Minor could not be convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) for the same act. Jonathan R. stabbed a young man during a brawl. A juvenile delinquency petition was filed alleging violations of both Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon) and section 245, subdivision (a)(4) (assault with force likely to produce great bodily injury). The juvenile court found the allegations true. He appealed on a number of grounds, including that he could not be convicted of two counts of assault for the same act. Held: Reversed. Prior to 2011, assault with a deadly weapon and assault with force likely to produce great bodily injury were both located in the same subdivision of section 245. In 2011, the Legislature moved assault with force likely to produce great bodily injury to its own subdivision, (a)(4). Now that assault with a deadly weapon and assault with force likely to produce great bodily injury are in separate subdivisions, separate convictions would be proper under the reasoning of People v. Gonzalez (2014) 60 Cal.4th 533, since each has distinct elements and specifies a different punishment. However, Gonzalez recognized an exception where the offense in one subdivision is a lesser included offense (LIO) of the other. Assault with force likely to produce great bodily injury is a LIO of assault with a deadly weapon. (See People v. Aguilar (1997) 16 Cal.4th 1023.) “[W]hen assault with a deadly weapon other than a firearm is found to have occurred, the trier of fact necessarily must have concluded the defendant used or attempted to use force likely to produce great bodily injury, since that likelihood is what makes a weapon or instrument ‘deadly.'” As a result, the Court of Appeal vacated the juvenile court findings with respect to Jonathan R.’s violation of section 245, subdivision (a)(4).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A145238.PDF