People v. Solis CA2/4

INTRODUCTION

Sammy Briceno Solis appeals from a judgment and sentence, following his conviction for attempted murder. He contends the trial court erred in denying his request for an instruction on assault with a deadly weapon, because it was a lesser included offense of attempted murder. Under People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), assault with a deadly weapon was not a lesser included offense of the attempted murder charged in the information. As Wolcott controls, the trial court did not err. Appellant also contends the abstract of judgment should be amended to reflect the jury’s verdict that the attempted murder was not willful, deliberate and premeditated. The People concede the error. Accordingly, we will order the abstract of judgment modified, and as modified, affirm.

PROCEDURAL HISTORY

A jury convicted appellant of the attempted murder of Ronald Varela 1 (Pen. Code, §§ 664, 187, subd. (a)). It found true the allegation that appellant personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury (GBI) upon Varela (§ 12022.7, subd. (a)). The jury found untrue the allegation that the attempted murder was…