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Filed 6/14/22 P. v. Duenas CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ISMAEL SANDOVAL DUENAS,

Defendant and Appellant.

C093873

(Super. Ct. No. STK-CRFECOD-2019-0013731)

Defendant Ismael Sandoval Duenas was charged with several offenses including 

cultivating more than six cannabis plants (Health & Saf. Code, § 11358, subd. (c)—count 

3) and possession of cannabis for sale (Health & Saf. Code, § 11359, subd. (b)—count 4). 

The trial court also instructed the jury on the offense of possessing more than 28.5 grams 

of cannabis (Health & Saf. Code, § 11357, subd. (b)), though that charge was not 

included in the information. After trial, a jury found defendant guilty on count 3 and 

possessing more than 28.5 grams of cannabis (Health & Saf. Code, § 11357, subd. (b)), 

as a purported lesser offense of count 4. For these offenses, the trial court suspended 

imposition of sentence and placed defendant on one year of probation. 
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On appeal, defendant contends his conviction for possessing more than 28.5 grams 

of cannabis must be reversed because he was not charged with that offense, and it is not a 

lesser of count 4. The People concede that possessing more than 28.5 grams of marijuana 

is not a lesser included offense to the crime of possession for sale, but contend defendant 

“implicitly consented to the jury’s consideration of” possessing more than 28.5 grams of 

cannabis as an offense “related” to possession for sale, for which he was charged in count 

4. Defendant has the better argument.

PROCEDURAL BACKGROUND

The underlying facts of the case are irrelevant to the issue on appeal and we do not 

recite them.

In February 2020, the People charged defendant with felony theft of utility 

services (Pen Code, § 498—count 1), felony vandalism (Pen. Code, § 594, subd. (b)(1)—

count 2), cultivation of more than six cannabis plants (Health & Saf. Code, § 11358, 

subd. (c)—count 3), and possession of cannabis for sale (Health & Saf. Code, § 11359, 

subd. (b)—count 4). Defendant pleaded not guilty to the charges.

Prior to the close of evidence, the court proposed instructing the jury with 

CALCRIM No. 2375, the instruction for possession of more than 28.5 grams of cannabis,

as a lesser included offense on counts 3 and 4. The court asked if there were any 

objections and defense counsel responded: “That’s fine. And then just so the record’s 

clear, I’m personally not requesting the lesser.

“THE COURT: Yeah. I have to give it as a matter of law. But we’ll note your 

objection.” The court instructed the jury accordingly.

After trial, the jury found defendant not guilty on counts 1, 2, and 4, but found 

defendant guilty on count 3 and guilty of possessing more than 28.5 grams of cannabis as 

a lesser included offense of count 4. Identifying count 3 as the principal term, the trial 

court subsequently suspended imposition of sentence and placed defendant on one year of 
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informal probation with the court. The court also ordered defendant to complete 80 hours 

of community service and pay a $500 fine along with statutory fines and fees.

Defendant timely appealed.

DISCUSSION

Defendant contends his conviction on count 4, the uncharged offense of 

possessing more than 28.5 grams of cannabis, was in error. In response, the People argue 

defendant implicitly agreed to amend the information to add the uncharged offense when 

he failed to object to the proposed jury instruction of possessing more than 28.5 grams of 

cannabis on the ground that the offense was not charged in the information. The People 

are mistaken.

Lesser Included Offenses

“Under California law, 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.” (People v. Birks (1998) 

19 Cal.4th 108, 117.) To ascertain whether one crime is necessarily included in another, 

courts may look either to the accusatory pleading or the statutory elements of the crimes. 

(People v. Robinson (2016) 63 Cal.4th 200, 207.) Here, the information charged

defendant in count 4 by merely incorporating the statutory definition of Health & Safety

Code section 11359, subdivision (b), and without referring to the particular facts, thus we

must rely on the statutory elements to determine if there is a lesser included offense. (See

Robinson, at p. 207.)

The elements test is satisfied if the statutory elements of the greater offense

include all of the statutory elements of the lesser offense, such that all legal elements of

the lesser offense are also elements of the greater. (People v. Smith (1998)

64 Cal.App.4th 1458, 1471.) In other words, “ ‘ “[I]f a crime cannot be committed
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without also necessarily committing a lesser offense, the latter is a lesser included offense

within the former.’ ’ ” (People v. Bailey (2012) 54 Cal.4th 740, 748.)

Here, the offense of possessing more than 28.5 grams of cannabis, of which the 

trial court instructed the jury was lesser to the charged (greater) offense of possession of 

cannabis for sale, includes the additional element of possessing cannabis weighing more 

than 28.5 grams, which is not an element of the charged offense. Because the crime of 

possession of cannabis for sale can be committed without necessarily possessing 28.5 

grams, the crime of possessing more than 28.5 grams is not lesser thereof.

Lesser Related Offenses

The People concede this offense is not necessarily included in the charged offense 

of possessing cannabis for sale, rather they contend it is a lesser related offense to which 

the defendant impliedly consented be presented as an option to the jury. They rely on 

People v. Toro (1989) 47 Cal.3d 966 (Toro), disapproved on another ground in People v. 

