P. v. Pratt
A jury found Defendant guilty of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b)) (count 1), and assault with a firearm ( 245, subd. (a)(2)) (count 2). With respect to both counts, the jury also found that Pratt personally used a firearm with the meaning of section 12022.5, subdivision (a)(1). After the jury returned its verdict, Pratt admitted that he had suffered a prison prior ( 667.5, subd. (b), 668), a serious felony prior ( 667, subd. (a)(1), 668, 1192.7 subd. (c)), and a strike prior ( 667, subds. (b)-(i), 668, 1170.12).
At Pratt's sentencing hearing, the trial court granted Pratt's motion to strike his strike prior.[2] The court sentenced Pratt to a total term of 15 years in prison, consisting of the midterm of six years on count 1, the midterm of four years on the accompanying firearm enhancement, and five years on the prior serious felony enhancement. The trial court stayed the sentence on count 2 and the accompanying firearm enhancement pursuant to section 654. The court also stayed the sentence on the prison prior enhancement.
On appeal, Pratt claims the trial court erred in excluding evidence that another suspect might have committed the offenses. Pratt also claims that his conviction for assault with a firearm ( 245, subd. (a)(2)) (count 2), must be reversed because assault with a firearm ( 245, subd. (a)(2)) is a lesser included offense of assault with a semi-automatic firearm ( 245, subd. (b)) (count 1). Court conclude that the trial court did not err in excluding the evidence of third party culpability. With respect to the lesser included offense issue, the People properly concede that the court erred. Court reverse the judgment as to count 2, and affirm the judgment in all other respects.
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