Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06WF2179, Thomas M. Goethals, Judge.
James M. Crawford, 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, Pamela Ratner Sobeck, and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Ryan Reed Rettig appeals from a judgment entered after a jury found him guilty of assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)). Defendant argues the trial court erroneously failed to instruct the jury on the misdemeanor offense of brandishing a deadly weapon (§ 417) because it was a lesser included offense of assault with a deadly weapon. We affirm.
All further statutory references are to the Penal Code. Section 245, subdivision (a)(1), makes it a crime for a person to “commit[ ] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . .”
FACTS
In August 2006, Cathy Marseilles and her boyfriend, Warren Butler, were living in an apartment building in Huntington Beach. Defendant lived in an apartment building next door. The two buildings shared a common sidewalk; defendant’s mailbox was directly across from Marseilles’s front door. When defendant met Marseilles and Butler in April 2006, his attitude toward them was “friendly.” By August 2006, however, defendant’s attitude toward them had become “hostile” for unexplained reasons.
On the morning of August 9, Marseilles went to the market. Butler stayed in their apartment. When Marseilles returned from the market, she parked her car in front of her apartment building, got out of her car, and began to walk toward the building. As she passed defendant, who was standing at his mailbox, he said in a “real nasty” tone, “Why don’t you go fuck your young boyfriend?” Marseilles ignored him and continued walking toward the building. Defendant remained by his mailbox.
When Marseilles went into her apartment, Butler and two construction workers —Tod Jusionis and Jeremy Stock —were there. Jusionis and Stock were at Marseilles’s apartment to replace the water pipes. Jusionis used a circular power saw (saw) and other tools to repair the pipes. When he was not using the saw, Jusionis left it plugged into an electrical outlet in Marseilles’s apartment. The saw lay in the private walkway directly outside of the apartment. Marseilles left the apartment door open because Jusionis and Stock periodically went outside while they were working.
From Marseilles’s apartment, Jusionis and Stock saw defendant spit on Marseilles’s car. Marseilles and the two men went outside. Jusionis and Stock confronted defendant and began arguing with him. Marseilles intervened, telling Jusionis and Stock to “leave [defendant] alone. Don’t keep talking back and forth. He’s not right. . . . He has no friends.” In response, defendant’s face turned red, and he yelled —in an angry voice —“So I have no friends, huh?” Then defendant walked away; Marseilles, Jusionis, and Stock returned to Marseilles’s apartment. Marseilles called 911. The apartment door remained open.
While Marseilles was on the telephone, Butler decided to check on Marseilles’s car. When Butler reached the front door, he saw defendant standing there holding the saw in his right hand. Defendant appeared to be enraged. Holding the saw at chest level, defendant screamed, “What’s up”, turned it on, and lunged at Butler. Because Butler feared defendant would “plunge[]” the saw into him, he quickly unplugged the saw and shut the apartment door.
Two Huntington Beach police officers responded to Marseilles’s apartment and arrested defendant. During an interview with Officer Rabine, defendant admitted he had a “problem” with Marseilles and Butler. Initially, defendant said he noticed the saw laying outside of Marseilles’s apartment and decided to move it because he thought it was dangerous. Later, however, defendant told Officer Rabine that as he walked past Marseilles’s apartment to collect his mail, his foot hit the saw. Defendant explained that he became angry and attempted to move the saw, but in the process of doing so, he accidentally turned it on. While the saw was on, Butler came out of his apartment and the two men had a brief conversation. Defendant denied lunging at Butler with the saw and told Officer Rabine he put the saw down as soon as Butler came out of the apartment.
At a conference on jury instructions, defense counsel asked the court to instruct the jury on the misdemeanor offense of brandishing a deadly weapon in violation of section 417. Defense counsel argued brandishing a weapon is a lesser included offense of assault with a deadly weapon. The court disagreed and refused to give the instruction. A jury convicted defendant of assault with a deadly weapon and the court sentenced defendant to three years probation with the condition defendant serve 270 days in jail.
Section 417, subdivision (a)(1) provides in relevant part: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor.”
DISCUSSION
Defendant argues the court erred when it refused to instruct the jury that brandishing a deadly weapon is a lesser included offense of assault with a deadly weapon. We disagree.
In a criminal case, the trial court has a sua sponte duty to instruct the jury on “lesser included offenses 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. Lopez (1998) 19 Cal.4th 282, 287-288 (Lopez).) In contrast, the trial court is “not required to instruct [the jury] on lesser related offenses.” (People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele), italics added.)
Courts use two tests —the statutory “elements test” and the “accusatory pleading” test —to determine whether a lesser offense is necessarily included in a charged offense. (Lopez, supra, 19 Cal.4th at pp. 288-289.) Under the statutory elements test, “‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Under the accusatory pleading test, a lesser offense is included within the greater charged offense if “the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense.” (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks); Lopez, supra, 19 Cal.4th at pp. 288-289.) “The evidence adduced at trial is not to be considered in determining whether one offense necessarily is included within another.” (People v. Cheaves (2003) 113 Cal.App.4th 445, 454.)
Here, the statutory elements of the greater offense, assault with a deadly weapon, do not include any of the elements of the lesser offense of brandishing a deadly weapon. (Birks, supra, 19 Cal.4th at p. 117.) To prove a defendant committed assault with a deadly weapon pursuant to section 245, subdivision (a)(1) the People must establish the defendant willfully performed an act with a deadly weapon with the present ability to apply force with a deadly weapon. (§§ 240, 245, subd. (a)(1).) The statutory elements of section 417, subdivision (a)(1) are quite different. To prove a defendant brandished a deadly weapon, the People must demonstrate the defendant drew or exhibited a deadly weapon in the immediate presence of someone else “in a rude, angry, or threatening manner” or “unlawfully use[d the] deadly weapon . . . in [a] fight or quarrel . . . .” (§ 417, subd. (a)(1).) Thus, under the statutory elements test, brandishing under section 417 is not a lesser included offense of assault with a deadly weapon.
