Wilson

*373 Opinion

* The jury found appellant David Eugene Wilson guilty of attempting to commit the voluntary manslaughter of Eddie J. Conley (see Pen. Code, § 192, subd. 1 and § 644) and of committing an assault with a deadly weapon upon Conley and Rodney H. Boudreau (Pen. Code, § 245). The jury also found that appellant was armed with and used a deadly weapon during the commission of the crimes. Concurrent sentences were imposed for the two convictions of assault with a deadly weapon. The sentence for attempted manslaughter upon Eddie J. Conley was suspended and stayed pending completion of the sentences under the other two offenses.

Appellant complains of the convictions of both attempted voluntary manslaughter and assault with a deadly weapon as to the victim, Eddie J. Conley, on the ground that assault with a deadly weapon is an offense necessarily included within that of voluntary manslaughter.

If the offense of assault with a deadly weapon were an offense necessarily included within a charge of attempted voluntary manslaughter, the conviction of the lesser offense would have to be reversed. (See People v. Ramirez (1969) 2 Cal.App.3d 345, 351-352 [ 82 Cal.Rptr. 665 ]; see also…

I dissent solely on the question of whether appellant may be convicted of both an attempted voluntary homicide of Eddie Joe Conley and an assault with a deadly weapon upon Conley.

In my opinion, this case meets the test for necessarily included offenses based upon the accusatory pleading. The information charged that appellant wilfully, unlawfully and feloniously attempted to kill Eddie Joe Conley and that at the time of the commission of the offense, appellant was armed with and used a deadly weapon. If he used a gun in the attempt to kill, he must of necessity have committed an assault with a deadly weapon.

Relying on People v. Orr (1974) 43 Cal.App.3d 666 [ 117 Cal.Rptr. 738 ] and People v. Benjamin (1975) 52 Cal.App.3d 63, 71 [ 124 Cal.Rptr. 799 ], the majority concludes that the firearm use allegation cannot be considered in determining whether assault with a deadly weapon was necessarily included in the attempt to kill Conley. In Orr , the issue was whether failure to instruct sua sponte on the offense of drawing and exhibiting a firearm was error in a case in which defendant was charged with assault with a deadly weapon. The court reasoned that since a firearm use…