Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County No. VA079714, Superior Court. Patrick T. Meyers, Judge.
Jennifer A. Mannix, 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, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Miguel Angel Tejeda pointed a gun at two men and fired six times. A bullet hit one man in the thigh. The People charged Tejeda with two counts of attempted premeditated murder. The jury convicted Tejeda of the lesser crime of attempted voluntary manslaughter. The jury also found true the special allegation he personally used a firearm to commit the offenses. Tejeda contends the trial court should have instructed the jury on assault with a deadly weapon as either a lesser included or a lesser related offense of attempted murder. We find no error, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Tejeda does not challenge the sufficiency of the evidence supporting his convictions. Accordingly, we briefly summarize only those facts relevant to the issues on appeal, viewing the record in the light most favorable to the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.) On July 9, 2003, at about 5:00 p.m., Tejeda’s brother, Jaime Tejada, his girlfriend, and their daughter were at a shopping mall. Four men wearing what looked like blue uniforms approached Jaime. One man assaulted Jaime and badly injured his arm; Jaime was taken to the hospital. When the Tejeda family learned about the beating, they went to the hospital. Miguel stayed for only a short time. At the hospital, Jaime’s girlfriend told the police that Miguel and two friends had come to the mall where Jaime was beaten; all three were upset about the assault.
About 5:25 p.m. that day, Joel Cervantes, Jaime Guerrero, and Javier Vazquez were working outside Santa Fe Seconds, a business 20 to 60 yards from the mall where Jaime Tejeda was assaulted. Miguel Tejeda stopped Vazquez, who was driving a forklift across the street, and angrily asked who assaulted his brother. Vazquez, who had never seen Tejeda before, knew nothing about an assault and did not pay much attention to him. Tejeda then crossed the street and jumped onto the loading dock where Cervantes and Guerrero were working.
Tejeda, who was with two other men, angrily asked Cervantes if he had seen someone wearing blue who had just “beaten up” his brother. Cervantes asked Tejeda to describe the man he was looking for. Tejeda told Cervantes and Guerrero, who was standing nearby, that he was going to kill the man when he found him.
Tejeda then jumped down from the dock and began to walk away. As he did, one of his companions yelled “shoot him, motherfucker.” Tejeda took out a gun and fired shots in the direction of Cervantes and Guerrero. Cervantes heard a bullet fly past his head. He tried to hide behind a pallet, but a bullet hit him in the thigh. Guerrero hid behind some merchandise. He was not shot. However, there were bullet holes in merchandise next to where Guerrero had been standing and the desk at which he had been working. Vazquez hid behind the forklift. He heard five or six gunshots. Police later recovered six .25-caliber semi-automatic pistol casings from the street where the shooting happened.
The two-count information charged Tejeda with attempted murder in violation of Penal Code sections 187, subdivision (a) and 664. (All further statutory references are to the Penal Code.) Count 1 also alleged that Tejeda discharged a handgun that caused great bodily injury to the victim. Both counts alleged that Tejeda used and discharged a firearm in committing the crimes.
The jury found Tejeda guilty of the lesser included offense of attempted voluntary manslaughter on both counts. The jury also found true the allegation that Tejeda personally used a firearm. (§ 12022.5, subd. (a).) The court sentenced Tejeda to seven years in state prison.
DISCUSSION
1. The trial court was not required to instruct on assault with a deadly weapon as a lesser included offense of attempted murder.
Tejeda contends the trial court violated its duty to instruct the jury sua sponte on assault with a firearm as a lesser included offense of attempted murder. He asserts this failure was prejudicial and requires reversal of the judgment. We disagree.
A defendant charged with one crime may be convicted of a lesser uncharged crime if the uncharged crime is necessarily included in the charged crime. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) A trial court’s duty to instruct sua sponte on the general principles of law relevant to issues raised by the evidence includes a duty to instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.)
Two tests apply: Under California law, an uncharged lesser offense is necessarily included within a charged offense “if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Sloan (2007) 42 Cal.4th 110, 117.) Tejeda contends that, in this case, under either test, the attempted murder charge -- when considered in conjunction with the firearm enhancement -- necessarily included a charge of assault with a deadly weapon.
Assault with a firearm is not a lesser included offense of attempted murder, the crime with which Tejeda was charged. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) Under the “legal elements” test, assault with a firearm is not included within attempted murder. (People v. Sanchez (2001) 24 Cal.4th 983, 988 [“[b]ecause in the abstract a murder can be committed without a deadly weapon, assault with a deadly weapon is not an offense necessarily included within the crime of murder”]; People v. Cook (2001) 91 Cal.App.4th 910, 918-919 [assault with a firearm is not a lesser included offense of attempted murder, because violence is not an element of murder].) Cases with special allegations of firearm use do not require a different result, because an enhancement is not a legal element of the underlying offense. (People v. Sloan, supra,42 Cal.4th at p. 114 [enhancement allegations may not be considered for purpose of rule prohibiting multiple convictions based on necessarily included offenses]; People v. Izaguirre (2007) 42 Cal.4th 126, 128.)
