Filed 8/12/26 P. v. AplicanoGuevara CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065075
v. (Super. Ct. No. 20NF3037)
RENNER EFRAIN OPINION
APLICANOGUEVARA,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Lance P. Jensen, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Senior Assistant Attorney
General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Renner Efrain AplicanoGuevara was convicted of
attempted murder, among other offenses. On appeal, AplicanoGuevara
challenges only his conviction on the count for attempted murder, arguing the
trial court erred by not providing an instruction for assault with a deadly
weapon under Penal Code section 245, subdivision (a)(1), as a lesser included
offense.1 We conclude the trial court did not err. Thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In an amended information, AplicanoGuevara was charged with
eight counts. Because only count 1 is at issue on this appeal, we focus only on
it. Count 1 charged AplicanoGuevara with the attempted murder of J.C.
(§§ 664, subd. (a), 187, subd. (a); count 1). As to count 1, the amended
information also alleged AplicanoGuevara inflicted great bodily injury on J.C.
under circumstances involving domestic violence (§ 12022.7, subd. (e)) and
used a knife, which was a deadly weapon (§ 12022, subd. (b)(1)).
The case proceeded to a jury trial. Among other things, testimony
at trial showed that, in November 2020, J.C. drove a woman home, to the
woman’s apartment. J.C. was driving the woman’s car, while his uncle, R.C.,
followed in a different car so he could drive J.C. home after they dropped off
the woman and her car. Before they reached the woman’s apartment,
however, a pickup truck pulled in front of and blocked the car J.C. was
driving. AplicanoGuevara got out of his pickup truck, hit the window of the
car J.C. was driving, and punctured a tire with a knife. The woman told J.C.
that AplicanoGuevara was her ex, said she could control him, and opened the
car door. At that point, AplicanoGuevara hit the woman with his fist and
then entered the car and struck J.C. AplicanoGuevara and J.C. both exited
1
All undesignated statutory references are to the Penal Code.
2
the car, and R.C. also exited his car. R.C. saw AplicanoGuevara threaten J.C.
with a knife and heard him say he was going to kill him. AplicanoGuevara
and R.C. struggled, and AplicanoGuevara stabbed J.C. in the stomach with
the knife and ran away.
With respect to count 1, the trial court denied AplicanoGuevara’s
request that the jury be given an instruction for assault with a deadly
weapon as a lesser included offense for count 1.
The jury found AplicanoGuevara guilty on most of the counts,
including count 1, and on that count also found true the enhancements for
great bodily injury under section 12022.7, subdivision (e), and use of a deadly
weapon under section 12022, subdivision (b)(1). The trial court sentenced him
to 12 years imprisonment.
DISCUSSION
On appeal, AplicanoGuevara argues the trial court erred by not
instructing on assault with a deadly weapon (§ 245, subd. (a)(1)) as a lesser
included offense of attempted murder. We disagree.
“A trial court has a sua sponte duty to ‘instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence
the defendant is guilty only of the lesser.’” (People v. Shockley (2013) 58
Cal.4th 400, 403.) “To determine if an offense is lesser and necessarily
included in another offense for this purpose, we apply either the elements
test or the accusatory pleading test. ‘Under the elements test, if the statutory
elements of the greater offense include all of the statutory elements of the
lesser offense, the latter is necessarily included in the former. Under the
accusatory pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the latter is
necessarily included in the former.’” (Id. at p. 404.)
3
AplicanoGuevara concedes “[a]ssault with a deadly weapon in
violation of section 245, subdivision (a)(1) is not a lesser included offense of
attempted murder.” (See People v. Parks (2004) 118 Cal.App.4th 1, 6 [“Under
the statutory elements test, assault with a firearm is not included within
attempted murder”].) He nevertheless argues that, based on the specific
charges in his case, assault with a deadly weapon is a lesser included offense
of attempted murder because the enhancement for use of a deadly weapon
also should be considered.
In People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), the California
Supreme Court “reject[ed] [the defendant’s] contention that the trial court
should have instructed sua sponte that assault with a deadly weapon is a
lesser included offense in a charge of robbery enhanced by use of a firearm.”
