Filed 4/28/14 P. v. Gomez-Villeda CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064112
Plaintiff and Respondent,
v. (Super. Ct. No. SCD235999)
ELAINA EUGENIA GOMEZ-VILLEDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Albert T.
Harutunian, III, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for the
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Scott C. Taylor, Parag Agrawal, Deputy Attorneys General for the
Plaintiff and Respondent. A jury convicted Elaina Eugenia Gomez-Villeda of making a criminal threat (Pen.
Code,1 § 422; count 1) and assault with a firearm (§ 245, subd. (a)(2); count 2). It found
true allegations that defendant personally used a firearm in the commission of count 1
within the meaning of sections 12022.5, subdivision (a) and 1192.7, subdivision (c)(23).
The trial court suspended imposition of sentence and placed defendant on three years of
formal probation and ordered her to pay various fines and fees. Defendant contends the
evidence does not establish she made a criminal threat within the meaning of section 422.
She further contends the trial court prejudicially erred by failing to instruct the jury on
count 2 on brandishing a firearm as defined in section 417, subdivision (a)(2). We affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of August 16, 2011, Carmen Ruiz and her then three-year-old
daughter visited Ruiz's friend, Maria Garcia, who lived on Fairmont Avenue in San
Diego. Ruiz and Garcia had been friends for eight years but Ruiz had only been to
Garcia's house four or five times. Ruiz parked her car in Garcia's parking area, close to
the back door of Garcia's house. After another friend of Ruiz's, Maria Anguiano, arrived,
Ruiz and Anguiano left in Anguiano's car for about 45 minutes to run an errand. When
Ruiz and Anguiano returned, they walked from the alley into the parking area toward the
back door. As they approached Garcia's door, they saw defendant and her two children.
Ruiz had never spoken with defendant before.
1 All statutory references are to the Penal Code.
2 After Ruiz entered Garcia's home, Garcia and Garcia's sister in law, Cynthia
Ornelas, told Ruiz that defendant had called a tow truck to tow Ruiz's car, but the tow
truck did not take it because it was parked in Garcia's spot. Garcia and Ornelas appeared
angry and had argued with defendant over the parking spot. Ruiz got her car keys and
went outside to move her car, followed by Anguiano, Garcia, Ruiz's daughter, and
Ornelas.
Ruiz got to her car and opened the door when defendant approached her, pointing
a black gun at her. Defendant put the gun to the side of Ruiz's head and said in a very
angry tone, "I'm not playing, I'm not fucking joking."2 Ruiz was very afraid. She
thought defendant was actually going to kill her because defendant was serious, and very
upset and angry. Ruiz believed defendant had the ability to shoot her, and behaved as
though the gun was working. She estimated that defendant held the gun to her head for
about a minute, which to her felt like a long time. Ornelas estimated the incident took
close to one minute. Ruiz understood defendant to be demanding that she move her car,
because Garcia had already told Ruiz that she and defendant had argued about the
problem. Still yelling, defendant turned around and returned to her house. Thankful that
she was not shot, Ruiz eventually moved her car after defendant returned to her house.
Ruiz parked and returned to the front of Garcia's house to pick up her daughter. Ruiz was
2 On cross-examination Ruiz said defendant said something like, "What the fuck do you think, I'm not joking." Ornelas testified that defendant said, "Move your fucking car, do you think I'm fucking playing with you." 3 afraid for a "long time" after the day ended; she became depressed and returned to
Mexico because she was afraid that something would be done to her or her daughter.
Silvia Vasquez, the office manager for the company managing the apartment
complex, testified that on August 1, 2011, defendant sent her an email complaining about
her neighbor, and telling her they had been hoarding trash, not cleaning up after their
animals, and having a large number of people coming in and out of their unit at all hours
of the night. She wrote that the police had been called, but did not show up in time and
considered it low priority. The last line of defendant's email read: "I am trying to take
the responsible approach on this instead of getting ghetto and really causing a problem. I
am not really sure what to do." Vasquez had received earlier complaints from defendant
about her neighbors keeping outside lights on unnecessarily and leaving trash outside
their unit. In response, Vasquez instructed defendant to continue to call police, and the
management company had sent her neighbor a notice. Vasquez testified that on the day
of the incident defendant had phoned her to complain that the driveway was being
blocked by another vehicle so nobody could get in or out.
Police officers responding to the August 16 incident searched defendant's home
and found a live bullet for a .32-caliber revolver, a trigger lock in two pieces, and a gun
pouch of a size consistent with a .32-caliber gun. They did not locate any firearms in her
house.
