Defendant could not be convicted of both assault with a deadly weapon and assault with force likely to cause great bodily injury (GBI) based on the same act involving a noninherently dangerous object. Based on the single act of choking his cell mate with a towel, Brunton was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), assault by means of force likely to cause GBI (Pen. Code, § 245, subd. (a)(4)), and other offenses. A deadly weapon enhancement (Pen. Code, § 12022, subd. (b)(1)) was found true. On appeal Brunton challenged his force-likely assault conviction because it duplicated the assault with a deadly weapon conviction. Held: Remanded for trial court to vacate one of the section 245 convictions, strike enhancement, and resentence Brunton. Before it was amended in 2011, Penal Code section 245, subdivision (a) set forth assault with a deadly weapon and force-likely assault as alternative provisions within a single statute. Courts interpreted the former statute as defining only one offense. In cases involving a noninherently dangerous object (like the towel in this case), the determination of whether an aggravated assault was committed under the deadly weapon clause or the force-likely clause was functionally identical because a noninherently dangerous object becomes a deadly weapon only when used in a manner likely to produce GBI or death. In 2011, the two variants of aggravated assault were placed in separate subdivisions of section 245. Nothing in the legislative history reflects the Legislature intended to create two different offenses where the former statute set forth only one. Here, the two counts alleged against Brunton asserted only a different statement of the same offense and the jury could only convict him on one count. (See Pen. Code, § 954.) Additionally, because Brunton’s use of a deadly weapon in this case “is an element of the single offense, no deadly-weapon-use enhancement can properly attach to the underlying offense.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D071911.PDF