case wishing advantage testimony to the on the issue of assault with a solely guilt deаdly weapon, to abandon diminished capacity, sought thereof on defense of acquittal *5 his instruction thereon. “lesser offense” and withdraw the theory requested the of the At this arose out of argument lengthy propriety point on the issue whether instructions. The vacillated considerably judge specific the trial he had for a violation section 245—before intent was of required element; after he reversed that ruled that intent was an argument specific that the cause had bеen tried then when it was out to him ruling, pointed that assault with a on that he reversed himself theory, again finally ruling and the defense of was a crime that intent deadly required specific weapon of diminished was a valid one. Then believing testimony capacity diminished and that the Dr. Wells would his defense of capacity support him, the would defendant tried to take from consideration jury’s jury acquit (§ 417), and the court “not to the offense moved give any misdemeanor 417”; the motion was denied and defendаnt’s re- instruction regarding instruction thereon was on the court’s own motion. After given requested defendant with a found de- of assault deadly weapon, jury acquitting fendant in' a drawing guilty exhibiting weapon manner in violation of section 417 and in accord with the instruction “a lesser included offense of assault with a In the of the light deadly weapon.” evidence we do not think that in defendant assault with a acquitting
803 failed to the standard of felt the to come jury up weapon proof but rather as an act found him the misde- felony, leniency meanor. the determination of his case was more favorable to Actually than defendant the evidence warranted. 417, Code, little makes difference that the violation of section Penal designated as lesser included offense for the evidence jury fully the misdemeanor conviction whether or not it be a “lesser included
supports offense of assault with a Inasmuch as defendant was ac deadly weapon.” him, óf the the issue arises quitted singlе (felony) charged against whether the could find him of the misdemeanor which properly was not In the of the fact formally that defendant charged. light properly have 245) could been with (§ both a and the misdemeanor felony Court, (§ 417) in (Kellett 822, the same v. Superior information 63 Cal.2d 366, 206]); 827 409 because of defendant’s Cal.Rptr. [48 conduct at outset, the trial as proceeded defendant could have been though con crime; victed of either and the fact of the evidence of de ovеrwhelming fendant’s guilt misdemeanor offense and that from the very beginning he was informed of the case he would fully be meet the trial expected and was in no manner misled in his defense or as to making any theory defense trial, which he himself into we conclude that the injected effect of all of the had (even in the trial court at the proceedings conclusion though and tried to objected offense”) abandon the “aof lesser was to an informal amendment of accomplish thе information to include 417, Code, of violation of which was fully supported evidence, although original information. v. Francis, 199, 66, v. 591]; People Cal.2d 74-75 Cal.Rptr. 71 [75 Asher, 885]; People Taylor, v. Cal.App.2d Cal.Rptr. [78 Wilson, 51]; Cal.App.2d Cal.Rptr. Cal.App.2d [78 Powell, 195]; People v. 62-63 887- Hensel, *6 Blunt, see also 205 Cal. Cal.App.2d 440].) Defendant court came to that he was also to defend Rptr. knowing the misdemeanor he it against introduced as an issue at the charge, having trial; outset of the he had full and did fact to offer such de opportunity fense as he counsel, had and he was thus there was no represented by capable Blunt, láck of due Cal. process. Cal.App.2d Rptr.
In People v. Hensel, 233 865], [43 Cal.Rptr. defendant a, Code,
was with a violation of section 288 Penal but charged ultimately 647a, found of a violation of and dis- (lewd section misdemeanor guilty that, held while was not a in a The court this solute conduct public place). a, Code, section 288 Penal and included offense within lesser could not that he was found of the misdemeanor although complain therewith, not where defendant charged himself asked court expressly (act to reduce his offense to a violation of section 650V2 out- openly thus to the court an offense that rages public decency), tendering charged him with conduct that the information public thereby consenting impliedly be treated as it had been amended add the con- to element of though public Said the (1965) duct. court at “In v. Leech 839-840: pages 745], сonviction, of based on a judgment Code, verdict of of a of section jury violation 417 of the Penal was reversed because information had a violation of section 245 charged and we concluded that the offense denounced section 417 was not a by However, included offense within that denounced section 245. by Leech, the trial court had submitted the case únder both to the sec- tion 245 and section 417. There is in the record of that case to nothing to, indicate that the defendant had or had consented a submission requested, of (a 245) offense other than the any violation of section single Code, which was virtue of sections of pleaded. By court, this action of trial not been invited or having acquiesced by defendant, was before the court for review. But in the case at appellate bench, the case had been heard the trial court without a the inter- jury; (a) subdivision jection discussion be- running part counsel, tween court and to arrive аt a determination designed just case on its own facts. with the particular consent of particular Clearly, defendant, could, the information at that have been amended to juncture, add, count, as an additional a charge (a) subdivision of section violating had, earlier, 647. Defendant asked the court to ‘reduce’ his offense expressly 650V2, ato violation of section consented that the thereby impliedly information be treated as that offense had been though to. charged pled But, insofar as defendant, section 650Vi could be also it intro- applicable thus, himself, duced the element of tendered to the court publicity. Having, conduct, for action offense which him with he cannot ‘public’ court, desired, as far as he as the complain unwilling go adopted basis for its decision another section which also added statutory to the information that same element of language conduct. public conclude that effect “We had in the trial cоurt in proceedings this case was to an informal amendment of the information accomplish include a which was evidence supported although *7 information; and that defendant original allowed the case to knowingly on the as thus amended. this judgment Having, proceed information
805 method, secured an of the not now acquittal original charge, may in repudiate which he proceedings participated.” Blunt, 200 People [50 v. 241 Cal.App.2d from case its Distinguishing 417], Powell, Cal.Rptr. 884 [46 v. 440], Peoрle Cal.App.2d Cal.Rptr. 865], the court Hensel, Cal.Rptr. [43 v. People Cal.App.2d 60, said, Wilson, at page Cal.Rptr. [76 v. People Cal.App.2d offenses, which were for lesser included convictions “In those cases 195]: that the on the were theory proceedings such thing, no really upheld information, charging amendments’ of were ‘informal question that document.” included offense not originally the lesser elements of circumstances the defendant or under certain conduct Where the informа that consented deemed to have he is impliedly created himby had been which he has been convicted crime of as be treated though tion bewill the evidence upheld. where the conviction supported pleaded, Francis, v. 74-75 Cal.Rptr. 71 Cal.2d In Taylor, was instructed be that the jury it immaterial of the light foregoing appears Code, in was a lesser a violation of section that offense; reversible error. was not the instruction on section 417 cluded The is affirmed. judgment
Wood, J.,P. сoncurred. the un- stems from reluctance THOMPSON, J. dissent. My I reluctantly not charged—brandishing of the offense of the doubted guilt appellant record and reading dissent by my My impelled weapon. law. decisional the applicable
Facts (assault Code section 245 with violation of Penal Appellant based of defense was diminished with His capacity weapon). Fanning, 641]. instruction counsel During proceedings, appellant’s a lesser included deadly weapon the effect offense brandishing coun awith deadly within the of assault weapon. Appellant’s it be given. the instruction requested sel then withdrew instruction, and the jury the withdrawn erroneously nevertheless gave court *8 been so instructed found having of the “lesser offense.” appellant The evidence he if was amply supports appellant’s guilt, charged. properly the
While and I read the record alike the majority extent of the fore- I am unable to with going, the agree statement fact the majority’s (1) partiсulars: record discloses following My no reading “lengthy on the argument” instruction here total discussion pertinent—the record; less than a the I (2) find occupies page whatsoever nothing in the record to the statement the that case was tried the support that be could found the either offense appellant or the charged offense of brandishing because weapon having appellant’s pro- an instruction on the latter crime. To the trial posed contrary, the judge trial, stated (record 176): “I think the unmistakably pp. testimony in this case would indicate to me it is a [brandishing deadly weapon] included offense here.” necessarily Appeal
Issue on The issue on as (but framed the not trial court appeal majority counsel) concerns the of the rule of amendment of an scope implied bench, In the context of the record it is accusatory case pleading. as: does action of defendant in and then properly phrased proposing effect an withdrawing instruction that offense not charged a lesser included offense alone amend the standing impliedly accusatory that offense? In should be pleading charge my query opinion answered in negative.
Lesser Included Offense
was
with a
section 245
Appellant
violation of
Code
(assault with a deadly
He was convicted of a violation of Penal
weapon).
Code section 417
in a rude or
(exhibiting
weapon
manner). The latter offense is not
included within the former.
Leech,
Torres,
court,
P.2d
trial
therefore lacked
juris
diction to convict
(In
violation of Penal Code section 417
appellant
Hess,
5])
re
Implied Amendment of be amended to informally An accusatory may pleading with ex- where amendment accomplished originally charged *9 Francis, Cal.2d 66 (People v. 71 thе accused. consent implied of press bench the case at 199, 591].) The raised by question Cal.Rptr. [75 to constitute counsel of the conduct of the sufficiency appellant’s concerns consent. implied re a lesser to charge Informal amendment of an accusatory pleading following: been found in the not offense has lated but included necessarily of his the has the matter transcript the defendant submitted upon Where lesser of of the not to the finding guilt and has hearing оbjected preliminary Francis, 66, Cal.2d 74 v. 71 (People [75 included offense. not but Powell, 591]; v. 887 People 450 236 Cal.App.2d Cal.Rptr. the offense 417].) the defendant was found of guilty Cal.Rptr. [46 Where but not included and the was reduced to a lesser him against charged charge Hensel, (People a new v. 233 his on a motion for trial. offense at initiative Blunt, 865]; v. 241 Cal.Rptr. Cal.App.2d [43 Cal.App.2d trial court 440].) Where the defendant Cal.Rptr. requested [50 not the offense but of lesser but not charged him of find Taylor, v. 51].) Cal.Rptr. included offense. Cal.App.2d but the lesser not included offense instruction on jury proposed Where trial defendant was not withdrawn was the court. by given by see also (People Mayes, Asher, The decisions that an has been holding accusatory pleading informally a lesser but not included contain amended one common charge element—the of defendant in the which he procedure acquiescence was convicted of the lesser crime case was submitted time the for That decision. element the case at bench. While lacking appellant’s had an instruction on counsel “lesser included offense” which proposed treated a violation as of Code section 417 erroneously included within of of violation Penal Code section instruction was withdrawn before the was instructed. Appel- also It lant’s counsel to the the instruction. giving specifically objected cannot, therefore, be said that in the fol- procedure appellant acquiesced the trial court. lowed by
It is conceivable that an informal amendment an accusatory pleading can from conduct result of a defendant trial which causes during part to be the matter tried that he is with a lesser but not included offense in the indictment or information. formally charged I can find such no conduct the record of the case at bench. That there was confusion at the trial as emphasized by majority inescapable. confusion, however, was not caused had to do appellant nothing with the instruction on Penal giving Code section 417 the trial rather judge. product uncertainty requirement specific intent as an element of the crime of assault with a and the deadly weapon *10 of diminished aas availability defense capacity to a of that crime.1 The instruction which resulted jury in a verdict aof crime neither nor charged included in a crime flowed not necessarily from the confusion or from a of trial bui from an adoptеd appellant erroneous trial the law.2 conception judge
The majority opinion a defendant who adopts proposition pro- instruction act jury by that alone consents poses amendment implied of the accusatory pleading with the encompass theory compatible instruction even heif withdraws it before the is jury actually instructed if even the court does not instruction in rely upon framing I issues case. view that doctrine-as a undesirable extension pоtentially to the rule of existing informal amendment.
The California, if it becomes the law of proposition, must cause inevitably counsel for defendants in criminal cases to hesitate before a jury proposing instruction. The doctrine sponte sua instructions mandatory already of defense places premium passivity counsel who may hope for reversal a mistake through of the trial judge failing .mandatory give instruction. is There no substitute for active revers- advocacy рreventing, ible error. The of a doctrine which further adoption encourages passivity active in the area discourages instructions advocacy may salvage so, however, this one tenuous criminal conviction. does at the real risk of reversal of future cases.
I would reverse the judgment. by conflicting 1The trial court was posed Appeal faced with the Court of dilemma Fanning, decisions. v. Cal.Rptr. holds that 641] specific intent weapon is an element of the crime оf assault with a and that Morrow, capacity charge. People is diminished a defense to the Cal.Rptr. undoubtedly contra. conflict in the decisions will be resolved 551] case, Supreme granted our Court which hearing has in a similar Seals *(Cal.App.) 710. judge pages 2The trial states at of the record of trial: think the “I testimony this case would indicate to it [a 417] me violation of Code section is a included offense here.” opinion Supreme 1969. The hearing Court on November granted *A 993]. reported in Cal.3d court of that