Defendant claimed that when she told Ruiz to move her car, she was only holding
her car keys and cell phone. She denied having or owning a gun, and denied having any
4 weapon or gun at any time that day. Defendant denied threatening to do bodily harm to
anyone, or to Ruiz specifically, on the day of the incident.
DISCUSSION
I. Sufficiency of the Evidence to Support Conviction for Making a Criminal Threat
Defendant contends the evidence is insufficient to establish she made a criminal
threat within the meaning of section 422. Specifically, she maintains there was no
evidence of any threat and though she was angry, after the incident she turned and walked
back to her apartment. She also argues the evidence does not show Ruiz was in a
sustained period of fear within the meaning of the statute. Defendant argues her
comments, taken in context, suggest only a verbal outburst and not a serious, deliberate
statement of purpose to inflict pain or physical injury on Ruiz. Further, defendant asserts
the evidence does not show Ruiz was reasonably in sustained fear for her own safety that
was more than momentary, fleeting or transitory.
A. Standard of Review
" 'A reviewing court faced with [a claim challenging the sufficiency of the
evidence] determines "whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." [Citations.] We examine the record to determine
"whether it shows evidence that is reasonable, credible and of solid value from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt."
[Citation.] Further, "the appellate court presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence." [Citation.]
5 This standard applies whether direct or circumstantial evidence is involved. "Although it
is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other innocence, it
is the jury, not the appellate court[,] that must be convinced of the defendant's guilt
beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier
of fact's findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment." ' " ' " (People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
B. Elements of Offense
There are five elements to a section 422 offense of making a criminal threat. (In
re George T. (2004) 33 Cal.4th 620, 630.) The People must prove: " '(1) that the
defendant "willfully threaten[ed] to commit a crime which will result in death or great
bodily injury to another person," (2) that the defendant made the threat "with the specific
intent that the statement . . . is to be taken as a threat, even if there is no intent of actually
carrying it out," (3) that the threat . . . was "on its face and under the circumstances in
which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate prospect of
execution of the threat," (4) that the threat actually caused the person threatened "to be in
sustained fear for his or her own safety or for his or her immediate family's safety," and
(5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' " (In re
George T., at p. 630, fn. omitted.)
6 C. Defendant's Statement was a Threat within the Meaning of Section 422
In In re George T., supra, 33 Cal.4th at page 635, the court explained: "With
respect to the requirement that a threat be 'so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened a gravity of purpose and an immediate
prospect of execution of the threat,' we explained . . . that the word 'so' in section 422
meant that ' "unequivocality, unconditionality, immediacy and specificity are not
absolutely mandated, but must be sufficiently present in the threat and surrounding
circumstances . . . ." ' [Citations.] 'The four qualities are simply the factors to be
considered in determining whether a threat, considered together with its surrounding
circumstances, conveys those impressions to the victim.' [Citation.] A communication
that is ambiguous on its face may nonetheless be found to be a criminal threat if the
surrounding circumstances clarify the communication's meaning." Thus, a " 'threat is not
insufficient simply because it does "not communicate a time or precise manner of
execution, section 422 does not require those details to be expressed." ' " (People v.
Wilson (2010) 186 Cal.App.4th 789, 806.) " 'While the statute does not require that the
violator intend to cause death or serious bodily injury to the victim, not all serious
injuries are suffered to the body. The knowing infliction of mental terror is equally
deserving of moral condemnation.' " (Ibid.)
Here, viewing the entire incident in context, a reasonable trier of fact could find a
sufficient threat from the evidence of defendant's angry approach with gun raised and
leveled at Ruiz's head. Though defendant did not expressly threaten bodily harm, her use
of the gun while yelling at Ruiz that she was "not playing" and "not fucking joking,"
7 constituted a threat under circumstances that conveyed a gravity of purpose and an
immediate prospect of execution. And, contrary to other cases in which gravity of
purpose was not found (see In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138 (Ricky T.)),
defendant's angry words were accompanied by a show of physical violence. A rational
trier could have found that defendant expressed her intention to hurt Ruiz if Ruiz did not
immediately move her vehicle. A rational trier could have further concluded that by
pointing the gun and holding it at Ruiz's temple, defendant expressed a gravity of purpose
and an immediate prospect of execution of the threat.
In view of these circumstances, we do not accept defendant's characterization of
her words as merely "suggest[ing] an angry outburst and nothing more." And, though
defendant claims she "immediately" turned and walked away, the evidence does not
necessarily support that proposition; Ruiz testified that at some point when she had
started to get into the driver's seat, defendant turned around to go back to her house, still
yelling. In sum, the evidence amply supports the jury's finding that defendant made a
threat within the meaning of section 422.
