Filed 3/11/15 P. v. Harris CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140593
v.
KWAME HARRIS,                                                        (San Mateo County
                                                                     Super. Ct. No. SC076832A)
         Defendant and Appellant.

                                                INTRODUCTION
         This appeal is from a judgment after a jury trial. It is authorized pursuant to Penal
Code section 1237.1 Defendant challenges the trial court’s decision to instruct on lesser
included offenses and the fact the trial court imposed sentence on all the lesser offenses
for which the jury found guilt. We agree that certain imposed sentences were improper in
light of the jury’s verdict. We otherwise affirm the judgment in this case.
                                       STATEMENT OF THE CASE
         On November 5, 2012, the district attorney of San Mateo County filed an
information charging defendant with inflicting corporal injury resulting in a traumatic
condition upon his former cohabitant, Dimitri Geier (§ 273.5, subd. (a); count 1), and
committing an assault by means of force likely to cause great bodily injury upon Dimitri
Geier (§ 245, subd. (a)(4); count 2). The information alleged as to each count that
defendant, under circumstances involving domestic violence, personally inflicted great

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    All statutory references are to the California Penal Code unless otherwise specified.
bodily injury (§ 12022.7, subd. (e)) and that the offenses were serious felonies (§ 1192.7,
subd. (c)(8)).
       On November 4, 2013, a jury acquitted defendant of both felony counts.
However, as to count 1, the jury found defendant guilty of the lesser included
misdemeanor offenses of battery against a person with whom he previously had a dating
relationship (§ 243, subd. (e)(1)), simple battery (§ 242) and simple assault (§ 240). As
to count 2, the jury found defendant guilty of the lesser included offense of simple
assault.
       On December 20, 2013, the court suspended imposition of sentence and placed
defendant on probation for three years. As a condition of probation, the court ordered
him to serve five days in the county jail.
       Defendant filed a timely notice of appeal on December 26, 2013.
                                STATEMENT OF FACTS
       The prosecution presented evidence that, for six years, defendant was an offensive
tackle in the National Football League. Before that, defendant played football at Stanford
University, as well as four years of high school football before enrolling at Stanford.
While he was a professional player, defendant’s weight ranged between 290 to 315
pounds. He regularly blocked opposing players weighing between 220 to 300 pounds.
       Commencing in 2005, defendant and Geier engaged in a romantic relationship for
a period of five years. For the last six months of the relationship, the two men lived
together at defendant’s home in Napa. They remained friends after they split up.
       In August 2012, Geier came to Northern California for work and to visit with
defendant. At this time, defendant was six feet seven inches tall and weighed between
230 to 260 pounds. Geier was six feet two inches tall and weighed 205 pounds.
       On the last day of the visit, the defendant agreed to take Geier to the San Jose
airport so he could return to Southern California. Before arriving at the airport, the two
men went to dinner at a restaurant. An argument arose between them over Geier’s
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pouring soy sauce into a dish defendant believed was his personal dish. Defendant
became enraged over the act, claiming Geier lacked manners and common courtesy. The
yelling went on for several minutes. To avoid further embarrassment, Geier advised
defendant his plane was leaving in a couple of hours and he was going to take a taxi to
the airport. He wanted defendant to apologize for his outbursts. Defendant agreed it
would be best for Geier to take a taxi to the terminal. Defendant got up and walked
away.
        Shortly after he left, defendant returned and advised Geier that his bags were in
defendant’s car, and if Geier did not come and retrieve them, defendant would leave them
on the street. Geier and defendant got up and left the restaurant together, with Geier
slightly in the lead. As the men walked to the car, defendant accused Geier of wearing
defendant’s underwear. While this was an occasional practice when the two were in a
dating relationship, on this date Geier was not wearing defendant’s undergarments. Geier
ignored the allegation. However, defendant turned and grabbed at Geier’s pants, trying to
pull them down to see if his guest was in fact wearing his clothing. Though Geier
grabbed at defendant’s hands, defendant succeeded in pulling down Geier’s pants a few
inches.
        Defendant then shoved Geier against a wall. Geier pushed back to get away from
defendant’s grasp. Defendant then slapped Geier across the face with considerable force.
As defendant moved towards Geier, the latter swung to hit him. Defendant grabbed
Geier’s wrist, preventing contact. The two men tussled and defendant ripped Geier’s
shirt. Defendant also slapped Geier’s face a few more times.
        The struggle continued with Geier hitting defendant in the face. This triggered
more anger from defendant, and he landed several strong blows to Geier’s face. Two
were just below Geier’s left cheekbone.




