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Force likely assault and assault with a deadly weapon different statements of the same offense

People v. Aguayo (Cal., Aug. 25, 2022, No. S254554) 2022 WL 3652056, at *1

Summary: Aguayo was charged with and convicted of both assault with a deadly weapon other than a firearm (Pen. Code,1 § 245, subd. (a)(1)), and assault by means of force likely to cause great bodily injury (id., subd. (a)(4)).

A defendant may be charged in an accusatory pleading with “two or more different offenses connected together in their commission” and “may be convicted of any number of the offenses charged.” (§ 954.) “The same act can support multiple charges and multiple convictions.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez).) However, if two alleged offenses are “different statements of the same offense” (§ 954), both offenses may be charged based on the same act, but convictions for both cannot stand. (See People v. Vidana (2016) 1 Cal.5th 632, 648 (Vidana).)

Isue: Whether “assault upon the person of another with a deadly weapon or instrument other than a firearm” (assault with a deadly weapon; § 245, subd. (a)(1)) and “assault upon the person of another by any means of force likely to produce great bodily injury” (force likely assault; § 245, subd. (a)(4)) are separate offenses, or whether they constitute “different statements of the same offense” (§ 954). The Courts of Appeal that have addressed this question have reached conflicting results.

The California Supreme Court held that assault with a deadly weapon (§ 245, subd. (a)(1)) and force likely assault (id., subd. (a)(4)) are “different statements of the same offense” (§ 954).

Are force likely assault and assault with a deadly weapon different statements of the same offense for purposes of section 954? If so, must one of defendant’s convictions be vacated?

 

Different Statements of the Same Offense

Section 954 provides that “[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts.”  “The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged.” (Section 954; see Vidana, supra, 1 Cal.5th at p. 649.) One of section 954’s objectives is to assist in a “just administration of the criminal law” — for instance, one trial involving multiple charges alleged in a single accusatory pleading would obviate the need for “another trial of the same facts with its attendant trouble and expense” on any withheld charges.

Section 954 does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.

Whether statutory offenses charged in an accusatory pleading define different offenses or merely describe different ways of committing the same offense turns on the Legislature’s intent in enacting these provisions, and if the Legislature meant to define only one offense, we may not turn it into two.

Statutory language of section 245

Assault with a deadly weapon and force likely assault are separately set out in section 245, subdivision (a)(1) (section 245(a)(1)) and section 245, subdivision (a)(4) (section 245(a)(4)), respectively.  The former makes it a crime to “commit[ ] an assault upon the person of another with a deadly weapon or instrument other than a firearm.” (§ 245(a)(1).) The latter makes it a crime to “commit[ ] an assault upon the person of another by any means of force likely to produce great bodily injury.” (§ 245(a)(4).) The  punishment for both forms of aggravated assault is identical: “imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” (§ 245, subd. (a)(1), (4).)

Legislative history

The legislative history is viewed in the context of our past decisions — which have described force likely assault “as an alternative” to assault with a deadly weapon and have stated that both types of assault constitute “one offense.” The  Legislature has tacitly approved the statements this court has made regarding the relationship between the two aggravated assaults. Had the Legislature sought to make them truly distinct offenses without any overlap it could have added language signaling this intent when it placed force likely assault in its own subdivision in 2011.

Disposition:  Assault with a deadly weapon (§ 245(a)(1)) and force likely assault (§ 245(a)(4)) are “different statements of the same offense” (§ 954). A defendant may not be convicted of both types of aggravated assault based on the same act or course of conduct. (See Vidana, supra, 1 Cal.5th at p. 650.) Here, there is a reasonable probability that the jury viewed the two charged assault offenses as based on the same act or course of conduct. The  Court of Appeal erred by determining for itself that defendant’s “convictions are based on multiple acts — hitting her father with the bicycle chain and lock, and hitting him with the ceramic pot.”

The Supreme Court reversed the Court of Appeal’s judgment and remand the matter for proceedings consistent with this opinion.

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