Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 04F10055
MORRISON, Judge.
A jury convicted defendant Jennifer Kaihau of theft from the elderly by a caretaker (Pen. Code, § 368, subd. (e)), grand theft (Pen. Code, § 487, subd. (a)), and fraudulent use of an access card (Pen. Code, § 484g, subd. (a)). The jury also sustained an enhancement that the amount of property taken exceeded $50,000 (Pen. Code, § 12022.6, subd. (a)(1)), and the trial court sentenced defendant to four years in prison.
On appeal, defendant contends the trial court erred by instructing the jury on Penal Code section 12022.6, subdivision (a)(1) as a lesser included enhancement. We shall affirm the judgment.
BACKGROUND
Hulda Stone lived alone in her Campus Commons condominium during 2002 and 2003. Stone hired defendant to help her after she fractured her hip in a fall. Defendant assisted Stone with shopping, going to the bank, and doing things around the house. She worked eight hours a day, five days per week. Defendant was not responsible for paying Stone’s bills.
Stone banked at Wells Fargo, Citibank, and Washington Mutual. She never gave defendant permission to use her ATM cards or any other bank cards. Stone used her ATM card only to make cash withdrawals from ATM machines at the bank, never withdrawing more than $100. She would use her Wells Fargo card a few times a month and rarely used the Citibank card.
Stone had given power of attorney to her best friend, Gayle Prosch. In 2004, while defendant was out of town and Stone was in the hospital, Prosch opened one of Stone’s bank statements and discovered over $9,000 in ATM withdrawals. After Stone told her she knew nothing about the withdrawals, Prosch closed the accounts and contacted the police. An investigation disclosed numerous unauthorized transactions, including ATM withdrawals and purchases of groceries, tires, furniture, video rentals, clothing, appliances, a palm tree, and brakes.
Defendant spoke to the police and admitted using Stone’s Citibank card, but claimed Stone gave her the PIN and permission to use the card. She initially denied using the Wells Fargo card, but after being shown photographs of her withdrawing money from a Wells Fargo ATM, she admitted using it to make ATM withdrawals without Stone’s permission. Defendant denied making any other unauthorized transactions.
Defendant called the general manager of Piatti’s restaurant. She testified that on September 9, 2003, and October 24, 2003, two guests charged lunch to Stone’s Visa debit/credit card, and the receipt was signed in Stone’s name.
DISCUSSION
Defendant contends the jury was improperly allowed to sustain an enhancement for taking property with a value exceeding $50,000 (Pen. Code, § 12022.6, subd. (a)(1)).
The information alleged an enhancement for taking property in excess of $150,000 during the commission of a felony (Pen. Code, § 12022.6, subd. (a)(2)), but did not allege the subdivision (a)(1) enhancement for a taking of property exceeding $50,000.
At the close of evidence, defendant moved for acquittal on the Penal Code section 12022.6, subdivision (a)(2) enhancement.
The prosecutor responded that the evidence showed withdrawals totaling $153,000. Defense counsel replied the “problem is that it’s only about $3,000 over” the threshold amount for the enhancement. The defense asserted some of the charges could be attributed to Stone, making it impossible to tell whether the amount stolen exceeded $150,000.
The trial court denied defendant’s motion, finding substantial evidence supporting the subdivision (a)(2) enhancement. The prosecution then requested an instruction on the Penal Code section 12022.6, subdivision (a)(1) enhancement, which the trial court granted over defendant’s objection. The jury acquitted defendant of the Penal Code section 12022.6, subdivision (a)(2) enhancement, but sustained the subdivision (a)(1) enhancement.
Defendant asserts the trial court’s decision to deny the motion for acquittal was in error, and had it granted the motion there would have been no basis for the section 12022.6, subdivision (a)(1) enhancement.
Defendant was not prejudiced by the court’s failure to dismiss the Penal Code section 12022.6, subdivision (a)(2) enhancement because the jury acquitted her of that enhancement. Granting the motion for acquittal would not have prevented the trial court from instructing the jury on the lesser enhancement. A trial court may limit the impact of granting a motion for acquittal by allowing the prosecutor to amend the pleadings to include a lesser included offense. (People v. McElroy (1989) 208 Cal.App.3d 1415, 1424, overruled other grounds in People v. Cromer (2001) 24 Cal.4th 889, 900, fn. 3.) Had the trial court granted the defendant’s motion for acquittal, it still could have entertained the prosecution’s motion to instruct the jury on the section 12022.6, subdivision (a)(1) enhancement.
