P. v. Tran

Filed 8/28/07 P. v. Tran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

John Ward, 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, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

Orlando Michael Tran appeals from a judgment after a jury convicted him of street terrorism and numerous firearm-related offenses, including two counts of assault with a firearm. Tran argues the trial court erroneously failed to instruct the jury sua sponte on brandishing a firearm because it is a lesser included offense of assault with a firearm. We disagree and affirm the judgment.

FACTS

John Kelly and Douglas Ruff were walking at the Irvine Spectrum when they saw two Asian girls. Ruff thought the girls were alone, but they were with two Asian men, one of whom was Tran.

Kelly and Ruff approached the girls and asked if they had boyfriends. Tran and the other man walked towards Kelly and Ruff and said, Whats up you punk ass nigger? and Whats up, bitch[es]? Tran challenged Kelly and Ruff to fight in a nearby alley. Kelly and Ruff said they could fight there. At some point, someone asked, Where are you from? One of the African American men said, Long Beach, and Tran said, T.O.P.

Tran pulled out a gun from one of the girls purses and pointed it at Kelly and Ruffs faces. He put the barrel of the gun on Ruffs chest and said, Whats up now? and Im gonna shoot you fuckin niggers. Kelly and Ruff were scared and said nothing. Ruff heard a bystander call Tran a pussy and another bystander say call the police[,] at which point Tran kicked Ruff and walked away with the two girls and the other man. The police eventually apprehended Tran and recovered the gun, which was loaded.

An information charged Tran with two counts of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1]one for each victim, Ruff (count 1) and Kelly (count 2), possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 3), gang member carrying a loaded firearm in public ( 12031, subd. (a)(2)(C)) (count 4), and street terrorism ( 186.22, subd. (a)) (count 5). The information alleged Tran personally used a firearm in the commission of counts 1 and 2 ( 12022.5, subd. (a)), and committed counts 1 through 4 for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The information further alleged Tran had a prior felony conviction ( 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and a prior serious felony conviction ( 667, subd. (a)(1)).

At trial, the district attorney offered the testimony of Katie Benez. Benez testified she was sitting at a bench nearby and witnessed the confrontation. She identified Tran and testified she saw him pull a gun out of one of the girls purses and point it at the head of one of the African American men.

The district attorney also offered the testimony of Lamthy Nguyen, one of the girls with Tran the day of the incident. Nguyen testified Tran had put the gun in her purse. She testified the four men had argued and pushed each other. Nguyen also testified she was uncertain if Tran had pointed the gun at one or both the African American men, but was certain Tran pointed the gun in their general direction.

Before trial, Tran pleaded guilty to count 3. The jury convicted Tran on all the remaining counts and found true all the allegations. The trial court found true the prior conviction allegations. The court sentenced Tran to a total term of 21 years in state prison.

DISCUSSION

Relying on People v. Wilson (1967) 66 Cal.2d 749 (Wilson), Tran argues the trial court erroneously failed to instruct the jury sua sponte on brandishing a firearm because brandishing is a lesser included offense of assault with a firearm. We disagree.

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, italics added (Steele).)

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.] (Steele, supra, 83 Cal.App.4th at

pp. 217-218.) Tran argues brandishing ( 417)[2] is a lesser included offense of assault with a firearm ( 245). However, it has long been held that brandishing is a lesser related offense of assault with a firearm, rather than lesser included offense. (See, 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, 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 [cases holding brandishing is a lesser related offense of assault with a firearm].) 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 victims back. [Citation.] (Steele, supra,

83 Cal.App.4th at p. 218.)

In Wilson, supra, 66 Cal.2d at page 752, defendant had been convicted of murder and assault with a firearm as to multiple victims. Defendant forcibly entered his wifes apartment and shot to death his wife and a man, and two other men escaped, one of which the defendant shot. (Id. at p. 760.) Defendant testified that when he entered the apartment[,] he did not have a felonious intent but intended only to scare the occupants[.] (Ibid.) As relevant here, the Wilson court addressed the issue of whether brandishing is a lesser included offense of assault as to one of the victims. The courts entire discussion was as follows: That judgment of conviction 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.)

Nowhere in the discussion did the Wilson court consider the rationale of a lesser included offense. Nor did the court apply the test of a lesser included offense and reason the elements of brandishing were necessarily included in a charge of assault with a firearm or the wording of the information. Rather, the court failed to follow its own rule and relied on evidence adduced at trial to determine a brandishing instruction was necessary. (People v. Birks (1998) 19 Cal.4th 108, 117.) Thus, the Supreme Court implied, but did not specifically hold, brandishing is a lesser included offense to assault with a firearm.

Furthermore, subsequent Court of Appeal cases have not interpreted Wilson as holding brandishing is a lesser included offense of assault with a firearm. In Escarcega, supra, 43 Cal.App.3d at page 399, the court reasoned the Wilsoncourt did not expressly state brandishing was a lesser included offense of assault with a firearm. The court also observed the Wilson court did not discuss the rationale behind lesser included offenses or overrule the prior published appellate court decisions holding brandishing was not a lesser included offense of assault with a firearm. (Ibid.) The court further noted that since the decision in . . . Wilson, the Supreme Court has consistently reaffirmed the rule that a lesser and necessarily included offense is one that must be committed to commit the greater offense. (Id. at pp. 399-400.) Lastly, the court observed Wilson is not supported by any prior or subsequent cases. (Ibid.)

More recently, in Steele, supra, 83 Cal.App.4th at pages 219-222, the court relied on Escarcega and its criticism of Wilsonand held brandishing is a lesser [related] offense [of] assault with a firearm[,] rather than a lesser included offense[.] (Italics added.) The Steele court noted that in Wilson, the Supreme Court failed to follow its own rule for analysis of lesser included offenses, 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. (Id. at p. 221.) The court also observed Wilson had no prior case support, and only scant subsequent support. (Id. at p. 219.)

Neither does the case the Wilson court relied on nor the case that relied on Wilson support the conclusion brandishing is a lesser included offense of assault with a firearm. In Carmen, supra,36 Cal.2d at pages 774-775, the court merely commented defendants conduct could be viewed by the trier of fact to fit within section 417. In People v. Coffey (1967) 67 Cal.2d 204, 222, the court stated in footnote 21: The jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in those charged [including assault with a firearm]. However, the quoted statement was unrelated to any issue raised, and was unnecessary to the decision of the case. The statement is dictum and is not considered binding authority. (Escarcega, supra, 43 Cal.App.3d at p. 400.) Furthermore, the Coffey court did not cite to the relevant page in Wilson where the 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 Wilson court did not conduct a lesser included offense analysis and did not expressly hold brandishing is a lesser included offense [of] assault with a firearm[.] We agree with Escarcega, Steele, and other appellate courts and hold brandishing is a lesser [related] offense [of] assault[.]

Tran does not otherwise explain how the information described 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 allegations do not refer to drawing or exhibiting the firearm in a rude, angry, or threatening manner or state the gun was used during a fight or quarrel. Therefore, the trial court did not erroneously fail to instruct the jury sua sponte that brandishing is a lesser included offense [of] assault with a firearm[.] (Steele, supra, 83 Cal.App.4th at p. 220.)

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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[1] All further statutory references are to the Penal Code.

[2] Section 417, subdivision (a)(2)(A), makes it a crime for a person, not acting in self-defense, to draw or exhibit an unloaded or a loaded concealed firearm in a public place in the presence of any other person in a rude, angry, or threatening manner, or unlawfully in any fight or quarrel.