The opinion of the court was delivered by: Mauro, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...