I dissent solely on the question of whether appellant may be convicted of both an attempted voluntary homicide of Eddie Joe Conley and an assault with a deadly weapon upon Conley.
In my opinion, this case meets the test for necessarily included offenses based upon the accusatory pleading. The information charged that appellant wilfully, unlawfully and feloniously attempted to kill Eddie Joe Conley and that at the time of the commission of the offense, appellant was armed with and used a deadly weapon. If he used a gun in the attempt to kill, he must of necessity have committed an assault with a deadly weapon.
Relying on People v. Orr (1974) 43 Cal.App.3d 666 [117 Cal.Rptr. 738] and People v. Benjamin (1975) 52 Cal.App.3d 63, 71 [124 Cal.Rptr. 799], the majority concludes that the firearm use allegation cannot be considered in determining whether assault with a deadly weapon was necessarily included in the attempt to kill Conley. In Orr, the issue was whether failure to instruct sua sponte on the offense of drawing and exhibiting a firearm was error in a case in which defendant was charged with assault with a deadly weapon. The court reasoned that since a firearm use allegation involving the applicability of Penal Code section 12022.5 was not a part of the charge of the offense, it is not considered in determining whether the accusation encompasses a lesser included offense. (43 Cal.App.3d at pp. 673-674.) Subsequently, in People v. Benjamin, supra, the court approved of this holding in Orr and added that, without that rule, “an instruction on assault with a deadly weapon would have to be given in every murder, robbery or rape case in which the ‘use’ allegation under section 12022.5 is charged.” (52 Cal.App.3d at p. 72.) This is not accurate, however, since, even when requested, instructions on lesser included but uncharged offenses need not always be given; instructions are given or refused depending upon the facts introduced before the jury. (People v. Romero (1975) 48 Cal.App.3d 752, 758 [121 Cal.Rptr. 800]; People v. Morrison (1964) 228 Cal.App.2d 707, 712-713 [39 Cal.Rptr. 874].) In Orr itself, the court held that it also *377considered that defendant presented no evidence on the theory that he was guilty of the lesser offense of exhibiting a firearm rather than the greater offense of assault.
I agree with the refusal of the courts in Benjamin and Orr to require sua sponte instructions under the facts of those cases. I do not agree, however, with a broad rule that arming and use allegations in an accusation cannot be considered in determining what offenses are necessarily included in the charged offense. Under the test that looks at the facts against which defendant must defend, no reason exists to ignore what is obviously stated, i.e., that defendant carried out the killing or attempted killing with a deadly weapon. Furthermore, such an inflexible rule would produce the result that a person accused of attempted murder, with a firearm use allegation in the information, could not be convicted of the lesser offense of assault with a deadly weapon, even though the evidence warranted such a conviction and would not support a conviction of homicide, unless the latter offense was specifically charged or defendant consented. (In re Hess (1955) 45 Cal.2d 171, 174-175 [288 P.2d 5]; People v. West (1970) 3 Cal.3d 595, 612 [91 Cal.Rptr. 385, 477 P.2d 409].) Such a result could be unfair, depending upon the circumstances, to either the prosecution or the defendant.
In the instant case, there was evidence from which the jury could conclude either that appellant intended to kill Conley and thus was guilty of an attempted homicide or that he assaulted him without the requisite intent and was thus guilty of an assault with a deadly weapon. The distinguishing feature between the two offenses was a disputed issue. In such a situation, conviction of both the lesser and the greater offenses are inconsistent and the included offense must be reversed.
The offense which should be reversed here is assault with a deadly weapon which is included within the offense of attempted manslaughter by use of a deadly weapon. I recognize that the assault charge under Penal Code section 245 carries a greater maximum penalty than does attempted voluntary manslaughter. The extent of the punishment, however, does not determine which is the necessarily included offense. The Legislature has recognized the wide range of conduct which can be punished under the assault statutes by prescribing a wide range of punishment. “At one end of the spectrum there is conduct virtually indistinguishable from premeditated murder, while at the other there is a mere attempt to seriously injure which lacks any specific intent and is *378completely futile.” (People v. Wingo (1975) 14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001]; see also People v. Jennings (1972) 22 Cal.App.3d 945, 950 [99 Cal.Rptr. 739].) In the attempted voluntaiy manslaughter conviction here, the jury has narrowed this range by determining that appellant acted without malice. This is the conduct for which appellant should be punished.