Defendant fares no better under the accusatory pleading test because the information does not allege facts encompassing the elements of brandishing a deadly weapon. (Birks, supra, 19 Cal.4th at p. 117.) It does not allege the defendant drew or exhibited the saw in a rude, angry or threatening manner, nor does it assert defendant used the saw during a fight or quarrel. Instead, it states defendant “willfully and unlawfully commit[ted] an assault . . . with a deadly weapon and instrument, [to wit a] Skill Saw.”
Defendant acknowledges the long list of cases where California courts have held brandishing is a lesser related offense of assault with a deadly weapon, not a 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 (Torres); People v. Diamond (1939) 33 Cal.App.2d 518, 522-523; People v. Piercy (1911) 16 Cal.App. 13, 16.) Defendant, however, urges us to ignore all of these cases because he contends the California Supreme Court apparently has “indicated . . . that brandishing is a lesser included offense to assault with a firearm” in People v. Wilson (1967) 66 Cal.2d 749 (Wilson), People v. Coffey (1967) 67 Cal.2d 204 (Coffey), and People v. Lee (1999) 20 Cal.4th 47 (Lee).
In Wilson, the defendant forcibly entered his estranged wife’s apartment with a shotgun, killed two people, and wounded a third person. One man, Lewis Champion, escaped unharmed. (Wilson, supra, 66 Cal.2d at p. 753.) The jury convicted the defendant of, among other things, assault with a firearm against Champion. (Id. at p. 752.) In a curt discussion, the Wilson court addressed whether the trial court erred by failing sua sponte to instruct the jury on brandishing a firearm. The court’s entire discussion of that issue was as follows: “That judgment of conviction [firearm assault against Champion] 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.’ [Citation.] 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.” (Id. at p. 764.)
Defendant’s reliance on Wilson is misplaced principally because cases subsequent to Wilson have held it does not stand for the proposition that brandishing a firearm is a lesser included offense of assault with a firearm. (See e.g., Escarcega, supra, 43 Cal.App.3d at p. 399; Steele, supra, 83 Cal.App.4th at pp. 219-222.) In Escarcega, the court explained, “Nowhere did the [Wilson] court discuss or consider the rationale of the ‘lesser and necessarily included offense.’ Nor did the court hold that the elements of section 417 were necessarily included in a charge of assault with a deadly weapon. Demonstrably, according to long-established principles, section 417 is not such a necessarily included offense. And it is significant that the court showed no purpose to overrule or modify those principles. Further, if the purpose was to hold the forbidden conduct of section 417 to be necessarily included in an assault with a deadly weapon charge, we may reasonably conclude that the court would have contemporaneously disapproved the many contrary Court of Appeal decisions which were then extant.” (Escarcega, at p. 399.)
More recently, in Steele, the Second District Court of Appeal declined to follow Wilson for a number of reasons, namely because Wilson failed to follow its own rule “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.” (Steele, supra, 83 Cal.App.4th at p. 221.) The Steele court determined Wilson was not controlling because it did not conduct a lesser included offense analysis, and because it did not expressly hold brandishing a weapon is a lesser included offense of aggravated assault. (Steele, at p. 221.) We reach the same conclusion.
Next, defendant relies on a footnote in Coffey, a case decided two months after Wilson. There, the Supreme Court observed in dictum that the jury had been “properly instructed that section 417 sets forth a lesser offense necessarily included in those charged [which included assault with a firearm].” (Coffey, supra, 67 Cal.2d at p. 222, fn. 21.) Coffey does not advance defendant’s argument. As Steele persuasively explained: “the footnote statement in Coffey is not binding authority” because it does not express a holding on that issue. The court did not even cite to the relevant page in Wilson in which the Wilson court implied “brandishing is a lesser included offense to assault with a firearm . . . .’” (Steele, supra, 83 Cal.App.4th at p. 220.) Finally, Lee is of no assistance to defendant, because the defendant in that case was seeking an instruction under section 417 “as a predicate in order to justify instructing on a different lesser included offense” rather than as the basis for a conviction under section 417 itself. (Steele, supra, 83 Cal.App.4th at p. 221.)
Defendant argues it is impossible to commit an assault with a deadly weapon without brandishing that weapon. Not so. At least three courts have concluded otherwise. For example, in Steele, the court explained “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 victim’s back.” (Steele, supra, 83 Cal.App.4th at p. 218.) And in Escarcega, the Court of Appeal concluded, “[o]bviously an assault with a deadly weapon may be perpetrated without drawing or exhibiting it in a rude, angry, or threatening manner, or using it in a fight or a quarrel. It might be committed by a hidden sniper, or by a stealthy prison stabbing, or in other innumerable ways without at the same time being a violation of section 417.” (Escarcega, supra, 43 Cal.App.3d at p. 398.) In Torres, the court held an “assault with a deadly weapon can be committed without violating . . . section 417, as by firing a gun through a coat pocket without either drawing or exhibiting the weapon . . . .” (Torres, supra, 151 Cal.App.2d at pp. 544-545.)
We join Steele (and the numerous other appellate cases on point) and conclude brandishing a deadly weapon is not a lesser included offense of assault with a deadly weapon. Accordingly, the court properly refused to give a brandishing instruction to the jury.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.