The jury improperly convicted defendant of two uncharged lesser related offenses based on one charged offense. At 1:00 a.m., Solis climbed through a bedroom window of the home of his former girlfriend and stabbed her about 20 times with a screwdriver, inflicting numerous injuries, including a life-threatening wound to her carotid artery. Among other offenses, he was charged with attempted premeditated murder. At a jury trial, the court instructed on uncharged lesser offenses. The jury acquitted Solis of the attempted murder charge but found appellant guilty of the uncharged lesser related offenses of mayhem (Pen. Code, § 203) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). On appeal, Solis argued that he could not be convicted of two separate, uncharged, lesser related offenses of a single charged greater offense. Held: Judgment modified to strike assault conviction. Penal Code section 1159 states that the jury “may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged . . . .” The court rejected the Attorney General’s argument that section 1159 should be interpreted to allow the number of convictions in a case to exceed the number of charges. Neither the language of the statute or case authority dealing with comparable issues indicate that section 1159 allows this. No published case allows multiple lesser related offense convictions to stem from one charged offense. If such an interpretation were adopted, a defendant could be convicted of two uncharged strike offenses instead of only one, which occurred in Solis’ case. Solis had a right to know that he faced this outcome when only charged with one strike offense. The remedy for the error is to strike the conviction with the lesser prison term. Here, since mayhem has the longest term, the conviction for the assault was struck. [Editor’s Note: A similar issue related to lesser included offenses is currently pending in the California Supreme Court. (People v. Eid (2013) 216 Cal.App.4th 740, review granted 9/18/13 (S211702/G046129).)]

The trial court did not err in failing to dismiss two of appellant’s three strike priors. Solis admitted three prior strike allegations. He was ultimately sentenced to an aggregate term of 36 years to life in prison. The trial court denied his Romero motion to dismiss two of the three prior strikes (two 1983 Penal Code section 245, subdivision (a)(1) convictions). On appeal, he argued that the trial court abused its discretion by sentencing on strikes that he suffered roughly 30 years before the offense at issue in this case. Held: No abuse of discretion. Solis’ current offense and criminal history show that he was not “outside the spirit” of the Three Strikes Law and support sentencing under the law. Likewise, there was no Eighth Amendment violation as the sentence was not disproportionate to the crime or to Solis’ criminal history.