Filed 4/15/14 P. v. Mendoza CA4/2

Second of two modification orders filed 4/15/14

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MYLES AVIAR MENDOZA,

Defendant and Appellant.

 D062875

 (Super. Ct. No. SCD240220)

ORDER MODIFYING OPINION

[No Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on April 15, 2014, be modified as 

follows:

On page 1, following the word "Affirmed." and before Roman numeral I, the 

following paragraphs are added:

Charles R. Khoury, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief 

Assistant Attorney General, Julie L. Garland, Senior Assistant 

Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

At page 23, the signature line for Justice Nares is modified to read, 

NARES, Acting P. J.

There is no change in the judgment.

NARES, Acting P. J.

Copies to: All parties
Filed 4/15/14 P. v. Mendoza CA4/1

First of two modification orders filed 4/15/14

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MYLES AVIAR MENDOZA,

Defendant and Appellant.

 D062875

 (Super. Ct. No. SCD240220)

ORDER MODIFYING OPINION

[No Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on April 14, 2014, be modified as 

follows:

On page 1, following the word "Affirmed." and before Roman numeral I, the 

following is added:

Charles R. Khoury, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief 

Assistant Attorney General, Julie L. Garland, Senior Assistant 

Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

At page 23, the signature line for Justice Nares is modified to read, 

NARES, Acting P. J.

There is no change in the judgment.

NARES, Acting P. J.

Copies to: All parties
Filed 4/15/14 P. v. Mendoza CA4/1 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MYLES AVIAR MENDOZA,

Defendant and Appellant.

 D062875

 (Super. Ct. No. SCD240220)

APPEAL from a judgment of the Superior Court of San Diego County, Laura 

Parsky, Judge. Affirmed.

I.

INTRODUCTION

A jury found Myles Aviar Mendoza guilty of assault with a semiautomatic firearm 

(Pen. Code, § 245, subd. (b))1 (count 1), making a criminal threat (§ 422) (count 2), and 

possessing an illegal assault weapon (§ 30605, subd. (a)) (count 3). As to counts 1 and 2, 

the jury found true the allegation that Mendoza personally used a firearm in committing 

 

1 Unless otherwise specified, all subsequent statutory references are to the Penal 

Code.
2

those offenses (§ 12022.5, subd. (a)). The trial court placed Mendoza on formal 

probation for three years. 

On appeal, Mendoza claims that the trial court erred in failing to instruct the jury 

sua sponte on the offenses of simple assault (§ 240) and brandishing a firearm (§ 417, 

subd. (a)(2)) as lesser included offenses of the charged offense of assault with a 

semiautomatic firearm (§ 245, subd. (b)) (count 1). Mendoza also contends that there is 

insufficient evidence in the record to support the jury's verdicts finding him guilty of 

making a criminal threat and possessing an illegal assault weapon. We affirm the 

judgment. 

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People's case

In early 2012, Mendoza and victim Daniel Furtado were friends and coworkers. 

In January or February of that year, Mendoza and Furtado worked on Mendoza's truck 

together, and Furtado left some car parts at Mendoza's house.

When Furtado called Mendoza seeking to arrange a time to pick up the car parts,

Mendoza told Furtado that Furtado "did something wrong to his carburetor," and that it

had "[c]ost [Mendoza] all kinds of money." Mendoza hung up on Furtado. Furtado 

called Mendoza several more times, but never spoke with him. 

On March 31, 2012, Furtado was working on a car with Anthony Davis. Davis 

was interested in buying the car parts that Furtado had left at Mendoza's house. Furtado 

and Davis decided to go to Mendoza's house to retrieve the car parts. When they arrived 
3

at Mendoza's house, Furtado knocked on Mendoza's front door, while Davis stayed in the 

car. No one answered the door. Furtado drove to the alley behind Mendoza's house to 

see whether Mendoza's vehicle was there. A chain link fence with a locked gate

separated Mendoza's backyard from the alley. 

Furtado saw Mendoza's vehicle, went to the gate, and called out Mendoza's name a 

couple of times. Just as Furtado was getting ready to leave, Mendoza walked out of the 

back door of his house. Mendoza was holding a gun in his right hand.

Mendoza walked up to the fence until he was within a couple feet of Furtado,

pointed the gun at Furtado's face, and said that he was going to shoot Furtado. Mendoza 

accused Furtado of breaking his truck. Mendoza continued to threaten Furtado. During 

the ensuing conversation, Mendoza told Furtado at least three times that he was going to 

shoot him. Each time that Mendoza threatened to shoot Furtado, Mendoza pointed the 

gun at him. 

Davis got out of the car after Mendoza came to the fence. Davis saw Mendoza

point a black object at Furtado and heard Mendoza say that he was going to kill Furtado. 

After approximately 20 minutes of arguing, Mendoza turned and walked back into 

his house. Furtado called 911. Shortly thereafter, police took Mendoza into custody. 

