P. v. Rayman

Filed 2/15/06 P. v. Rayman CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura Palmer Hammes, Judge. Reversed.

The People charged Ronald Gayle Rayman with assault with a deadly weapon and instrument and by means of force likely to produce great bodily injury while personally using a deadly weapon (a knife) (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23))^[1] and child abuse while personally using a deadly weapon (a knife) (§§ 273a, subd. (a), 12022, subd. (b)(1)). A jury convicted Rayman of brandishing a deadly weapon (§ 417, subd. (a)(1)), as a lesser included offense of the assault charge, but acquitted him of the two charges contained in the information. The court committed him to the sheriff for 30 days but suspended the sentence and placed him on summary probation for three years.

Rayman contends the trial court committed reversible error in instructing the jury on brandishing a deadly weapon as a lesser related offense of assault with a deadly weapon. We conclude that the trial court committed reversible error in instructing the jury on the uncharged offense of brandishing a weapon.

FACTUAL BACKGROUND

On July 14, 2004, a group of teenagers taunted Rayman while he was fishing in Ocean Beach. He had a fishing pole and a knife to fillet the fish he caught. The youths called Rayman things like "psycho" and "druggie." Rayman angrily yelled back. One of the youths, 12-year-old B.J., told a lifeguard and the police and testified at trial that Rayman held a knife under her chin and threatened to kill her. During trial, after B.J. testified, one of the youths that had been with her testified inconsistently to what B.J. told the lifeguard and officers about what occurred. The People rested and Rayman testified that he is homeless and sleeps in different places in Ocean Beach. On the day of the incident a group of youths taunted him, and he yelled back. He had in his hand a butter knife he uses to obtain bait from mussels. He testified he never held a knife at anyone's throat and did not intend to threaten anyone with the knife.

After both parties rested, over defense objection, the trial court instructed the jury the following on the lesser offense of brandishing a deadly weapon:

"Exhibiting a deadly weapon, a violation of . . . section 417[, subdivision] (a)(1), is a lesser offense to [c]ount 1, assault with a deadly weapon. I think I referred to this lesser offense either as brandishing or as exhibiting a deadly weapon. It could be called either one.

"Every person who in the presence of another person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner is guilty of a violation of . . . section 417[, subdivision] (a)(1), a misdemeanor.

"In order to prove this crime, each of the following elements must be proved: One, a person, in the presence of another person, drew or exhibited a deadly weapon, other than a firearm; and, two, that person did so in a rude, angry, or threatening manner. [¶] . . . [¶]

"If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime of which he is accused in [c]ount 1 or 2, and you unanimously so find, you may convict him of a lesser crime to those counts provided you are satisfied beyond a reasonable doubt that he is guilty of such lesser crime."

DISCUSSION

The parties agree that a defendant cannot over objection be convicted of an offense with which he is not charged, other than a necessarily included offense. (See People v. Toro (1989) 47 Cal.3d 966, 973.) A crime is a lesser included offense only if the charged crime cannot be committed without committing the lesser offense. (See People v. Birks (1998) 19 Cal.4th 108, 117; accord, People v. Breverman (1998) 19 Cal.4th 142, 154.) Because assault with a deadly weapon can be committed without brandishing a weapon, brandishing a weapon is not a lesser included offense to assault with a deadly weapon. (People v. Steele (2000) 83 Cal.App.4th 212, 218.)

Relying on People v. Wilson (1967) 66 Cal.2d 749, 764 and People v. Coffey (1967) 67 Cal.2d 204, 222, footnote 21, the People argue that brandishing a deadly weapon is a lesser included offense of assault with a deadly weapon. The People argue these decisions are binding on this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In People v. Wilson, supra, 66 Cal.2d 749, the defendant was convicted of two counts of murder, one count of assault with intent to commit murder, and an unidentified lesser offense of a second assault with a deadly weapon charge. The court instructed the jury that murder committed in the perpetration of burglary is murder in the first degree regardless of whether the killing is intentional or accidental. (Id. at p. 756.) One of Wilson's defenses was that he entered the apartment where the crimes occurred with the intent to scare the victims, which is a misdemeanor and therefore the killings were not committed during a burglary. The Supreme Court held that the trial court's failure to sua sponte instruct the jury on brandishing a weapon was reversible error because it was a general principle of law relevant to the issues before the court. (Id. at pp. 757, 759.) The question of whether brandishing a weapon is a lesser included crime of assault with a deadly weapon was not considered by the court. " '[L]anguage contained in a judicial opinion is " 'to be understood in the light of the facts and issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citation.]' " [Citations.]' " (Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 66.)

In People v. Coffey, supra, 67 Cal.2d 204, the defendant was convicted of two counts of assault with intent to commit murder and four counts of assault with a firearm. Before the Supreme Court, the People argued that impeachment of the defendant with an invalid prior conviction was harmless error because the defendant testified to all elements necessary to support the convictions. The Supreme Court found to the contrary, pointing out that the defendant testified he did not have the intent to injure the victims. After noting that to support a conviction of aggravated assault there must be evidence that the defendant had the intent to commit a violent injury, the Supreme Court quoted section 417 (brandishing a weapon), and said: "The jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in those charged. [Citation.]" (People v.Coffey, supra, 67 Cal.2d at p. 222, fn. 21.) Statements that are not necessary to the determination of a case are dictum and lack precedential impact. (United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834-835.) Because in People v. Coffey, supra, 67 Cal.2d 204, the statement that brandishing a weapon is a lesser included offense of aggravated assault was a general statement and not a statement necessary to the court's determination of the case, it was dictum and does not fall within the principle of stare decisis under Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450. Rather, we must rely on the recent Supreme Court rulings in People v. Birks, supra, 19 Cal.4th at page 117, and People v. Breverman, supra, 19 Cal.4th at page 154, applied to the precise issue before this court in People v. Steele, supra, 83 Cal.App.4th at page 218.

While discussing the People's request for an instruction on brandishing a weapon, the trial court specifically recognized that brandishing a weapon is a lesser related offense of assault with a deadly weapon, not a lesser included offense, but agreed to include an instruction on brandishing a weapon because the People had presented evidence on that offense at the preliminary hearing and therefore Rayman could not claim surprise. The People chose not to amend the information to include a charge of brandishing a weapon. During closing argument, both the People and Rayman referred to brandishing a weapon as a lesser included offense of assault with a deadly weapon. The court merely referred to brandishing as a lesser offense. Because assault with a deadly weapon can be committed without brandishing a weapon, brandishing a weapon is not a lesser included offense within assault with a deadly weapon, and the trial court erred in instructing the jury over Rayman's objection on the uncharged crime of brandishing a weapon. Because a defendant cannot over objection be convicted of an offense with which he is not charged, other than a necessarily included offense, the error is reversible. (See People v. Toro, supra, 47 Cal.3d at p. 973.)

DISPOSITION

The judgment is reversed.

NARES, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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^[1] All statutory references are to the Penal Code.