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Name: People v. Martinez
Case #: B235011
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 08/06/2012

Because assault with a firearm (Pen. Code, § 245, subd. (a)(2)) is a lesser included offense of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), a defendant cannot be convicted of both. Appellant, a gang member, accosted Bueno and his girlfriend, Ms. Rodriguez, and, pointing a semiautomatic pistol at Bueno, threatened to “smoke” him. When Ms. Rodriguez pleaded with appellant to stop, he put the gun to her head. The jury convicted him of two counts, each, of assault with a semiautomatic firearm and assault with a firearm and found true gang and firearm enhancements (Pen. Code, §§ 186.22, subds. (b)(1)(B) & (C), 12022.5, subd. (a)). Reversed as to the assault with a firearm offense. Assault with a semiautomatic firearm cannot be committed without also committing assault with a firearm and the latter, therefore, is a lesser included of the former. A defendant cannot be convicted of a both an offense and a lesser included offense. (People v. Medina (2007) 41 Cal.4th 685.)

Under Penal Code section 1170.1, subdivision (f), a sentence cannot be imposed for both personal firearm use (Pen. Code, § 12022.5 subd. (a)) and committing a violent felony to benefit a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C). Only the greater can be imposed. [Distinguish section 12022.5, subdivision (a) from Penal Code section 12022.53, subdivision (b) where both can be imposed.]