Richmond

This is an appeal by the People from an order granting defendant Keith Richmond’s motion for a new trial on the grounds of instructional error (Pen. Code, § 1238, subd. (a)(3)). The People contend that the trial court erroneously concluded that it should have instmcted the jury on assault with a deadly weapon as a lesser included offense of attempted murder with the use of a deadly weapon and that the granting of a new trial was, therefore, an abuse of discretion. Defendant concedes that assault with a deadly weapon is not a lesser included offense of attempted murder but argues that the order granting him a new trial should nevertheless be upheld because the court should have instmcted the jury on assault with a deadly weapon as a lesser related offense of attempted murder. We reverse the order for new trial.

In an information, defendant was charged with attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664 & 187). It was further alleged that defendant personally used a deadly weapon, namely a hatchet, during the attempt (Pen. Code, § 12022, subd. (b)) and that he intentionally inflicted great bodily injury on the victim (Pen. Code, § 12022.7). The…