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Name: People v. Smith
Case #: S201186
Court: CA Supreme Court
District CalSup
Opinion Date: 07/18/2013

Where an accusatory pleading alleges both ways of violating Penal Code section 69, Penal Code section 148, subdivision (a)(1) is a necessarily included lesser offense. On two separate occasions, appellant resisted guards in a jail using force and violence. He was charged with and convicted of two counts of resisting an executive officer (Pen. Code, § 69), with the jury noting that “defendant violently or forcefully resisted deputies . . . .” The court declined to instruct on section 148, subdivision (a)(1), as a lesser included offense. The Supreme Court granted review to resolve a conflict in the Court of Appeals on the issue of whether section 148, subdivision (a)(1) is a lesser included offense of section 69. A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. Section 69 can be violated in two ways. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his duty. While a person who violates section 69 in the second way also necessarily violates section 148, subdivision (a)(1), it is possible to violate section 69 in the first way without violating section 148, subdivision (a)(1). Thus, section 148, subdivision (a)(1) is not a lesser included offense of section 69 based on the statutory elements of each offense. However, if the accusatory pleading charges both ways of committing section 69 and there is substantial evidence that the defendant violated section 148, subdivision (a)(1) without also violating section 69, the court has a duty to instruct on the lesser offense. Here, although the pleading alleged both ways of violating section 69, there was no evidence that appellant committed only the lesser offense of resisting without the use of force or violence in violation of section 148, subdivision (a)(1). Therefore the court had no duty to instruct on section 148, subdivision (a)(1).