THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO SOLIS, Defendant and Appellant.
No. B244487
Second Dist., Div. Eight
Jan. 6, 2015
232 Cal.App.4th 1108
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Shawn McGahey Webb and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BIGELOW, P. J.—In People v. Eid (2014) 59 Cal.4th 650 [174 Cal.Rptr.3d 82, 328 P.3d 69] (Eid), the Supreme Court ruled that a defendant who was charged with one offense was properly convicted by a jury of two lesser
In the appeal before us today, the issue is whether a defendant who was charged with one offense was properly convicted by a jury of two lesser related offenses, where neither of the two lesser related offenses was included in the other. We hold that two convictions for lesser related offenses may properly stem from one charged offense.
FACTS
After midnight, defendant and appellant Francisco Solis went to the home of his former girlfriend, Judith M., and climbed through a window into a bedroom where Judith and her children were sleeping. Solis began stabbing Judith with a screwdriver. Before he stopped, Solis had stabbed Judith about 20 times. Judith suffered wounds to her neck, arm, chest, face and hands, including a life-threatening wound to her carotid artery. As he stabbed Judith, Solis made comments to the effect that he had warned her “something bad was going to happen,” and that she “deserved to die.” Later the same day, Solis went to the police and gave a taped interview in which he confessed that he attacked Judith, but stated he had been drinking beer and was “out of it” at the time of the incident. Solis also wrote by hand a statement implicating himself.
The People filed an information charging Solis with attempted willful, deliberate and premeditated murder (count 1;
The case was tried to a jury. On the attempted premeditated murder charge, the trial court instructed on the elements of the charged offense. Further, with
“If all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. Now I will explain to you which charges are affected by this instruction:
“Second degree attempted murder is a lesser crime of attempted murder charged in count one.2
“Attempted voluntary manslaughter is a lesser crime of attempted murder charged in count one.
“Mayhem is a lesser crime of attempted murder charged in count one.
“Assault with a deadly weapon is a lesser crime of attempted murder charged in count one.
“It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime. [...] [...]
“3. If all of you agree that the People have not proven beyond a reasonable doubt that the defendant is guilty of the greater crime and you also agree that the People have proven beyond a reasonable doubt that he is guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty of the lesser crime.”
The court instructed the jury on the elements of the identified lesser crimes, and provided verdict sheets to the jury for all of the lesser crimes. As
During deliberations, the jury sent a note to the trial court: “Can the defendant be [convicted] of two lesser crimes?” With both counsel‘s express agreement, the court responded to the note by advising the jury that its question was not clear, and referring the jurors to the jury instructions on greater and lesser crimes as quoted above, specifically noting CALCRIM No. 3517.
Shortly thereafter, the jury returned verdicts finding Solis not guilty of attempted murder as charged in count 1, not guilty of “second degree attempted murder” as a lesser offense of that charged in count 1, and not guilty of attempted voluntary manslaughter as a lesser offense of that charged in count 1. The jury returned verdicts finding Solis guilty of mayhem and assault with a deadly weapon, both as lesser offenses of that charged in count 1. As to both of the convictions, the jury found true allegations that Solis personally used a deadly weapon and personally inflicted great bodily injury. The jury further found Solis guilty of first degree burglary, with another person, not an accomplice, present during its commission as charged in count 2, and not guilty of making criminal threats as charged in count 3. After the jury returned its verdicts, Solis admitted the prior strike convictions, prior serious felony convictions, and the prior prison term convictions.
The trial court denied Solis‘s Romero3 motion and sentenced him to an aggregate term of 36 years to life in state prison comprised of a third strike term of 25 years to life on count 1 for mayhem, plus 10 years for the prior serious felony convictions, and one year for the deadly weapon enhancement. It struck the great bodily injury enhancement. The court also designated assault with a deadly weapon as count 1, and imposed another 25-year-to-life term. The court added an additional one year on that count for the great bodily injury enhancement, then struck the deadly weapon enhancement. The court ordered the sentence stayed on the “second” (our term) count 1 conviction for aggravated assault pursuant to
I. The Jury Properly Convicted Solis of Two Lesser Related Offenses Stemming from One Charged Offense
We initially issued an opinion determining that conviction of two lesser related offenses—each of which was a strike—was unauthorized where only a single strike offense was charged. Thereafter, the California Supreme Court transferred this case back to our court with directions to vacate our decision and to reconsider it in light of the Eid case. As we have indicated, in Eid, the court determined that defendants may properly be convicted of more than one lesser included offense stemming from a single count, so long as the lesser offenses are not included in one another. The Eid case and a second, newly decided case from the California Supreme Court, People v. Vargas (2014) 59 Cal.4th 635 [174 Cal.Rptr.3d 277, 328 P.3d 1020] (Vargas), now steer our analysis in the opposite direction of our prior opinion. In Vargas, a case implicating the Three Strikes law, the court held that “when faced with two prior strike convictions based on the same act, ... the trial court [is] required to dismiss one of them.” (Vargas, supra, 59 Cal.4th at p. 640.)
