1

Filed 7/18/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S201186

v. )

) Ct.App. 2/1 B223181

DEWONE T. SMITH, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. BA337647

____________________________________)

Defendant Dewone T. Smith was charged with resisting an executive 

officer in the performance of his duties under Penal Code section 69 (hereafter 

section 69) and convicted by a jury. During the trial, the superior court denied 

defendant‘s request to instruct the jury that it could instead convict him of the 

lesser offense of resisting a public officer under Penal Code section 148, 

subdivision (a)(1) (hereafter section 148(a)(1)), a crime that defendant contends is 

necessarily included within section 69. We hold that section 148(a)(1) was a 

necessarily included lesser offense of section 69 as alleged in the amended 

information. But because the record does not reveal substantial evidence that 

defendant violated section 148(a)(1) without also violating section 69, the trial 

court was not required to instruct on section 148(a)(1). Accordingly, we affirm 

defendant‘s conviction.

I.

On the morning of April 21, 2008, Los Angeles Deputy Sheriff Deloy 

Baker was working as a prowl deputy in Module 1700 of the Men‘s Central Jail. 
2

Deputy Baker explained: ―A prowl deputy just walks the tiers, ensures everyone‘s 

safety, that everyone is alive, and also provide[s] security when need be.‖ 

Defendant was one of several inmates being moved from their cells in Module 

1700 to another location. The inmates had gathered their belongings in large 

plastic trash bags, placed the bags in the center of the corridor, and lined up 

outside of their cells facing the wall. A deputy then began searching the inmates‘ 

belongings. Defendant turned away from the wall and told the deputy not to lose 

any of his ―paperwork,‖ which he described as ―important legal materials.‖ 

Deputy Baker instructed defendant not to talk and to face the wall. A few seconds 

later, defendant again turned away from the wall and told the deputy conducting 

the search not to lose his papers.

Defendant turned away from the wall a third time and said: ―Don‘t lose 

any of my fucking paperwork.‖ Deputy Baker testified that he ―stepped up 

towards him . . . grabbed his left wrist with my left hand, put my right hand on the 

center of his back and assisted him to face the wall.‖ Deputy Baker continued: 

―As I was holding him, I felt his body become tense, he was breathing a lot 

heavier, his hands were clinching up, that‘s when I gave him an order to put his —

both of his hands behind his back so that way I could handcuff him.‖ Defendant 

did not comply and instead spun to his left. Deputy Baker ―took him down‖ so he 

could more easily handcuff defendant, losing his balance in the process and falling 

to the floor next to defendant. Defendant punched Deputy Baker twice in the face: 

―He jumps back up really quick before I was able to get proper footing and hits me 

twice with his left hand on the right side of my face.‖ Deputy Baker was dazed 

but got to his feet and, with the help of other deputies, ―wrestled [defendant] to the 

ground‖ and handcuffed him.

On September 11, 2008, defendant was incarcerated in the Twin Towers 

Correctional Facility in Los Angeles County. About 7 a.m., Los Angeles County 
3

Deputy Sheriff Mark Tadrous arrived in Module 141 as part of an Emergency 

Response Team (ERT). The ERT had been summoned because defendant refused 

to return to his cell.

Defendant was standing in the dayroom, yelling. Sergeant Chafen asked 

defendant to return to his cell and explained that defendant would be forced to do 

so if he refused. A deputy sheriff videotaped the incident, and the recording was 

played for the jury. An eight-page transcript of the audio portion of the recording 

was introduced into evidence. According to the transcript, Sergeant Chafen 

addressed defendant and said ―now, the issue is — you don‘t want to go back to 

your cell and you don‘t want to go to court?‖ Defendant responded, ―You‘re right, 

I don‘t,‖ adding: ―Because the simple fact is, your officers playin‘ with me. . . . 

They‘re playin‘ games, they‘re playing with my food. I‘m not keeping — I‘m not 

going to play with nobody.‖ The sergeant asked, ―Is there anything we can do 

today to work this out?‖ Defendant responded, ―Look man, all I just ask, I don‘t 

fuck with nobody — .‖ Sergeant Chafen then said, ―I‘m going to ask you to go 

back to your cell, lock it down, otherwise you leave me no choice.‖ Defendant 

responded, ―Well, I mean, I‘m going to . . . I‘m going to have to . . . I already let 

ACLU know.‖ The sergeant asked, ―What is it you want to do?‖ Defendant said, 

―You gonna have to kill me man, because that‘s going to get me up out of here, 

because I‘m tired of . . . .‖ Sergeant Chafen replied, ―Well, we‘re not going to kill 

you.‖ The following colloquy then took place:

―Sgt.: OK — do you realize what my option is?

