People v. Steele

• Decision Date: 22 August 2000
• Docket Number: No. B134069.,B134069.
• Citation: 83 Cal.App.4th 212,99 Cal.Rptr.2d 458
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tom STEELE, Jr., Defendant and Appellant.

99 Cal.Rptr.2d 458

83 Cal.App.4th 212

The PEOPLE, Plaintiff and Respondent, v. Tom STEELE, Jr., Defendant and Appellant.

No. B134069.

Court of Appeal, Second District, Division 2.

August 22, 2000.

Review Denied Dec. 13, 2000.^*

Jerald W. Newton, Sedona, Az., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Gary W. Schons, Laura Whitcomb Halgren and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

NOTT, J.

From 1911 to 1965, at least four published appellate court decisions decided that brandishing a firearm was not a lesser included offense to assault with a deadly weapon (firearm).¹ Without discussion, our Supreme Court in 1967 ignored those cases and impliedly held the reverse. (People v. Wilson (1967) 66 Cal.2d 749, 764, 59 Cal.Rptr. 156, 427 P.2d 820 (Wilson).)

In a steady parade of subsequent cases, the appellate courts got even by disregarding that particular holding of Wilson. For the reasons that follow, we respectfully join the parade.

PROCEDURAL BACKGROUND

Appellant Tom Steele, Jr., appeals from a judgment entered after a jury found him guilty of assault with a firearm (count 1; Pen.Code, § 245, subd. (a)(2)), and possession of a firearm by a felon (count 2; Pen.Code, § 12021, subd. (a)(1)). The jury also found that in the commission of the assault, appellant personally used a firearm (Pen.Code, § 12022.5, subd. (a)(1)).²

The trial court sentenced appellant to 14 years, consisting of the high term of four years for count 1 and a 10-year enhancement for the use of a firearm. The sentence on count 2 was stayed.

CONTENTIONS

Appellant contends that (1) he was denied his right to a jury trial and due process of law when the court refused to instruct the jury on the lesser included offense of brandishing a firearm, (2) his convictions must be reversed because he was denied his right to confront and cross-examine the main prosecution witness, and (3) the court abused its discretion in imposing the high terms for assault with a firearm and for using a firearm.

FACTS

Rosalind Williams has been a prostitute for 20 years. She has also been convicted of voluntary manslaughter. On December 4, 1998, she was "working" on the corner of 90th and Figueroa Streets in South Central Los Angeles. Around midnight, appellant drove by and summoned Williams by name³ to his car where he inquired about a "date." Williams agreed to a date with appellant and had him follow her home because she refused to have the date in his car. Upon reaching Williams's home, they agreed to a fee of $40, of which appellant paid Williams $20.

Williams and appellant then left the Williams home. After appellant got change for a $100 bill, he paid Williams the remaining $20 and drove her to the house he shared with his mother and father. Appellant took Williams into his bedroom, where the two engaged in intercourse. Appellant was unable to ejaculate, and demanded the return of his money. Williams returned the $20 she had on her person.⁴ Appellant got dressed and said, "Look, you in my bedroom. You're in my house. If I wanted to do something towards you, I'm going to show you something." Appellant then unlocked his closet door and pulled out a shotgun, which was wrapped in a pillowcase. Taking the shotgun with him, he drove Williams home so that he could recover the other $20.

Upon arriving at Williams's home, appellant removed the shotgun from the pillowcase and told her to retrieve his $20. At that time, appellant was standing beside the driver's door with the shotgun pointing at Williams. He threatened to shoot her if she didn't quickly return with the money. He also threatened to "shoot up" the apartment building where Williams lived. Finally, appellant said he would shoot Williams if she reported the matter to the police.

Williams was unable to enter her home because it was locked and she had left the key with a friend. Appellant instructed Williams to return to the car. He drove her to a nearby elementary school and parked. Appellant ordered Williams to take down her pants. She did, and the two had sex in the car. When he finished, appellant ordered Williams out of the car and drove off.

