From Casetext: Smarter Legal Research

People v. Lee

California Court of Appeals, Fourth District, Second Division
Jun 16, 2009
No. E044943 (Cal. Ct. App. Jun. 16, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FWV701366. Mary E. Fuller, Judge. Affirmed.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Lilia E. Garcia, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

McKinster, J.

On September 18, 2007, the San Bernardino County District Attorney, in an amended information, charged defendant and appellant, Derion Davon Lee, with assault with a firearm under Penal Code section 245, subdivision (a)(2) (count 1); making a criminal threat under Penal Code section 422 (count 2); cutting a utility line under Penal Code section 591 (count 3); possession of a firearm by a felon under Penal Code section 12021, subdivision (a)(1) (count 4); possession of ammunition under Penal Code section 12316, subdivision (b)(1) (count 5); dissuading a witness under Penal Code section 136.1, subdivision (b)(1) (count 6); and evading a peace officer under Vehicle Code section 2800.2, subdivision (a) (count 7). The information also alleged that defendant personally used a firearm under Penal Code section 12022.5, subdivision (a), as to count 1, and was armed with a firearm under Penal Code section 12022, subdivision (a)(1), as to counts 2, 3, 6, and 7.

The trial court granted defendant’s motion to dismiss as to count 5, possession of ammunition, but denied the motion as to count 6, dissuading a witness.

On December 12, 2007, the jury found defendant guilty of assault with a firearm (count 1), making a criminal threat (count 2), possession of a firearm by a felon (count 4), and evading a peace officer (count 7). The jury also found true the firearm enhancement allegations as to counts 1, 2, and 7. The jury found defendant not guilty of cutting a utility line (count 3) and dissuading a witness (count 6).

On January 9, 2008, the trial court sentenced defendant to state prison for a total term of eight years. As to count 1, the court imposed the middle term of three years for the assault with a firearm, plus a consecutive four-year middle term for the accompanying firearm enhancement. As to count 7, evading a peace officer, the trial court imposed a consecutive term of eight months (one-third the middle term), and a consecutive four-month term (one-third the middle term) for the accompanying armed firearm enhancement. As to counts 2 and 4, the court imposed concurrent terms of the middle term of two years for each count, and one year for each of the firearm enhancements.

On appeal, defendant contends that “the trial court prejudicially erred when it refused to instruct the jury on brandishing a firearm as a lesser included offense to assault with a firearm.” (Capitalization omitted.) For the reasons set forth below, we shall affirm the judgment.

I

FACTUAL AND PROCEDURAL HISTORY

On the evening of June 19, 2007, Ashley T. (the victim) was living with her infant son in an apartment in Rancho Cucamonga. The victim’s friend, Martina, and her child were visiting the victim. The victim had known Martina and Martina’s boyfriend, defendant, for several years. That evening, the victim told Martina that defendant had made sexual comments and sexual advances to the victim the previous day. Martina became angry at defendant. About 11:00 p.m., defendant arrived at the victim’s apartment to pick up Martina and their child; the three of them left together.

About 30 minutes later, Martina returned to the victim’s home without defendant. Martina seemed angry at defendant. About 45 minutes to one hour later, the victim was in the bedroom with her infant son when she heard loud banging at her front door. It sounded as if someone were trying to break the screen. The victim believed it was defendant and told Martina not to open the door. Martina ignored the victim and unlocked the door; defendant entered the apartment.

Defendant, who was angry, went into the bedroom where the victim was lying on the bed with her son. He approached the victim and said, “Why are you lying?” He put one hand around her neck and choked her, pinning her against the bed. With his other hand, he held a gun to the victim’s temple and threatened to kill the victim. The victim believed that defendant would kill her.

The victim struggled free and ran out of the bedroom into the living room. She grabbed the telephone to call the police. Defendant followed the victim and yanked the telephone cord out of the wall. Defendant was angry and threatened the victim; he also chased her around the apartment. The victim ran back into the bedroom and located a second telephone. She called 911. Defendant left the apartment when the victim called 911. Martina asked the victim not to call the police on defendant.

During the altercation, the victim sustained a dislocated shoulder. Also, there was redness to her neck area where defendant had choked her.

The following morning, San Bernardino County Deputy Sheriff Gered Laing saw defendant driving a gray Mustang on Interstate 10 in Ontario. The car matched the description given by the victim. The deputy activated his patrol car’s siren and red lights. Defendant pulled over and stopped for about three to four seconds before he drove off at a high speed and cut across four lanes of traffic. A high speed chase ensued and two other patrol cars joined in the pursuit. Defendant drove his car at speeds over 100 miles per hour for over four miles during morning rush hour traffic. As defendant exited the freeway, his car hit three vehicles. Defendant only stopped when he crashed into an embankment. He got out of the car and ran. Police found defendant in the immediate area hiding in a trash dumpster. Near the site where defendant’s car had crashed into the embankment, the police recovered a silver gun. The gun was about 10 to 15 feet from defendant’s car.

At trial, the victim identified a photograph of the gun recovered by police near defendant’s car as the one defendant held to her head.

Defendant did not testify. Defense counsel argued that the victim had fabricated the allegations and pointed to inconsistencies between her initial report to police and her trial testimony.