D. The Evidence is Sufficient to Show Ruiz was Reasonably in Sustained Fear
The sustained fear element "requires proof of a mental element in the victim."
(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) "The phrase to 'cause[ ] that person
reasonably to be in sustained fear for his or her own safety' has a subjective and an
objective component. A victim must actually be in sustained fear, and the sustained fear
must also be reasonable under the circumstances." (Ricky T., supra, 87 Cal.App.4th at
pp. 1139-1140.) "[S]ection 422 requires that the communication must be sufficient 'on its
8 face and under the circumstances in which it is made' to constitute a criminal threat. This
means that the communication and the surrounding circumstances are to be considered
together." (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)
Though neither section 422 nor case law has identified any particular length of
time for a finding of sustained fear, "sustained" as used in the statute has been described
to mean "a period of time that extends beyond what is momentary, fleeting, or
transitory." (People v. Allen, supra, 33 Cal.App.4th at p. 1156 & fn. 6 ["[N]o minimum
time period is required, only a period 'not insubstantial' "]; Ricky T., supra, 87
Cal.App.4th at pp. 1139-1140.) Thus, not any experience of fear will suffice to meet the
standard. (Id. at p. 1140 ["Clearly, if any experience of fear constitutes a 'sustained'
experience, then the term is superfluous."].) In Allen, the appellate court held the
evidence was "more than sufficient" to support a finding of sustained fear for purposes of
section 422 where the defendant was "armed, mobile, and at large" for a sustained period
of 15 minutes after he had threatened to kill the victim and her daughter, against whom
he had a long history of stalking and domestic violence. (Allen, at pp. 1151-1156.) The
court found the victim's knowledge of the defendant's prior conduct was relevant to
establish the victim was in a state of sustained fear. (Id. at p. 1156.)
In People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro), the victim and his son
were at a gas station when they got into an altercation with the defendant, whom they had
never previously met. (Id. at p. 1344.) The defendant appeared to drive off, but then
circled back around. (Id. at p. 1345.) The victim attempted to leave the premises, but
before he could, the defendant confronted him and his son in their car, displayed a
9 weapon in his waistband to them while yelling obscenities, and threatened to kill them.
(Id. at pp. 1345-1346.) This second encounter lasted about a minute, and the threat itself
lasted about 40 seconds. (Id. at p. 1349 & fn. 5.) When the victim was finally able to
drive away and onto the freeway, he called the police, still scared. (Id. at p. 1346.)
Fierro summarized the victim's testimony of his fear: "Mr. Ibarra testified clearly
and more than once that he was horribly scared, and his fright was not fleeting.
Regardless of who was at fault during the first confrontation, it had ended. Appellant had
driven away. But then appellant circled and returned with the obvious intent of
confronting Ibarra again and, this time, frightening him. In light of the (albeit recent)
history between these people, appellant amply succeeded. Facing what he thought was a
gun and hearing words to the effect that he and his son were about to be killed, Mr. Ibarra
was in sustained fear for his and his son's life. The fear lasted not only through the
minute or so that appellant stood there exposing his weapon, but for up to fifteen minutes
after Ibarra drove away. It is entirely reasonable that he would react as he did for as long
as he did. That is exactly what appellant wanted to accomplish." (Fierro, supra, 180
Cal.App.4th at p. 1349.) The Fierro court concluded that under the circumstances the
victim's fear was not momentary, and thus there was substantial evidence to support the
section 422 offense. (Ibid.)
Fierro contrasted the facts of Ricky T., supra, 87 Cal.App.4th 1132, in which the
reviewing court concluded a teacher's fear was fleeting and insufficient to support a
section 422 offense. (Fierro, supra, 180 Cal.App.4th at p. 1349, citing Ricky T., at pp.
1135-1136.) In Ricky T., a 16-year-old student left a classroom to use the bathroom and
10 found the classroom door locked upon his return. He pounded on the door and when the
teacher opened it, the door accidentally hit the student. The student became angry, cursed
the teacher and threatened to "get" him and stated he was going to "kick [his] ass," but
made no physical movements or gestures. The teacher felt threatened and responded by
sending the student to the school office. (Ricky T., at pp. 1135-1136.) The Court of
Appeal held the teacher's fear insufficient in the absence of evidence showing he felt fear
beyond the moment of the angry utterances. (Id. at p. 1140.) It observed the police were
not called until the next day, there was no history of disagreements between the student
and the teacher, and there was no accompanying show of force or violence. (Id. at pp.
