Court Of Appeal Reverses For Failure To Instruct On Lesser Offense
February 27th, 2015


The two subdivisions of Vehicle Code section 23110 state:


“(a) Any person who throws any substance at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor.
“(b) Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison.” (Italics added.)


People v. Mullendore (2014) 230 Cal. App. 4th 848, 856-857 concluded that VC 23110(a) as a lesser included of VC 23110(b) because a violation of subdivision (b) necessarily constitutes a violation of subdivision (a).


Moving on to harmless error analysis focused on the need to avoid forcing the jury into an “unwarranted all-or-nothing choice” which creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because “the defendant is plainly guilty of some offense … .” (Ibid; internal citation and punctuation omitted.)


For example, if the jury in Mullendore found that the defendant acted intentionally and not accidentally, it would have concluded that he committed the vehicle-related conduct prohibited by the statute and “may have been inclined to return a guilty verdict for this count even if one or more of them had doubts whether he had the specific intent to inflict great bodily injury… . Had the jury been given the option of convicting defendant of the [lesser] vehicle-related offense … it may well have selected this lesser offense.” (Ibid.) Hence, the error was not harmless.

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