Licas

Is the crime of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) a lesser included offense of shooting at another person from a vehicle (Pen. Code, § 12034, subd. (c))? In a published opinion, the Court of Appeal here held that the assault offense is not a lesser included offense of shooting from a vehicle; the latter offense does not include the element that the shooter have a “present ability” to commit a violent injury on another person, a requirement of the offense of assault with a firearm. On the other hand, in In re Edward G. (2004) 124 Cal.App.4th 962 [ 21 Cal.Rptr.3d 786 ] (Edward G.), the Court of Appeal came to the opposite conclusion. We granted review to resolve the conflict.

We agree with the Court of Appeal in this case and conclude that assault with a firearm is not a lesser included offense of shooting from a vehicle.

I. FACTUAL AND PROCEDURAL HISTORY

In June 2002, Eric Galvan, his girlfriend, Lisa Flores, and their baby daughter were staying at an inn. Galvan and Flores had borrowed $200 from defendant about a month earlier. Although they had agreed to pay back defendant on the first day of the month, they did not pay defendant as agreed.

On…