People v. Vorbach

California Court of Appeal Jan 30, 1984 No. Crim. 17009Published

Before: Sonenshine

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Holding. The court held that assault with a deadly weapon is not a lesser included offense of robbery, even when the accusatory pleading alleges a weapon enhancement. Consequently, the defendant's conviction for assault with a deadly weapon as a lesser included offense of robbery was reversed.

Issues

Whether the evidence was sufficient to support a conviction for assault with a deadly weapon.
Whether the trial court erred in finding the defendant guilty of assault with a deadly weapon as a lesser included offense of robbery.

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“We hold the same reasoning applies where the accusatory pleading alleges an enhancement for use of a knife.”

“Vorbach is entitled to an acquittal as to the conviction of assault with a deadly weapon in count II.”

Opinion

SONENSHINE, J.

Richard Harold Vorbach was charged by information in count I with burglary (Pen. Code, § 459),

count II with robbery (§ 211), count III with burglary, count IV with assault with a deadly weapon (§ 245, subd. (a)), and count V with robbery. It was further alleged as to all counts he was armed with a knife (§ 12022, subd. (b)) and as to counts III, IV and V he inflicted great bodily injury (§ 12022.7). In addition, it was alleged

[428]

he had served three prison terms. Jury was waived and following trial he was found guilty of assault with a deadly weapon both as a lesser included offense of robbery (count II) and as charged in count IV. The special allegations and one prison commitment were found true. All other charges were dismissed.

Vorbach alleges all the elements of assault with a deadly weapon (count II) were not proven, the evidence does not support either conviction, and assault with a deadly weapon is not a lesser included offense of robbery.

This is a tale of the risks of employment in the illicit drug trade. Donald Alexandrian (the victim in counts I and II) testified Vorbach arrived at his house and demanded drugs. When Alexandrian refused, Vorbach left returning minutes later with a friend. At knifepoint, Vorbach obtained $150 and a watch from Alexandrian. Alexandrian testified Vorbach erroneously believed he had “burned” one of Vorbach’s friends by selling him low grade heroin and thus was recouping a bad investment. In the course of this transaction, Vorbach struck Alexandrian with his fist.

The defense to this incident consisted of the testimony of Vorbach and his friend who each described purchasing $100 in worthless heroin from Alexandrian, going to his house to obtain a refund, receiving their money back and leaving. Vorbach denied displaying a knife or striking Alexandrian.

Jane Berthiaume (the victim in counts III through V) testified she had, over a period of time, purchased meat from Vorbach, and in conversation told him she was on methadone. Vorbach arrived one day at her house, and after a friendly conversation, demanded heroin (unknown to Vorbach she had nine balloons of heroin in an envelope in her hand at the time). When she denied having heroin, Vorbach threatened her with a knife and eventually brutally beat her. He then found the heroin and fled. Berthiaume admitted she used heroin, but denied being a dealer.

People v. Vorbach

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SONENSHINE, J.

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