Opinion
G036910
6-6-2007
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR ZURITA, Defendant and Appellant. THE PEOPLE, Plaintiff, v. SALVADOR ZURITA, Defendant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury found defendant Salvador Zurita guilty, as charged, of two counts of domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a)) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) as against Jane Doe. The jury also found that defendant personally used a knife in the commission of one count of domestic battery (Pen. Code, § 12022, subd. (b)(1)). It further found that in committing one count of domestic battery and one count of aggravated assault, defendant inflicted great bodily injury (Pen. Code, § 12022.7, subd. (e)). The court stayed the sentence on the aggravated assault conviction and sentenced defendant to state prison for a total term of 10 years. Defendant appeals.
He claims that assault with a deadly weapon is a lesser included offense within the offense of domestic battery with corporal injury as enhanced by Penal Code sections 12022, subdivision (b)(1) and 12022.7, subdivision (e). We disagree. Sentencing enhancements are not taken into consideration in determining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; In re Jose H. (2000) 77 Cal.App.4th 1090.) The judgment is affirmed.
I
FACTS
Defendant and Jane Doe dated for eight years and had a son together. Eventually, Jane Doe started dating another man, Jose Mercado. On March 17, 2003, defendant, Jane Doe, and their 7-year-old son were in the car together. Angry that Jane Doe had started seeing Mercado, defendant hit Jane Doe in the left eye. After their son left the car to go get his grandmother, defendant took a pocketknife and cut Jane Doe on the side of her face. The cut required stitches at the hospital.
On December 4, 2004, defendant encountered Mercado at a restaurant parking lot around 1:30 or 2:00 a.m. Defendant used his pocketknife to cut Mercados face. Mercados cut also required stitches.
Defendant was charged with crimes against his son, Jane Doe, and Mercado. The cases were consolidated. Only the crimes against Jane Doe are the subject of this appeal.
II
DISCUSSION
In People v. Wolcott, supra, 34 Cal.3d 92, the Supreme Court addressed whether the trial court erred in failing to instruct sua sponte that assault with a deadly weapon is a lesser included offense in a charge of robbery with a firearm use enhancement. (Id. at p. 96.) The Supreme Court held there was no error, because "assault is not a lesser included offense in robbery; a `use enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses; and . . . one can `use a firearm in a robbery without employing it to assault the robbery victim." (Ibid.) It further explained that "California courts have consistently stated that `[Penal Code] section 12022.5 does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used. [Citations.] [T]he majority of Court of Appeal decisions have held `that an allegation of firearm use for purposes of Penal Code section 12022.5 is not to be considered in determining whether the accusation encompasses a lesser included offense. [Citations.]" (Id. at p. 100.) The Supreme Court further remarked that "even if California could constitutionally consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses, we see no reason to adopt that course." (Id. at p. 101.)
The analysis in People v. Wolcott, supra, 34 Cal.3d 92 was subsequently applied in In re Jose H., supra, 77 Cal.App.4th 1090. There, the juvenile court sustained count I, assault with a deadly or dangerous weapon with force likely to produce great bodily injury, with a great bodily injury enhancement, and count II, battery with serious bodily injury, with a great bodily injury enhancement. (Id. at p. 1092.) The question before the appellate court was whether it was proper to consider the great bodily injury enhancement appended to count I in order to determine whether count I was necessarily included in count II, for the purpose of analyzing the rule against multiple convictions. (Id. at p. 1094.) The court, after reviewing People v. Wolcott, supra, 34 Cal.3d 92, answered that question in the negative. (In re Jose H., supra, 77 Cal.App.4th at pp. 1094-1096.)