1138, 1140.) Indeed, the student complied with the teacher's demand by leaving the
scene and going to the school office. The court concluded that the student's "statement
was an emotional response to an accident rather than a death threat that induced sustained
fear." (Id. at p. 1141.)
The facts here are more like those in Fierro supra, 180 Cal.App.4th 1342 than in
Ricky T., supra, 87 Cal.App.4th 1132, and compel us to uphold the jury's finding as
supported by substantial evidence. Ruiz testified that she was very afraid and thought
defendant was going to kill her during the time that defendant held the gun to her head,
which she testified was close to a minute. Ruiz then moved her car but was forced to
return to get her daughter, and she testified she was afraid for a long time beyond the day
of the incident; that "until now that day had its consequences" causing her to leave the
United States and return to Mexico. It is not for us to question Ruiz's credibility, as that
is a jury question. Though Ruiz and defendant had no prior history, defendant did live
11 next door to Ruiz's good friend. But the absence of a prior relationship, in our view, is
not dispositive in view of Ruiz's testimony, which establishes her fear was more than
fleeting or transitory. Under the circumstances, it was objectively reasonable for a person
in Ruiz's situation to be in fear for her own personal safety both during and after the
incident, more than for a period that is merely fleeting or limited to the moments of the
encounter. A reasonable jury could find Ruiz reasonably suffered the kind of sustained
fear sufficient to convict defendant of a criminal threat within the meaning of section
422.
II. Claim of Failure to Instruct on Lesser Included Offense
Defendant contends the trial court prejudicially erred by denying her request to
instruct the jury on brandishing a firearm as a lesser included offense of assault with a
firearm. She argues the issue was addressed by People v. Wilson (1967) 66 Cal.2d 749
and People v. Coffey (1967) 67 Cal.2d 204 (Coffey)3, as well as in People v. McKinzie
(1986) 179 Cal.App.3d 789, whose holdings have assertedly been ignored or contradicted
by other courts, including People v. Steele (2000) 83 Cal.App.4th 212. According to
defendant, the holding in McKinzie was approved by the California Supreme Court in
People v. Booker (2011) 51 Cal.4th 141, suggesting Steele was wrongly decided.
3 Disapproved on another point in People v. Colantuano (1994) 7 Cal.4th 206, 218, fn. 8. The court in People v. Escarcega (1974) 43 Cal.App.3d 391, 400 examined Coffey, supra, 67 Cal.2d 204 and concluded its statement on the lesser included offense issue was dictum and without precedential value as it was not responsive to any issue raised and unnecessary to the decision. (Escarcega, at p. 400.) We agree. 12 Defendant maintains the error deprived her of her federal and state constitutional rights
and constitutes prejudicial error under Chapman v. California (1967) 386 U.S. 18.
A. Legal Principles
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.) Two tests are used to determine whether an offense is a
lesser included offense: the statutory elements test or the accusatory pleading test.
(People v. Ramirez (2009) 45 Cal.4th 980, 984-985; People v. Licas (2007) 41 Cal.4th
362, 366; 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." ' " (Lopez, at p. 288.) Thus, "if a crime
cannot be committed without also necessarily committing a lesser offense, the latter is a
lesser included offense within the former." (Ibid.; see People v. Birks (1998) 19 Cal.4th
108, 117.) Under the statutory elements test, the characterization of an offense as a lesser
included offense is made solely with reference to the elements of that offense; "[t]he
evidence actually introduced at trial is irrelevant . . . ." (People v. Wright (1996) 52
Cal.App.4th 203, 208; see also People v. Escarcega, supra, 43 Cal.App.3d at p. 396.)
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." ' " (Lopez, at pp. 288-289.)
13 The duty to instruct on a lesser included offense attaches only if the evidence
would allow a reasonable jury to convict on the lesser included offense instead of the
greater offense. (People v. Breverman, supra, 19 Cal.4th at p. 162.) That is, the "trial
court need not . . . instruct on lesser included offenses when the evidence shows that the
defendant is either guilty of the crime charged or not guilty of any crime." (People v.
Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
B. The Court Did Not Err in Declining to Instruct on Brandishing a Firearm Because
Brandishing is Not a Lesser Included Offense of Assault with a Firearm
In People v. Steele, supra, 83 Cal.App.4th 212, the appellate court rejected the
defendant's argument that brandishing a firearm in violation of section 417, subdivision
(a)(2) was a lesser included offense of assault with a firearm, holding instead in accord
with numerous authorities that brandishing under that section is a lesser related offense
of assault with a firearm. (People v. Steele, at pp. 217-218 [citing cases].) Relying on
People v. Escarcega, supra, 43 Cal.App.3d 391, the court 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." (People v. Steele, at pp. 217-218.) Steele stated that the California Supreme Court
had only implied in People v. Wilson, supra, 66 Cal.2d 749 that brandishing was a lesser
included offense of assault, it did not directly so hold, and its statement had no prior case
support and only scant subsequent support. (People v. Steele, at p. 219.) Further, Steele
observed that the court in Wilson did not follow its own rule for analysis of lesser
14 included offenses, which has continued unabated and was affirmed in People v. Birks.
(People v. Steele, at p 221, citing People v. Birks, supra, 19 Cal.4th at p. 117.)
When we apply the statutory elements test in keeping with People v. Birks, supra,
19 Cal.4th 108, we can only conclude that brandishing cannot be a lesser included
offense of assault with a firearm. "Section 245, subdivision (a)(2) punishes '[a]ny person
who commits an assault upon the person of another with a firearm.' Assault is defined as
'an unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.' [Citation.] 'Once a defendant has attained the means and location to
strike immediately he has the "present ability to injure." ' " (People v. Licas, supra, 41
Cal.4th at pp. 366-367, italics omitted.) The offense of brandishing a firearm is defined
as exhibiting "any firearm, whether loaded or unloaded, in a rude, angry, or threatening
manner" in the "presence of any other person." (§ 417, subd. (a)(2).) Assault with a
firearm does not require the defendant to display the weapon in a rude, angry, or
threatening manner, as Steele points out. (People v. Steele, supra, 83 Cal.App.4th at
pp. 217-218.) Thus, under the statutory elements test, defendant's request for a jury
instruction on brandishing was properly rejected because very simply, brandishing is not
a lesser included offense of the crime of assault with a firearm.
None of defendant's arguments explain how the greater crime of assault with a
firearm cannot be committed without necessarily committing the crime of brandishing a
weapon. Her argument on the point is merely that "[o]n the facts of [her] case it is clear
that [she] committed a violation of Penal Code section 417." But, as stated, when
determining whether one offense is a lesser included offense of another, the evidence
15 adduced at trial "is of no consequence . . . ." because we view the offenses in the abstract.
(People v. Dixon (2007) 153 Cal.App.4th 985, 1002; People v. Steele, supra, 83
Cal.App.4th at p. 219.) Defendant further maintains Steele was wrongly decided. She
asserts it is based on a mistaken belief that brandishing a weapon requires an awareness
of the victim that the weapon has in fact been displayed. Defendant argues People v.
Wilson, supra, 66 Cal.2d 749 has not been directly abrogated, and is consistent with
People v. McKinzie, supra, 179 Cal.App.3d 789, which does not require such awareness.
According to defendant, McKinzie's holding on this point was approved recently by the
court in People v. Booker, supra, 51 Cal.4th 141.
In Booker, the California Supreme Court quoted McKinzie in deciding whether the
trial court had erred by admitting evidence of the defendant's uncharged violent criminal
conduct, including evidence that he had displayed a knife while others fought. (People v.
Booker, supra, 51 Cal.4th at p. 187.) The question there was whether the jurors were
convinced beyond a reasonable doubt that the defendant had engaged in conduct
involving the use or attempted use of force or violence, or express or implied threat to use
force or violence. (Ibid.) The court observed the defendant did not dispute that he drew
his knife during the fight, and explained 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. (People v. Booker, supra, 51 Cal.4th at p.
189.) It quoted from People v. McKinzie, supra, 179 Cal.App.3d 789, 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
16 that either the victim or brandisher need help, or might think a brawl is in the making
which he might join. The thrust of the offence is to deter the public exhibition of
weapons in a context of potentially volatile confrontations.' " (Booker, at p. 189.)
Booker noted parenthetically that McKinzie had ruled the victim's awareness of the
weapon was not required. (Booker, at p. 189.) Booker does not involve a question of
lesser included offenses, and we do not read its observation about McKinzie as adopting
or ratifying that decision on that point.
Because the statutory elements test is not satisfied, we turn to whether the
information encompasses the crime of brandishing. Defendant does not explain if or how
the accusatory pleading describes the crime of assault with a firearm in such a way that if
committed in the manner described, the lesser offense of brandishing must necessarily
have been committed. The information simply alleges defendant "did unlawfully commit
an assault on . . . Ruiz with a firearm . . . ." So worded, the allegations in this case do not
encompass the crime of brandishing a firearm, and they do not transform brandishing into
a lesser included offense.
17 DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.