Is 245(a)(4) a Lesser-Included Offense of 245(a)(1)?
Most experienced criminal defense attorneys would tell you that Penal Code § 245(a)(4) is not necessarily a lesser-included offense of Penal Code § 245(a)(1), but in terms of resolving a case to help their client avoid a strike or mandatory state prison time, they will eagerly seek a 245(a)(4) resolution in place of one for 245(a)(1).
This nuanced understanding was exemplified in the recent Contra Costa County case of Ryan Joseph Pack.
In May 2020, Pack went to trial on three counts of assault with a deadly weapon (Penal Code § 245(a)(1)) for an incident that took place in February 2020. The information alleged that on that day, Pack committed an assault on Kaury Jerard Markham with a “stabbing weapon.” For the same incident, Pack was also charged with one count of driving or taking a vehicle owned by Markham without his consent (Vehicle Code § 10851(a).
The preliminary hearing testimony was that Pack had on his person “silver edged metal knuckles” and that Markham’s cousin, Stanley Walker, observed Mr. Pack holding what Mr. Walker thought was a knife when Mr. Pack tried to hit Mr. Markham.
At trial, Mr. Markham testified that he and Mr. Pack got into a fight and Mr. Pack tried to punch him with his fist. His cousin yelled to Markham, “watch out, he’s got a knife” because the cousin thought Pack was holding a knife in his other hand. Mr. Pack then ran away without using the knife and Markham never saw it. Pack was then arrested.
Police did not find a knife on Mr. Pack.
After both sides rested at trial, the judge instructed the jury on the elements of the crimes charged and their lesser-included offenses. The judge instructed the jury that assault with force likely to produce great bodily injury (Penal Code § 245(a)(4)) was a lesser-included offense of assault with a deadly weapon (Penal Code § 245(a)(1)).
Outside the presence of the jury, defense counsel objected to the inclusion of assault with force likely to produce great bodily injury as a lesser-included offense.
The jury found Mr. Pack guilty of violating Penal Code § 245(a)(4).
Mr. Pack appealed the verdict to the First Appellate District Court, contending that his right to due process under the Sixth and Fourteenth Amendments was violated when the judge instructed the jury that it could find him guilty of the offense of assault by means of force likely to create great bodily injury.
The First Appellate District agreed with Mr. Pack, as did the prosecution, that Penal Code § 245(a)(4) is not a lesser-included offense of Penal Code § 245(a)(1) under both the “elements test” and the “accusatory pleading” test. The verdict was therefore reversed.
The First Appellate District explained that because the two crimes are different and one is not a lesser-included offense of the other, due process requires that the accused be advised of the charges against him. An offense is necessarily included if the charging allegations of the accusatory pleading include language describing the offense in such a way that, if committed as specified, the lesser-included offense is necessarily committed.
The First Appellate Court offered a lengthy discussion of how sentencing proceeds under Penal Code § 954 when these two charges are pled properly and convictions are reached on both and this, in fact, we suspect, is why the judge made the error in instructing the jury that 245(a)(4) is a lesser-included offense of 245(a)(1).
Here, however, the information alleged that Mr. Pack assaulted Mr. Markham with a stabbing weapon, but it did not specify how Mr. Pack used the weapon (if at all), and it certainly did not indicate he used the weapon in a way that was likely to produce great bodily injury. This was necessary.
Accordingly, the accusatory pleading charging Mr. Pack with assault with a deadly weapon did not give him sufficient notice that he would need to answer the charge of assault by force likely to produce great bodily injury.
For more information about assault under varying provisions of Penal Code § 245(a), please click on the following articles:
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