Steele

From 1911 to 1965, at least four published appellate court decisions decided that brandishing a firearm was not a lesser included offense to assault with a deadly weapon (firearm). Without discussion, our Supreme Court in 1967 ignored those cases and impliedly held the reverse. (People v. Wilson (1967) 66 Cal.2d 749, 764 [ 59 Cal.Rptr. 156 , 427 P.2d 820 ] (Wilson).)

In a steady parade of subsequent cases, the appellate courts got even by disregarding that particular holding of Wilson . For the reasons that follow, we respectfully join the parade. -

Procedural Background

Appellant Tom Steele, Jr., appeals from a judgment entered after a jury found him guilty of assault with a firearm (count 1; Pen. Code, § 245, subd. (a)(2)), and possession of a firearm by a felon (count 2; Pen. Code, § 12021, subd. (a)(1)). The jury also found that in the commission of the assault, appellant personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1)).

The trial court sentenced appellant to 14 years, consisting of the high term of four years for count 1 and a 10-year enhancement for the use of a firearm. The sentence on count 2 was stayed.

Contentions

Appellant contends that (1)…