―Smith: Well I understand, whoa whoa, what is your option? What is your 

option? Please please, let me know.

―Sgt.: I have to physically come in here and handcuff you and take you 

down to the hole.

―. . . .
4

―Smith: But one thing you have to know — I‘m going to be physical. I‘m 

not going to — Somebody‘s going to get hurt. I‘m not playin.‖

Deputy Tadrous entered the dayroom holding a large shield in front of him. 

Defendant threw a bowl that contained a mixture of urine and feces that struck the 

deputy on his arm. After firing Tasers as well as foam and rubber projectiles, the 

deputies succeeded in subduing defendant and placing him in handcuffs. 

Based on the April 21, 2008 and September 11, 2008 incidents as well as 

two others not relevant here, an amended information charged defendant with, 

among other things, two counts of deterring or resisting an executive officer in 

violation of section 69. The trial court instructed the jury that a deputy sheriff is 

an executive officer and that defendant could be convicted of either count of 

deterring or resisting an executive officer in violation of section 69 if the

prosecution proved that ―One, the defendant used force or violence to resist an 

executive officer. [¶] Two, when the defendant acted, the officer was performing 

his lawful duty. [¶] And three, when the defendant acted, he knew the executive 

officer was performing his duty.‖ The trial court further instructed the jury that

defendant could be convicted of the second count of resisting an executive officer 

on September 11, 2008 if the prosecution proved either that he forcibly resisted an 

executive officer or, in the alternative, that defendant ―willfully and unlawfully 

attempted to deter or prevent an executive officer from the performance of any 

duty imposed upon that officer by law, and the attempt was accomplished by 

means of a threat of violence.‖

The trial judge earlier had indicated to counsel that he was considering 

instructing the jury that it could convict defendant of resisting a public officer in 

violation of section 148(a)(1) as a lesser included offense of section 69. The 

prosecution argued ―that a PC § 148 charge is, at best, a lesser related, rather than 

a lesser included offense‖ and ―specifically object[ed] to giving the instruction.‖ 
5

The trial court ultimately declined to instruct the jury on section 148(a)(1) over 

defendant‘s objection.

The jury found defendant guilty of both counts of deterring or resisting an 

executive officer. The jury returned a special verdict on the second count, 

checking the box on the verdict form that said ―Guilty because the defendant, 

violently or forcefully resisted deputies from the Los Angeles Sheriff‘s 

Department.‖ The jury did not check the box on the verdict form that read ―Guilty 

because the defendant willfully and unlawfully attempted to deter an executive 

officer from performance of a future duty by means of a threat of force or 

violence.‖

The jury also found defendant guilty of the other charges he faced. 

Defendant admitted that he had suffered four prior convictions but moved the trial 

court to dismiss them in the interest of justice. (See People v. Romero (1996) 13 

Cal.4th 497.) The trial court denied the motion to dismiss and sentenced 

defendant to 150 years to life in prison.

The Court of Appeal affirmed the conviction but vacated the sentence and 

remanded the case with directions to the trial court to reconsider defendant‘s 

motion to dismiss his prior convictions and to exercise its sentencing discretion. 

The Court of Appeal concluded that section 148(a)(1) is not a necessarily included 

offense of section 69 and that even if it were, the trial court was not required to so 

instruct the jury because there was no substantial evidence that defendant 

committed the lesser offense without committing the greater offense. We granted 

defendant‘s petition for review to decide whether section 148(a)(1) is a lesser 

included offense of section 69, a question that has divided the Courts of Appeal.

II.

