Is Brandishing a Lesser Included Offense of Assault With a Deadly Weapon ?

In People v. Wilson (1967) 66 Cal.2d 749, the court reversed the defendant's conviction for assault with a deadly weapon for failure to instruct pursuant to section 417. In Wilson, the defendant entered his estranged wife's apartment, killed his wife and another man in the apartment with her, and assaulted with his firearm the other two men in the apartment. (Id. at pp. 753-756.) The court noted that "defendant did not shoot or strike the victim; had the jury been instructed on section 417 the evidence would have justified the conclusion that defendant committed a violation of that section rather than the assault found." (Id. at p. 764.) Subsequently, the Supreme Court in People v. Coffey (1967) 67 Cal.2d 204, 60 Cal. Rptr. 457 (Coffey), stated in a footnote that "the jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in section 217, assault with intent to commit murder, and section 245, assault with a deadly weapon." (Id. at p. 222, fn. 21.) In People v. Escarcega (1974) 43 Cal.App.3d 391, the court rejected the contention that Wilson and Coffey stood for the proposition that brandishing was a lesser included offense of assault with a deadly weapon. Escarcega pointed out that Wilson did not discuss or consider the basic rationales underlying lesser included offenses, nor did Wilson hold that the elements of section 417 were necessarily included in section 245. "Demonstrably, according to long-established principles, section 417 is not such a necessarily included offense. And it is significant that the court showed no purpose to overrule or modify those principles. Further, if the purpose was to hold the forbidden conduct of section 417 to be necessarily included in an assault with a deadly weapon charge, we may reasonably conclude that the court would have contemporaneously disapproved the many contrary Court of Appeal decisions which were then extant." (Escarcega, supra, 43 Cal.App.3d at p. 399.) On the other hand, since Wilson the Supreme Court itself had consistently affirmed the principle that a lesser included offense is one which is necessarily committed if the charged crime is committed. (Id. at pp. 399-400.) Escarcega similarly dispensed with the language in Coffey, supra, 67 Cal.2d 204, finding it to be dictum because "the quoted statement of the court was not responsive to any issue raised, and was unnecessary to the decision of that case." (Escarcega, supra, at p. 400.) In People v. Steele (2000) 83 Cal.App.4th 212, the court revisited the problematic language of Wilson and again rejected the notion that it consisted of a holding that bound lower courts pursuant to the principles of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. After pointing out that numerous cases hold that brandishing is not a lesser included of assault with a deadly weapon, Steele observed that in Wilson, the Supreme Court failed to follow the rule that whether an offense is a lesser included is made from the language of the statute or information, not from the evidence at trial. (Steele, supra, 83 Cal.App.4th at p. 221.) Furthermore, Steele conducted a close analysis of the Wilson decision, similar to the discussion in Escarcega, to demonstrate why the language in Wilson did not constitute binding precedent to be followed by appellate courts: Wilson did not directly state brandishing was a lesser included of assault with a deadly weapon; the court did not discuss the rationale of lesser included offenses; the court did not expressly overrule prior precedent holding brandishing was not a lesser included offense; the Supreme Court had consistently reaffirmed the principles underlying lesser included offenses; and Wilson is not supported by any subsequent cases. (Steele, supra, 83 Cal.App.3d at p. 220.)