People v. Warren

JEFFERSON, J.

Defendant was charged with a violation of Penal Code section 244, assault with a caustic chemical. The information also alleged two prior felony convictions, felonious assault and violation of Penal Code, section 447a. Defendant pleaded not guilty and denied the prior convictions. Trial was by the court and by stipulation the cause was submitted upon the proceedings had at the preliminary hearing. The court found defendant guilty of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, an offense which the court found to be a lesser and necessarily included offense within the offense originally charged. The prior felonious assault conviction was stricken on motion of the People and no finding was made by the court on the second alleged prior conviction. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

On the afternoon of September 6, 1962, Worth Moore (the victim), was standing with several other men in front of the Irish Café, which is located in Los Angeles. As defendant approached Moore from the rear, he “pulled back” Moore’s coat collar, poured “something” down his back, causing a burning sensation, and then walked away. Moore was hospitalized with burns on his neck and back. The coat he was wearing at the time of the incident was given to the crime laboratory of the Los Angeles Police Department for examination. A forensic chemist, who cut and examined a sample of the material on the back of the coat, “out of an area that had been destroyed by something,” testified that it contained a caustic chemical, probably sodium hydroxide, which is the basic constituent of common household lye. Moore testi

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fied that he had seen defendant “around” the Irish Café before the time of the incident and had spoken to him, but that they had never had any arguments.

Defendant contends that the offense of which he was convicted, namely, assault by means of force likely to produce great bodily injury, is not an offense necessarily included within the offense of which he was charged, namely, assault with a caustic chemical.

The respondent filed a document, in lieu of a brief on appeal, entitled, “Respondent’s Memorandum,” in which it is conceded that the crime of assault by means of force likely to produce great bodily injury is not an offense included in the original charge. We agree.