After obtaining the key to her apartment, Williams walked home and called the police. She showed the police where appellant lived, and identified him. Appellant was arrested and admonished regarding his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), which he waived. Appellant stated that he told Williams he was bringing the shotgun along for protection because it was late at night, and she lived in gang territory. At trial, appellant admitted he got the shotgun out, after which Williams gave him the $20 back and also agreed to give him the other $20 back because she could see that he "had her covered."

During the course of the proceedings, the trial court granted the prosecution's motion to prevent the defense from impeaching Williams with evidence of her prior misdemeanor convictions. Further, defense counsel requested that the court instruct on the misdemeanor offense of brandishing a firearm (§ 417, subd. (a)(2))⁵ as a necessarily included offense to the section 245 charge. Counsel's request was denied. As previously stated, appellant was found guilty on both counts.

DISCUSSION

I. The trial court correctly refused to instruct on the misdemeanor offense of brandishing a firearm

The information charged appellant with committing assault with a firearm (shotgun). Appellant contends the trial court erred when it refused his request to instruct the jury on the lesser offense of brandishing a firearm.

A trial court is required to instruct on any lesser included offenses that are supported by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 194-195, 47 Cal.Rptr.2d 569, 906 P.2d 531.) An offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073 (Birks); People v. Lohbauer (1981) 29 Cal.3d 364, 368-369, 173 Cal.Rptr. 453, 627 P.2d 183.) The trial court, however, is not required to instruct on lesser related offenses.

In Birks, our Supreme Court disapproved People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger). Geiger had held that, in certain situations, the defendant had a right to request instructions on offenses that were related to the greater offense. Birks decided that the one-way street in favor of the defense was unsupportable, and overruled Geiger. As a result, a trial court is no longer able to instruct on lesser related offenses, absent the stipulation of both parties, or a party's failure to object to such an instruction. (Birks, supra, 19 Cal.4th at p. 136, fn. 19, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)

The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. (Birks, supra, 19 Cal.4th at p. 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073; In re Hess (1955) 45 Cal.2d 171, 174-175, 288 P.2d 5; People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390; People v. Wright (1996) 52 Cal.App.4th 203, 208, 59 Cal.Rptr.2d 316.) "It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. (People v. Preston [(1973)] 9 Cal.3d 308, 319, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Escarcega [(1974)] 43 Cal.App.3d 391, 396-397, 117 Cal.Rptr. 595.)" (People v. Benjamin (1975) 52 Cal.App.3d 63, 71, 124 Cal.Rptr. 799, original italics.)

Appellant argues that brandishing is a lesser included offense of assault with a firearm. We disagree. Even though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing, it has long been held that brandishing is a lesser related offense, rather than lesser included. (People v. Piercy (1911) 16 Cal.App. 13, 16, 116 P. 322; People v. Diamond (1939) 33 Cal. App.2d 518, 522-523, 92 P.2d 486; People v. Torres (1957) 151 Cal.App.2d 542, 544-545, 312 P.2d 9 (Torres); People v. Leech (1965) 232 Cal.App.2d 397, 399, 42 Cal Rptr. 745; People v. Birch (1969) 3 Cal. App.3d 167, 176, 83 Cal.Rptr. 98; People v. Orr (1974) 43 Cal.App.3d 666, 673, 117 Cal.Rptr. 738; People v. Beach (1983) 147 Cal.App.3d 612, 626, 195 Cal.Rptr. 381; People v. Lipscomb (1993) 17 Cal.App.4th 564, 569, 21 Cal.Rptr.2d 445 [treating brandishing as a lesser related offense to assault with a firearm].)⁶ The reason of course, is that 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. (People v. Escarcega, supra, 43 Cal. App.3d 391, 398, 117 Cal.Rptr. 595 (Escarcega).)

In the present matter, neither the information nor the statutory wording of section 245, subdivision (a)(2) contains any language that fits within the definition of section 417. Accordingly, both sides went to trial prepared to prosecute and defend only on either the charge of assault with a firearm or any lesser included offenses thereto. As previously explained, brandishing is not such an offense. The trial court therefore did not err in failing to give the instruction requested by appellant. However, despite the list of at least nine published appellate court decisions— none of which have been overruled or depublished—stating that brandishing was not a lesser...