People v. Cruz CA4/2

INTRODUCTION

On October 7, 2013, an information charged defendant and appellant

Antonio P. Cruz with assault with a firearm in violation of Penal Code1 section 245,

subdivision (a)(2) (count 1); and making criminal threats in violation of section 422

(count 2). As to both counts, the information also alleged that defendant personally used

a firearm within the meaning of section 12022.5, subdivision (a).

Prior to the preliminary hearing, defendant moved to replace appointed

counsel under Marsden. After holding a hearing on the motion, the court denied

defendant’s request. After the preliminary hearing, counsel made a motion to dismiss all

charges against defendant under section 995; the court denied the motion. At the

conclusion of the People’s case-in-chief at the trial, defense counsel made a motion to

dismiss the charges under section 1118.1; the court denied the motion.

In one of the jury instructions, the trial court instructed the jury on simple

assault as a lesser included offense as to count 1. During deliberations, the jury sent a

note indicating that it had reached a verdict on count 1, but not on the lesser. When

asked, the jury also indicated that it had…