Criminal Appeal

Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally constitute provocation to reduce a homicide to manslaughter.

While it is a correct statement of the law that words cannot establish a defense to battery, words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and therefore may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.

In light of these principles, the Sixth District Court of Appeal reversed the defendant's second degree murder conviction, concluding that the combination of the instruction given and the prosecutor's argument to the jury improperly "removed consideration of appellant's confrontation with his wife, and her insulting response, from the jury's evaluation of provocation and its impact on appellant's state of mind." Because consideration of these highly relevant factors may have prevented the jury from convicting the defendant only of voluntary manslaughter, the Court of Appeal deemed the errors prejudicial.

The unanimous opinion was authored by Justice Franklin D. Elia.

People v. Le, no. H030808 (Cal.Ct.App. (6th Dist.) filed 12/27/07)

Possession Of Cocaine Base For Sale Not Necessarily Lesser Included Offense Of Selling Cocaine Base

The defendant in this case was convicted for both selling cocaine base in one count and possessing that same rock for sale in a second count. A panel of the Third District Court of Appeal held that the possession for sale count was not a lesser included offense of the selling count and therefore concluded that the defendant could be convicted of both offenses. (The sentence on the possession for sale count, though, was properly stayed under Penal Code section 654 ,which bars multiple punishment for one indivisible course of conduct.)

As a threshold matter, the Court of Appeal stated that courts should not consider the evidence actually adduced at trial in determining whether one offense is necessarily included within another. According to the Court of Appeal, neither the statutory elements test nor the accusatory pleading test aided the defendant's claim that the possession for sale count was necessarily included in the selling count. Under the statutory elements test, a conviction for the greater offense of selling the cocaine does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale, because possession is not an essential element of the sale offense. As an example, the Court of Appeal noted that "one can broker a sale of a controlled substance that is within the exclusive possession of another." Regarding the accusatory pleading test, the Court of Appeal, with little analysis, observed, "the information here simply charged defendant, as relevant, with selling cocaine base (count one) and with possessing cocaine base for sale (count two). Nothing more was alleged."

The defendant's petition for review was recently denied by the California Supreme Court, although Justice Moreno was of the opinion that it should have been granted.

The unanimous opinion was authored by Justice Rod Davis.

People v. Murphy, no. C046923 (Cal.Ct.App. (3rd Dist.) filed 8/29/07)

Petty Theft With A Prior Is A Lesser Included Offense Of Robbery

A jury convicted a criminal defendant of one count of second degree robbery in violation of California Penal Code (PC) section 211 and one count of petty theft with a prior theft-related conviction in violation of PC section 666. Both counts arose out of a single incident. The alleged victim of the robbery charge was a store employee, and the alleged victim of the petty theft count was the store itself.

Division Eight of the Second District Court of Appeal reversed the petty theft conviction because it was a lesser included offense of the robbery count. Robbery cannot be committed without necessarily committing petty theft. This is true even though the petty theft offense here included the added allegation of a prior conviction. According to the Court: "a defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, because the prior conviction is a sentencing factor, rather than an element, so petty theft with a prior is a lesser included offense of robbery." In reaching this result, the Court rejected the Attorney General's argument that both convictions may survive because different victims were alleged in the two counts. The store employee was the agent of his employer, so, legally, the crimes had the same victim even though the information alleged the employee and the store as two separate victims.

The unanimous opinion was authored by Justice Madeleine Flier.

People v. Villa, no. B195363 (Cal.Ct.App. (2nd Dist., Div. 8) filed 12/17/07)

"Unlawful taking of a vehicle ([Cal.] Veh. Code, § 10851) is not a lesser included offense of carjacking ([Cal.] Pen. Code, § 215)." People v. Montoya, no. S111662 (Cal.Supreme Court, Aug. 9, 2004).

The Court was unanimous in its result, although Justices Werdeger and Chin (joined by Baxter) wrote separate concurring opinions. Justice Kennard wrote the main opinion.

Battery is not a lesser-included offense of torture under either the elements test or the accusatory pleading test. People v. Lewis, no. E033084 (Cal.Ct.App. (4th Dist./Div. 2), filed 6/22/04; partial publ. 7/21/04).

Battery with serious bodily injury is a lesser-included offense of mayhem and aggravated mayhem. People v. Manuel, no. F042927 (Cal.Ct.App. 5th Dist., June 23, 2004).

Cert. Granted in capital case on LIOS and "proper presentation of a federal constitutional claim in state court." (That's the SCOTUSBlog Description.) Howell v. Mississippi, No. 03-9560. Read the state supreme court opinion here.

Depublication: Battery as LIO of Robbery. The California Supreme Court has denied review and ordered depublication of the Court of Appeal (4th Dist., Div. 3) opinion in People v. Fuentes, Ct.App. no. G030438, S.Ct. no. S123728, in which the Court of Appeal held that battery is a lesser included offense of robbery where the accusatory pleading alleges the taking was accomplished by force and fear.

Read my post on the original court of appeal opinion here. (Sadly, this means the Neo-from-Matrix reference gets dumped, with the rest of the opinion, in the depublication-heap.)

Conviction on Lesser Offense Error Where Defendant Did not Consent to a Conviction on a Lesser Related Offense.
People v. Parks, no. B165435 (Cal.Ct.App. (2d Dist., Div. 3) Filed 3/29/04; Publ. 4/28/04).

Holding: "[C]onviction must be reversed because assault with a firearm is not a lesser offense included within attempted murder and Parks did not give express or implied consent to a conviction on a lesser related offense." In this court trial, the court acquitted the defendant of the charged offense of attempted murder, but found him guilty of assault with a firearm. When the defendant objected that assault with a firearm is not a lesser included offense of attempted murder, the court modified the offense to attempted voluntary manslaughter, which is a LIO of attempted murder.

Note: The AG conceded reversible error. The D.A., however, disagreed with the A.G.'s concession and appeared as amicus curiae. The court of appeal rejected the D.A.'s arguments.

Cal.Ct.App. (4th Dist., Div. 3): We All Are Not Neo. (Battery is a Lesser Included Offense of Robbery by Force.)

In a partially published opinion in People v. Fuentes, no. G030438, the California Court of Appeal (4th Dist., Div. 3) battery is a lesser included offense of robbery where the accusatory pleading alleges the taking was accomplished by force and fear:

Case law and logic lead ineluctably to one conclusion: The force needed to commit a robbery is more than the “least touching” required for a battery, and thus will always be enough to commit that lesser crime. Under the accusatory pleading test, then, battery is a lesser included offense of robbery in a case in which the charging document alleges “force and fear.”

We also learn from this film that: "While current movies and video games allow characters to exhibit fearlessness in the face of flying bullets (witness, e.g., the character Neo in “The Matrix”), it is an undeniable psychological truth that a normal human being threatened at gunpoint will experience fear."

Justice Kathleen O'Leary wrote the opinion.