California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA071085. Dalila C. Lyons, Judge.
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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, Shawn McGahey Webb and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
In People v. Eid (2014) 59 Cal.4th 650 [174 Cal.Rptr.3d 82, 328 P.3d 69] (Eid), the Supreme Court ruled that a defendant who was charged with one offense was properly convicted by a jury of two lesser
included offenses, where neither of the two lesser offenses was included in the other. Eid based its decision on Penal Code section 1159, as construed in light of the “truth-ascertainment function” which guides a trial court’s duty to instruct on lesser included offenses.
In the appeal before us today, the issue is whether a defendant who was charged with one offense was properly convicted by a jury of two lesser related offenses, where neither of the two lesser related offenses was included in the other. We hold that two convictions for lesser related offenses may properly stem from one charged offense.
After midnight, defendant and appellant Francisco Solis went to the home of his former girlfriend, Judith M., and climbed through a window into a bedroom where Judith and her children were sleeping. Solis began stabbing Judith with a screwdriver. Before he stopped, Solis had stabbed Judith about 20 times. Judith suffered wounds to her neck, arm, chest, face and hands, including a life-threatening wound to her carotid artery. As he stabbed Judith, Solis made comments to the effect that he had warned her “something bad was going to happen, ” and that she “deserved to die.” 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 willful, deliberate and premeditated murder (count 1; Pen. Code, §§664, 187, subd. (a)),  first degree burglary with the allegation that another person, not an accomplice, was present during the commission of the offense (count 2; §§ 459; 667.5, subd. (c)), and criminal threats (count 3; § 422). As to count 1, the information further alleged that Solis had personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and that he personally used a deadly weapon (§ 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 uncharged offenses pursuant to CALCRIM No. 3517 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 charged in count one.
“Mayhem is a lesser crime of attempted murder charged in count one.
“Assault with a deadly weapon is a lesser crime of attempted murder charged in count one.
“It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the ...