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Name: In re C.D.
Case #: A150290
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 12/22/2017

A defendant may not be convicted of both assault with a deadly weapon on a peace officer and assault on a peace officer by means likely to produce great bodily injury (GBI), based on the same facts. The minor was driving a stolen vehicle. When approached by police, the minor accelerated the car towards an officer, in an effort to escape. He was found to have committed an assault on a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c)), assault on a peace officer by means likely to produce GBI (Pen. Code, § 245, subd. (c)), and driving or taking a vehicle without consent. On appeal the minor argued the two counts of assault could not be found true because section 245, subdivision (c) defines but a single offense which may be committed in several ways. Held: One assault count reversed. Penal Code section 954 authorizes multiple convictions for distinct offenses, but does not permit multiple convictions for a different statement of the same offense based on the same act. Prior to its 2011 amendment, section 245, subdivision (a) had set forth assault with a deadly weapon and by means likely to produce GBI as alternative provisions within a single statutory subdivision, essentially the same as section 245, subdivision (c). The California Supreme Court in In re Mosely (1970) 1 Cal.3d 913, determined former section 245, subdivision (a) defined only one offense. Although section 245, subdivision (a) was amended to place the two variants of aggravated assault in separate paragraphs of subdivision (a), in order to make it easier in the future to determine whether a defendant’s prior conviction for assault subjected him to recidivist provisions, subdivision (c) remains the same. Thus, assault on a peace officer remains a single offense, and multiple convictions for violating the statute cannot occur when they are based on the same act.

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