―It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by 
6

the evidence. [Citations.] The general principles of law governing the case are 

those principles closely and openly connected with the facts before the court, and 

which are necessary for the jury‘s understanding of the case. [Citations.]‖ 

(People v. St. Martin (1970) 1 Cal.3d 524, 531.) ―That obligation has been held to 

include giving instructions on lesser included offenses when the evidence raises a 

question as to whether all of the elements of the charged offense were present 

[citation], but not when there is no evidence that the offense was less than that 

charged.‖ (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)

In this case, neither the defense‘s request for an instruction on a lesser 

included offense nor the prosecution‘s objection to the request has any bearing on 

the issue before us. That is because ―California law has long provided that even 

absent a request, and over any party‘s objection, a trial court must instruct a 

criminal jury on any lesser offense  ̳necessarily included‘ in the charged offense, if 

there is substantial evidence that only the lesser crime was committed. This 

venerable instructional rule ensures that the jury may consider all supportable 

crimes necessarily included within the charge itself, thus encouraging the most 

accurate verdict permitted by the pleadings and the evidence.‖ (People v. Birks

(1998) 19 Cal.4th 108, 112.) ―[T]he rule prevents either party, whether by design 

or inadvertence, from forcing an all-or-nothing choice between conviction of the 

stated offense on the one hand, or complete acquittal on the other. Hence, the rule 

encourages a verdict, within the charge chosen by the prosecution, that is neither 

 ̳harsher [n]or more lenient than the evidence merits.‘ [Citation.]‖ (Id. at p. 119.) 

Thus, ―a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser 

included offense which find substantial support in the evidence. On the other 

hand, the court is not obliged to instruct on theories that have no such evidentiary 

support.‖ (Breverman, supra, 19 Cal.4th at p. 162.)
7

A.

For purposes of determining a trial court‘s instructional duties, we have 

said that ―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. [Citations.]‖ 

(Birks, supra, 19 Cal.4th at pp. 117–118, fn. omitted; cf. People v. Reed (2006) 38 

Cal.4th 1224, 1228–1229.) 

Section 148(a)(1) is not a lesser included offense of section 69 based on the 

statutory elements of each crime. Section 69 states: ―Every person who attempts, 

by means of any threat or violence, to deter or prevent an executive officer from 

performing any duty imposed upon such officer by law, or who knowingly resists, 

by the use of force or violence, such officer, in the performance of his duty, is 

punishable by a fine not exceeding ten thousand dollars ($10,000), or by 

imprisonment in the state prison, or in a county jail not exceeding one year, or by 

both such fine and imprisonment.‖ We have explained that section 69 ―sets forth 

two separate ways in which an offense can be committed. 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 or her duty.‖ (In re Manuel G. (1997) 16 Cal.4th 805, 814.) 

The first way of violating section 69 ―encompasses attempts to deter either

an officer‘s immediate performance of a duty imposed by law or the officer‘s 

performance of such a duty at some time in the future.‖ (In re Manuel G., supra, 

16 Cal.4th at p. 817, fn. omitted.) The actual use of force or violence is not 

required. (See id. at p. 814 [―A threat, unaccompanied by any physical force, may 

support a conviction for the first type of offense under section 69. [Citation.]‖].) 

Further, ―the statutory language [of the first clause of section 69] does not require 
8

that the officer be engaged in the performance of his or her duties at the time the 

threat is made. . . . Thus, for example, a person who telephones an off-duty officer 

at his or her home and threatens to kill the officer if he or she continues to pursue a 

lawful investigation the following day or week may be convicted of the first type 

of offense under section 69, even though the officer was not engaged in the 

performance of his or her duties at the time the threat was made.‖ (Id. at p. 817.)

The second way of violating section 69 expressly requires that the 

defendant resist the officer ―by the use of force or violence,‖ and it further requires 

that the officer was acting lawfully at the time of the offense. (See In re Manuel

G., supra, 16 Cal.4th at p. 815 [―a defendant cannot be convicted of an offense 

against a peace officer  ̳ ―engaged in . . . the performance of . . . [his or her] 

duties‖ ‘ unless the officer was acting lawfully at the time the offense against the 

officer was committed‖].)

Section 148(a)(1) is similar to the second way of violating section 69 but is 

clearly different from the first way of violating section 69. Section 148(a)(1) says: 

―Every person who willfully resists, delays, or obstructs any public officer, peace 

officer, or an emergency medical technician . . . in the discharge or attempt to 

discharge any duty of his or her office or employment, when no other punishment 

is prescribed, shall be punished by a fine not exceeding one thousand dollars 

($1,000), or by imprisonment in a county jail not to exceed one year, or by both 

that fine and imprisonment.‖

A person who violates section 69 in the second way — by ―knowingly 

resist[ing], by the use of force or violence, such officer, in the performance of his 

duty‖ — also necessarily violates section 148(a)(1) by ―willfully resist[ing] . . . 

