People v. Wilson

[373]Opinion

EMERSON, J. *The jury found appellant David Eugene Wilson guilty of attempting to commit the voluntary manslaughter of Eddie J. Conley (see Pen. Code, § 192, subd. 1 and § 644) and of committing an assault with a deadly weapon upon Conley and Rodney H. Boudreau (Pen. Code, § 245). The jury also found that appellant was armed with and used a deadly weapon during the commission of the crimes. Concurrent sentences were imposed for the two convictions of assault with a deadly weapon. The sentence for attempted manslaughter upon Eddie J. Conley was suspended and stayed pending completion of the sentences under the other two offenses.

Appellant complains of the convictions of both attempted voluntary manslaughter and assault with a deadly weapon as to the victim, Eddie J. Conley, on the ground that assault with a deadly weapon is an offense necessarily included within that of voluntary manslaughter.

If the offense of assault with a deadly weapon were an offense necessarily included within a charge of attempted voluntary manslaughter, the conviction of the lesser offense would have to be reversed. (See People v. Ramirez (1969) 2 Cal.App.3d 345, 351-352 [82 Cal.Rptr. 665]; see also The Included Offense Doctrine in California, 10 UCLA L.Rev. 870, 872, fn. 7.)

Inclusion may occur in either of two situations. The first occurs where the statutory elements of the two crimes are so similar that the greater crime cannot be committed without necessarily committing the lesser one. (People v. Jarrett (1970) 6 Cal.App.3d 737, 740 [86 Cal.Rptr. 15].) Such is not the case here, since the commission of voluntary manslaughter need not be attempted with a deadly weapon. (See People v. Ramos (1972) 25 Cal.App.3d 529, 538 [101 Cal.Rptr. 230]; and People v. Benjamin (1975) 52 Cal.App.3d 63, 71 [124 Cal.Rptr. 799].) Inclusion also may occur where the elements of the lesser offense are covered by the language of the accusatory pleading, even though these elements are not necessarily encompassed within the statutory definition of the crime charged. (People v. Marshall (1957) 48 Cal.2d 394, 397 [309 P.2d 456]; see also People v. Collins (1960) 54 Cal.2d 57, 59 [4 Cal.Rptr. 158, 351 P.2d [374326]