California Court of Appeal, Second District, Eight Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of Los Angeles County. Dalila C. Lyons, Judge. Affirmed as modified, and remanded. (Los Angeles County Super. Ct. No. PA071085).
[Copyrighted Material Omitted]
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
The People charged Francisco Solis with attempted premeditated murder (Pen. Code, § 664/187, subd. (a))  as well as other crimes and special allegations we set forth below. The charges were tried to a
jury. On the attempted premeditated murder count, the trial court instructed on four uncharged lesser offenses. Each lesser offense was identified as lesser to the attempted premeditated murder charge; none were identified as lesser to any other. The offenses instructed upon included " attempted second degree murders"  the lesser included offense of attempted voluntary manslaughter (§§ 664/192), and two lesser related offenses, mayhem (§ 203) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury acquitted Solis of the charged attempted premeditated murder count, " attempted second degree murder" and attempted voluntary manslaughter. The jury convicted Solis of the two remaining uncharged lesser related offenses, mayhem and assault with a deadly weapon. This appeal presents the issue of whether a defendant may be convicted of two separate, uncharged, lesser related offenses of a single charged greater offense.
Solis contends the answer is no because he was not on notice that the single charge of attempted premeditated murder could result in two convictions for lesser crimes, and the two convictions violate sections 654, 954 and 1159. He argues the remedy is for our court to strike his aggravated assault conviction. The People argue that a jury may properly convict a defendant of two uncharged lesser related offenses based upon a single charged greater offense.
We hold that Solis's convictions for two separate, uncharged lesser related offenses stemming from a single charged greater offense were unauthorized. We modify the judgment by striking Solis's conviction for assault with a deadly weapon.
At 1:00 a.m. one
morning, Solis went to the home of Judith M., his former girlfriend. Solis
climbed through a bedroom window and began stabbing Judith with a screwdriver,
telling her he had warned her " something bad was
going to happen," and that she deserved to die. Solis stabbed Judith about
20 times, inflicting wounds to her neck, arm, chest, face and hands, including
a life-threatening wound to her carotid artery. Later the same day, Solis went
to the police and gave a taped interview in which he confessed that he attacked
Judith, but stated he had been drinking beer and was " out of it" at the time
of the incident. Solis also hand wrote a statement implicating himself.
The People filed an information charging Solis with attempted premeditated murder (count 1; §§ 664/187, subd. (a)), first degree burglary (count 2; § 459) with the allegation that another person was present during the commission of the offense (§ 667.5), and making criminal threats (count 3; § 422). As to count 1, the information further alleged Solis personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and that he personally used a deadly weapon in the commission of the attempted premeditated murder (§ 12022, subd. (b)(1)). The information alleged that Solis had suffered two prior strike convictions (§§ 667, subds. (b)-(i); 1170.2, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and that he served four prior prison terms (§ 667.5, subd. (b)).
The case was tried to a jury. On the attempted premeditated murder charge, the trial court instructed on the elements of the charged offense. Further, with the express agreement of the prosecution and defense, the court instructed with an amalgam of lesser offenses as follows:
" If all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. Now I will explain to you which charges are affected by this instruction:
" Second degree attempted murder is a lesser crime of attempted murder charged in count one.
" Attempted voluntary manslaughter is a lesser crime of attempted murder ...