Reversal was required where appellant was shackled at trial in front of the jury. In his appeal from a conviction for assault by a prisoner and aggravated assault, appellant contended that he was denied due process because he was visibly shackled at trial. The appellate court agreed and reversed. There was not adequate justification for the shackling. The jury knew and saw that appellant was shackled. He was only allowed to have one hand freed. The unjustified shackling created a great potential for prejudice. The evidence was not overwhelming. Appellant testified, and the record does not suggest that he was released from shackles when he testified. Appellant’s guilt or innocence hinged on how jurors perceived his credibility and testimony, and those perceptions were vulnerable to the impact of seeing appellant in shackles.
The trial court did not err by failing to instruct on the lesser included offense of assault where the evidence showed force likely to commit great bodily injury. Appellant also contended that the trial court erred in failing to instruct on the lesser included offense of simple assault. Although the judgment was reversed because of the shackling, this claim was addressed for guidance in the case of retrial. The appellate court rejected the argument. Although assault is a lesser included offense of the charged offense, a jury would not have been likely have found a simple assault. If the jury found that appellant did not act in self defense, the evidence would show no less than an assault with force likely to produce great bodily injury. The victim was hit with enough force to suffer great bodily injury.
Appellant could not be convicted of both aggravated assault and assault by a prisoner. Appellant also contended that he could not properly be convicted of both aggravated assault and assault by a prisoner because the former is necessarily included in the latter. The court agreed that a violation of section 245, subdivision (a)(1) is necessarily included in section 4501 because one cannot commit the latter offense without also committing the former. Accordingly, appellant may not be convicted of both offenses.