(Id. at p. 96.) The California Supreme Court explained it “adhere[d] to the
majority view that an allegation of firearm use under section 12022.5 should
not be considered in determining lesser included offense.” (Id. at p. 101.) We
are bound to follow the California Supreme Court’s decision and therefore
reject AplicanoGuevara’s argument that the enhancement should be
considered here in determining a lesser included offense. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As the court
explained in People v. Alarcon (2012) 210 Cal.App.4th 432 (Alarcon):
“Following Wolcott, courts have concluded that under the accusatory pleading
test, gun use and great bodily injury enhancement allegations accompanying
an attempted murder charge do not render assault with a deadly weapon a
lesser included offense of the charged attempted murder.” (Id. at p. 436; see
also People v. Bragg (2008) 161 Cal.App.4th 1385, 1398 [relying on Wolcott
and stating “[t]he allegations of an enhancement must therefore be ignored in
determining necessarily included offenses to a charge of attempted murder”].)
4
AplicanoGuevara acknowledges the holding in Wolcott “has been
affirmed in a number of cases,” and indicates he “raises this issue to preserve
it for future federal review.” But he also argues Wolcott “is no longer good
law.” According to AplicanoGuevara, the United States Supreme Court’s
decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) “and its
progeny have eliminated any distinction between elements of a crime and
conduct enhancements.”2 AplicanoGuevara further asserts, “[b]ecause there
is no principled basis to distinguish between a conduct enhancement and a
substantive offense, the accusatory pleading test for determining when an
instruction is required for a lesser included offense should consider conduct
enhancements.” We cannot agree.
In Apprendi, the defendant pleaded guilty to certain offenses, and
the trial court found by a preponderance of the evidence that an enhancement
applied. (Apprendi, supra, 530 U.S. at pp. 470–471.) The United States
Supreme Court articulated the question presented to it as “whether the Due
Process Clause of the Fourteenth Amendment requires that a factual
determination authorizing an increase in the maximum prison sentence for
an offense from 10 to 20 years be made by a jury on the basis of proof beyond
a reasonable doubt.” (Id. at p. 469.) The court held that the answer to that
question is yes: “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at
p. 490.) In short, the Apprendi holding was about the right to a jury trial; it
2
AplicanoGuevara also references the United States Supreme
Court’s decisions in Blakely v. Washington (2004) 542 U.S. 296 and United
States v. Booker (2005) 543 U.S. 220.
5
had nothing to do with lesser included offenses and when instructions
concerning them must be given.
In Alarcon, supra, 210 Cal.App.4th at p. 436, the Court of Appeal
rejected an argument similar to the one AplicanoGuevara advances here. In
that case, the defendant “was convicted of attempted murder and shooting at
an occupied motor vehicle,” and the jury found true gun use allegations. (Id.
at pp. 434–435.) The court rejected the defendant’s argument that, under
Apprendi, “the gun enhancement allegations in the accusatory pleading
required the trial court to instruct the jury regarding assault with a deadly
weapon as a lesser included offense of attempted murder.” (Alarcon, at
pp. 434–435.) The court explained Apprendi established “that an
enhancement allegation specifies an element of a greater crime only for
certain purposes not encompassing the accusatory pleading test.”3 (Alarcon,
at p. 436.)
Moreover, in at least three cases, the California Supreme Court
has noted the limited scope of Apprendi. (See Alarcon, supra, 210 Cal.App.4th
at pp. 437–438.) In Porter v. Superior Court (2009) 47 Cal.4th 125, the court
stated, “Apprendi did not convert the penalty allegations here into actual
elements of greater offenses for purposes of the statutory double jeopardy
protection of section 1023.” (Id. at p. 138.)4 In People v. Izaguirre (2007) 42
3
The court in Alarcon also rejected the defendant’s argument
that Wolcott had been overruled by the California Supreme Court’s decision
in People v. Seel (2004) 34 Cal.4th 535. (Alarcon, supra, 210 Cal.App.4th at
pp. 436–438.)
