P. v. Garcia
Defendant Onesimo Olmedo Garcia fired a shotgun at his girlfriend and, later the same day, shot her to death with a revolver. A jury convicted him of second degree murder, assault with a firearm (a shotgun), and two counts of possession of a firearm by a felon. (Pen. Code, 187, 189, 245, subd. (a)(2), 12021, subd. (a)(1).) The jury also found that defendant personally used a firearm in committing the murder and assault, and personally and intentionally discharged a firearm in committing the murder. (Pen. Code, 12022.5, subd. (a)(1), 12022.53, subd. (d).) Court conclude that CALCRIM No. 640, as read to the jury, was flawed in a minor respect but that the jury instructions as a whole adequately advised the jury on the types of homicide at issue in the case and that any deficiency in the instructions was not prejudicial. Court also conclude that the trial court properly refused to instruct the jury on the offense of brandishing a firearm because that offense is not a lesser included offense of assault with a firearm. Court affirm the judgment.
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