Is brandishing a weapon a lesser included crime?

An offense may have one or more lesser included offenses. (People v. Birks (1998) 19 Cal.4th 108, 117.) If substantial evidence is presented at trial from which a reasonable jury could conclude the defendant committed the lesser included and not the greater offense, the trial court has a sua sponte duty to instruct the jury on the lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) We review de novo a trial court's failure to instruct on an allegedly lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) We construe the evidence in the light most

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favorable to the defendant when we determine if the trial court had a duty to instruct on a lesser included offense. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)

"The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks, supra, 19 Cal.4th at p. 117.) We conclude brandishing a weapon is not a lesser included offense to assault with a firearm under either the statutory elements test or the accusatory pleading test.