Solis contends the Eid and Vargas cases should not change our previous analysis. He maintains the jury did not have authority to convict him of two lesser related serious felony offenses stemming from a single charge of attempted murder and that we must strike his conviction for assault with a deadly weapon and the related enhancements. Specifically, Solis argues
A. Instruction on Lesser Related Offenses
We start our discussion with a brief synopsis of the rules governing instruction on lesser related offenses. In the now overruled case of People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303] (Geiger), the California Supreme Court determined that a trial court is required to instruct on lesser offenses when the defendant requests it, if the offense is closely related to the charged offense and the evidence provides a basis for finding the defendant guilty of the lesser, but innocent of the charged offense. Further, the court indicated that the rule barring conviction of both a greater and lesser offense holds true as to lesser related offenses. In short, “[t]he conviction of a [lesser] related offense constitutes an acquittal of the charged offense.” (Id. at p. 528.)
All parties agree that the crimes for which Solis stands convicted—assault with a deadly weapon and mayhem—are not lesser included offenses of attempted premeditated murder. In addition, neither party contends assault with a deadly weapon is a lesser included offense of mayhem, or vice versa. (See People v. Ausbie (2004) 123 Cal.App.4th 855, 863, fn. 5 [20 Cal.Rptr.3d 371], overruled in part by People v. Santana (2013) 56 Cal.4th 999, 1010-1011 [157 Cal.Rptr.3d 547, 301 P.3d 1157].) With this framework in mind, we turn now to the Eid decision to guide our resolution of the issues presented.
B. The Eid Decision
In Eid, defendants Reynoldo Eid and Alaor Oliveira were charged with two counts of the kidnapping for ransom of Ana and Iago Ribeiro. (
In addition to being instructed on the crime of kidnapping for ransom, the jury was also instructed on four lesser included offenses. The jurors were informed that they could find the defendants guilty of a lesser crime if they found the defendants not guilty of the charged crime. The jury found the defendants not guilty on the kidnapping for ransom charges, but guilty of two lesser offenses—attempted extortion and misdemeanor false imprisonment. The defendants did not object to being convicted of the two lesser offenses, but argued for the first time on appeal that they could not be convicted of two lesser included offenses from one greater offense. (Eid, supra, 59 Cal.4th at p. 655.) The Court of Appeal agreed and struck the convictions for misdemeanor false imprisonment. The California Supreme Court granted review and reversed the Court of Appeal‘s decision. (Ibid.)
The Supreme Court determined that multiple convictions for lesser included offenses, when not included in each other, are statutorily authorized under
The court reiterated the rationale for instructing a jury on lesser included offenses: “A jury instructed on only the charged offense might be tempted to convict the defendant ” ‘of a greater offense than that established by the evidence“’ rather than acquit the defendant altogether, or it may be forced to acquit the defendant because the charged crime is not proven even though the ” ‘evidence is sufficient to establish a lesser included offense.“’ [Citation.] Instructing the jury on lesser included offenses avoids presenting the jury with ‘an “unwarranted all-or-nothing choice“’ [citation], thereby ‘protect[ing] both the defendant and the prosecution against a verdict contrary to the evidence’ [citation].” (Eid, supra, 59 Cal.4th at p. 657.)
The court then determined that “[t]he purposes underlying the rule requiring instruction on lesser included offenses are served by allowing the jury to convict on more than one lesser offense if, in the jury‘s determination, such convictions more accurately reflect the defendant‘s culpability in light of the
The Supreme Court also indicated the appellate court improperly relied on the decision in People v. Navarro (2007) 40 Cal.4th 668, 674-675 [54 Cal.Rptr.3d 766, 151 P.3d 1177] (Navarro) for the conclusion that defendants could be convicted of only one lesser included offense. (Eid, supra, 59 Cal.4th at pp. 658-659.) In Navarro, the Supreme Court interpreted
The court also rejected the argument that
We start by acknowledging that
Solis contends the reasoning underlying Eid is not applicable in this context because instruction on lesser related offenses promotes inaccurate factfinding, not the “truth-ascertainment” function underlying instruction on lesser included offenses. He claims this explains the Supreme Court decision in Birks to overrule Geiger. Solis is mistaken in his analysis. The Birks court found instruction on lesser related offenses led to unreliable results because, under the mandatory instruction rule enunciated in Geiger, a criminal defendant had a unilateral entitlement to instructions on lesser related offenses. The court stated: “The Geiger rule can be unfair to the prosecution, and actually promotes inaccurate factfinding, because it gives the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove.” (Birks, supra, 19 Cal.4th at pp. 112-113.) Specifically, “[w]here lesser related offenses are concerned, the Geiger rule ... may actually permit and encourage a one-sided use of the ‘gambling hall’ strategies we have consistently denounced. If the evidence suggests the possibility of a related lesser offense neither charged nor tried by the prosecution, the defendant either may demand that instructions on that offense be given, or may raise notice objections which, if successful, will prevent such instructions from being given at the prosecution‘s behest.” (Birks, at p. 128.) The decision in Birks did not hold that instruction on lesser related offenses alone led to inaccurate results; it instead observed that a defendant‘s unilateral right under Geiger to demand instruction on lesser related offenses was unfair to the prosecution. This is why the court left open the possibility, as we have noted, for instructions on lesser related offenses when both parties agree to them. In fact, the Supreme Court in Birks expressly approved of the instructional procedures employed at Solis‘s trial.
