P. v. Evans CA3
On February 1, 2015, defendant Frank Evans was involved in a heated family argument during a Super Bowl party. Defendant was convicted of making a criminal threat (Pen. Code, § 422; count two), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts three & four), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count five), having two prior strikes (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), having two prior serious felony convictions (§ 667, subd. (a)), having a prior prison term (§ 667.5, subd. (b)), and personal use of a firearm as to counts two through four (§ 12022.5, subd. (a)).
On appeal, defendant contends the trial court erred in failing to provide a sua sponte instruction on the lesser included offense of assault with a firearm for counts three and four. He also contends his sentence for count five should have been stayed pursuant to section 654, and the People agree.
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