4
In a footnote in Apprendi, the United States Supreme Court
noted, “when the term ‘sentence enhancement’ is used to describe an increase
beyond the maximum authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than the one covered by the
6
Cal.4th 126, the court rejected the defendant’s argument that “enhancements
must be treated as legal elements under the multiple conviction rule” and
concluded Apprendi was inapposite. (Izaguirre, at pp. 128–129.) And in
People v. Sloan (2007) 42 Cal.4th 110, the court noted “enhancements are
neither recognized nor considered in determining whether the defendant can
be convicted of multiple charged crimes based on necessarily included
offenses,” and “[t]his result is also in accord with the longstanding rule that
enhancements may not be considered as part of an accusatory pleading for
purposes of identifying lesser included offenses.” (Id. at p. 114.)
In sum, we conclude Apprendi did not overrule Wolcott, and that
Wolcott remains controlling here.
AplicanoGuevara raises another argument: He contends “[t]he
equal protection clause also requires that the accusatory pleading test
consider conduct enhancements.” Citing In re Eric J. (1979) 25 Cal.3d 522,
530, and People v. Macias (1982) 137 Cal.App.3d 465, 472, AplicanoGuevara
asserts, “‘[t]he first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.’”
AplicanoGuevara argues, “[i]n the instant case, a defendant who is charged
solely with a substantive crime is similarly situated to a defendant who is
charged with a substantive crime and an enhancement,” “[t]he defendant who
is charged with a substantive crime has a right under California law to
jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an
‘element’ of the offense.” (Apprendi, supra, 530 U.S. at p. 494, fn. 19.) In
Porter v. Superior Court, the California Supreme Court noted that Apprendi’s
“‘functional equivalent’ statement” does not require courts “to treat penalty
allegations as if they were actual elements of offenses for all purposes under
state law.” (Porter v. Superior Court, supra, 47 Cal.4th at p. 137.)
7
instructions on all lesser included offenses,” and “[a] defendant who is
charged with a substantive crime and an enhancement should have the same
right to instructions on lesser included offenses.” He further argues, “[t]here
is no rational basis or government interest in treating differently persons
charged solely with a substantive crime from persons charged with a
substantive crime and an enhancement.” We conclude AplicanoGuevara has
shown no equal protection violation.
For starters, AplicanoGuevara has not shown similarly situated
groups are treated in an unequal manner.5 AplicanoGuevara says his “equal
protection argument is rooted in the fact that Apprendi obliterated the
distinction between elements of a crime and enhancement allegations.” As we
have shown above, however, Apprendi did not eliminate the differences
between offenses and enhancements for all purposes. (See People v. Izaguirre,
supra, 42 Cal.4th at p. 134 [noting “[c]onduct enhancements cannot be
imposed standing alone as additional punishment” and “[f]or that reason
alone, an enhancement cannot be equated with an offense”].)
Additionally, AplicanoGuevara has shown no difference in
treatment here. A defendant charged with attempted murder without an
5
In People v. Hardin (2024) 15 Cal.5th 834, the California
Supreme Court held, “when plaintiffs challenge laws drawing distinctions
between identifiable groups or classes of persons, on the basis that the
distinctions drawn are inconsistent with equal protection, courts no longer
need to ask at the threshold whether the two groups are similarly situated
for purposes of the law in question. The only pertinent inquiry is whether the
challenged difference in treatment is adequately justified under the
applicable standard of review. The burden is on the party challenging the law
to show that it is not.” (Id. at pp. 850–851.) The court further noted, “[t]o be
clear, we cast no doubt on the utility of ‘similarly situated’ inquiries in other
contexts.” (Id. at p. 851.) AplicanoGuevara does not argue the test articulated
in Hardin applies here.
8
enhancement for use of a deadly weapon would not be entitled to an
instruction for assault with a deadly weapon as a lesser included offense.
Thus, in terms of jury instructions, such a defendant would receive the same
treatment as AplicanoGuevara.
Accordingly, the trial court’s decision to not instruct on assault
with a deadly weapon as a lesser included offense of attempted murder did
not violate AplicanoGuevara’s equal protection rights.
DISPOSITION
The judgment is affirmed.
GOODING, J.
WE CONCUR:
MOTOIKE, P. J.
SANCHEZ, J.
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