Lipscomb

Following a jury trial, defendant Kevin Lamar Lipscomb was convicted of one count of first degree robbery (Pen. Code, §§ 211-212.5); one count of false imprisonment by means of violence (§§ 236-237); one count of assault with a firearm (§ 245, subd. (a)(2)); and related firearm use enhancements (§ 12022.5). On appeal, defendant contends, inter alia, that his assault conviction must be reversed because the trial court improperly refused his request for a lesser related offense instruction on brandishing a weapon (§ 417, subd. (a)(2)). We disagree and affirm.

I. Statement of Facts

Contra Costa County Deputy Sheriff Richard West testified that on the morning of September 6, 1991, he was parked on a freeway on-ramp watching for a white van with dark stripes. When he saw the van, he began following it and notified the police dispatcher to alert the Vallejo police. As the van passed through a toll booth, West noticed a California Highway Patrol car parked at the toll plaza and activated his lights and siren. The van sped up and exited the freeway. After following the van through the streets, West noticed the front passenger door open; he heard two shots fired and veered out…