We also find unpersuasive Solis‘s argument that his conviction for assault with a deadly weapon should be stricken because he did not have notice of or agree to be convicted of two uncharged offenses.
In Eid, the California Supreme Court found the defendant was given notice of the charges because “a charged offense puts a defendant on notice of all uncharged lesser included offenses (People v. Reed (2006) 38 Cal.4th 1224, 1227 [45 Cal.Rptr.3d 353, 137 P.3d 184]) . . . .” (Eid, supra, 59 Cal.4th at p. 660.) Here, Solis‘s request that the jury be instructed with the lesser related offenses likewise gave him notice of the charges against him. “[A]n exception to [the clearly established rule that a defendant has a due process right to notice of the charges] has long been recognized in cases where a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense: ‘. . . a defendant who requests or acquiesces in conviction of a lesser offense cannot legitimately claim lack of notice, [and] the court has jurisdiction to convict him of that offense.’ ” (People v. Toro (1989) 47 Cal.3d 966, 973 [254 Cal.Rptr. 811, 766 P.2d 577], dictum on another point disapproved in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3 [76 Cal.Rptr.2d 239, 957 P.2d 928].) Solis unequivocally agreed to have the trial court instruct on every lesser related offense that was read to the jury. Under well-established precedent, he cannot complain of a lack of notice of the offenses of which he was convicted.
Solis‘s real complaint is that he should have been given notice of the number of convictions he faced. We disagree. First, Solis did not ask the trial judge to clarify that the jury could convict him of only one lesser related offense when responding to the jury‘s direct question on the point. This may be considered implied consent to conviction of the two lesser related convictions he suffered. But aside from that, and most persuasive to us, is that in Eid, the California Supreme Court rejected the claim that the defendants were entitled to “notice of the number of convictions they faced if that number could be greater than one.” (Eid, supra, 59 Cal.4th at p. 660.) The court explained: “[D]efendants marshal no authority for this claim or any argument that outweighs the truth-seeking purpose of instructing and authorizing convictions on multiple lesser included offenses. Defendants do not contend, for example, that their lack of notice as to the number of possible convictions on lesser included offenses implicated the ‘Three Strikes’ law or resulted in a sentence greater than what could be imposed upon conviction of the charged greater offense.”4 (Id. at p. 660.) We see no reason to depart from this Supreme Court precedent in the context of lesser related offenses.
In Vargas, supra, 59 Cal.4th 635, the Supreme Court held that “when faced with two prior strike convictions based on the same act, ... the trial court [is] required to dismiss one of them.” (Id. at p. 640.) There, the defendant had two prior strikes—carjacking and robbery—which were based on the same act of taking the victim‘s car by force. (Ibid.) The trial court counted each prior conviction separately to sentence the defendant to a 25-year-to-life prison sentence. The Supreme Court determined that treating such a defendant “as a third strike offender . . . was inconsistent with the intent underlying both the legislative and initiative versions of the Three Strikes law.” (Vargas, supra, 59 Cal.4th at p. 645.) The court explained “the voting public would reasonably have understood the ‘Three Strikes’ baseball metaphor to mean that a person would have three chances—three swings of the bat, if you will—before the harshest penalty could be imposed. The public also would have understood that no one can be called for two strikes on just one swing.” (Id. at p. 646.) It concluded that “[t]reating [the defendant] more harshly than that—i.e., as a third strike offender—when she has committed but one prior qualifying act, upsets this tiered penalty structure, skipping the second step.” (Id. at p. 647.)
Applying the analysis in Vargas to this case, it is apparent that if Solis is subsequently convicted of a serious or violent felony, he would not be eligible for treatment as a third strike offender based on the two convictions he incurred in this case. Solis‘s convictions arise from the same single act of stabbing the victim some 20 times. This is not a case in which there was an initial assault followed by the attacker‘s return 30 minutes later to inflict further injury, which is not considered a single act. (See People v. Finney (2012) 204 Cal.App.4th 1034, 1036-1038 [139 Cal.Rptr.3d 484].) In sum, a subsequent sentencing court could not use Solis‘s two convictions separately
III. Separation of Powers
Solis next argues that only one of his two convictions may stand because “permitting the jury to make two crimes out of one charge violated [the] separation of powers doctrine.” We disagree.