In Mendoza's house, police found two handguns, an AK-47 assault rifle, and a 

large amount of ammunition. The AK-47 did not have a device called a "bullet button"

attached to it, thereby rendering the rifle an illegal assault weapon under California law.
4

B. The defense

Mendoza testified that on the day of the confrontation with Furtado, he was 

awakened by the sound of someone rattling the fence that surrounds his backyard. 

Mendoza said that he picked up an unloaded gun, put it in his back pocket and went 

outside. Upon seeing Furtado, Mendoza began to speak with him about the car parts that 

Furtado had left at Mendoza's house. Mendoza asked Furtado for money for the damage 

that Mendoza claimed Furtado had caused to Mendoza's car. Furtado refused to give 

Mendoza any money. 

Davis then appeared and said, "[W]e're here for these car parts, we're going to get 

these car parts one way or another. [Furtado] is not going to giv[e] you no money. I 

don't care and I'm coming over your fence." Davis had a hand on the fence and was 

trying to pull it down. Mendoza pulled the gun out from his pocket and told Furtado and 

Davis not to come over the fence. Mendoza testified that he feared that Furtado and 

Davis were going to come over the fence and attack him. Mendoza ran into his house. 

He estimated that the encounter lasted five minutes. 

Mendoza said that at the time he bought the AK-47 that police found in his home,

no one advised him that he could not legally remove the bullet button. 

C. Rebuttal

A police officer who responded to Furtado's call to 911 testified that she did not 

observe any unusual damage to Mendoza's backyard fence. 
5

The owner of the store at which Mendoza purchased the AK-47 testified that it 

was the store's policy for employees to explain to customers that it is illegal in California 

to possess an AK-47 that does not have a bullet button. 

III.

DISCUSSION

A. The trial court did not err in failing to instruct the jury sua sponte on simple 

assault or brandishing a firearm with respect to the charged offense of assault 

with a semiautomatic firearm

Mendoza claims that the trial court erred by failing to instruct the jury sua sponte 

on the offenses of simple assault (§ 240) and brandishing a firearm (§ 417, subd. (a)(2)) 

with respect to count 1 (assault with a semiautomatic firearm) (§ 245, subd. (b)). 

Mendoza claims that simple assault and brandishing a firearm are lesser included 

offenses of assault with a semiautomatic firearm, and that there is substantial evidence in 

the record that required the trial court to instruct on both uncharged offenses.

We reject Mendoza's claims. We conclude that the record does not contain 

evidence warranting an instruction on simple assault. We further conclude that 

brandishing a firearm is not a lesser included offense of assault with a semiautomatic 

firearm. 

1. Standard of review

"We apply the independent or de novo standard of review to the failure by the trial 

court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33 

Cal.4th 1158, 1218 (Cole).) In considering whether the trial court had a sua sponte duty 
6

to instruct the jury on lesser included offenses, we construe the evidence in the light most 

favorable to the appellant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368.)

2. General principles of law governing a trial court's sua sponte duty to 

instruct on lesser included offenses

"A trial court must instruct the jury sua sponte on a lesser included offense only if 

there is substantial evidence, ' "that is, evidence that a reasonable jury could find 

persuasive" ' [citation], which, if accepted, ' "would absolve [the] defendant from guilt of 

the greater offense" [citation] but not the lesser' [citation]." (Cole, supra, 33 Cal.4th at p. 

1218.) In other words, "[s]uch instructions are required only where there is 'substantial 

evidence' from which a rational jury could conclude that the defendant committed the 

lesser offense, and that he is not guilty of the greater offense." (People v. DePriest

(2007) 42 Cal.4th 1, 50.)

"An offense is necessarily included in a greater offense when, for present 

purposes,[2] under the statutory definition of the offenses the greater offense cannot be 

committed without necessarily committing the lesser." (People v. Basuta (2001) 94 

Cal.App.4th 370, 392.) 

 

2 "Under the accusatory pleading test, a court reviews the accusatory pleading to 

determine whether the facts actually alleged include all of the elements of the uncharged 

lesser offense; if it does, then the latter is necessarily included in the former." (People v.

Parson (2008) 44 Cal.4th 332, 349.) Mendoza makes no argument that the accusatory 

pleading test for determining whether an offense is a lesser included offense has any 

relevance to this case.
7

3. The trial court did not err in failing to instruct the jury on simple assault as 

a lesser included offense of the charged offense of assault with a 

semiautomatic firearm 

a. Relevant law

"An assault is an unlawful attempt, coupled with a present ability, to commit a 

violent injury on the person of another." (§ 240.)

"Any person who commits an assault upon the person of another with a 

semiautomatic firearm shall be punished by imprisonment in the state prison for three, 

six, or nine years." (§ 245, subd. (b).)

We assume for purposes of this decision that simple assault is a lesser included 

offense of assault with a semiautomatic firearm.3 (Cf. People v. Miceli (2002) 104 

Cal.App.4th 256, 272 ["The trial court instructed on assault (§ 240) as a lesser included 

offense of assault with a semiautomatic firearm"].)

"A long line of California decisions holds that an assault is not committed by a 

person's merely pointing an (unloaded) gun in a threatening manner at another person. 

[Citations.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 (Rodriguez).)4

A "threat to shoot with an unloaded gun is not an assault, since the defendant lacks the 

present ability to commit violent injury." (People v. Fain (1983) 34 Cal.3d 350, 357, fn.

6.) Nevertheless, a defendant who uses, or has the present ability to use, an unloaded gun 

 

3 The People do not contend otherwise.

4 Immediately following this quotation, the Rodriguez court stated, "The continuing 

viability of this rule is not questioned in this case, and the parties' briefs do not address 

it." (Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3.) The Supreme Court has not abrogated 

this line of authority in the wake of Rodriguez.
8

as a club or bludgeon may be convicted of assault with a firearm. (Ibid., see also People 

v. Miceli, supra, 104 Cal.App.4th at p. 270 ["A person may commit an assault [with a 

semiautomatic firearm] under [§ 245, subd. (b)] by using the gun as a club or bludgeon, 

regardless of whether he could also have fired it in a semiautomatic manner at that

moment"]; People v. Chance (2008) 44 Cal.4th 1164, 1172, fn. 7 ["On the rule that 

assault cannot be committed with unloaded gun, unless the weapon is used as a bludgeon,

see, e.g., [Rodriguez, supra, 20 Cal.4th at p.] 11 and footnote 3; [People v. Valdez (1985)

175 Cal.App.3d 103,] 111; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes 

Against the Person, section 9, page 644"].)

b. The record does not contain substantial evidence from which a 

reasonable jury could find that Mendoza was not guilty of assault 

with a semiautomatic firearm but guilty of simple assault

i. Relevant facts

Furtado testified that during the incident in question, Mendoza pointed a gun at 

him "no less than three times," while threatening to shoot him. 

With respect to his use of a gun during the encounter with Furtado, Mendoza 

testified as follows5:

"I took my gun from my back pocket and I pulled it out and I told 

them, I said, if you guys hop this fence, this is going to be the last 

fence that you guys hop." 

 

5 Mendoza does not contend on appeal that the jury could have reasonably found 

that the gun was not a semiautomatic firearm. 
9

Mendoza also testified that the gun was unloaded and that he was standing 

approximately five feet behind a chain link fence that separated him from Furtado, 

throughout the entire encounter. 

ii. Application

Mendoza suggests that a lesser included offense instruction as to simple assault 

was required in light of his testimony that the gun that he used during the incident was 

unloaded. We disagree.

As discussed above, an assault cannot be committed with an unloaded gun unless 

the defendant has the present ability to use the gun as a bludgeon. (People v. Fain, supra, 

34 Cal.3d at p. 357, fn. 6.) We assume for purposes of this decision that Mendoza's 

testimony that he "pulled . . . out" an "unloaded" gun while standing five feet behind a 

fence constituted substantial evidence from which the jury could have found that 

Mendoza had the present ability to use the unloaded gun as a bludgeon.6 However, even 

assuming that Mendoza had the present ability to use his unloaded gun as a bludgeon, he 

still would have committed the greater offense of assault with a semiautomatic firearm, 

not simple assault. (See People v. Miceli, supra, 104 Cal.App.4th at p. 270 ["when 

defendant used his unloaded automatic firearm as a bludgeon, he committed the offense 

of assault with a semiautomatic firearm"].) Thus, Mendoza has not identified any 

 

6 We emphasize that we make this assumption strictly for purposes of this opinion. 

In fact, we question whether there is substantial evidence in the record that Mendoza had 

the present ability to use the gun as a bludgeon in light of his testimony that he was five 

feet behind a chain link fence that separated him from Furtado during the encounter. 
10

evidence in the record that would " ' "absolve [him] from guilt of the greater offense"

[citation] but not the lesser.' [Citation.]" (Cole, supra, 33 Cal.4th at p. 1218.)7

4. Brandishing a firearm is not a lesser included offense of assault with a 

semiautomatic firearm

The offense of brandishing a deadly weapon or firearm is defined in section 417. 

Section 417, subdivision (a)(2) provides in relevant part: 

"Every person who, except in self-defense, in the presence of any 

other person, draws or exhibits any firearm, whether loaded or 

unloaded, in a rude, angry, or threatening manner, or who in any 

manner, unlawfully uses a firearm in any fight or quarrel is 

punishable . . . ."

In People v. Steele (2000) 83 Cal.App.4th 212, 218 (Steele), the Court of Appeal 

rejected a defendant's contention that brandishing is a lesser included offense of assault 

with a firearm. The Steele court reasoned:

 

7 Contrary to the argument that Mendoza presented in his opening brief, in his reply 

brief and at oral argument, Mendoza maintained that the jury found that the gun was 

loaded. In fact, the jury did not expressly find that the gun was loaded. However, 

Mendoza argues "had [the jury] believed that the gun was unloaded, [the jury] would 

have had to conclude that appellant did not have the present ability to commit a violent 

injury on Furtado." Even assuming that Mendoza were correct that a jury could not find 

that he committed an assault unless it found that the gun was loaded, this assumption 

does not strengthen his argument that an instruction on simple assault was required. 

Under this assumption, if the jury found that the gun was unloaded, Mendoza would be 

guilty of no offense. Simple assault requires proof of present ability to commit a violent 

injury upon another person (§ 240). If the jury found that the gun was loaded, then 

Mendoza would be guilty of the felony offense of assault with a semiautomatic firearm. 

(See People v. Miceli, supra, 104 Cal.App.4th at p. 270.) In either case, there is no 

evidence from which a reasonable juror could have concluded that Mendoza committed 

the lesser offense of simple assault, but not the greater offense of assault with a 

semiautomatic firearm. (See Cole, supra, 33 Cal.4th at p. 1218.) 
11

"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,[8] rather than lesser 

included. (People v. Piercy (1911) 16 Cal.App. 13, 16; People v. 

Diamond (1939) 33 Cal.App.2d 518, 522-523; People v. Torres

(1957) 151 Cal.App.2d 542, 544-545; People v. Leech (1965) 232 

Cal.App.2d 397, 399; People v. Birch (1969) 3 Cal.App.3d 167, 176; 

People v. Orr (1974) 43 Cal.App.3d 666, 673; People v. Beach

(1983) 147 Cal.App.3d 612, 626; People v. Lipscomb (1993) 17 

Cal.App.4th 564, 569 [treating brandishing as a lesser related

offense to assault with a firearm].) 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 [(1975)] 43 Cal.App.3d 391, 398 

(Escarcega).)" (Fn. omitted.)

Notwithstanding the strong logical and legal support for the proposition that 

brandishing is not a lesser included offense of assault with a firearm as outlined in Steele, 

Mendoza argues that the Supreme Court held in People v. Wilson (1967) 66 Cal.2d 749, 

764 (Wilson) that brandishing is a lesser included offense of assault with a deadly 

weapon.9 We disagree with Mendoza's assertion that the Wilson court so held. (See 

Escarcega, supra, 43 Cal.App.4th at p. 399 [rejecting argument that Wilson court held 

 

8 "[I]f a crime does not qualify as a lesser included offense because all of its 

elements are not subsumed within the elements of the charged crime or within the 

charging allegations, it may nonetheless be a lesser related offense of the charged crime. 

When an offense 'is closely related to that charged and the evidence provides a basis for 

finding the defendant guilty of the lesser but innocent of the charged offense,' the offense 

is deemed to be 'lesser related' and, upon a defendant's request, a trial court must instruct 

the jury on the lesser related offense." (People v. Lagunas (1994) 8 Cal.4th 1030, 1034-

1035.) 

9 Although Wilson involved the charged offense of assault with a deadly weapon

with intent to commit murder (Wilson, supra, 66 Cal.2d at p. 752), and the charged 

offense in this case is assault with a semiautomatic firearm, we assume for purposes of 

this discussion that this distinction is immaterial. 
12

"that the conduct proscribed by section 417 is necessarily committed in every Penal Code 

section 245 assault with a deadly weapon violation"]; cf. Steele, supra, 83 Cal.App.4th at 

p. 219 [stating that the Wilson court did "not direct hold [] that brandishing [is] a lesser 

included offense to assault with a firearm"].)

In Wilson, a jury found the defendant guilty of two counts of murder, one count of 

assault with a deadly weapon with intent to commit murder (§ 217), and one count of 

assault with a deadly weapon as a lesser included offense of assault with a deadly weapon 

with intent to commit murder (§ 217), and fixed the penalty for the commission of the 

murders as death. (Wilson, supra, 66 Cal.2d at p. 752.) With respect to the murder 

counts, the Wilson court concluded that the trial court had erred in failing to instruct the 

jury on the offense of brandishing a weapon. (Id. at pp. 759-760.) The Wilson court 

reasoned that an instruction on brandishing was necessary in order to enable the 

defendant to fully present his "defense" (id. at p. 757) to the prosecution's felony-murder 

theory of the case. The Wilson court explained that "the defendant, particularly in a 

capital case, is entitled to have the jury instructed on the law applicable to the evidence 

he presents." (Id. at pp. 762-763.) The Wilson court applied this law in concluding that 

an instruction on brandishing was required in that case:

"Proper instructions on section 417 would have told the jury that 

violation of the section was merely a misdemeanor and that, if 

defendant entered the apartment with an intent to violate that section 

and not to commit an assault with a deadly weapon, his entry would 

not constitute a burglary, and that the felony-murder rule was 

inapplicable. Proper instructions also would have permitted the jury 

to find that the killing occurred without malice in the commission of 

an unlawful act not amounting to a felony, a violation of section 417, 

which is involuntary manslaughter." (Wilson, supra, at p. 758.)
13

According to the Wilson court, the failure to provide an instruction on brandishing 

"effectively removed from the jury one of the principal defenses presented, [and] 

constituted error in the circumstances of this case." (Wilson, supra, 66 Cal.2d at p. 757.)

After explaining its rationale for reversing the murder convictions, the Wilson

court also reversed the conviction for assault with a deadly weapon. The Wilson court 

reasoned:

"[T]he judgment of conviction for assault with a deadly weapon 

upon [the victim] . . . must be reversed for failure to instruct on 

section 417 [brandishing]. 'An assault is an unlawful attempt, 

coupled with a present ability, to commit a violent injury on the 

person of another.' ([§] 240.) Defendant did not shoot or strike [the 

victim]; had the jury been instructed on section 417 the evidence 

would have justified the conclusion that defendant committed a 

violation of that section rather than the assault found. (People v. 

Carmen [1951] 36 Cal.2d 768, 774-775 [(Carmen)].)[10] Under the 

rules set forth above, the error must be deemed prejudicial."

(Wilson, supra, 66 Cal.2d at p. 764.)

The ratio decidendi11 of Wilson with respect to the court's reversal of the

conviction for the assault offense is unclear. The only case that the Wilson court cited, 

Carmen, supra, 36 Cal.2d 768, merely supports the proposition that there was evidence in 

 

10 The Wilson court noted earlier in its opinion that in Carmen, the court had held 

that since the defendant in that case had been prosecuted under a felony-murder theory 

and there was evidence that the defendant committed only the misdemeanor offense of 

brandishing, the defendant was entitled to an instruction based on misdemeanor 

manslaughter "on the ground that if his testimony was correct the killing occurred during 

the commission of a misdemeanor and not a felony." (People v. Wilson, supra, 66 Cal.2d 

at p. 759, citing Carmen, supra, 36 Cal.2d at pp. 774-775.)

11 "[The] ratio decidendi is the principle or rule which constitutes the basis of the 

decision and creates binding precedent." (United Steelworkers of America v. Board of 

Education (1984) 162 Cal.App.3d 823, 834.)
14

the record that the defendants in both Wilson and Carmen committed the offense of 

brandishing. (Carmen, supra, at p. 775.) As the Escarcega court observed, "Nothing is 

seen in . . . Carmen[, supra, at pages] 774-775 which lends any support to the theory that 

commission of a Penal Code section 417 offense necessarily results from a section 245 

assault with a deadly weapon." (Escarcega, supra, 43 Cal.App.3d at p. 400.) 

In the final sentence of the passage from Wilson quoted above, the Wilson court 

referred to the "rules set forth above." (Wilson, supra, 66 Cal.2d at p. 764.) The Wilson

court appears to have been referring to its analysis supporting its conclusion that the 

defendant was entitled to an instruction on brandishing with respect to the murder counts 

in order to explain his "defense" (id. at p. 757) that he had committed two misdemeanor 

manslaughters, rather than two felony murders.12 Thus, it is possible to interpret Wilson

as holding that, under the particular circumstances of that capital case, an instruction on 

brandishing was required with respect to the assault charge not because brandishing is a 

lesser included offense of assault with a deadly weapon with intent to commit murder, but 

instead, to explain the defendant's theory of the case.13 (Cf. People v. Geiger (1984) 35 

Cal.3d 510, 524 [citing the murder instruction portion of Wilson and stating, "In other 

 

12 Alternatively, the Wilson court may have intended its reference to "the rules set 

forth above," to refer to its prejudice analysis. (Wilson, supra, 66 Cal.2d at p. 764.) If 

that is the case, the basis of the Wilson court's reasoning with respect to the assault with a 

deadly weapon conviction is all the more cryptic. 

13 As noted above, the Wilson court did not hold that brandishing is a lesser included 

offense to murder, but rather, only that an instruction on brandishing was required in that 

case in order to explain the defendant's "defense" (Wilson, supra, 66 Cal.2d at p. 757) 

that he had committed two misdemeanor manslaughters, rather than two felony murders.
15

contexts this court has both approved and required instructions on related offenses that 

are not 'necessarily included' in the offense charged when the denial of the right to have 

the jury consider them would be fundamentally unfair, or when conviction of the related 

offense would be appropriate and would not undermine the defendant's right to notice"

(italics added)].)14

In Escarcega, supra, 43 Cal.App.3d at page 399, in rejecting a defendant's 

argument that the Supreme Court had held in the preceding passage from Wilson that 

brandishing (§ 417) is a lesser included offense of assault with a deadly weapon, the court 

stated:

"The language of People v. Wilson must be given a reasonable 

interpretation. Nowhere did the court discuss or consider the 

rationale of the 'lesser and necessarily included offense.' Nor did the 

court hold that the elements of section 417 were necessarily included 

in a charge of assault with a deadly weapon. Demonstrably, 

according to long-established principles, section 417 is not such a 

necessarily included offense. And it is significant that the court 

showed no purpose to overrule or modify those principles. Further, 

if the purpose was to hold the forbidden conduct of section 417 to be 

necessarily included in an assault with a deadly weapon charge, we 

may reasonably conclude that the court would have 

contemporaneously disapproved the many contrary Court of Appeal 

decisions which were then extant."

For the reasons stated above, we agree with the Escarcega court that the Supreme 

Court in Wilson did not hold that section 417 is a lesser included offense of assault with a 

 

14 In Geiger, the Supreme Court concluded that a defendant has a state constitutional 

right to a lesser related offense instruction under certain circumstances. (Geiger, supra,

35 Cal.4th at p. 514.) However, in People v. Birks (1998) 19 Cal.4th 108, 119, the 

Supreme Court overruled Geiger. Thus, to the extent this portion of Wilson is premised 

on reasoning adopted in Geiger, such reasoning no longer remains good law in the wake 

of Birks.
16

deadly weapon.15 We decline to conclude that the Wilson court sub silentio abrogated 

the "at least four published appellate court decisions decided [before Wilson] that 

[concluded] brandishing a firearm was not a lesser included offense to assault with a 

deadly weapon (firearm)." (Steele, supra, 83 Cal.App.4th at pp. 214-215.)16 Further, we 

conclude that because "an assault with a firearm may be committed without the defendant 

brandishing such weapon" (id. at p. 221), under the well-known statutory elements test 

for determining the existence of lesser included offenses, "brandishing cannot be a lesser 

included offense to assault with a [semiautomatic] firearm." (Ibid.)

Accordingly, we conclude that the trial court did not err in failing to instruct the 

jury sua sponte on the offense of brandishing a firearm with respect to the charged 

offense of assault with a semiautomatic firearm.

 

15 Technically, the Wilson court was considering whether a brandishing offense was 

required with respect to the charged offense of assault with a deadly weapon with the 

intent to commit murder. 

16 We acknowledge that in People v. Coffey (1967) 67 Cal.2d 204 (Coffey), the 

Supreme Court stated the following in a footnote: "The jury herein was properly 

instructed that section 417 sets forth a lesser offense necessarily included in those 

charged [including assault with a deadly weapon upon the person of a police officer]. (Cf. 

People v. Wilson (1967) 66 Cal.2d 749, 757-761.)" (Coffey, supra, at p. 222, fn. 21.) As 

Mendoza acknowledges, the Coffey court's statement in this regard is dictum. 

(Escarcega, supra, 43 Cal.App.3d at p. 400.) Thus, "under well-known rules [this 

statement from Coffey] may be considered as without precedential value." (Ibid.) 
17

B. There is sufficient evidence in the record to support the jury's verdicts finding 

Mendoza guilty of making a criminal threat and possessing an illegal assault 

weapon

Mendoza claims that there is insufficient evidence in the record to support the 

jury's verdicts finding him guilty of making a criminal threat and possessing an illegal 

assault weapon.

1. Standard of review

In determining the sufficiency of the evidence, "the relevant question is whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt."

(Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole 

record in the light most favorable to the judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, credible, and of solid 

value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

2. There is sufficient evidence in the record to support the jury's verdict 

finding Mendoza guilty of making a criminal threat

Mendoza claims that there is insufficient evidence in the record of two elements 

that are necessary to support the jury's verdict finding him guilty of making a criminal 

threat. Specifically, he contends that the record lacks substantial evidence that the threat 

that he is alleged to have made conveyed an immediate prospect of execution or caused 

the victim to be in sustained fear.
18

a. Governing law

In People v. Toledo (2001) 26 Cal.4th 221, 227–228, the Supreme Court 

summarized the elements of making a criminal threat (§ 422) as follows:

"In order to prove a violation of section 422, the prosecution must 

establish all of the following: (1) that the defendant 'willfully 

threaten[ed] to commit a crime which will result in death or great 

bodily injury to another person,' (2) that the defendant made the 

threat 'with the specific intent that the statement . . . is to be taken as 

a threat, even if there is no intent of actually carrying it out,' (3) that 

the threat—which may be 'made verbally, in writing, or by means of 

an electronic communication device'—was 'on its face and under the 

circumstances in which it [was] made, . . . so unequivocal, 

unconditional, immediate, and specific as to convey to the person 

threatened, a gravity of purpose and an immediate prospect of 

execution of the threat, (4) that the threat actually caused the person 

threatened 'to be in sustained fear for his or her own safety or for his 

or her immediate family's safety,' and (5) that the threatened person's 

fear was 'reasonabl[e]' under the circumstances. [Citation.]"

(Quoting § 422; italics added, fn. omitted.)17

"[A]ll of the circumstances can and should be considered in determining whether a 

terrorist threat [pursuant to section 422] has been made." (People v. Solis (2001) 90 

Cal.App.4th 1002, 1014 [stating that "it is clear a jury can properly consider a later action 

 

17 Section 422 provides in relevant part: "Any person who willfully threatens to 

commit a crime which will result in death or great bodily injury to another person, with 

the specific intent that the statement, made verbally, in writing, or by means of an 

electronic communication device, is to be taken as a threat, even if there is no intent of 

actually carrying it out, which, on its face and under the circumstances in which it is 

made, is so unequivocal, unconditional, immediate, and specific as to convey to the 

person threatened, a gravity of purpose and an immediate prospect of execution of the 

threat, and thereby causes that person reasonably to be in sustained fear for his or her 

own safety or for his or her immediate family's safety, shall be punished by imprisonment 

in the county jail not to exceed one year, or by imprisonment in the state prison." 
19

taken by a defendant in evaluating whether the crime of making a terrorist threat has been 

committed"].) 

In In re George T. (2004) 33 Cal.4th 620, 635, the Supreme Court summarized the 

meaning of the immediate prospect of execution element as follows:

"With respect to the requirement that a threat be 'so unequivocal, 

unconditional, immediate, and specific as to convey to the person 

threatened a gravity of purpose and an immediate prospect of 

execution of the threat,' we explained in People v. Bolin [(1998)] 18 

Cal.4th 297, that the word 'so' in section 422 meant that 

' "unequivocality, unconditionality, immediacy and specificity are 

not absolutely mandated, but must be sufficiently present in the 

threat and surrounding circumstances. . . ." ' (Bolin, supra, 18 

Cal.4th at p. 340, quoting People v. Stanfield (1995) 32 Cal.App.4th 

1152, 1157.) 'The four qualities are simply the factors to be 

considered in determining whether a threat, considered together with 

its surrounding circumstances, conveys those impressions to the 

victim.' [Citation]."

With respect to the sustained fear element, the word "sustained" "means a period 

of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen 

(1995) 33 Cal.App.4th 1149, 1156 (Allen).) A "victim's knowledge of defendant's prior 

conduct is relevant in establishing that the victim was in a state of sustained fear." (Ibid.) 

In addition, evidence of a defendant's emotional state is relevant to the determination of 

whether the victim suffered sustained fear. (See People v. Culbert (2013) 218 

Cal.App.4th 184, 191, fn. 3 (Culbert) [concluding that there was substantial evidence that 

victim suffered sustained fear from incident in which "angry stepparent" put firearm to 

victim's head]; cf. People v. Martinez (1997) 53 Cal.App.4th 1212, 1221 ["Defendant was 

extremely angry, was cursing at Iorio and was in very close proximity to Iorio when he 

made the threats. This type of situation can be very intimidating and can carry an aura of 
20

serious danger"].) The seriousness of the threat is also relevant in determining whether 

there is substantial evidence that the victim suffered sustained fear. (See People v. Fierro

(2010) 180 Cal.App.4th 1342, 1348 ["Facing what he thought was a gun and hearing 

words to the effect that he and his son were about to be killed, [the victim] was in 

sustained fear for his and his son's life"].)

b. Application

With respect to the immediate prospect of execution element, Furtado testified that 

Mendoza repeatedly stated that he was going to shoot Furtado while pointing a gun at 

Furtado during an argument between the two. Furtado explained that Mendoza appeared 

"serious, mad, [and] agitated." Davis testified that Mendoza pointed what appeared to be 

a small black object at Furtado and threatened to kill him. Davis further stated that 

Mendoza appeared to be "really upset with [Furtado]." Mendoza acknowledged that he 

showed Furtado and Davis a gun during the incident. This testimony plainly constitutes 

substantial evidence from which a jury could find that Mendoza made a threat " 'so 

unequivocal, unconditional, immediate, and specific as to convey to the person threatened 

a gravity of purpose and an immediate prospect of execution of the threat' [citation]." (In 

re George T., supra, 33 Cal.4th at p. 635.) 

As to the sustained fear element, Furtado testified that he was scared at the 

beginning of the encounter when he saw Mendoza walk out of his house with a gun. 

Furtado also testified that later, when Mendoza pointed the gun at him during the 

argument and threatened to shoot him, he was scared of "getting shot." Furtado 

explained that he had "never known [Mendoza] to . . . joke and kid around," and that he 
21

believed that the gun was loaded because it had a "clip . . . in it." Davis testified that 

Furtado appeared "a little scared," during the incident. After the incident, which Furtado 

estimated lasted approximately 20 minutes, he immediately called 911. The responding 

police officer testified that Furtado came "running towards [her]," as she arrived on the 

scene. 

In light of Furtado's testimony that he was scared at different times during the 

encounter (see Allen, supra, 33 Cal.App.4th at p. 1156), Furtado's testimony that he had 

never known Mendoza to "joke around" (see ibid.), Furtado and Davis's testimony that 

Mendoza appeared to be angry (see Culbert, supra, 218 Cal.App.4th at p. 191, fn. 3), and 

Furtado's testimony that Mendoza repeatedly pointed a gun at him and threatened to 

shoot him during a 20-minute encounter, we conclude that there is substantial evidence 

from which the jury could reasonably find that Mendoza's threats caused Furtado to 

suffer sustained fear.

We reject Mendoza's argument that the record lacks substantial evidence that 

Furtado suffered sustained fear because "[Furtado's] actions of standing there arguing 

with appellant about the car parts belie [his] statement [that he was afraid]." While 

Mendoza is correct that it is undisputed that Furtado did not flee the scene upon seeing 

the gun and Furtado testified that during portions of the incident he was "aggravated,"18

a reasonable jury could have nonetheless found that Furtado suffered sustained fear, even 

if the evidence showed that he experienced other emotions, as well, during the incident. 

