Error and/or relief
A jury convicted the defendant of assault with a semiautomatic firearm and shooting at an occupied motor vehicle. The conviction for assault with a firearm must be reversed because it is a lesser included offense of assault with a semiautomatic firearm. We reverse the conviction for assault with a firearm.
First Holding:
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. A defendant cannot be convicted of both an offense and a lesser included offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.
Authority:
People v. Jennings (2010) 50 Cal.4th 616, 667–668
People v. Martinez (2012) 208 Cal.App.4th 197, 199
People v. Moran (1970) 1 Cal.3d 755, 763
Second Holding:
Here, the greater offense, assault with semiautomatic firearm (sec. 245(b))includes all the elements of the lesser offense, assault with a firearm (sec. 245(a)(2)). Therefore, we reverse the conviction on count 4 for assault with a firearm.
Authority:
People v. Martinez (2012) 208 Cal.App.4th 197, [A semiautomatic firearm assault cannot be committed without also committing a firearm assault.]