Can One Be Convicted of PC 245(a)(1) and 245(a)(4)?

California Penal Code § 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 can be convicted of any number of offenses charged.” People v. Gonzalez (2014) 60 Cal. 4th 533, 537.

However, Section 954 does not permit multiple convictions for a different statement of the same offense when it is based on the same act or counsel of conduct.” People v. Vidana (2016) 1 Cal. 5th 632, at 650. In other words, “If a defendant cannot be convicted of a greater and lesser included offense based on the same act or course of conduct, dual convictions for the same offense based on alternate legal theories would necessarily be prohibited.” Id.

Applying this law is often not so easy, as the following California Supreme Court published opinion, in People v. Veronica Aguayo, shows.

After a physical altercation with her father, wherein 43-year old Ms. Aguayo hit her 72-year old father with a bicycle chain and lock about 50 times, as well as a ceramic pot, she was charged with and convicted in San Diego County Superior Court of both assault with a deadly weapon other than a firearm (Penal Code § 245(a)(1)) and assault by means likely to cause great bodily injury (Penal Code § 245(a)(4)).

In the underlying event, Ms. Aguayo was working on her bicycle in her parents’ yard. Her father accidentally turned on the sprinklers to water the plants and got Ms. Aguayo’s cell phone charger wet. In anger, she then hit her father about 50 times with the bicycles chain and lock.

Ms. Aguayo appealed her convictions for both of these crimes for the same act, arguing that assault with a deadly weapon or instrument other than a firearm (Penal Code § 245(a)(1)) and assault upon the person of another by any means of force likely to produce great bodily injury (Penal Code § 245(a)(4)) are different statements of the same act and thus both convictions cannot stand. The 245(a)(4) charge, she argued, is a lesser-included offense of 245(a)(1), so the conviction and sentence for violating 245(a)(4) must be vacated.

The Fourth Appellate District rejected this argument, pointing out that there were multiple acts of defendant hitting her father with a bicycle chain and the ceramic pot.

The California Supreme Court then reversed the Fourth District, agreeing with Ms. Aguayo.

The California Supreme Court explained that the answer to whether the two counts “overlap” turns on the Legislature’s intent in enacting these provisions. As the California Supreme Court stated, “if the Legislature meant to define only one offense, we may not turn it into two.” Gonzalez, supra, at 538-540 [oral copulation of an intoxicated person and oral copulation of an unconscious person are different offenses]; see People v. White (2017) 2 Cal. 5th 349 [rape of an intoxicated person and rape of an unconscious person are different offenses]; Vidana, supra, at 647-649 [grand theft by larceny and grand theft by embezzlement are different statements of same offense].

To determine the Legislature’s intent under the section 954 framework to create two different crimes, the court considers the text and structure of the statutes, the elements of the two offenses, their prescribed punishments and other indicia of legislative intent, including legislative history and the wide historical context of the statute’s enactment to resolve the question. None of these individual factors is necessarily dispositive. Vidana, supra at 637-647.

Turning to a comparison of 245(a)(1) and 245(a)(4), the Supreme Court noted that the punishment for both crimes is the same: 2, 3 or 4 years in state prison on in a county jail for not exceeding one year and a fine not exceeding $10,000, or both.

The Supreme Court acknowledged that 245(a)(1) was distinguishable from 245(a)(4) in that the former specified the use of an instrument in committing the assault, whereas the latter only requires force.

Most important, however, the Supreme Court explained, was that § 245 was just one provision until 2011. In 2011, the Legislature divided section 245 into four separate subdivisions, but the legislative history indicates these changes were technical, nonsubstantive changes that did not create any new felonies. Therefore, both 245(a)(1) and 245(a)(4) are only different statements of the same crime and Ms. Aguayo could not be convicted and sentenced to both provisions without violating Penal Code § 954.

The citation for the California Supreme Court ruling discussed above is People v. Veronica Aguayo (2022) 13 Cal. 5th 974, 297 Cal. Rptr. 3d 327, 515 P. 3d 63.

For more information about lesser-included offense sentencing issues, please click on the following articles: