Trial court’s instruction on force likely assault as a lesser included offense of assault with a deadly weapon did not violate defendant’s due process rights. Fugit threw a ceramic coffee mug at a car, shattering the passenger window. The information charged Fugit with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Over his objection, the jury was instructed that assault by any means of force likely to produce great bodily injury (force-likely assault) (Pen. Code, § 245, subd. (a)(4)) was a lesser included offense (LIO) of assault with a deadly weapon. He was acquitted of assault with a deadly weapon but convicted of force-likely assault. On appeal, he argued that force-likely assault is not a lesser included offense of assault with a deadly weapon. Held: Affirmed on this point. The parties agreed that force-likely assault is not an LIO of assault with a deadly weapon under the elements test. Under the accusatory pleading test, a lesser offense is included within the greater if the charging allegations include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. The “deadly weapon” element of assault with a deadly weapon can be satisfied by proof that an inherently deadly weapon was used, or that the object was used in such a way that it is capable of causing and likely to cause death or great bodily injury. Here, the accusatory pleading alleged that Fugit used a “ceramic mug,” which is not an inherently deadly weapon. Thus, the specification of the “ceramic mug” in the accusatory pleading put Fugit on notice of the prosecution’s intent to prove that he used the mug in a manner likely to cause great bodily injury. Accordingly, Fugit had adequate notice of the prosecution’s intent to prove all the elements of force-likely assault and the instruction on this offense did not violate due process. [Editor’s Notes: (1) The court distinguished People v. Pack (2023) 88 Cal.App.5th 218, which held that force-likely assault was not an LIO of assault with a deadly weapon where the accusatory pleading specified that defendant used “a stabbing weapon,” i.e. an inherently deadly weapon. (2) The court observed that People v. Aguayo (2022) 13 Cal.5th 974, 996, deemed force-likely assault and assault with a deadly weapon to be different statements of the same offense (for purposes of Penal Code, § 954), and questioned whether either offense could be categorized as a “lesser included” offense of the other, but found it unnecessary to reach the issue. (3) The court remanded for resentencing under AB 518.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A163497.PDF