any public officer . . . in the discharge or attempt to discharge any duty of his or 

her office or employment.‖ (People v. Lacefield (2007) 157 Cal.App.4th 249, 257

(Lacefield) [―it appears to be impossible to violate the second type of offense in 
9

section 69 without also violating section 148(a)(1) . . . .‖].) But it is possible to 

violate section 69 in the first way — by attempting, through threat or violence, to 

deter or prevent an executive officer from performing a duty — without also 

violating section 148(a)(1). A person who threatens an executive officer in an 

attempt to deter the officer from performing a duty ―at some time in the future‖ (In 

re Manuel G., supra, 16 Cal.4th at p. 817) does not necessarily willfully resist that 

officer in the discharge or attempt to discharge of his or her duty under section 

148(a)(1). Accordingly, section 148(a)(1) is not a lesser included offense of 

section 69 based on the statutory elements of each offense. (People v. Belmares

(2003) 106 Cal.App.4th 19, 24 [―By the statutory elements test, . . . resisting is not 

a lesser included offense of deterring since one can deter an officer‘s duty in the 

future (§ 69) without resisting the officer‘s discharge or attempted discharge of a 

duty at that time (§ 148, subd. (a)(1)).‖]; People v. Lopez (2005) 129 Cal.App.4th 

1508, 1532 [―section 148 is not a lesser included offense of section 69, because 

section 69 can involve a present attempt to deter an officer‘s future duty‖].) We 

disapprove Lacefield to the extent it held that section 148(a)(1) is a necessarily 

lesser included offense of section 69 based upon the statutory elements of those 

offenses. (Lacefield, at p. 259.)

But in determining whether a trial court has a duty to instruct the jury on 

lesser offenses, we also consider the language of the accusatory pleading. (Birks, 

supra, 19 Cal.4th at p. 117.) If the accusatory pleading in the present case had 

charged only the first way of violating section 69 — i.e., that defendant attempted, 

through threat or violence, to deter or prevent an executive officer from 

performing a duty — section 148(a)(1) would not have been a necessarily included 

offense. But the amended information charged defendant with both ways of 

violating section 69. In addition to the first way of violating the statute, the 

accusatory pleading also alleged that defendant violated the statute in the second 
10

way by ―knowingly resist[ing], by the use of force or violence, such officer, in the 

performance of his duty.‖ As explained above, section 148(a)(1) is necessarily 

included within this second way of violating section 69.

We addressed a similar situation in People v. Barrick (1982) 33 Cal.3d 115, 

which held that the trial court erred in refusing to instruct the jury that joyriding in 

violation of the former version of Penal Code section 499b (hereafter section 

499b) is a lesser included offense of taking or driving a vehicle under Vehicle 

Code section 10851 (hereafter section 10851). At that time, section 10851

provided that ―[a]ny person who drives or takes a vehicle not his own, without the 

consent of the owner thereof, and with intent either permanently or temporarily to 

deprive the owner thereof of his title to or possession of the vehicle . . . is guilty of 

a public offense . . .‖ (Stats. 1976, ch. 1139, § 336, p. 5171), while section 499b

made it a misdemeanor to, ―without the permission of the owner thereof, take any 

. . . vehicle . . . for the purpose of temporarily using or operating the same . . . .‖ 

(Stats. 1965, ch. 1354, § 1, p. 3249).

Like the charged crime in the present case, there are two ways of violating 

section 10851: the defendant can either ―drive‖ or ―take‖ the vehicle. Barrick

recognized that ―joyriding is not intrinsically a necessarily included offense within 

Vehicle Code section 10851‖ (Barrick, supra, 33 Cal.3d at p. 133) because there 

could be ―rare‖ instances in which a person could ―take‖ a vehicle under section 

10851 for the purpose of depriving the owner of possession, but not have the 

intent required under section 499b to use or operate the vehicle: ―for example, a 

vehicle could be towed with the specific intent to deprive the owner of possession 

without being towed for the purpose of using or operating the vehicle.‖ (Barrick, 

at pp. 134-135.) ―Thus, so long as the charging allegation alleges merely a taking 

with the intent to deprive the owner of possession, violation of section 499b is not 

necessarily included.‖ (Id. at p. 135.)
11

But the situation changes if the accusatory pleading charges the defendant 

with driving the vehicle. Although section 10851 states in the disjunctive that the 

statute applies if the defendant either ―drives or takes a vehicle,‖ the Attorney 