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         As a result of these last blows, Geier became unsteady and disoriented. Defendant
ran to his car, grabbed Geier’s bags out of the trunk, and threw them in the street.
Defendant then drove away.
         With defendant gone, Geier took a shirt out of his bag to replace the torn garment.
He called for a taxi but, as he drove, the pain became substantial and he asked the driver
to take him to the closest hospital. At the facility, X-rays disclosed Geier had three
fractured bones around an eye and the cheek. Geier reported the incident to police while
receiving treatment at the hospital. The morning after the incident, Geier flew to
Southern California. Two days later, he had surgery and a metal plate was placed in the
area of the fractures.
         Eventually, Geier sued defendant over the incident. The civil claim was later
dismissed, and Geier refused to testify at the criminal trial in this matter. However, a
transcript of Geier’s testimony at the preliminary hearing was used at the trial when he
refused to testify in person.
         The prosecution also presented testimony from an expert in domestic violence.
The expert related that victims of domestic violence are likely to remain loyal to the
former partner and refrain from cooperating with the prosecution.
         Defendant also testified at his trial. He confirmed the two argued over Geier’s
pouring soy sauce in a plate, claiming Geier had poor table manners. Defendant believed
Geier became very upset when told he had to take a taxi to the airport. As defendant got
up to go to his car, he told Geier to follow if he wanted his bags. This further upset
Geier.
         While defendant proceeded to his car, he recalled Geier often wore his
(defendant’s) underwear. After inquiring whether Geier presently had on defendant’s
undergarments several times without a reply, defendant pulled up Geier’s shirt to see the
waistband of Geier’s underwear. Geier punched back at defendant, who then slapped
Geier in the face, telling him not to hit back. When he was slapped, Geier went “berserk”
                                              4
and threw punches at defendant. Defendant tried to restrain Geier by grabbing his shirt.
While Geier was swinging wildly at him, defendant managed to land at least one punch to
the face. The two men then stopped fighting and walked to defendant’s car, where
defendant unloaded the bags and then drove away. Defendant testified he suffered a cut
lip as a result of Geier’s hit to the face.
       On August 22, 2012, the morning after this incident, Menlo Park police came to
defendant’s residence at 4:00 a.m. They placed him under arrest for the incident. They
advised defendant Geier had sustained fractures to his face, which defendant did not
believe was true. Defendant only related his version once he was told of the nature of
Geier’s injuries.
       Officer Adair of the Menlo Park Police Department, one of the arresting officers,
checked out defendant’s chest, face, and hands for evidence of injury or fighting. He saw
no marks or bruises.
                                          ANALYSIS
       Defendant contends the trial court erred when it instructed the jury on the lesser
included offenses, misdemeanors he claims were barred by the statute of limitations. His
claim regarding the statute of limitations is predicated on the contention the offense took
place more than one year before the misdemeanor crimes were “alleged”―i.e., first
presented as criminal conduct―when the jury was presented with these offenses as lesser
offenses. He suggests, through his trial and appellate counsel, that the failure to officially
charge the misdemeanor lesser offenses within a year of occurrence precluded instructing
the jury on the potential of misdemeanor lesser included offenses. The argument simply
disregards the legal impact of the prosecutorial decision to file an appropriate complaint
and then an information in a timely fashion. Hence there can be no misdemeanor statute
of limitations violation.
       Simply put, the filing of an information begins the prosecution not only for the
charged felony offenses, but for all uncharged lesser included crimes as well. Under
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section 1159, trial courts have a legislative mandate to instruct not only on charged
offenses, but also those lessers which are included within the elements of the charged
crime. “The jury . . . may find the defendant guilty of any offense, the commission of
which is necessarily included in that with which he is being charged, or of an attempt to
commit the offense.” (§ 1159.) “When an [information] alleges a particular offense, it
thereby demonstrates the prosecution’s intent to prove all the elements of any lesser
necessarily included offense. Hence, the stated charge notifies the defendant, for due
process purposes, that he must also be prepared to defend against any lesser offense
necessarily included therein, even if the lesser offense is not expressly set forth in the
indictment or information. [Citations.] The statutory law of California explicitly
provides that the defendant may be found guilty ‘of any offense, the commission of
which is necessarily included in that with which he is charged.’ ” (People v. Birks (1998)
19 Cal.4th 108, 118; see also § 804, subd. (a).) It has been stated repeatedly that trial
courts, even without a defense request and even over defense objection, must instruct on
lesser included offenses if substantial evidence indicates a defendant may be guilty only
of the lesser. (Ibid.) This statutory rule ensures the fact finder will be exposed to the full
range of verdict options which, by operation of law and with full notice to both parties,
are presented in the accusatory pleading itself, and that are closely and openly connected
to the case. (People v. Barton (1995) 12 Cal.4th 186, 196, 203-204.) The courts have a
sua sponte duty to instruct regarding lesser included offenses because neither the
defendant nor the People have a right to incomplete instructions. (Id., at p. 204.) In fact,
lesser included offenses, by definition, are rarely if ever charged in the complaint or
information, but arise based on the facts presented in the trial by the evidence.
Defendant’s contention, if correct, would routinely preclude misdemeanor lessers
because of the statute of limitations. This would take the lesser option off the table and
inure to the detriment of the accused in many cases. It would also chill the fact finder’s


