Opinion
F061402
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. BRYANT GASKIN CRAWFORD, Defendant and Appellant.
J. Wilder Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F10901715)
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J. and Gomes, J.
APPEAL from a judgment of the Superior Court of Fresno County. James R. Oppliger, Judge.
J. Wilder Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Bryant Gaskin Crawford of second degree robbery (Pen. Code, § 211) and assault with a firearm (§ 245), and found true allegations that Crawford personally used a firearm in the commission of the crimes within the meanings of sections 12022.53, subdivision (b) and 12022.5. Before trial, Crawford pled guilty to being a felon in possession of a handgun (§ 12021, subd. (a)(1)). Crawford was sentenced to 12 years in state prison, comprised of the low term of two years for the robbery plus ten years for the section 12022.53, subdivision (b) enhancement. The sentences on the assault with firearm charged and its enhancement were stayed pursuant to section 654, and the two year sentence for the felon in possession of a firearm conviction was made concurrent to the robbery sentence. On appeal, Crawford contends the trial court erred in failing to instruct the jury on brandishing a deadly weapon as a lesser included offense of assault with a firearm. We disagree and affirm the judgment.
All further statutory references are to the Penal Code.
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FACTS
On October 5, 2009, Crawford robbed Ali Nagi at gunpoint at the Fresno liquor store Nagi owned. A customer had just given Nagi, who was standing at the cash register behind the counter, cash to purchase a money order when Crawford came up, pushed the customer and his girlfriend aside, and took the cash from Nagi's hand. Crawford came around the counter and ordered Nagi to open the cash register and give him all of the money in it. Nagi was scared because Crawford was holding a handgun "very close" to his head. Nagi said Crawford did not hit or strike him with it. Nagi handed Crawford the money from the cash register; Crawford also took money that was in a drawer below the cash register. Still holding the gun to the back of Nagi's head, Crawford took Nagi's wallet from his back pocket, pushed him to the back of the store, and ran away. According to a police officer who viewed a video of the robbery, Crawford was holding a revolver; the hammer was cocked back and Crawford had his finger on the trigger.
Someone came into the drum store next to the liquor store and told the employees the liquor store was being robbed. One of the employees went to the front of the drum store and saw Crawford come out of the liquor store. The employee and a customer got into the customer's vehicle and followed Crawford, who had run down the street and gotten into a white car, as Crawford drove to a house 500 feet from the shop. They wrote down the address of the house and gave it to police.
Police arrested Crawford and then searched the house. They found the clothes Crawford was wearing during the robbery, as well as Nagi's wallet and a loaded revolver that was the same gun used in the robbery. Police interviewed Crawford after he agreed to speak with them. He told police he committed the robbery, and told them the money from the robbery, which the police recovered, was hidden inside the toilet at his house.
DISCUSSION
Crawford contends the trial court erred when it refused defendant's counsel's request that the jury be instructed on brandishing a weapon as a lesser included offense to assault with a firearm. We disagree.
The trial court has a sua sponte obligation to instruct on a lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) "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.) Two tests are used to determine whether an offense is a lesser included offense: the statutory elements test and the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The statutory elements test is satisfied when "'"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense."'" (Ibid.) The accusatory pleading test is met "'"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed."'" (Id. at pp. 288-289.)
Although assault with a firearm and brandishing a weapon are related offenses, the latter is not a necessarily included offense of the former under the statutory elements test because "it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g. firing or pointing it from concealment, or behind the victim's back." (People v. Steele (2000) 83 Cal.App.4th 212, 218 (Steele).) In so holding, the court in Steele followed a long line of intermediate appellate cases which consistently had regarded brandishing as a lesser related, not a lesser included, offense of assault with a deadly weapon. (See Steele, supra, at p. 218 and cases cited therein.)
Crawford acknowledges Steele, but asks us to reexamine it. He asserts Steele is based on a line of cases that adopted a narrow definition of brandishing when determining whether it is a lesser included offense of assault with a firearm, and if we consider a different line of cases that addressed the sufficiency of the evidence to support a brandishing conviction that gave a broad meaning to brandishing, terminating with People v. Booker (2011) 51 Cal.4th 141 (Booker), we would conclude the definition of brandishing necessarily includes assault with a firearm. Crawford points out that in Booker, our Supreme Court noted that brandishing a weapon may be committed by drawing or exhibiting the weapon in a rude, angry, or threatening manner, and it need not be pointed at the victim to be threatening. (Booker, supra, 51 Cal.4th at p. 189.) The court in Booker also quoted from People v. McKinzie (1986) 179 Cal.App.3d 789, 794, in which that court stated that to establish brandishing, "'. . . it is enough that the brandishing be in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or brandisher need help, or might think a brawl is in the making which he might join.'" (Booker, supra, 51 Cal.4th at p. 189.)
From this language, Crawford argues that, contrary to the statement in Steele that assault can be accomplished without brandishing because it is possible to assault someone with a firearm by firing or pointing it from concealment or behind the victim's back, brandishing can be accomplished from behind the victim's back because it can be completed "when the firearm is used in such a way that some third party may be made aware of the firearm's presence and its potential threat to the victim." Crawford's argument, however, fails to show that the greater crime of assault with a firearm (§ 245) cannot be committed without necessarily committing the crime of brandishing a weapon (§ 417, subd. (a)(2)).
Even if brandishing can be accomplished when the firearm is seen by a third party and not the victim, it is still theoretically possible to assault someone with a firearm without brandishing it, such as by holding the firearm behind the victim's back, because a third party might not be present to view the firearm. When determining whether one offense is a lesser included of another, we consider the two offenses in the abstract and not based on the evidence adduced at trial. (See Steele, supra, 83 Cal.App.4th at p. 218.) Therefore, while the evidence in this case might establish both an assault and a brandishing since the gun was displayed in the presence of third parties, this does not mean that assault cannot be committed without necessarily committing brandishing, since it is still possible to assault someone with a firearm from behind the victim's back without anyone else seeing the firearm.
As the statutory elements test is not satisfied, we turn to whether the information encompasses the crime of brandishing. Here, the information simply alleged Crawford "did willfully and unlawfully commit an assault on [the victim] with a firearm." So worded, the allegation did not encompass the crime of brandishing a firearm.
The court in Steele cogently explained why brandishing is not a lesser included offense of assault with a firearm. We agree with its analysis and hold that brandishing a firearm, under the Supreme Court's approved definition, it not a lesser included offense of assault with a firearm. Accordingly, the trial court did not err in failing to instruct on brandishing.
DISPOSITION
The judgment is affirmed.