General notes in her briefing here that ―[w]hen a crime can be committed in more 

than one way, it is standard practice to allege in the conjunctive that it was 

committed every way.‖ Barrick reasoned that the accusatory pleading, ―by 

accusing defendant of driving and taking a vehicle without the owner‘s 

permission, necessarily charged both a violation of Vehicle Code section 10851 

and of [former] Penal Code section 499b‖ because ―one cannot drive a vehicle 

without the purpose of using or operating it.‖ (Barrick, supra, 33 Cal.3d at 

pp. 133, 135.) ―Thus, a complaint which charges a defendant with  ̳driving and 

taking‘ an automobile necessarily charges that he took the automobile  ̳for the 

purpose of temporarily using or operating the same‘ and thus violated section 

499b.‖ (Id. at p. 135, fn. omitted.) Accordingly, Barrick held that the ―charging 

allegation . . . render[ed] joyriding a necessarily included lesser offense within the 

charged violation of Vehicle Code section 10851.‖ (Barrick, at p. 133; see People 

v. Moon (2005) 37 Cal.4th 1, 26 [following Barrick‘s holding].)

Similarly here, section 148(a)(1) is not intrinsically a necessarily lesser

included offense of section 69 because a defendant can violate section 69 in the 

first way, by attempting to deter an executive officer from performing a duty, 

without violating section 148(a)(1). But the amended information in the present 

case alleged in both counts that defendant violated section 69 not only in the first 

way but also in the second way by forcibly resisting an officer. As explained 

above, it is not possible to violate section 69 in this second way without also 

violating section 148(a)(1). Therefore, section 148(a)(1) was a necessarily 

included lesser offense of section 69 as alleged in the amended information.
12

This result comports with the purpose for requiring jury instructions on 

necessarily included lesser offenses. We have recognized that ―  ̳the People have 

no legitimate interest in obtaining a conviction of a greater offense than that 

established by the evidence [and] a defendant has no right to an acquittal when 

that evidence is sufficient to establish a lesser included offense. [Citation.]‘ 

[Citations.]‖ (Breverman, supra, 19 Cal.4th at p. 155.) The ―broader interests 

served by the sua sponte instructional rule‖ are that it avoids ―presenting the jury 

with an  ̳unwarranted all-or-nothing choice,‘ encourages  ̳a verdict . . . no harsher 

or more lenient than the evidence merits‘ [citation], and thus protects the jury‘s 

 ̳truth-ascertainment function‘ [citation].  ̳These polices reflect concern [not only] 

for the rights of persons accused of crimes [but also] for the overall administration 

of justice.‘ [Citation.]‖ (Ibid.) ―[T]he rule seeks the most accurate possible 

judgment by  ̳ensur[ing] that the jury will consider the full range of possible 

verdicts‘ included in the charge . . . . [E]very lesser included offense, or theory 

thereof, which is supported by the evidence must be presented to the jury.‖ (Ibid.; 

accord, People v. Barton (1995) 12 Cal.4th 186, 196 [―  ̳Our courts are not 

gambling halls but forums for the discovery of truth.‘ [Citation.] Truth may lie 

neither with the defendant‘s protestations of innocence nor with the prosecution‘s 

assertion that the defendant is guilty of the offense charged, but at a point between 

these two extremes: the evidence may show that the defendant is guilty of some 

intermediate offense included within, but lesser than, the crime charged. A trial 

court‘s failure to inform the jury of its option to find the defendant guilty of the 

lesser offense would impair the jury‘s truth-ascertainment function.‖].)

The rule we affirm today — requiring sua sponte instruction on a lesser 

offense that is necessarily included in one way of violating a charged statute when 

the prosecution elects to charge the defendant with multiple ways of violating the 

statute — does not require or depend on an examination of the evidence adduced 
13

at trial. The trial court need only examine the accusatory pleading. When the 

prosecution chooses to allege multiple ways of committing a greater offense in the 

accusatory pleading, the defendant may be convicted of the greater offense on any 

theory alleged (see People v. McClennegen (1925) 195 Cal.445, 452), including a 

theory that necessarily subsumes a lesser offense. The prosecution may, of course, 

