People v. Milward

Filed 8/18/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S182263

v. )

) Ct.App. 3 C058326

GEORGE MILWARD, )

) Sacramento County

Defendant and Appellant. ) Super. Ct. No. 02F05876

____________________________________)

While serving a life sentence, defendant attacked another inmate with a

deadly weapon. He was convicted of two crimes: (1) assault with a deadly

weapon or by means likely to inflict great bodily injury by a prisoner serving a life

sentence (Pen. Code, § 4500; hereafter aggravated assault by a life prisoner),1 and

(2) assault with a deadly weapon other than a firearm or by means likely to inflict

great bodily injury (§ 245, subd. (a)(1); hereafter aggravated assault).

Defendant argues that the conviction for aggravated assault must be

reversed because that offense is lesser than, and necessarily included within, the

offense of aggravated assault by a life prisoner. We agree. Because the Court of

Appeal reached a contrary conclusion, we reverse that court’s judgment.

1 All statutory citations are to this code.

1

I

On June 16, 2001, Donald Jones, a correctional officer at Folsom State

Prison, saw two life prisoners — Ernesto Torres and defendant George Milward

— attack inmate Ricardo Gonzales. When the attackers ignored Jones’s order to

lie down, he fired nonlethal rubber bullets at them, but they continued their attack

on Gonzales. After Jones’s fourth shot appeared to have hit defendant’s leg,

defendant backed away from Gonzalez and lay on the ground, as ordered by Jones.

When defendant was allowed to get up, he threw something over the wall. Jones

retrieved the item, which he described as an “inmate-manufactured razor-type

weapon.” Another inmate-made weapon, which had a cylindrical end that was

sharpened like an ice pick, was found in the grass near the scene of the attack on

inmate Gonzales. Gonzales had slash wounds (consistent with the weapon thrown

by defendant) as well as puncture wounds (consistent with the weapon found in

the grass).

Defendant was charged in count one with aggravated assault by a life

prisoner (§ 4500), in count two with possession of a sharp instrument by a prisoner

(§ 4502, subd. (a)), and in count three with aggravated assault (§ 245, subd.

(a)(1)). As a sentence enhancement to count one, it was alleged that defendant had

personally inflicted great bodily injury on inmate Gonzales (§ 12022.7, subd. (a)).

It was further alleged that defendant had two prior serious felonies (§ 1192.7) that

were “strikes” under the three strikes law (§§ 667, subd. (b)-(i), 1170.12). A jury

found defendant guilty of counts one and three, but the jury was unable to reach a

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verdict as to count two.2 Thereafter, a separate jury found the prior felony

allegations to be true.

The trial court sentenced defendant to life imprisonment with 27 years of

parole ineligibility on count one (aggravated assault by a life prisoner), plus a

consecutive term of five years for one of the two prior serious felony convictions,

both sentences to run consecutively to the life term that defendant was already

serving when he committed the crimes in this case. On count three (aggravated

assault) the court imposed a concurrent term of 25 years to life, plus five years on

the other prior conviction.

On appeal, defendant argued that his conviction for aggravated assault

should be vacated because it is a lesser offense included within the greater crime

of aggravated assault by a life prisoner, of which he was also convicted. The

Court of Appeal, rejecting the concession of this issue by the Attorney General,

upheld the conviction.

The Court of Appeal noted our decision in People v. Noah (1971) 5 Cal.3d

469, 477 (Noah), which held that aggravated assault (§ 245, subd. (a)) was a lesser

offense included within the crime of aggravated assault by an inmate not serving a

life sentence (§ 4501). The Court of Appeal acknowledged that “Noah applies to

section 4500 [aggravated assault by a life prisoner] equally as it applies to section

4501 [aggravated assault by a non-life prisoner]; that is, Noah compels the

conclusion that aggravated assault by a life prisoner could not be committed

without committing aggravated assault as then proscribed by section 245,

subdivision (a).” The Court of Appeal pointed out, however, that in 1982, 11

2 Like defendant, codefendant Torres was charged with aggravated assault by

a life prisoner and with aggravated assault, but the jury was unable to reach a

verdict on either charge.

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years after Noah, an amendment by the Legislature “materially changed” the

version of section 245’s subdivision (a) at issue in Noah. Thus, the Court of

Appeal held, Noah’s interpretation is “no longer . . . binding.”