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authority to fully consider the incident on trial. The lack of historical precedent for
defendant’s position here only confirms the folly of his position.
       In this case, defendant was arrested on August 22, 2012. The information here
was filed on November 5, 2012, less than three months after the incident. The
misdemeanors of which defendant was convicted were clearly lesser and included
offenses within the scope of the charged crimes of domestic violence and aggravated
assault.
       Importantly, in this appeal, defendant does not claim the evidence supporting his
conviction of lesser included misdemeanors is insufficient.2 He only contends the court’s
instruction on the lesser offenses―a trial court obligation mandated by statute served as
the first “public” announcement to the accused of these crimes for purposes of the statute
of limitations. That contention has no validity, as we have explained above.
       In his brief and at oral argument, defendant argued the act of touching Geier’s
clothing, which may have occurred inside the restaurant, was a separate and distinct act
from the course of conduct that occurred outside the restaurant. As counsel explained at
oral argument, while multiple sets of factual bases legitimately could have led to
defendant’s misdemeanor convictions, any conviction premised on a factual scenario
involving a touching of Geier’s clothing inside the restaurant violated the statute of
limitations for misdemeanors. Since the general verdict does not reveal the act or acts
upon which the jury predicated its verdicts, reversal is required. (People v. Swain (1996)
12 Cal.4th 593, 607.) He argues the trial court’s giving of a unanimity instruction
(CALCRIM No. 3500) arguably demonstrates there were separate, severable acts rather
than a continuous course of conduct, because a unanimity instruction is not required

