Criminal Law Library Blog

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U.S. Supreme Court, May 19, 2008
US v. Ressam, No. 07-455
A circuit court's decision setting aside defendant's conviction on a count of carrying an explosive "during the commission of" a felony is reversed where, under a natural reading of 18 U.S.C. section 844(h)(2), since defendant was carrying explosives when he feloniously made a false statement to a customs official, he was carrying them "during" the commission of that felony. Contrary to the court of appeals' ruling, there is no requirement of a relationship between possession of the item in question and the underlying felony. .

U.S. Supreme Court, May 19, 2008
US v. Williams, No. 06-694
A statute criminalizing, in certain specified circumstances, the pandering or solicitation of child pornography is neither overbroad under the First Amendment nor impermissibly vague under the Due Process Clause. The Court rejects concerns that virtual child pornography or sex between youthful-looking adult actors might be covered by the term "simulated sexual intercourse."

U.S. Supreme Court, May 19, 2008
US v. Rodriquez, No. 06-1646
A sentence for possession of a firearm by a convicted felon is reversed where, for purposes of the Armed Career Criminal Act (ACCA), the "maximum term of imprisonment . . . prescribed by law" for the state drug convictions at issue was a 10-year maximum set by the applicable state recidivist provision. The Ninth Circuit erred in holding that "the maximum term of imprisonment ... prescribed by law" must be determined without taking recidivist enhancements into account.

U.S. 1st Circuit Court of Appeals, May 20, 2008
US v. Ortiz-Graulau, No. 06-1768
In a criminal prosecution of adult defendant for taking sexually explicit photographs of a minor with whom he had a legal and consensual sexual relationship, conviction and sentence for possession of child pornography and exploiting a minor for the purpose of producing photographs is affirmed where: 1) despite defendant's claims that his purpose for taking those photographs was to memorialize his intimate relationship rather than to make pictures for displaying to others, the criminal statutory language requires only that a visual depiction be made, even for private use; 2) although excluding depicted minor's testimony as to facts bearing directly on specific statutory element of defendant's offense was arguably erroneous, the issue was not raised on appeal; 3) defendant's plea colloquy confirming his knowing possession of child pornography was relevant and its admission was not unduly prejudicial; and 4) defendant did not establish why a lower sentence was justifiable or wh! y it matters in light of a concurrently running longer sentence. .

U.S. 1st Circuit Court of Appeals, May 23, 2008
US v. Ellis, No. 07-1997
In a case wherein a prisoner attempted to abate his incarceration term by filing a Fed. R. Crim. P. 35(b) motion claiming that warden's alleged promise to create an opportunity for a sentence reduction as a reward for his assistance in prison effectively bound the government to file a Rule 35(b) motion on his behalf, judgment denying relief is affirmed where: 1) even if the warden did promise to file a Rule 35(b) motion, a warden within the Bureau of Prisons was unauthorized to make the motion as the "government" under Rule 35(b); and 2) a warden lacks express authority, or actual authority by necessary implication, to bind the government to make such motion.

U.S. 2nd Circuit Court of Appeals, May 23, 2008
US v. Ellett, No. 07-3682
Due process does not require that a taxpayer be given the opportunity to litigate his/her tax position civilly or administratively before being prosecuted for tax evasion.

U.S. 3rd Circuit Court of Appeals, May 20, 2008
US v. Alston, No. 06-1559
Conviction for possession of a firearm by a convicted felon after the district court precluded defendant from offering a justification defense is affirmed where defendant did not present evidence that: 1) he was under a present threat of death or bodily harm; 2) there was a direct causal relationship between the criminal act and the avoidance of the threatened harm; or that 3) he had no reasonable legal alternative.

U.S. 3rd Circuit Court of Appeals, May 22, 2008
Egolf v. Witmer, No. 06-2193
In an action wherein plaintiffs claimed that several state and municipal actors violated their First and Fourth Amendment rights by arresting them during a demonstration against the war in Iraq, summary judgment for police on the issue of qualified immunity is affirmed where, regardless of whether the police violated protesters' First and Fourth Amendment rights, such rights were not "clearly established" in this circumstance.

U.S. 4th Circuit Court of Appeals, May 20, 2008
Richmond Med. Ctr. for Women v. Herring, No. 03-1821, 04-1255
In a facial challenge under the Fourteenth Amendment to a Virginia statute that attempts to criminalize "partial birth abortion," which the statute terms "partial birth infanticide", summary judgment invalidating the statute is affirmed where the statute lacks an exception to protect a woman's health.