II

ANALYSIS

Defendant’s sole issue on appeal is that the trial court erred in refusing to instruct the jury on the misdemeanor offense of brandishing a deadly weapon because, based on California Supreme Court cases, brandishing is a lesser included offense of assault with a firearm. We disagree.

“The definition of a lesser necessarily included offense is technical and relatively clear. 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. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted (Birks).) In other words, “[a]n offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. [Citations.]” (People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele).) A trial court “must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]” (Birks, at p. 118.)

Since 1911, intermediate appellate courts in this state have consistently regarded brandishing as a lesser related, not a lesser included, offense of assault with a deadly weapon. (See Steele, supra, 83 Cal.App.4th at p. 218 [citing nine appellate cases so holding, from People v. Piercy (1911) 16 Cal.App. 13, 16 to People v. Lipscomb (1993) 17 Cal.App.4th 564, 569].) Nevertheless, defendant argues we must ignore this well-settled law because it contradicts Supreme Court precedent. He refers to People v. Wilson (1967) 66 Cal.2d 749 (Wilson), in which the court reversed a conviction due to the absence of an instruction on the offense of brandishing when “the evidence would have justified the conclusion that defendant committed a violation of [Penal Code section 417] rather than the assault found. [Citation.]” (Id. at p. 764.) In another 1967 case, the Supreme Court observed in dictum that the jury had been “properly instructed that [Penal Code] section 417 sets forth a lesser offense necessarily included in those charged. (Cf. [Wilson, at pp.] 757-761....)” (People v. Coffey (1967) 67 Cal.2d 204, 222, fn. 21.) Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, defendant insists we are bound to follow these Supreme Court decisions and reverse his conviction for assault with a firearm.

In Steele, supra, 83 Cal.App.4th 212, Division Two of the Court of Appeal, Second Appellate District, rejected the exact same arguments in a thoughtful opinion. While noting the Supreme Court’s statements in Wilson “implied—but did not directly hold—that brandishing was a lesser included offense to assault with a firearm” (Steele,at p. 219), the Steele court declined to follow this implied holding for several reasons. First, the court cited, with apparent approval, a discussion of the subject in People v. Escarcega (1974) 43 Cal.App.3d 391, 399–400, wherein the appellate court did not follow Wilson because: “a. The Supreme Court did not specifically state that brandishing was a lesser included offense to assault with a firearm. [¶] b. The court did not discuss the rationale behind lesser included offenses. [¶] c. The court did not overrule the prior published appellate court decisions holding that brandishing was not a lesser included offense to assault with a firearm. [¶] d. After publication of Wilson, the Supreme Court has consistently reaffirmed the principle that a lesser and necessarily included offense is one that must be committed in order to commit the greater offense. (The Escarcega court noted that it was possible to commit an assault with a firearm without brandishing it, therefore brandishing cannot be a lesser included offense to such an assault.) [¶] e. Wilson is not supported by any prior or subsequent cases, as [People v.] Carmen [(1951) 36 Cal.2d 768] did not so hold, and the footnote statement in Coffey is not binding authority.” (Steele,at p. 220.) To this list, the Steele court added its own criticism: “[I]n Wilson, the Supreme Court failed to follow its own rule, i.e., that the determination of whether an offense is lesser included is made from the language of the statute or the information, and not from the evidence adduced at trial. [Citation.]” (Id. at p. 221.) The court also reasoned 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.” (Id. at p. 218.)

Defendant’s contention that Steele is inconsistent with two earlier Supreme Court cases, People v. Coffey, supra, 67 Cal.2d 204, and Wilson, supra, 66 Cal.2d 749, is unavailing in light of the fact that the Supreme Court denied a petition for review in Steele.

We agree with the Steele court’s conclusions, including its important observation that the court in Wilson failed to follow its own rule for analysis of lesser included offenses later reiterated in Birks, supra, 19 Cal.4th at page 117. Thus, we follow Steele and the other appellate cases that have concluded that brandishing is not a lesser necessarily included offense of assault with a deadly weapon upon which a trial court has a duty to instruct on a defendant’s unilateral request. (Steele, supra, 83 Cal.App.4th at pp. 218-220; Birks, at pp. 128, 132, 134, 136, fn. 19; People v. Kraft (2000) 23 Cal.4th 978, 1064-1065.) Looking only at the language of the statutes and the information, as we must (see Birks, at p. 117), “the conclusion is inescapable that an assault with a [deadly weapon] may be committed without the defendant brandishing such weapon. Ergo, under the Supreme Court’s own rule of analysis, as recently affirmed in Birks, brandishing cannot be a lesser included offense to assault with a [deadly weapon].” (Steele, at p. 221.)

Based on the above, we hold that brandishing a firearm is not a lesser included offense of assault with a firearm. Therefore, the trial court properly declined to instruct the jury on brandishing a firearm as a lesser included offense of assault with a firearm.

III

DISPOSITION

The judgment is affirmed.

We concur: Ramirez, P.J., Richli, J.


Summaries of

People v. Lee

California Court of Appeals, Fourth District, Second Division
Jun 16, 2009
No. E044943 (Cal. Ct. App. Jun. 16, 2009)
Case details for

People v. Lee

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DERION DAVON LEE, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jun 16, 2009

Citations

No. E044943 (Cal. Ct. App. Jun. 16, 2009)