choose to file an accusatory pleading that does not allege the commission of a 

greater offense in a way that necessarily subsumes a lesser offense. But so long as 

the prosecution has chosen to allege a way of committing the greater offense that 

necessarily subsumes a lesser offense, and so long as there is substantial evidence 

that the defendant committed the lesser offense without also committing the 

greater, the trial court must instruct on the lesser included offense. This allows the 

jury to consider the full range of possible verdicts supported by the evidence and 

thereby calibrate a defendant‘s culpability to the facts proven beyond a reasonable 

doubt. As our precedent has emphasized, such an approach does not, in purpose 

or effect, work to the advantage of either the prosecution or the defense. Instead, 

it serves to protect the jury‘s truth-ascertainment function. (See Breverman, 

supra, 19 Cal.4th at p. 155; Barton, supra, 12 Cal.4th at p. 196.)

Applying the rule to the statutory offenses at issue here, we summarize the 

trial court‘s instructional duty as follows: Where an accusatory pleading alleges 

both ways of violating section 69, the trial court should instruct the jury that if it 

finds beyond a reasonable doubt that a defendant committed either way of 

violating section 69, it should find the defendant guilty of that crime. If not, the 

jury may return a verdict on the lesser offense of section 148(a)(1) so long as there 

is substantial evidence to conclude that the defendant violated section 148(a)(1) 

without also violating section 69.
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B.

As noted, our conclusion that section 148(a)(1) was a necessarily included 

lesser offense of section 69 as alleged in the amended information does not end the 

analysis because a trial court is not required to instruct the jury on a necessarily 

included lesser offense ―when there is no evidence that the offense was less than 

that charged.‖ (Breverman, supra, 19 Cal.4th at p. 154.) That is the case here.

In the April 21, 2008 incident, defendant physically resisted and punched 

the guard at the Men‘s Central Jail. In the September 11, 2008 incident, defendant

again physically resisted the guards and was subdued only after the deputies used 

Tasers and foam and rubber projectiles. Defendant was either guilty or not guilty

of resisting the executive officers by the use of force or violence in violation of 

section 69. There was no evidence that defendant committed only the lesser 

offense of resisting the officers without the use of force or violence in violation of 

section 148(a)(1). (See People v. Carrasco (2008) 163 Cal.App.4th 978, 985.) 

Accordingly, the trial court was not required to instruct the jury on the necessarily 

included lesser offense of section 148(a)(1).

CONCLUSION

For the reasons above, we affirm the judgment of the Court of Appeal.

LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.
1

CONCURRING OPINION BY CORRIGAN, J.

I concur in the majority‘s conclusion that Penal Code section 148, 

subdivision (a)(1) (hereafter section 148(a)(1))1 was a lesser included offense of 

section 69 as alleged in the amended information. Our holding in People v. 

Barrick (1982) 33 Cal.3d 115, 133 (Barrick) compels this result. I write 

separately to express my view that Barrick‘s interpretation of the accusatory 

pleading test is ill reasoned and lacks persuasive force. However, because neither 

party has urged us to overrule Barrick on that point, the question must await 

another day. 

We have employed two tests to determine whether a lesser offense is 

necessarily included in a charged offense for purposes of the trial court‘s 

instructional duties: ―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 (Birks), italics added.) The majority correctly 

concludes that section 148(a)(1) is not a necessarily included offense of section 69 

based on the statutory elements of each crime. This is because section 69 can be 

 

1 Subsequent undesignated statutory references are to the Penal Code.
2

violated in two ways, one of which does not necessarily include a violation of 

section 148(a)(1). (Maj. opn., ante, at pp. 8-9.) 

The question is whether a different result follows from the accusatory 

pleading test. Counts 2 and 5 of the amended information closely tracked the 

statutory language of section 69. The charging document added the dates of the 

offenses, the county, defendant‘s name, and the names of the victims. It also 

charged the alternative ways of violating section 69 in the conjunctive ―and‖ rather 

than the disjunctive ―or.‖2 

For the answer, the majority looks to Barrick. There we considered the 

defendant‘s allegation that the court erred by refusing to give an instruction that 

joyriding (§ 499b) is a lesser included offense of unlawfully driving or taking a 

vehicle (Veh. Code, § 10851). (Barrick, supra, 33 Cal.3d at pp. 133-135.) 

Vehicle Code section 10851 can be violated by either driving or taking a vehicle. 

