Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VA097838 of Los Angeles County. Patrick T. Meyers, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Alberto Daniel Gonzalez appeals from the judgment entered following a jury trial that resulted in his conviction of felony assault. He contends reversal is required because the jury returned guilty verdicts on both the charged offense and a lesser offense. We affirm.
He was sentenced to 7 years 4 months comprised of the 3 year midterm doubled pursuant to Three Strikes, plus a consecutive 16 months for a probation violation.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that Claudia Valencia was living with her mother and brother, Ricardo, in October 2005, after ending her relationship with defendant. As a result of a head wound he suffered in 1995, Ricardo had slurred speech, but otherwise functioned normally.
The morning of October 16, 2005, Claudia’s car was parked in back of the house. When Ricardo went to investigate why the car alarm was sounding, he opened the trunk and defendant jumped out. Defendant started hitting Ricardo in the head with his fists. Even after Ricardo fell to the ground unable to move, defendant continued hitting and kicking him. Defendant used a broom to hit Ricardo in the legs. After defendant left, Ricardo made his way into the house.
Meanwhile, when Claudia went to investigate sounds coming from the living room, she saw defendant run through the living room and out the front door. As she went toward the back yard to check on Ricardo’s welfare, Claudia encountered him bleeding and bruised, struggling up the stairs into the house. Claudia called the police and Ricardo was taken by ambulance to the hospital where he remained for four days. That night, defendant left a voicemail message for Claudia saying that he was sorry about what happened.
PROCEDURE
Defendant was charged with felony assault. (Pen. Code, § 245, subd. (a)(1).) After a two day jury trial, the jury was correctly instructed on the charged offense and the lesser included offense of simple assault (Pen. Code, § 240) and was given verdict forms for each. The jury returned signed guilty verdicts for both the greater and lesser offenses. Without informing counsel that the jury had returned both guilty verdicts, the trial court directed the clerk to read only the verdict on the greater offense. After the jury was discharged, the trial court informed counsel that the jury had also rendered a guilty verdict on the lesser offense. The trial court explained: “And basically the only thing that would make that lesser verdict valid is if they found not guilty on the greater, and they did not. So I directed her not to read it.”
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends “irregularities in taking the verdict requires [sic] a new trial.” He argues that the only proper course was for the trial court to send the jury back for further deliberations with new, blank verdict forms. We disagree.
It is well settled that, “[c]onviction of a lesser included offense is an implied acquittal of the offense charged when the jury returns a verdict of guilty of only the lesser included offense. [Citation.] When the jury expressly finds defendant guilty of both the greater and lesser offense, however, there is no implied acquittal of the greater offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed. [Citations.]” (People v. Moran (1970) 1 Cal.3d 755, 763; see also People v. Cole (1982) 31 Cal.3d 568, 582.)
Here, defendant does not dispute the sufficiency of the evidence to support the verdict; he challenges only the procedure. Although he is correct that the preferred procedure would have been for the trial court to instruct the jury to consider the case further and return with a signed verdict form for either the greater or the lesser offense (See People v. Wissenfeld (1951) 36 Cal.2d 758), this was not required under Moran. In fact, even if the error had been discovered for the first time on appeal, the remedy would have been to reverse the lesser included offense. (People v. Chan (2005) 128 Cal.App.4th 408, 421.)
Even though we affirm defendant’s conviction, we observe that the point raised in defendant’s appeal might have been avoided if the trial judge had advised the attorneys, before the verdict was read and before the court discharged the jury, that guilty verdicts had been returned on both the greater and lesser offense. By proceeding in such fashion, counsel would have been able to present the court with alternatives as to how best to proceed: poll the jury, ask the jury to further consider its verdicts (Pen. Code, § 1161), reinstruct the jury with CalCrim No. 3517 [“A defendant may not be convicted of both a greater and lesser crime for the same conduct.”], suggest other appropriate remedies, or do nothing. By reading only the verdict on the greater offense and then discharging the jury, the court essentially engaged in an ex parte communication with the jury without informing counsel in time for them to make their positions known.
Having said this, we also observe that any error was undoubtedly harmless. Immediately upon discharging the jury, the court told counsel: “Counsel, just to let you know, my direction to the clerk was because in addition to a guilty verdict on the charged greater offense they found [him] guilty on the lesser offense.” The trial court then gave a brief and accurate statement of the law. The prosecutor said “Okay”. The defense counsel made a comment about not having a copy of the probation report. Plainly, neither counsel was concerned about the verdicts. More importantly, the evidence was overwhelming that defendant committed an assault by means likely to produce great bodily injury. He admitted the attack, a vicious assault on a vulnerable victim who was hospitalized for four days. Regardless of what additional procedural steps the court might have taken when presented with multiple guilty verdicts, it is beyond a reasonable doubt that the jury would have returned a guilty verdict on felony assault.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.