Brief Bank # B-678 (Re: [LIO VI (LIO CHK) LESSER INCLUDED CHECKLIST PC 205 – Aggravated Mayhem: OFFENSES INCLUDED: Simple Mayhem (PC 203)].)
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Date of Brief: September 1993
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA, ) No. A060970
)
Plaintiff and Respondent, ) (Contra Costa ) County No.
) 921896-7)
v. )
)
JOHN DOE, )
)
Defendant and Appellant. )
________________________________________)
APPELLANT’S OPENING BRIEF
Appeal from the Judgment of the Superior Court
of the County of Contra Costa
THE HONORABLE RICHARD F. ARNASON, PRESIDING.
CAROL STRICKMAN
Attorney at Law
360 62nd Street
Oakland, CA 94618
(510) 547-4843
State Bar No. 78341
Attorney for Appellant JOHN DOE
By Appointment of the Court of Appeal
under the First District Appellate Project’s
Independent Case System.
D. The court failed to instruct the jury that simple mayhem is a lesser-included offense of aggravated mayhem.
A criminal defendant has a right to instructions based on evidence sufficient to deserve consideration by the jury. This fundamental right is grounded in the due process clauses of the California and United States Constitutions, and is “founded in the defendant’s ‘constitutional right to have the jury determine every material issue presented by the evidence.”‘ (People v. Geiger (1984) 35 Cal. 3d 510, 199 Cal.Rptr. 45, 49; People v. Rankeesoon (1985) 39 Cal.3d 346, 216 Cal.Rptr. 455, 458; Vujosevic v. Rafferty (3rd Cir. 1988) 844 F.2d 1023; see also Beck v. Alabama (1980) 447 U.S. 625, 100 S. Ct. 2582, 65 L.Ed. 2d 392.)
The court must instruct sua sponte on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Kelly (1992) 1 Cal.4th 495, 529, 3 Cal.Rptr. 2d 677 695 (several counts reversed). This obligation exists, even where, as a matter of trial tactics, the defendant fails to request the instruction or even objects to it. (People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1.) There is no sua sponte duty where there is no evidence that the offense was less than that charged. (People v. Lewis (1990) 50 Cal.3d 262, 276, 266 Cal.Rptr. 834, 842.)
However, it is the duty of the court to give any requested included offense instructions which the evidence tends to prove. (People v. Noah (1971) 5 Cal.3d 469, 478, 96 Cal.Rptr. 441.) As the “neutral arbitrator” and “the jury’s guide to the law” (People v. Wickersham (1982) 32 Cal. 3d 307, 323, 185 Cal.Rptr. 436), the court was required to give a lesser-included simple mayhem instruction here.
Simple mayhem is a lesser included offense of aggravated mayhem. The test to determine whether one offense is a lesser included offense on another is as follows:
[W]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. (People v. Thomas (1962) 58 Cal.2d 121, 128, 23 Cal.Rptr. 161.)
See also People v. Francis (1969) 71 Cal.2d 66, 73, 75 Cal.Rptr. 199. From a comparison of the definitions of the two offenses, it appears that aggravated mayhem cannot be committed without simple mayhem also being committed.
Defense counsel requested simple mayhem as a lesser-included instruction. (CT, Defendant’s Proposed Jury Instructions, pages 13, 14.) The court did instruct the jury that simple assault was a lesser-included offense of aggravated mayhem, and did define simple mayhem for the jury, but did not instruct that simple mayhem was also a lesser-included offense. (CT 310-312.)
This error was prejudicial. The difference between simple and aggravated mayhem is primarily the intent element. As argued above, the evidence that John Doe had the specific intent to permanently disable Mr. E was weak. The jury should have been properly instructed about the requisite specific intent for aggravated mayhem and provided with the alternative charge of simple mayhem, which does not require specific intent, but only an intentional and malicious act causing such injury. Had the jury been so instructed, it is reasonably probable that it would have acquitted John Doe of the greater charge and returned a guilty verdict on the lesser mayhem charge only.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA, ) No. A060970
)
Plaintiff and Respondent, ) (Contra Costa ) County No.
) 921896-7)
v. )
)
JOHN DOE, )
)
Defendant and Appellant. )
________________________________________)
APPELLANT’S REPLY BRIEF
Appeal from the Judgment of the Superior Court
of the County of Contra Costa
THE HONORABLE RICHARD F. ARNASON, PRESIDING.
CAROL STRICKMAN
Attorney at Law
360 62nd Street
Oakland, CA 94618
(510) 547-4843
State Bar No. 78341
Attorney for Appellant JOHN DOE
By Appointment of the Court of Appeal
under the First District Appellate Project’s
Independent Case System.
C. The court’s failure to instruct on the lesser included offense of simple mayhem compels reversal.
Respondent concedes that simple mayhem is a lesser included offense to aggravated mayhem. [Footnote 1] Respondent asserts, however, that the jury must have found the requisite intent for aggravated mayhem because of its verdict of guilt on the attempted murder count. (Respondent’s Brief, page 27.) This argument is unconvincing because as Respondent recognizes in another portion of its brief, “the intent to permanently disable is [not] necessarily subsumed within the intent to kill.” (Respondent’s Brief, page 16, fn. 12; People v. Ferrell (1990) 218 Cal. App. 3d 828, 833-834.)
The jury here did not necessarily resolve the factual question adversely to appellant under other properly given instructions.