2
 Along with his decision not to challenge sufficiency of the evidence in his motion to
dismiss and in this appeal, defendant has not raised any issue of self-defense or defense
of property. The jury was instructed on self-defense and defense of property and the law
assessing these particular legal issues contained in CALCRIM Nos. 3470, 3472, and
3476.
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when the offense constitutes a continuous course of conduct. (People v. Maury (2003) 30
Cal.4th 342, 423.)
       We view the conduct charged in this case as a continuing act of domestic violence
and assault. The event was triggered by the spat in the restaurant and continued to
outside the location, up to the tossing of Geier’s belongings on the ground. The argument
continued during this time, and the physical blows to the victim happened within this
period. There was no clear break in the incident. In the motion to dismiss, the district
attorney contended this was a continuing act limited both by time and location; hence it
was a single offense. In denying the motion to dismiss, the court impliedly adopted this
position.
       It is true the trial court was not required to, but nevertheless did, give a unanimity
instruction. The jury was instructed pursuant to CALCRIM No. 3500. They were told:
“As to counts 1 and 2, [t]he People have presented evidence of more than one act to
prove that the defendant committed these offenses. You must not find the defendant
guilty unless you all agree that the People have proved that the defendant committed at
least one of these acts and you all agree on which act he committed.” The fact a
favorable instruction was given in an abundance of caution does not demonstrate the
court erred in giving lesser included offense instructions or concluding the touching of
Geier’s clothing inside or outside the restaurant was part and parcel of the assaultive
conduct with which defendant was charged. The lesser included misdemeanor offenses
encompassed the same conduct that was the predicate for the felony counts in the
information: domestic violence and aggravated assault. A crime is a lesser included
offense of the greater crime only if it is impossible to commit the greater crime without
also committing the lesser. (People v. Milward (2011) 52 Cal.4th 580, 586.) The trial
court did not violate the statute of limitations for misdemeanors, or defendant’s
constitutional rights, by instructing the jury on misdemeanor lesser included offenses of
the charged felonies, or by denying defendant’s posttrial motion to dismiss. Therefore,
                                              8
there is no basis for the application of the Green-Guiton rule. (People v. Green (1980)
27 Cal.3d 1, 69, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225,
241; People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Guiton (1993) 4 Cal.4th
1116, 1128-1129; see also People v. Swain, supra, 12 Cal.4th 593, 607.)
       In his brief, defendant criticizes the prosecution for its argument to the jury the
touching of Geier’s shirt by defendant supported the lesser offenses because this act was
separate from the behavior that took place when defendant punched Geier in the face
outside the restaurant. However, defendant failed to object at the time the district
attorney made the contention to the jury, or ask the court to admonish the jury to
disregard it. He therefore forfeits the claim on appeal because of this omission. (People
v. Whalen (2013) 56 Cal.4th 1, 52.)
       Besides finding waiver, we also conclude the prosecutor’s contention the tugging
on the shirt amounted to battery sufficient to sustain the lesser offenses was harmless
error. It is not reasonable to conclude a different result would have taken place without
the misconduct alleged by the district attorney. (People v. Watson (1956) 46 Cal.2d 818,
835, 836.) The evidence establishes defendant both slapped and also punched Geier in
the face, injuring the bones around the eye socket. We believe there is no reasonable
probability the jury would have reached more favorable verdicts had the prosecutor not
made the challenged remarks. Indeed, the jury’s verdict reflects an indicia of lenity and
compromise by their settling on the lesser, and not the greater, offenses in their verdict.
This “compromise” does not upset the validity of the verdict here. (People v. Abilez
(2007) 41 Cal.4th 472, 513.)
       We do find, regarding count 1, defendant may only be sentenced for one offense,
not the three for which he was sentenced. One may not be convicted of multiple lesser
included offenses that are also lesser included offenses of each other. (People v. Eid
(2014) 59 Cal.4th 650, 656, 660-661.) Simple assault (§ 240) and simple battery (§ 242)
are both lesser included offenses of battery against a person with whom defendant
                                              9
previously had a dating relationship (§ 243, subd. (e)(1)). Therefore, defendant’s
conviction for simple battery and simple assault in count 1 must be stricken. (People v.
Sanders (2012) 55 Cal.4th 731, 736.) “When a defendant is found guilty of both a
greater and necessarily included lesser offense arising out of the same act or course of
conduct, and the evidence supports the verdict on the greater offense, that conviction is
controlling, and the conviction of the lesser offense must be reversed.” (Ibid.)
                                      DISPOSITION
       In conclusion, we affirm the judgment as to defendant’s conviction in count 1 for a
violation of section 243, subdivision (e)(1), and his conviction in Count 2 for a violation
of section 240, both lesser and included offenses of the felonies charged in the two
counts. We strike the convictions for simple assault and simple battery in Count 1
because the conviction of section 243, subdivision (e)(1) is the greater of the lesser
included offenses. In all other respects the convictions are affirmed.




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                                 _________________________
                                 Dondero, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




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