People v. Broyles

Filed 11/13/13 P. v. Broyles Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, A135206

v. (San Francisco County Super. Ct. No. 213908) ROGER BROYLES,

Defendant and Appellant.

On the morning of January 29, 2008, a simmering disagreement between defendant Roger Broyles and Richard Koenig exploded into violence when defendant attacked Koenig and put him into a two-month coma with multiple skull and rib fractures and severe internal injuries. As a result, defendant was charged with, and a jury convicted him of, five crimes: assault by means of force likely to cause great bodily injury and involving the personal infliction of great bodily injury resulting in coma (Pen.Code, §§ 245, subd. (a)(1), 12022.7, subds. (a), (b); subsequent statutory references are to the Penal Code); battery involving the infliction of serious bodily injury (§ 243, subd. (d)); torture (§ 206); mayhem involving the personal infliction of great bodily injury resulting in coma (§§ 203, 12022.7, subds.(a) & (b)); and felony vandalism. (§ 594, subd. (b)(1).) The jury also found true an allegation that defendant had suffered a prior felony conviction. (§§ 667, 1170.12.) The trial court sentenced him to state prison for an aggregate term of life with the possibility of parole.

1

On this timely appeal, defendant presents a single contention: he could not properly be convicted on the assault and battery charges because they are lesser included offenses of torture. We reject the contention, and we affirm. In general, our Supreme Court has developed two tests to ascertain whether a given offense is a lesser included of another: “We have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) But only the elements test is applicable here. “The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. ‘As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense.’ [Citation.] ‘Because a defendant is entitled to notice of the charges, it makes sense to look to the accusatory pleading (as well as the elements of the crimes) in deciding whether a defendant had adequate notice of an uncharged lesser offense so as to permit conviction of that uncharged offense.’ [Citation.] But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses. ‘[I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged . . . .’ [Citation.]” (People v. Reed, supra, 38 Cal.4th 1224, 1229-1230.) Enhancements charged or proved are not part of this inquiry. (People v. Sloan (2007) 42 Cal.4th 110, 113–114.) The crime of torture is statutorily defined as follows: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion,