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

S econd 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

D efendant 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 "Affirm ed." 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 i n the judgment.

NARES, Acting P. J.

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

F irst 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

D efendant 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 "Affirm ed." 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, Se nior 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 judgme nt.

NARES, Acting P. J.

Copies to: All partiesFiled 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 b y 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.

MYLE S 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 Mendo za 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 offense s of simple a ssault (§ 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 ev idence 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 c ase

In early 2012, Mendoza and v ictim 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 p ick 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

.

O n 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 arrived3

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

separa ted 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 hol ding 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 . D uring

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

shoot him

. E ach ti me 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 bl ack object at Furtado and heard Mendoza say that he was going to kill Fu rtado

.

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

his house. Furtado called 911. Shortly thereafte r , 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 surround s 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 com ing 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 c ome over the fence and attack him. Mendoza ran into his house.

He estimated that the encounter lasted five minu tes.

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 remo ve t he 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 back yard fence.5

The owner of the store at which Mendoza purchased the AK

- 47 testified that it

w a s the store ' s policy for employees to explain to customers that it is il legal 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

ass ault or brandishing a firearm with respect to the charged offense of assault
with a semi automatic firearm

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

on the offense s of simple assault (§ 240) and brandishing a f irearm (§ 417 , subd. (a)(2) )

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

.

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

offenses of assault with a semi automatic firearm

, and that the re 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 conc lude 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 less er included offense. " ( People v. Cole (2004) 33

Cal.4th 1158, 1218 ( Cole ) .) In considering whether the trial court had a sua sponte duty6

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

favorable to the appella nt. ( People v. Turk (200 8) 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 on ly 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 ' [ c itation ]

. " ( 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 great er 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 nec essarily committing the lesser. " ( People v. Basuta (2001) 94

Cal.App.4th 370, 392 .)

2 " Under the accusat ory 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 nece ssarily 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
semi automatic firear

m

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 semiauto matic firearm " ].)

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

person ' s merely poin ting 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 aut hority 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 f

irearm] 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 [ "O n the rule that

assault cannot be committed with unloaded gun, unless t he 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, p age 644 " ] .)

b. The record does not contain substantial evidence from which a reasonable jury could find that Mendoza was no t guilty of assault
with a semi automatic 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.

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

testified as follows 5 :

" 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 las t fence that you guys ho p. "

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 inc luded offense instruction as to simp le assault

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

un loaded. We disagree.

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

the defendant h as the present ability to use the gun as a bludgeon. ( People v. Fain

, supra ,

34 Cal.3d at p. 357, fn

. 6 .) W e assume for purposes of this decision that Mendoza ' s

testimony that he " pulled

. . . out " an " unloaded " gun while standing five feet behind a

fenc e 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

stil l 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 firea rm is defined in section 417.

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

" Every p erson 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 punishabl e

. . . . "

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 wou ld 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 semiautom atic 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 as sault 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 t he 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 lega l 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 all egations, 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 i nnocent of the charged offense,' the o ffense
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 assaul t 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. 21 9 [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 guilt y 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 ha d err ed in failing to instruct the

jury on the offense of bran dishing a weapon. ( Id . at p p . 759

- 760. ) T he 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 Wi lson 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 a partment 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.)

A fter explaining its rationale for reversing the mur der convictions, the Wilson

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

reasoned:

" [T] he judgment of conviction for ass ault 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 t he 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.)

T he ratio decidendi 11 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, merel y 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
brandish ing, 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. 7 59, 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 pa ssage from Wilson quoted above

, the Wilson court

referred to the " rules set forth above

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

. ) T he Wilson

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

defendant was entitled to a n 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

manslaughter s, rather than two felony murder s

. 12 Thus

, it is possible to interpr et 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 cas e. 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 off enses 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 ass ault 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 an d necessarily included offense. ' Nor did the
court hold tha t 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
show ed 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 con clude that the court would have

conte mporaneously 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 consti tutional 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 Wi lson is premised on reasoning adopted in Geiger , such reasoning no longer remains good law in the wake
of Birks

.16

deadly weapon. 15 W e 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 a ssault with a

deadly weapon (firearm)

. " ( Steele, supra

, 83 Cal.App.4th at p p . 214

- 215 .) 16 Further, we

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

brandishing such weapon " ( id . at p. 221)

, under the well

- known s tatutory elements test

for determining the existence of lesser included offenses

, " brandishing cannot be a lesser

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

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 les ser 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 i s dict um. ( 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 mak ing 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 crim e 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 i s 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. The re 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. Specificall y, he contends that the record lacks substantial evidence that the threat

that he is alleged to have made conveyed an immediate prospect of exec u tion 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 co mmit a crime which will result in death or great bodily injury to another person, ' (2) that the defendant made the
threat ' with the specifi c 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
circums tances 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; i talics added, fn. omitted. ) 17

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

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

Cal.App.4 th 1002, 10 14 [stating that " it is clear a jury can properly consider a later action

17 Section 422 provides in relevant part: " An y 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 take n 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 exce ed 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

committ ed " ].)

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 th e requirement that a threat be ' so unequivocal, unconditional, immediate, and sp ecific 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 sectio n 422 meant that

' " unequivocality, unconditionali ty, 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 fou r qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys t hose impressions to the
victim. ' [Citation]. "

With respect to the sustained fear element, t he word " sus tained " " means a period

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

(19 95) 33 Cal.App.4th 1149, 1156 ( Allen ).) A " victim ' s knowledge of defendant ' s prior

conduct is relevant in establishing that the victim wa s 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) 21 8

Cal.App.4th 184, 191, fn. 3 ( Culbert ) [conc luding 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 of20

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

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

(201 0) 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 w hile 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 " reall y 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, im mediate, and specific as to convey to the person threatened

a gravity of purpose and an immediate pros pect 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 he21

believed that the gun was load ed 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 sc ared 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

, supr a , 21 8 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 th at 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 afra id]. " While

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

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

, " 18

a reasonable jury co uld 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 Mendoz a 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. S pecifically,

Mendoza claims that there is insuff icient 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 illeg a l 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 y ear, 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
detac hable 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 fi rearm ' s prohibited characteristics is

[not] required. " I n reaching this conclusion, t he 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 un der 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 determ ine, 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 merel y 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 w hether 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 a t 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 but ton 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 o f 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

firear ms 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

jur y 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

rel evant 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 , whi ch 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 posse ssed an

illegal assault weapon.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.