In conspiracy to commit murder case, trial court did not err in failing to instruct the jury on conspiracy to commit lesser offenses based on the overt acts described in the information. Cortez and his friend conspired to murder Perez and his son, Alvino. In this endeavor, the defendants shot into a car containing Perez and Alvino, and fired numerous rounds into the house of Perez’s relative. The defendants were convicted of conspiracy to commit murder and other offenses. On appeal Cortez argued the trial court committed reversible error by not instructing the jury on conspiracy to commit assault and to shoot at an inhabited dwelling as necessarily included within the charged offense. Held: Affirmed. The test for determining whether there is a necessarily included offense is whether one offense cannot be committed without necessarily committing another offense. This can be determined via the statutory elements or the accusatory pleading tests. The issue here was evaluated under the accusatory pleading test, i.e., whether language in the information describing the overt acts for the conspiracy should be considered in establishing included offenses. There is a split of authority as to whether the alleged overt acts can be considered when determining whether the court is required to instruct on lesser included offenses (see, e.g., People v. Cook (2001) 91 Cal.App.4th 910 [instruction on lesser offense based on overt acts required], People v. Fenenbock (1996) 46 Cal.App.4th 1688 [the description of the agreement, not the overt acts, dictate whether a lesser offense was a target of the conspiracy]). The court concluded that a trial court may consider overt acts when determining whether lesser included conspiracy instructions are required. However, there were insufficient allegations in this case that the defendants agreed to commit any crime other than murder. There was no error.
Even if the accusatory pleading allegations supported instruction on conspiracy to commit an assault or shoot into an inhabited dwelling, there was insufficient evidence to merit such instructions. A trial court need not instruct a jury on a necessarily included offense without substantial evidence or with no evidence the offense was less than charged. Here, there was insufficient evidence of a conspiracy for any offense other than to commit murder. Further, Cortez did not claim he committed the two lesser offenses, but testified he did not conspire with his codefendant to commit any offense at all. There was overwhelming evidence that Cortez conspired with another to commit murder. Even assuming the trial court should have instructed on conspiracy to commit lesser target offenses, the error was harmless because it is not reasonably probable a more favorable result would have occurred absent the error.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064915.PDF