U.S. 5th Circuit Court of Appeals, May 21, 2008
U.S. v. Gould, No. 06-11058
Sentence for conspiracy to posses with intent to distribute crack cocaine and possession of a firearm in furtherance of a drug offense is vacated and remanded where a two point enhancement under the Sentencing Guidelines for "reckless endangerment during flight" was unsupported by the facts since there was no evidence that: 1) defendant heard an officer command him to stop with his weapon drawn; 2) defendant acted in an aggressive way towards the police; and 3) defendant's flight into an open field created a risk for other people. ...

U.S. 5th Circuit Court of Appeals, May 21, 2008
Whitt v. Stephens County, No. 07-10729
In a 42 U.S.C. section 1983 action for allegedly causing or failing to prevent the jailhouse death of plaintiff's son, summary judgment for defendant is affirmed where: 1) denial of leave to amend the complaint to name five of the "John Doe" defendants was proper since the statute of limitations rendered amendment futile; and 2) there was insufficient evidence for a reasonable jury to conclude that sheriff personally caused the death or acted with deliberate indifference. .

U.S. 5th Circuit Court of Appeals, May 22, 2008
U.S. v. Gonzalez-Terrazas, No. 07-50375
A sentence based on a guilty plea conviction for unlawful reentry of an alien after removal is vacated and the case remanded for resentencing where the district court erred in applying a 16 level crime of violence enhancement based on the defendant's prior conviction under California Penal Code section 459 for residential burglary.

U.S. 6th Circuit Court of Appeals, May 19, 2008
US v. Heath, No. 07-1215
A conviction for tax evasion is affirmed over claims of error regarding: 1) the failure of the district court to properly state a jury charge by omitting that the government had to prove that a "substantial" amount of tax was due; 2) an instruction to the jury that they did not have to find defendant's conduct "willful;" 3) the phrase "Void where prohibited by law" and a jury instruction on whether a document with such a mark qualified as a fictitious financial instrument; and 4) a denial for a downward departure at sentencing stemming from a misapplication of Michigan's definition of legal insanity.

U.S. 6th Circuit Court of Appeals, May 22, 2008
Harris v. Haberlin, No. 05-5591
Dismissal of a habeas petition raising Batson challenges to the prosecution's exercise of its peremptory strikes as race-based is vacated and the case remanded where the trial court was in a better position, not the appellate court, to consider newly discovered video evidence providing direct information about the prosecution's state of mind as part of the Batson fact-finding process.

U.S. 6th Circuit Court of Appeals, May 22, 2008
U.S. v. Smith, No. 07-1375
A sentence for possession of a firearm by a felon, arising from a search of defendant's residence while he was serving a sentence as a prisoner in a community residential home, is affirmed where: 1) an individual participating in a community residential program has as much of an expectation of privacy as a prisoner in his jail cell since they are treated as prisoners; 2) defendant was informed that officers had the freedom to enter his home and search the area of control where the defendant sleeps; 3) the state has an overwhelming interest in supervising community resident prisoners; and 4) the exclusionary rule does not apply to knock and announce violations in this situation since the rule has nothing to do with the seizure of evidence. .

U.S. 6th Circuit Court of Appeals, May 22, 2008
U.S. v. Bullock, No. 07-5632
A sentence imposed pursuant to a guilty plea to possession of a firearm while subject to a domestic violence order is affirmed over a meritless claim that, by adding four points to his base offense level pursuant to U.S.S.G. section 2K2.1(b)(6), the district court engaged in "double counting" because all firearms by definition are capable of facilitating another felony offense.

U.S. 6th Circuit Court of Appeals, May 22, 2008
Cristini v. McKee, No. 06-1606
An order conditionally granting petitioner habeas relief based on prosecutorial misconduct is reversed where: 1) the prosecutor relied in good faith on evidentiary rulings which permitted him to use prior bad acts evidence before trial to establish the identity of the perpetrator, and any evidence that went beyond the bounds of the ruling was harmless in view of the admissible evidence used to establish guilt; and 2) it was not improper for the prosecutor to call several witnesses liars since the statements were based on the record evidence, and any improper statements would be insufficiently flagrant to constitute plain error.

