People v. Lewis

California Court of Appeal May 5, 1982 No. Crim. 39345Published

Before: Stephens

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Holding. A defendant cannot be convicted of an offense that is neither charged nor a lesser included offense of the charged crime unless the defendant consents to the substituted charge. Because the defendant did not consent to the burglary conviction, the conviction was improper.

Issues

May a defendant be convicted of an offense that is neither charged nor a necessarily included offense when the defendant does not consent to the substitution?
Did the defendant consent to the conviction of the uncharged offense of burglary?

Disposition. reversed

Quotations verified verbatim against the opinion

“May a defendant be convicted of an offense which is neither specifically charged in the accusatory pleading nor ‘necessarily included’ within a charged offense, when he does not consent to the substituted charge? We conclude that he may not.”

“Unless we can hold that in the absence of an objection by counsel a consent is established, we cannot hold that, in this case, there was consent to the conviction of the lesser crime.”

Opinion

STEPHENS, Acting P. J.

Defendant was charged with robbery, a violation of Penal Code section 211, and personal use of a handgun within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). The trial was without a jury and the court found there was no gun involved. The court also reasoned that, there being no gun involved, no robbery took place and found defendant not guilty of robbery.

The court then found defendant guilty of burglary in the second degree.

The appeal raises one issue: that burglary is not a lesser included offense to robbery, hence defendant could not legally be found guilty of that offense absent it having been charged; it had not been.

[459]

The facts are that a Mr. Diestel operated a retail shoe store. He went across a street to purchase some soft drinks and was absent from his store between four and five minutes. He had left the store unoccupied and a cash drawer unlocked. On his return, he saw two persons behind the counter taking money out of his cash drawer and putting it into their pockets.

Diestel approached the two persons, one being defendant, and asked what they were doing. According to Diestel, defendant exhibited the butt of a gun and told him to move out of the way. Diestel did so and the persons left the store. Diestel and others chased defendant and the other person and, with the aid of police, the two were caught after about fifteen minutes. No gun was found, but the defendant and his associate had $54 on their persons. This was the amount Diestel said had been removed.

Defendant and his associate testified and denied taking the money or having a gun. They admitted being in the store, but not in the area of the cash drawer. Of course, the conclusion of the judge showed that he believed the money was taken.

Was defendant’s conviction for second degree burglary proper? No.

It is conceded that burglary is not a lesser included offense to robbery.

(People

People v. Lewis

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