In reaching its conclusion, the court in In re Jose H., supra, 77 Cal.App.4th 1090, stated: "Penal Code section 954 sets forth the general rule that a defendant may be convicted of multiple offenses based on a single act or indivisible course of conduct. It states in part: `An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged . . . . [¶] In People v. Ortega [(1998)] 19 Cal.4th 686, our Supreme Court observed `despite the seemingly absolute language of section 954 . . . , there is an exception to the general rule permitting multiple convictions. "Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]" (People v. Pearson [(1986)] 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595]. [Citation.]" (In re Jose H., supra, 77 Cal.App.4th at pp. 1094-1095.)
The court in In re Jose H., supra, 77 Cal.App.4th 1090 concluded: "Appellant cites no cases, and our research discloses none, that permit considering enhancements for determining lesser included or necessarily included offenses for any purpose. Because the rule recognized in Pearson carves out an exception to a statute that appears to specifically authorize multiple convictions based on the same conduct, we decline to accept appellants invitation to expand the definition of necessarily included offenses beyond its existing boundaries. Those boundaries limit our consideration of whether count I and count II are necessarily included offenses of one another to the elements of the offenses charged, not the stated offenses with their attached enhancements." (Id. at p. 1095.)
Applying In re Jose H., supra, 77 Cal.App.4th 1090 to the case before us, we conclude that the enhancements appended to the offense of domestic battery with corporal injury are not to be considered in determining whether the offense of assault with a deadly weapon is a lesser included offense. As defendant acknowledges, "`[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Furthermore, "[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, . . . `only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. . . . [Citation.]" (Id. at p. 1229.) Because one may commit domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a)) without also committing an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), the latter offense is not a lesser included offense within the former, and the conviction for each of these offenses is proper.
Defendant disagrees with this analysis, citing Apprendi v. New Jersey (2000) 530 U.S. 466. The Apprendi court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
(Id. at p. 490.) Apprendi is inapposite, inasmuch as the burden of proof is not at issue in the case before us. The reason why defendant calls attention to Apprendi is because a footnote therein stated: "This is not to suggest that the term `sentencing factor is devoid of meaning. The term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jurys finding that the defendant is guilty of a particular offense. On the other hand, when the term `sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. Indeed, it fits squarely within the usual definition of an `element of the offense." (Id. at p. 494, fn. 19.) While the Apprendi court made these remarks in the context of the applicable burden of proof, defendant in the case before us would like to apply them in the context of determining lesser included offenses as well.
He draws our attention to People v. Sengpadychith (2001) 26 Cal.4th 316, wherein the California Supreme Court applied Apprendi v. New Jersey, supra, 530 U.S. 466. The Sengpadychith court stated: "This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendants prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the `prescribed statutory maximum punishment for that crime. [Citation.] Therefore, a trial courts failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision `increases the penalty for [the underlying] crime beyond the prescribed statutory maximum. [Citation.] Such error is reversible . . . [citation], unless it can be shown `beyond a reasonable doubt that the error did not contribute to the jurys verdict." (People v. Sengpadychith, supra, 26 Cal.4th at p. 326.) The Sengpadychith court did not have occasion to address whether the Apprendi language at issue, to the effect that a crime together with its sentence enhancement is the functional equivalent of a single greater crime, should be applied outside of the burden of proof context. It did not decide the issue before us — whether sentence enhancements are to be taken into consideration in determining lesser included offenses.
As defendant points out, there are several cases pending before the California Supreme Court that address the issue. (People v. Jenkins (2006) 143 Cal.App.4th 369, review granted Jan. 24, 2007, S147926; People v. Sloan (2005) 126 Cal.App.4th 1148, review granted June 8, 2005, S132605; People v. Izaguirre, review granted June 8, 2005, S132980.) However, until such time as those cases are decided, we apply People v. Wolcott, supra, 34 Cal.3d 92, as the California Supreme Court case most nearly on point, and In re Jose H., supra, 77 Cal.App.4th 1090, and conclude that the sentence enhancements are not to be considered in determining lesser included offenses. The trial court did not err.
III
DISPOSITION
The judgment is affirmed.
We Concur:
BEDSWORTH, Acting P. J.
FYBEL, J.