As Tejeda concedes, our Supreme Court has held the result is no different under the accusatory pleadings test. Under that test, a firearm-use enhancement cannot be considered in the determination of whether a lesser offense is necessarily included within a charged offense. (People v. Wolcott (1983) 34 Cal.3d 92, 101 (Wolcott) [“ ‘use’ enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses]; People v. Parks, supra, 118 Cal.App.4th at p. 6; People v. Sloan, supra,42 Cal.4th at p. 114 [reaffirming “the long-standing rule that enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses,” citing Wolcott, supra, 34 Cal.3d at p. 96].) Tejeda acknowledges Wolcott directly contradicts his argument and ordinarily would control the outcome of this case. But he questions the continued viability of the rationale underlying Wolcott’s holding -- which was premised on a distinction between the elements of a crime and sentencing enhancement -- in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and People v. Seel (2004) 34 Cal.4th 535 (Seel). Apprendi narrowed or eliminated that distinction. Seel applied Apprendi in the context of the federal double jeopardy clause’s prohibition against a second prosecution for the same offense after acquittal. (See Seel, supra,34 Cal.4th at p. 539, fn. 2 [“ ‘Apprendi treated the crime together with its sentence enhancement as the “functional equivalent” of a single “greater” crime’ ”].) The essence of Tejeda’s argument is that Apprendi and Seel compel a different conclusion: He insists Wolcott is no longer valid because it treats sentence enhancing factors as qualitatively different from the underlying offenses to which they relate.
Recognizing we are bound by Supreme Court authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456), Tejeda says he has raised this argument to preserve it for further review.
Our Supreme Court recently rejected a very similar argument. In two related cases, it found no merit in the contention that Apprendi and Seel require that conduct enhancements be treated the same as the legal elements of the crime in defining necessarily included offenses under the multiple conviction rule. (People v. Sloan, supra, 42 Cal.4th at p. 114; People v. Izaguirre, supra,42 Cal.4th at p. 128.) Tejeda argues these cases are inapposite. We disagree. We also do not find Seel’s interpretation or application of Apprendi as it relates to federal double jeopardy protection to be implicated here. Nothing in either of those cases undermines the Supreme Court’s holding in Wolcott. Apprendi held that sentencing enhancements must be tried to the jury. Based on Apprendi, the California Supreme Court concluded in Seel that the premeditation allegation in an attempted murder case is the functional equivalent of an element of the greater offense (attempted first degree murder, rather than attempted second degree murder) under the federal double jeopardy clause: “ ‘[W]hen 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 jury’s guilty verdict.’ ” (Seel, supra, 34 Cal.4th at pp. 546-547, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19.) Neither the holding nor the reasoning of Seel conflicts with the conclusion in Wolcott that a firearm-use enhancement “ ‘does not prescribe a new offense but merely additional punishment.’ ” (Wolcott, supra, 34 Cal.3d at p. 100.) We are bound by Wolcott, Sloan,and Izaguirre. (Auto Equity Sales, Inc. v. Superior Court, supra,57 Cal.2d at pp. 455-456.)
The trial court did not err in refusing to instruct the jury on assault with a deadly weapon as a lesser included offense to the attempted murder charges.
2. The trial court was not required to instruct on assault with a deadly weapon as a lesser related offense.
Tejeda’s alternative contention is that the court erred in failing to instruct on assault with a deadly weapon as a lesser related offense because it impermissibly restricted his right to present a theory of his defense.
Tejeda properly acknowledges that, absent agreement by the prosecution, criminal defendants have no right to an instruction on a lesser offense that is related to, but not necessarily included in, the charge actually alleged. (Hopkins v. Reeves (1998) 524 U.S. 88, 91 [instructions on uncharged lesser related offenses are not required as a matter of federal due process]; People v. Birks, supra,19 Cal.4th at p. 136.) Notwithstanding this binding precedent, Tejeda argues an instruction on assault with a deadly weapon as a lesser related offense was necessary to ensure his right to present a defense theory because evidence of his intent to kill was weak. He insists that, without the lesser related offense instruction, the jury impermissibly was presented with the “all-or-nothing” choice, and wrongly convicted him of the greater charge.
The fundamental legal flaw in this argument was recognized by the court in People v. Valentine (2006) 143 Cal.App.4th 1383, in the context of another lesser related crime: “[T]he offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on [the defendant’s] right to present a defense to robbery. It simply reflected the fact that the prosecutor chose not to file on the other charge.” (Id. at p. 1388.) Likewise, assault with a deadly weapon is not a defense to attempted murder or attempted manslaughter. Further, the court’s instructions did not prevent Tejeda from arguing his theory: that he did not act with the requisite intent for attempted murder or manslaughter. Nothing in the instructions prevented Tejeda from presenting evidence or arguing, as he did, that he had fired the gun in anger and passion, “as almost an afterthought” as he left the loading dock, and not with the intent to kill any man there. Accordingly, there is no merit to Tejeda’s contention that his due process and Sixth Amendment right to present a defense were infringed. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 626-627.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.