FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Dennis J. Smith, Judge
The opinion of the court was delivered by: Judge Robert J. Humphreys
Present: Judges Humphreys, Kelsey and McClanahan Argued at Alexandria, Virginia
Nasser Ghalambor Dezfuli ("Dezfuli") was indicted in the Fairfax County Circuit Court ("trial court") on one count of malicious wounding, in violation of Code § 18.2-51, and one count of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. Upon finding the evidence insufficient for a finding of guilt on either count, the trial court convicted Dezfuli of brandishing a firearm, in violation of Code § 18.2-282, as a lesser-included offense of the use of a firearm in the commission of a felony. Dezfuli alleges on appeal that the trial court erred (1) in finding that brandishing is a lesser-included offense contained within Code § 18.2-53.1, and (2) in refusing to dismiss the indictment for a violation of his statutory right to a speedy trial. Because we agree that the trial court erred in finding that brandishing is a lesser-included offense contained within Code § 18.2-53.1, we reverse Dezfuli's conviction for brandishing. Thus, we do not address Dezfuli's second assignment of error regarding his right to a speedy trial.
On the morning of January 30, 2009, Dezfuli's brother Morteza Ghalambor ("Mort") was pulling his car out of his two-car garage, when he noticed Dezfuli standing nearby with a handgun pointed at Mort "almost to [Mort's] head."*fn1 Mort also noticed a rental car parked "not straight but sideways" where the other garage door was shut. Mort, who was "terrified" and "shocked," grabbed his own handgun from the passenger's seat. When Dezfuli reached out to open the car door, Mort pushed the door toward Dezfuli, which caused Dezfuli to lose his balance. Mort then jumped out of the car and moved toward Dezfuli "to defend [himself]." The two men struggled as Mort attempted to take the gun from Dezfuli. Mort implored Dezfuli to "just calm down, let's talk." At some point, Dezfuli struck Mort so hard with the handgun that Mort started bleeding profusely. The impact was so hard that Mort "saw a flash and thought maybe the gun went off." At that point, Mort "lost control a couple of times and then [Dezfuli] pointed the gun" at Mort and attempted to fire it. The gun did not fire.
Mort, who was by now "soaked with blood," continued trying to defuse the situation and take the gun from Dezfuli. Mort ultimately prevailed and "got the gun from out of [Dezfuli's] hand." Dezfuli then "seemed lost" and started walking around in front of the garage. Mort said, "just calm down," and asked Dezfuli to go inside the house with him to "just sit down and talk." Mort walked to the front of the house and entered through the front door. He immediately ran to the back door, exited, and ran to the next-door neighbor's house. After asking the neighbor to call the police, Mort returned to his own house. Dezfuli was gone.
A Fairfax County magistrate issued arrest warrants on January 30, 2009, charging Dezfuli with malicious wounding and use of a firearm in the commission of a felony. Dezfuli was arrested later that day. The Fairfax County Juvenile and Domestic Relations District Court held a preliminary hearing on March 27, 2009, and certified both charges to the grand jury. On April 6, 2009, the grand jury issued a two-count indictment charging that Dezfuli "did feloniously and maliciously shoot [Mort], with the intent to maim, disfigure, disable or kill" (Count I) and that he "feloniously [used] a firearm while committing the maiming of" Mort (Count II). The case was originally scheduled for trial on May 11, 2009, but the court thereafter rescheduled it for July 13, 2009.
On July 13, 2009, the parties appeared in court as scheduled and the prosecution moved, over Dezfuli's objection, to amend the indictment since the evidence failed to show that Dezfuli shot Mort. The trial court denied the motion to amend the indictment, in large part, because it believed "that [Dezfuli] needs to be fully informed of the nature and character of the accusation and this is a material change." In response, the prosecution sought a continuance. Dezfuli again objected, asserting he had already been in jail since January, and arguing he was being "punished by a continuance by the fact that he will remain incarcerated and that's unfair to him." The trial court agreed with Dezfuli and denied the request for a continuance "in light of the fact that [Dezfuli] has been in jail since January and that this should have been discovered way before then." The prosecutor, therefore, moved, again over Dezfuli's objection, to nolle prosequi the case. The trial court granted this motion, finding "although there was some sloppiness here in failing to amend on a timely basis, I don't find that there was any bad faith on the part of the Commonwealth."
On July 20, 2009, the grand jury handed down a new indictment for malicious wounding (Count I) and use of a firearm in the commission of malicious wounding (Count II). On August 23, 2009, Dezfuli, who was still in jail, filed a notice and motion to dismiss the indictment against him for "violation of his speedy trial rights under Va. Code § 19.2-243, or in the alternative because there was no good cause shown to grant the nolle prosequi on July 13, 2009, under [§ ]19.2-265.3." *fn2 The trial court denied his motion.
Trial commenced on September 9, 2009. Upon the conclusion of the evidence, the trial court found Dezfuli not guilty of malicious wounding and use of a firearm in the commission of malicious wounding. However, the trial court found Dezfuli guilty of brandishing a firearm, in violation of Code § 18.2-282, as a lesser-included offense under Count II. The court scheduled a sentencing hearing for September 18, 2009.
On September 17, 2009, Dezfuli filed a notice and motion to set aside the verdict, along with his supporting memorandum. He argued the merits of his motion at the sentencing hearing on September 18, 2009. The trial court first denied Dezfuli's motion to set aside the verdict, and then sentenced Dezfuli to serve 365 days in jail for brandishing a firearm, with 364 days suspended. The court entered its order memorializing Dezfuli's sentence on October 16, 2009.
On October 30, 2009, Dezfuli filed a motion to reconsider the sentence imposed. The trial court, by final order dated December 11, 2009, "after a full consideration of the matter, denied the motion, without oral hearing, as no relevant matters ...