Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. A277801, Mark V. Mooney, Judge. Affirmed.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
Defendant and appellant Jose Luis Hernandez (defendant) was convicted of, among other crimes, assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) Defendant’s sole contention on appeal is that the trial court erred by not instructing the jury sua sponte on misdemeanor brandishing of a firearm (§ 417, subd. (a)(2)), which defendant contends is a lesser-included offense of assault with a deadly weapon. We agree with the appellate authority, that notwithstanding language in older California Supreme Court cases, brandishing a firearm is a lesser-related, not a lesser-included, offense of assault with a deadly weapon. We therefore affirm.
All statutory references are to the Penal Code.
BACKGROUND
A. Factual Background
Defendant lived with Graciela Velez for 12 years, and they had three children together. Defendant had a history of depression, alcohol and drug abuse, and had attempted suicide twice. Velez ended her relationship with defendant and began a romantic relationship with Jose Duran, who worked with Velez at a bakery on West Adams Boulevard in Los Angeles.
Defendant obtained a gun. He told a friend, Denise Tapia, that he intended to kill Velez and commit suicide. Tapia warned Velez that defendant had a gun and was going to try to kill her.
On the evening of January 25, 2005, Velez was working behind the counter at the bakery. Defendant entered the bakery and told Velez he was going to kill her. Velez fled through the back door, screaming for help. Duran saw defendant pursuing Velez, pointing a gun at Velez’s back. Duran jumped on defendant and attempted to wrest the gun from him. As the two men struggled, the gun fell to the floor.
Defendant testified that he kept the gun in his pocket until it fell out during his struggle with Duran.
Alexander Barahona, a homeless man who slept in the bakery’s parking lot, saw the struggle and came to help Duran. He picked up the gun and struck defendant with the butt twice on the head. On the second strike, the gun discharged. Defendant and Duran were both wounded in the hand. The men separated. Duran struck defendant in the head with a stack of trays. Defendant fell to the floor, but then stood up and fled from the bakery. He was immediately apprehended by the police.
B. Procedural Background
Defendant was charged in a four-count information with one count of attempted premeditated murder (§§ 187, subd. (a); 664) (count 1), two counts of assault with a firearm (§ 245, subd. (a)(2) (counts 2 and 4), and one count of making criminal threats (§ 422) (count 3). The People also alleged that defendant personally used a firearm during the commission of an attempted murder on count 1 (§ 12022.53, subd. (b)); that defendant personally used a firearm to commit the crimes charged in counts 2 and 4 (§ 12022.5, subd. (a)); and that defendant was a principal armed with a firearm during the commission of the offense charged in count 3 (§ 12022, subd. (a)(1)).
The trial court granted defendant’s motion to acquit on count 4. The jury convicted defendant on counts 2 and 3 and found true the firearms allegations. The jury deadlocked on count 1, and the trial court declared a mistrial. Defendant was retried on count 1 and convicted by a jury of premeditated attempted murder. The jury also found true the gun-use enhancement.
The Hon. David M. Mintz presided over defendant’s first trial and sentenced defendant on counts 2 and 3.
The Hon. Mark V. Mooney presided over defendant’s second trial and sentenced defendant on count 1.
On count 1, Judge Mooney sentenced defendant to life imprisonment with the possibility of parole, plus a consecutive 10 year term for the gun-use enhancement. Defendant was ordered to pay a $20 court security fee, a $200 restitution fine, and a $200 parole restitution fine (stayed). Judge Mintz sentenced defendant to three years imprisonment on count 3, consisting of the mid term of two years plus one year for the gun-use enhancement under section 12022, subdivision (a)(1), to run concurrently with defendant’s sentence on count 1. Judge Mintz sentenced defendant to 13 years imprisonment on count 2, consisting of the mid term of three years plus 10 years for the firearm enhancement under § 12022.5. The sentence on count 2 was stayed pursuant to section 654. Judge Mintz added an additional $20 court security fee. Defendant was given presentence credit of 756 days, consisting of 658 days of actual custody and 98 days of conduct credit.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court, in defendant’s first trial, erred by failing sua sponte to instruct the jury on brandishing a firearm (§ 417, subd. (a)(2)). Defendant argues that, in People v. Wilson (1967) 66 Cal.2d 749 (Wilson), the California Supreme Court held that brandishing a firearm is a lesser-included offense of assault with a firearm (§ 245, subd. (a)(2)), and that this court is bound by that holding. We disagree.
Section 417, subd. (a)(2) makes it a crime to “except in self-defense, in the presence of any other person, draw or exhibit any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or . . . in any manner, unlawfully use a firearm in any fight or quarrel . . . .”
Section 245, subdivision (a)(2) provides, “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”
“A trial court is required to instruct on any lesser included offenses that are supported by the evidence. [Citation.] An offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. [Citations.] The trial court, however, is not required to instruct on lesser related offenses.” (People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele), italics added.) “The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. [Citations.] ‘It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]’” (Id. at pp. 217-218; accord,.)
