People v. Wilson

62 Cal. App. 3d 370, 132 Cal. Rptr. 813, 1976 Cal. App. LEXIS 1913

Opinions

Opinion

EMERSON, J.

*The jury found appellant David Eugene Wilson guilty of attempting to commit the voluntary manslaughter of Eddie J. Conley (see Pen. Code, § 192, subd. 1 and § 644) and of committing an assault with a deadly weapon upon Conley and Rodney H. Boudreau (Pen. Code, § 245). The jury also found that appellant was armed with and used a deadly weapon during the commission of the crimes. Concurrent sentences were imposed for the two convictions of assault with a deadly weapon. The sentence for attempted manslaughter upon Eddie J. Conley was suspended and stayed pending completion of the sentences under the other two offenses.

Appellant complains of the convictions of both attempted voluntary manslaughter and assault with a deadly weapon as to the victim, Eddie J. Conley, on the ground that assault with a deadly weapon is an offense necessarily included within that of voluntary manslaughter.

If the offense of assault with a deadly weapon were an offense necessarily included within a charge of attempted voluntary manslaughter, the conviction of the lesser offense would have to be reversed. (See People v. Ramirez (1969) 2 Cal.App.3d 345, 351-352 [82 Cal.Rptr. 665]; see also The Included Offense Doctrine in California, 10 UCLA L.Rev. 870, 872, fn. 7.)

Inclusion may occur in either of two situations. The first occurs where the statutory elements of the two crimes are so similar that the greater crime cannot be committed without necessarily committing the lesser one. (People v. Jarrett (1970) 6 Cal.App.3d 737, 740 [86 Cal.Rptr. 15].) Such is not the case here, since the commission of voluntary manslaughter need not be attempted with a deadly weapon. (See People v. Ramos (1972) 25 Cal.App.3d 529, 538 [101 Cal.Rptr. 230]; and People v. Benjamin (1975) 52 Cal.App.3d 63, 71 [124 Cal.Rptr. 799].) Inclusion also may occur where the elements of the lesser offense are covered by the language of the accusatory pleading, even though these elements are not necessarily encompassed within the statutory definition of the crime charged. (People v. Marshall (1957) 48 Cal.2d 394, 397 [309 P.2d 456]; see also People v. Collins (1960) 54 Cal.2d 57, 59 [4 Cal.Rptr. 158, 351 P.2d ]; People v. St. Martin (1970) 1 Cal.3d 524, 536 [83 Cal.Rptr. 166, 463 P.2d 390].)

Appellant, therefore, contends that the allegation that he used a deadly weapon in committing the crime of attempted murder makes assault with a deadly weapon a crime necessarily included in the offense charged. We cannot agree.

It has been made clear in the cases of People v. Benjamin, supra, 52 Cal.App.3d 63, 71, and People v. Orr (1974) 43 Cal.App.3d 666 [117 Cal.Rptr. 738], that the added charge of use of a firearm is not to be considered in determining whether an accusation encompasses a lesser included offense. Without such consideration, assault with a deadly weapon is not an offense included in the crime of attempted murder (with which appellant was charged), or of attempted voluntary manslaughter (of which he was convicted). (See also People v. Meriweather (1968) 263 Cal.App.2d 559, 563 [69 Cal.Rptr. 880].)

This being the case, appellant was properly convicted of both crimes, and the court acted within its powers when it sentenced appellant for the crime carrying the greater penalty. (People v. Meriweather, supra, at pp. 563, 564.)

Appellant’s contention that the evidence established, as a matter of law, that he acted in self-defense, is without merit. To justify an act of self-defense, the jury must conclude that defendant “was actually in fear of his life or serious bodily injuiy and that the conduct of the other party was such as to produce that state of mind in a reasonable person.” (See People v. Sonier (1952) 113 Cal.App.2d 277, 278 [248 P.2d 155]; People v. Dinkins (1966) 242 Cal.App.2d 892, 904 [52 Cal.Rptr. 134].) The jury must also consider, and they were so instructed, that when the appearance of imminent danger has passed there can be no further justification for the use of further force. (People v. Perez (1970) 12 Cal.App.3d 232, 236 [90 Cal.Rptr. 521].)

There was sufficient evidence from which the juiy could conclude that circumstances were not such as to produce in the mind of a reasonable person actual fear of his life. Although Conley and Boudreau testified they were drunk, they also testified they did not threaten or harrass appellant. The witness King testified that, although he heard quarreling, he saw neither victim make any overt gestures such as pushing. Furthermore, the jury may have decided to reject the testimony of appellant and his companions that, before the second shot was fired, Conley continued to threaten harm. Rather, it may have accepted King’s testimony that he observed the second victim start to run away before he was shot.

We also disagree with appellant’s contention that there was error in the instructions. The juiy requested a rereading of the instructions defining attempted voluntary manslaughter, assault with a deadly weapon and self-defense. The court repeated these instructions and also repeated the distinction between the type of specific intent necessary to commit murder and the kind of general intent required to commit assault with a deadly weapon. Appellant now argues that this was-error in that it obscured the fact that voluntary manslaughter is also a specific intent crime.

This argument is without merit. First, the repeated instructions commenced with the explanation that an attempt requires “a specific intent to commit the crime.” Secondly, defense counsel after being informed of the request that the instruction regarding intent was also to be repeated raised no objection that the record reveals or asked for any additional instructions. Apparently, trial counsel did not feel that the instructions were misleading or produced an unfair emphasis.

Although we thus conclude that the judgments should be affirmed, we note, on our own motion, that certain modifications should be made, in accordance with current case and statutory law.

The judgment under count II (attempted voluntary manslaughter) contains the finding that appellant used a deadly weapon in the commission of the crime. This finding should be stricken. (People v. Strickland (1974) 11 Cal.3d 946, 959-961 [114 Cal.Rptr. 632, 523 P.2d 672]; Pen. Code, § 12022.5.)

The judgment under count IV (assault with a deadly weapon) contains a finding that appellant was armed with a deadly weapon when he committed the offense. This should also be stricken. (People v. Hartsell (1973) 34 Cal.App.3d 8 [109 Cal.Rptr. 627]; Pen. Code, § 12022.)

The judgment as imposed should be further modified to provide that appellant shall serve only one additional period of imprisonment pursuant to Penal Code section 12022.5. (See In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23].)

As so modified, the judgment is affirmed,

Draper, P. J., concurred.

Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.