People v. Martinez

Opinion

TURNER, P. J. A jury convicted defendant, Alejandro Martinez, of two counts of assault with a semiautomatic firearm. (Pen. Code,1 § 245, [199]subd. (b).) The jury also convicted defendant of two counts of assault with a firearm. (§ 245, subd. (a)(2).) The jury found true gang and firearm use enhancements. (§§ 186.22, subd. (b)(1)(B) & (C), 12022.5, subd. (a).) Defendant was sentenced to 20 years in state prison. We reverse the judgment of conviction for the two firearm assault counts.

The facts are undisputed. Defendant accosted Juan Bueno. Mr. Bueno was accompanied by his girlfriend Melissa Rodriguez. Defendant pointed a semiautomatic pistol at Mr. Bueno and said, “I am going to fucking smoke you.” When Ms. Rodriguez pleaded with defendant to stop, he put the gun to her head. Defendant was a gang member. Defendant made gang references during the encounter. A detective testified the crimes were committed to benefit a criminal street gang.

Defendant contends and the Attorney General concedes defendant could not be convicted of both semiautomatic firearm assault and the included offense of firearm assault. We agree. Our Supreme Court has held, “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118 [77 Cal.Rptr.2d 848, 960 P.2d 1073], fn. omitted; accord, People v. Jennings (2010) 50 Cal.4th 616, 667-668 [114 Cal.Rptr.3d 133, 237 P.3d 474].) A semiautomatic firearm assault cannot be committed without also committing a firearm assault. Therefore, firearm assault is a lesser included offense of a semiautomatic firearm assault. (People v. Jennings, supra, 50 Cal.4th at pp. 667-668; People v. Birks, supra, 19 Cal.4th at pp. 117-118; see People v. Arzate (2003) 114 Cal.App.4th 390, 398 [7 Cal.Rptr.3d 680] [jury convicted defendant of assault with a firearm on a peace officer as a lesser included offense of assault on a peace officer with a semiautomatic firearm].) A defendant cannot be convicted of both an offense and a lesser included offense. (People v. Medina (2007) 41 Cal.4th 685, 701 [61 Cal.Rptr.3d 677, 161 P.3d 187]; People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal-Rptr. 509, 721 P.2d 595].) The firearm assault convictions must be reversed.