Martinez

A jury convicted defendant, Alejandro Martinez, of two counts of assault with a semiautomatic firearm. (Pen. Code, 1 § 245, *199 subd. (b).) The jury also convicted defendant of two counts of assault with a firearm. (§ 245, subd. (a)(2).) The jury found true gang and firearm use enhancements. (§§ 186.22, subd. (b)(1)(B) & (C), 12022.5, subd. (a).) Defendant was sentenced to 20 years in state prison. We reverse the judgment of conviction for the two firearm assault counts.

The facts are undisputed. Defendant accosted Juan Bueno. Mr. Bueno was accompanied by his girlfriend Melissa Rodriguez. Defendant pointed a semiautomatic pistol at Mr. Bueno and said, “I am going to fucking smoke you.” When Ms. Rodriguez pleaded with defendant to stop, he put the gun to her head. Defendant was a gang member. Defendant made gang references during the encounter. A detective testified the crimes were committed to benefit a criminal street gang.

Defendant contends and the Attorney General concedes defendant could not be convicted of both semiautomatic firearm assault and the included offense of firearm assault. We agree. Our Supreme Court has held, “Under California law, a lesser offense…