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Name: People v. Mullendore
Case #: D064675
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/21/2014

Defendant’s felony conviction for throwing object at car reversed because jury was not instructed on lesser included misdemeanor offense. Appellant walked across a congested street without going to the crosswalk or watching for traffic. A motorist drove very close to appellant, laying on his horn as he passed. In anger, appellant threw his backpack at the car, breaking the windshield. He was convicted of throwing a substance at a car with the intent to inflict great bodily injury (Veh. Code, § 23110, subd. (b)), as well as misdemeanor assault and vandalism. He appealed. Held: Reversed. Subdivision (a) of section 23110, which prohibits throwing a substance at a vehicle on a highway, is a lesser included offense of 23110, subdivision (b), which prohibits maliciously throwing/projecting an object at a vehicle with the intent to inflict great bodily injury. The trial court declined to instruct on the misdemeanor offense, finding the felony offense need not occur on a highway and could be committed by “projecting,” rather than “throwing,” an object. However, this is contrary to the plain language of the statute. Both subdivisions (a) and (b) require that the vehicle be on a highway. In any event, the information alleged the felony offense was committed on a highway. Thus, under either the statutory elements or pleading tests, the misdemeanor was a lesser included offense of the felony. Further, there is no meaningful distinction between throwing a substance and projecting one within the meaning of the statute. The failure to instruct on the lesser included offense was prejudicial error because the jurors could have reasonably found that appellant had no intent to inflict great bodily injury.