The Court of Appeal concluded that the 1982 amendment created two

separate crimes: the offense of aggravated assault, which is committed with “a

deadly weapon or instrument other than a firearm” (§ 245, subd. (a)(1), italics

added) and assault “with a firearm” (§ 245, subd. (a)(2)). The Court of Appeal

reasoned: “[A]ggravated assault as provided by section 245, subdivision (a)(1)

cannot be committed with a firearm, because assaults with firearms are explicitly

excluded from that offense. However, aggravated assault by a life prisoner as

provided by section 4500 can be committed with a firearm, a type of deadly

weapon. Therefore, if a life prisoner committed an assault with a firearm, she or

he would violate section 4500, but would not violate section 245, subdivision

(a)(1). Therefore, the latter is not included within the former.” We granted

defendant’s petition for review.

II

As mentioned earlier, defendant, a life prisoner, attacked fellow inmate

Gonzales. A jury found him guilty of the crime of aggravated assault by a life

prisoner and the crime of aggravated assault. Both convictions were based on the

same conduct, namely, defendant’s attack on Gonzales. At issue is whether

defendant could lawfully be convicted of both of these crimes or only one of them.

Generally, there is no limit to the number of convictions arising from a

defendant’s act or course of conduct. (§ 954.) But an exception exists for lesser

included offenses. “[I]f a crime cannot be committed without also necessarily

committing a lesser offense, the latter is a lesser included offense within the

former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) In such cases, a defendant

may not be convicted of both the greater and the lesser offense. (People v. Reed

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(2006) 38 Cal.4th 1224, 1227.) Whether defendant’s two convictions — for

aggravated assault by a life prisoner (§ 4500) and for aggravated assault (§ 245,

subd. (a)(1)) — violates that rule is at issue here.

Section 4500 sets forth the elements as well as the punishment for the crime

of aggravated assault by a life prisoner: “Every person while undergoing a life

sentence . . . who, with malice aforethought, commits an assault upon the person

of another with a deadly weapon or instrument, or by any means of force likely to

produce great bodily injury is punishable with death or life imprisonment without

possibility of parole [if the victim dies as a result of the attack within a year and a

day after it occurs, and otherwise by] imprisonment . . . for life without the

possibility of parole for nine years.”

As to the crime of aggravated assault, section 245’s subdivision (a)(1)

states: “Any person who commits an assault upon the person of another with a

deadly weapon or instrument other than a firearm or by any means of force likely

to produce great bodily injury shall be punished by imprisonment in the state

prison for two, three, or four years, or in a county jail for not exceeding one year

. . . .” (Italics added.) And section 245’s subdivision (a)(2) provides: “Any

person who commits an assault upon the person of another with a firearm shall be

punished by imprisonment in the state prison for two, three, or four years, or in a

county jail for not less than six months and not exceeding one year . . . .” (Italics

added.) As noted earlier (see pp. 3-4, ante), subparagraphs (1) and (2) were

enacted by a 1982 amendment of section 245 (Stats. 1982, ch. 136, § 1, p. 437).

Previously, the Legislature had made no distinction between aggravated

assaults committed with a firearm and those committed by other means. Back

then, section 245’s subdivision (a) provided: “Every person who commits an

assault upon the person of another with a deadly weapon or instrument or by any

means of force likely to produce great bodily injury is punishable by imprisonment

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in the state prison for two, three or four years, or in a county jail not exceeding one

year . . . .” (Stats 1976, ch. 1139, § 152.5, p. 5105.) In amending that provision in

1982 to create subparagraphs (1) and (2), the Legislature’s apparent purpose was

to require a minimum punishment of six months’ imprisonment in county jail for

aggravated assaults committed with a firearm (§ 245, subd. (a)(2)), but not for

aggravated assaults committed by other means (§ 245, subd. (a)(1)).

Defendant asserts that the offenses described in section 245’s subdivision

(a)(1) (assault with a deadly weapon other than a firearm or by means likely to

inflict great bodily injury) and subdivision (a)(2) (assault with a firearm) should be

considered not in isolation but together as constituting one crime, that of

aggravated assault, and that so construed the “crime” is a lesser offense

necessarily included within the crime of aggravated assault by a life prisoner

(§ 4500). (See generally People v. Ortega (1998) 19 Cal.4th 686, 694-699 [the

traditional crime of theft, including both petty theft and grand theft, is necessarily

included within the crime of robbery]; People v. Ryan (2006) 138 Cal.App.4th

360, 364 [when the Legislature divided § 470, defining the traditional crime of

forgery, into subdivisions, it described “different ways of committing a single

offense, i.e., forgery”].) We need not decide whether defendant’s assertions are

correct, because we conclude that the offense described in section 245’s

subdivision (a)(1), which defendant was convicted of violating, is by itself

necessarily included within the greater crime of aggravated assault by a life

prisoner (§ 4500).