We observed that joyriding (which involves driving) is not a lesser included 

offense under the elements test because one can take a vehicle without driving it. 

 

2 Count 2 alleged: ―On or about April 21, 2008, in the County of Los 

Angeles, the crime of resisting executive officer, in violation of Penal Code 

section 69, a Felony, was committed by Dewone T. Smith, who did unlawfully 

attempt by means of threats and violence to deter and prevent Rowland, Esqueda, 

Lim, Baker, Moreno, Farino, who was then and there an executive officer, from 

performing a duty imposed upon such officer by law, and did knowingly resist by 

the use of force and violence said executive officer in the performance of his/her 

duty.‖ (Some capitalization omitted.)

Count 5 alleged: ―On or about September 11, 2008, in the County of Los 

Angeles, the crime of resisting executive officer, in violation of Penal Code 

section 69, a Felony, was committed by Dewone T. Smith, who did unlawfully 

attempt by means of threats and violence to deter and prevent Keith Fulkerson, 

Gudino, Mark Tadrous, Preston, who was then and there an executive officer, 

from performing a duty imposed upon such officer by law, and did knowingly 

resist by the use of force and violence said executive officer in the performance of 

his/her duty.‖ (Some capitalization omitted.)
3

(Barrick, at pp. 134-135.) However, we held that, as pled, the charging document 

did make Penal Code section 499b a lesser included offense of Vehicle Code 

section 10851. We noted that the accusatory pleading had alleged Vehicle Code 

section 10851 in the conjunctive (―driving and taking‖). (Barrick, at p. 133.) We 

concluded that, ―by accusing defendant of driving and taking a vehicle without the 

owner‘s permission, [the pleading] necessarily charged both a violation of Vehicle 

Code section 10851 and of Penal Code section 499b.‖ (Ibid.) ―[A] complaint 

which charges a defendant with  ̳driving and taking‘ an automobile necessarily 

charges that he took the automobile  ̳for the purpose of temporarily using or 

operating the same‘ and thus violated section 499b.‖ (Id. at p. 135.) Thus, we 

reasoned, ―the charging allegation in this case does allege facts that necessarily 

include the former section within the latter.‖ (Ibid.)3 

The Barrick court‘s holding unmoored the accusatory pleading test from 

the principles on which it was based. In my view, charging a defendant in the 

statutory language coupled with the use of conjunctive pleading should not yield a 

different result than applying the statutory elements test. 

People v. Marshall (1957) 48 Cal.2d 394 demonstrates the proper 

application of the accusatory pleading test. There, the information charged that 

the defendant had committed robbery by ―  ̳willfully, unlawfully, feloniously and 

forcibly tak[ing] from the person and immediate presence of [the victim] . . . 

Seventy Dollars . . . and an automobile . . . .‘ ‖ (Id. at p. 396, italics added.) The 

 

3 We have applied Barrick‘s holding on this point in People v. Moon (2005) 

37 Cal.4th 1, 26-27, a capital case involving the same two statutes at issue in 

Barrick. The Attorney General has challenged Barrick‘s reasoning in at least one 

other case. (People v. Sakarias (2000) 22 Cal.4th 596, 622, fn. 4.) There, we 

found it unnecessary to revisit Barrick because the lesser offenses were not 

supported by the facts of the case. 
4

defendant waived jury trial, and the trial court convicted him of taking a vehicle. 

(Veh. Code, former § 503, now § 10851.) We affirmed, holding that the taking a 

vehicle charge was necessarily included in the robbery charge under the specific 

language of the accusatory pleading, which ―forthrightly allege[d] not only the 

statutory language of the greatest offense charged but also known details as to the 

manner of its commission.‖ (Marshall, at p. 407.) We reasoned: ―Although the 

statutory definition of robbery does not necessarily include the offense denounced 

by [former] section 503 of the Vehicle Code, the particular robbery specifically 

pleaded in the information here includes all the elements of a violation of [former] 

section 503. It is particularly alleged that the property taken was  ̳an automobile.‘

The allegations of the information that the automobile was taken by robbery 

necessarily import the elements of theft, including the taking of the personal 

property of one other than defendant, with intent to steal [citations].‖ (Marshall, 

at pp. 399-400, italics added.) 

