P. v. Hernandez
Defendant and appellant Jose Luis Hernandez (defendant) was convicted of, among other crimes, assault with a deadly weapon. (Pen. Code, 245, subd. (a).)[1] Defendants sole contention on appeal is that the trial court erred by not instructing the jury sua sponte on misdemeanor brandishing of a firearm ( 417, subd. (a)(2)), which defendant contends is a lesser included offense of assault with a deadly weapon. COURT agree with the appellate authority, that notwithstanding language in older California Supreme Court cases, brandishing a firearm is a lesser related, not a lesser included, offense of assault with a deadly weapon. Court therefore affirm.
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