As explained earlier (see p. 4, ante) a crime is a lesser offense necessarily

included within a greater crime only if it is impossible to commit the greater crime

without also committing the lesser. The Court of Appeal here reasoned that if a

life prisoner committed an aggravated assault with a firearm, the prisoner would

be guilty of the crime of aggravated assault by a life prisoner (§ 4500) without

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also being guilty of violating section 245’s subdivision (a)(1), because the latter

provision states that it applies to an aggravated assault committed by a deadly

weapon “other than a firearm.” Therefore, the Court of Appeal concluded, the

latter offense is not a lesser offense necessarily included within the greater offense

of aggravated assault by a life prisoner.

The Court of Appeal would be right if the statutory phrase “other than a

firearm” appearing in section 245’s subdivision (a)(1) were an element of the

aggravated assault described in that subdivision. But we do not so construe the

statutory language, as explained below.

Pertinent here is our decision in People v. Rios (2000) 23 Cal.4th 450

(Rios). The defendant in that case was initially charged with murder. At his first

trial, the jury acquitted him of that crime, but it could not reach a verdict on the

lesser included offense of voluntary manslaughter. Because of the acquittal on the

murder charge, the defendant could not be retried for that offense (U.S. Const., 5th

Amend. [“nor shall any person be subject for the same offense to be twice put in

jeopardy”]), but he could be, and was, retried on the charge of voluntary

manslaughter.

Whereas murder is an “unlawful killing . . . with malice aforethought”

(§ 187, italics added), manslaughter is an “unlawful killing . . . without malice”

(§ 192, italics added). Malice is negated when the defendant kills as a result of

provocation or in “imperfect self-defense.” (Rios, supra, 23 Cal.4th at p. 467.) At

the retrial in Rios, the trial court did not instruct the jury on provocation or

imperfect self-defense. The jury found the defendant guilty of voluntary

manslaughter. On appeal, the defendant in Rios argued, in essence, that because

the jury was never instructed on provocation and imperfect self-defense, it never

determined whether he had acted without malice, and that absence of malice was a

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necessary element of manslaughter. The Court of Appeal in Rios rejected the

defendant’s contention, and we granted review.

In Rios, we agreed with the Court of Appeal that the trial court was right in

not instructing the jury that the absence of malice, as shown by provocation or

imperfect self-defense, was an element of voluntary manslaughter. We explained:

“[T]he People must establish malice . . . as an essential element of murder.

However, they need not prove the absence of malice, the issue to which

provocation and imperfect self-defense are relevant, in order to convict the

defendant of the lesser included offense of manslaughter.” (Rios, supra, 23

Cal.4th at p. 469, italics added, original italics deleted.) Otherwise, Rios said,

juries would face a dilemma: “A fact finder doubtful that provocation or

imperfect self-defense was lacking, but also not persuaded beyond reasonable

doubt that either was present, could convict the defendant of neither murder nor

voluntary manslaughter, even though it found the defendant had killed

intentionally, without justification or excuse. Such a result would turn the law of

criminal homicide on its head.” (Id. at p. 462.)

Although section 192 defines manslaughter as an “unlawful killing . . .

without malice” (italics added), the statutory phrase “without malice” is, under

Rios, supra, 23 Cal.4th at page 469, not an element of manslaughter, for the

reasons explained in the preceding paragraph; rather, it serves only to distinguish

manslaughter from the greater crime of murder. Therefore, a defendant who

commits an unlawful killing with malice can be convicted of manslaughter.

For similar reasons, here the statutory phrase “other than a firearm” is not

an element of section 245’s subdivision (a)(1), which punishes an assault with a

deadly weapon “other than a firearm” or by means likely to inflict great bodily

injury; a defendant who commits an assault with a firearm violates that

subdivision. To conclude otherwise could create for juries a dilemma similar to

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the one noted in Rios, supra, 23 Cal.4th at page 462, and discussed by us here at

page 8, ante.

