IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
April 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALENA DELORES JONES, DEFENDANT AND APPELLANT.
Super. Ct. No. CRF083469
The opinion of the court was delivered by: Mauro, J.
P. v. Jones
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Alena Delores Jones was convicted of two felonies, assault with a firearm and making a criminal threat. She contends on appeal that brandishing a firearm is a lesser included offense of assault with a firearm and that the trial court erred in failing to instruct on that lesser included offense. Defendant also contends that the trial court abused its discretion in declining to reduce the felonies to misdemeanors.
We conclude that brandishing a firearm is not a lesser included offense of assault with a firearm under either the "elements" test or the "accusatory pleading" test, and hence the trial court had no sua sponte duty to give such an instruction. Moreover, the trial court did not abuse its discretion in declining to reduce the felonies to misdemeanors based on the trial court's consideration of defendant's conduct in threatening to shoot the victims, lying, and influencing her son to lie. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
When two repossession agents came to defendant's home to repossess her car, defendant pointed a gun at them through the window. She then came out of the house, walked towards the agents and threatened to shoot them. As the agents tried to leave the property, defendant pointed the gun at each of them and repeatedly threatened to shoot them.
During a subsequent law enforcement investigation of the incident, defendant was evasive about the gun and the vehicle, and she helped her son conceal the vehicle. In her statement to law officers and at trial, defendant denied leaving the house with the gun, claimed she thought the repossession agents were there to commit a home invasion robbery, and asserted she only "showed" the gun through the window.
Following a jury trial, defendant was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2))*fn1 and making a criminal threat (§ 422). The jury also found true two enhancements for personal use of a firearm. (§ 12022.5, subd. (a).) The trial court denied defendant's request to reduce the felonies to misdemeanors. Defendant was sentenced to 90 days in jail with credit for 18 days served and she was placed on three years' formal probation.
Defendant contends the trial court erred in failing to give a sua sponte instruction on brandishing a firearm as a lesser included offense of assault with a firearm. A trial court has a sua sponte obligation to instruct on a lesser included offense if the evidence "'"raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense."'" (People v. Moon (2005) 37 Cal.4th 1, 25.)
Defendant relies on language in People v. Wilson (1967) 66 Cal.2d 749 (Wilson) to support her contention that brandishing a firearm is a lesser included offense of assault with a firearm. But the California Supreme Court in Wilson did not hold that brandishing a firearm is a lesser included offense of assault with a firearm. (People v. Steele (2000) 83 Cal.App.4th 212, 219; People v. Escarcega (1974) 43 Cal.App.3d 391, 399; cf. People v. Coffey (1967) 67 Cal.2d 204, 222, fn. 21.) Moreover, subsequent to Wilson, the Supreme Court has reaffirmed that a lesser offense is necessarily included in the charged offense only if it satisfies either the "elements test" or the "accusatory pleading test." (People v. Lopez (1998) 19 Cal.4th 282, 288.)
"Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime." (People v. Moon, supra, 37 Cal.4th at pp. 25-26.) We do not consider the evidence adduced at trial. (People v. Lohbauer (1981) 29 Cal.3d 364, 369.)
In the instant case, the statutory elements of the greater offense, assault with a firearm, are different from the elements of the lesser offense of brandishing a firearm. To prove a defendant committed assault with a firearm pursuant to section 245, subdivision (a)(2), the People must establish that the defendant willfully performed an act with a firearm with the present ability to apply force with that firearm. (§§ 240, 245, subd. (a)(2).) However, to prove a defendant brandished a firearm under section 417, subdivision (a)(2), the People must demonstrate that the defendant drew or exhibited a firearm in the immediate presence of someone else "in a rude, angry, or threatening manner" or unlawfully used the firearm in a fight or quarrel. (§ 417, subd. (a)(2).) It is possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, or in the course of an argument, such as by firing the firearm from concealment. (Steele, supra, 83 Cal.App.4th at p. 218; Escarcega, supra, 43 Cal.App.3d at p. 398.) Thus, under the statutory elements test, brandishing a firearm is not a lesser included offense of assault with a firearm.