Relying on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), defendant contends she was denied due process by the failure of the accusatory pleading to put her on notice that she was being charged a section 12022.6, subdivision (a)(1) enhancement for theft of property of a value exceeding $50,000. We reject the contention, finding the concept of lesser included enhancements is analogous to that of lesser included offenses, and that Mancebo is factually distinguishable.
“‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]” (People v. West (1970) 3 Cal.3d 595, 612.) “‘[N]otice is adequate and due process is served when the trier of fact is permitted to find an accused guilty of an offense necessarily included in that with which he is charged [citation] or of a lesser offense which, although not necessarily included in the statutory definition of the offense, is expressly pleaded in the charging allegations.’” (In re Robert G. (1982) 31 Cal.3d 437, 442-443, original italics.) This is so because under either test the accused is warned of the elements the People will seek to prove. (In re Daniel R. (1993) 20 Cal.App.4th 239, 243.)
Nor is the concept of one enhancement being included within another enhancement without precedent. An enhancement for being armed with a firearm pursuant to section 12022, subdivision (a)(1) is an enhancement included in personal firearm use pursuant to section 12022.5, subdivision (a)(1). (See People v. Majors (1998) 18 Cal.4th 385, 410 (Majors); People v. Allen (1985) 165 Cal.App.3d 616, 627 [enhancement for firearm use under section 12022.5 necessarily includes enhancement for being armed with a firearm under section 12022].)
“‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” [Citations.]’ [Citation.]” (People v. Ortega (1998) 19 Cal.4th 686, 692.) “The determination of whether an offense cannot be committed without necessarily committing the included offense must be based, . . . upon the statutory definitions of both offenses and the language of the accusatory pleading. [Citation.]” (Id. at p. 698.)
Penal Code section 12022.6, subdivision (a)(1) provides for a one-year enhancement where a person takes, damages, or destroys property in the commission of a felony and the “loss exceeds fifty thousand dollars ($50,000), . . .” Subdivision (a)(2) of the same section provides for a two-year enhancement for taking, damaging, or destroying property in the commission of a felony where “the loss exceeds one hundred fifty thousand dollars ($150,000), . . .” Applying the elements test, we find Penal Code section 12022.6, subdivision (a)(1) is a lesser included enhancement of Penal Code section 12022.6, subdivision (a)(2). Instructing the jury on the lesser included enhancement did not deprive defendant of adequate notice or due process.
The concept of lesser included enhancements is not the same as lesser included offenses. While the trial court has an obligation to instruct sua sponte on lesser included offenses under certain conditions, no such obligation exists with regard to lesser included enhancements. (Majors, supra, 18 Cal.4th at pp. 410-411.)
Majors, supra, 18 Cal.4th at pages 410-411 does not prevent the trial court from instructing on a lesser included enhancement. As with lesser included offenses, a lesser included enhancement allows the jury to render a more accurate verdict. Where, as here, the jury found defendant stole less than $150,000 but more than $50,000, the jury should be allowed to return a verdict in accordance with its findings. “[A] defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth.” (People v. St. Martin (1970) 1 Cal.3d 524, 533.)
Relying on People v. Mancebo, supra, 27 Cal.4th 735, defendant attempts to escape the foregoing conclusion. However, Mancebo is distinguishable.
In Mancebo, a jury convicted the defendant of violent sexual offenses against two victims and, as to each victim, found true two expressly pled allegations which brought the defendant within the 25-year-to-life term of the “One Strike” law (§ 667.61, subd. (a)). These allegations were firearm use and kidnapping as to one victim (Pen. Code, § 667.61, subds. (e)(1) & (e)(4)), and firearm use and binding against the other (Pen. Code, § 667.61, subds. (e)(4) & (e)(6)). (Mancebo, supra, 27 Cal.4th at p. 740.) A third special allegation--multiple victims circumstances (Pen. Code, § 667.61, subd. (e)(5))--was not expressly pled, but was proved at trial. At sentencing, the trial court substituted the multiple victim circumstance for the firearm use circumstance to impose two 25-year-to-life terms, and then used the firearm use to enhance each term by an additional 10 years, resulting in two 35-year-to-life terms. (Mancebo, at p. 740.) The California Supreme Court concluded the substitution was unauthorized because it violated the requirement of section 667.61, subdivision (f) that such circumstances be expressly pled. (Mancebo, at p. 743.)
Unlike the present case, the special allegation at issue in Mancebo, supra, 27 Cal.4th 735--the multiple victim circumstance--was not a lesser included allegation in either of the two circumstances expressly pled. Since Mancebo’s analysis is based on facts distinguishable from those of the present case, it is not on point.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J. and ROBIE, J.