For instance, if a defendant committed an assault with a deadly weapon,

and the jury was uncertain (because of conflicting evidence) whether the weapon

was a firearm, that jury could not convict the defendant of assault with a deadly

weapon other than a firearm (§ 245, subd. (a)(1)), because it had not been

established “beyond a reasonable doubt” (the prosecution’s burden of proof) that

the weapon used was “a deadly weapon . . . other than a firearm” (the phrase used

in section 245’s subdivision (a)(1)). Nor could the jury in our hypothetical convict

the defendant of assault with a firearm (§ 245, subd. (a)(2)), because of the

conflicting evidence on whether the weapon was actually a firearm.

To avoid placing a jury in that quandary, we conclude as follows: The

statutory language in section 245’s subdivision (a)(1) that pertains to an assault

with a deadly weapon “other than a firearm” is not an element of the crime there

described (aggravated assault). The quoted statutory phrase serves simply to

distinguish an assault so committed from the slightly more serious offense of

assault “with a firearm,” as set forth in section 245’s subdivision (a)(2).

Consequently, when, for instance, a jury is convinced beyond a reasonable doubt

that the defendant assaulted the victim with a deadly weapon, but because of

conflicting evidence is uncertain whether the weapon was indeed a firearm, the

jury can convict the defendant of aggravated assault, the crime set forth in section

245’s subdivision (a)(1).

Having just concluded that the phrase “other than a firearm” in section

245’s subdivision (a)(1) is not an element of the crime defined in that subdivision,

we further conclude that the crime defined in that subdivision is an offense

necessarily included within the greater offense set forth in section 4500, which

punishes a defendant who, “while undergoing a life sentence [and] with malice

9

aforethought, commits an assault . . . with a deadly weapon or instrument, or by

any means of force likely to produce great bodily injury.” (Italics added.) Our

reasons follow.

Earlier, we mentioned (see ante, at p. 4), that a crime is necessarily

included within a greater crime if the greater crime “cannot be committed without

also necessarily committing” the lesser offense. By its terms, section 245’s

subdivision (a)(1) is violated when the defendant commits an “assault,” either

“with a deadly weapon or instrument,” or by “force likely to produce great bodily

injury.” That language is identical to the language in section 4500 punishing a life

prisoner for committing “an assault . . . with a deadly weapon or instrument, or by

. . . force likely to produce great bodily injury.” (§ 4500 is the greater offense

because the minimum sentence for a defendant who violates that section is a term

of life imprisonment without the possibility of parole for nine years, whereas the

maximum sentence for a violation of § 245’s subd. (a)(1) is a four-year prison

term.) Thus, every element of the crime described in section 245’s subdivision

(a)(1) is also an element of the crime set forth in section 4500, and consequently

every defendant who violates section 4500 necessarily also violates the lesser

offense described in section 245’s subdivision (a)(1).

The law prohibits simultaneous convictions for both a greater offense and a

lesser offense necessarily included within it, when based on the same conduct.

(People v. Reed, supra, 38 Cal.4th at p. 1227.) “When the jury expressly finds

defendant guilty of both the greater and lesser offense . . . the conviction of [the

greater] offense is controlling, and the conviction of the lesser offense must be

reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763.) Here, the jury convicted

defendant of violating — based on the same conduct —section 4500 and section

245’s subdivision (a)(1). Because, as explained earlier, the latter is a lesser

10

offense necessarily included within the former, the Court of Appeal erred in not

reversing the conviction for the lesser offense (§ 245, subd. (a)(1)).

DISPOSITION

The judgment of the Court of Appeal is reversed, and the matter is

remanded to that court with directions to reverse defendant’s conviction for assault

with a deadly weapon or instrument other than a firearm or by means of force

likely to inflict great bodily injury (§ 245, subd. (a)(1)).

KENNARD, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

KING, J.*

* Associate Justice of the Court of Appeal, Fourth Appellate District,

Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Milward

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 182 Cal.App.4th 1477

Rehearing Granted

__________________________________________________________________________________

Opinion No. S182263

Date Filed: August 18, 2011

__________________________________________________________________________________

Court: Superior

County: Sacramento

Judge: Patricia C. Esgro

__________________________________________________________________________________

Counsel:

Valerie G. Wass, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, David A. Rhodes and

Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Valerie G. Wass

556 South Fair Oaks Avenue, Suite 9

Pasadena, CA 91105

(626) 797-1099

Ivan P. Marrs

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 324-0069