Le

Sonny Le appeals from a judgment sentencing him to state prison for four years upon convictions of felony assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), hereinafter ADW), misdemeanor battery (Pen. Code, § 242), and misdemeanor petty theft (Pen. Code, § 484).

At the trial, appellant was charged only with second degree robbery. (Pen. Code, § 211.) The jury acquitted him of the charge, but found him guilty of ADW as a lesser related offense. The principal question presented on this appeal is whether the trial court erred when it ruled, at the prosecutor’s request and over appellant’s objection, that it would instruct on ADW as a lesser related offense.

The evidence, viewed in a light most favorable to the verdict, established that appellant entered a store in Long Beach owned by his sister and her boyfriend. The boyfriend was the victim of the assault. Appellant asked the victim three times for money. The victim declined. The victim’s employee gave appellant $5. Appellant lit a cigarette, using a lighter he took from a display rack. He took a bottled beverage from the cooler and drank from it. The…