Guiuan (1998) 18 Cal.4th 558, 568, footnote 3, in arguing that here defense counsel 

stated that he was “personally not requesting the lesser,” he did not state that he had any 

objection on notice grounds. In contrast, defendant argues that Toro is distinguishable as 

here defendant did not consent, either expressly or impliedly, to an instruction from 

which he could derive no benefit.

“An accusatory pleading provides notice of the specific offense charged and also 

of offenses included within the charged offense [citations], but it does not provide notice 

of nonincluded offenses; consequently, ‘[a] person cannot be convicted of an offense 

(other than a necessarily included offense) not charged against him by indictment or 

information, whether or not there was evidence at his trial to show that he had committed 

that offense’ [citation]. 

“However, an exception to this rule has long been recognized in cases where a 

defendant expressly or impliedly consents to have the trier of fact consider a nonincluded 

offense: ‘Since a defendant who requests or acquiesces in conviction of a lesser offense 
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cannot legitimately claim lack of notice, the court has jurisdiction to convict him of that 

offense.’ [Citations.]” (Toro, supra, 47 Cal.3d at p. 973.) A defendant can consent to 

conviction of a nonincluded offense “when the instructions are given by the court sua 

sponte and no defense objection was raised, despite ample opportunity, to either the 

instructions or the verdict forms by which the nonincluded offense was submitted to the 

jury.” (Id. at pp. 974; see id at pp. 977-978.) 

Analysis

Initially, we do not agree that defendant failed to object. In making the record 

clear as to his position, defense counsel said he was “not requesting the lesser.” The trial 

court stated that the instruction was required, “[b]ut we’ll note your objection.” There 

was no need for defendant to further solidify his noted objection. Yet even if the 

exchange was not sufficient to serve as an objection, as explained below, he is still 

entitled to relief. 

In Toro, the defendant was charged with attempted murder (Pen. Code §§ 187, 

664) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). As to each 

count, it was alleged that the defendant intentionally inflicted great bodily injury (Pen. 

Code, § 12022.7). As to the attempted murder count, it was alleged that the defendant 

had used a deadly weapon (Pen. Code, § 12022, subd. (b)). (Toro, supra, 47 Cal.3d at 

p. 970.) After an unreported conference on jury instructions the trial judge, in the 

absence of the jury, listed by CALJIC number each of the instructions he proposed to 

give “ ‘absent any objection.’ ” (Id. at p. 977.) No objection was made, and in addition 

to the charged offenses the jury was instructed on and received verdict forms for, the 

offenses of attempted voluntary manslaughter (Pen. Code, §§ 192, 664), battery with 

serious bodily injury (Pen. Code, § 243, subd. (d)), simple battery (Pen. Code, § 242) and 

simple assault (Pen. Code, § 240), all of which were described in the instructions and 

verdict forms as lesser included offenses. The jury found the defendant guilty of battery 
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with serious bodily injury as a lesser offense to the attempted murder charge and not 

guilty of the alternative charge of assault with a deadly weapon. (Toro, at p. 971.)

As the Toro court found, “battery with serious bodily injury is not a lesser 

included offense of attempted murder” and thus proceeded to analyze the case as a 

nonincluded offense. (Toro, supra, 47 Cal.3d at p. 972.) The Toro court held that “A 

conviction for a nonincluded offense implicates a defendant’s due process right to notice. 

‘No principle of procedural due process is more clearly established than that notice of the 

specific charge, and a chance to be heard in a trial of the issues raised by that charge, if 

desired, are among the constitutional rights of every accused in a criminal proceeding in 

all courts, state or federal.’ [Citations.] ‘A criminal defendant must be given fair notice 

of the charges against him in order that he may have a reasonable opportunity properly to 

prepare a defense and avoid unfair surprise at trial.’ [Citation.]” (Id. at p. 973.)

The Toro court did not stop there however: “In summary, the due process notice

requirement precludes conviction for a lesser related offense when the defendant has not 

consented to its consideration by the trier of fact, but fundamental fairness also requires 

that the trier of fact be permitted to consider the lesser related offense when the defendant 

requests it. Thus, the law recognizes that instructions on lesser related offenses may be 

highly beneficial or prejudicial to the defendant, depending on the defendant’s trial 

preparation, the nature of the defense presented, and other matters of trial strategy. 

Because the defendant, assisted by counsel, is the only person who can assess the impact 

of lesser related offense instructions in a given case, the decision to permit or preclude 

consideration of the lesser related offense is a right accorded to the defendant.” (Toro,

supra, 47 Cal.3d at p. 975; see also People v. Birks, supra, 19 Cal.4th at p. 128 [“Unless 

the defendant agrees, the prosecution cannot obtain a conviction for any uncharged, 

nonincluded offense”].)
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The Toro court ultimately held that the defendant’s failure to object constituted an 

implied consent to the jury’s consideration of the lesser related offense and a waiver of 

any objection based on lack of notice. (Toro, supra, 47 Cal.3d at p. 978.)

However, the lesser offense doctrine has long been recognized as one intended to 

benefit both the defense and the prosecution. (Toro, supra, 47 Cal.3d at pp. 969-970.)