 

18 Furtado testified that he "was a little, like, aggravated that this was even 

happening." 
22

3. There is sufficient evidence in the record to support the jury's verdict 

finding Mendoza guilty of possessing an illegal assault weapon

Mendoza claims that there is insufficient evidence in the record to support the 

jury's verdict finding him guilty of possessing an illegal assault weapon. Specifically, 

Mendoza claims that there is insufficient evidence that he knew that a modification that 

he performed on the weapon made it an illegal assault weapon. We disagree. The 

requisite knowledge element requires only that a defendant reasonably should have 

known that the firearm in question had the characteristics of an illegal assault weapon. 

We conclude that there is sufficient evidence that Mendoza knew or should have known

that his weapon, as modified, had the characteristics of an illegal assault weapon. 

a. Governing law

Section 30605, a provision of the Assault Weapons Control Act (ACWA), 

provides:

"(a) Any person who, within this state, possesses any assault 

weapon, except as provided in this chapter, shall be punished by 

imprisonment in a county jail for a period not exceeding one year, or 

by imprisonment pursuant to subdivision (h) of Section 1170."

Section 30515 provides in relevant part: 

"(a) . . . '[A]ssault weapon' also means any of the following:

(1) A semiautomatic, centerfire rifle that has the capacity to accept a 

detachable magazine and any one of the following:

(A) A pistol grip that protrudes conspicuously beneath the action of 

the weapon." 
23

In In re Jorge M. (2000) 23 Cal.4th 866, 869 (Jorge M.), the Supreme Court 

concluded that "actual knowledge regarding the firearm's prohibited characteristics is 

[not] required." In reaching this conclusion, the court reasoned in part:

"The gravity of the public safety threat addressed in the AWCA, 

however, together with the substantial number of prosecutions to be 

expected under it and the potential difficulty of routinely proving 

actual knowledge on the part of defendants, convince us [former] 

section 12280(b) [current section 30605] was not intended to contain 

such an actual knowledge element." (Jorge M., supra, at p. 887.)

Rather than actual knowledge, the Jorge M. court held that "the People bear the 

burden of proving the defendant knew or reasonably should have known the firearm 

possessed the characteristics bringing it within the AWCA." (In re Jorge M., supra, 23 

Cal.4th at p. 887.) In discussing the type of evidence that would demonstrate the 

knowledge element, the court in Jorge M., supra, at pages 887-888 stated:

"The question of the defendant's knowledge or negligence is, of 

course, for the trier of fact to determine, and depends heavily on the 

individual facts establishing possession in each case. Nevertheless, 

we may say that in this context the Legislature presumably did not 

intend the possessor of an assault weapon to be exempt from the 

AWCA's strictures merely because the possessor did not trouble to 

acquaint himself or herself with the gun's salient characteristics.

Generally speaking, a person who has had substantial and 

unhindered possession of a semiautomatic firearm reasonably would 

be expected to know whether or not it is [an illegal assault weapon]."

b. Factual background

Mendoza purchased an AK-47 rifle from a gun store in October 2011. It is 

undisputed that at the time Mendoza purchased the AK-47, it had a "bullet button" on it, 

which a police department employee testified made the gun legal to possess in California. 
24

The bullet button prevented the magazine from being removed without a tool.19 An 

employee of the store from which Mendoza purchased the item explained the reason for 

the bullet button as follows:

"The idea behind it is that it will take you longer to reload a 

magazine. Therefore, if you had ill-intent with it, it would take you 

longer to reload and you would not be as effective with the firearm."

It was the custom and practice of the store from which Mendoza purchased the 

AK-47 to inform customers that removing the bullet button would make the gun an 

illegal assault weapon. After purchasing the AK-47, Mendoza removed the bullet 

button,20 thereby making the gun an illegal assault weapon. Mendoza owned two other 

firearms in addition to the AK-47. 

c. Application

The People presented evidence that Mendoza owned the AK-47 for approximately 

five months before the incident in question. Thus, there was evidence from which the 

jury could reasonably have found that he "had substantial and unhindered possession" of 

the firearm. (Jorge M., supra, 23 Cal.4th at p. 887.) In addition, Mendoza bought the 

AK-47 from a gun store whose custom and practice was to inform customers of the 

relevant assault weapon law. Moreover, Mendoza owned two other firearms, making it 

all the more reasonable for him to "acquaint himself" with applicable gun regulations. 

 

19 Thus, with a bullet button, the firearm does not have the "capacity to accept a 

detachable magazine." (§ 30515.) 

20 Mendoza testified that he removed the bullet button in order to stain a part of the 

firearm. 
25

(Ibid.) Further, Mendoza performed a significant modification of the AK-47, which had 

the effect of making it easier to rapidly reload the gun and that made the firearm illegal 

for him to possess. Under these circumstances, there is substantial evidence from which 

a jury could have found that Mendoza knew or should have known that he possessed an 

illegal assault weapon. 

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.