Unreported / Non-Citable
Background
Juan Carlos Moran and codefendant Emmanuel Antonio Gomez Calderon were charged with assault with a firearm under Penal Code section 245(a)(2) and possession of a firearm by a felon. The charges arose from an attack on L.S. outside his Barstow home. L.S. initially told police that two men had guns and that one struck him in the head with a gun. He identified one assailant as "Pony," whom he and C.M. later identified as Moran. Their trial testimony was reluctant and sometimes inconsistent: L.S. first denied seeing Pony with a gun but acknowledged earlier testimony that Pony held an M16, while C.M. said she saw Calderon holding a long black gun and Moran holding no weapon.
The responding officer saw a cut on L.S.'s head and testified that L.S. pantomimed an assailant waving a firearm back and forth. Body-camera footage also captured L.S. answering "Yeah" when asked whether the assailants pointed a gun at him. Officers found two loaded AR-style guns at a house associated with Pony, but also found pellet guns and a BB gun. The court instructed on assault with a firearm, assault with a deadly weapon other than a firearm, and simple assault. The jury acquitted Moran of both charged counts and simple assault, but convicted him under section 245(a)(1). After the court asked whether that was the intended verdict, each juror answered yes during individual polling.
The Court’s Holding
Reviewing the instructional issue de novo, the Court of Appeal rejected Moran's argument that sections 245(a)(1) and 245(a)(2) are mutually exclusive because one concerns a firearm and the other expressly concerns a weapon "other than a firearm." Under People v. Milward, that quoted phrase is not an element of section 245(a)(1); it distinguishes aggravated assault from the more serious firearm offense. A jury convinced that a defendant used a deadly weapon, but uncertain whether it was a firearm, may therefore convict under subdivision (a)(1). Because assault with a firearm necessarily involves assault with a deadly weapon or instrument, section 245(a)(1) is necessarily included within section 245(a)(2).
The court also held that Milward's analysis was indispensable to that decision, not dicta, and was not superseded by People v. Aguayo. Aguayo's description of the offenses as "discrete and presumptively separate" established that they are different offenses, not that neither can be included within the other. On sufficiency, the court applied the deferential substantial-evidence standard. A BB or pellet gun is not a firearm because it does not use explosion or combustion, but it can be a deadly weapon under section 245(a)(1). The pointing and waving evidence permitted a reasonable inference that Moran assaulted L.S. with such a weapon, notwithstanding conflicting testimony.
Finally, the simple-assault acquittal did not negate an essential element of the greater offense. The trial court appropriately clarified the apparently inconsistent verdicts, and the jurors' individual answers confirmed that section 245(a)(1) was their intended verdict and that its elements had been established. The Court of Appeal affirmed the judgment.
Key Takeaways
- The phrase "other than a firearm" in section 245(a)(1) is not an element requiring proof that the weapon was not a firearm.
- Assault with a deadly weapon other than a firearm is a lesser included offense of assault with a firearm under the California Supreme Court's Milward analysis.
- Aguayo's recognition that the two assault offenses are discrete and presumptively separate does not eliminate their greater-and-lesser-offense relationship.
- A BB gun or pellet gun may qualify as a deadly weapon even though it does not meet the statutory definition of a firearm.
- The trial court's clarification and individual jury polling defeated Moran's argument that the simple-assault acquittal undermined his aggravated-assault conviction.
Why It Matters
The decision applies controlling Supreme Court authority to a recurring evidentiary problem: uncertainty about whether a weapon used in an assault was legally a firearm. It explains why that uncertainty need not prevent an aggravated-assault conviction and why describing two offenses as separate does not answer the lesser-included-offense question.
The sufficiency analysis also distinguishes firearm status from deadly-weapon status and shows how prior statements, body-camera evidence, and a witness's gestures can collectively support a verdict under deferential appellate review. The verdict-clarification discussion separately confirms that a court may resolve an apparent greater-and-lesser-offense inconsistency by asking the jury to identify its intended verdict.