U.S. 6th Circuit Court of Appeals, May 23, 2008
Brand v. Motley, No. 06-6362
In a 42 U.S.C. section 1983 action arising out of a complaint where plaintiff-black inmate was denied a request to share his cell with a white inmate, dismissal of the action is vacated and remanded where: 1) plaintiff presented an arguable race discrimination claim which survives dismissal under section 1915(e)(2) since race played a factor in the denial of his move request; and 2) there was no record as to defendant's defenses of sovereign and qualified immunity since the district court did not address the issues.

U.S. 6th Circuit Court of Appeals, May 23, 2008
U.S. v. Martin, No. 06-5002
A conviction and sentence for being a felon in possession of a firearm is affirmed where: 1) defendant waived his right to challenge the sufficiency of the evidence by entering a guilty plea without reserving the right to appeal the issue; 2) he waived his right to appeal a denial of a motion to disclose a confidential informant's identity; 3) there was no error in denying defendant's motion to suppress evidence since there was sufficient probable cause for a search warrant; 4) there was no error in determining that the defendant's prior convictions subjected him to sentencing as an armed career criminal; and 5) the court did not violate the constitution in finding that defendant's prior convictions qualified as serious drug offenses so as to enhance his sentence as a career criminal.

U.S. 7th Circuit Court of Appeals, May 19, 2008
Carlson v. Jess, No. 07-3428
Grant of a writ of habeas corpus based on a denial of a motion to substitute counsel and for a denial of a motion for a continuance is affirmed where: 1) the trial court made unreasonable findings of fact that the communication between the petitioner and his trial counsel had not broken down; 2) the court of appeals did not look at the evidence presented by petitioner and merely relied on the court's factual findings; 3) the trial court's concern for delay in the trial was so rigid as to be arbitrary; 4) the age of the victim as an excuse not to delay the trial was unpersuasive since the victim did not make his claim until six years after the events took place; and 5) denial of petitioner's right to retain his counsel of choice had an adverse effect on the presentation of his case.

U.S. 7th Circuit Court of Appeals, May 20, 2008
LaGuerre v. Mukasey, No. 06-4164
Petition for review of an order of removal finding petitioner a deportable aggravated felon based on a conviction for battery is denied where: 1) the elements of domestic battery under Illinois law establish that it is a crime of violence subjecting him; and 2) the court lacked jurisdiction to review a claim that the BIA applied the incorrect legal standard when it determined that he did not qualify for protection under the Convention Against Torture.

U.S. 8th Circuit Court of Appeals, May 19, 2008
US v. Hudspeth, No. 07-1632
Conviction for money laundering, conspiracy to distribute pseudoephedrine, and conspiracy to launder money is affirmed over claims of error regarding: 1) denial of a motion to suppress evidence; 2) motions for judgment of acquittal; 3) court's response to jury questions about the elements of money laundering; and 4) jury instructions on the issue of interstate commerce.

U.S. 8th Circuit Court of Appeals, May 19, 2008
Bishop v. Dormire, No. 07-2341
Dismissal of a petition for habeas relief as untimely is vacated and remanded where: 1) petitioner's properly filed motion to recall the Missouri Court of Appeals' mandate tolled the AEDPA statute of limitations; and 2) although it appeared that petitioner did not meet the requirements for his habeas petition to be considered timely, he may be eligible for equitable tolling. .

U.S. 8th Circuit Court of Appeals, May 20, 2008
US v. Lopez, No. 07-2283
Sentence for conspiracy to distribute methamphetamine pursuant to a stipulated agreement is affirmed where defendant: 1) entered into a stipulation which was the product of counseled negotiations with the government; 2) explicitly and voluntarily exposed himself to a sentence range of 360 months to life and acknowledged that any sentence in this range was reasonable; and 3) did not raise any legal or equitable challenges to his negotiated stipulation.

U.S. 8th Circuit Court of Appeals, May 21, 2008
Jackson v. US, No. 07-1454
Partial denial of defendant's motion for return of property under Fed. R. Crim. Pro 41(g) is affirmed in part and reversed in part where: 1) evidence indicated that another party had a claim of ownership interest adverse to defendant's stereo/video equipment and clothing found in his girlfriend's vehicle at the time of arrest; but 2) defendant was entitled to return of custom wheels installed on his girlfriend's vehicle as, evidence did not suggest that the property was abandoned, intended as a gift, or integrated under Missouri's doctrine of accession. .