By contrast, the use of the conjunctive ―and‖ is not a ―fact‖ alleged in the 

accusatory pleading. Nor does it effectively incorporate one theory of an offense 

into another for the purpose of defining the elements of the charged crime. When 

multiple theories of committing an offense are involved, the prosecution, by 

pleading the statute in the conjunctive, puts the defendant on notice that he may 

face conviction under either theory. The prosecution does not, however, assume 

the burden of proving each theory. In re Bushman (1970) 1 Cal.3d 767 held that 

―[w]hen a statute such as Penal Code section 415 lists several acts in the 

disjunctive, any one of which constitutes an offense, the complaint, in alleging 

more than one of such acts, should do so in the conjunctive to avoid uncertainty. 

[Citations.] Merely because the complaint is phrased in the conjunctive, however, 

does not prevent a trier of fact from convicting a defendant if the evidence proves 

only one of the alleged acts.‖ (Id. at p. 775, disapproved on another ground in 
5

People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1; accord, People v. Lopez (2005) 

129 Cal.App.4th 1508, 1532-1533.) Accordingly, conjunctive pleading does not 

necessitate conjunctive proof. It therefore differs from factual allegations 

―  ̳ ―describing the offense in such a way that if committed as specified the lesser 

offense is necessarily committed.‖ [Citation.]‘ ‖ (People v. Lopez (1998) 19 

Cal.4th 282, 289, quoting People v. Toro (1989) 47 Cal.3d 966, 972.) 

For this reason, the rule in Barrick is inconsistent with our rationale for 

requiring sua sponte instruction when a greater offense involving a single theory is 

charged. In Birks, supra, 19 Cal.4th 108, we explained that ―[w]hen an accusatory 

pleading alleges a particular offense, it thereby demonstrates the prosecution‘s 

intent to prove all the elements of any lesser necessarily included offense.‖ (Id. at 

p. 118.) As noted, no similar burden arises from the use of conjunctive pleading. 

The prosecutor retains ―discretion to decide which crimes will be charged and on 

what theory they will be prosecuted.‖ (People v. Brigham (1989) 216 Cal.App.3d 

1039, 1052; see Birks, supra, 19 Cal.4th at pp. 128-129, 134.) Requiring sua 

sponte instruction in this circumstance poses risks similar to those identified in 

Birks, where we did away with the rule requiring instruction on lesser related

offenses. In rejecting that rule we explained: ―[I]f the prosecution opposes the 

jury‘s consideration of a lesser related offense which the prosecution did not 

charge, assumed no obligation to prove, and may thus have overlooked in 

presenting its case, the defendant, under Geiger, has the unqualified right to 

override the prosecution‘s objections. Regardless of prejudice to the prosecution, 

the defendant may insist that the jury be instructed on the lesser offense, thereby 

acquiring a third-option hedge against conviction of the charged offense. [¶] 

Where lesser related offenses are concerned, the Geiger rule therefore may 

actually permit and encourage a one-sided use of the  ̳gambling hall‘ strategies we 
6

have consistently denounced.‖ (Birks, supra, 19 Cal.4th at p. 128, citing People v. 

Geiger (1984) 35 Cal.3d 510.) 

Barrick represents an unreasoned departure from otherwise settled 

precedent governing the accusatory pleading test and the trial court‘s sua sponte 

duty to instruct. The accusatory pleading test should not take into account the use 

of conjunctive pleading alleging two separate ways of violating a statute as set out 

in the statutory language. In effect, the accusatory pleading in this case states 

nothing more than the statutory elements. ―When, as here, the accusatory pleading 

describes a crime in the statutory language, an offense is necessarily included in 

the greater offense when the greater offense cannot be committed without 

necessarily committing the lesser offense.‖ (People v. Marshall (1997) 15 

Cal.4th 1, 38; accord, People v. Wolcott (1983) 34 Cal.3d 92, 99.) 

CORRIGAN, J.

I CONCUR:

BAXTER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Smith

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 203 Cal.App.4th 1051

Rehearing Granted

__________________________________________________________________________________

Opinion No. S201186

Date Filed: July 18, 2013

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Jose I. Sandoval

__________________________________________________________________________________

Counsel:

Melanie K. Dorian, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, 

Assistant Attorney General, Linda C. Johnson, Michael C. Keller and Ryan M. Smith, Deputy Attorneys 

General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Melanie K. Dorian

P.O. Box 5006

Glendale, CA 91221-5006

(818) 241-5837

Ryan M. Smith

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2712