” ‘[T]he powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by [the state] Constitution.’ ” (Birks, supra, 19 Cal.4th at p. 134.) As relevant to Solis‘s current case, the prosecution of crimes is recognized as an executive function, vesting in our state‘s prosecutors the discretion to control and determine whom to charge and what charges to bring. (Ibid.) Thus, under the separation of powers doctrine, our state‘s courts must avoid interfering with the executive‘s prosecutorial functions, including the exercise of its broad charging discretion. (People v. Cortes (1999) 71 Cal.App.4th 62, 79 [83 Cal.Rptr.2d 519]; see Birks, supra, 19 Cal.4th at pp. 134-136 [separation of powers concerns may arise when a prosecuting authority‘s exclusive power to bring charges
When one branch of the state government trammels on a core function assigned to another branch, a court has the authority to declare the usurper‘s activities to be invalid. (Cf. Obrien v. Jones (2000) 23 Cal.4th 40, 78 [96 Cal.Rptr.2d 205, 999 P.2d 95] [generally discussing remedies for violations of separation of power].)
The Birks court rejected Geiger‘s rule of mandatory instruction on lesser related offenses in part because it implicated the separation of powers. The court found that requiring instruction on lesser related offenses undermines the prosecutor‘s exclusive executive discretion to choose which charges to bring from “among those potentially available,” which “arises from ’ “the complex considerations necessary for the effective and efficient administration of law enforcement.” ’ ” (Birks, supra, 19 Cal.4th at p. 134.) It necessarily follows that if the prosecution agrees to submit lesser related offenses to the jury, as it did here, the prosecutor‘s discretion is unaffected, and there is no separation of powers issue. Indeed, requiring the parties’ agreement to instruction on lesser related offenses was the antidote suggested by Birks to avoid a separation of powers problem. (Id. at p. 136, fn. 19.)
We also reject Solis‘s extensive reliance on Navarro, supra, 40 Cal.4th 668, for a different conclusion regarding the separation of powers doctrine. As the California Supreme Court in Eid indicated, Navarro dealt with different statutes not relevant to the issues presented here. (Eid, supra, 59 Cal.4th at pp. 658-659.) In addressing the narrow question presented in Navarro, the Supreme Court did not rely on or even discuss the separation of powers doctrine. Instead, the Supreme Court ruled that under the statutes which delineate the powers of an appellate court to modify the judgment in a criminal case (see
IV. Section 654
Last, Solis contends
Solis‘s argument is based on the final sentence of
V. Romero
Solis contends the trial court abused its discretion in denying his Romero motion to dismiss two of his three prior strike convictions. At trial, Solis admitted he suffered two strike convictions in April 1983 for violations of
In Romero, the state Supreme Court ruled that the Three Strikes law did not remove a sentencing court‘s discretion to dismiss a defendant‘s prior strike or strikes to achieve a punishment in the furtherance of justice. (Romero, supra, 13 Cal.4th at p. 504.) In People v. Williams (1998) 17 Cal.4th 148 [69 Cal.Rptr.2d 917, 948 P.2d 429] (Williams), the Supreme Court explained that a sentencing court‘s exercise of discretion to dismiss a prior strike is to be guided by the following standard: May the defendant, in light of his or her current crime, and his or her criminal history, background, character, and prospects, be deemed “outside the spirit” of the Three Strikes law, in whole or in part, and, hence, be treated as though he or she had not suffered the prior strike conviction. (Williams at p. 161.) When the factors cited in Williams, supra, 17 Cal.4th 148 “manifestly support the striking of a prior conviction and no reasonable minds could differ[,] the failure to strike would constitute an abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 376-378 [14 Cal.Rptr.3d 880, 92 P.3d 369].)
We do not find an abuse of discretion in Solis‘s current case. Solis was convicted in the instant case of mayhem, and the jury found true two enhancements to that crime—that he personally used a deadly and dangerous weapon, and that he inflicted great bodily injury under circumstances involving domestic violence. He was also convicted of first degree burglary with a
Solis contends his sentence violates the Eighth Amendment‘s prohibition against cruel and unusual punishment unless his Romero motion is granted. We disagree. When examining whether the length of a sentence violates the Eighth Amendment, a court may only apply a ” ‘narrow proportionality’ ” analysis. (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 123 S.Ct. 1179].) We do not find Solis‘s sentence to be so disproportionate to his crime and his life‘s criminal history that it violates constitutionally prescribed sentencing limits.
DISPOSITION
The judgment is affirmed.
Rubin, J., and Flier, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied April 22, 2015, S224442.