U.S. 8th Circuit Court of Appeals, May 21, 2008
US v. Allebach, No. 07-2916
In a prosecution for possession of powder cocaine with intent to manufacture cocaine base, denial of defendant's motion to suppress evidence and the resultant sentence are affirmed where: 1) materials found in trashbags outside defendant's residence, including cocaine residue, Brillo pads, a film canister, and documents bearing defendant's name and address, sufficiently established probable cause for issuance of a warrant to search defendant's residence; and 2) even if the warrant was unsupported by probable cause, the evidence would still be admissible under the Leon good faith exception; and 3) the district court followed proper procedures in calculating the base offense level and considering the relevant section 18 U.S.C. section 3553(a) factors.

U.S. 8th Circuit Court of Appeals, May 22, 2008
US v. Desantiago-Esquivel, No. 07-1170

U.S. 8th Circuit Court of Appeals, May 22, 2008
US v. Perez, No. 07-2452
Sentence for intent to distribute methamphetamine and possession of a firearm during a drug trafficking crime is affirmed where: 1) defendant failed his initial burden of showing that the government's refusal to make a substantial assistance motion was premised on an improper unconstitutional motive; and 2) the district court did not err in refusing to hold a hearing on that issue.

U.S. 8th Circuit Court of Appeals, May 22, 2008
US v. Nguyen, No. 07-2555
Conviction for mail fraud and wire fraud is affirmed where: 1) information provided by a postal inspector provided probable cause for the issuance of a search warrant; 2) the district court did not abuse its discretion in denying defendant's motion for a continuance on the morning of the trial; and 3) defendant's motion for a new trial was properly denied over claims regarding a language barrier, Brady violation, and improper admission of evidence.

U.S. 9th Circuit Court of Appeals, May 19, 2008
US v. Dallman, No. 05-30349
A sentence for possession and importation of marijuana and conspiracy to possess marijuana is affirmed primarily where the district court did not err in: 1) viewing the conspiracy in which defendant and two others participated as a joint undertaking rather than as several separate criminal activities; or 2) as a result, basing its calculation of defendant's Guidelines range on the aggregate amount of marijuana that the three men carried. .

U.S. 9th Circuit Court of Appeals, May 21, 2008
US v. Vasquez-Landaver, No. 07-50226
A conviction and sentence for being found in the United States after being deported is affirmed where: 1) because defendant failed to make a prima facie showing of an immediate threat, the district court properly precluded him from introducing any evidence on a duress defense and properly declined to instruct the jury on duress; 2) the 90-month sentence was reasonable; and 3) the sentence was not an impermissible punishment for exercising his constitutional right to trial.

U.S. 9th Circuit Court of Appeals, May 22, 2008
Mandujano-Real v. Mukasey, No. 06-74186
A conviction for identity theft under Oregon Revised Statute section 165.800 is not categorically a conviction for an aggravated felony theft offense for the purposes of 8 U.S.C. section 1101(a)(43)(G) of the Immigration and Nationality Act (INA).

U.S. 10th Circuit Court of Appeals, May 20, 2008
US v. Hasan, No. 06-5234
A conviction for perjury stemming from statements made to a grand jury is reversed and remanded where the district court inconsistently applied the Court Interpreters Act when it did not afford the defendant an interpreter during the grand jury proceedings but later granted one at trial.

U.S. 10th Circuit Court of Appeals, May 20, 2008
US v. Hays, No. 07-8039
A conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence is reversed where: 1) in the context at hand, the Wyoming battery statute does not satisfy the "use of physical force" element of the applicable federal statutory definition of a misdemeanor crime of domestic violence; and 2) thus, the underlying conviction pursuant to the Wyoming statute did not support his conviction.

U.S. 11th Circuit Court of Appeals, May 19, 2008
US v. Young, No. 07-14780
Sentence enhancement upon conviction for a Hobbs Act robbery and brandishing a firearm in relation to a crime of violence is affirmed where the district court did not err in determining that a conviction for violating Florida Statute section 784.085, "Battery of a Child by Throwing, Tossing, Projecting, or Expelling Certain Fluids or Materials," is a crime of violence for purposes of the career offender enhancement.

