Majority
Defendant was tried under an information charging two counts of assault with a deadly weapon, in violation of Penal Code section 245.[1] A jury found defendant guilty of two counts “of Drawing and Exhibiting a Firearm in Violation of Section 417 Penal Code, a misdemeanor, a lesser and necessarily included offense. ...”
It is necessary to reverse the judgment because the offenses of which defendant was convicted were not within the charges made by the accusatory pleading. (People v. Diamond, 33 Cal.App.2d 518 , 522 [ 92 P.2d 486 ].) In People v. Torres, 151 Cal.App.2d 542 [ 312 P.2d 9 ], a conviction for assault with a deadly weapon was affirmed in a case where the trial court had refused the defendant’s request that the jury be given the option of finding him guilty of a violation of section 417 as an included offense. The court explained (at p. 544) : “Section 417 of the Penal Code forbids the unlawful use in a fight or quarrel of a deadly weapon and the exhibition of such a weapon in the presence of another person in a rude, angry, or threatening manner. An assault with a deadly weapon can be committed without violating any provision of Penal Code, section 417, as by firing a gun through a coat pocket without either drawing or exhibiting the weapon and without then being engaged in a fight or quarrel.”
The Attorney General has argued that the judgment may be saved by application of the principles set forth in People v. Marshall, 48 Cal.2d 394 [ 309 P.2d 456 ], and People v. Collins, 54 Cal.2d 57 [ 4 Cal.Rptr. 158 , 351 P.2d 326 ]. In our view, neither of those eases applies here.
In the Marshall ease the defendant was charged by an information alleging robbery, in violation of Penal Code section 211, in that defendant did forcibly take from the person of the victim an automobile. Defendant was found guilty of a violation of what was then Vehicle Code section 503 (now Vehicle Code section 10851), which made it a felony to take a vehicle without the consent of the owner. The judgment was affirmed. The Vehicle Code offense was not necessarily included within the statutory definition of robbery because robbery does not necessarily involve the taking of a vehicle.
1 Penal Code section 245 reads: ‘ ‘ Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the State prison not exceeding ten years, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. ’ ’
In the present case the information pleads assault with a deadly weapon in general terms, without alleging that the weapon was displayed in the presence of another in a rude, angry or threatening manner. Thus it is insufficient to give notice that the accused is charged with an offense which includes those elements.
In People v. Collins, supra, the information charged rape with force in violation of subdivision 3 of section 261 of the Penal Code. The age of the victim was not stated in the information, but the evidence at the preliminary hearing and at the trial showed that her age was 15. Defendant was found guilty of rape in violation of subdivision 1 of section 261 (intercourse with a female under the age of 18). The judgment was affirmed. The Supreme Court pointed out that “The subdivisions of section 261 do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape.” (54 Cal.2d at p. 59.) The discrepancy between the pleading and the judgment was treated as a variance which would invalidate the judgment only if prejudicial to the defendant. The court concluded that, since it was established at the preliminary hearing that the victim was 15 years of age, defendant could not have been misled, and the variance was not prejudicial.
In the present case the Attorney General has moved to augment the record on appeal by bringing up the transcript of the preliminary hearing to show that the evidence taken there established that the defendant displayed his weapon in the presence of the victims in a rude, angry and threatening manner. We are denying the motion to augment because we do not believe that the preliminary transcript may be used to expand the information to include a different offense. In the Collins case the key to the reasoning of the court was that rape as defined in subdivision 1 and rape as defined in subdivision 3 of section 261 are not different offenses. Nothing in that opinion indicates that a defendant may be found guilty at the trial of any offense shown by the preliminary transcript, irrespective of what is charged by the information. It is true
Defendant’s notice of appeal refers to both the judgment and the order denying his motion for a new trial. The latter order not being separately appealable (Pen. Code, § 1237), the attempted appeal therefrom is dismissed.
The judgment is reversed.
Jefferson, J., and Kingsley, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied April 14,1965.
Cases cited
- People v. Diamond 33 Cal.App.2d 518 at 522 p. 397
- People v. Torres 151 Cal.App.2d 542 p. 397
- People v. Marshall 48 Cal.2d 394 p. 397
- People v. Collins 54 Cal.2d 57 p. 397
- People v. Roberts 40 Cal.2d 483 at 486 p. 400
- People v. Burch 196 Cal.App.2d 754 at 764 p. 400
- People v. Mason 184 Cal.App.2d 317 at 354 p. 400