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Name: People v. Milward
Case #: S182263
Court: CA Supreme Court
District CalSup
Opinion Date: 08/18/2011
Summary

The crime of aggravated assault is a lesser included offense of aggravated assault by a life prisoner. Milward was convicted and sentenced on both offenses. At the time of People v. Noah (1971) 5 Cal.3d 469, 477, aggravated assault (Pen. Code, sec. 245, subd. (a)(1)), was a lesser included offense of aggravated assault by a life prisoner (Pen. Code, sec. 4501). Subsequent amendments in 1982 materially changed Penal Code section 245 by splitting the offense into assault with a deadly weapon or instrument other than a firearm and assault with a firearm creating two separate offenses. That change in the statute did not alter the analysis that assault with a deadly weapon “other than a firearm” remains a lesser included offense (LIO) because “other than a firearm” is not an element of the offense, but a qualifier such that the offense remains an LIO of section 4501. Conviction on the lesser offense was reversed.