U.S. 11th Circuit Court of Appeals, May 20, 2008
Crowe v. Donald, No. 07-15680
Motion for stay of plaintiff-prisoner's execution on grounds that Georgia's method of lethal injection constitutes a cruel and unusual punishment is denied where: 1) plaintiff's complaint was barred by the statute of limitations; and 2) equities did not favor a stay of his execution.

U.S. 11th Circuit Court of Appeals, May 21, 2008
US v. Mendez, No. 07-13443
A conviction for unlawful production of a state commercial driver's license (CDL) is affirmed where defendant's intent in fraudulently obtaining the CDL was clearly to illegally operate a commercial vehicle, which would sufficiently affect interstate commerce. However, defendant's conviction for conspiracy to defraud the United States is reversed where the United States was not the target of defendant's crime.

U.S. 11th Circuit Court of Appeals, May 22, 2008
Gandara v. Bennett, No. 06-16088
A foreigner who has been arrested and detained in this country and alleges a violation of the consular notification provisions of the Vienna Convention on Consular Relations cannot maintain an action under 42 U.S.C. section 1983.

U.S. 11th Circuit Court of Appeals, May 22, 2008
US v. Carruth, No. 07-12060
Federal Rule of Criminal Procedure Rule 32.1(b)(2)(E), like Rule 32(i)(4)(A)(ii), requires a sentencing court to directly address the defendant and afford him or her the opportunity to personally address the court before imposing a sentence.

U.S. 11th Circuit Court of Appeals, May 23, 2008
US v. Madera, No. 07-12176
Denial of defendant's motion to dismiss an indictment against him for failing to register as a sex offender under the Sexual Offender Registration and Notification Act (SORNA) is reversed where: 1) defendant's indictment concerned his failure to register during the gap period between SORNA's enactment and the Attorney General's retroactivity determination; and 2) thus, defendant could not be prosecuted for violating SORNA during that time.

U.S. 11th Circuit Court of Appeals, May 23, 2008
Taylor v. Williams, No. 07-10453.

Supreme Court of California, May 22, 2008
Richardson v. Sup. Ct. of Tulare County, No. S127275
Denial of petitioner's motion under Penal Code section 1405 for DNA testing of hair samples admitted at trial is affirmed where: 1) the standard of review of a trial court' ruling on a section 1405 motion is abuse of discretion; 2) a defendant is not required to show that a favorable DNA test would conclusively establish his or her innocence because it would be sufficient for the defendant to show that the identity of the perpetrator or accomplice was a controverted issue as to which the results of DNA testing would be relevant evidence; 3) to prevail on a section 1405 motion, a defendant must demonstrate that, had the DNA testing been available in light of all of the evidence, there is a reasonable chance and not merely an abstract possibility that the defendant would have obtained a more favorable result; and 4) although the DNA test would have been relevant to the issue of identity, there was sufficient evidence to determine guilt.

Supreme Court of California, May 22, 2008
People v. Richardson, No. S029588
On automatic appeal for a sentence of death, the judgment is affirmed over claims of error regarding: 1) the prosecution's use of peremptory challenges to excuse any prospective juror who expressed reservations about the death penalty and religious affiliation; 2) the excusal of jurors for cause who stated that they could not impose the death penalty; 3) a denial to excuse a potential juror who revealed she would vote automatically for death; 4) an affidavit submitted for a warrant; 5) suppression of a post-arrest statement arising from an unnecessary delay in his arraignment; 6) whether the post-arrest statement should have been excluded because it was involuntary; 7) due process and right to counsel violations arising from relieving the public defender based on a conflict; 8) application of Proposition 115 to defendant's case; 9) admission and exclusion of certain evidence; 10) a prosecutorial decision involving a witness; 11) prosecutorial misconduct in presenting inconsi! stent theories; 12) sufficiency of evidence regarding lewd conduct; 13) erroneous instruction on sodomy as a basis for felony murder; 14) references to innocence in CALJIC Nos. 1.01, 2.01, 2.51 and 2.52; 15) cumulative effect of guilty phase errors; 16) double counting of special circumstances and consideration of sodomy special circumstance; 17) several evidentiary rulings; 18) denial of motion for modification of death verdict; 19) intercase proportionality; 20) instructional error; 21) challenges to the death penalty statute; 22) international law; 23) prosecution delay; 24) missing transcripts; 25) cumulative error; and 26) incorporation by reference of habeas corpus petition claims. However, the case is remanded on the issue of restitution as the issue should be considered in light of the currently applicable statute.

