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Name: People v. Milward
Case #: C058326
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/22/2010
Subsequent History: rev. granted 7/14/10 (S182263)

Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon) is not included in Penal Code section 4500 (assault with a deadly weapon by a life prisoner) and a defendant can be convicted of both. Appellant was convicted of both Penal Code section 245, subdivision (a)(1) and section 4500. The appellate court rejected his argument that because the elements of section 245, subdivision (a)(1) are included in section 4500 he could not be convicted of the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224.) However, section 4500 merely providing for assault with a deadly weapon or instrument, does not exclude an assault by a life prisoner with a firearm, whereas section 245, subdivision (a)(1) specifically excludes a firearm in its definition of deadly weapon. Thus, a life prisoner can violate section 4500 without violating section 245, subdivision (a)(1). Although the appellate court would normally be bound by the Supreme Court’s decision in People v. Noah (1971) 5 Cal.3d 469, holding otherwise, because section 245, subdivision (a)(1) was amended to exclude firearms following the Noah decision, Noah no longer provided a binding interpretation. Separately, the court noted that CALCRIM No. 875, unlike CALJIC No. 9.02, does not accurately describe section 245, subdivision (a)(1) because it does not exclude firearms, and that it should be rewritten.