People v. Leech

[398]

FILES, P. J.

Defendant was tried under an information charging two counts of assault with a deadly weapon, in violation of Penal Code section 245.

1

A jury found defendant guilty of two counts “of Drawing and Exhibiting a Firearm in Violation of Section 417 Penal Code, a misdemeanor, a lesser and necessarily included offense. ...”

It is necessary to reverse the judgment because the offenses of which defendant was convicted were not within the charges made by the accusatory pleading.

(People

v.

Diamond,

33 Cal.App.2d 518, 522 [92 P.2d 486].) In

People

v.

Torres,

151 Cal.App.2d 542 [312 P.2d 9], a conviction for assault with a deadly weapon was affirmed in a case where the trial court had refused the defendant’s request that the jury be given the option of finding him guilty of a violation of section 417 as an included offense. The court explained (at p. 544) : “Section 417 of the Penal Code forbids the unlawful use in a fight or quarrel of a deadly weapon and the exhibition of such a weapon in the presence of another person in a rude, angry, or threatening manner. An assault with a deadly weapon can be committed without violating any provision of Penal Code, section 417, as by firing a gun through a coat pocket without either drawing or exhibiting the weapon and without then being engaged in a fight or quarrel.”

The Attorney General has argued that the judgment may be saved by application of the principles set forth in

People

v.

Marshall,

48 Cal.2d 394 [309 P.2d 456], and

People