In Wilson, supra, 66 Cal.2d 749, the defendant forcibly entered his estranged wife’s apartment with a shotgun, murdered his wife and one man, and wounded another man. A third man, Champion, escaped unharmed. (Id. at pp. 752-753.) The defendant was convicted, inter alia, of assault with a firearm against Champion. The defendant testified “that when he entered the apartment[,] he did not have a felonious intent but intended only to scare the occupants[.]” (Id. at p. 760.) The court in Wilson addressed whether the trial court had erred by failing sua sponte to instruct the jury on brandishing a firearm. The court’s entire discussion of that issue was as follows: “That judgment of conviction [firearm assault against Champion] must be reversed for failure to instruct on section 417. ‘An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ (. . . § 240.) Defendant did not shoot or strike Champion; had the jury been instructed on section 417 the evidence would have justified the conclusion that defendant committed a violation of that section rather than the assault found. (People v. Carmen [(1951)] 36 Cal.2d 768, 774-775 [(Carmen)].)” (Wilson, supra, 66 Cal.2d at p. 764.) Two months after Wilson was decided, the Supreme Court observed in People v. Coffey (1967) 67 Cal.2d 204, 222, fn. 21 (Coffey), “The jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in those charged [which included assault with a firearm]. (Cf. People v. Wilson [supra, ] 66 Cal.2d 749, 757-761.)”
The court in Wilson, supra, 66 Cal.2d 749did not expressly state that brandishing a firearm is a lesser included offense of assault with a firearm, nor did the Supreme Court in Wilson apply the test normally employed to determine whether the elements of brandishing a firearm were necessarily included in a charge of assault with a firearm, or alleged in the wording of the information. (Steele, supra, 83 Cal.App.4th at pp. 217-218.) Rather, the court relied on the evidence adduced at trial to determine that the trial court erred in failing to instruct the jury on brandishing with a firearm. (But see People v. Izaguirre, supra, 42 Cal.4th 126, 131 ; People v. Birks (1998) 19 Cal.4th 108, 117-119 [“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”].) From the ruling, one could infer that the Supreme Court held that brandishing a firearm is a lesser included offense of assault with a firearm, but the Supreme Court did not expressly so state.
Virtually all California appellate authority — both before and after the decision in Wilson, supra, 66 Cal.2d 749 — holds that brandishing a firearm is a lesser related offense of assault with a firearm, not a lesser included offense. (E.g., Steele, supra, 83 Cal.App.4th at p. 218; People v. Lipscomb (1993) 17 Cal.App.4th 564, 569; People v. Beach (1983) 147 Cal.App.3d 612, 626; People v. Escarcega (1974) 43 Cal.App.3d 391, 398 (Escarcega); People v. Orr (1974) 43 Cal.App.3d 666, 673; People v. Birch (1969) 3 Cal.App.3d 167, 176; People v. Leech (1965) 232 Cal.App.2d 397, 399 [information charging assault with a deadly weapon insufficient to give notice of charge of brandishing a firearm]; People v. Torres (1957) 151 Cal.App.2d 542, 544-545; People v. Diamond (1939) 33 Cal.App.2d 518, 522-523; People v. Piercy (1911) 16 Cal.App. 13, 16.) “The reason of course, is that 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. [Citation.]” (Steele, supra, 83 Cal.App.4th at p. 218.)
Cases subsequent to Wilson, supra, 66 Cal.2d 749, have not interpreted that case to hold that brandishing a firearm is a lesser included offense of assault with a firearm. For example, in Escarcega, supra, 43 Cal.App.3d 391, the Court of Appeal rejected the precise argument made by defendant in this case. The court reasoned, “Nowhere did the court [in Wilson] discuss or consider the rationale of the ‘lesser and necessarily included offense.’ Nor did the court hold that the elements of section 417 were necessarily included in a charge of assault with a deadly weapon. Demonstrably, according to long-established principles, section 417 is not such a necessarily included offense. And it is significant that the court showed no purpose to overrule or modify those principles. Further, if the purpose was to hold the forbidden conduct of section 417 to be necessarily included in an assault with a deadly weapon charge, we may reasonably conclude that the court would have contemporaneously disapproved the many contrary Court of Appeal decisions which were then extant.” (Id. at p. 399.)
In Steele, supra, 83 Cal.App.4th at pages 219-222, the court relied on Escarcega, supra, 43 Cal.App.3d 391 to hold that “brandishing is a lesser [related] offense [of] assault with a firearm[,]” rather than “a lesser included offense[.]” The Court of Appeal noted that in Wilson, supra, 66 Cal.2d 749, the Supreme Court failed to follow its own rule “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.” (Steele, supra, 83 Cal.App.4th at p. 221.) Moreover, the footnote in Coffey, supra, 67 Cal.2d at p. 222, fn. 21, is not binding authority because it does not express a holding on that issue. The court did not even cite to the relevant page in Wilson in which the Wilson court implied “brandishing is a lesser [included] offense [of] assault with a firearm [.]” (Steele, supra, 83 Cal.App.4th at p. 220.)
Although California Supreme Court decisions are binding upon lower courts (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), the Supreme Court in Wilson, supra, 66 Cal.2d 749did not conduct a lesser included offense analysis, and it did not expressly hold that brandishing is a lesser included offense of assault with a firearm. We therefore agree with Escarcega, supra, 43 Cal.App.3d 391, Steele, supra, 83 Cal.App.4th 212, and the California appellate decisions both prior to and subsequent to Wilson, that brandishing a firearm is a lesser related offense of assault with a firearm, and not a lesser included offense.
Although defendant argues at length that the trial evidence would support an instruction on brandishing a firearm, defendant does not explain how the information in this case alleged the assault with a firearm against Velez in such a way that, if committed in the manner described, the lesser offense of brandishing a firearm must necessarily have been committed. The information does not refer to drawing or exhibiting the firearm in a rude, angry, or threatening manner, nor does it state that defendant used the gun during a fight or quarrel. Therefore, the trial court did not err by failing to instruct the jury sua sponte that brandishing a firearm is a lesser included offense of assault with a firearm.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.