In Re Pritchett

Opinion

MERRILL, J.

— Larry Dale Pritchett, claiming ineffective assistance of trial counsel, challenges a term enhancement under Penal Code section 12022.5,

[1756]

subdivision (a).

1

The court added three years under that section for use of a firearm in the commission of the crime of possession of the same weapon, a short-barreled shotgun. (§ 12020, subd. (a).) We conclude the enhancement does not apply to this situation.

During an altercation, Pritchett took a sawed-off shotgun from a dresser drawer and lunged at his former girlfriend, striking her on the head with the barrel of the gun. He also hit her on the nose with his fist.

The original information charged Pritchett with felony possession of a short-barreled shotgun (§ 12020, subd. (a)) and felony assault with a deadly weapon (§ 245, subd. (a)(2)). Each charge was accompanied by an allegation of personal use of a firearm (§ 12022.5, subd. (a)). In response to a defense motion to dismiss the felony assault charge (§ 995), the People moved to amend the information to reduce it to a misdemeanor. The court granted the motion and struck the section 12022.5, subdivision (a) enhancement to the assault charge.

On August 12, 1992, the jury found Pritchett guilty on both counts and found the remaining firearm-use-enhancement allegation to be true. On August 24, 1992, the court sentenced Pritchett to the mitigated term of sixteen months on the felony possession charge, enhanced by three years for use of a firearm in the commission of the offense, concurrent with thirty days for the misdemeanor assault, for a total of four years, four months.

As we explained in

People

v.

Pritchett

(1993) 20 Cal.App.4th 190 [24 Cal.Rptr.2d 391], Pritchett’s trial attorney mistakenly deferred filing a notice of appeal while counsel asked the court to recall the sentence pursuant to section 1170, subdivision (d). In