Supreme Court of Florida, May 22, 2008
Hitchcock v. Florida, No. SC04-1286
Denial of a motion to vacate a first degree murder conviction and a sentence of death is affirmed, and a petition for habeas corpus is denied, over claims of error regarding: 1) ineffective assistance of counsel; 2) destruction of exculpatory evidence by the state; 3) newly discovered evidence; 4) the state's failure to disclose deficiencies of the hair analyst and then knowingly presenting incompetent and false testimony; 5) defendant's failure to be present at a bench conference where peremptory challenges were exercised; and 6) a failure of counsel to properly investigate and present statutory mitigating circumstances.

Supreme Court of Florida, May 22, 2008
Hartley v. Florida, No. SC04-1387
Denial of a motion to vacate a conviction for first degree murder and sentence of death is affirmed over claims of error regarding: 1) ineffective assistance of counsel for failure to present additional mitigating testimony and failing to obtain a mental health expert; 2) error in denial of a claim that the state knowingly presented false testimony at trial; and 3) whether post-conviction counsel failed to adequately investigate the case and obtain a medical expert. .

Supreme Court of Florida, May 22, 2008
Pettway v. McNeil, No. SC07-2012
In a pro se petition for writ of habeas corpus the court determines that petitioner, who has unsuccessfully petitioned the courts numerous times, has abused the processes of the court and has merited sanctions in the form of being barred from filing petitions in the Supreme Court unless signed by a member in good standing of the Florida Bar.

California Appellate Districts, May 20, 2008
People v. Wardell, No. H031285
Following retrial after defendant's original convictions were reversed on appeal, a conviction for second-degree robbery and felony false imprisonment, as well as a sentence enhancement based on a true finding of personal use of firearm in the commission of crimes, are affirmed where: 1) substantial evidence supported defendant's conviction; and 2) a Penal Code section 12022.5(a) personal use of a firearm enhancement did not require specific intent and did not require sua sponte instructions on the meaning of the phrase "displays a firearm in a menacing manner". However, an increased restitution fund fine imposed on defendant after retrial is modified and reduced to the amount provided in defendant's original sentence.

California Appellate Districts, May 22, 2008
People v. Kelly, No. B195624
In a criminal case involving the tension between California voters' approved Compassionate Use Act (CUA), which exonerates a patient from certain marijuana-related offenses for his/her possession or cultivation of marijuana for personal medical purposes upon a doctor's recommendation, and the legislatively enacted Health and Safety Code section 11362.77, which caps the amount of marijuana a patient may have at certain limits unless the patient has a doctor's recommendation that the specified quantity does not meet the patient's needs, the court of appeals rules that: 1) CUA can only be amended with voters' approval; 2) because the voters did not approve the quantity limits set by section 11362.77, that section unconstitutionally amended the CUA; and 3) thus, it was prejudicial error to allow a prosecutor to make an argue that defendant could be found guilty of the charged crimes if found to possess more than the section 11362.77 limited amount in the absence of a doctor's re! commendation for that amount.

California Appellate Districts, May 22, 2008
Dyer v. DMV, No. C054971
In a DUI case wherein the trial court granted a petition for writ of administrative mandate to revoke a license suspension, the judgment is reversed and remanded where: 1) there was no evidentiary basis to support a finding that Vehicle Code section 40800 was violated; 2) even if there was, the fact that the detaining officer was driving an unmarked vehicle did not render the subsequent arrest unlawful; 3) Penal Code section 836 was not violated by the mere fact that a summoned officer making the arrest did not personally observe defendant's suspected drunk driving behavior; and 4) the trial court failed to conduct an independent review of whether sufficient evidence supported the DMV's factual findings that defendant operated over the BAC legal limit. ..

California Appellate Districts, May 22, 2008
People v. Golde, No. C053632
Conviction for assault by means of force likely to produce great bodily injury or with a deadly weapon and sentence enhancement based on a true finding of a prior serious felony conviction is affirmed in part and reversed in part and remanded where: 1) substantial evidence supported defendant's conviction for felony assault; 2) substantial evidence did not support a finding that defendant suffered a prior serious felony "strike" conviction for negligent discharge of firearm; 3) the trial court did not err in failing to instruct the jury on the elements of simple assault as a lesser included offense; and 4) the trial court did not err as to various CALCRIM jury instructions given.