The Supreme Court also recognized this when they emphasized in Toro that “submission

of lesser related offenses to the jury enhances the reliability of the fact-finding process to

the benefit of both the defendant and the People.” (Ibid., italics added.) And again,

“Lesser related offense instructions generally are beneficial to defendants and in a given

case only the defendant knows whether his substantial rights will be prejudicially affected

by submitting a lesser related offense to the jury.” (Id. at p. 977.) As such, we find the 

holding in People v. Anderson (2020) 9 Cal.5th 946 (Anderson) provides clarity on the 

evolution of the law as applicable to the instant case.

The defendant in Anderson was charged with first degree murder and several 

robberies. The murder charge included a 25-year-to-life firearm enhancement allegation 

pursuant to Penal Code section 12022.53, subdivisions (d) and (e). By contrast, each of 

the robbery counts included two personal use firearm enhancement allegations, one a 10-

year enhancement pursuant to Penal Code section 12022.53, subdivision (b), and a three-, 

four-, or 10-year enhancement allegation pursuant to Penal Code section 12022.5, 

subdivision (a). None of the robberies included a 25-year-to-life enhancement as the 

murder charge did. (Anderson, supra, 9 Cal.5th at pp. 950-951.)

At the close of evidence, the trial court instructed the jury that it could find that the 

prosecution proved the elements of the 25-year-to life firearm enhancements under Penal 

Code section 12022.53, subdivision (e) as to the robbery counts and submitted verdict 

forms to the same effect. The record did not show how this occurred, but the Anderson 

court concluded it appeared that the prosecution requested such at the close of evidence. 

(Anderson, supra, 9 Cal.5th at p. 951.) The jury then convicted Anderson on all 10 
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counts and returned true findings on all the enhancement allegations. At sentencing, the 

trial court sentenced Anderson to a total of 189 years to life, including a total of 125 years 

to life for the enhancements corresponding to the five robbery counts. (Id. at p. 952.)

On appeal, Anderson argued for the first time that the trial court erred in imposing 

the five unpleaded 25-year-to-life enhancements, arguing the enhancements had not been 

adequately charged. The Court of Appeal rejected Anderson’s argument. (Anderson, 

supra, 9 Cal.5th at pp. 952.)

Before the Supreme Court, the Attorney General in Anderson acknowledged that 

the charging information did not satisfy the applicable statutory pleading requirements 

but urged the court to uphold Anderson’s sentence on the ground that the jury instructions 

and verdict forms gave Anderson sufficient notice. The Attorney General argued, (as he 

does here) that by not objecting to the instructions or verdict forms, Anderson impliedly 

consented to an informal amendment of the information and alternatively, Anderson’s 

failure to object forfeited his right to raise the issue on appeal. (Anderson, supra, 

9 Cal.5th at pp. 957-958.) The Anderson court noted that the Attorney General’s 

argument relied primarily on Toro. But the Supreme Court distinguished the situation in 

Anderson, from that in Toro. “The situation in Toro, in which the jury was given the 

option of convicting the defendant of a lesser offense, was quite different from the 

situation we confront in this case. Unlike the defendant in Toro, Anderson derived no 

possible benefit from submitting the unpleaded 25-year-to-life enhancements to the jury. 

There is therefore no reason to presume from defense counsel’s silence that Anderson 

consented to this procedure. (Cf., e.g., People v. Ramirez (1987) 189 Cal.App.3d 603, 

623 [‘Conviction for an uncharged greater offense not only raises the problem of notice 

but makes the inference of consent more difficult, as there is no reason why a defendant 

should acquiesce in substitution of a greater for a lesser offense’]; People v. Haskin

(1992) 4 Cal.App.4th 1434, 1440 [applying same principle in context of sentence 

enhancements].)” (Anderson, at p. 959.)
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So too here. Duenas was convicted of possession of more than 28.5 grams of 

cannabis. The penalty for possessing more than 28.5 grams of cannabis, however, is the 

same as the penalty for possessing cannabis for sale: six months in jail, a $500 fine, or 

both. (Health & Saf. Code, §§ 11359, subd. (b) & 11357, subd. (b).) While in Anderson

the uncharged enhancements resulted in the defendant being exposed to an increase in 

penalty, and here the uncharged conviction resulted in a similar penalty, we see that as a 

distinction without a difference. Defendant received no possible benefit from submitting 

the uncharged offense to the jury, which is the foundational rationale for instructing the 

jury on lesser related offenses. As did the Supreme Court in Anderson, we too conclude 

that to treat defense counsel’s lack of specific objection as acquiescence or consent 

“would go a long way toward eroding [defendant’s] right to notice of the potential 

penalties he faced. We conclude no informal amendment of the information occurred 

here.” (Anderson, supra, 9 Cal.5th at p. 960.) 

DISPOSITION

Defendant’s conviction for possessing more than 28.5 grams of cannabis is 

reversed. In all other respects the judgment is affirmed.

 /s/

EARL, J.

We concur:

 /s/

MAURO, Acting P. J.

 /s/

DUARTE, J.