In addition, brandishing a firearm is not a lesser included offense under the accusatory pleading test. The information charging defendant with assault with a firearm tracks the statutory language and does not allege facts encompassing the elements of brandishing a firearm. The information alleges that defendant violated "[s]section 245(a)(2) of the Penal Code in that the defendant did commit an assault upon the person of another with a firearm." It does not allege that defendant drew or exhibited a firearm in a rude, angry or threatening manner, nor does it assert defendant used a firearm during a fight or quarrel. Accordingly, under the accusatory pleading test, brandishing a firearm is not a lesser included offense of assault with a firearm.
Under the circumstances, the trial court did not err by not giving a sua sponte instruction on brandishing a firearm.
Defendant next contends the trial court abused its discretion in refusing to reduce the felonies to misdemeanors. We disagree.
At the sentencing hearing, defendant made a motion under section 17, subdivision (b), to reduce her felony convictions for assault with a firearm and making a criminal threat to misdemeanor convictions. The trial court noted it had read and considered the probation report, a letter written by defendant taking full responsibility for her actions and a letter from the attorney representing defendant relative to retaining her teaching credentials.
The trial court indicated that both convictions were "strike" offenses, and went on to state, "I think in order for it to qualify as two separate strikes the crimes have to be brought and tried separately. So ultimately this case is only worth one strike should [defendant] ever get in trouble again, and the court recognizes that this is the first time that [defendant] has been in trouble. The probation report makes it clear. So that would certainly be a good reason to reduce one or both of these charges to a misdemeanor; however, after having heard the testimony, after having heard the way that the defendant conducted herself that night as well as at trial . . . the court denies the motion to reduce either of these crimes to a misdemeanor."
The trial court added that it found defendant had pointed her gun at the repossession agents without provocation and threatened to shoot them, then lied to the police, lied to her friends and family, lied under oath and influenced her son to lie. The court found that defendant's willingness to lie and to have others lie for her was an aggravating circumstance.
The court was convinced by the trial testimony "beyond a reasonable doubt that [defendant] was guilty of two felonies. Even though this was perhaps an anomaly in [defendant's] life and unlikely to repeat again, the court certainly believes that what happened that night was felony conduct and denies the request."
Under section 17, subdivision (b), following conviction of particular offenses, a trial court may choose between felony or misdemeanor punishment based on the language of the charging statute. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) The exercise of this discretion under section 17, subdivision (b), to reduce a felony to a misdemeanor, "must be an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration; and the record must so reflect." (Alvarez, supra, 14 Cal.4th at pp. 981-982.) In addition, the court should consider "'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.'" (Id. at p. 978.) The trial court should also consider the general objectives of sentencing as stated in California Rules of Court, rule 4.410.*fn2 (Ibid.)
The burden is on the defendant to show the decision not to reduce the felonies was irrational or arbitrary. In the absence of such a showing, we will presume the court acted to achieve legitimate sentencing objectives, and we will not reverse. (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Here, it is true the court misspoke when it indicated that for defendant's convictions to "qualify as two separate strikes the crimes have to be brought and tried separately." This is not the law. (People v. Fuhrman (1997) 16 Cal.4th 930, 939-940.) However, the record shows that the trial court relied on other things in denying the section 17, subdivision (b) request. The trial court based its decision on defendant's conduct in pointing the gun at the repossession agents, threatening to shoot them, lying and influencing her son to lie. The trial court properly considered defendant's lack of any prior criminal record, the nature and circumstances of the offense, defendant's attitude toward the offense both before and after her conviction, and her character. In so doing, the court did not abuse its discretion.
The judgment is affirmed.
NICHOLSON , Acting P.J.
BUTZ , J.