People v. VorbachPeople v. Vorbach
Opinion
Richard Harold Vorbach was charged by information in count I with burglary (
Vorbach alleges all the elements of assault with a deadly weapon (count II) were not proven, the evidence does not support either conviction, and assault with a deadly weapon is not a lesser included offense of robbery.
This is a tale of the risks of employment in the illiсit drug trade. Donald Alexandrian (the victim in counts I and II) testified Vorbach arrived at his house and demanded drugs. When Alexandrian refused, Vorbach left returning minutes lаter with a friend. At knifepoint, Vorbach obtained $150 and a watch from Alexandrian. Alexandrian testified Vorbach erroneously believed he had “burned” оne of Vorbach’s friends by selling him low grade heroin and thus was recouping a bad investment. In the course of this transaction, Vorbach struck Alexandrian with his fist.
The defense to this incident consisted of the testimony of Vorbach and his friend who each described purchasing $100 in worthless heroin from Alexandrian, going to his house to obtain a refund, receiving their money back and leaving. Vorbach denied displaying a knife or striking Alexandrian.
Jane Berthiaume (the victim in counts III through V) testified she had, over a period of time, purchased meat from Vorbach, and in conversation told him she was on methadone. Vorbach arrived one day at her house, and after a friendly conversation, demanded heroin (unknown to Vorbach she had nine balloons of heroin in an envelope in her hand at the time). When she denied having heroin, Vorbach threatened her with a knife and eventually brutally beat her. He then found the heroin and fled. Berthiaume admitted she used heroin, but denied being a dealer.
The defense to these charges consisted of overwhelming evidence Berthiaume dealt in heroin and had been a long time supplier to Vorbach and his friends. Vorbach testified he had purchased $150 in heroin from Berthiaume on credit, but when he found out the heroin was worthless, he refused to pay. He speculated he had been accused оf robbing and beating her to cover up an affair she was having while her boyfriend was in jail. He denied the robbery and assault.
The Elements of Assault With a Deаdly Weapon on Donald Alexandrian Were Shown
Vorbach, relying on the definition of an assault with a deadly weapon in
People
v.
Roshid
(1961)
Alexandrian’s testimony Vorbach held the knife in a threatening manner and demanded money is suffiсient to satisfy the requisite intent to use the knife.
(People
v.
Fain
(1983)
The Trier of Fact Judges the Credibility of Witnesses
Vorbach argues that as a matter of law, the trial court could not have believed the testimony of Alexandrian and Berthiaume. To support this contention, Vorbach points out what admittedly is damaging impeachment evidence. However, thеre is no point in repeating it here. “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’
(People
v.
Mosher
(1969)
The testimony of both victims was discredited in part. The trial court found no robberies occurred. However, their testimony, notwithstanding what clearly was substantial evidence impugning their credibility, was sufficient and believable so that the trial court could conclude, as it did, Vorbach assaulted both victims with a knife. 3
“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 оffense.”
(People
v.
Wolcott
(1983)
Wolcott noted as to the first test, a robbery can be accomplished, even where a weapon is utilized, withоut an assault; i.e., where the element of force or fear is directed at someone other than the victim. Thus to commit robbery, not all elеments of assault with a deadly weapon must be accomplished.
With regard to the second test, Wolcott reasons an enhancement cannot place the defendant on notice of an uncharged offense since an enhancement is not a crime but merely an additional punishment. In fact, an enhancemеnt is considered by the trier of fact only after the charged, substantive offense is found to be true. As Wolcott postulated, a defendant may well have an absolute defense to robbery and thus be unconcerned the accusatory pleading further alleges the use of a gun. For that reason the сourt held under the notice test assault with a deadly weapon is not a lesser included offense of robbery notwithstanding the allegation of the usе of a weapon.
The mere fact the weapon here is a knife does not change the reasoning under either test. Vorbach had a defense to robbery which the trial court accepted by acquitting him of both the robbery and burglary charges. It does not satisfy due process to assume that as to the charge involving Alexandrian, Vorbach had notice the court would look to the pleadings to find he had nevertheless сommitted an assault with a deadly weapon.
Conclusion
Vorbach is entitled to an acquittal as to the conviction of assault with a deadly weapon in count II. Since the court sentenced appellant to the mid term of three years on count IV, imposing a two-year sentence on сount II to be served concurrently, the judgment as to count II is reversed and the
Trotter, P. J., and Wallin, J., concurred.
Notes
All references are to the Penal Code unless otherwise noted.
“A11 that is required to sustain a conviсtion of assault with a deadly weapon is proof that there was an assault, that it was with a deadly weapon, and that the defendant intended tо commit a violent injury on another. (
A reading of the record discloses the trial court concluded Vorbach assaulted both victims to obtain what he believed to be his own property. .